The Government has published the Criminal Justice (European Investigation Order) Regulations 2017 (‘the Regulations’) which will come into force on 31 July 2017. The Regulations significantly enhance the ability of law enforcement agencies to obtain mutual legal assistance within the European Union.
The background to the Regulations: the European Investigation Order Directive
The Regulations have been introduced to give effect to the European Investigation Order Directive (‘the Directive’). The Directive replaces most of the existing EU mutual legal assistance measures in relation to the transfer of evidence with a single instrument, the European Investigation Order, based on principles of mutual recognition.
A European Investigation Order (‘EIO’) is a mechanism by which investigators and prosecutors can obtain a wide range of MLA measures, including freezing assets; obtaining and transferring evidence; and hearing witnesses. The Directive streamlines previous MLA procedures into a single process under which there are limited grounds of refusal and tight time limits.
European Investigation Orders issued in the UK
There are two routes by which an EIO can be issued in the UK: (i) on application to a judicial body; or (ii) EIOs made or validated by a designated public prosecutor.
EIOs issued by a judicial body
Under Regulation 6, an application for an EIO can be made to a judicial authority by (i) a prosecuting authority; (ii) a police officer acting with the consent of a prosecuting authority; or (iii) a party to proceedings relating to an offence. This latter category includes Defendants. In England and Wales, a judicial authority is defined as including “any judge or justice of the peace”.
EIOs made or validated by a designated public prosecutor
Under Regulation 7, a designated public prosecutor may make an EIO herself, or validate an order at the request of a designated investigating authority. The definition of designated public prosecutor includes the Director of Public Prosecutions; any Crown Prosecutor; the Director of the SFO; and the Financial Conduct Authority. Designated investigators include chief officers for all police areas in England and Wales, as well as the Chief Constable of the PSNI. In validating EIOs made by investigators, the public prosecutor is taking on a quasi-judicial role.
Public prosecutors and investigators may obtain an EIO under both Regulations 6 and 7. In an Explanatory Memorandum, the Home Office explained that “Where there is currently no need for court involvement in domestic cases, European Investigation Orders will normally be made or validated by a designated public prosecutor…Where a court would normally be involved in a domestic case (for instance when issuing a search warrant), only a court will be able to make a European investigation order.”
The test for obtaining an EIO
In both types of EIO, the issuing body must apply a two-part threshold test, and then satisfy itself in relation to conditions of necessity; proportionality; equivalent domestic legality; and additional conditions in relation to certain measures.
The two part threshold test is: (i) that an offence has been committed, or there are reasonable grounds for suspecting that an offence has been committed; and (ii) that proceedings in respect of the offence have been instituted or it is being investigated.
The second stage test requires the issuing authority to satisfy itself as to the following conditions:
- It is necessary and proportionate to make the order for the purposes of the investigation or proceedings in question;
- The investigative measures specified in the order could lawfully have been ordered or undertaken under the same conditions in a similar domestic case;
- Any additional requirements specified in Chapter 2 of the Regulations has been met. Chapter 2 of the Regulations imposes additional requirements in relation to certain types of measures, including: videoconference and telephone hearings; banking and financial information; real-time evidence gathering (such as monitoring bank accounts); provisional measures; and interception measures where technical assistance is required.
Defence rights
Although the Regulations embed a number of defence rights into the process for obtaining an EIO, the extent to which these rights will give rise to an effective legal remedy will depend, in many cases, on whether the affected person is aware of the fact that an EIO has been made.
The rights of the defence include the requirements of the threshold and second-stage tests considered above (Regulations 6 and 7); the additional procedural protections in relation to the measures specified in Chapter 2 (Regulations 13-18); formal requirements for the making of an EIO, including an obligation to provide accurate information (Regulation 8); and limitations on the use that can made of evidence obtained under an EIO (Regulation 12).
European Investigation Orders executed in the UK
Part 3 of the Regulations provides for an EIO to be sent to the UK central authority which must take a decision on the recognition and execution of the Order. In England and Wales the central authority is the Home Secretary.
Regulations 32 and 33 make specific provision for HMRC cases under which the Revenue Commissioners can perform certain of the functions of the Home Secretary for the purpose of recognising an EIO.
Under Regulation 51, the central authority may refer the execution of the EIO to “an executing authority” if they are likely to be able to give effect to the order, and it is expedient to do so. Executing authorities include the police; the Crown Prosecution Service; the Serious Fraud Office; the Financial Conduct Authority; the Health and Safety Executive; HMRC; and others.
Grounds for refusal
Regulation 28 provides that the central authority may only refuse to recognise and execute an EIO if:
- one or more of the grounds for refusal applies;
- the investigative measure sought does not exist, or would not be available in an equivalent domestic case, and cannot be replaced with another that would achieve the same result;
- the dual criminality test is not met;
- lack of consent (video-conference hearings and temporary transfer);
- The measure may prolong imprisonment (temporary transfer).
The central authority may also refuse to recognise an EIO on certain grounds where the measures relate to covert investigations; real time evidence gathering; or interception.
Certain of the grounds for refusal are disapplied if the EIO relates to one of the types of evidence or measures specified in Regulation 28(2), including evidence already in the possession of the central authority (or other executing authority in the UK) where the evidence could lawfully have been obtained; evidence in databases that is directly accessible by the central authority (or other executing authority) in the framework of a criminal investigation or criminal proceedings; the hearing of a witness; non-coercive measures; or subscriber information.
The grounds for refusal are set out in Schedule 4 and include:
- Immunity or privilege;
- National security;
- Lack of equivalent domestic legality;
- Double jeopardy;
- Territoriality;
- Human rights;
- Discrimination/extraneous considerations.
Challenging an EIO
Regulation 10 provides that the judicial authority or designated public prosecutor that made or validated an EIO may vary or revoke it. In the case of judicial authorities, this can be done on application by the person who applied for the order; a prosecuting authority; or “any person… affected by the order”. This latter category plainly includes the defendant(s) in the proceedings in which the EIO was obtained, but would also appear to encompass a wider category of persons, including the owner or controller of the evidence.
There is no appeal against the making or validation of an EIO by a public prosecutor, or a decision to recognise and execute an EIO by a UK authority. In these cases, the only route of challenge will be by way of judicial review.
