Publication - Corporate report

Scotland's Place in Europe: security, judicial co-operation and law enforcement

Published: 14 Jun 2018

Report setting out our position on the importance of maintaining a close relationship with the EU in relation to security, law enforcement and criminal justice.

Contents
Scotland's Place in Europe: security, judicial co-operation and law enforcement
Annex: Justice and Home Affairs Instruments of EU Criminal Justice Co-Operation

Annex: Justice and Home Affairs Instruments of EU Criminal Justice Co-Operation

Justice and Home Affairs Instruments of EU Criminal Justice Co-Operation [25]

JHA Title

Description

Risk from loss

Europol

Regulation ( EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation and replacing and repealing Council Decisions 2009/371/ JHA, 2009/934/ JHA, 2009/935/ JHA, 2009/936/ JHA and 2009/968/ JHA (Europol).

Membership gives law enforcement officers and specialists direct and instant access to secure Europe–wide information sharing systems that extend their reach in tracking down individuals and tackling crime.

European Law Enforcement Co-operation. Key to intelligence sharing/gathering and advancing multi-state cross-border criminal investigations. Associate status may be possible but likely to lose access to intelligence databases.

Joint Investigation Teams

Council Framework Decision 2002/465 JHA of 13 June 2002 on Joint Investigation Teams.

Council Resolution on a Model Agreement for setting up a Joint Investigation Team ( JIT)

(2017/C 18/01).

Provides closer co-operation between police forces, customs authorities and other competent authorities in EU Member States.

Prosecutor led investigation teams with prosecutors and law enforcement from two or more countries. Allows efficient and speedy evidence gathering with less reliance on Letters of Request. Funding available by Eurojust.

Cybercrime

Directive 2013/40/ EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/ JHA.

Tackles large-scale cyber-attacks by requiring EU Member States to strengthen national cyber-crime laws and introduce tougher criminal sanctions.

Rapid access to emerging threats, investigations etc.

European Arrest Warrant

2002/584/ JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

Ensures that criminals can be identified and brought to justice swiftly in any EU Member State.

Proven success story of European judicial co-operation. Its loss will result reduce efficiency and allow many States to refuse to surrender their nationals. There is a particular issue with Ireland where there is no longer domestic legislation to support the 1957 Convention.

European Investigation Order

Directive 2014/41/ EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters.

Speeds up the assistance between EU Member States in criminal investigations.

Came into force 31 July 2017. Still to be implemented in a few EU Member States. Seeks to replicate efficiencies of EAW to evidence gathering. Likely that reversion to 1959 Mutual Legal Assistance Convention will be permissible but given volume or requests it is important this is clarified at an early stage.

Schengen Information System II [26]

Regulation ( EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System ( SIS II).

Council Decision 2007/533/ JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System ( SIS II).

Along with Prüm & ECRIS allows rapid information sharing and effective co-operation between EU Member States police and prosecutors in the prevention, investigation and prosecution of crime.

Pan- EU alert system. Key public protection innovation which required significant investment. Loss would reintroduce risk of dangerous fugitives slipping through fingers of law enforcement. Difficult to replace to any extent.

Swedish Initiative

Council Framework Decision 2006/960/ JHA of 18 December 2006

on simplifying the exchange of information and intelligence between law enforcement authorities of

the Member States of the European Union.

A catch-all information sharing Directive. Used with Prüm, ECRIS & SIS II.

Overarching framework for co-operation across EU Member States. A loss would lead to a reduction in the detection and investigation of crime.

EUROJUST (European Judicial Coordination Unit)

Council Decision 2002/187/ JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.

Coordinates and facilitates the investigation of cross border crime within the EU and associated evidence gathering.

EU Judicial Co-operation Unit. Facilitates and coordinates criminal investigations across multiple States. A forum for resolution of conflicts and centre of excellence for advice. Provides funding for Joint Investigation Teams.

European Judicial Network

Council Decision 2008/976/ JHA of 16 December 2008 on the European Judicial Network.

Allows for an effective and comparatively low-cost means of facilitating mutual legal assistance across Europe.

Performs similar function to Eurojust for everyday problem solving. Enjoys a lower profile but very useful body extensively used by Scotland.

European Protection Order

Directive 2011/99/ EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Order.

Allows orders issued in one EU Member State to be recognised across the entire EU.

Mechanism for a criminal court to extend a domestic protective order to the State of residence of a protected person.

EURODAC

Regulation ( EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (( EU) No. 604/2013.

Fingerprint database for identifying asylum seekers and irregular border-crossers.

Allows law enforcement agencies to access and prevent and detect serious crime.

ECRIS - (European Criminal Records Information System)

Council Framework Decision 2009/316/ JHA of 6 April 2009 on the establishment of the European Criminal Records Information System ( ECRIS) in application of Article 11 of Framework Decision 2009/315/ JHA.

Along with SIS II & Prüm allows for rapid information sharing and effective co-operation between EU Member States police and prosecutors in the prevention, investigation and prosecution of crime.

European database of criminal records. Scottish domestic criminal law requires courts to take account of European criminal records. In some cases can inform decisions. Important public protection tool.

Passenger Name Records & API

Directive ( EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record ( PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.

Provides a record in the database of a computer reservation system that consists of the personal information for a passenger and also contains the itinerary for the passenger, or a group of passengers travelling together.

Supports delivery of the UK Counter Terrorism Strategy.

False & Authentic Documents Online ( FADO)

Council Joint Action 98/700/ JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the setting up of a European Image-Archiving System ( FADO).

