European Investigation Orders moving a step nearer to being a reality

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On Tuesday the EU will once again debate the controversial European Investigation Order which, if it comes into effect, will allow more powers to European police forces to access things like bank account details and medical records of foreigners suspected of crimes in their country...

Given the rumours that SY and the PJ are not exactly in agreement over their lines of enquiry in the McCann case this might well cause some rumblings of unease in Rothley Towers, methinks.

Oh no,and on the rumoured libel trial date,a nervy few days ahead for some..

We need a like button!

Oh, no, this case could take much longer than I feared.

If the European Investigation Order (EIO) had been around back in 2007 its likely that S.Amoral's job would have been a lot easier and he wouldn't have encountered the delays he did getting the information he requested from the UK.

According to this document [You must be registered and logged in to see this link.]

"In the Stockholm programme, which was adopted on 11 December 2009, the European Council decided that the setting up of a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued. The European Council indicated that the existing instruments in this area constitute a fragmentary regime and that a new approach is needed, based on the principle of mutual recognition, but also taking into account the flexibility of the traditional system of mutual legal assistance. The European Council therefore called for a comprehensive system to replace all the existing instruments in this area, including the Framework Decision on the European evidence warrant, covering as far as possible all types of evidence and containing deadlines for enforcement and limiting as far as possible the grounds for refusal.The execution of an EIO should, to the widest extent possible, and without prejudice to fundamental principles of the law of the executing State, be carried out in accordance with the formalities and procedures expressly indicated by the issuing State.... The issuing authority is best placed to decide, on the basis of its knowledge of the details of the investigation concerned, which measure is to be used. "

and

"To ensure the effectiveness of judicial cooperation in criminal matters, the possibility of refusing to recognise or execute the EIO, as well as the grounds for postponing its execution, should be limited. Time restrictions are necessary to ensure quick, effective and consistent cooperation between the Member States in criminal matters. The decision on the recognition or execution, as well as the actual execution of the investigative measure, should be carried out with the same celerity and priority as for a similar national case. Deadlines should be provided to ensure a decision or execution within reasonable time or to meet procedural constraints in the issuing State. "

and

"The substantive reasons for issuing the EIO can be challenged only in an action brought before a court of the issuing State."

If the EIO finally comes into effect and the PJ decide to apply for access to a suspect's bank account then this clause could be significant,

"The issuing authority shall, in accordance with its national law and unless otherwise indicated by the executing authority, keep confidential any evidence or information provided by the executing authority, except to the extent that its disclosure is necessary for the investigations or proceedings described in the EIO.
Each Member State shall take the necessary measure to ensure that banks do not disclose to the bank customer concerned or to other third persons that information has been transmitted to the issuing State in accordance with Articles 23, 24 and 25 or that an investigation is being carried out."

And if the PJ wish to pursue charges against the McCanns and others in respect of offences connected to child neglect and abandonment this may make it easier for them,

"The EIO may be issued:
(a) with respect to criminal proceedings brought by, or that may be brought before, a judicial authority in respect of a criminal offence under the national law of the issuing State;
(b) in proceedings brought by administrative authorities in respect of acts which are punishable under the national law of the issuing state by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters;
(c) in proceedings brought by judicial authorities in respect of acts which are punishable under the national law of the issuing state by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters, and
(d) in connection with proceedings referred to in points (a), (b), and (c) which relate to offences or infringements for which a legal person may be held liable or punished in the issuing state."

From what I can gather with my non-legal brain, there is much for the McCanns to worry about but what I can't work out is whether the EIO would allow the PJ to force the Tapas 9 to return to Portugal for a reconstruction, since it was their refusal to do this which effectively stalled the investigation back in 2008. Maybe a forum member with more legal knowledge than me can answer that one.

It's my understanding that under Protocol 36 of the Lisbon (how ironic is that!) Treaty, the UK has the option to opt out of all EC police and criminal justice legislation and to opt-in on a case by case basis.  It's also my understanding there is currently debate ongoing in Parliment in which David Cameron has indicated that he intends to excerise the option to opt out in June of this year.

In any event, the question of whether an EIO would affect the McCanns is dependent on whether any such legislation/law made after 2007 is retroactive.

ultimaThule wrote:It's my understanding that under Protocol 36 of the Lisbon (how ironic is that!) Treaty, the UK has the option to opt out of all EC police and criminal justice legislation and to opt-in on a case by case basis.  It's also my understanding there is currently debate ongoing in Parliment in which David Cameron has indicated that he intends to excerise the option to opt out in June of this year.

In any event, the question of whether an EIO would affect the McCanns is dependent on whether any such legislation/law made after 2007 is retroactive.

Thanks, UT. I hadn't thought of the retrospective angle. And as for the politics involved...who knows.... Cameron will do whatever he thinks will win him the next election and that won't have anything to do with justice for a little girl who seems to get more and more invisible by the minute.

If the Portuguese judiciary wish to charge the McCanns with offences relating to child neglect and abandonment, they are free to do so under the terms of current EC, international, and domestic legislation and can issue an EAW at any time.  

A JIT would give the PJ the right to operate in the UK as if they were in Portugal, and vice versa for the Met.  However, while we have heard much of the allegedly 3 ILORs the UK has sent to the Portuguese equivalent of the CPS, not much has been made of the ILORs which the UK has sent to numerous other countries in respect of this case, nor have we have been told how many ILORs Portugal has sent to the CPS.  

In short, we are being told only what certain parties to these proceedings, and the McCanns 'source', want us to hear and I suspect there is a considerably lot more going on behind the scenes than we are led to believe.

Is it known which other countries SY have sent ILORs to in respect of this case, UT?

As I understand it, most of the other countries are European by which I take it to mean members of the EU which would include Ireland/Eire but not Albania, Andorra, Iceland, Switzerland, Norway, Liechtenstein, Monaco, some of the Balkan states, and the Vatican City, to which I would assume MLA's have been sent. 

Much has been made of the allegedly 3 ILORs sent to Portugal but 'mutual letters of assistance' are commonplace when crimes which have, or may have, occurred outside of a nation state's territory are under investigation by its police force and I would be surprised if the CPS have only found it necessary to send 3 such letters to their Portuguese counterparts, with whom they have been in contact prior to the joint meetings which were held in Portugal cJune and late October/November last year, since the status of Operation Grange changed from review to investigation.