6 European Investigation Order
203. Our inquiry also considered the human rights
implications of the European Investigation Order. The proposed
European Investigation Order (EIO) is currently under negotiation
in the EU. It is intended to simplify and replace mutual legal
assistance agreements by which states can obtain evidence from
other Member States. The Home Secretary announced the Government's
decision to opt-in to this measure on 27 July 2010. The right
to a fair trial (Article 6) and the right to privacy and family
life (Article 8) could potentially be engaged by the EIO.
204. The EIO Directive would enable a judicial authority
or public prosecutor in one Member State (the issuing authority)
to issue a European Investigation Order seeking assistance from
the competent authority of another (the executing authority).
The executing authority would be bound to comply with the request
in the same way as it deals with national investigations (subject
to limited grounds for refusal), although flexibility is provided
where equivalent measures would produce the desired result.
205. Existing legislation on the European Evidence
Warrant would be repealed, and the EIO would replace the corresponding
provisions of the other existing mutual assistance measures. Baroness
Neville-Jones explained that negotiations on the EIO were proceeding
slowly in the European Council and that the instrument "if
finally agreed" would enter force in 2014 or 2015.[208]
206. The House of Lords European Union Sub-Committee
on Law and Institutions and the European Scrutiny Committee of
the House of Commons have both carried out significant scrutiny
work on the EIO.[209]
For this reason, we restrict our comments in this Chapter to the
possible human rights implications of the EIO and the lessons
that can be drawn from the experience of the European Arrest Warrant
in practice.
Human rights implications of
the European Investigation Order
207. Several witnesses raised human rights concerns
about the proposed EIO instrument. Fair Trials International,
JUSTICE and Liberty all voiced concerns to us about the lack of
fundamental rights safeguards in the instrument. Fair Trials International
noted that there was no express refusal built into the instrument
where its use would breach fundamental rights. Further criticisms
made by Fair Trials International included the absence of a dual
criminality requirement, the lack of safeguards in relation to
questions and the lack of adequate data protection controls.[210]
208. Liberty also raised concerns about the limited
grounds for the non-execution of an EIO, including on human rights
grounds. Liberty pointed out that the draft Directive only makes
one reference to human rights where it states that the Directive
will respect the fundamental rights and principles in the ECHR.
Liberty argued that as the EIO is based on mutual recognition
of legal systems "this assumption does not withstand scrutiny"
as in the case of the EAW "even where human rights are an
explicit consideration under the EA, British judges have been
reluctant to enforce this protection in extradition cases."[211]
209. Several witnesses also argued that use of the
EIO should be available to the defence as well as the prosecution.
Catherine Heard of Fair Trials International told us that "it
is often extremely difficult for defendants in proceedings in
another country to obtain evidence from overseas [...] so making
an equality-of-arms-friendly instrument is important."[212]
Charlotte Powell agreed that "the European Investigation
Order would not necessarily be available for defence representatives
to use in order to secure evidence abroad [...] there is an equality
of arms disparity which might put the requested person at a disadvantage
if he cannot also."[213]
Many defendants in extradition cases struggle to provide evidence
to support their arguments. The EIO may go some way to rectify
this problem.
210. We raised these matters with the then Minister.
She told us that "every one of the issues that you have described
has been raised in the negotiation." She noted that inserting
more safeguards in the instrument, or including a role for the
judge in the process, may make the instrument unworkable in practice.
She concluded, however, that there were "areas where some
guidance and safeguards would be a good idea."[214]
211. Lord Roper, Chairman of the House of Lords European
Union Committee, wrote to James Brokenshire MP, Parliamentary
Under Secretary for Crime Prevention, on 20 January in relation
to the EIO. In his letter, Lord Roper set out the points which
his Committee felt should be reflected in the final form of the
Directive, including "an express ground for refusing an EIO
if its execution would involve a breach of fundamental rights",
the possibility of the EIO procedure being capable of use by defence
lawyers and a provision for dual criminality.[215]
That Committee also called for a proportionality safeguard. These
concerns reflect those raised by our witnesses.
212. We fully
endorse the points made about the EIO by the House of Lords EU
Committee. We urge the Government to ensure the inclusion of a
provision to allow the refusal of an EIO on human rights grounds
and a provision for dual criminality. We also agree that the EIO
should be available for the use of defence lawyers, given the
difficulties that defence lawyers face in providing evidence to
support their arguments.
Proportionality
213. Many witnesses raised concerns about proportionality.
Liberty argued that without a test to ensure that the investigative
measure is in proportion to the crime being investigated, "there
is no barrier to a similar impact [as with the EAW] being imposed
by the EIO, with the associated implications for the public purse
and individual fairness."[216]
214. We discussed the issue of the EIO with the
Police. Commander Gibson, representing ACPO, told us that they
"broadly" supported the EIO, but with a caveat around
proportionality: "we would not wish to have that same lack
of control and not be able to say that we do not think that that
is a proportionate use of our resources."[217]
215. In his letter to the Government in reply to
the consultation on the European Investigation Order, Commander
Gibson said that "the EIO is likely to become an inefficient
instrument should it go ahead without a proportionality clause
and, on projected volumes, we are likely to miss the deadline
in a significant proportion of lower level requests."[218]
This appears to us to be a more critical assessment of the benefits
of the EIO than expressed by the Secretary of State for the Home
Department during her statement to the House of Commons on the
decision to opt-in to the EIO when she said that,
"We wrote to every Association of Chief Police
Officers force about the EIO, and not one said that we should
not opt in. ACPO itself replied that "the EIO is a simpler
instrument than those already in existence and, provided it is
used sensibly and for appropriate offences, we welcome attempts
to simplify and expedite mutual legal assistance.""[219]
216. Ms Fenella Tayler, Head of Judicial Cooperation
Unit, Home Office, told us that the Government was "working
hard to try to ensure that proportionality is included in the
instrument." She explained that a key safeguard the Government
were pushing for was to "ensure that an EIO cannot be sent
or executed in this country for something that would not be possible
under our own domestic law." She described this measure as
"perhaps the most basic form of proportionality."[220]
217. In Chapter 4 we noted the difficulties caused
by the lack of a proportionality principle in the EAW; the
lessons from the EAW must be learned when negotiating the form
of the EIO. The Government must ensure that there is an effective
proportionality safeguard in the Directive, in order to ensure
that the EIO operates effectively and that there are not numerous
requests for information in minor cases.
208 Q 210 Back
209
See www.parliament.uk/hleu and http://www.parliament.uk/business/committees/committees-archive/european-scrutiny/ Back
210
EXT 1 Back
211
EXT 6 Back
212
Q 27 Back
213
Q 154 Back
214
Q 225 Back
215
Letter from Lord Roper to James Brokenshire MP, dated 20 January
2011. Available at: http://www.parliament.uk/documents/lords-committees/eu-sub-com-e/cwm/CwMSubEDec2010onwards.pdf Back
216
EXT 6 Back
217
Q131 Back
218
Available in the Library of the House of Commons Back
219
HC Deb, 27 July 2010, c 881 Back
220
Qq 219-26 Back
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