From Empire to Europe: Evolving British Policy in Respect of Cross-Border Crime

Journal of Policy History

Volumn 19, Issue 2, 2007, Pages 180-206

  Harfield, Clive ^a  

^a LONDON METROPOLITAN UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 58049143486     PISSN: 08980306     EISSN: 15284190     Source Type: Journal    
DOI: 10.1353/jph.2007.0011     Document Type: Article

References (102)

1. European Union, “Action Plan to Combat Organized Crime,” Official Journal 1997/C 251/01, para. 1;
2. see also Jonathan Winer, “The US New International Crime Control Strategy,” Trends in Organized Crime 4, no. 1 (1998): 63-70;
3. Clive Harfield, “A Review Essay on Models of Mutual Legal Assistance: Political Perspectives on International Law Enforcement Cooperation Treaties,” International Journal of Comparative and Applied Criminal Justice 27, no. 2 (2003): 221–41.
4. Governor of Gibraltar to the Secretary of State for the Colonies, 24 December 1952, National Archives [NA] CO/968/268.
5. Internal Colonial Office memo, 26 January 1953
6. For instance, state security, criminal investigation, and frontier control: Malcolm Anderson, Policing the World: Interpol and the Politics of International Police Cooperation (Oxford, 1989).
7. Fenton Bresler, Interpol (London, 1992), 14.
8. Internal Colonial Office memo, 16 March 1953, NA CO/968/268.
9. File minutes, 27 March 1953, NA CO/968/268.
10. Colonial Office to Assistant Commissioner Howe, 20 March 1953
11. Article 2.1 Interpol Constitution, available at www.interpol.int.
12. Interpol enjoyed a rapid growth in postwar membership as a consequence of European decolonization. Anderson, Policing the World, 43 n. 3.
13. Home Affairs Committee, Practical Police Cooperation in the European Community, 7th Report, House of Commons Paper 363, Session 1989-90, para. 80-81.
14. See Anderson, Policing the World, chap. 2, n. 3;
15. Thomas Critchley, A History of Police in England and Wales, 900-1966 (London, 1967)
16. Robert Reiner, The Politics of the Police, 2d ed. (London, 1992)
17. Clive Harfield, “SOCA: A Paradigm Shift in British Policing,” British Journal of Criminology 46, no. 4 (2006): 743-71.
18. A. Brunet, “Policing the New Europe,” in Crime and Criminal Justice in Europe (Strasbourg, 2000), 76;
19. Laura Cram, “Integration Theory and the Study of the European Policy Process,” in European Union: Power and Policy-Making, ed. J. Richardson (London, 1996), 40-58, 40.
20. Alistair Brown, “Towards a Prosecutorial Model for Mutual Assistance in Criminal Matters,” in Crimes Sans Frontières: International and European Legal Approaches, ed. Peter Cullen and William Gilmore (Edinburgh, 1998), 50-57, 50.
21. Minute 20 July 1959, NA FO71/146282:WUC 1651/2.
22. Report of the Council of Europe Consultative Assembly, 10th Ordinary Session, 30th Sitting, NA FO371/146282: WUC 1651/6 (emphasis added).
23. Parliamentary Debates, Commons, 5th ser. vol. 600, col. 92W, 19 February 1959.
24. File minute, 12 February 1959, NA FO 371/146282:WUC 1651/7.
25. Parliamentary Debates, Commons, 5th ser. vol. 600, col. 92W, 19 February 1959.
26. File minute, 2 March 1959, NA FO371/146282:WUC 1651/9. Again this illustrates apparent misunderstanding of the proposed mechanisms for the provision of assistance.
27. Briefing note, 21 January 1959, NA FO371/146282:WUC 1651/10.
28. Report of the First Meeting of the [ECCP], NA FO371/146282:WUC 1651.
29. Briefing note, 21 January 1959, NA FO371/146282:WUC 1651/10.
30. The ECCP now has a much broader brief and regularly reports on all aspects of criminal law enforcement in Europe.
31. Briefing note, 21 January 1959, NA FO371/146282:WUC 1651/10.
32. Dick Leonard, Guide to the European Union (London, 1996), 6.
33. Derek Gallagher, “European Police Cooperation: Its Development and Impact between 1967 and 1997 in an Anglo-French Trans-Frontier Setting” (Ph.D. diss. University of Southampton, 1998).
