If European police and prosecutors are to cooperate effectively, legal mechanisms that provide a robust institutional framework have to be put in place and remain there, argues James Wolffe QC.
Lord Advocate James Wolffe QC is Scotland’s most senior legal adviser. He is travelling to Brussels this week for a series of meetings with EU justice stakeholders.
Gone are the days when national prosecutors could essentially confine their attention to their own jurisdictions. Criminality today does not respect borders.
We confront serious organised crime groups who traffic drugs and other illicit goods – and, for that matter, human beings – across boundaries. Online, criminals located in one country may defraud individuals and businesses elsewhere in the world.
Digital images resulting from the sexual exploitation of children may be shared in cyberspace regardless of national boundaries. And events elsewhere in the world can affect the nature and level of the threat, in our own territories, of terrorist violence.
If law enforcement agencies are to address transnational criminality effectively, they must co-operate with colleagues in other jurisdictions. Scottish police and prosecutors have forged close links with counterparts across Europe, so that we remain one step ahead of criminals who do harm across national borders.
As members of the EU, we have benefited both from legislative measures, such as the European Arrest Warrant system for extradition, and from institutions through which police and prosecutors can co-operate effectively.
As Lord Advocate, I am the head of the prosecution system in Scotland and I see, at first hand, the practical benefits of co-operation with criminal justice colleagues across Europe and elsewhere.
Last year alone, we made over 400 requests to fellow prosecutors through the European Judicial Network for assistance in relation to extradition and the recovery of evidence.
In the last five years, there have been 541 cases in Scottish courts in which proceedings were taken after an arrest on a European Arrest Warrant and 367 individuals have been extradited from Scotland through this procedure.
We have, in turn, issued 45 European Arrest Warrants in order that individuals are surrendered quickly to Scotland to face trial for serious crimes. And criminal justice agencies across Europe share information relevant to the prevention, investigation and prosecution of crime.
Without effective extradition arrangements, the UK would be at risk of becoming a safe haven for criminals who have committed crimes in other countries and the European Arrest Warrant system has proved to be highly effective.
The time it takes to secure extradition from EU member states has been significantly reduced as a result of this system and through the close cooperation with prosecutors in EU states which we now enjoy.
As the director of public prosecutions for England and Wales has observed: without it, the process of extradition would be slower and more cumbersome.
In the past year, the efficacy of the EAW system has been further enhanced within the UK by access to the Schengen Information System. European Arrest Warrants are now flagged on police databases across Europe within hours of issue – minimising the risk that police officers allow wanted individuals to slip through their fingers because they are unaware of the warrant.
The European Investigation order also promises to be an important innovation which should speed up the efficiency of criminal investigations within Europe by extending the advantages of the EAW to evidence gathering.
In addition to these essential mechanisms, practical cooperation between prosecutors across Europe is facilitated by our membership of Eurojust. It not only improves coordination and cooperation between national authorities, but can also support national authorities in their own investigations and prosecutions where there is an international element.
The significance of our participation in Eurojust is not fully captured by the statistics of formal requests. Even where there has been no formal request, there may be coordination meetings which can prove useful to the prosecution of Scottish cases or to prosecutions in other parts of Europe, where our European partners can benefit from assistance from Scotland.
And the direct relationships of informal cooperation which, through Eurojust, we develop with our counterparts facilitate our effective use of the formal mechanisms of mutual legal assistance and extradition.
These measures exemplify the benefits of solidarity and collective action, in the interests of protecting all our citizens from criminality.
In 2013, the United Kingdom exercised its right under the Lisbon Treaty to opt out from EU measures in the field of police and judicial cooperation and, in 2014, opted back into 35 of those measures.
The strong reasons which justified the decision to opt into those measures in 2014 have not changed. The result of the UK’s referendum on membership of the European Union puts them at risk.
It would not be in the interests of Scotland, of the UK or of Europe, if we were to turn our back on these mechanisms of criminal justice cooperation.
We should remain fully committed to these mechanisms – so that we can maximise our ability to contribute to their work, and to their future development.
Westminster will soon have to decide whether or not to opt into the new Europol Regulation. The Scottish government has urged the UK government to confirm that it will do so.
No less in Scotland’s interest is our continuing participation in Eurojust, and in legislative instruments of criminal justice cooperation to which we are party. Without them, the safety and security of our citizens would be diminished.
The threat posed today by transnational criminality is, surely, too urgent and real for us to contemplate any weakening of our commitment to police and judicial cooperation with our colleagues in other parts of Europe.