New Challenges for the EU Internal Security Strategy [1 ed.] 9781443850155, 9781443844772

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New Challenges for the EU Internal Security Strategy

New Challenges for the EU Internal Security Strategy

Edited by

Maria O'Neill, Ken Swinton and Aaron Winter

New Challenges for the EU Internal Security Strategy, Edited by Maria O'Neill, Ken Swinton and Aaron Winter This book first published 2013 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2013 by Maria O'Neill, Ken Swinton and Aaron Winter and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-4477-2, ISBN (13): 978-1-4438-4477-2

TABLE OF CONTENTS

List of Abbreviations ................................................................................. vii Chapter One ................................................................................................. 1 New Challenges for the EU Internal Security Strategy: An Introduction and Overview Maria O’Neill and Aaron Winter Setting the Scene Chapter Two .............................................................................................. 16 EU Intelligence-led Policing: The Case of Counter-terrorism Cooperation Artur Gruszczak Policing at the Ports Chapter Three ............................................................................................ 42 Security and Europe’s Sea Ports: Threats and Issues facing Maritime Gateways to Europe Angela Carpenter Chapter Four .............................................................................................. 71 Policing in EU Seaports: Impact of the ISPS Code on Port Security Post 9/11 Yarin Eski and Angela Carpenter The Business of Crime Chapter Five .............................................................................................. 96 International Cooperation in Private Investigation of Economic Crime in the EU: Exploring Relevant Issues Ludo Block

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Chapter Six .............................................................................................. 123 Non Conviction based Asset Recovery: Lessons to be Derived from the UK Experience of Civil Recovery Regime for the Proposed Directive on the Freezing and Confiscation of Proceeds of Crime in the EU Ken Swinton Trafficking in Human Beings Chapter Seven.......................................................................................... 160 Assessing the Impact of EU Strategies Post-Stockholm on UK Policing of Human Trafficking Alex Balch and Glynn Rankin Chapter Eight ........................................................................................... 188 Trafficking in Human Beings and the European Neighbourhood Policy: New Challenges for the EU Justice and Law Enforcement Framework Maria O’Neill Transnational Policing: The Bigger Picture Chapter Nine............................................................................................ 218 The Externalisation of the EU Internal Security Strategy in the Framework of Multilateralism: The Case of the Fight against Transnational Organised Crime Daniela Irrera Chapter Ten ............................................................................................. 237 The Externalisation of the EU Internal Security Strategy in the Framework of Multilateralism: The Case of Security Sector Reform Francesca Longo Chapter Eleven ........................................................................................ 258 European Police Cooperation Frameworks: A Model for Australian Intergovernmental Coordination? Saskia Hufnagel Contributors ............................................................................................. 289

LIST OF ABBREVIATIONS

A1P1- Article 1 Protocol 1 to the European Convention on Human Rights ACC - Australian Crime Commission ACFE - Association of Certified Fraud Examiners ACPO - (UK) Association of Chief Police Officers AFP - Australian Federal Police AFSJ - Area of Freedom Security and Justice ANPR - Automated Number Plate Recognition ASI - Anti-Slavery International ASIO - Australian Security Intelligence Organisation BBC - British Broadcasting Corporation CARICC - Central Asian Regional Information and Coordination Centre CFE - Certified Fraud Examiner CFSP - Common Foreign and Security Policy CIS - (Australian) Commonwealth Investigative Service CISE - Common Information Sharing Environment CoE - Council of Europe COM - Commission document COMPOL - (Australian) Commonwealth Police CoJ- Court of Justice (of the EU) Cospol - Comprehensive Operational Strategic Planning for the Police CPS - (UK) Crown Prosecution Service CSES - EU-Russia Common Space of External Security CSES - Centre for Strategy and Evaluation Services CSFSJ - EU – Russia Common Space of Freedom, Security and Justice CSI - US Container Security Initiative CSO - Company Security Officer CTC - UN Security Council’s Counter-Terrorist Committee DAC - Development Cooperation Directorate DG MAF - Directorate General Maritime Affairs and Fisheries of the European Commission. DR Congo- Democratic Republic of Congo ECIM - European Criminal intelligence model ECHR – European Convention on Human Rights and Fundamental Rights ECJ - European Court of Justice ECtHR- European Court of Human Rights

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List of Abbreviations

EMCDDA - European Monitoring Centre for Drugs and Drug Addiction ENP - European Neighbourhood Policy ESDP - European Security and Defence Policy ESS - European Security Strategy EU - European Union EURAD - Europe Against Drugs EUROSUR - European Border Surveillance System EU SOCTA - European Union Serious and Organised Crime Threat Assessment EUSR - European Union special representative FACI - forensic accounting and corporate investigation industry FATF - Financial Action Task Force FCO - (UK) Foreign and Commonwealth Office GIAC - Global Information Assurance Certification - certified Forensic analyst GPS - Global positioning System GRETA - CoE Group of Experts on Action against Trafficking in Human Beings ILO - International Labour Organisation ILP - intelligence led policing IMF - International Monetary Fund IMO - International Maritime Organisation INL - (US) Bureau of International Narcotics and Law Enforcement Affairs IOM - International Organisation for Migration ISPS code - International Ship and Port Facility Security Code JITs/JITS – Joint Investigation Teams JWG - Joint Working Group KPMG - a global firm of accountants LJ- Lord Justice LNG - liquid natural gas LPG - liquid petroleum gas LRIT - A vessel tracking globally system. MARPOL - International Convention for the Prevention of Pollution from Ships MI5 - British Security Service MONEYVAL - CoE Committee of Experts on the Evaluation of AntiMoney Laundering Measures and the Financing of Terrorism MOUs - Memoranda of Understanding NATO - North Atlantic Treaty Organisation NCA - the (UK) National Crime Agency

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NCA - Nordic Police Cooperation Agreement NCIS - (UK) National Criminal Intelligence Service NeBeDeagPol - Arbeitsgemeinschaft der Leiter der belgischen, niederländischen und deutschen Polizeibehörden im Rhein-MaasGebiet NGOs - Non - Governmental Organisations NIM - national intelligence model NPCA - Nordic Passport Control Agreement NPYWC - Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council NRM - (UK) National Referral Mechanism NSS - (US) National Security Strategy NSW - New South Wales NYP lands - Ngaanyatjarra Pitjantjatjara Yankunytjatjara lands (Australia). OCTA - (Europol’s) Organised crime Threat Assessment OECD - Organisation for Economic Cooperation and Development OLAF - European Anti-Fraud Office OSCE - Organisation for Security and Cooperation in Europe PCCCs - Police and Customs Cooperation Centres PCTF – EU Police Chiefs Task Force PFSA - Port Facility Security Assessment PFSO - Port Facility Security Officer PFSP - Port Facility Security Plan POCA – Proceeds of Crime Act 2002 POG - (Australian) Peace Office Guard PKK - Kurdish Workers Party PTN desks - Polis Tull i Norden (Nordic Police and Customs Cooperation) PwC - Price Waterhouse Coopers, Accountants. ROCTA - (Europol’s) Russian Organised Crime Threat Assessment SafeSeaNet - A vessel traffic monitoring system in EU waters SATs - Swift Action Teams SECI Centre - South East Cooperation Initiative, earlier name for the SELEC Centre. SEEOCTA - (Europol’s) South-East European Organised Crime Threat Assessment SELEC – South East European Law Enforcement Centre SIVE - Straits of Gibraltar Surveillance System SOCA - The (UK) Serious and Organised Crime Agency SOLAS Convention - International Convention for the Safety of Life at Sea SS - Security Sector

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List of Abbreviations

SSO - Ship Security Officer SSR - Security Sector Reform TE-SAT - Terrorism Situation and Trend Report THB - Trafficking in Human Beings TOC - Transnational Organised Crime TREVI - Terrorisme, Radicalisme, Extrémisme et Violence Internationale UK - United Kingdom UKBA - UK Borders Agency UKHTC - United Kingdom Human Trafficking Centre UNDOC - United Nations Office on Drugs and Crime UNDP - United Nations Development Policy US/USA - United States of America USS - United States ship USSR - Union of Soviet Socialist Republics WA - Western Australia WAPI - World Association of Private Investigators WCO - World Customs Organisation WMD - weapons of mass destruction WSP - German Waterways Police

CHAPTER ONE NEW CHALLENGES FOR THE EU INTERNAL SECURITY STRATEGY: AN INTRODUCTION AND OVERVIEW MARIA O’NEILL AND AARON WINTER

In the past number of years, the EU and its member states have experienced a number of changes, as well as challenges, in the areas of politics, economics, security and law. As these areas are interconnected, changes and challenges to or in any of them have implications for the others, as well as implications for the populations and institutions of the EU or those coming into contact with its international power and influence. This edited collection will focus primarily on the latter two areas, that of security and law, and most notably the EU’s internal security strategy. The EU’s Internal Security Strategy,1 adopted by the Spanish presidency early in 2010, followed on from the coming into force of the Lisbon Treaty in 2009, building on previous developments within the EU in the Area of Freedom Security and Justice (AFSJ) policy. The focus of the EU Internal Security Strategy is to prevent and combat “serious and organised crime, terrorism and cybercrime, in strengthening the management of our external borders and in building resilience to national and man-made disasters”.2 The Internal Security strategy intersects and overlaps with the European Union’s Counter-terrorism strategy,3 the Strategy for the External Dimension of JHA,4 and the EU’s Security 1

Communication from the Commission to the European Parliament and the Council; The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM/2010/0673 final. 2 Ibid. 3. 3 Council of the European Union; The European Union Counter-Terrorism Strategy, Brussels, 30 November 2005, 14469/4/05. 4 Council of the European Union; A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, Brussels, 30 November 2005, 14366/3/05.

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Strategy.5 The role of and interaction between these strategies, their supplementing documents, and their implications for crime, victims, the law, political relations, democracy and human rights, form the backdrop against which the chapters in this collection are written. The Stockholm Programme, which was signed off by the European Council in December 2009, sets out the framework for the development of the policies and laws needed to address the current risks to the EU and its member states. The Stockholm Programme’s focus is on improving security and protecting citizens from terrorism, organised crime and other threats.6 These other threats are enumerated in the programme as being, amongst others, drugs and arms trafficking, corruption, trafficking in human beings, and the smuggling of persons.7 In addition to cross border EU crime requiring comprehensive and clear response,8 the Stockholm Programme recognises that in “a global world, crime knows no borders,” and that there is a need recognise that “internal security is interlinked with the external dimension of the threats.”9 A new focus for the EU’s approach to internal security has been established through the Stockholm Programme with an increased potential, at least after the five year phase-in period of the Lisbon Treaty’s provisions, for more coherence in dealing with law enforcement and security issues within the EU. The Lisbon upgrade in the underlying legal framework will have a dramatic effect on the law and practice in this area, with the move from intergovernmentalism to supranationalism, the increased coherence of the legal framework in the AFSJ, and the increasing role of both the Court of Justice and the Commission. The development of this Internal (to the EU) Security framework will involve policy makers, lawyers, criminologists and the law enforcement professionals across the EU, and their counterparts in partner third countries. The internal security issues of the EU are seen as being inextricably linked with the external security relations of the EU, through the Common Foreign and Security Policy (CFSP), and allied policy areas. The EU has therefore been focusing on developing close relations in the 5

Solana, J., A Secure Europe in a better world, European Security Strategy, Brussels, 12 December 2003. 6 Stockholm Programme – An open and secure Europe serving the citizen, 2nd December 2009, 17024/09, JAI 896, at 1.1. Political priorities, 5. 7 Ibid. at 4.1. Internal Security Strategy, 17. 8 Ibid. 9 Ibid. at 4.1. Internal Security Strategy, 18.

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area of security, not only with traditional strategic alliance partners, but also with its immediate neighbours, in particular through the European Neighbourhood Policy (ENP), and separately with Russia in the context of the four common spaces programme, two of which are relevant to this subject area, the EU-Russia Common Space of Freedom, Security and Justice (CSFSJ), and the EU-Russia Common Space of External Security (CSES). The Stockholm Programme also talks about relations further afield, such as with Latin America, West Africa, Central Asia including Afghanistan, and the United States of America, in the field of drugs trafficking,10 and with China, India and Brazil in the context of counterterrorism.11 Some of these issues will be examined in this collection, in particular, in the final two parts, which deal with trafficking in human beings, and the external relations of the EU. Two very clear boundaries have been written into the EU treaty framework in the AFSJ, over which the EU cannot cross. These include the individual member states’ national security provisions, an area which has been allocated in a number of countries to the intelligence or security services,12 which remains outside the EU legal framework. This does not mean, however, that counter-terrorism provisions are not covered by the EU. While the EU’s counter-terrorism strategy is part of the CFSP pillar, where the counter-terrorism co-ordinator can also be found, law enforcement’s approach to counter-terrorism is covered by the crossborder policing provisions, involving the specialised police services, such as the UK’s Special Branch. These police forces support national intelligence and security services, where they exist, in individual member states. The EU’s capacity to act in counter-terrorism cases will be examined, in particular, in the first part of this book, which deals with the relationship between policing and security. In addition to the above national security exceptions, matters relating to individual member states’ approaches to the maintenance of law and order in their own territory, or the safeguarding of that country’s internal security, such as methods or tactics used in policing, can vary quite widely from one part of the EU to another. Furthermore, the actual structures being used to police that territory13 remain a matter for that member state, and outside the competence of the EU. Also separate from the EU, the 10

Ibid. 4.4.6. Drugs, 24. Ibid. 7.4. Agreements with third countries, 35. 12 Article 73 TFEU. 13 Article 72 TFEU. 11

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Council of Europe, in Strasbourg, maintains an oversight role over its member states in the context of human rights and the political nature of terrorism and counter-terrorism, as well as the wider issues of law and order. This oversight is exercised by the European Court of Human Rights, and individual member states courts, implementing the provisions of the European Convention on Human Rights in the case of violation, or alleged violation of human rights in the cases of torture, rendition or extradition. Yet, there are questions if this oversight is enough given that it is, in the context of EU membership, a form of self-regulation as opposed to that from an independent, external, third party. Moreover, while human rights records and standards have been a condition to allowing new countries into the expanding EU (e.g. from Eastern European), the role of a more established and dominant EU member, the UK, in extradition, rendition and alliances with countries that practice torture in the war on terror has not been as effectively addressed. The EU is concerned with issues which cross borders, and involve two or more EU member states. As is stated in the Europol Council Decision,14 at Article 4, the general thrust of all of the EU policies in this area deal with issues which “require a common approach by the Member States owing to the scale, significance and consequences of the offence.” The change in the legal structure underpinning the Area of Freedom Security and Justice (AFSJ) is as a result of EU member states having developed a higher level of trust and mutual understanding in this policy area, with most of the provisions now to be enacted following the standard codecision procedure, involving both the Council and the European Parliament, by way of an ordinary resolution.15 However concerns still remain with regard to operational cross border policing provisions, which remain in the control of the various Home Office ministers, sitting in the Council, who will vote on procedures following a special legislative procedure, requiring unanimity.16 However there are provisions, in the absence of agreement, for nine member states to proceed with their own initiatives. This would appear to be reasonable, as particular regions of the EU experience particular types of crime not significantly affecting other parts of the EU.

