The Criminal Justice (European Investigation Order) Regulations 2017

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations transpose Directive 2014/41/EU of the European Parliament and of the Council of 3rd April 2014 regarding the European Investigation Order in criminal matters (“the Directive”) (OJ No L 130, 1.5.2014, p.1).

Part 2 gives to judicial authorities the power to make a European investigation order on the application of a prosecutor, a defendant or accused in criminal proceedings, or a constable acting with the authority of a prosecutor. Prosecuting authorities listed in Part 1 of Schedule 1 (defined as “designated public prosecutors”) are also given a power to make a European investigation order and, in England and Wales and Northern Ireland, to validate an order at the request of certain investigating authorities, such as the police. These investigating authorities are listed in Part 3 of Schedule 1.

For the purposes of Part 2, a European investigation order is an order made under regulation 6 or 7 specifying one or more investigative measures to be carried out in a ‘participating State’ for the purpose of obtaining evidence for use in a domestic (UK) criminal investigation or proceedings. Participating States are listed in Schedule 2, and include all of the Members of the European Union except for Denmark and Ireland, which are not bound by the Directive. Under regulation 6, a judicial authority may make an order where it is satisfied that a domestic criminal investigation or prosecution exists, that it is necessary and proportionate to make the order, and where the investigative measures to be specified in the order could lawfully have been ordered or undertaken under the same conditions in a similar domestic case. For certain types of investigative measures such as those relating to video and telephone conferencing, financial information, and the interception of telecommunications, additional conditions and requirements are imposed by Chapter 2 of Part 2. Designated public prosecutors must apply the same tests when making or validating a European investigation order under regulation 7.

Regulation 11 is intended to assist the judicial authority or designated public prosecutor when deciding whether an investigative measure order could lawfully have been ordered or undertaken under the same conditions in a similar case. It sets out specified matters the decision-maker must take into account for certain types for investigative measures (those which require some form of court or other authorisation before they can be carried out domestically, for example the search of a person’s property under a warrant issued under section 8 of the Police and Criminal Evidence Act 1984 or the interception of communications under the Regulation of Investigatory Powers Act 2000). Regulation 11 does not prevent the decision-maker from taking into account other matters, nor does it require the decision-maker to take the specified matters into account in relation to investigative measures which fall outside the scope of paragraphs (2) to (6) (for example measures which are “non coercive” and which domestically, are not subject to any form of court or statutory authorisation process).

Regulation 11(5) allows the decision-maker to disregard any provision of domestic law imposing a procedural requirement which, by virtue of paragraph (2)(e), it would otherwise be required to take into account. Provisions which may be disregarded are those which impose procedural requirements which cannot effectively be applied when making a European investigation order. An example would be the requirement to give notice to an overseas respondent or other affected person prior to making an application for production order, because of the impracticalities involved.

Regulation 8 sets out the form of a European investigation order and certain minimum information it must contain. Regulation 9 deals with the procedure for transmission of an order to the relevant participating State, once it has been made by a judicial authority or designated public prosecutor Under regulation 10, a judicial authority or designated public prosecutor may make or revoke a European investigation order.

Chapter 3 of Part 2 transposes provisions of the Directive relating to the temporary transfer of prisoners for the purpose of UK investigations and proceedings. A European investigation order may be issued requesting the transfer of a prisoner in the UK to a participating State for the purpose of assisting there in relation to the UK investigation, or for the transfer of a prisoner from a participating State to the UK to assist here in a UK investigation or to take part in criminal proceedings.

Part 3 deals with European investigation orders received from a participating State (termed “the issuing State”) by one of the UK’s central authorities, which must be given effect to (“recognised and executed”) in accordance with the UK’s obligations under the Directive. Regulation 26 sets out the procedural steps which must be taken where a European investigation order is first received by a central authority (including acknowledgement of receipt) and requires the authority to take a decision on execution and recognition. The central authority for England and Wales and Northern Ireland is the Secretary of State, in Scotland it is the Lord Advocate.

Regulation 28 sets out the circumstances where recognition or execution of a European investigation order may be refused. Different grounds for refusal are available depending on the nature of the investigative measure requested. Some grounds for refusal are always available in principle; these are set out in Schedule 4. Regulation 27 permits the central authority to go back to issuing authority if more information is required in order to take a decision on recognition or execution, for example in order to work out whether a particular ground for refusal applies. Under regulation 29, recognition or execution of a European investigation order may be postponed if it might prejudice a UK investigation or proceedings or if the evidence sought is already being used in such proceedings.

Regulation 30 sets out the time limits within which a central authority must take its decision on the recognition and execution of a European investigation order, and within which the order must be executed (the investigative measure carried out) where a decision to recognise and execute has been taken. These time limits can be extended in certain circumstances.

Regulation 31 deals with the transfer of the proceeds of an investigative measure (the evidence) to the issuing State once the investigative measure has been carried out, or where the evidence is already in possession of the relevant UK authorities.

