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

Chapter Eight: Information sharing measures

66. The EU JHA regime includes a number of separate arrangements for data sharing. Further detail is provided on these below. At present, the various information systems at EU level are currently not interoperable i.e. able to exchange data and share information so that authorities have the information they need, when and where they need it.

67. Work is currently being taken forward at the EU level to address this issue by way of a proposed Regulation to establish a framework for interoperability between EU Information systems. The UK Government as the Member State is involved in discussions, on behalf of the jurisdictions that comprise the UK, that are taking place with the EU Commission ^[21] . On 18 May 2018, the UK Government gave formal notification that it will opt in to this Regulation. Interoperability of EU level information systems would enhance the efficient use of those systems, and help to eliminate "blind spots". However, once the UK leaves the EU the ability to be able to participate and influence policy development, in areas such as this, will fall away. This may compromise our ability to keep pace with developments and could present a risk to future operational effectiveness in tackling cross border crime.

The Schengen Information System II

68. The UK and Ireland have negotiated "opt–outs" from the Schengen Agreement ^[22] and continue to operate the Common Travel Area ^[23] and their own border checks. But the UK does participate in the Schengen Information System II ( SIS II) an EU-wide database which provides UK law enforcement with real time alerts from other Member States on:

• Fugitives wanted for extradition;
• Missing people;
• People wanted to assist in a judicial process ( e.g. witnesses to be traced);
• Suspected serious criminals, terrorists or objects and vehicles, on whom discreet checks are needed; and
• Stolen or missing property.

69. SIS II allows UK law enforcement agencies to create these alerts themselves and to share them with their EU counterparts - in real time. The UK shares substantial information on wanted or missing persons. In 2017, of all alerts circulated on SIS II, approximately 20 per cent were circulated by the UK and over 5,000 hit reports on UK alerts from EU partners were received.

70. A key feature of SIS II is that all EAWs are flagged within hours of arrest. This means that agencies in one Member State will know whether, for example, a suspect they encounter is wanted in another Member State, or if a vehicle they encounter has been stolen elsewhere in Europe. SIS II is also partially available at the border. This means that the police and Border Force know when a person travelling into the UK is wanted on an EAW. They can then detain and arrest the individual on arrival before he or she has the chance to enter the UK.

71. Furthermore, each time a Police National Computer check is carried out on a person/vehicle/object a SIS II check is automatically carried out simultaneously. Alerts for discreet checks have yielded great benefits for Police Scotland and other EU law enforcement agencies. It allows them to track individuals' movements throughout Europe if they are travelling. When an alert is triggered, information on the individual and/or the vehicle they are travelling in, and with whom, is relayed to the officer who has created the alert. This can support an investigation covertly, providing vital information for officers. For example, during a human trafficking investigation, agencies in all the countries involved can track the movements of both offenders and potential victims.

72. The movements of registered Sex Offenders can also be tracked utilising these alerts, allowing law enforcement agencies to alert another participating country if an offender is travelling to their country. This allows that country to manage the offender whilst they are in their jurisdiction, thus reducing the risk to their communities.

73. All EU Member States gain considerable law enforcement and security benefits from our participation in SIS II, as well as wider public welfare benefits (for example, bringing vulnerable missing people home). We and other Member States would lose these benefits if we withdrew completely from SIS II.

74. If continued access to SIS II cannot be negotiated the immediate fall-back position would be to revert to previous methods for sharing information and providing alerts - i.e. for information requests to be routed via Interpol (and Europol if we are able to maintain membership). This can be a lengthier process with a response to a request for information potentially taking days or weeks rather than seconds or minutes as happens now. These processes would rely on Member States directing information to the appropriate law enforcement agencies in the UK in order for action to be taken. Through SIS II, the UK law enforcement agencies currently have access to all EAWs and alerts in place across all EU Member States.

75. The Scottish Government is of the opinion that loss of SIS II would significantly hinder the ability of the police to take swift action, and in turn, could impact on public safety and therefore that every effort should be made to maintain access to SIS II in the negotiations.

Case study

Swedish Initiative

76. The Swedish Initiative is the overarching Directive which establishes rules to simplify the exchange of information and intelligence between law enforcement authorities of Member States effectively and expeditiously for the purpose of conducting criminal investigations or criminal intelligence operations. Directives such as SIS II operate within this umbrella.

77. It is designed to create an EU wide culture of sharing of information and to build close co-operation and sharing of best practice, between practitioners in different jurisdictions. This overarching framework for co-operation across Member States is particularly important in relation to offences linked directly or indirectly to organised crime and terrorism when a fast turnaround is often of critical importance – particularly when acting upon time sensitive intelligence.

78. The principal ethos of this measure is that if any information is available to law enforcement authorities domestically without judicial authorisation, then it should be available to other EU law enforcement authorities in the same way ( i.e. without the need for a court order, ILOR, etc.). The Swedish Initiative does not give Member States in receipt of information exchanged under it the right to use information or intelligence before a court. Should a Member State wish to use the information exchanged under this decision in such a way, it must obtain the consent of the State providing the information to do so through using appropriate legal instruments in the field of judicial co-operation. A request for information or intelligence from other Member States for evidential purposes is done by way of an EIO.

