CHAPTER 7: WHAT WOULD BE THE CONSEQUENCES
OF LEAVING POLICE AND CRIMINAL JUSTICE MEASURES?|
181. This chapter considers some of the most
significant measures that were raised by our witnesses. In the
absence of the Government's promised Explanatory Memorandums and
of an indicative list of measures they would seek to rejoin in
the event of the opt-out being exercised, we were not in a position
to draw final conclusions on the measures subject to the opt-out
as a whole. We may need to return to this matter in a subsequent
182. The Home Secretary's 15 October 2012 statement
mentioned that some of the PCJ measures were "now, in fact,
entirely defunct". We asked the Government to provide a list
of the measures they considered to fall into this category. As
their analysis of the measures was not yet complete, they provided
a provisional list of three measures.
No further list had been made available by the time this report
was adopted. The Home Secretary confirmed that the final list
of defunct measures would be made available as soon as possible.
She believed that a defunct measure could still have potential
implications for the UK.
183. While some of our witnesses agreed that
some of the measures could indeed be defunct, none of them considered
this to be a valid reason for exercising the opt-out, as these
measures were also considered to be harmless insofar as the UK
Beyond the Government, only Dominic Raab MP has named measures
he considers to be defunct, including the Convention on Driving
184. In general terms, and quite separately from
the opt-out decision itself, other witnesses suggested that it
would be a good idea for the Commission to conduct a "spring
clean" of any redundant or obsolete measures, with a view
to either amending or repealing them.
Director-General Le Bail confirmed that the Commission was conducting
a more general "fitness check" of all EU legislation
to make sure it was all still relevant and Stefano Manservisi,
the Director-General of DG HOME at the Commission, stated that
any such measures would have to be repealed in the same manner
as they were adopted.
We note that on 15 March 2013, in the context of reducing regulatory
burdens on SMEs, the European Council agreed to "identify
the withdrawal of regulations that are no longer
185. We do not consider that the existence
of "defunct" measures on the list caught by the opt-out
decision should be a material factor in deciding whether or not
to exercise the opt-out. If some measures are indeed defunct then
they are likely to be harmless insofar as the United Kingdom is
concerned. However, we welcome the Commission's intention to review
the corpus of police and criminal justice measures
to identify those which no longer serve any purpose with a view
to either amending or repealing them without further delay.
186. About a dozen measures have been adopted
by the EU which seek to "establish minimum rules concerning
the definition of criminal offences and sanctions" regarding
particularly serious cross-border crimes. Among other things these
measures include Framework Decisions on terrorism, drug-dealing,
fraud, and racism and xenophobia. In his evidence, the Lord Chancellor
sought to make a distinction between measures to combat international
crime and those that "take us a step further towards the
integration of the justice system, towards common penalties in
every country for individual crimes, towards common processes".
He did not identify particular measures but he may well have been
referring to these measures on offences and penalties.
187. The CELS have stated that the vast majority
of these measures required no changes to be made to UK law because
these offences were already criminalised at the time of each measure's
adoption and that if the UK were to withdraw it would make little
difference in each instance unless it wanted to decriminalise
the measures in question.
The DPP echoed this view and said that as a result the measures
were "not particularly" helpful for prosecutors
and that little use was made of them.
Likewise, the Lord Advocate did not consider these measures to
be important in the Scottish context.
188. The Fresh Start Project has stated that
these measures are "predominantly irrelevant to cross-border
operational co-operation" so should be left to "elected
and accountable UK law-makers to decide and the UK Supreme Court
Dominic Raab MP has stated that there would be no need for
the Government to rejoin these measures, particularly the one
concerning racism and xenophobia as such matters are more appropriately
dealt with at the domestic level.
ACPO suggested that the measure concerning terrorism could potentially
weaken UK legislation in this area and these concerns have been
echoed by Open Europe.
However, in response to this point, Jodie Blackstock made it clear
that a standard "non-regression" clause in the harmonisation
measures prevented the diminution of pre-existing domestic laws
in the same area,
while FTI pointed out that the same measures did not prevent the
UK from going further than any of the provisions contained therein.