Regulation 32, which does not extend to Scotland, permits the Commissioners of Her Majesty’s Revenue and Customs (‘the Commissioners’) to exercise certain of the Secretary of State’s functions under Part 3 where the European investigation order relates wholly or mainly to conduct which, if it occurred in the UK, would be criminal conduct relating to the Commissioners’ functions. Where the Commissioners act under this power, Officers of Revenue and Customs may carry out the functions of constables in relation to the execution of search warrants and production orders made as a result. Under regulation 33, functions conferred on a constable under the provisions mentioned in that regulation may be exercised by a general customs official in relation to an offence, or offences, which if committed in the UK would relate to a general customs matter, and by a customs revenue official in relation to an offence, or offences, which if committed in the UK would relate to a customs revenue matter.

Regulation 34 applies where an authority of the issuing State requests to participate in the execution of a European investigation order in the UK, and extends civil and criminal liability provisions applying to police and NCA officers to persons authorised to assist under the regulation, where they are assisting police or the NCA in the execution of the order.

Regulations 35, 36, and 37 allow and, in certain circumstances, require a central authority to nominate a court to give effect to European investigation orders where a search warrant or production order is needed, or where a person is required to give evidence before a court in the UK or to take part in proceedings overseas via video or telephone conference under the supervision of a UK judicial authority. Schedule 5 and Parts 1 and 2 of Schedule 6 apply once a court has been nominated under regulations 35 and 36 and 37 respectively, and set out the procedure which the court must follow in order to give effect to the European investigation order.

Regulations 39 and 40 set out the procedure for giving effect to a European investigation order by making a search warrant or production order, and confer powers of entry, search and seizure where a warrant is issued. Under regulation 41 a court may in limited circumstances vary or revoke a search warrant or production order issued for the purpose of giving effect to a European investigation order.

Chapter 5 of Part 3 allows, and in certain circumstances, requires a central authority to nominate a court for the purpose of giving effect to European investigation orders relating to certain types of financial information. Once nominated, a court is obliged to make a customer information or account monitoring order unless certain grounds apply. Functions are conferred on constables in order to enforce these orders. Regulation 49 creates an offence of failing to comply with a customer information order, and regulation 50 creates disclosure offences (akin to domestic “tipping off” offences) relating to these orders and to requests for banking information made in reliance on Article 27 of the Directive.

Under Regulation 51, where it decides to recognise a European investigation order a central authority may (and in certain circumstances must) refer a European investigation order to an executing authority for that authority to carry out one or more of the investigative measures specified. Where a referral is made, the executing authority becomes subject to the time limit and evidence transfer obligations imposed elsewhere in the Regulations. Part 4 of Schedule 1 lists the executing authorities for England and Wales and Northern Ireland (in Scotland the only designated executing authority is the Lord Advocate – see the definition in regulation 25). Regulation 52 makes provision for the Lord Advocate to make a direction relating to the use of certain investigatory powers which apply in domestic cases of serious and complex fraud (equivalent to a referral in to the Serious Fraud Office in England and Wales or Northern Ireland).

Chapter 7 allows and in some cases requires the Secretary of State (in Scotland the Scottish Ministers) to give effect to a European investigation order by issuing a warrant for the transfer of a UK prisoner to the issuing State, or the transfer of a prisoner from the issuing State to the UK.

Part 4 contains miscellaneous provisions relating to the interception of telecommunications and reimbursement where an officer of a UK authority taking part in the execution of a European investigation order overseas causes damage. Regulation 59 designates the Directive as an EU Mutual Assistance instrument for the purposes of section 10 of the Investigatory Powers Act 2016 (not yet in force), enabling the UK to give effect to European investigation orders relating to the interception of telecommunications.

Schedule 3 contains consequential amendments. Paragraphs 11 to 14 make changes to participating country designation orders made under section 51(2) of the Crime (International Co-operation Act) 2003 (“the 2003 Act”). For Member States other than Denmark and Ireland, the Directive largely replaces existing EU mutual assistance regimes, as implemented in the United Kingdom through the 2003 Act. The effect of the amendments is twofold: firstly they ensure that member States who will cease to be “participating countries” for the purposes of the Act (by virtue of the amendment made by paragraph 7 of the Schedule) will remain designated for the purpose of provisions relating to service of process, which are outside the scope of the Directive. Secondly they remove designations for the “in scope” provisions of the 2003 Act for Member States not covered by the amendment made by paragraph 7 (i.e. those countries which were not Member States on the day the relevant provision of the 2003 Act entered into force).

Schedule 4 lists common grounds for refusal (those grounds for refusal which are in principle available irrespective of the nature of the investigative measure requested). Schedules 5 and 6 deal with the procedure which must be followed where a court is nominated to receive evidence, or to oversee a person’s participation in overseas proceedings by video or telephone conference.

A full impact assessment has not been produced for these Regulations as no impact on the private, voluntary or public sectors is foreseen.