14

Council Decision 2009/371/JHA establishing the European Police Office, OJ L121/37. 15 Inter alia Article 87.2 TFEU. 16 Article 87.3 TFEU.

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The current focus of the EU is on further developing and refining internal EU provisions, moving in to new cross border crime areas which have not been adequately covered previously, and developing relations outside the EU in cross border law enforcement. While the EU has very well developed security and law enforcement external relations with its traditional strategic partners, such as the United States of America and Australia, much of the drug trafficking and human trafficking are not coming from these traditional partner countries. It is important that the EU develops relations with its immediate neighbours, and those countries which can directly assist it in dealing with specific challenges and threats, to their mutual advantage. For example, both human and drugs trafficking follow specific global trafficking routes. In human trafficking the EU member states, being predominantly countries of destination, need to engage, at a law enforcement level, with countries of origin and transit, in order to properly police this difficult area of crime and victimisation. It is for this reason that the EU, in the Stockholm Programme, has identified key partners, both in the EU’s immediate neighbourhood, and across the globe, which would be likely to be in a position to assist the EU in facing its internal security threats. The states in question need to address the issue of both human trafficking and wider border security without compromising the rights and needs of those being trafficked, as well as migrants and asylum seekers. Combating drugs trafficking faces different but overlapping challenges to human trafficking, such as the issue of trafficking routes mentioned above. The role of the police is not only to investigate crime, once it has happened, but, where possible, to prevent the crime from occurring. For example, it is better to prevent large shipments of cocaine or heroin from entering the country, than spending a lot of time chasing after distributers and dealers once the drugs are in the country and being sold, or tracing the proceeds thereof. Although it is worth noting that this will still be an issue as not all drugs will be intercepted and many drugs are manufactured within the EU. In addition, rescuing trafficked persons at an earlier stage, or preventing the trafficking from occurring in the first place, will prevent (potential) victims from having to endure longer periods of slavery, abuse and exploitation, as well as the possibility of being further removed from their home country, further victimised by being arrested and criminalised by the criminal justice system or deported by immigration services or even lost. Additionally, this is also a more effective law enforcement approach to combating crime. The intelligence services have a similar role in the context of counter-terrorism, with a focus being on both interrupting, if not destroying, terrorist networks and more practically preventing attacks.

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Tackling the crime earlier in its planning phase or trafficking chain adds a greater level of protection to the societies and populations and maintenance of order within (and without) the EU by reducing the risks, implications and effects of the crime in question. There is also the claim that doing so also assists the EU and neighbouring countries in the EU border region which, it is believed, would otherwise be destabilised by the growth and development of organised crime networks concentrating at the external border. Perhaps the most high profile case of this, which is evoked as an example of this potential threat, are the problems which are currently being experienced in the border region of Mexico and the USA, as drug cartels attempt to deliver their supplies to the lucrative markets in North America. Such border issues and concerns are difficult to address because, as in the case of the EU, different countries and even immediate neighbours have quite different legal systems and policing structures, experience different political developments and trends, and are at different stages of development. But it is the last point which is vitally important. While discourses about the crimes, security and stability/instability (as well as the very construction of Europe itself) at borders depends on demarcating a frontier and erecting a border between self and other (in this case stable states and unstable states), where the former are advanced capitalist democracies and latter less socio-economically developed and in current or recent state of political transition. Those countries that are in the EU, but geographically peripheral and closer to the border and included as part of expansion, sit physically and discursively in the grey area between the others as a buffer zone, but one that is a porous middle-ground and can therefore allow a metaphorical bleeding of the problems associated with that outside the border into the privileged and protected zones, such as the EU or the US in the previous example, which because of their socioeconomic status also provide such lucrative markets for drugs and human beings. Security strategies can of course be created and implemented to address border region issues and problems, but by doing so they “police”, regulate and maintain, if not exacerbate, the inequalities and exclusions that a border demarcates. The developing external relations with these countries beyond the border are seen as long term security strategy projects, and attempts to address such inequalities that would reduce the possible threats is an even longer term one. This wider debate is, of course, beyond the subject matter and remit of this book.

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Following on from the issue of inequality and power, the EU is also focusing on developing, internally, the freedom and justice aspects of the Area of Freedom Security and Justice, as it is arguable that the security elements are further down the line of development than these ancillary provisions. The recent upgrade in status of the EU Charter of Fundamental Rights 2000, and the gaining of the Court of Justice’s full powers after the full phase-in of the Lisbon Treaty should lead to a rapid development of these freedom and justice provisions. These latter provisions are also outwith the scope of this book, but it is hoped that publications in the next couple of years will be in a position to deal with these developments. The security issues which are examined in the various chapters of this book need to be examined for threats to, or violations of, human rights, civil liberties, abuse of power, equality and privacy at each stage of the policy and practice development process, and at the sites or locations where security becomes an issue. Particular crimes merit closer attention. Building on original research by its contributors, this collection comprises work by authors from a wide variety of academic and professional areas and perspectives, as well as different countries, on a variety of areas and issues related to or raised by the EU’s Internal Security Strategy, from intelligence-led policing and human trafficking to port security. This book examines, from a wide variety of discipline perspective, to include law, geography, politics and practice, both this further refinement of existing internal provisions on cross border crime, and the increasing external relations of the EU in the AFSJ. The collection is divided into five parts. The first part examines the fundamental relationship between policing and security. Part two examines the relationship between security and location. While a great deal of attention has been focused on airports and passenger air travel since 9/11, in part two we have decided to concentrate on another specific but less examined location, EU commercial maritime ports. The third and fourth parts of this collection focus on two particular types of crime as case studies, commercial/financial crime and human trafficking. The fifth and final part of the book examines the “bigger picture”, the relationship between the EU’s internal and external security policy. Within each part, the contributors examine different, but overlapping, legal, political, practical and analytical cases, themes and issues. Part one includes Artur Gruszczak’s chapter on EU intelligence-led policing - the case of counter-terrorism cooperation. Gruszczak examines

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the role of intelligence led policing in the context of the EU’s counterterrorism legal framework. As Gruszczak states, EU counter-terrorism is a good test case given the individual member states sensitivities with regard to sovereignty issues, and the highly politicised issues surrounding terrorism, and the complexities of counter-terrorism cross border cooperation. It is clear that the EU has taken a law enforcement approach to terrorist incidents, rejecting the US’s “war on terror” approach. As pointed out by Gruszczak, this approach is supported by the former Director General of MI5, Eliza Manningham-Buller, classifying the 9/11 attacks on the US as being a law enforcement issue. Gruszcsak analyses the methodology adopted to develop the EU’s terrorism report TE-SAT. He discusses intelligence led policing generally, and the conceptual and operational problems which it has encountered, particularly as its practice has spread to new EU policing jurisdictions. The second part, on security at EU commercial maritime ports, includes two chapters, the first, by Angela Carpenter, who writes on Security and Europe’s Sea Ports: threats and issues facing maritime gateways to Europe. The second paper is a joint paper by Carpenter and Yarin Eski which examines Policing in EU Seaports: Impact of the ISPS Code on port security post 9/11. Carpenter tackles the issue of security and transport in the context of both shipping and ports. She identifies the main maritime security threats as being illegal immigration, people trafficking, smuggling and drug trafficking, weapons trafficking, terrorism and narcoterrorism, to include the use of ships as bombs. She examines the EU measures and cooperative activities to tackle these threats, to include the measures used to track vessels at sea, and to identify vessels that need to be inspected while in seaports. She goes on to indicate that future research will be required in this area, in order to fully come to grip with what is likely to be a continued security threat to the EU. Eski and Carptenter’s joint chapter continues the theme of port security. The focus of this paper is on the International Ship and Port Facility (ISPS) Code and its objective of providing a standardised consistent framework for evaluating risk, with consideration being given to both water-side and shore-side access to the port and the ships berthing in the port. While the rhetoric has been on establishing higher levels of national security, the research underpinning this chapter indicates that the EU users of the ISPS Code raises issues such as a war on boredom, issues of trust in the code, and bureaucracy. As the authors point out, it is uncertain whether the ISPS Code really increases port security, with the

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participants in the research not considering themselves to be part of an international army in the war on terror. The third part of this book focuses on commercial/ financial crime, an increasing issue for the EU. Under the heading of the Business of Crime two chapters are included, the first, by Ludo Block, writes about transnational activity in private investigation: exploring the relevant issues. Block, examines international cooperation in the private investigation of economic crimes in the EU. The second chapter is written by Ken Swinton who, writing from a legal perspective, examines the Civil Recovery of Proceeds of Crime: lessons for the EU from the UK experience. In the first of two chapters on the Business of Crime, Block points out, that while the transnational aspects of public policing has been the focus of a steadily growing body of research over recent decades, private policing, which uses a similar palette of both overt and covert investigation methods, has received less recognition. While there is a lack of a clearly defined homogeneous group in private policing, there are clearly multinational investigative firms operating. The need for international standards in the field of private investigation needs to be addressed, as does the question of accountability, and the legality of the investigative methods being employed. The issue of which jurisdiction’s laws the private investigating firm needs to comply with is problematic, particularly if the relevant jurisdiction of operation is either weak or compromised. Block uses the case of the investigation of Yulyia Tymoshenko in the Ukraine as an illustration of the issues which can arise in practice. The UN Development Programme Investigation Guidelines are examined as a possible global standard in this context. Swinton’s chapter examines the recent proposal for a directive dealing with the confiscation of the proceeds of crime. He writes from the perspective of a Scottish lawyer, with Scotland, a legal jurisdiction based on a civilian tradition, having previously having to negotiate a close legal relationship with England & Wales, a traditional common law legal system. He analyses through the case law of a number of legal jurisdictions, to include the European Court of Human Rights, the UK attempts to bridge the gaps between these two traditions in the context of the confiscation of the proceeds of crime. The issue of whether this confiscation should be treated as criminal law or civil law, with their ancillary balance of proofs is also addressed. With the EU now proposing

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similar provisions by way of a proposed directive, the challenges of developing effective EU wide regimes, recognising the different traditions of the member states needs to be recognised and acknowledged, with Swinton arguing that the EU has much that it can learn from the UK experience in this area. The fourth part of this book takes trafficking in human beings (THB) as its focus, a subject matter seen as being in much need of reform at an EU level, with a new directive, post Lisbon, having recently been enacted, and now, at the time of writing, being implemented in the member states of the EU. This area is explored by Alex Balch, in conjunction with Glynn Rankin. They examine whether policing can respond to the new challenges being presented by EU. Maria O’Neill, writing from a legal perspective, further examines THB and the EU justice and law enforcement framework in light of the European Neighbourhood Policy (ENP), an external policy of the EU in which it engages with most of the countries neighbouring the EU. Balch and Rankin argue that one of the main reasons stated at the time of the delayed UK opt in to the new THB directive, Directive 2011/36/EU,17 was to maintain the UK’s world leader status in THB. They ask whether this accession was simply an act of political symbolism, or whether it was as a result of grass roots policing developments, separate from government policy. The authors explore the current reforms in UK policing, in the context of THB policing, where no additional resources have been allocated to deal with THB in the UK, while there are on-going cost savings measures in UK police forces. They question whether the police, independent of new policing strategies or a direct government policing plan can effectively deal with this transnational crime. Balch and Rankin conclude that there is a general consensus underpinning the EU’s approach to THB, requiring a holistic integrated approach to both the strategy and planning in this crime area, with that approach being required at the local, national and international basis. O’Neill explores further the external transnational basis of the new THB legal framework, focusing on the EU’s legal relationships with its Eastern Neighbours. With the EU likely to prioritise multilateral solutions 17

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15/04/2011, 1.

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in its external relations, in external security and law enforcement matters, to shared problems, it is likely that both the South East European Law Enforcement Centre (SELEC)18 and the Central Asian Regional Information and Coordination Centre (CARICC),19 in Kazakhstan, will be key partners in this area. This will be in addition to direct relationships with other ENP countries. Practitioners across the EU have identified an increase in the number of THB victims from Central and South-Eastern Europe. Many of these countries are represented in the SELEC and CARRIC law enforcement centres. While the detail of the relationships of individual countries with the EU would need to be examined on a case by case basis, Moldova, a member of SELEC, and Azerbaijan, a member of CARRIC, are taken as individual case studies in this chapter. The final part of this book continues the theme of the external relations of the EU, and looks at transnational policing: the bigger picture. Three chapters take up this theme, with Daniela Irrera examining the externalization of the EU Internal Security Strategy in the framework of multilateralism: the case of the fight against Transnational Organised Crime. Francesca Longo, examines the externalization of the EU Internal Security Strategy in the framework of multilateralism: the case of security sector reform, in her chapter, with Saskia Hufnagel, moving further from the immediate European neighbourhood, writing on European Police Cooperation Frameworks: A Model for Australian Intergovernmental Coordination? The EU sees its internal and external security policy as being inextricably linked. This can be seen in the focus in the Internal Security Strategy on the interlinking of internal security-related priorities with the political dialogues engaged in by the EU with third countries and regional organisations,20 to include linking in with the wider European Security Strategy.21 In addition, the European External Action Service, the new (repackaged) diplomatic service of the EU, have been invited to participate 18

Whose membership comprises Albania, Bosnia & Herzegovina, Bulgaria, Croatia, Greece, Hungary, FRY Macedonia, Moldova, Montenegro, Romania, Serbia, Slovenia and Turkey http://www.secicenter.org/. 19 Whose membership comprises Azerbaijan, Kazakhstan, Kyrgyz Republic, Russian Federation, Tajikistan, Turkmenistan and Uzbekistan. http://www.caricc.org/index.php?lang=english. 20 Communication from the Commission, The EU Internal Security Strategy in Action, 3. 21 Ibid. 15.