79. In Scotland, one of the ways the Swedish Initiative is used is by the Asset Recovery Office ( ARO) within Police Scotland. The EU requires that each Member State has an ARO whose primary aims are to investigate and analyse the financial trails of criminal activity and to freeze and confiscate the proceeds of crime. The Swedish Initiative enhances the ARO and the exchange of information and intelligence, through the use of simplified and standardised forms and strict deadlines. Together, they support the recovery of the proceeds of crime both domestically and internationally.

80. Without access to the Swedish Initiative, Police Scotland could utilise other informal information sharing networks, but these would not necessarily give the same time bound response that the Swedish Initiative does. The provision of timeous intelligence allows our law enforcement partners to act quickly. Nor would these other networks provide the element of uniformity required to maintain the quality of information and intelligence that the Swedish Initiative currently provides. No longer being party to it would impact on every other information sharing measure we use to exchange information and intelligence with other Member States such as SIS II. This could lead to a reduction in the detection and investigation of crime and in turn, a vital deterrent would be lost.

81. The Scottish Government is of the view that loss of the Swedish Initiative would significantly hinder the ability of the police to take swift action and in turn, could impact on public safety and therefore every effort should be made to maintain access to the Swedish Initiative in the negotiations.

Eurojust

82. The EU Judicial Co-operation Unit (Eurojust) was established in order to facilitate and consolidate judicial co-operation in criminal matters being conducted or directed across two or more EU Member States. It works closely with Europol but has a particular emphasis on evidence gathering with a view to criminal proceedings.

83. Each Member State has a national desk within the Eurojust office at The Hague, staffed by prosecutors, judges or members of law enforcement agencies, along with central administrative support. For Scotland, the Head of ICU for COPFS is an assistant national member of the UK desk and COPFS places trainees in Eurojust for three months at a time as part of their traineeship. The co-location of prosecutors and judges from all Member States at a central location is a key advantage. Eurojust's success may be seen from the fact that a number of non- EU Member States have appointed liaison magistrates there – Norway, Switzerland and the United States.

84. The judicial co-operation facilitated by Eurojust operates at several levels. The direct personal contact possible through Eurojust facilitates the effective use of the various mechanisms of co-operation including coordination meetings. In appropriate cases, Eurojust facilitates the use of Joint Investigation Teams ( JITs). A JIT agreement is entered into by prosecutors and law enforcement of two or more States to enable a joint investigation of transnational criminal activity being conducted in those States.

85. The advantages of a JIT are that it enables law enforcement agencies to operate jointly in all the States party to the JIT, for example, conducting searches on a joint basis and so ensuring that the evidence relevant to each is gathered according to domestic rules of evidence, often avoiding the need for EIOs/ ILORs and paving the way for requests to be expedited. The EU provides funding for JITs – which is attractive to all participants, but especially important for some of the smaller member States.

Case Study

86. Having access to Eurojust has improved cross-border co-operation between prosecutorial and judicial authorities. It is unlikely that judicial co-operation with the UK and Scotland would cease if we lose access to Eurojust. Judicial co-operation took place to some extent before Eurojust was established and Scottish prosecutors enjoy good working relationships with their counterparts in EU and non EU Member States. However, the ability to convene meetings with a number of countries at a convenient central location and the good personal relationships that have been fostered as a result is undoubtedly preferable and more efficient than having to make individual approaches to the same countries. A continuing relationship with Eurojust is therefore highly desirable.

87. Although the UK and Scotland would still be in a position to enter into JITs as a 'third country', the non-availability of funding to JITs may affect the willingness of other States to enter into an agreement with us. Losing access to this measure means that the UK would no longer have a voice in influencing negotiations about the future structure and operation of Eurojust or matters that affect Eurojust, such as engagement with Europol.

88. The Scottish Government's position is that we should maintain our membership of Eurojust as part of the negotiations on the future relationship with the EU.

European Judicial Network

89. The European Judicial Network ( EJN) is an EU supported network of judges and prosecutors operating in Member States. The network is supported by a secretariat and web portal providing extensive country by country information and they hold regular plenary and regional meetings. While less visible than some other European institutions and instruments such as Europol and the EAW, the EJN is an effective and comparatively low-cost means of facilitating mutual legal assistance across Europe.

90. The EJN provides a useful mechanism for exchange of information and advice, which helps to support the use of formal mechanisms of co-operation. Scottish prosecutors use the EJN much more extensively than their counterparts in the rest of the UK.

91. If the UK was to leave EJN altogether Scotland would feel the adverse impacts the most, due to our use of the network.

92. The Scottish Government is of the view that participation in the European Judicial Network is important to Scottish prosecutors in exchanging information and advice which helps to underpin the use of formal mechanisms of co-operation.