A classified restricted system for the exchange of information between document experts on travel and identity documents.

Provides an easy access system for sharing information on falsified identity and travel documents.

Prüm

Council Framework Decision 2009/905/ JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities.

Council Decision 2008/615/ JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.

Council Decision 2008/616/ JHA of 23 June 2008 on the implementation of Decision 2008/615/ JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.

Along with SIS II & ECRIS allows rapid information sharing and effective co-operation between EU Member States police and prosecutors in the prevention, investigation and prosecution of crime.

Allows rapid information sharing of DNA profiles, fingerprints and vehicle registration records, between EU Member States.

EU- LISA

Regulation ( EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice.

European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice.

Works as a package with other security measures.

Human Trafficking

Directive 2011/36/ EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/ JHA .

Prevents and combats trafficking of human beings in EU Member States.

Broader collaboration mechanisms; loss of EU-wide anti-trafficking coordination.

Football Disorder

Council Decision 2002/348/ JHA of 25 April 2002 concerning security in connection with football matches with an international dimension.

Sets out requirements to enhance security at international football matches.

Ensure Scottish nationals travelling to football-related events in Europe are safely policed; lack of risks knowledge.

Child Sexual Exploitation

Council Decision 2000/375/ JHA of 29 May 2000 to combat child pornography on the Internet.

Directive 2011/93/ EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children, and child pornography and replacing Council Framework Decision 2004/68/ JHA.

Prevents and combats child sexual exploitation across EU Member States.

Knowledge about criminal convictions of people disqualified from working with children.

Asset Recovery/Confiscation measures [27]

Council Framework Decision 2003/577/ JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

Council Framework Decision 2006/783/ JHA of 7 October 2006 on the application of the principle of mutual recognition to confiscation orders.

Council Decision 2007/845/ JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to crime.

Allows EU Member States to confiscate assets derived from serious and organised crime.

Facilitate mutual recognition of asset freezing and recovery across EU Member States. Have been little used to date in Scotland.

Mutual recognition of financial penalties

Council Framework Decision 2005/214/ JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties.

Enforces financial penalties in cross-border cases.

Framework for mutual recognition and enforcement of financial penalties between EU Member States.

Joint Action on Organised Crime

Council Joint Action 97/827/ JHA of 5 December 1997 adopted by the Council on the basis of Article K.3 of the Treaty on the European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime.

An evaluation mechanism to allow EU Member States to combat organised crime.

Allows strong and effective international police co-operation.

Schengen Convention

The Schengen acquis - Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.

Allows effective cross-border surveillance of suspected criminals.

Allows strong and effective international police co-operation; increase in cross-border crime & lack cross-border surveillance.

Prisoner Transfers

Council Framework Decision 2008/909/ JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty.

Allows for a simpler and faster process for returning prisoners to their country of origin/residence.

Unable to secure the transfer(s) of EU prisoners back to their Member State of origin & Scottish residents to serve sentence in back in Scotland.

European Supervision Order

Council Framework Decision 2009/829/ JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

Ensures that bail conditions can be transferred so that suspects from other EU Member States can be properly monitored.

"Euro bail" – mutual recognised instrument that allows accused/offender to reside in another EU Member State while subject to restrictions imposed by the prosecuting State.

Victim's Rights & Compensation

Council Directive 2004/80/ EC of 29 April 2004 relating to compensation to victims of crime.

Directive 2012/29/ EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.

Establishes minimum standards on the rights, support and protection of victims of crime.

Establishes minimum standards on the rights, support and protection of victims of crime. Directive has been transposed into Scots Law.

Information in Criminal Proceedings

Directive 2012/13/ EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings.

Ensures suspects are provided with the correct information in any EU Member State to understand their charge.

Suspects are given a 'letter of rights' which allows Scotland to comply with the Directive.

Interpretation & Translation

Directive 2010/64/ EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.

Ensures that in any EU Member State persons accused in criminal proceedings are to benefit from interpretation, and translation of essential documents.

Allows Scots abroad right to help in criminal proceedings.

Trials in absentia

Council Framework Decision 2009/299/ JHA of 26th February 2009 amending Framework Decisions 2002/584/ JHA, 2005/214/ JHA, 2006/783/ JHA, 2008/909/ JHA and 2008/947/ JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial.

Ensures that rights of accused persons are adequately safeguarded in criminal proceedings.

Amends five current Framework Decisions.

Previous Convictions

Council Framework Decision 2008/675/ JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.

Allows the recognition of convictions in all EU Member States.

Timeous access to any information relating to European convictions.

Drugs

Regulation ( EC) No.273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors.

Council Regulation ( EC) No. 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors.

Helps monitor illegal trade of substances across EU Member States.

Maintain intelligence sharing; increase in drug trafficking.

Explosives

Regulation ( EU) No 98/2013 of the European Parliament and of the Council of 15th January 2013 on the marketing and use of explosives precursors.

Provides a mechanism to alert authorities on the sale of substances across EU Member States.

Public Safety; greater vulnerabilities on exploiting legislation.

Firearms

Council Directive 91/477/ EEC of 18 June 1991 on control of the acquisition and possession of weapons. [28]

Allows controls to be carried out across Member States on the acquisition and possession of firearms and on their transfer to another EU Member State.

Public Safety.

Financial Intelligence Units ( FIUs)

Council Decision 2000/642/ JHA of 17 October 2000 concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information.

Enables information exchange on criminal finances across EU Member States.

Support cross-border financial investigations; slower and less effective investigations.


Contact