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with these developments, with the Police and Judicial Cooperation in Criminal Matters (PJCCM) Committee on Internal Security (COSI) to meet regularly with the CFSP’s Political and Security Committee.22 While operational issues may be about to start at some levels, with non-EU third countries, much of the work that is currently being envisaged is at the political/ international relations level. Initial structures need to be put in place between countries before effective and efficient active policing can truly begin. In addition many non EU countries see the need of updating and reforming their own law enforcement and justice structures, as they find themselves at different stages of transition, either from being postSoviet states, or after the varying levels of changes of the Arab Spring. Irrera focuses on transnational organised crime (TOC) in the context of the externalisation of the EU internal security strategy. She argues that while TOC continues to be seen as a national law enforcement issue, some significant changes are occurring in the international system. With organised crime and organised criminals progressively showing the ability to operate at a global level, combining their activities with other problem groups, such as terrorists, and establishing their own areas of operation, capturing or exploiting weak or failed states. As she points out, in cases of war, organised crime groups effortlessly fill the grey zones which develop. This requires not only a military response, to deal with the war, but also a more adequate global strategy. The changing perception of TOC in practice is requiring a multilateral response, one which is envisaged in the EU’s European Security Strategy, and the externalisation of its internal security concerns. The EU holds the view that EU’s own internal security arrangements could be re-assembled in other parts of the world. Longo moves this discussion of the externalisation of the EU’s internal security strategy forward, focusing on the EU’s approach to Security Sector Reform (SSR). SSR has dramatically emerged as a key concept in international activity since the end of the 1990s. SSR has also been an underpinning concept of the EU’s concepts and practice in external relations, from the outset, even if it has only been expressly referred to since the mid 2000s, with AFSJ now forming an important part of the EU’s foreign policy, in light of the fact that many of the countries that the EU wants to engage with are seen as being countries in transition, particularly with regard to law enforcement and justice matters. The main concepts underpinning SSR, as pointed out by Longo, are the 22

Ibid.

New Challenges for the EU Internal Security Strategy

13

interdependence between state security and the security of individual, the interconnection between domestic security and external security, and the connections between a hard security policy and domestic security. The specific dynamics of the EU’s external action is examined in this context. Further away from the EU, Australia is examined by Hufnagel in the final chapter. There are lessons which have been learnt in an EU context that can be transferrable to other cross border policing frameworks, and visa versa. This issue is examined by Hufnagel with a chapter on the application of EU police cooperation frameworks to Australia. Hufnagel points out that the two most important EU strategies of potential value for Australia are the EU legal frameworks and the regional cooperation frameworks, such as the Nordic Police Cooperation Scheme. Recognising that lessons can also be learnt from other former colonies and federal states such as the United States and Canada, lessons are also still be learnt from the EU’s formal cooperation frameworks, which are relatively lacking in Australia, with Australian police cooperation predominantly taking place at the informal police-to-police level, despite the existence of two federal law enforcement agencies, the Australian Federal Police and the Australian Crime Commission. The development of the EU Internal Security Strategy presents new challenges for, not only the EU’s institutions and agencies, from a policy and practice perspective, but its implementation at a security level opens up new challenges in the context of fundamental rights and justice. Many academic authors have raised the issue of the imbalance in development of the Area of Freedom, Security and Justice, pointing out that there has been significant development under the heading of security, but that the freedom and justice elements of the project are lagging behind. In addition the perceived need to develop close working relations with third countries, not only in the EU’s immediate neighbourhood, but across the globe, many of which do not operate on the basis of liberal democratic principles, poses new and complex challenges for the maintenance of the rule of law, and the fundamental principles that underpin, not only the EU, but also each of its individual member states. The EU’s Internal Security Strategy must be seen as a work in progress, with a number of key issues with regard to its development being addressed in the chapters of this book. A full examination of the challenges however, would require not only a wider range of security and law enforcement issues to be covered, but also would require their examination from a wider range of disciplines such as sociology and criminology. It is hoped, however, that this book will make

14

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a valuable contribution to the understanding and critical evaluation of, as well as debates on, the ongoing development of the EU’s AFSJ.

Bibliography Council Decision 2009/371/JHA establishing the European Police Office, OJ L121/37. Council of the European Union; A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, Brussels, 30 November 2005, 14366/3/05. The European Union Counter-Terrorism Strategy, Brussels, 30 November 2005, 14469/4/05. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15/04/2011, 1. Solana, J., A Secure Europe in a better world, European Security Strategy, Brussels, 12 December 2003. Stockholm Programme – An open and secure Europe serving the citizen, 2nd December 2009, 17024/09, JAI 896.

SETTING THE SCENE

CHAPTER TWO EU INTELLIGENCE-LED POLICING: THE CASE OF COUNTER-TERRORISM COOPERATION ARTUR GRUSZCZAK

The adoption by the EU of an intelligence-led policing model in dealing with serious threats to public order and internal security marked a significant shift in EU internal security policy. A pro-active approach to threat assessment and risk management on the part of relevant EU agencies and the majority of the member states reflects the growing importance of prevention and anticipation in the field of EU internal security. Intelligence-driven cooperation among national police and other law enforcement agencies became a showcase of modern transnational policing in the EU, especially in the light of EU Internal Security Strategy of 2010. Therefore, it is legitimate to take up the issue of EU intelligenceled policing as an analytical and practical solution responding effectively to the pressing challenges in internal security, particularly in the area of counter-terrorism. The model of intelligence-led policing at the EU level is grounded on specific functional and institutional synergies suitable to EU legal and institutional framework as well as national interests and perspectives of the member states. EU cooperation in counter-terrorism is a good test-case, given the high political relevance of this issue as well as its complexity and sensitivity.

Origins and content of intelligence-led policing In the early 1990s changes in policing gave an impetus to intelligencedriven activities that were motivated by new challenges and tasks resulting from a growing obsolescence of the traditional reactive model of policing. Police forces were less and less efficient in tackling transnational organised crime, cross-border illegal trafficking and terrorist networks, as well as coping with risks and dangers generated in the emerging

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17

cyberspace. National law enforcement services were also challenged by the increasingly sophisticated crime–terror nexus linking large-scale organised crime with terrorist networks. Declining public confidence with law enforcement services, going together with the rapid expansion of private security services and marginalisation of police in some areas of internal security and public order, brought about an increasing pressure on state-led law enforcement agencies to be more effective and more costefficient and on police to change its “cop culture.”1 The privatisation of security and self-mobilisation of local civic communities heightened a sense of crisis about public security. The roles of the police institutions reflected the processes of pluralism, disaggregation and fragmentation characteristic of the societies at the end of the 20th century.2 Some authors such as D H Bayley, even attempted to demystify the real role of the police claiming that “the police do not prevent crime.”3 According to this point of view, backed by research done in the 1970s and 1980s, there was no convincing evidence that the police build-up, measured by the number of police officers, the money spent on police, or the investment in technologies and tools improving police performance had any effect on the incidence of crime. Numerous sources4 have pointed out the significance of a report on crime management in the UK prepared by the Audit Commission in 1993.5 1

Schreier, F., “Human Trafficking, Organised Crime & Intelligence”, in Strategies Against Human Trafficking: The Role of the Security Sector, Friesendorf C. ed., (Vienna and Geneva: National Defence Academy in cooperation with Geneva Centre for the Democratic Control of the Armed Forces, 2009). 2 Reiner, R., “Policing a Postmodern Society,” The Modern Law Review 55, 6 (1992): 777-780. 3 Bayley, D.H., Police for the Future (Oxford – New York: Oxford University Press, 1994), 3. 4 Schreier, “Human Trafficking”; Gill, P., “Making Sense of Police Intelligence? The Use of a Cybernetic Model in Analysing Information and Power in Police Intelligence Processes,” Policing and Society 8, 3 (1998): 296-297; Heaton, R., “The Prospects for Intelligence-led Policing: Some Historical and Quantitative Considerations,” Policing and Society 9, 4 (2000): 337-339; James, A., “The Influence of Intelligence-Led Policing Models on Investigative Policy and Practice in Mainstream Policing 1993-2007: Division, Resistance and Investigative Orthodoxy.” A thesis submitted to the Department of Social Policy of the London School of Economics and Political Science for the degree of Doctor of Philosophy, London, September 2011, http://etheses.lse.ac.uk/221/1/James_The_influence_of_intelligenceled_policing_models_on_investigative_policy_and_practice_in_mainstream_polic

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The report, “Helping with Enquiries: Tackling Crime Effectively,” contained a critical evaluation of police work in terms of crime indicators and efficiency of law enforcement actions. The Commission’s diagnosis was clear: “because of a stark lack of technical support and some failures to implement modern management methods, the police are driven to fine-tuning a 1970sbased approach to crime investigation to tackle the 1990s volume of crime. They and the criminal justice system are almost overwhelmed by the volume of crime, and more and more of their effort is absorbed in day-today ‘fire-fighting’”.6

The search for alternatives to the traditional model of public policing produced different outcomes. The emphasis placed on proactive approaches resulted in reactivation or reinvention of such systemic solutions as problem-oriented policing, community policing, communitybased crime prevention, order maintenance policing, “risk-based” strategies, neighbourhood policing and, last but not least, intelligence-led policing.7 Intelligence-led policing (ILP) was therefore one of the possible answers to the challenge of a better and more efficient management of public security by law enforcement agencies. There is no universally accepted definition of intelligence-led policing and the true meaning of the term has never really been settled.8 Nevertheless, for the purpose of this chapter, it is appropriate to give some

ying_1993-2007.pdf (accessed July 23, 2012), 22. 5 Audit Commission, “Helping with Enquiries: Tackling Crime Effectively,” Police Paper No. 12, 1993, http://www.audit-commission.gov.uk/subwebs/public ations/studies/studyPDF/1079.pdf (accessed July 23, 2012). 6 Ibid. 39. 7 Bayley, Police for the Future; Shearing, C.D., “The Future of Policing,” Law & Society Review 30, 3. (1996): 585-606; Jones T. and Newburn, T., “The Transformation of Policing? Understanding Current Trends in Policing Systems,” British Journal of Criminology 42, 1 (2002): 129-46. 8 James, “The Influence of Intelligence-Led Policing Models”, 20; de Lint, W., “Intelligence in Policing and Security: Reflections on Scholarship,” Policing and Society 16, 1 (2006): 1-2; Carter D.L. and Carter, J.G., “Intelligence-Led Policing: Conceptual and Functional Considerations for Public Policy,” Criminal Justice Policy Review, 20, 3 (2009): 316-17; Alach, Z., “The emperor is still naked: How intelligence-led policing has repackaged common sense as transcendental truth,” The Police Journal 84 (2011): 75-97.

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19

short characteristics of the leading approaches to ILP and highlight certain conceptual elements of intelligence-based policing. According to Ratcliffe’s well respected definition intelligence-led policing is “the application of criminal intelligence analysis as an objective decisionmaking tool in order to facilitate crime reduction and prevention through effective policing strategies and external partnership projects drawn from an evidential base.”9 Core parts of this definition may be found in an original “paradigmatic” ILP solution adopted by the Kent County Constabulary in the early 1990s.10 In another of Ratcliffe’s formulations, taking into account a corporate management framework, intelligence-led policing is “a business model and an information-organising process that allows police agencies to better understand their crime problems and take measure of the resources available to be able to decide on an enforcement tactic or prevention strategy best designed to control crime.” 11

From this perspective, ILP concentrates on knowledge management to respond effectively to threats and risks posed by criminal groups as business organisations.12 Intelligence is a set of tools and work practices which help to craft a proper law enforcement strategy and facilitate eventual criminal proceedings. Prevention and the control of crime are subject to well-organised, subtly crafted intelligence that take advantage of 9

Ratcliffe, J.H., “Intelligence-led Policing,” Trends & Issues in Crime and Criminal Justice 248 (April 2003), 3. 10 Anderson, R., “Intelligence-Led Policing: a British Perspective,” in Intelligenceled Policing. International Perspectives on Policing in the 21st Century, Smith A. ed., (Lawrenceville, New Jersey: IALEIA, 1997), 5-8. 11 Ratcliffe, J.H., “Intelligence-Led Policing,” in Environmental Criminology and Crime Analysis, Wortley R. and Mazerolle L., eds. (Cullompton, Devon: Willan Publishing, 2008), 267. Compare: Ratcliffe J.H. and Guidetti, R., “State Police Investigative Structure and the Adoption of Intelligence-Led Policing,” Policing: An International Journal of Police Strategies and Management 31, 1 (2008): 109– 28. 12 Gottschalk, P., “Managing criminal organisations,” International Journal of Police Science & Management 10, 3 (2008): 289-301.

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technologically enhanced information and data management. In this context, policing consists in acquiring, gathering and processing information in order to offer a comprehensive “product” that is either a specific set of data or a tailor-made solution facilitating threat assessment and risk reduction.13 Organisational excellence, understood as the capacity to deliver superior performance that meets the expectations of stakeholders,14 is highlighted by followers of another conceptual approach. In this regard, ILP is associated with particular organisational structures, such as intelligence units with analytical capacity, and the use of task groups to direct proactive undertakings.15 It is suggested by den Hengst and ter Mors that ILP should underpin a “community of intelligence” conceived as “a large non-hierarchical network that, through sharing content and process related issues, increases the situational awareness of analysts and speeds up the development of analytical work practices for intelligence-led policing.”16 To be effective, ILP should provide an organisational framework not only for the community of intelligence, linking law enforcement agencies with national intelligence services, but also to contribute to the building of new relationships between the intelligence community and local authorities as well as other relevant public actors.17 ILP is then getting closer to community-oriented policing in the way that it is configured, in a form that enables national intelligence agencies to utilise information and data collected in the fieldwork.18

13 Dorn, N., “European Strategic Intelligence: How Far Integration?,” Erasmus Law Review 1, 5 (2008): 165-66. 14 Katzenbach, J.R., and Smith, D.K., The wisdom of teams: Creating the highperformance organization (New York: HarperCollins, 2008). 15 Heaton, R., “Intelligence-Led Policing and Volume Crime Reduction,” Policing 3, 3 (2009): 293. 16 den Hengst, M., ter Mors, J., “Community of Intelligence: The Secret Behind Intelligence-Led Policing,” 7 https://www.politieacademie.nl/kennisenonderzoek/Lectoraten/lectointelligence/D ocuments/PID2397493.pdf (accessed July 22, 2012). 17 O’Brien, K.A., “Managing national security and law enforcement intelligence in a globalised world,” Review of International Studies 35, 4 (2009): 910. 18 Innes, M., Abbott, L., Lowe, T., Roberts, C., “Seeing like a citizen: field experiments in 'community intelligence-led policing',” Police Practice and Research 10, 2 (2009): 99-114; Tilley, N., “Problem-oriented policing, intelligence-led policing, and the national intelligence model,” Crime Science Short Report Series (London: Jill Dando Institute of Crime Science, 2003).

