The EU already provides for rules on obtaining evidence in criminal matters. The transmission of criminal evidence between EU Member States are governed by different legal instruments which are based on the principle of mutual assistance such as the Convention on Mutual Assistance in Criminal Matters and its Protocol, as well as on the principle of mutual recognition, including, the Framework Decision on the European Evidence Warrant and the Council Framework Decision on the execution in the European Union of orders freezing property or evidence. However, according to the European Commission all types of evidence used in criminal matters should be subject to mutual recognition between Member States. Consequently, requests for assistance would be replaced by orders with fixed deadlines for execution.

The European Evidence Warrant (EEW) was adopted in December 2008 and all Member States must transpose the framework decision by January 2011. The mutual legal assistance instruments will continue to apply to evidence falling outside of the scope of the European Evidence Warrant. The EEW is a judicial decision issued by a competent authority of a Member State in order to obtain, from another Member State, evidence that already exists and is directly available in the form of objects, documents and data for use in criminal proceedings. But, it cannot be issued for evidence which does not already exist such as interviewing suspects or witnesses, or for the purpose of obtaining bodily material or biometric data directly from the body of any person, including DNA samples or fingerprints as these types of evidence are not directly available without further investigation. Moreover, the EEW cannot be issued in order to obtain information in real time including the interception of communications or monitoring of bank accounts. An EEW  issued by a competent authority in one Member State will be directly recognised and enforced by a competent authority in another Member State, without any further internal review. Hence, the possibilities of refusing to recognize or execute the EEW are very limited.

The European Council arguing that the existing legal regime on obtaining evidence in criminal matters is too fragmented, has called, in the so called Stockholm programme, for an EU system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, and covering “as many types of evidence as possible” as well as restricting as much as possible the grounds for refusal. In fact, the Commission is planning to put forward, in 2011, a legislative proposal which would replace the existing legal regime by a single instrument based on the principle of mutual recognition.

However, seven EU Member States, Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden could not wait for the Commission proposal and, last April, put forward a proposal for a Directive regarding the European Investigation Order in criminal matters using article 82 (1)(a) TFEU as the legal basis.

Whereas, before 1st December 2009, measures based on the principle of mutual recognition of judicial decisions were adopted by unanimity in the Council and through the consultation procedure, under the Lisbon Treaty they are adopted by QMV in the Council and subject to the ordinary legislative procedure. Hence Member States cannot veto the proposal. Therefore, it is easier to adopt such measures which might lead to extremely injustice situations such as the European arrest and evidence warrants. Moreover, the so called “emergency brake” is not available in this case.

The draft directive would create a single instrument for obtaining evidence located in another Member State in the framework of criminal proceedings – the so called European Investigation Order. The EIO would be a standardized form as provided in the Annex to the draft proposal. Whereas the EEW is based on a specific type of evidence to be obtained, the EIO is based on an investigative measure to be executed, by decision of the issuing authority. The scope of application of such instrument would be, therefore, wider than the EEW as it would also cover evidence that is directly available but does not already exist, such as witnesses’ statements, interception of communications and monitoring of bank accounts as well as evidence that already exists but is not directly available without further investigation, such as analyses of existing objects and DNA samples or fingerprints. It would have even more far reaching implications than the EEW.

The Framework decision on the European Evidence Warrant has not even been implemented yet and Brussels already wants to expand its scope. In the other hand, there is no evidence that the system of mutual assistance is not working to justify the rush of setting up a system based on mutual recognition.

The European Investigation Order would be, therefore, a judicial decision issued by a Member State’s competent authority (the issuing State) with the purpose to have one or more investigative measures carried out in another Member State (the executing State) to gather evidence within the framework of criminal proceedings. To recall, any EIO would be executed by Member States on the basis of the principle of mutual recognition.

The member states’ issuing authorities shall be a judge, a court, an investigating magistrate or a public prosecutor. The issuing State may also define any other judicial authority, such as police officers, to act as an investigating authority in criminal proceedings, providing they have the power to order the investigative measure concerned at national level. Under the Framework Decision on the EEW, the executing state could require, a police officer, acting as issuing authority, to have the EEW validated by a judicial authority stricto sensu, such as a judge or prosecutor. But this validation procedure is not foreseen in the EIO. Hence, it seems that the decision to issue an EIO would not be therefore subject to appropriate standards of independence and transparency. Member States may also decide which authority will act as an EIO executing authority, providing it is an authority competent to carry out, in a similar national case, the investigative measure refer to in the EIO.

