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The Treaty's Legal Scope and Structure, including the Possible Relationship with Non-Criminal Jurisdictions

JUEST Network Research Statement

Professor Tim J Wilson FCSFS, Northumbria University Centre for Evidence and Criminal Justice Studies (NCECJS)

Approach to research and external funding declaration

1. Much of the research covered by this statement has been undertaken jointly with academic and professional colleagues from NCEJS[1], other EU member states and EU institutions. It will be supplemented in due course by additional statements from those colleagues and other members of the JUEST network.

2. I came to this area of academic research after a previous career in the Senior Civil Service. In addition to insight into policy making, my background also gives rise to concerns that the treaty’s scope might be artificially constrained by a narrow focus on the lead department’s responsibilities.[2]

3. From 2013 to 2016 my research benefited from EC financial support. All of my current external research funding, however, comes from Scandinavian, Dutch and UK research councils. [3]

Knowledge and Research

4. My earlier career and subsequent academic research has resulted in considerable respect for how EU institutions and members states have successfully worked together to implement legal processes for criminal justice cooperation underpinned by the necessary scientific and technological infrastructure. This has required an ability to ensure that judicial cooperation can work reasonably effectively in individual cases while respecting the extensive variations in the substantive and procedural criminal law of EU member states, to deliver complex ITC projects and to champion scientific standardisation. Such work has created a globally unprecedented system of inter-jurisdictional or inter-state cooperation for protecting individuals and communities from harm in terms of its comprehensiveness, speed, efficiency and governance.[4]

5. The EU arrangements are certainly not perfect. When settling the text of legal instruments or implementation plans, lessons from successful projects have not always been heeded and there has also been significant inconsistency about adopting comitological implementation management. For example, problems resulting from the doctrinally sound ‘issuing state proportionality check’ experienced with the European Arrest Warrant and, possibly in the future, with the European Investigation Order, ultimately stem -in contrast with the avoidance of similar difficulties in fingerprint cooperation under the Prüm directives – from the absence of member state negotiated limits on the overall volume of criminal justice casework that can be handled by executing states. Such negotiated limits are essential for legally intensive casework because of the fiscal austerity politics that require the rationing of all public expenditure, including for criminal justice, within the UK and the Eurozone.[5]

Application of Knowledge and Research to the Development and Implementation of the Proposed EU-UK Security and Criminal Justice Treaty

6. It is important to ensure that the development of thinking about scope of the treaty should not be constrained by the division of functions between English legal jurisdictions, traditional notions of crime or criminal justice cooperation that focus on, for example, organised crime or terrorism, or the frequently changed responsibilities of UK government departments. It is also important that the UK approach to the negotiations with the EU should be forward looking in terms of EU, EEA, UK and global criminal justice strategies. With these principles in mind, it was recommended to the House of Lords European Union Home Affairs Sub-Committee in oral evidence given jointly on21st March 2018 that the scope and structure of the criminal justice cooperation under the proposed treaty should be fourfold:

  1. The purpose of the treaty should be to offer a wide range of protection to citizens, residents and visitors in this country. This should be fully reciprocal with the EU member states and, hopefully also the additional countries of the Schengen Area, chiefly Norway, Iceland and Switzerland, to the benefit of all people in those countries, including UK citizens when working, travelling or living there.
  2. The treaty should cover security and criminal justice cooperation in the broadest sense. In addition to responding to threats from transnational organised crime and terrorism, it should also cover criminal offending relating, for example, to food, transport and building safety, and environmental protection, sharing information for employment processes for safeguarding purposes (to protect children and vulnerable adults) and the continued enforcement (sometimes in criminal courts or by criminal sanctions) throughout the EU of orders made by UK family courts in domestic violence and child welfare cases.
  3. It should prevent discriminatory punitiveness. For instance, British citizens convicted abroad for lesser offences should be able to serve non-custodial sentences here and prisoners convicted in the courts of the countries within the treaty’s scope should continue to be eligible, for rehabilitative purposes, to be in custody abroad near to their family home.
  4. The structure of cooperation should be a comprehensive and flexible arrangement that could be readily adapted to changing social and economic circumstances. It should be quickly adaptable to take advantage of new developments in science and technology that could effectively help to protect individuals, communities and EU/UK economic interests against criminal harm. This could not be achieved through a series of separately negotiated bi-lateral agreements with individual EU member states.[6]