EU Intelligence-led Policing: The Case of Counter-terrorism Cooperation

21

The underlying function of intelligence-led policing is to anticipate crime trends and proactively create effective prevention strategies.19 It may be also conceived as a “type of law enforcement in which resources are deployed based on information gathered and analysed from criminal intelligence.”20 Intelligence-led policing therefore should be seen as a collaborative enterprise based on improved intelligence operations and community-oriented policing and problem solving,21 which is particularly suitable to the multi-level architecture of EU cooperation in police and criminal justice.

European Criminal Intelligence Model As we have noted, the origins of intelligence-led policing as a mainstream approach to the “new policing” can be traced back to the early 1990s and the UK Home Office’s new strategy in the face of rapidly growing crime rates and the obsolescence of traditional “police work”. Throughout the decade of the 1990s, numerous efforts were undertaken to implement a proactive intelligence-led policing strategy. They were crowned in 2000 by the adoption of the National Intelligence Model (NIM),22 based on intelligence analysis to manage and process the large amounts of information gathered by the law enforcement services.23 The 9/11 terrorist attacks in the United States highlighted the critical importance of intelligence for effective prevention and combating of terrorism and transnational crime. However, it did not have any special impact on the capabilities of EU legal and institutional arrangements to 19

Guidetti R., and Martinelli, T.J., “Intelligence-Led Policing - A Strategic Framework,” The Police Chief LXXVI, 10 (October 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&arti cle_id=1918&issue_id=102009 (accessed March 22, 2012). 20 White, J.R., Terrorism and Homeland Security, 6th ed. (Belmont, CA: Wadsworth Cengage Learning, 2009), 423. 21 Peterson, M., Intelligence-Led Policing: The New Intelligence Architecture (Washington, DC: Bureau of Justice Assistance, U.S. Department of Justice, 2005), viii, https://www.ncjrs.gov/pdffiles1/bja/210681.pdf (accessed March 22, 2012). 22 National Criminal Intelligence Service. The National Intelligence Model, 2000, http://www.intelligenceanalysis.net/National%20Intelligence%20Model.pdf (accessed February 12, 2012). 23 Flood, B., “Strategic aspects of the UK National Intelligence Model,” in Strategic Thinking in Criminal Intelligence, Ratcliffe J.H. ed., (Sydney: The Federation Press, 2004), 37-52.

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establish a genuine intelligence-led policing model. Some attempts at intensifying and enlarging the scope of intelligence cooperation at EU level, due to the lack of unanimity and the deficit of trust among the member states, did not yield the expected results.24 The feeling of resilience to most serious threats to internal security in the EU altered in the immediate aftermath of the 11 March 2004 terrorist attack in Madrid. The EU’s institutions placed particular emphasis on the exchange of information and intelligence between law enforcement authorities of the member states, and called for the improvement of mechanisms for cooperation and the promotion of effective systematic collaboration between police, security and intelligence services. The European Council, in the Hague Programme of November 2004, set the goal of “setting up and implementing a methodology for intelligence-led law enforcement at EU level.”25 In 2005, the UK Presidency of the EU coincided with the terrorist attacks in London in July of that year resulting in a proactive approach to implementation of the Hague Programme. A UK proposal submitted to Interior Ministers gathered at an informal meeting in September 2005 contained what may have been considered the “missing link” in the creation of a potential EU intelligence cycle integrating the abovementioned initiatives. A consultation paper26 delivered by the UK Home Office introduced the idea of a European Criminal Intelligence Model (ECIM) based on the principles of intelligence-led policing, and evidently modelled after the UK’s NIM. In this paper the British government underlined that the principles of the ILP “describe how knowledge and understanding of criminal threats is used to drive law enforcement’s actions in response to the organised crime threat.”27 According to the UK Presidency, an ECIM should benefit EU member states by: – improving knowledge of serious and organised crime through more effective collection, exchange, and analysis of information;

24

Bures, O., “EU Counterterrorism Policy: A Paper Tiger?,” Terrorism and Political Violence 18, 1 (2006): 62-63. 25 The European Council, “The Hague Programme: Strengthening Freedom, Security and Justice in the European Union,” OJ, C 53 (2005), 9. 26 UK Presidency. Annex – A European Criminal Intelligence Model, paper issued by the 2005 UK Presidency of the EU, 1. 27 Ibid.

EU Intelligence-led Policing: The Case of Counter-terrorism Cooperation

23

– increasing the effectiveness of Europol and other relevant EU bodies; – achieving better operational results; – allowing all member states as well as EU institutions to observe a common methodology for tackling serious and organised crime in the EU.28 The paper pointed to Europol as the “central EU capability to receive, store and analyse this collected information”, and to support operational activities of the member states based on Europol’s earlier strategic assessments. The ECIM was marked by a “shift from reactive policing to a problem solving approach, based on analysis, by developing action plans (focused on crime prevention as well as on repressive action), and involving multiple actors (both private and 29 public partners).”

According to Brady: “the ECIM sets out how the EU can achieve this by ensuring national police forces, Europol’s criminal intelligence analysts, and the police chiefs’ operations work together against the same criminal threats.”30

Intelligence-led policing principles which were the critical underpinning for the ECIM, were based on the assumption that EU agencies and institutions in strict cooperation with the member states must first improve their knowledge of various aspects of cross-border and international criminality, while also developing an intelligence cycle leading to strengthened and accurate operational capabilities.31 The eventual application of the ECIM was predetermined by Europol’s capabilities, which had been reduced by legal provisions and 28

Ibid. The Council of the EU, Result of the "Harmony" project - "A generic European Crime Intelligence Model” - Bringing together the existing instruments and strengthening Europol's central role, 14851/10 (October 25, 2010). 30 Brady, H., “Europol and the European Criminal Intelligence Model: A Non-state Response to Organized Crime,” Policing 2, 1 (2008): 103–109. 31 Nunzi, A., “Exchange of information and intelligence among law enforcement authorities a European Union perspective,” Revue internationale de droit pénal, 78, 1 (2007): 143-51. 29

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organisational schemes, as well as the inability of the member states to exercise a joint will, or exhibit an openness for advanced cooperation in the exchange of information and intelligence in the area of transnational criminal justice. The Hague Programme formulated a prospective solution to the challenge of granting mutual access to criminal intelligence data stored in the individual databases of the member states, based on the principle of availability, but it collapsed in the face of the inherent bureaucratic inflexibility within the decision-making process at the EU level. While, in December 2006, the Council finally adopted the framework decision on simplifying the exchange of information and intelligence between law enforcement authorities of EU member states, it neither significantly improved the efficiency of information exchange system in the EU, nor did it contribute to the feasibility of the ECIM. Furthermore, the availability of police data and intelligence was subject to numerous regulations, rules and working arrangements set on national, legal and political grounds.32 Given the clear lack of confidence among and in law enforcement agencies, and the constant deficit of trust for Europol and Eurojust, in the end flexible and efficient prevention was hardly viable at the EU level. Instead, it followed other intergovernmental channels and arrangements, both formal and informal.33 The Stockholm Programme, adopted in December 2009, called for the adoption of an Internal Security Strategy for the EU, built on a proactive intelligence-led approach to securitisation of the area of freedom, security and justice. The Strategy, approved by the Council in February 2010, sought to ensure that member states share intelligence in time to prevent crime and bring offenders to justice. It put a stronger emphasis on the prevention of criminal acts and terrorist attacks before they take place, in order to reduce their negative consequences. According to the Internal Security Strategy, the EU’s stance “must therefore emphasise prevention and anticipation, which is based on a proactive and intelligence-led approach as well as procuring the evidence required for prosecution.”34 32

Bigo, D., “Liberty, whose Liberty? The Hague Programme and the Conception of Freedom,” in Security Versus Freedom? A Challenge for Europe’s Future, Balzacq T., and Carrera S., eds. (Aldershot and Burlington: Ashgate (2006), 35-44; Elsen, C., “From Maastricht to The Hague: the politics of judicial and police cooperation,” ERA Forum, 8, 1 (2007):13-26. 33 Gruszczak, A., “Governing Internal Security in the European Union,” Central European Journal of International & Security Studies 3, 2 (2009): 93-94. 34 The Council of the EU, Draft Internal Security Strategy for the European Union: “Towards a European Security Model”, 5842/2/10 REV 2 (February 23, 2010), 11.

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25

The catalogue of preventive, anticipatory and intelligence-based measures was quite impressive: analytical tools, early-warning systems, data pooling, systems of recording and transfer of sensitive data, risk analysis and capacity planning. The Council, responding to a need to further develop a coherent policy cycle on the basis of an intelligence-led policing approach, adopted at a meeting in Brussels in November 2010 conclusions on the creation and implementation of an EU-wide policy cycle for organised and serious international crime on the basis of a new “intelligence product”: the European Union Serious and Organised Crime Threat Assessment (EU SOCTA) due in 2013.35 The Standing Committee on Internal Security (COSI) outlined in June 2012 a methodology for the SOCTA. It is conceived as a strategic report containing analyses of the character or the threatening features of organised crime groups, areas of their activity by modes and scope, and description of the most threatening criminal groups, criminal areas and their regional dimensions.36 The SOCTA, as a core part of the EU policy cycle, should lead towards an intelligence-led way ensuring that the most relevant threats are properly addressed, and that analytical products directly feed political decision-making in the EU. Europol, on the basis of the new Decision37 adopted in April 2009, was endowed with enhanced capabilities in the area of information management, intelligence production and sharing, as well as operational support for the member states. Europol’s strategy for the period 2010-2014 assigned this entity the role of EU criminal information hub, and the centre for law enforcement expertise. Europol should also support law enforcement operations in the member states, mostly through the delivery of analysis and intelligence. Europol was also tasked to lead the further development of the ECIM. In this regard, it should develop a common EU approach for targeted collection and sharing of key criminal information, integrated analysis of financial intelligence linked to all crime phenomena, identification of top criminal targets. It should also improve and strengthen the OCTA methodology, and promote ECIM principles among national authorities in the member states as well as EU institutions and agencies.38 35 The Council of the EU, EU Policy Cycle, 12657/1/10 REV 1 (September 3, 2010). 36 The Council of the EU, Serious and Organised Crime Threat Assessment (SOCTA) - Methodology, 12159/12 (July 4, 2012). 37 The Council of the EU, “Council Decision of 6 April 2009 establishing the European Police Office (Europol),” OJ. L 121 (2009), 37. 38 EUROPOL Management Board. Europol Strategy 2010 – 2014, 1424-73r1

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The European Criminal Intelligence Model was based on the assumption that the tasking and co-ordination processes at EU level should be fully dependent on the key intelligence products, conceived as the “deliverables,” by which intelligence-led policing can be implemented. These key intelligence products included strategic assessments, tactical assessments, risk analyses and problem profiles.39 All intelligence work should be supported by the knowledge products, and system products, as elements that provide quality assurance to the ECIM. In this regard, the functioning of international cooperation and liaison arrangements, including Europol, was meant to provide support for the analysis of terrorism and organised crime.

EU Counter-terrorism policy and the intelligence-led policing European counter-terrorism cooperation dates back to the late 1960s. However, any exchange of sensitive information and intelligence on terrorism was rather incidental, subject to political decisions on the governmental level and availability of direct channels of communication. This meant, in practice, the reliance on secret, formalised or informal, bilateral, or sometimes multilateral, mechanisms of intelligence sharing, often fairly limited due to their specific nature. Cooperation initiatives which emerged in the second half of the 1970s, like the TREVI, the Police Working Group on Terrorism, or the Vienna Club, did not change much the overall picture of intelligence cooperation.40 Curiously enough, the problem of intelligence cooperation was almost non-existent in European reactions to the terrorist attack of 9/11. This was due to the fact that EU institutions, and the EU member states strongly preferred the criminal justice model of counter-terrorism, and were reluctant to embrace the militarisation of the “war on terror”. Inkster noted (November 2, 2009). 39 van Duyne P. C., and Vander Beken, T., “The incantations of the EU organised crime policy making,” Crime, Law and Social Change 51, 2 (2009):271-81; Cordell, G., “Europe’s police information exchange: an exercise in information management,” Journal of Police Studies, 16 (2010): 115-19. 40 Friedrichs, J., Fighting Terrorism and Drugs. Europe and international police cooperation (London and New York: Routledge, 2008); Argomaniz, J., The EU and Counter-Terrorism. Politics, polity and policies after 9/11 (London and New York: Routledge, 2011), 43-52; Bures, O., EU Counterterrorism Policy. A Paper Tiger? (Farnham and Burlington, VA: Ashgate, 2011), 59-63.