As above-mentioned, the EIO would cover any “investigative measure” aiming at obtaining evidence in criminal proceedings. In fact, the draft proposal solely foresees few measures which would not be covered, including the gathering of evidence within a joint investigation team as provided in the Convention on Mutual Assistance in Criminal Matters between the EU Member States and in Council Framework Decision on joint investigation teams. It is also excluded from the scope of the EIO two types of interceptions of telecommunications provided in the 2000 EU MLA Convention: the interception of satellite telecommunications as well as interception of telecommunications with immediate transmission to the requesting State. The cooperation for the carrying out of such measures will continue to be possible under the existing rules.

Under the draft proposal, the EIO can be issued to obtain evidence in criminal proceedings, as well as in some administrative proceedings having a criminal dimension and fulfilling defined criteria. However, it is important to stress that the draft proposal does not provide for an EIO to be solely issued where there is dual criminality, hence the UK might be required to obtain evidence as regards actions which are not considered a crime in this country.

Moreover, the Framework decision on the EEW provides for two conditions for issuing the EEW. Hence, the EEW could only be issued if obtaining the evidence sought is necessary and proportionate for the purpose of the criminal proceedings and when the evidence could be obtained in the issuing state, under its law, in a similar case, if it was available on its territory. This would have prevented states from taking advantages in getting evidence that they would never be able to get in their territory. However, these requirements are not provided in the draft proposal. Therefore, member states would not be required to show that obtaining evidence is necessary and proportionate for the purpose of the criminal proceedings to which the issuing of the EIO is related. In the other hand, the executing States would not allowed to refuse the execution of the EIO on proportionality grounds.

The executing authority must recognise and execute the EIO, without any further formality being required, and, it must, therefore, take all the necessary measures for its execution in the same way as if the investigative measure had been ordered by an authority of the executing State. The issuing authority decides to take the investigative measure in accordance with its national law when it issues the EIO whereas the
executing authority may only challenge such decision on very limited grounds. The executing authority carries out of the measure itself in accordance to its law. For instance, the issuing authority is competent to decide whether or not the search of a house is a necessary measure in the case concerned but the modalities of the search will be governed by the law of the executing State.

The Member State executing authority, under the draft proposal, is required to comply, with all the formalities and procedures expressly indicated by the issuing authority, in order to ensure the admissibility of evidence, providing they are not contrary to its fundamental principles of law.
Hence, any judicial authority from any EU member state may ask the UK police to gather any criminal evidence. In fact, issuing authorities from other member states would be able to give instructions to the UK police officers. Hence, police resources would be therefore spend on such requests which UK would not be able to refuse.

It is important to mention that the draft proposal also considerably limits the possibilities to refuse the execution of the EIO. The grounds for non-recognition or non-execution of an EIO in the executing State are very limited, comparing to the both mutual legal assistance instruments and the EEW. It would be possible to refuse, in case of immunity or a privilege under the law of the executing State which makes it impossible to execute the EIO, as well as if the execution of the EIO “would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities.” Nevertheless, this ground may only be invoked on a case by case basis. Moreover, the executing authority may refuse to execute the EIO if the measure concerned does not exist in the law of the executing State or if it is limited to a list or category offences which does not include the offence mentioned in the EIO and there is no investigative measure available which could achieve a similar result. There is also the possibility to refuse an EIO if it has been issued for non criminal proceeding.
It is important to recall that under the Framework decision on EEW, a Member State may only refuse to execute the EEW on the grounds that the act on which it is based does not constitute an offence under its national law (dual criminality) if a search or seizure is required for its execution and if it is not related to the list of offences set out in the framework decision. Hence, the EEW could result in miscarriages of justice. British citizens might be subject to investigations in Britain, ordered by foreign authorities, for something that it is not a crime in this country. Presently, Member States may keep dual criminality requirements for seizure requests falling outside the scope of the EEW. The EEW already provides for limited refusal grounds but the situation would be even worse with the EIO. The lack of dual criminality is not a ground for refusal to execute an EIO. The framework decision on EEW provides that the execution of the EEW may be refused if it would infringe the double jeopardy (ne bis in idem) principle which guarantees that no one is prosecuted more than once for the same facts. However, this ground for refusal is not provided in the draft directive. Hence, a person found innocent of a crime in a member state might continue to be subject to investigative measures regarding the same allegations, in another member state. Moreover, the Framework decision on EEW provides for the exception for territoriality, whereby an executing state could refuse to execute the EEW if under its law the criminal offences in question are regarded as having been committed in its territory. However this possibility is not foreseen in the draft directive. The EIO would represent therefore another Brussels attack on Member States sovereignty.

