22 Oct 2016, 46 mins ago

The Treaty of Lisbon changed the legal framework for the adoption of EU policing and criminal law. This field would now be subject to the jurisdiction of the Court of Justice of the European Union (CJEU) and, for the most part, the ordinary legislative procedure of the EU.

This was a major change and, as a result, the UK negotiated an opt-out. The opt-out operated in two ways. Firstly, the UK has a choice whether to join any new measures from this point forward. Secondly, the UK negotiated a 5-year period during which it could opt-out of all of the existing measures and then opt-in to those measures it which wished to participate in.

The UK then announced its intention to exercise its block opt-out and subsequently identified the series of measures it wished to re-join – including most prominently the European Arrest Warrant. In November there were chaotic scenes in Parliament when the Government proposed a motion regarding some but not all of these measures. Despite criticism of the way in which the debate was held, the motion passed with strong cross-party support.

On Monday 1 December 2014 the UK completed the process and opted into several measures which include the following:

  • The European Arrest Warrant
  • The Asset Recovery Office
  • Combating indecent images of children
  • Confiscation and Freezing Orders
  • The Customs Information System
  • The Data Protection Secretariat
  • “ECRIS” measures which require Member States to inform each other about convictions of EU nationals in another Member State
  • The European Judicial Network
  • Eurojust
  • Europol
  • European Supervision Order
  • FADO, a computerised archive containing information relating to falsified and authentic identity documents
  • Financial Intelligence Units
  • Football Safety and Security
  • International Undertakings in the Fight of Organised Crime (GENVAL)
  • Joint Investigation Teams (“JITs”)
  • Mutual Recognition of Financial Penalties
  • Customs co-operation and mutual assistance
  • Prisoner Transfer Framework Decision
  • The Swedish Initiative, which seeks to simplify the exchange of information and intelligence between law enforcement authorities in Member States
  • Taking Into Account Convictions
  • The recognition of decisions handed down in absentia in different ways and the mutual recognition of judgments
  • A common level of protection and an appropriate level of security when Member States exchange personal data within the framework of police and judicial cooperation
  • The Schengen Convention (as amended by two measures which are also listed) aims to tackle the threat of cross-border crime by facilitating police cooperation and cross-border surveillance.
  • SIS II, the new EU database for swapping alerts between Member States in relation to missing and wanted people and objects.

The best known of these measures is of course the European Arrest Warrant. The other measures are intended to increase cooperation between Member States in the police and criminal justice sphere. Two in particular are worth mentioning.

The UK has signalled its intention to participate in the second generation Schengen Information System (SIS II). This allows for instantaneous electronic circulation of European Arrest Warrants, information on wanted or missing persons and stolen property. It is predicted that SIS II will result in an increase in the numbers of warrants that will be dealt with in the UK. Amendments have already been made to the Extradition Act 2003 to prepare for this new method of transmitting warrants. However, its implementation has been postponed several times already and it is not clear when the UK will join.

Another important measure is the European Supervision Order which enables individuals to be supervised on bail in other member states whilst awaiting trial thus reducing the need for non-resident defendants in the EU to be held in lengthy pre-trial detention.

5 December 2014