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that Eliza Manningham-Buller, a former Director General of MI5 (the British Security Service), stated unequivocally that the terrorist attack on the United States was a crime, and should have been dealt with as a lawenforcement issue.41 In a similar vein, Gilles Andréani, a former Head of Policy Planning in the French Foreign Ministry, asserted that the war on terror was a just cause, but the wrong concept, and added that the successful fight against terrorism consisted in criminalising adversaries of the state, treating the terrorists as criminals, and not warriors.42 This stance clearly reflected the EU’s perception of terrorism as one of the most serious forms of crime, built on the existing body of legal instruments of prevention and combating of terrorism (adopted by the Council of Europe) as well as political declarations approved in the framework of the EU.43 According to the relevant provisions of the Treaty on the European Union, terrorism was conceived as a specific form of international crime which must be prevented and combated through closer cooperation between police forces and judicial authorities, and the approximation of the criminal law provisions of the member states. After the 9/11 attacks on the United States, the most important EU contribution to the prevention and combating of terrorism consisted of the proposal of new legal framework measures that should improve the efficiency and reliability of criminal justice in EU member states, and thereby lay the foundations of a comprehensive approach to the prevention and combating of terrorism within the EU. A rather inconsistent picture of 41

Baroness Manningham-Buller in one of Reith lectures in commemoration of the 10th anniversary of the 9/11 said: “For me what happened was a crime and needs to be thought of as such”. Transcript of the BBC Reith Lectures 2011: Securing Freedom. Baroness Eliza Manningham-Buller. Lecture One: Terror. First broadcast on BBC Radio 4 on 6 September 2011, http://downloads.bbc.co.uk/radio4/transcripts/2011_reith3.pdf (accessed July 12, 2012). Also: Inkster, N., “9/11/11: A Decade of Intelligence,” Survival 53, 6 (2011): 8. 42 Andréani, G., “The ‘War on Terror’: Good Cause, Wrong Concept,” Survival 46, 4 (2004): 34-35. 43 Reinares, F., ed., European Democracies Against Terrorism. Governmental policies and intergovernmental cooperation (Aldershot - Burlington – Singapore – Sydney: Ashgate, 2000); Jimeno-Bulnes, M., “After September 11th: the Fight Against Terrorism in National and European Law. Substantive and Procedural Rules: Some Examples,” European Law Journal 10, 2 (2004): 245-53; Bossong, R., “The Action Plan on Combating Terrorism: A Flawed Instrument of EU Security Governance,” Journal of Common Market Studies 46, 1 (2008): 27–48.

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EU counter-terrorist activities was further diluted by the consequences of the pillar architecture of the EU and difficulties to integrate and coordinate actions taken in the framework of the Common Security and Defence Policy, Justice and Home Affairs cooperation, as well as the relevant Community policies (visa, border control, data protection etc.). As a result, the European Security Strategy adopted in December 2003 by the European Council, recognised that “dealing with terrorism may require a mixture of intelligence, police, judicial, military and other means.”44 The problem of intelligence cooperation emerged in the immediate aftermath of the 2004 Madrid bombings at Atocha railway station. This exposed the weaknesses and shortcomings of the existing EU anti-terrorist policy, especially poor intelligence sharing and data exchange among EU member states, due to an acute lack of mutual trust. It was the Commission that insisted on establishing “a new coordination mechanism for the exchange of information - a clearing house mechanism - where law enforcement, judicial authorities and intelligence services meet to enhance mutual trust and exchange operational intelligence.”

The Commission added that “intelligence-led law enforcement and effective national criminal intelligence systems which are compatible at EU level and allow for the effective access, analysis, and use of data” should be of “utmost importance” throughout the Union.45 Likewise, the European Council at its meeting following the Madrid terrorist attack, called upon the member states to improve mechanisms for cooperation and the promotion of effective systematic collaboration between police, security and intelligence services. It also underlined the importance of further development of the relationship between Europol and national intelligence services, particularly with regard to the flow of intelligence.46 Two of the member states, namely Belgium and Austria, put forward an idea for the creation of an EU intelligence agency, but this idea was discarded by the other EU member states. Unfortunately, structural 44 The European Council. A Secure Europe in a Better World. European Security Strategy (December 12, 2003), 7. 45 The Commission of the EC. European Commission action paper in response to the terrorist attacks on Madrid, MEMO/04/66 (March 18, 2004), 6. 46 The European Council. Declaration on Combating Terrorism, Brussels, 25 March 2004, http://www.eco.de/dokumente/20040325-EU-79637-Terrorismus.pdf (accessed March 30, 2004), 9-10.

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obstacles at EU level, already evident in the post-Madrid, apparently concerted, response by the EU, proved extremely difficult to overcome.47 In the post-Madrid/London agenda of EU internal security policy, there was reliance on intelligence-led policing as a concept, transmitted throughout the EU level, that aimed to stimulate a better evaluation of both the terrorist menace and the production of intelligence analyses through situation reports and threat assessments.48 In September 2005 the Council adopted a decision which obliged EU member states to provide Europol and Eurojust with comprehensive information concerning criminal investigations in terrorist cases, as well as prosecutions and convictions for terrorist offences involving two or more countries.49 In this respect, the Ministers for Home Affairs assigned a new role to Europol. In 2006, Europol’s first Organised Crime Threat Assessment (OCTA) was published as “a forward-looking document [that] will help decisionmakers identify strategic priority areas in the fight against serious and organised crime and to initiate an intelligence process to define operational targets.”50 The then-Director of Europol, Max-Peter Ratzel, described OCTA as a core product of the intelligence-led policing concept. Likewise, an annual Terrorism Situation and Trend Report (TE-SAT), issued by Europol since 2001, underwent changes, while based on the intelligence-led model, which took advantage of the multiplicity of information and intelligence sources and internal Europol analytical capabilities. The first “new” TE-SAT, produced in 2007 and annually thereafter, offered a synthetic overview of the situation in the EU regarding possible terrorist threats as both analytical material and the operational background for informing competent security agencies from the member states. As in the case of OCTA, the methodology of this new “intelligence product” also applied from the law enforcement perspective. 47

Zimmermann, D., “The European Union and Post-9/11 Counterterrorism: A Reappraisal,” Studies in Conflict & Terrorism 29, 2 (2006): 134-37; Bures, EU Counterterrorism Policy. A Paper Tiger?, 67-70; Argomaniz, J., “Post-9/11 institutionalisation of European Union counter-terrorism: emergence, acceleration and inertia,” European Security 18, 2 (2009): 158-60. 48 McGarrell, E.F., Freilich J.D. and Chermak, S., “Intelligence-Led Policing As a Framework for Responding to Terrorism,” Journal of Contemporary Criminal Justice 23, 2 (2007): 147. 49 The Council of the EU, Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences, OJ L 253 (2005), 22. 50 Europol, OCTA. EU Organised Crime Threat Assessment (The Hague: Europol, 2006), 4.

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Max-Peter Ratzel again ascertained that “terrorism inevitably involves the commission of violent crimes and other criminal activities.”51 The 2009 Stockholm Programme and the subsequent EU Internal Security Strategy placed a special emphasis on the proactive intelligenceled approach supported by a comprehensive model for information exchange within the EU. In this strategic context, Europol’s tasks in the area of intelligence and analysis were enhanced by the provisions of the 2009 Council Decision on Europol.52 This legal act authorised Europol to collect, store, process, analyse and exchange information and intelligence and also to provide intelligence and analytical support to member states in connection with major international events, as well as prepare threat assessments, strategic analyses and general situation reports. Moreover, Europol’s additional task included the provision of “strategic intelligence to assist and promote the efficient and effective use of the resources available at national and Union level for operational activities and the support of such activities.”53 Europol’s extended analytical competences may be well illustrated by the methodology of the terrorist situation and trend reports. This methodology was developed by Europol in 2006 in consultation with the Advisory Board. Europol collects qualitative and quantitative data on terrorist offences and acts of extremism in the EU, and data on arrests of people on suspicion of involvement in those offences, provided or confirmed by the member states. The above-mentioned 2005 Council Decision on the exchange of information and cooperation concerning terrorist offences obliges the member states to provide Europol information concerning criminal investigations in terrorist cases. Similar data is collected with regard to offences in which EU interests outside of the Union are affected. Thanks to partnerships with numerous non-EU states and organisations (for example the United States, Norway, Switzerland, Turkey or Colombia), Europol may be supplied with requested or available information. Europol also gets data from other EU agencies, principally Eurojust. Moreover, open source information gathered by Europol is utilised in this regard. The data collected by Europol is processed by them, and the results are cross-checked with the 51 Ratzel, M.P., “Foreword by the Director”, in Europol, EU Terrorism Situation and Trend Report 2007 (The Hague: Europol, 2007), 7. 52 The Council of the EU, Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ L 121 (2009): 39-40. 53 Ibid., Article 5.3.

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member states. In case of divergences or gaps, Europol’s “product” is corrected and complemented, usually by open source data systematically monitored, collected and processed by Europol. Then the “intelligence product” is validated by the member states, especially with reference to their national data. A similar procedure of data collection and verification applies to Eurojust.54 The counter-terrorism ILP approach in the EU, backed by the methodology developed in Europol and Eurojust once more underlined the importance of co-ordination process that could enable the member states an access to the EU’s key intelligence products. As a result, a standardised intelligence-led policing model could be implemented throughout the EU, at least in those member states that wish to benefit from this model.

Conclusions It is interesting that at the time of launching the idea of intelligence-led policing and a European Criminal Intelligence Model at the level of Interior Ministers of EU member states, the ILP model had already garnered up numerous critical observations and notes. Sceptics and critics claimed that the very concept of ILP had numerous meanings and was far from a universal definition. Its operational effectiveness was dependant on various local, indigenous and specific factors of social, psychological, normative and political character. Confusion also arose around sources of intelligence, and the purposes for gathering and using intelligence. Police officers lacked an “intelligence culture,” were predetermined in their behaviour by traditional police organisational culture, preconceptions and prejudices. The knowledge of the intelligence users was often superficial, and insufficient to take proper advantage of the “intelligence products.”55 The intelligence products, especially those issued by Europol, were of a low quality, utilised ambiguous concepts, were difficult to operationalise, 54 See appropriate fragments of Europol’s TE-SATs, 2007-2012 (available at Europol’s web page: https://www.europol.europa.eu/latest_publications/37, accessed July 24, 2012). 55 Cope, N., “‘Intelligence Led Policing or Policing Led Intelligence?’ Integrating Volume Crime Analysis into Policing,” British Journal of Criminology 44, 2 (2004): 188-203; Kleiven, M.E., “Where’s the intelligence in the National Intelligence Model?,” International Journal of Police Science & Management 9, 3 (2007): 257-73; John T., and Maguire, M., “The NIM: Early implementation experience in three police force areas” (Working Paper Series 50, School of Social Science, Cardiff University, Cardiff, 2004).

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and were based on “belief statements”, instead of knowledge-based analysis results.56 So, why has this model earned high levels of acceptance in the realm of EU police cooperation? It is submitted that the following reasons explain this: a. The legal framework for cooperation of police and law enforcement services within the EU does not contain strong incentives for direct operational cooperation. The existing regulations in the EU primary and secondary law do not leave a wide room for manoeuvre. On the contrary, provisions on intelligence cooperation are fairly modest, but leave no doubt as to who is the major player in this field, i.e. the member states. As a result, EU law allows for strategic intelligence, reducing largely opportunities and capacities of EU agencies and institutions for operational support for national services. b. Strategic intelligence is the domain where the EU can realise its competencies, develop its activities, and contribute to the general assessment of security, inevitably focuses on information management, strategic analysis and threat assessment. Devoid of a major impact on tactical intelligence in its member states, the Union, through its agencies, has sought to provide as much support as possible, offering “intelligence precursors” for national law enforcement services involved, especially in cross-border, transnational operations against terrorism and organised crime. The global challenge from terrorism and serious organised crime contributed to the search for an intelligence strategy that could provide a framework for a structured problem-solving and partnership-enhanced approach, based around a common model intelligence-led policing.57 Therefore, the ILP was taken as a matrix for pro-active, future-oriented “high policing,” granting the users fairly advanced capabilities for multilateral information exchange, and data sharing, whenever possible. 56

Zoutendijk, A.J., “Organised crime threat assessments: a critical review,” Crime, Law and Social Change 54, 1 (2010): 63-86; van Duyne, P.C., “OCTA 2006: the unfulfilled promise,” Trends in Organized Crime 3, 2 (2007): 120–28; van Duyne and Vander Beken, T., “The incantations of the EU organised crime policy making.” 57 Gottschalk P., and Gudmundsen, Y.S., “An empirical study of intelligence strategy implementation,” International Journal of Police Science and Management 12, 1 (2010): 58.

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c. The centre of gravity in the area of intelligence cooperation among EU member states has been concentrated rather on direct collaboration among the national services, quite often outside the framework of the EU.58 The logic of European integration inclined to search for a “missing link” in EU security policies and strategies – that of intelligence. The ILP model was supported by the member states in two instances: as the lowest common denominator, and as a value added to the intergovernmental dimension. In the first meaning, it sought to unite the countries which already introduced the ILP model into their national law enforcement systems and to propagate this model as a kind of best practice in intelligence sharing and data exchange within the EU, as an area of freedom, security and justice. In the second perspective, the ILP was considered to be as a novel approach in international policing, taking advantage of communication technologies, large-scale EU-wide IT systems, forensic computer programmes and enhanced analytical capacities. d. Ongoing debate on an intelligence-led policing model and its practical benefits has led its participants towards the strategic thinking underlining the importance of linkages between national intelligence models, and international (even global) approaches to criminal threats and terrorist menace. The challenges of security governance, risk management, policy implementation and anticipatory decision-making were noticed also in the field of law enforcement. Intelligence failures which occurred in the mid-2000s made the member states “put the ‘L’ into intelligence-led policing.”59 This factor explains the decision to launch an ECIM, to develop or amend its certain elements (policy cycle, threat assessments, information management) and – most importantly – take it as a relevant practical tool in the realm of counterterrorism and criminal prevention in the EU. In the post-9/11 security environment, intelligence-led policing is instrumental in uncovering terrorist activities and conventional crimes of transnational organised nature. Intelligence sharing is a key aspect of EU counterterrorism cooperation. Certainly, the Union has invested in some forms of institutionalised cooperation between the member states, 58 Müller-Wille, B., “The Effect of International Terrorism on EU Intelligence Cooperation,” Journal of Common Market Studies 46, 1 (2008): 55-58. 59 Connors, T., “Putting the ‘L’ into Intelligence-Led Policing: How Police Leaders Can Leverage Intelligence Capability,” International Journal of Intelligence and Counter Intelligence 22, 2 (2009): 237–45.