Under the draft proposal, one or several authorities of the issuing State may assist in the execution of the EIO in support to the competent authorities of the executing State, at the request of the issuing authority. The executing authority must comply with such request, unless such participation is contrary to the fundamental principles of law of the executing State. It should be made clear that the authorities of the issuing State have no law enforcement powers in the territory of the executing State.
The draft directive provides for rules on civil and criminal liability which are based on the 2000 EU MLA Convention. Under the draft directive, officials of the issuing State when present in the territory of executing State in pursuance of an EIO, shall be regarded as officials of the executing State as regards offences committed against them or by them. Moreover, they are liable for any damage caused by them during their operations, in accordance with the law of the executing State.

The executing authority would be only allowed to carry out a different type of measure than the one indicated in the EIO in three situations, when the measure does not exist under the law of the executing State, or exists but its use is limited to certain category of offences which does not include the offence covered by the EIO, or when the other type of measure will achieve the same result as the measure provided for in the EIO by less coercive means. The executing authority must inform the issuing authority, so it has the chance to decide whether to withdraw or redraw the EIO.

Whilst under the mutual legal assistance regime there is no obligation on time limits, the mutual recognition regime does provide for deadlines. The draft proposal is aiming at accelerating and avoiding delays in these procedures. Although there is a possibility to derogate, the Framework Decision on the EEW provides for clear time limits but there is no mandatory rule on the length of the procedure.
The draft directive introduces a new principle that “the decision on the recognition or execution should be taken and the investigative measure should be carried out with the same celerity and priority as for a similar national case” and “within the deadlines provided …” There are specific time limits, the competent executing authority has 30 days, after the receipt of the EIO, to decide on the recognition or execution of it. Moreover, the executing authority would be required to endeavour to execute the EIO in even shorter deadlines if the issuing authority has requested that in the EIO. The executing authority shall also taking into account as far as possible the requirement of the issuing authority, stated in the EIO, for the investigative measure to be carried out on a specific date. Furthermore, the evidence obtained as a result of the execution of the EIO shall be transferred by the executing authority without undue delay.

The executing authority may postpone the execution of the EIO on the grounds that it would prejudice an ongoing criminal investigation or prosecution, or if the evidence required such as objects, documents, or data are already being used in other criminal proceedings. Obviously, when the grounds for postponement have ceased to exist the executing authority shall take without delay the necessary measures for the execution of the EIO.

Although the draft proposal is aiming at simplifying the procedure, it provides for several administrative requirements, for instance there is a general obligation upon the executing authority to inform the issuing authority of the “state of play of the procedure.” The executing State authority must acknowledge the reception of the EIO within a week by fulfilling and sending a form provided in an Annex to the proposal. Moreover, the executing authority must inform immediately the issuing authority, if the EIO is incomplete or manifestly incorrect, if it decides to undertake investigative measures not initially foreseen, or if it can not complied with formalities and procedures expressly indicated in the EIO.

Although the draft directive has a clause on legal remedies, it is weaker than the one provide on the Framework decision on EEW. The draft directive reads that “Legal remedies shall be available for the interested parties in accordance with national law.” It does not include the possibility foreseen in the framework decision of suspending evidence transfers “pending the outcome of a legal remedy.” Under the principle mutual recognition, the substantive reasons for issuing the EIO may only be challenged in an action brought before an issuing state court.