189. While it is clear from the assessment
of these harmonisation measures that there are differences of
opinion as to their use and value, we do not consider them to
be "building blocks" of a pan-European justice system.
Mutual recognition measures
190. The principle of mutual recognition requires
the decisions and rulings of the courts in one Member State to
be accepted by the courts in other Member States and enforced
on the same terms as their own. This principle has formed the
cornerstone of judicial co-operation in both civil and criminal
matters within the EU since the adoption of the Tampere Programme
for EU JHA cooperation in 1999 and about a dozen measures have
since been adopted on this basis. Two of thesethe European
Arrest Warrant and the European Supervision Orderhave already
been considered in Chapter 6. The other measures concern the mutual
recognition of freezing orders; fines; confiscation orders, probation
orders; and of prison sentences. In general terms, this Committee
has been consistently supportive of these measures during the
191. In Chapter 4 we referred to the views of
some witnesses that the UK had supported, indeed promoted, the
principle of mutual recognition from the beginning. Professor Peers
also told us that "in light of that fact, other Member States
will think it is very peculiar that we turn our back on a system
that we played such a large role in developing".
UKIP were less convinced by the merits of mutual recognition measures,
stating that "Mutual recognition effectively means that every
ex-communist prosecutor or judge in an East European state run
by a local mafia is given an equal standing to the judges in the
192. A number of our witnesses stressed the importance
of the mutual recognition measure on the transfer of prison sentences.
The Lord Chancellor told us that this measure, which entered into
force on 5 December 2011, had "many potential advantages".
While the Government confirmed that no prisoners had yet been
transferred from England and Wales to other Member States under
the measure, 157 prisoners have been identified for potential
transfer and they noted that EU nationals from other Member States
accounted for approximately 36 per cent (3,950) of the current
prison population of foreign nationals. They expected the remaining
Member States to have implemented the measure by 2014 and once
this was the case they expected to see the number of prisoners
transferred steadily increasing. With regard to the mutual recognition
measure on freezing orders they confirmed that so far they had
only received six incoming requests pursuant to this measure and
had not made any outgoing requests.
EU agencies and measures encouraging
193. The European Police Office (Europol) aims
to improve the coordination of Member States' law enforcement
agencies to tackle cross-border crime through the exchange of
intelligence. It was established in 1995 and is currently constituted
on the basis of a Council Decision adopted in 2009, the draft
of which was the subject of a report by this Committee in 2008.
Many of our witnesses considered it to be a useful agency,
including the Home Secretary who thought Rob Wainwright was doing
a "very good job" as its Director.
However, UKIP considered that Europol was modelling itself on
the FBI and that there were well-founded concerns that it has
the potential to develop into a "political secret police".
194. Rob Wainwright told us that, if the UK stopped
participating in Europol, in his opinion there was no doubt that
it would become more difficult for it to investigate international
crimes in operational terms, as it would no longer have access
to Europol's information, analysis and intelligence; forensic
and technical support; training; threat assessments or strategic
analysis; and lose the right to post liaison officers in The Hague.
He said "It would increase the risk of serious crimes, therefore,
going undetected or not prevented in the UK" and as the UK
was a common destination for drug and people trafficking "Any
diminution of the UK's capability to deal with those problems
would clearly increase public safety risk". He also said
that the UK's involvement in Europol was a much more efficient
and cost-effective arrangement through having access to 40 countries
in one place rather than through a network of bilateral arrangements.
He stressed that in general Europol was a very cost-effective
organisation, which had recently made efficiency savings, and
only constituted a tiny fraction of the JHA budget (0.77 per cent).