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especially counterterrorist units with a high level of preparedness in case of terrorist incidents. The “Atlas” network of anti-terrorist squads from EU member states is for now the most visible example. However, what is of particular relevance for the strategic platform of EU internal security, is a pro-active, anticipatory approach to risks, threats and sources of instability. In order to succeed, the EU requires credible intelligence that is subjected to effective policing within local circumstances, crime hotspots, and areas of elevated risk. The ILP, the ECIM and the EU policy cycle are evidence of efforts undertaken by competent EU institutions and agencies, in response to stimuli coming from particular member states, in order to improve the management of sensitive information and criminal data delivered by the member states. EU intelligence-led policing model is close to Peterson’s “level 1 intelligence” concept, wherein agencies produce tactical and strategic intelligence products that benefit their own as well as national law enforcement agencies.60 Nowadays, there is a general belief within the European law enforcement community that the transmission of national criminal information and police data for the purposes of cross-checking, comparing and exchanging intelligence is the best method of bringing about synergy in cross-border EU-wide management of internal security.

Bibliography Alach, Z., "The emperor is still naked: How intelligence-led policing has repackaged common sense as transcendental truth." The Police Journal, 84 (2011): 75-97. Anderson, R., “Intelligence-Led Policing: a British Perspective.” In Intelligence-led Policing. International Perspectives on Policing in the 21st Century, Smith, A., ed., 5-8. Lawrenceville, New Jersey: IALEIA, 1997. Andréani, G., “The ‘War on Terror’: Good Cause, Wrong Concept.” Survival 46, 4 (2004): 31-50. Argomaniz, J., “Post-9/11 institutionalisation of European Union counterterrorism: emergence, acceleration and inertia.” European Security 18, 2 (2009): 151-72. —. The EU and Counter-Terrorism. Politics, polity and policies after 9/11. London and New York: Routledge, 2011.

60

Peterson, M., Intelligence-Led Policing, 12.

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35

Audit Commission. “Helping with Enquiries: Tackling Crime Effectively.” Police Paper No. 12, 1993, http://www.audit-commission .gov.uk/subwebs/publications/studies/studyPDF/1079.pdf (accessed July 23, 2012). Bayley, D.H., Police for the Future. Oxford – New York: Oxford University Press, 1994. BBC. Transcript of the BBC Reith Lectures 2011: Securing Freedom. Baroness Eliza Manningham-Buller. Lecture One: Terror. First broadcast on BBC Radio 4 on 6 September 2011, http://downloads.bbc.co.uk/radio4/transcripts/2011_reith3.pdf (accessed July 12, 2012). Bigo, D., “Liberty, whose Liberty? The Hague Programme and the Conception of Freedom.” In Security Versus Freedom? A Challenge for Europe’s Future, Balzacq T., and Carrera, S., ed., 35-44. Aldershot and Burlington: Ashgate, 2006. Bossong, R., “The Action Plan on Combating Terrorism: A Flawed Instrument of EU Security Governance”, Journal of Common Market Studies 46, 1 (2008): 27–48. Brady, H., “Europol and the European Criminal Intelligence Model: A Non-state Response to Organized Crime.” Policing 2, 1 (2008): 103– 109. Bures, O., EU Counterterrorism Policy. A Paper Tiger? Farnham and Burlington, VA: Ashgate, 2011. —. “EU Counterterrorism Policy: A Paper Tiger?.” Terrorism and Political Violence 18, 1 (2006): 57-78. Carter, D.L., and Carter. J.G. “Intelligence-Led Policing: Conceptual and Functional Considerations for Public Policy.” Criminal Justice Policy Review 20, 3 (2009): 310-25. Connors, T., “Putting the ‘L’ into Intelligence-Led Policing: How Police Leaders Can Leverage Intelligence Capability.” International Journal of Intelligence and Counter Intelligence 22, 2 (2009): 237–45. Cope, N., “’Intelligence Led Policing or Policing Led Intelligence?’ Integrating Volume Crime Analysis into Policing.” British Journal of Criminology 44, 2 (2004): 188-203. Cordell, G., “Europe’s police information exchange: an exercise in information management.” Journal of Police Studies 16 (2010): 10720. De Lint, W., “Intelligence in Policing and Security: Reflections on Scholarship.” Policing and Society 16, 1 (2006): 1-6. Den Hengst, M., and ter Mors, J., “Community of Intelligence: The Secret Behind Intelligence-Led Policing,”

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https://www.politieacademie.nl/kennisenonderzoek/Lectoraten/lectoint elligence/Documents/PID2397493.pdf (accessed July 22, 2012). Dorn, N., “European Strategic Intelligence: How Far Integration?.” Erasmus Law Review 1, 5 (2008): 163-80. Elsen, C., “From Maastricht to The Hague: the politics of judicial and police cooperation.” ERA Forum 8, 1 (2007): 13-26. Europol. OCTA. EU Organised Crime Threat Assessment. The Hague: Europol, 2006. EUROPOL Management Board. Europol Strategy 2010 – 2014, 142473r1 (November 2, 2009). The Hague: Europol, 2009. Flood, B., “Strategic aspects of the UK National Intelligence Model.” In Strategic Thinking in Criminal Intelligence, edited by Jerry H. Ratcliffe, 37-52. Sydney: The Federation Press, 2004. Friedrichs, J., Fighting Terrorism and Drugs. Europe and international police cooperation. London and New York: Routledge, 2008. Gill, P., “Making Sense of Police Intelligence? The Use of a Cybernetic Model in Analysing Information and Power in Police Intelligence Processes.” Policing and Society 8, 3 (1998): 289-314. Gottschalk, P., “Managing criminal organisations.” International Journal of Police Science & Management 10, 3 (2008): 289-301. Gottschalk, P., and Gudmundsen, Y.S., “An empirical study of intelligence strategy implementation.” International Journal of Police Science and Management 12, 1 (2010): 55-68. Gruszczak, A., “Governing Internal Security in the European Union.” Central European Journal of International & Security Studies 3, 2 (2009): 86-103. Guidetti, R., and Martinelli. T.J., “Intelligence-Led Policing - A Strategic Framework.” The Police Chief LXXVI, 10 (October 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction= display&article_id=1918&issue_id=102009 (accessed March 22, 2012). Heaton, R., “Intelligence-Led Policing and Volume Crime Reduction.” Policing 3, 3 (2009): 292-97. “The Prospects for Intelligence-led Policing: Some Historical and Quantitative Considerations.” Policing and Society 9, 4 (2000): 33755. Inkster, N., “9/11/11: A Decade of Intelligence.” Survival 53, 6 (2011): 513. Innes, M., Abbott, L., Lowe, T., Roberts, C., “Seeing like a citizen: field experiments in ‘community intelligence-led policing’.” Police Practice and Research 10, 2 (2009): 99-114.

EU Intelligence-led Policing: The Case of Counter-terrorism Cooperation

37

James, A. “The Influence of Intelligence-Led Policing Models on Investigative Policy and Practice in Mainstream Policing 1993-2007: Division, Resistance and Investigative Orthodoxy.” A thesis submitted to the Department of Social Policy of the London School of Economics and Political Science for the degree of Doctor of Philosophy, London, September 2011, http://etheses.lse.ac.uk/221/1/James_The_influence_of_intelligenceled_policing_models_on_investigative_policy_and_practice_in_mainst ream_policying_1993-2007.pdf (accessed July 23, 2012). Jimeno-Bulnes, M., “After September 11th: the Fight Against Terrorism in National and European Law. Substantive and Procedural Rules: Some Examples,” European Law Journal 10, 2 (2004): 235-53. John, T., and Maguire, M., “The NIM: Early implementation experience in three police force areas.” Working Paper Series 50, School of Social Science, Cardiff University, Cardiff, 2004. Jones, T., and Newburn, T., “The Transformation of Policing? Understanding Current Trends in Policing Systems.” British Journal of Criminology 42, 1 (2002): 129-46. Katzenbach, JR., Smith, D.K., The wisdom of teams: Creating the highperformance organization. New York: HarperCollins, 2008. Kleiven, M.E., “Where’s the intelligence in the National Intelligence Model?” International Journal of Police Science & Management 9, 3 (2007): 257-73. McGarrell, E.F., Freilich J.D., and Chermak, S., “Intelligence-Led Policing As a Framework for Responding to Terrorism,” Journal of Contemporary Criminal Justice 23, 2 (2007): 142-58. Müller-Wille, B., “The Effect of International Terrorism on EU Intelligence Cooperation,” Journal of Common Market Studies 46, 1 (2008): 55-58. National Criminal Intelligence Service. The National Intelligence Model, 2000, http://www.intelligenceanalysis.net/National%20Intelligence%20Mode l.pdf (accessed February 12, 2012). Nunzi, A., “Exchange of information and intelligence among law enforcement authorities a European Union perspective.” Revue internationale de droit pénal, 78, 1 (2007): 143-51. O’Brien, K.A., “Managing national security and law enforcement intelligence in a globalised world.” Review of International Studies 35, 4 (2009): 903-15.

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Peterson, M., Intelligence-Led Policing: The New Intelligence Architecture. Washington, DC: Bureau of Justice Assistance, U.S. Department of Justice, 2005, https://www.ncjrs.gov/pdffiles1/bja/210681.pdf (accessed March 22, 2012). Ratcliffe, J.H. “Intelligence-led Policing,” Trends & Issues in Crime and Criminal Justice, 248 (2003). —. “Intelligence-Led Policing,” In Environmental Criminology and Crime Analysis, edited by Wortley R., and Mazerolle, L., 263–82 (Cullompton, Devon: Willan Publishing, 2008). Ratcliffe, J.H., and Guidetti, R., “State Police Investigative Structure and the Adoption of Intelligence-Led Policing.” Policing: An International Journal of Police Strategies and Management 31, 1 (2008): 109–28. Ratzel, M.P., “Foreword by the Director.” In EU Terrorism Situation and Trend Report 2007, 7. The Hague: Europol, 2007. Reinares, F., ed. European Democracies Against Terrorism. Governmental policies and intergovernmental cooperation. Aldershot Burlington – Singapore – Sydney: Ashgate, 2000. Reiner, R., “Policing a Postmodern Society.” The Modern Law Review 55, 6 (1992): 777-780. Schreier, F., “Human Trafficking, Organised Crime & Intelligence.” in Strategies Against Human Trafficking: The Role of the Security Sector, Friesendorf, C., ed. 213-59. Vienna and Geneva: National Defence Academy in cooperation with Geneva Centre for the Democratic Control of the Armed Forces, 2009. Shearing, C.D. “The Future of Policing.” Law & Society Review 30, 3. (1996): 585-606. The Commission of the EC. European Commission action paper in response to the terrorist attacks on Madrid, MEMO/04/66. March 18, 2004. The Council of the EU Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences, OJ, L 253, September 29, 2005. —. Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ L 121 (2009): 39-40. —. Draft Internal Security Strategy for the European Union: "Towards a European Security Model"’, 5842/2/10 REV 2, February 23, 2010. —. EU Policy Cycle, 12657/1/10 REV 1, September 3, 2010. —. Result of the "Harmony" project - "A generic European Crime Intelligence Model” - Bringing together the existing instruments and strengthening Europol's central role, 14851/10, October 25, 2010.

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—. Serious and Organised Crime Threat Assessment (SOCTA) Methodology, 12159/12, July 4, 2012. The European Council. A Secure Europe in a Better World. European Security Strategy, December 12, 2003. Declaration on Combating Terrorism, Brussels, 25 March 2004, http://www.eco.de/dokumente/20040325-EU-79637-Terrorismus.pdf (accessed March 30, 2004). The Hague Programme: Strengthening Freedom, Security and Justice in the European Union. OJ C 53, March 3, 2005. Tilley, N., “Problem-oriented policing, intelligence-led policing, and the national intelligence model.” Crime Science Short Report Series. London: Jill Dando Institute of Crime Science, 2003. UK Presidency. Annex – A European Criminal Intelligence Model, paper issued by the 2005 UK Presidency of the EU. Van Duyne, P.C., “OCTA 2006: the unfulfilled promise.” Trends in Organized Crime 3, 2 (2007): 120–28. Van Duyne, P.C., and Vander Beken.T., “The incantations of the EU organised crime policy making.” Crime, Law and Social Change 51, 2 (2009): 271-81. White, J.R. Terrorism and Homeland Security, 6th ed. Belmont, CA: Wadsworth Cengage Learning, 2009. Zimmermann, D., “The European Union and Post-9/11 Counterterrorism: A Reappraisal.” Studies in Conflict & Terrorism 29, 2 (2006): 123-45. Zoutendijk, A.J., “Organised crime threat assessments: a critical review.” Crime, Law and Social Change 54, 1 (2010): 63-86.

POLICING AT THE PORTS

CHAPTER THREE SECURITY AND EUROPE’S SEA PORTS: THREATS AND ISSUES FACING MARITIME GATEWAYS TO EUROPE ANGELA CARPENTER

Introduction The seas and oceans of the European Union play a significant role in its economic security and in areas of transport, employment, tourism, as a resource for both renewable and non-renewable energy, and as a source of food through its fisheries and aquaculture. However, the word security has many meanings in the context of Europe’s maritime regions and borders. Germond, writing about the EU’s security and the sea, identifies that in respect of the maritime dimension and security, this includes military and civilian aspects, intergovernmental and community components, and also institutional and geopolitical elements. The EU security policy therefore needs to be developed in order to obtain security within the EU’s boundaries while also projecting that security beyond those boundaries.1 Germond, when examining the EU’s frontiers and maritime margins, notes that in responding to perceived risks and threats, the mainly maritime frontier zone between the EU and the rest of the world needs to be secured.2 This chapter will focus on the area of security in the EU maritime dimension and consider a range of potential security threats facing both shipping and ports in practice.

1

Germond, B., “The EU’s security and the sea: defining a maritime security strategy” European Security (2011), 20 (4), 563-584, 564. 2 Germond, B., “From Frontier to Boundary and Back Again: The European Union’s Maritime Margins” European Foreign Affairs Review (2010), Vol. 15, pp 39-55, 45-46.

