Contemporary Issues in European Police Cooperation: A Commentary

Introduction

The commission of serious criminal offences are not always confined to a single jurisdiction and criminal organisations frequently take advantage of jurisdictional borders to  evade apprehension with the result that national policing and security services operating in neighbouring jurisdictions are often inhibited from pursuing suspects by jurisdictional borders and protocols.

Without European and international cooperation national policing and security services would effectively be operating in a vacuum, which is particularly apposite for smaller countries such as Ireland with a growing population diversity. Effective and efficient policing strategies necessarily involve cooperation with national police and security services in other European jurisdictions. Effective policing brings perpetrators to justice while concomitantly vindicating the rights of victims of crime which might necessitate requests for background information on suspects who might have previously resided in another jurisdiction.

With the globalisation of criminal justice, cross border cooperation is a key policing strategy, which typically involves sharing criminal intelligence, conducting investigations, and ultimately apprehending suspects. Europol facilitates cross border cooperation and supports the 27 EU Member States in combatting terrorism, cybercrime, counterfeiting fraud, and other serious and organised crime, but cannot investigate crime autonomously nor indeed lead operations and investigations.

Complexity

It would be impractical for operational police officers to be fully aware of the multifarious international instruments governing European police cooperation. Members of AGS engaged in day-to-day policing duties would have limited need for a comprehensive knowledge and understanding of such an array of international and complex instruments governing police cooperation. AGS has dedicated specialised extradition divisions for such purposes. Where a situation arises for the need to use such international instruments the investigating officers would become familiar with specific international instruments that are appropriate to progress the investigation.

Mutual Assistance

The Convention on Mutual Assistance in Criminal Matters between the EU Member States 2000 established by the Council in accordance with Article 34 of the Treaty on European Union, supplements the Council of Europe Convention on Mutual Assistance in Criminal Matters 1959 and its 1978 Protocol, is effective in engaging police services operating in another jurisdiction to cooperate and gather relevant information and evidence relating to an investigation. These provisions enable national policing and security services to share and check data on suspects, missing persons, persons who may not have the right to enter or remain within the EU, as well as the identification and recovery of stolen or lost property. The Minister for Justice acts as the Irish Central Authority for Mutual Assistance incoming and outgoing mutual assistance requests.

States might be somewhat reluctant to share information or evidence, perhaps based on the belief that national policing services are competent to fully investigate criminal behaviour independently without the assistance from Europol. Moreover, states may perceive that sharing intelligence with Europol and other national policing and security services might compromise ongoing investigations and related operational matters.

The Criminal Justice (Mutual Assistance) Act 2008 as amended governs police cooperation and assistance with other Member States on a wide range of mutual assistance (MLAT) matters including the seizure of evidence, interview of witnesses, and could have a pivotal role in gathering of data from social media companies. Provision for requests for mutual legal assistance between Ireland and the UK has been made under the Criminal Justice (Mutual Assistance) Act 2008 (Designation of United Kingdom) Order 2020 (S.I. No. 718/2020).

MLAT can be a protracted process due to the diverse laws and procedures that pertain in common law adversarial and European inquisitorial criminal justice systems, potential language barriers and the extent to which the state is prepared to provide the requested information is pivotal to effective cooperation in this regard. It remains to be seen whether the current MLAT process will be sufficient to deal with the growing volume and frequency of demands for electronic evidence, which could be an impediment to efficient investigations.

The 2013 Schengen Information System (SIS II) was recently implemented by AGS, and the new SIRENE Bureau (Supplementary Information Request at the National Entries) will be responsible for the daily management of SIS II that will operate 24/7 ensuring a timely response to alerts. These innovations will revolutionise the effectiveness of AGS investigations in dealing with the movement of foreign criminals operating or living in Ireland. While SIS II has taken a considerable period to become operational within this jurisdiction (perhaps due to the diverse common law adversarial and European civil law inquisitorial criminal justice systems), it will unquestionably be an essential asset for AGS to identify suspects who may pose a real and substantive danger to communities where they reside. This will greatly benefit AGS in the performance of intelligence-led proactive policing strategies.