Mike Kennedy and William Hughes agreed that it provided good value
195. Rob Wainwright told us that the consequences
for Europol if the UK were to leave the agency "would be
pretty disastrous, frankly
Quite simply, we are stronger
together if we stay together; it is as simple as that". He
explained that the UK was the first or second most important Member
State in terms of the volume of intelligence shared and amount
of operational work that is conducted through Europol, with over
50 per cent of cases having a British dimension, either because
it is led by them or involves them. If the UK left, then this
would also go against the international trend, as a number of
non-EU countries are seeking to establish liaison offices in The
Hague at the same time as the UK, and other Member States, are
closing bilateral liaison officer posts elsewhere in Europe in
order to centralise them in Europol.
He told us that over the last three years UK law enforcement agencies
had doubled the amount of evidence they were sharing with Europol;
and SOCA was also relying upon Europol intelligence to a greater
extent than before.
196. The EU's Judicial Cooperation Unit (Eurojust)
aims to improve the coordination of investigations and prosecutions
among Member States' competent judicial authorities. It was established
by a 2002 Council Decision, which was amended in 2009. This Committee
published a report on its operation in 2004.
Many of our witnesses considered Eurojust to be a useful agency.
Michèle Coninsx told us that if the UK left Eurojust it
would be unable to benefit from its services, including the judicial
co-ordination meetings, judicial cooperation agreements with third
countries, office facilities, the facilitation of mutual legal
assistance requests, the acceleration and execution of EAWs and
the funding and establishment of Joint Investigation Teams (JITs).
197. The DPP stressed that the UK's involvement
in Eurojust provided many benefits with the coordination meetings
being the most important. He also considered Eurojust to be good
value for money, costing the UK a relatively modest £360,000
per annum. Costs would be much greater if the UK were to rely
upon a network of bilateral liaison magistrates in each country
instead of the centralised liaison facilities made available in
The Hague. He also provided some examples of where Eurojust had
been of practical benefit to the CPS.
The Lord Advocate also considered Eurojust to be very beneficial
in terms of encouraging a coordinated approach to cross-border
investigations, among other things, and he said that he would
be concerned if the UK left this body.
198. Dominic Raab MP contrasted the large
increases in Eurojust's budget over the years with its performance
and suggested it could benefit from more evaluation of its operations.
While UKIP accepted that it was of "some utility", it
also suggested that its advice function could be provided by international
law firms on a private basis.
The Home Secretary told us it was difficult to indicate Eurojust's
degree of effectiveness based upon the casework data that was
available for 2011 and 2012.
EUROPEAN POLICE COLLEGE (CEPOL)
199. CEPOL is currently located in England at
Bramshill. Many of our witnesses considered it to be a useful
ACPO who told us that it played a positive role in UK policing;
and its location also allowed the UK to influence police teaching
at senior level, while enhancing the reputation of its own policing
across the EU.
However UKIP was concerned that the organisation was being misused
for "indoctrination" purposes and to advance the "Euro-federalist
200. The possibility of merging CEPOL with Europol
is discussed in Chapter 8.
JOINT INVESTIGATION TEAMS (JITS)
201. A JIT consists of judicial and police authorities
from at least two Member States, who conduct a specific cross-border
criminal investigation for a limited period. When we considered
them in our report on the EU's Internal Security Strategy, the
Government told us they considered JITs to be a "valuable
tool" and supported the Commission's plan to expand their
use. Many of our
witness also cited JITs as being a useful measure.
Rob Wainwright and Michèle Coninsx told us that their use
had greatly increased over the years, with the UK being involved
in an average of nine out of 30 JITs per annum.
Eurojust subsequently confirmed that, in 2011/12, the UK participated
in the most JITs of any Member State.
The DPP also stressed that JITs provided benefits including speedier
cross-border coordination, enabling the deployment of UK law enforcement
authorities to other Member States, providing all participating
Member States with direct access to the same evidence, as well
as the increased admissibility of this evidence, which was commonly
challenged before the courts under the previous bilateral agreements.
He also provided examples of where JITs had been of practical
benefit to the CPS.