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Setting this chapter in context, shipping is of major importance to the European Union, with its merchant fleet making up over a third (37 per cent) of the world fleet.3 There are over 1,500 seaports in the EU employing around 350,000 people. Those ports take an estimated 600,000 ship calls per year by merchant vessels which range from small cargo ships to very large container ships, oil tankers and natural gas carriers. Those vessels handle more than 3.5 billion tonnes of cargo annually, and generate some €20 billion per annum, thus playing a significant role in the economy of the EU. Shipping also plays a significant role in the transport of passengers around Europe, and for third-country nationals wishing to enter the EU. In 2009 there were around 404 million passenger movements through its ports, travelling on passenger ferries, cruise ships and other vessels. Issues such as external border security, illegal immigration, migration, and cooperation with third countries are therefore very relevant in this aspect of shipping and port activities in respect of European Commission policy priorities, for example.4 In terms of the geographical scale of the European Union’s maritime regions, 22 member states have coastlines along the Baltic, Black, Mediterranean and North Seas, and on the Atlantic and Arctic Oceans. These coastlines represent about 85% of the EU’s international borders. Several countries including Cyprus and mainland United Kingdom are completely surrounded by the seas and oceans. Many member states also have islands which make up part of their territories, for example the Balearic and Canary Islands which are part of Spanish territory. Estimates of the length of the EU’s coastline range between 70,000 km5 and 89,000 km,6 making the EU’s sea border around three times longer than that of Africa, despite the land area of the EU being only a third that of Africa. However, if member states overseas territories are included, for example French Guyana, the coastline for the 22 member states is estimated to be 136,106 km long (see Map 1).

3

Total controlled fleet by world region, 2009 (dwt million): World = 1,144.4 of which EU-27 = 417.9. Source: European Commission (2011). EU transport in figures: Statistical Pocketbook 2011. 4 European Commission, Communication from the Commission on Policy priorities in the fight against illegal immigration of third-country nationals. COM(2006) 402 final, Brussels, 19 July 2006, 2. Elements of the EU Approach, 3. 5 Germond B., “The EU’s security and the sea,” 564. 6 European Commission Research Information Centre, 89,000 km of European Coastlines, 2009, available online.

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Map 1 – Coastal Regions of EU Sea basins

Source: Eurostat Statistics in focus, figure 17

Maritime Security Threats In the wake of the attacks of 11 September 2001 (9/11) on the United States of America, security is an issue about which there has been growing concern. While much of the focus on security post-9/11, particularly in relation to terrorism, has been directed towards airports and air travel, 7

Eurostat, Statistics in focus 47/2009. Nearly half of the population of EU countries with a sea border is located in coastal region, (2009) European Communities, 2.

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there is also the potential for security threats to come from the sea (see Germond8) and also through seaports. In the latter case McNicholas, for example, notes that “the seaports of the world are increasingly under threat ... [from] drug smugglers, stowaways, cargo thieves, pirates and terrorists,”9 highlighting the idea that security is an issue that goes beyond terrorism. Similarly, while defining maritime security as “the protection of ... individuals and economic affairs from illicit acts against ships, human beings, and goods and sea and in port,”10 There is also an important link between maritime security and economic competitiveness. Carafano and Kochems acknowledge that link when they state that “[t]he challenges for maritime security are complex and growing. Addressing vulnerabilities, ensuring access to the maritime domain, and maintaining economic competitiveness while protecting US interests from sea-based attacks will be no easy task”.11

Panebianco, making specific reference to the Mediterranean region, highlights the issues of organised crime, terrorist attacks, illegal migration and the proliferation of weapons of mass destruction as being some of the threats which rank highly on the EU’s security agenda. Panebianco further notes that those issues are identified as the most relevant security threats to European societies in the Report on the Implementation of the European Security Strategy etc. adopted in December 2008.12 The European Commission, in its Green Paper on a future maritime policy for Europe, also acknowledges a number of challenges affecting

8

Germond, “The EU’s security and the sea,” 564. McNicholas, M., Maritime Security: An Introduction. (2008) ButterworthHeinemann Homeland Security Series, 263. 10 Panebianco, S., Dealing with Maritime Security in the Mediterranean Basin: The EU as a Multilateral Actor. Documenti IAI 10/16 of August 2010. Instituto Affari Internazionali, Rome, 4. 11 Carafano, J. J. and Kochems, A., Making the Sea Safer: A National Agenda for Maritime Security and Counterterrorism. Heritage Special Report SR-03 of 17 February 2005, (2005) The Heritage Foundation, Washington DC, 2. 12 Panebianco, Dealing with Maritime Security in the Mediterranean Basin, 5. The Executive Summary on the Report on The Implementation of the European Security Strategy: Providing Security in a Changing World is available online at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/reports/104 630.pdf. 9

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security in its maritime area.13 These include illegal immigration by sea; smuggling and drug trafficking; terrorism (which can further broken down into the use of ships as “bombs” and narcoterrorism - terrorism associated with the trade in illicit drugs,14 and piracy and armed robbery at sea. To these issues can also be added weapons trafficking and people trafficking, the latter being where adults and children are transported between states for the purposes of exploitation. The various maritime issues and security threats are discussed in more detail in this chapter, with the exception of piracy and armed robbery. In that case the European Commission suggest they are not a direct threat to the EU. It indicates that the threat is more related to shipping companies that operate out of or sail under the flags of European member states and which sail through the Malacca Strait,15 and also off the coastlines of certain African countries around the Horn of Africa and near certain African coasts.16 Looking first at the influx of people entering the EU, there are some issues surrounding the words used to describe them. They may be termed illegal immigrants, illegal migrants or irregular migrants, and those individuals may enter the EU voluntarily or as a result of people trafficking. It is therefore useful at this point to discuss briefly what these terms mean. The Oxford English Dictionary online17 defines illegal as “Not legal or lawful; contrary to, or forbidden by, law” and immigrant as being “One who or that which immigrates; a person who migrates into a country as a settler.” Illegal immigration can therefore be considered to be the unlawful migration of a person into a country, contrary to the law of that country. However, illegal immigration is considered to be a pejorative or contested term. When talking about the movement of peoples the 13 European Commission (2006b), Commission of the European Community Green Paper, Towards a future Maritime Policy for the Union: A European Vision for the oceans and seas. COM(2006) 275 final, Volume II – ANNEX – Background Paper No. 6. Brussels, 7 June 2006. 29-31, paragraphs 4.1.1 to 4.1.4. 14 For a definition of narcoterrorism see Oxford Dictionaries online (undated), available at http://oxforddictionaries.com/definition/english/narcoterrorism?q=narcoterrorism 15 The Malacca Strait is a narrow stretch of water between the Malay Peninsula and the island of Sumatra in Indonesia. Around half the oil shipped in the world travels through this sea strait. 16 European Commission Towards a future Maritime Policy for the Union, 30. 17 Oxford English Dictionary online. Available online at: http://www.oed.com/.

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United Nations, for example, use the term “irregular migration,”18 which the Migration Observatory online defines as “the cross-border flow of people who enter a country without that country’s legal permission to do so”.19 People trafficking (or facilitated illegal immigration) is not included in the European Commission Background Paper.20 However, the United Nations defines human trafficking as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs” (Article 3).21

The European Commission identified that illegal immigration by sea is a particular problem in the Mediterranean and the southern part of the Atlantic external sea border.22 23 Illegal immigrants or irregular migrants often pay very large sums of money to smugglers for transport and false 18 United Nations Office on Drugs and Crime, Drug Trafficking as a Security Threat in West Africa, November 2008, United Nations, New York, 1. 19 Migration Observatory online (undated). Irregular Migration in the UK: Definitions, Pathways and Scale. The Migration Observatory at the University of Oxford. For a definition of irregular migration and irregular migrants, see Irregular Migration in the UK: Definitions, Pathways and Scale, by The Migration Observatory at the University of Oxford. Briefing online, available at: http://migrationobservatory.ox.ac.uk/briefings/irregular-migration-uk-definitionspathways-and-scale. 20 European Commission Towards a future Maritime Policy for the Union, 29-31, Issues affecting security in the maritime area. 21 United Nations, United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention Against Transnational Organized Crime. (2000) United Nations. 2, Article 3 – Use of terms. 22 European Commission Towards a future Maritime Policy for the Union, 29, 4.1.1 Illegal immigration by sea. 23 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Examining the creation of a European Border Surveillance System. COM(2008) 68 final, Brussels, 13 February 2008, 4, 2.2.3 Enhancing search and rescue capacity.

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paperwork, and often travel to the EU in small, badly maintained, and overloaded ships or boats.24 Pugh, for example, identifies that there have been many cases where those boats have sunk, with resulting loss of life.25 Those vessels can also be very difficult to detect which often reduces the possibility of survivors being rescued, particularly since they are often headed to more remote areas such as the smaller Greek Aegean islands, rather than to the larger seaports where the likelihood of detection is higher.26 Prior to 2005 the United Nations Office on Drugs and Crime (hereinafter UNODC), in a report looking at the role of organised crime in the smuggling of migrants from West Africa to the European Union, indicated that the majority of irregular migrants entered the EU by crossing the Mediterranean in small boats at the Straits of Gibraltar.27 However, increased measures by the Spanish government to prevent entry (for example the Straits of Gibraltar Surveillance System – SIVE28) resulted in West African irregular migrants first travelling towards Egypt and then “crossing by sea to Greece, or travelling towards Turkey with a view to entering EU by land from the south-east.”29 To give an idea of the scale of irregular migration from Africa to EU countries, the UNDOC report refers to a study which suggests that more than 100,000 migrants cross the Mediterranean annually, tens of thousands 24

Spiegel Online Hundreds Feared Dead After Immigrant Boats Sink Near Libya. 31 March 2009. Spiegel Online reported that “Hundreds of African migrants are believed missing after the boats they were using to try and reach Europe capsized on Sunday and Monday. At least 21 bodies have already been recovered [and] 23 survivors ... One of the boats was believed to have been carrying around 250 passengers and another had as many as 365”. Article available online at: http://www.spiegel.de/international/world/0,1518,616513,00.html. 25 Pugh, M., “Drowning not Waving: Boat People and Humanitarianism at Sea”, Journal of Refugee Studies (2004), Vol. 17(1), pp 50-69, 56, provides an estimate of the number of shipwrecks and deaths in Spanish waters during the period 1996 to 1999 (Table 1), also noting that it is estimated that between 600 and 3,000 individuals drowned in the 1990s on the Morocco-Spain crossing route. 26 Baldwin-Edwards, M., The Changing Mosaic of Mediterranean Migrations, Online feature story for Migration Information Source (June 2004), 3. 27 United Nations Office on Drugs and Crime, The role of organized crime in the smuggling of migrants from West Africa to the European Union. (2011) United Nations, New York, 21. 28 Suárez de Vivero, J.L. and Rodríguez Mateos, J.C., “New factors in ocean governance. From economic to security-based boundaries”, Marine Policy (2003) 28: 185-188, 186. 29 United Nations Office on Drugs and Crime, The role of organized crime, 21.

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of whom entering the EU by sea.30 Concern has been expressed about how EU member states have dealt with these migrants. Moreno-Lax, for example, notes that while there are obligations under both international and EU law to rescue persons in distress at sea, there have been incidents where people have not been rescued, there have been arguments over responsibility and some boats have also been diverted to third countries including Libya, rather than permitting them to enter the EU.31 While mass migration (illegal or irregular) is an issue facing southern EU states, there are also many cases of illegal immigrants attempting to enter northern EU states such as the UK, through ports such as Dover. In this case, they may hide in lorries, spending the night in Calais before crossing the English Channel on ro-ro32 ferries. Port security and border control are significant issues at both ends of the voyage to stop people from getting onto lorries in France, or to catch those that have successfully done so when they arrive in the UK. People (or human) trafficking differs from illegal immigration in that money is made not just from the transportation of individuals, but also by professional criminals in organised gangs who exploit those individuals once they have arrived in the EU.33 In order for the state to determine whether an offence of trafficking is taking place, it is necessary to consider the definition of human trafficking referred to previously,34 and for the state to determine whether what is being done, how it is being done and why it is being done (the Act, the Means and the Purpose) meet the

30

Ibid 11-12. The study referred to indicates that around 830,000 migrants travel to the EU from Africa each year, with between 100,000 and 120,000 travelling by sea. 31 Moreno-Lax, V., “Seeking asylum in the Mediterranean: against a fragmentary reading of EU Member States obligations accruing at sea”, International Journal of Refugee Law, (2011) 1. 32 Roll-on/roll-off (also known as ro-ro, RO-RO) ferries are vessels designed to carry wheeled vehicles such as cars, lorries or train cars, that can be driven on and off the vessel at embarkation and debarkation ports. 33 United Nations Office on Drugs and Crime, The role of organized crime 17. Citing a report of 2009, UNDOC estimated that the value of women being trafficked from West Africa to the EU for sex work was some $228 million per year. 34 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention Against Transnational Organized Crime, 2000, 2, Article 3 – Use of terms.

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standards defined in relevant domestic legislation.35 The fees paid to organised criminal gangs tend to be high and the UNODC report indicates that women will enter a contract with a trafficker and work as prostitutes to pay off their debts,36 further noting that the trafficking of women from West Africa is one area where professional criminal networks are operating, to smuggle women into the EU to work in the sex trade.37 The issue of people trafficking is not restricted to individuals entering the EU from western and northern Africa. It has also been an issue in the Baltic region and in the United Kingdom, with individuals from both outside and from within the EU being trafficked between countries. Europol, for example, indicates that the UK and Nordic countries (as part of a North West criminal hub) are particularly targeted by criminal groups.38 The Europol report identifies Chinese, Vietnamese, Indian and Pakistani groups as being some of the most capable of facilitating illegal immigration and exploiting those migrants for illicit labour, highlighting that there is a “point of contact between illegal immigration and [human] trafficking”.39 A further area of concern highlighted by the European Commission green paper is that of smuggling (including the smuggling of tobacco and alcohol) and drug trafficking.40 The growth of container shipping has, according to Griffiths and Jenks, been exploited by drug trafficking groups whose own ships have been the target of US and EU law enforcement agencies.41 Containerised sea transport is, they indicate, a simple, convenient 35 United Nations Office on Drugs and Crime online (undated), Human Trafficking: What is Human Trafficking. 36 United Nations Office on Drugs and Crime, The role of organized crime 13. The report gives an example where “Some Nigerian women trafficked to Spain are ‘bought’ by Nigerian madams based in that country, who will place a call to a trafficker based in Morocco who will then go to Nigeria to recruit them. A madam will pay between €2,000 and €3,000 per woman or girl.” 37 United Nations Office on Drugs and Crime, The role of organized crime, 17. 38 EUROPOL, EU Organised Crime Threat Assessment: OCTA 2011 – Key Trends and Judgements. Report O2 – analysis and Knowledge, File no. 2530-271. (April 2011) EUROPOL, The Hague. 12. 39 Ibid. 12. 40 European Commission Towards a future Maritime Policy for the Union, 29, 4.1.2 Smuggling and drug trafficking. 41 Griffiths, H. and Jenks, M., Maritime Transport and Destabilizing Commodity Flows. SIPRI Policy Paper 32 of January 2012. Stockholm International Peace Research Institute, 37, Containerization and narcotics trafficking.