34. See also James Sheptycki, “Police Cooperation in the English Channel Region, 1968-1996,” European Journal of Crime, Criminal Law and Criminal Justice 6, no. 3 (1998): 216-35, which draws upon the research undertaken by Gallagher and develops the discussion.
35. Joseph Soeters et al. “Culture's Consequences and the Police: Cross-Border Cooperation Between Police Forces in Germany, Belgium, and the Netherlands,” Policing and Society 5 (1995): 1-14.
36. Council Act of 26 July drawing up the Convention based on Article K.3 of the Treaty of the European Union, on the Establishment of a European Police Office, Official Journal 1995/C 316/1, 27 November 1995
37. see also Treaty on European Union (1992) As amended at Amsterdam (1997) and Nice (2001), Articles 29-30, Official Journal 1992/C 191/1 29 July 1992; 1997/C 340/1 10 November 1997; and 2001/C 80/1 10 March 2001
38. Roland Genson, “The Schengen Agreements–Police Cooperation and Security Aspects,” in Crimes Sans Frontières: International and European Legal Approaches, ed. Peter Cullen and William Gilmore (Edinburgh, 1998), 133-40, 133 n. 32.
39. Neither Britain nor France regards the Channel Tunnel as a land border, therefore cross-border cooperation arrangements in relation to the Tunnel have been addressed separately in a specific bilateral treaty: The Protocol concerning Frontier Controls and Policing, Cooperation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, signed 25 November 1991.
40. Select Committee on the European Union, Schengen and the United Kingdom's Border Controls, 7th Report, House of Lords Paper 37, Session 1998-99.
41. Select Committee on the European Union, UK Participation in the Schengen Acquis, 5th Report, House of Lords Paper 34, Session 1999-2000.
42. UK Participation in the Schengen Acquis, 5th Report
43. UK Participation in the Schengen Acquis, 5th Report To the evident satisfaction of all government officials who annotated the file minute sheets, MacMillan's letter made no mention either of extending Bennion's secondment or replacing him. Nevertheless, a successor was sent.
44. The proposals for such a scheme were drawn up by David McClean. A brief history is recounted, and the resultant Harare Scheme discussed, in David McClean, International Judicial Assistance (Oxford, 1992), 149-64.
45. Commonwealth Secretariat, Mutual Assistance in the Administration of Justice: Meeting of Senior Officers to Consider Draft Schemes, 27th January to 7th February 1986, Marlborough House, London (Summary Record), 6.
46. Christopher Murray and Lorna Harris, Mutual Assistance in Criminal Matters: International Cooperation in the Investigation and Prosecution of Crime (London, 2000), 264.
47. William Gilmore, Mutual Assistance in Criminal and Business Regulatory Matters, Cambridge International Documents Series, vol. 8 (Cambridge, 1995), xvii.
48. Malcolm Anderson et al. Policing the European Union: Theory, Law, and Practice (Oxford, 1995), 53;
49. see also John Benyon, “The Developing System of Police Cooperation in the European Union,” in Crime and Law Enforcement in the Global Village, ed. William MacDonald (Cincinnati, 1997), 103-21.
50. Gilmore, Mutual Assistance in Criminal and Business Regulatory Matters, xx;
51. see Harfield, “A Review Essay on Models of Mutual Legal Assistance,” for discussion about the political strategies behind the U.S. preference for bilateral rather than multilateral treaties.
52. International Legal Materials, 1989, 493.
53. International Mutual Assistance in Criminal Matters: A Discussion Paper, Home Office, 1988. I am grateful to the Home Office for supplying me with a copy of this unpublished paper.
54. The Conclusions of the Tampere Summit, 15-16 October 1999, can be accessed at http://europe.eu.int/council/off/conclu/oct99/oct99_en.htm). Britain's position leading up to the conference is outlined in Select Committee for the European Communities, Prospects for the Tampere Special European Counsel, 19th Report, House of Lords Paper 101, Session 1998-99.