The draft directive also foresees that an EIO might be issued for the temporary transfer of persons held in custody in the executing State in order to have an investigative measure carried out for which his presence on the territory of the issuing State is required. The executing authority may refuse the execution of the EIO if the person in custody does not consent and if such request would prolong their detention. The member states concerned shall agree between them on the practical arrangements regarding the temporary transfer of persons and the date by which they must be returned to the territory of the executing State. The issuing state shall support the costs arising from the transfer as it is already the case under MLA Convention.

The draft directive also covers the case where an EIO may be issued for the temporary transfer of a person held in custody in the issuing State to the executing state. The executing authority may refuse the execution of the EIO on the grounds on lack of consent from the person concerned or if there is no agreement between the issuing and executing authorities on the arrangements for the temporary transfer. The issuing State would bear the costs arising from the transfer.

If it is not possible or desirable for a person, who is in the territory of the executing state, to be heard as a witness or expert by the judicial authorities of the issuing State, the issuing authority may also issue an EIO so they can be heard by videoconference.
The executing authority may refuse the EIO if it does not have the technical resources for videoconferencing or its use is contrary to fundamental principles of the law of the executing State. Nevertheless, it is foreseen that the issuing state, if there is mutual agreement, may provide the technical means for videoconferencing. Hence, the execution of the EIO may not be refused just for the reason that hearing of witnesses and experts by videoconference is not provided under the law of the executing State.

If the videoconference takes place a judicial authority of the executing State must be present and ensure that during the hearing the fundamental principles of the law of the executing State are not infringed but the hearing would be conducted by the issuing authority in accordance with its own laws. The expenses arising from a videoconference hearing including shall be refunded by the issuing State to the executing State, however the executing Member State may waive such refunds in whole or in part.

Moreover, Member States would be allowed to extend the application of this provision to videoconference hearings involving accused persons however whereas under the 2000 EU MLA Convention, this was only a possibility ensuring margin of manoeuvre for the Member States, under the draft proposal is a binding provision. Nevertheless, it may be refused if it would be contrary to the fundamental principles of the law of the executing State.

As in the 2000 EU MLA Convention, the draft proposal also foresees telephone-conference hearings, providing the arrangements to apply between the Member States in this regard. If a person who is to be heard as a witness or expert by the judicial authorities of a Member State is present in another Member State, the EIO may be issued to obtain a telephone conference hearing. The EIO might be refused if the use of teleconference is contrary to fundamental principles of the law of the executing State.

The provisions on obtaining information on bank accounts are based on provisions of the 2001 EU MLA Protocol which deal with banking information. The EIOs might be issued to obtain information on bank accounts whether a natural or legal person that is the subject of a criminal investigation holds one or more accounts in any bank located in the territory of the executing State. The obligation to provide information only applies to the extent the information is available to the bank keeping the account. It seems Member States would not be obliged to set up a centralised register of bank accounts, but they have to comply with the provision in an efficient way. Hence, if the executing authority traces any bank accounts in its territory, it is under the obligation to provide the issuing State with the bank account numbers and all its details, including accounts for which the person that is the subject of the proceedings has powers of attorney.

The execution of an EIO may be refused if the offence concerned is not an offence punishable by a penalty involving deprivation of liberty or a detention order of a maximum period of four years in the issuing State and two years in the executing State. An EIO might also be refused if the offence concerned is not an offence referred in Council Decision establishing the European Police Office.
The issuing authority would be required to state in the EIO why it considers that the requested information is likely to be of substantial value for the purpose of the investigation and on what grounds it assumes that banks in the executing State hold the account. Nevertheless, the executing authority is not allowed to question whether the requested information is likely to be of considerable value for the purpose of the investigation concerned.

There is also a provision allowing the issue of EIOs to obtain information on bank accounts or banking transactions carried out during a specified period. However, in this case there is no reference to accounts linked to a person that is the subject of a criminal investigation. Therefore, the EIO may cover accounts held by third persons, persons who are not subject of any criminal proceedings but whose accounts are related to a criminal investigation. An EIO may also be issued in order to monitor, during a specified period, banking transactions. This is a measure already covered by the 2001 EU MLA Protocol however under the draft proposal member states would not be allowed to decide the assistance conditions.

