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Examining the European Investigation Order

Civitas, 4 August 2010

The concept of police forces from other EU member states being able to request personal information about citizens suspected of having committed a crime makes many people feel uncomfortable, writes Natalie Hamill. But apparently not Home Secretary Theresa May, who has decided that the UK should opt-in to such a proposal, known as the European Investigation Order (EIO).

The EIO has been developed as the sister initiative to the European Arrest Warrant (which the UK is already signed up to) in an attempt to simplify the rather tangled legal framework and accelerate cross-border crime fighting. Its main proposals are a series of amendments on the gathering and sharing of evidence between member states, for example DNA samples and the surveillance of suspects.

The British Home Secretary has admitted that the proposed EIO is “not perfect”,  but she believes it is important for the UK to opt-in now, to have some “influence” on the final text. However, as the final directive will be approved by Qualified Majority Voting (QMV), rather than a unanimous  vote (courtesy of changes made by the Lisbon Treaty), the UK could still end up tied in to a proposal that many do not agree with, and with none of the amendments the government hopes for.

Speaking in the House of Commons last week, Theresa May explained, “The government has decided to opt into the EIO because it offers practical help for the British police and prosecutors, and we are determined to do everything we can to help them cut crime and deliver justice”.

It makes sense that a citizen who commits a crime in one member state and escapes to another should be tracked down and prosecuted, and cooperation between forces will surely help procure that much more effectively.  Social and economic integration between member states, and the free movement of goods and people (e.g. via the Schengen Agreement), has enabled trans-border crime to flourish. As such, considerations on streamlining trans-border cooperation are important.

However, there are serious concerns raised by the EIO proposal – not least the lack of judicial scrutiny. As it stands the EIO would allow any EU police force to begin an investigation within UK borders, without needing to show that there are reasonable grounds for launching an investigation.

This loophole could result in confusion. At the moment the EIO could allow an individual to be investigated for committing an act that is legal in one state, and yet illegal in another (a famous example of this is holocaust denial). EIOs could also be used by a corrupt official to gain access to bank details and DNA with no need to prove why they are ‘investigating’ that individual. This has caused widespread ‘alarm’ amongst UK civil liberty watchdogs. Big Brother Watch criticised the government for putting UK citizens under the scrutiny of foreign police forces without the protection of ‘judicial sign-offs’. Even the UK police force, according to an article on Public Service, opposes the EOI.

Theresa May’s decision to opt-in to the EIO also contradicts the Tories’ election promise to wrestle UK powers back from the grip of the EU. The EIO appears to do the very opposite, and risks causing a rift within the Conservative Party. David Davis MP previously called for a serious debate given the proposal’s significant implications, and more than one Tory back-bencher has raised concerns that the EIO is simply another ‘EU power grab‘.  The speed at which the opt-in has been considered has not escaped Bill Cash MP’s attention – Cash was recently appointed Chairman of the European Scrutiny Committee, but the Committee’s membership was finalised the night before the opt-in was announced, preventing them from examining the EIO.

Trans-border crime is a serious issue which must be tackled, but the EIO needs to be properly scrutinised and appropriately amended if such an initiative is to be a success.


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