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

Chapter Seven: Law enforcement and investigation measures

42. Membership of Europol and the package of EU information sharing measures supports the Scottish Government's commitment to a union of solidarity where countries come together for mutual protection, working together to address big challenges which all matter to our collective peace and security and to the future of our country. They play an important role in supporting our law enforcement agencies to keep our citizens safe from organised crime and terrorism and help make our communities safer and more inclusive places to live and work.

43. In its Framework for the UK- EU Security Partnership the UK Government has stated that " EU agencies Europol and Eurojust are at heart of the efforts to tackle serious and organised crime and terrorism across Europe ... It is critical that the strength of these bodies are not weakened." ^[18] The UK Government does not provide detail as to how it intends to replicate the current UK participation in these EU agencies whilst at the same time leaving the jurisdiction of the CJEU.

Police Co-operation – EU Agency for Law Enforcement Co-operation (Europol)

44. Organised crime, cybercrime, and terrorism do not respect national borders and it is important that Police Scotland is able to share and access information, which can often be time critical, with law enforcement agencies in other Member States. Europol is the EU's law enforcement co-operation agency, which works to assist Member States and across borders to combat serious international crime and terrorism. Europol is a support centre for law enforcement operations, a hub for information, and a centre for law enforcement expertise. Although, primarily an intelligence sharing agency it also offers operational support in tandem with Eurojust, supporting Eurojust coordination meetings and the establishment of Joint Investigation Teams ( JITs).

45. Europol identifies, tracks and disrupts the most dangerous criminal and terrorist networks in Europe. It offers a wide range of services to law enforcement agencies, including criminal analysts and produces regular assessments and reports on existing and emerging threats. In addition to the permanent Europol staff, EU police forces maintain teams at Europol HQ based in The Hague. These teams can facilitate cross-border investigations.

46. As a member of Europol, the UK brings a significant level of expertise and experience. The UK has a number of Seconded National Experts and also leads on a number of crime areas on behalf of Europol. Police Scotland has an officer embedded in the UK Liaison Bureau to ensure expediency and operational efficiency in Scottish cases. In 2017, 6,000 intelligence contributions were made to Europol by the UK which was more than any other Member State. Europol is involved in over 18,000 cross border investigations every year. Police Scotland has also submitted 30 requests through Europol for cross-border surveillance and continued membership of Europol is seen a vital tool for our law enforcement agencies for investigating and preventing crime.

47. Europol is also a significant player in the development of the Serious and Organised Crime Threat Assessment which identifies the range of threats posed to the EU by serious and organised crime. This report helps inform decisions on policy priorities to combat organised crime across the EU.

48. As organised crime groups seek to adapt their methods and activities to take advantage of new opportunities, Europol has developed its structures and practices to respond more effectively. In recent years Europol has established the European Migrant Smuggling Centre, the European Counter Terrorism Centre and the European Internet Referral Unit. It also plays host to the Intellectual Property Crime Co-ordinated Coalition.

49. Cybercrime is relatively new and continues to increase in variety and complexity. Europol set up the EU Cybercrime Centre, EC3, which operates across 3 main areas:

• Cybercrimes committed by organised crime groups e.g. online fraud;
• Cybercrimes that cause serious harm to the victim e.g. child sexual exploitation; and
• Cybercrimes affecting critical infrastructure and information systems e.g. Wannacry Ransomware attack on the NHS, organised crime's systematic misuse of private individuals' computers to spread viruses or spam.

50. The Scottish Government's Safe, Secure & Prosperous: A Cyber Resilience Strategy for Scotland ^[19] was published in November 2015 and sets out the actions we need to take to make Scotland a cyber-resilient place to live, work and do business. Because cyber has no national borders, it is important to maintain and indeed nurture the strong collaborative relationship with Europol to ensure that Scotland can continue to build its own cyber resilience and become a digitally safe and secure country.

51. The UK is currently a full member of Europol and as such can and does influence its direction and priorities. For example, the UK has recently influenced Europol on wildlife crime and illegal firearms. To lose membership of Europol without any other agreement in place would mean that information provided by Police Scotland will be removed from Europol databases due to data protection rules which could prejudice on-going investigations. Also, Police Scotland will no longer have access to data held by Europol. In practice this could mean that fugitives from other European countries may not be identified as such and steps taken to remove them from Scotland. Similarly, it would make it more difficult and time consuming to apprehend Scottish criminals who flee overseas.

52. The UK will be able to fall back on its membership of Interpol but any support required will take longer to deliver and inevitably delay action by Police Scotland and potentially impede justice. The UK may be able to negotiate an agreement to become a 'third country' member of Europol, although existing arrangements with third countries would not afford the UK the same level of direct access to data and resources held by Europol as is currently enjoyed. Negotiations are likely to take time and if not concluded by the time Brexit takes effect will leave the UK - and Scotland - more vulnerable.

53. We believe that maintaining Europol membership will help to keep people safe and secure. Membership gives Scottish law enforcement officers and specialists direct and instant access to secure Europe–wide information sharing systems that extend their reach to tracking down individuals and tackling crime. The presence of a Police Scotland officer embedded within the UK Liaison Bureau at Europol also ensures that any issues can be dealt with timeously and any concerns addressed promptly. Therefore, Europol membership should be one of the key outcomes secured in the negotiations on our future relationship with the EU.