The draft proposal also provides for the possibility of an EIO to be issued to carry out a controlled delivery on the territory of the executing State. The competent authorities of the executing state have the right to act and direct the control operations related to the execution of an EIO. However, the restrictions related to controlled deliveries provided in the Convention are not foreseen in the draft directive.

The draft proposal provides that when the EIO is issued for the purpose of executing a measure implying the gathering of evidence in real time and over a given period of time, such as the interception of telecommunications, the observation of a place or a person or an undercover operation, controlled deliveries or the monitoring of banking transactions, its execution may be refused, in addition to the grounds for refusal already mentioned, if the execution of the measure concerned would not be authorised in a similar national case.

There is no obligation under the draft proposal to inform defendants about evidence obtained by an EIO before the trial. Moreover, there is no reference to data protection as provided in the Framework decision on EEW as well as for how long the evidence would be kept.

There would be, therefore, a new legal instrument, the “European Investigation Order”, providing a single legal basis for executing all types of investigative measures throughout the EU and replacing all existing instruments, including both mutual legal assistance and mutual recognition instruments. Hence, the draft directive would replace, without prejudice to their application between Member States and third countries, the “corresponding provisions” of the 1959 European Convention on mutual legal assistance in criminal matters and its two additional protocols, as well as the bilateral agreements, the 1990 Convention implementing the Schengen Agreement, the 2000 Convention regarding mutual legal assistance in criminal matters between the Member States of the EU and its 2001 protocol. The Framework Decision on the European evidence warrant would be repealed.
Member States would be allowed to continue to apply the bilateral or multilateral agreements providing they go beyond the aims of this Directive and contribute to simplifying the evidence gathering procedures. Member States are allowed to conclude bilateral or multilateral agreements however the Commission may ask them to terminate, modify or refrain from concluding the agreement in question.

The European Investigation Order would entail an increased financial burden on the functioning of the cooperation between Member States in the field of obtaining of evidence. According to the abovementioned Member States, the “Economic benefits in the mid and long term, through fluent cooperation between Member States and shorter criminal proceedings, will presumably far exceed the costs.” However, they have not provided a proper impact assessment.

The UK has the right to choose whether to take part in judicial and police cooperation in criminal matters. Nevertheless, once opting in, UK is subjected to the Commission enforcement powers and to the ECJ jurisdiction. Therefore, it can be taken before the ECJ for failure to implement correctly or in due time criminal law legislation. The Government has until the end of the month to decide whether to opt out of the proposal creating the European Investigation Order. It should be bear in mind that if the UK decides to opt in it would be very difficult to amend the draft proposal and to impose exceptions to it. Once it has decided to opt-in there is no right to opt-out even if the outcome of the negotiations is not acceptable. Moreover, the UK would not be able to veto the proposal and there is no emergency brake. Hence, the government should opt out from the proposal. In fact, ideally, the proposal should be withdrawn.

It is important to recall that under the Protocol on the Position of the UK in respect of the Area of Freedom, Security and Justice, as amended by the Lisbon treaty, the UK can opt out of amendments to legislation from which it has already opted in. However, if the Council, acting on a proposal from the Commission, determines that the non participation of the UK in the amending version of an existing measure makes the application of that measure inoperable for other Member States or the Union, it may urge the UK to take part in the adoption and application of the proposal. If the UK, after 2 months of the Council determination, has decided not to make such notification, has decided not to participate in the amendment, the existing measure will not be bidding or applicable to it. Moreover, the Council acting by QMV may determine that the UK shall bear the direct financial consequences incurred as a result of the cessation of its participation in the existing measure. The UK will be, therefore, under pressure to participate.

In cases where the existing measures are repealed and replaced by new proposals, and the UK decides to opt out from the new measure, the House of Lords believes that there are doubts whether the repeal of the original measure will be effective in the UK, or whether the original measure will continue to apply. According to the House of Lords the UK is not bound by the new measure provisions including the provision effecting the repeal of the initial measure. Hence, the original measure would continue to apply in the UK in its no amended form. According to the previous Government if the old measure is repealed it ceases to exist therefore by deciding opting-out to the new proposal the UK would automatically cease to be ruled by the old measures. Hence, in this case, the UK would no longer be bound by the Framework Decision European Evidence Warrant, because it would be repealed. But, the UK will continue to be bound by the Council of Europe measures which it has ratified.