UK-EU: Police cooperation: official UK guidance recommends avoiding use of European Investigation Order "where possible"

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Police cooperation: official UK guidance recommends avoiding use of European Investigation Order "where possible"
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Official guidance for UK police forces says that they should "always where possible" bypass the European Investigation Order (EIO) and "try to maintain police cooperation activity through existing routes," despite admitting that the EIO "is likely to have significant and positive effect on UK investigations with evidence and information held overseas becoming much easier to access."

See: College of Policing guidance on the European Investigation Order (pdf), originally published here (College of Policing, link).

The guidance is aimed at police officers in the UK and explains in detail the purpose, scope and usage of the EIO:

"The EIO is designed to streamline the process by which a country can request assistance from another in criminal investigations. Because the EIO is what is known as a "Mutual Recognition" instrument, it puts in place an agreed process and sets time limits in which the evidence will need to be gathered. Furthermore it denotes a move away from a request for assistance in obtaining evidence, to an order for specified measures to be undertaken and for evidence already in the possession of a state to be transferred without delay."

The EIO can be used to obtain a wide variety of information:

"The EIO is deliberately wide ranging in order to take into account the differing roles of the Police and Prosecutors in the various Member States. Article 3 within the Directive states that the EIO shall cover "any investigative measure" with the exception of measures exempted and listed in the next paragraph below.

Therefore, suspect interviews, the obtaining of banking evidence, communication data and other third party material held in confidence will be covered by the Order. The gathering or transfer of intelligence can be covered by the order, the search of premises and surveillance activity can also be asked for, as can the transfer of information already in the possession of the police in a country. In short, any activity that can be carried out lawfully domestically can be asked for, or asked of, another Member State."

And on a significant number of offences:

"Can the EIO be used for any offence?

The offences for which the EIO can be issued are based on "Dual Criminality" which means it is an offence in both the issuing and executing countries. Also an EIO can be issued if the offence is punishable by a maximum of 3 years and is listed below. These are the same rules as relate to the issuing of a European Arrest Warrant under the EAW Framework Decision and also the same list of categories of offences for which an Article 36 Alert can be issued on the Schengen Information System."

However there are exceptions:

"What is not covered by the EIO?

    • Joint Investigation teams are exempt from the EIO
    • Article 40 (Convention Implementing the Schengen Acquis) Cross Border Surveillance is exempt from the EIO
    • Requests to Ireland and Denmark which should be continued by way of International letters of Request
    • Any non EU Member State which should be continued by way of International Letters of Request
    • Confiscation unless part of a criminal proceeding
    • Police to Police activity which may include taking statements from willing witnesses."

See: full-text of the European Investigation Order in SEMDOC

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