Case Study

European Arrest Warrant

54. The European Arrest Warrant ( EAW) is implemented throughout the UK by the Extradition Act 2003. This is a reserved matter and the legislation was passed by the UK Parliament. The EAW establishes procedures for transferring individuals relatively quickly and smoothly between EU Member States to face justice. It is designed to limit governmental involvement, is operational in all Member States and over-rides the objection in some EU Member States to the extradition of their own nationals.

55. Under the EAW regime, extradition is a judicial rather than a political process. The Lord Advocate has a statutory responsibility to conduct extradition hearings on behalf of the requesting State. The decision on whether to order extradition is a matter for the courts.

56. The EAW operates on the basis of mutual recognition of decisions made by the relevant authorities in other Member States. It uses a Europe-wide pro forma warrant, with limited grounds for refusal and specified time limits for execution. Extradition proceedings by EAW can now generally be measured in days and weeks rather than months and years, as can be the case with traditional extradition requests. Since 2004, the UK has surrendered over 10,000 individuals under the EAW.

57. The EAW contributes to the efficiency and effectiveness of the justice system, helping to ensure that individuals are brought to trial in the appropriate forum as swiftly as possible. There are also cost benefits in respect of reduced remand costs and less court time. The effectiveness of the EAW is materially enhanced by UK participation in the Schengen Information System, which enables law enforcement agencies across Europe to establish, in real time, whether an individual is the subject of an EAW. This is an important public safety and protection safeguard.

58. If we leave the EU without negotiating and putting in place successor arrangements similar to the EAW, the process of extradition would be slowed down and become more complex. Overall costs, such as those incurred in longer periods of remand time, would increase. We could fall back on the Council of Europe Convention and various protocols, where those remain available. However, the associated procedures are typically considerably slower and more cumbersome than procedure under the EAW. Further, the Council of Europe Convention can only be relied on where a Member State involved has not revoked the Convention. Also, some Member States have constitutional bans on the extradition of their own citizens under the Convention, which do not apply under the EAW.

59. The EAW is an important feature of Scotland's fight against crime. It helps to ensure that individuals accused of crime can be swiftly brought to trial, by allowing a rapid and straightforward system of surrender between judicial authorities within the EU. It also enables criminals who have been convicted but have absconded to another jurisdiction to be returned swiftly to face punishment. The Scottish Government is therefore clear that maintaining the EAW should be another key outcome of the negotiations to leave the EU and form a core part of our future relationship with the EU.

60. The tables below set out the number of extradition requests made from 2013 to 2018. Table 1 shows requests made by other Member States in respect of individuals resident in Scotland. Table 2 shows requests made by Scotland to other Member States in respect of individuals resident in another Member State.

Table 1: Number of extraditions from Scotland (following conclusion of court proceedings in relation to EAWs)

Year	Number
2013	88
2014	39
2015	78
2016	82
2017	59
2018	15
Total	361

Table 2: Number of extraditions to Scotland (following conclusion of court proceedings abroad in relation to EAWs)

Year	Number
2013	12
2014	9
2015	9
2016	19
2017	15
2018	6
Total	70

Source: Crown Office and Procurator Fiscal Service.

Requests for extradition by way of European Arrest Warrant are made by COPFS working with Police Service of Scotland, the National Crime Agency and partners outwith the United Kingdom, where it is believed the accused may be located. The execution of such requests is a matter for the authorities of Member States where the accused is located.

Case Study

European Investigation Order

61. The European Investigation Order ( EIO) came into effect in 2017 and replaces International Letters of Request ( ILOR) as the means by which EU Member States request from each other, evidence, information required or other assistance for criminal investigations and proceedings. The intention of the EIO Directive is to provide for a simpler, unified system for the gathering of evidence across jurisdictions and provide legal certainty for law enforcement agencies and individuals subject to criminal proceedings.

62. The EIO system provides for a procedure that allows a judicial authority in one Member State (the "issuing authority") to request specific criminal investigative measures be carried out in another Member State (the "executing authority"). As the request is made on the basis of mutual judicial recognition ^[20] and is intended to have more or less direct effect in the country to which it is issued, there are limited grounds for non-recognition or refusal.

63. Like EAWs, EIOs have to be dealt with within specified time limits – the requirement is that EIOs are recognised, given effect to and the evidence and information requested delivered up to the requesting State within 120 days from issue. The process of implementation by EU Member States is nearing completion. As a relatively new measure no data has yet been published regarding the volume of EIOs but COPFS ICU has already dealt with EIOs from a number of the countries which have implemented the Directive; and the early experience of ICU so far has been positive.

64. If continued access to the EIO cannot be negotiated the immediate fall-back position would be to revert to previous methods i.e. ILOR. These have no set timescales for execution and it is likely that this would slow up the administration of justice. It also creates the possibility that ILORs from the UK will be given less priority than EIOs.

65. The Scottish Government's view is that reverting to the ILOR system would be an unacceptable outcome, reversing the increased efficiency which the EIO provides in the context of assistance between Member States in criminal investigations. Therefore, this measure should be secured in the negotiations on our future relationship with the EU.