Ireland has failed to adopt some key aspects of SIS II including the perceived implied authority to cross boarders in furtherance of lawful pursuit of suspects, which is commonplace within mainland Europe. This anomaly may have has led to a sub-class of criminality and criminal behaviour along the border region in Ireland and following the departure by the UK from the EU it remains to be seen whether provision for cross-border hot pursuits will be facilitated.

While the framework for co-operation, exchange of information and interaction between the PSNI and AGS is generally very good, the limited application of the Garda Síochána (Police Co-Operation) Act 2003 and the Garda Síochána Act 2005, s. 57 might be perceived as an issue relating to co-operation cultures that might be further enhanced between the policing services operating in the Island of Ireland. With the gradual integration of PSNI officers into the ranks and garda staff grades within AGS, this process may be reciprocated in due course that would further enhance co-operation cultures between the two policing jurisdictions.

European Arrest Warrant

The European Arrest Warrant Act 2003 governs extradition proceedings between EU Member States and European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 to states other than Member States and provide for the arrest of persons in this jurisdiction and their surrender to an authority where they are wanted for trial or to serve a prison sentence. The EAW has provided a more efficient, consistent, and ECHR human rights compliant mechanism for extradition and, before Brexit, had relieved Ireland and the UK from the inherent complexities of previous extradition arrangements under the Convention on Extradition 1957. Extradition to non-EU Member States states from Ireland is governed by the Extradition Act 1965 as amended, which could also be applicable to extradition requests between Ireland and the UK (following the end of the Brexit transition period the UK will no longer participate in the EAW).

The complex, and perhaps controversial, nature of EAW requests was clear in Minister for Justice v Bailey [2020] IEHC 528, where the High Court refused to execute the third EAW request issued by the French central authority for the surrender of Ian Bailey to France. The High Court refused to execute the third EAW based on the reciprocity principle underpinning the Supreme Court’s decision on the first EAW request and issue estoppel in that Mr Bailey had acquired a vested right not to be surrendered in respect of the murder also based on the Supreme Court’s decision (Minister for Justice and Equality v Bailey [2012] IESC 16).

European Investigation Order

Apart from Ireland and Denmark, EU member States have opted ‘In’ to the European Investigation Order (EIO) (Directive 2014/41/EU), which effectively is a judicial decision issued in, or validated by, the judicial authority in one EU Member State to have investigative measures to gather or use evidence in criminal matters conducted in another member State. The rationale for remaining outside the EIO was based on the view that the process would be inconsistent with Irish laws, practices and procedures on the grounds of non-recognition and in particular the absence from the grounds of a dual criminality (alleged conduct for which the EIO has been issued does not constitute a criminal offence under the law of the executing State) provision with regard to certain coercive measures. Ireland did point out that such a decision would not affect its rights and obligations to seek and afford mutual legal assistance requests and indicated a willingness to consider the matter further after adoption subject to the instrument being compatible with Irish law and practice. From a crime investigation point of view, the scope of the EIO is potentially wide-ranging and could apply to the taking of statements from suspects or witnesses, taking DNA samples and fingerprints, the obtaining of banking evidence, and possibly communication data. Ultimately, activities that could be conducted lawfully by national police and security services could be requested from another State. It remains to be seen whether participation by Ireland in the EIO could be facilitated as this would potentially greatly enhance investigations being undertaken by AGS.

Conclusion

The globalisation of criminal law and criminal justice, and increased volumes of transnational crimes, has ushered in more challenges for national police and security services in the detection, investigation, and apprehension of suspects. National sovereignty, geographical boundaries, diversity of definitions of criminal offences in national legal systems, cross-border pursuits (‘hot pursuits’) with the inherent complexities of jurisdiction conflicts has presented challenges and limitations while concomitantly generating new possibilities for joint investigation teams, sharing of information, and contributing to the enhancement of best practices in policing within the European continent. These issues are ever evolving, and policing strategies will need to be modified accordingly to, as far as is practicable, vindicate the fundamental rights of victims of crime while concomitantly respecting the multifarious due process rights of accused persons.