Measures concerning the exchange
SCHENGEN INFORMATION SYSTEM II (SIS
202. The Schengen Information System (SIS) is
a database system which enables the collection and exchange of
information relating to immigration, policing and criminal law
throughout the EU. The UK does not currently participate in the
SIS but is scheduled to participate in the second generation system
(SIS II) from towards the end of 2014. It will only have access
to the policing and criminal law data. SIS II was originally due
to become operational in 2007 but experienced severe delays since
its inception and eventually became operational for the other
Member States on 9 April 2013. The Committee reported on the development
of SIS II in 2007.
The Government have confirmed that the UK's total projected spend,
on its preparations to join SIS II at the end of the financial
year 2012/13, will be £83.3 million.
Many of our witnesses expected that this would become a valuable
measure once it becomes operational in the UK.
EXCHANGE OF CRIMINAL RECORDS/EUROPEAN
CRIMINAL RECORDS INFORMATION SYSTEM (ECRIS)
203. The Framework Decision on the exchange of
criminal records requires Member States that convict non-nationals
to send notifications of those convictions, including any updates,
to the home Member State of those non-nationals. Member States
can also request detailed information about convictions from another
Member State, which can then be taken into consideration in their
domestic criminal proceedings. A related Framework Decision established
ECRIS, a computer system which allows the efficient exchange of
these records. The whole system became operational in April 2012.
Many of our witnesses emphasised the benefits of this system.
204. ACPOS told us that opting out of this measure
would have a severe negative impact on the ability of UK law enforcement
authorities to assess fully the risks and criminal history of
foreign nationals residing in the UK and accused of committing
crimes here. The
DPP also stressed that without them a defendant from another Member
State would be presented as a person of good character and that
prosecutors would be unable to deploy bad character evidence.
He explained that the ready availability of this information was
crucial and that "operationally" one of the "biggest
risks" they had identified of the UK withdrawing from these
measures was the possibility that someone who would otherwise
not have been granted bail, because they might commit a further
serious offence, might be given bail.
Dominic Raab MP agreed that cross-border criminal record
checks brought obvious benefits but suggested that this could
be facilitated on an "administrative" basis without
the need for an underpinning EU measure.
205. The Government told us that from August
to October 2012 the UK had made 7,872 notifications, regarding
convictions and updates, and received 2,070 notifications in the
same period. From August to October 2012 the UK made 5,492 outgoing
requests and received 1,165 incoming requests. Replies to approximately
30 per cent of the outgoing requests disclosed previous convictions.
THE PR&UUML;M DECISIONS
206. Some of our witnesses referred to the Prüm
Decisions, which implement the Prüm Treaty into EU law.
The Decisions aim to introduce procedures for promoting the fast,
efficient and inexpensive means of cross-border data exchange
regarding DNA, fingerprint and vehicle registration data. Member
States were obliged to have implemented all of the Decisions'
provisions by 2011. The Fresh Start Project have voiced concerns
about the Prüm regime, including the potential consequences
for ordinary citizens, the disproportionate burden it may place
on the UK, as well as data protection issues and the risk of mistaken
The Home Secretary reminded the Committee that the Government
had already made it clear that they would not be implementing
the Prüm Decisions in the short term, primarily because of
the costs involved.
Measures detrimental to the UK
207. Beyond concerns about the EAW, which we
have already discussed in Chapter 6, very few of our witnesses
drew our attention to any specific measures that they considered
to be detrimental to the interests of the UK. Dominic Raab MP
expressed concerns about the sharing of data
and UKIP considered that many of the measures posed a serious
threat to civil liberties and the rule of law in the UK.
208. We therefore consider that there are
compelling reasons of national interest for the United Kingdom
to remain full participants in most of the measures and agencies
referred to in this Chapter. As to the remainder we have identified
no persuasive reason for the United Kingdom to withdraw from them.
330 AnnexBtotheletterfromtheHomeSecretaryandtheLordChancellortoLordBoswellofAynhodated1February2013.Containedinthevolumeofevidence,whichisavailableonline.ThesedefunctmeasureswereoriginallymentionedintheGovernment'swrittenevidence.TheredundantmeasuresareconsideredinChapter4. Back