55. Harfield, “SOCA: A Paradigm Shift in British Policing”
56. “FBI#x2010;style Agency to Target Mr Bigs,” The Independent, 4 April 2006, 14 (although the British media have dubbed SOCA the UK's FBI, there is nothing in the constitutional status, powers, administration, or structure of SOCA that resembles the FBI).
57. Michael Sussman, “The Critical Challenges from International High-Tech and Computer-Related Crime at the Millennium,” Duke Journal of Comparative and International Law 9, no. 2 451–89. The present author served on the Hi-Tech Crime Sub- Group for G8 2002-3.
58. John Wadham and Helen Mountfield, Blackstone's Guide to the Human Rights Act (London, 1999), 4.
59. The Human Rights Act 1998 came into force in Britain in October 2000.
60. International Police Review, May/June 2000, 16;
61. see also S. White, Protection of the Financial Interests of the European Communities: The Fight Against Fraud and Corruption (The Hague, 1998).
62. Select Committee on European Communities, Prosecuting Fraud on the Communities' Finances–The Corpus Juris, 9th Report, House of Lords Paper 62, Session 1998-99). For the text of the Corpus Juris proposal
63. see Christine Van den Wyngaert, ed. International Criminal Law: A Collection of International and European Instruments, 3d rev. ed. (Leiden, 2005), 339-52.
64. Rt. Hon. Jack Straw MP, Secretary of State for Home Affairs, “Remarks on Judicial Cooperation in Criminal Cases,” at the Justice and Home Affairs seminar, Avignon, France, 16 October 1998, para. 9. I am grateful to the Home Office for supplying a transcript of the speech.
65. Remarks on Judicial Cooperation in Criminal Cases para. 23.
66. Remarks on Judicial Cooperation in Criminal Cases para. 24.
67. This principle was repeated many times during parliamentary debates on new mutual legal assistance legislation to update and replace the CJICA provisions: Parliamentary Debates, Lords, 5th ser. vol. 641, col. 973, 2 December 2002;
68. Lords, 5th ser. vol. 643, col. GC210-1, 29 January 2003;
69. Lords, 5th ser. vol. 644, col. GC23, 3 February 2003;
70. Lords, 5th ser. vol. 645, col. 648, 3 March 2003;
71. Lords, 5th ser. vol. 646, col. 44, 17 March 2003;
72. Commons, 5th ser. vol. 402, cols. 802 and 853, 1 April 2003;
73. Commons, Standing Committee A, col. 88, 12 June 2003.
74. European Union, “Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States,” Official Journal 2002/L 190/01 (2002/584/JHA), 18 July 2002;
75. European Commission, Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters, COM (2003) 688 Final, 14 November
76. Rob Blekxtoon and Wouter van Ballegooij, eds. Handbook of the European Arrest Warrant (Cambridge, 2004).
77. “Pre-accession pact on organized crime between the member states of the European Union and the applicant countries of central and eastern Europe and Cyprus,” Official Journal 1998/C 220/01, 15 July 1998.
78. Harfield, “A Review Essay on Models of Mutual Legal Assistance,” 230-33.
79. Lance Emory, FBI legal attaché, interview by the author, London, 22 February
80. Unilateral treaty benefits have even extended to nonreciprocal obligations in favor of the United States: Gilmore, Mutual Assistance in Criminal and Business Regulatory Matters, xxi n. 55.
81. Title VI, “Treaty of the European Union,” Official Journal 1997/C 340/01, 10 November 1997;
82. see also Cyrille Fijnaut, “Transnational Organised Crime and Institutional Reform in the European Union: The Case for Judicial Cooperation,” Transnational Organised Crime 4 (1998): 276-301.
83. President Clinton proclaimed transnational organized crime to be a national security issue in Presidential Decision Directive 42, 21 October 1995, Executive Order 12978. See White House, International Crime Control Strategy (Washington, D.C. 1998) for a structured response that (at the time of writing, 2005) has yet to be adopted formally by the Bush administration.