7. Also, consistent with earlier oral evidence given jointly to the House of Commons Justice Committee on 10th January 2017, consideration should be given to a specific and extended criminal justice and security transition period beyond December 2020 so that the present EU-UK arrangements can remain in force until the proposed treaty comes into effect; the operation of the treaty should require compliance with fundamental rights under the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union and EU data protection law; and (in line with a hint in the Prime Minister’s Munich Speech[7]) UK courts should have a direct relationship and continued judicial dialogue with the Court of Justice of the European Community.[8]

8. EU-UK cooperation need not be at the expense of UK involvement in wider international cooperation, but often as with the recent successful standardisation of forensic DNA analysis in the EU, North America and China, the UK ability to influence international agendas has reflected its prominence as a leading member of the EU.[9]

9. The cooperation systems provided by Interpol and the Council of Europe are globally significant, but are not a realistic alternative to EU arrangements in terms of scale and reach of information, timeliness, judicial supervision and governance to the EU arrangements.[10]

References

House of Commons Justice Committee, Oral evidence: Implications of Brexit for the justice system, 10 January 2017 Questions 82 – 167 < http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/implications-of-brexit-for-the-justice-system/oral/45203.html >

House of Lords European Union Home Affairs Sub-Committee, [uncorrected] Oral evidence: the proposed UK-EU security treaty, Wednesday 21 March 2018 Questions 10 – 19. < http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-home-affairs-subcommittee/brexit-the-proposed-ukeu-security-treaty/oral/81352.pdf >

King, A and Crewe, I (2013),The Blunders of our Governments, Oneworld.

May, Rt. Hon. Theresa, Speech on 17th February 2018 (‘Munich speech’) < https://www.gov.uk/government/speeches/pm-speech-at-munich-security-conference-17-february-2018 >

Wilson, T (2015), ‘The Global Perspective’ in M. Peplow (ed.), Annual Report of the Government Chief Scientific Adviser 2015: Forensic Science and Beyond: Authenticity, Provenance and Assurance: Evidence and Case Studies, Government Office for Science, 82-93. <  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/506462/gs-15-37b-forensic-science-beyond-evidence.pdf >

Wilson, T J (2016), ‘Criminal Justice and Global Public Goods: The Prüm Forensic Biometric Cooperation Model’, the Journal of Criminal Law, 80(5) 303-326. < http://nrl.northumbria.ac.uk/27800/1/TJW%20JCL%20April%202016%20Seminar%20paper%20post%20proof%20version.pdf >

Wilson, TJ (2018) ‘The implementation and practical application of the European Investigation Order in the United Kingdom: an academic perspective’ in (English text) Á Gutiérrez ZarzaLos (ed.) Los avances del espacio de Libertad, Seguridad y Justicia de la UE en 2017: II Anuario ReDPE , Wolters Kluwer.

 

Professor Tim J Wilson FCSFS

Tim Wilson’s academic interests and funded research include the governance of forensic bioinformation, the role and organisation of forensic science and medicine, transnational offending, international criminal justice cooperation and institutions, criminal justice resource allocation and marketization within the criminal justice system.

After leaving the Senior Civil Service he was for several years a visiting fellow at the PEALS (Policy, Ethics and Life Sciences) research centre at Newcastle University. He has also served as the lay chair of the Home Office sponsored Forensic Pathology Disciplinary Committee.

Professor Wilson was made a Fellow of the Forensic Science Society (now the Chartered Society of Forensic Sciences) in 2011. In 2018 he was appointed as a member of the Scientific Committee for EAFS2018 (the major triennial EU forensic science conference) by the conference organisers, the Institut National de Police Scientifique (France).

tim.wilson@northumbria.ac.uk


[2] See also for ‘fragmented departmentalism’, A. King and I. Crewe (2013, 305).

[3] For details see the above staff profile on the Northumbria University website.

[4] Wilson (2016).

[5] Wilson (2018).

[6] House of Lords (2018).

[7] May (2018).

[8] House of Commons (2017).

[9] Wilson (2015, 86-7.)

[10] Wilson (2016, 317-8) and House of Commons (2017).