84. Michael Sussman, Computer Crime and Intellectual Property Section, U.S. Department of Justice, interview by the author, Washington, D.C. 14 June 2001.
85. In international law war can be declared only against a territorial state, and not a political movement; see Malcolm Shaw, International Law, 5th ed. (Cambridge, 2003). A particular difficulty arising with individuals detained as a result of these interventions is that they have been afforded neither the status of prisoners of war (because not all have been detained during combat), nor have they been afforded the status of criminal suspects. They thus currently reside in various internment camps in legal limbo, unprotected by rights legislation. British detainees in Guantanamo Bay who have been repatriated have been released from custody upon arrival in the UK because their detention and interrogations in Guantanamo Bay were contrary to due process and so no criminal trial could be supported on the basis of information obtained during their detention.
86. Andrew Ashworth, Human Rights, Serious Crime, and Criminal Procedure (London, 2002), 96-107.
87. “Creation of a Northern Axis?” Statewatch 12 (January-February 2002): 1;
88. “EUUS Secret Agreement in the Making,” Statewatch 12 (March-April 2002): 1-2.
89. “Agreement on Extradition Between the European Union and the USA, Washington, D.C. 25 June 2003,” Official Journal 2003/L 181/27, 19 July 2003;
90. “Agreement on Mutual Legal Assistance Between the European Union and the USA, Washington, D.C. 25 June 2003,” Official Journal 2003/L 181/34, 19 July 2003.
91. Second reading debate on the Anti-Terrorism, Crime and Security Bill, Parliamentary Debates, Lords, 5th ser. vol. 629, cols. 142-62 and 183-290, 27 November 2001.
92. See, for instance, “Creation of a Northern Axis?” Statewatch 12, no. 1 (2002): 1
93. “How the Northern Axis Is Taking Shape,” Statewatch 12, no. 1 (2002): 13–16;
94. “EU-US Secret Agreement in the Making,” Statewatch 12, no. 2 (2002): 1–2;
95. “G8 Pushing for Preparatory Terrorist Offences, Secret Trials, and Secret Evidence,” Statewatch 14, no. 1 (2004): 1–2;
96. “EU: The Principle of Availability Takes over from the Notion of Privacy– What Price Data Protection?” Statewatch 14, no. 6 (2004): 1–2.
97. Bruce Zagaris, “U.S. International Cooperation Against Transnational Organized Crime,” Wayne Law Review 44, no. 3 1401–64;
98. John Kerry, The New War: The Web of Crime That Threatens America's Security (New York, 1997).
99. Equally, public support is necessary for mutual legal assistance mechanisms to enjoy legitimacy. So often assumed that it is taken for granted without any consultation, when the public becomes aware of perceived injustice, support for measures taken by government quickly erodes and with it, their legitimacy. A number of suspects have now been extradited from Britain to the United States using this mechanism, sometimes in notorious circumstances that have provoked significant public outcry. The extradition to Texas of David Bermingham, Giles Darby, and Gary Mulgrew (13 July 2006) using the fast-track extradition procedures has aroused particular opposition in Britain, not least because the crime of which they stand accused was allegedly committed contrary to British law against British financial institutions in Britain. A formal extradition procedure may well have refused extradition and insisted on their being tried in a British court. The matter at issue is tangential to the Enron scandal, hence U.S. authorities claimed extraterritorial jurisdiction that was not resisted the by Blair government. “Lords Vote Against Extradition of NatWest 3,” The Independent 12 July 2006, 17;
100. “NatWest 3 Flown to Uncertain Fate in Texas,” The Independent, 14 July 2006, 13. Public mistrust arising from the perceived misuse of mutual recognition mechanisms (possibly for primarily political rather judicial purposes) ultimately will undermine international law enforcement cooperation efforts and mutual legal assistance.
101. Soeters et al. “Culture's Consequences and the Police: Cross-Border Cooperation Between Police Forces in Germany, Belgium, and the Netherlands.”
102. Harfield, “A Review Essay on Models of Mutual Legal Assistance.”