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and cost effective mode of transport for drug smugglers.42 The European Commission note that the EU is “currently and seriously affected by the illicit traffic in drugs arriving by ship [and also] by the smuggling of cigarettes, alcohol etc.”43 Looking at the example of South American cocaine smuggling, a report by EMCDDA-Europol indicates that there were 92,000 seizures of cocaine reported in 2007, resulting in around 77 tonnes of cocaine being intercepted.44 Three main trade routes are used to ship cocaine into Europe which the UNODC identifies as being: the Northern route from the Caribbean via the Azores to Portugal and Spain; the Central route from South America via Cape Verde, Madeira and the Canary Islands to Europe; and the African route from South America to Western Africa and from there to Spain and Portugal.45 In addition to the routes outlined by UNODC, McDonald and Townsend indicate that Ireland is a major destination for drug smugglers, and as a distribution centre for cocaine destined for the UK market.46 They note that hundreds of millions of Euros worth of cocaine were recovered off the west Cork coast in July 2007, making it one of the largest drug seizures in Irish history. In the case of other drugs such as heroin, cannabis and synthetic drug precursors, EUROPOL indicates that planned expansions of container ports in Tangier (Morocco) and Port Said (Egypt) will provide further opportunities for drugs to be transported by sea freight.47 In the case of the cigarette and tobacco smuggling, large amounts originate from China. The European Anti-Fraud Office (OLAF) indicates that around one billion cigarettes had been seized in the EU over the previous 18 months (prior to December 2011), as a result of information provided by the Chinese Anti-Smuggling Bureau. The cost to EU taxpayers of the illicit tobacco trade was estimated to be €10 billion per

42

Ibid. 37. European Commission Towards a future Maritime Policy for the Union, 29. 44 EMCDDA-Europol, Cocaine: A European Union perspective in the global context. EMCDDA-Europol Joint Publications, EN-No 3/2010, (2010), 7. 45 United Nations Office on Drugs and Crime, Drug Trafficking as a Security Threat in West Africa. (2008), United Nations, 11. 46 McDonald, H. and Townsend, M., Ireland’s cocaine coast: A recent bust in the “Irish box” shows drug smugglers are ruling over the Cork shore, The Observer newspaper, 8 July 2007, available on line. 47 Europol OCTA 2011, 8. 43

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annum.48 While much of the smuggling is identified as taking place along the EU’s eastern land borders, EUROPOL indicates that many criminal groups ship cigarettes through free trade zones in Dubai and Jebel Ali in the United Arab Emirates, together with Port Said in Egypt, and that ships are then used to transport them to EU ports.49 The smuggling of alcohol also costs the EU economy more than €1 billion per year. In the summary to a report on “Alcohol in Europe,” Anderson and Baumburg note that alcohol contributed some €9 billion to the economy of Europe, but that around €1.5 billion was lost through alcohol fraud in 1996. They further note that alcohol excise duties in 2001 were €25 billion for the EU 15, and that figure did not include any sales or other taxes paid within the supply chain.50 Alcohol smuggling is also a problem for the UK, with uk-trucking.net indicating that £215 million was lost to the UK public purse through non-payment of excise duties on alcohol, although that figure is dwarfed by the £2.5 billion lost to the public purse in the case of tobacco. It is highlight likely that at least some of the alcohol and tobacco entering the UK will have been transported by sea, and also highly likely that smuggling will take place in other EU states. Customs inspections in ports will, therefore, play a significant role in trying to minimise the impacts of smuggling and consequent loss of revenue to member states. The European Commission green paper highlights terrorism as an activity that can be carried out by sea and that will be detrimental to security and other essential interests.51 In the wake of the attacks on the US in September 2001, security measures were tightened in airports across the EU, to try and prevent similar attacks taking place. While some EU states face an internal threat from Islamic groups52 or from nationalist 48

European Anti-Fraud Office, OLAF and Chinese authorities join forces to fight cigarette smuggling from Asia. Press report OLAF/11/18 Beijing of 16 December 2011. 49 Europol OCTA 2011, 14. 50 Anderson, P., and Baumburg, B., Alcohol in Europe: A Public Health Perspective. Report for the European Commission. (July 2006), Institute of Alcohol Studies, London, UK, 2. 51 European Commission Towards a future Maritime Policy for the Union, 29, The challenges, and 30, 4.1.4 Terrorism. 52 The scale of the internal threat ranges from protests in countries such as Denmark over the publishing of controversial cartoons of the Prophet Mohammed in 2005, with a subsequent plot to murder the cartoonist and also a failed bomb plot in Germany (see for example

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groups,53 there is also an external threat posed by Islamic groups in North and West Africa. As with the other security threats and issues discussed in this chapter, including the movement of individuals or groups of migrants, which will require the involvement of border control and general law enforcement agencies, and the smuggling of alcohol, tobacco and drugs, which will require the involvement of customs and general law enforcement agencies, for example, there is also scope for terrorists to enter the EU through one of its many seaports, or along the thousands of kilometres of unpatrolled coastline. Specific areas where ships and seaports can be used to facilitate terrorist activities are considered below. In the context of seaports, this will be an issue of concern to national maritime security agencies, and also to defence agencies tasked with protecting the interests of the EU outside its borders. In a report on maritime terrorism, the Institute for the Analysis of Global Security notes that: “Maritime terrorism has emerged as a formidable threat in the world, targeting both civilian and naval vessels … compounded by the use of maritime vessels and shipping lanes by criminals who are often in league with terrorists. With the possibility that weapons of mass destruction could be used as a terrorist weapon, efforts to pre-empt such attacks … has become a top priority.”54

One area of particular concern in recent years has been the transportation by sea of dangerous substances such as explosives or weapons of mass destruction in cargo containers which are then offloaded in ports and transported by road and rail all across the EU. However, a further threat that has caused concern since the 9/11 attacks in the US is the potential use of ships as “bombs”. Examples of vessels that have been considered as having the potential to cause significant damage to ports and surrounding hinterlands include: oil, liquid natural gas (LNG) and liquid http://www.spiegel.de/international/europe/muhammad-caricature-falloutdenmark-busts-alleged-plot-to-kill-cartoonists-a-534704.html), and the 7 July 2005 suicide bombings in London (see for example http://news.bbc.co.uk/2/hi/in_depth/uk/2005/london_explosions/default.stm). 53 For more information on terrorist organisations operating in EU countries, including both Islamic and nationalist groups, see for example the US Department of State report on Patterns of Global Terrorism 2003, available online at: http://www.state.gov/j/ct/rls/crt/2003/c12153.htm (select Europe Overview). 54 Institute for the Analysis of Global Security, Maritime Terrorism: A new challenge for NATO. IAGS Energy Security dated 24 January 2005.

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petroleum gas (LPG) tankers; chemical tankers; and nuclear waste transport vessels (see for example McNicholas, and Carafano and Kochems55). Richardson56 considers the potential threat from different types of vessels including oil tankers, LPG and LNG vessels. In the case of the former he examines an attack on an oil tanker by a small vessel carrying explosives. Although that attack severely damaged the tanker and created a fire and a large oil slick, there was no explosion. Richardson indicates that the structural design and double-hull nature of these vessels means that it is highly unlikely that they could be used as bombs, although there is a potential terrorist threat at the stage when they are being unloaded in port.57 However, Richardson does provide commentary on the case of a vessel carrying ammonium nitrate, a common agricultural fertilizer.58 The possible threat from terrorist attacks using vessels has, in the US, led to direct action being taken to protect the port of Boston. This threat is identified in a report by Dettleff who, in discussing shipping container security at Boston’s Conley Terminal, notes that the potential national security risks from container shipping had been raised for nearly a decade at the time of the report. In particular, issues of the transport of weapons of mass destruction and dirty bombs in containers were deemed particularly troubling.59 Also in respect of Boston Harbour, a commentary by Testa 55

McNicholas, Maritime Security: An Introduction, 248, Carafano, J. J. and Kochems, A., Making the Sea Safer: A National Agenda for Maritime Security and Counterterrorism. Heritage Special Report SR-03 of 17 February 2005, (2005) The Heritage Foundation, Washington DC, 13. 56 Richardson, M., A Time Bomb for Global Trade: Maritime-related Terrorism in an Age of Weapons of Mass Destruction. (2004) Institute of South East Asian Studies, Singapore, 41-48. 57 Ibid. 41-45. 58 Ibid. 45-46. Here Richardson discusses the case of the Baltic Sky, a ship which was boarded by Greek commandos in June 2003, having spent six weeks sailing around the Mediterranean, rather than travelling from Tunisia to Sudan via the Suez Canal. The vessel was found to be carrying 680 metric tonnes of ammoniumnitrate based explosives and 8,000 detonators, which was said to be the largest quantity of explosives ever seized. The captain and crew of the vessel were subsequently charged with illegal possession and transport of explosives. For further details of the incident itself, see for example http://news.bbc.co.uk/1/hi/world/europe/3015546.stm. 59 Dettleff, J.C., Shipping Container Security at Boston’s Conley Terminal: A Policy Analysis Exercise. (2 April 2002), John F Kennedy School of Government, Harvard University, i.

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discusses the visits of LNG carriers, noting that in response to the 9/11 attacks, the US Coast Guard considered this to be a significant threat and consequently provided protection to such vessels being escorted by marine patrols and police divers and the closure of one of the major bridges along the route of the vessel.60 McNicholas also identifies that there has been growing concern about the possibility of terrorists using ships to deliver weapons of mass destruction to target key facilities and areas in the US,61 while Greenberg et al note that a scenario identified as having the greatest risk is the use of container ships which carry radiological or nuclear materials being detonated at a port.62 There is potential for such a terrorist atrocity to occur, with Roach highlighting the suggestion that al Qaeda owned or controlled 15 cargo ships that could be used as floating bombs, to smuggle explosives or chemical, biological or radioactive dirty bombs, or to transport al Qaeda members to third countries.63 While Roach identifies this as a threat to the US, it could equally pose a threat to EU seaports and can be considered an issue of concern for both maritime security agencies and law enforcement agencies in EU states. Narcoterrorism64 is another area which poses both an economic and physical threat to the security of the EU. Originally considered to be a situation where drug producers used violence against police or government employees to gain concessions or protection by and from the very bodies that should be trying to halt their activities, more recently the term has also 60

Testa, K., Are natural gas ships “boat bombs” for terror? Article for Associated Press dated 16 February 2004. Available online. Testa cites an unreferenced report which suggests that an attack by a missile or boat bomb on a LNG tanker could result in a catastrophic fire which would incinerate people and buildings up to half a mile away from the epicentre of such an attack. 61 McNicholas, Maritime Security: An Introduction, 248. 62 Greenberg, M.D., Chalk, P., Willis, H., Khilko, I. and Ortiz, D.S., Maritime Terrorism: Risk and Liability. (2006) RAND Centre for Terrorism Risk Management Policy, Rand Corporation, California, xxi. 63 Roach, J.A., “Initiatives to enhance maritime security at sea”. Marine Policy, (2004) 28: 41-66, 41. 64 Websters online dictionary, in an extended definition of the word Narcoterrorism, notes that it is a termed coined by the former President of Peru in 1983 to describe terrorist-type attacks against anti-narcotics police. However, the term has become increasingly used to mean terrorist organisations which use drug trafficking to gain funding and new recruits. See: http://www.websters-onlinedictionary.org/definitions/Narcoterrorism.

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been used to refer to a situation where terrorist groups use money from drug trafficking to fund a political agenda. As an example of this, Europe Against Drugs outlines how the sale of drugs supports terrorist activities by the Somali terrorist group, Al-Shabaab, which has been involved in smuggling khat65 into Europe to finance its operations in Somalia.66 This is, therefore, an issue of concern to both customs agencies and to law enforcement agencies in EU states. Although not listed in the European Commission green paper, weapons trafficking is another area where concern has been raised by McLean et al, for example, who report on EU action to prevent the trafficking of illicit small arms and light weapons (SALW). The report notes that this trade undermines both the internal and external security of the EU.67 It indicates that there is a small steady market for weapons which are sold to criminal groups, with similar routes of entry and cooperation between groups smuggling other items into Europe.68 In addition to this trade in SALW and conventional explosives, Europol indicates that organised crime groups transport weapons such as anti-tank rocket launchers and antiaircraft equipment, together with heavy firearms.69 Specific areas where organised crime groups operate are highlighted in this report and centre around Albania, the former Yugoslavian states, and also in Italy.

65

Khat is a leaf which has stimulant properties which is controlled by law in a number of countries including Sweden and Norway. While the plant is not controlled under the UK Misuse of Drugs Act, some of its active components are Class C drugs. For further information see: http://www.drugscope.org.uk/resources/drugsearch/drugsearchpages/khat. 66 Europe Against Drugs (2010), online article The narco-terrorism connection. That report notes that while it has been recognised that the Taliban in Afghanistan and FARC in Columbia have used the sales of illicit drugs to fund their activities, what is less well known is that groups such as Hezbollah may be producing heroin and cocaine in the Bekaa valley, with raw materials coming from Afghanistan and Colombia. The report notes that Hezbollah is believed to be involved in more than 100 cases according to INTERPOL. 67 McLean, A., Mariani, B. and Vatanka, A., Enhancing EU Action to Prevent Illicit Small Arms Trafficking. Background Paper Prepared for the Project European Action on Small Arms and Light Weapons and Explosive Remnants of War. (Undated) United Nations Institute for Disarmament Research, at Summary. 68 Ibid. 1. 69 Europol OCTA 2011, 17.

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There is limited information available on volumes of different types of weapons being trafficked into or out of EU ports.70 It may only be when a vessel is searched in port for a completely separate reason such as seaworthiness, or to check that a vessel has adequate safety equipment on board, that weapons are discovered.71 In most cases, the ship’s captain and crew are unaware that they are transporting such weapons. As has been discussed in the case of drug trafficking, the growth in container shipping increases the likelihood of both SALW, and heavy weapons, being transported between countries, and by both criminal and terrorist groups. This section has considered the potential threats to the security of the EU’s maritime dimension, sea borders, and economy, in line with the European Commission green paper on a future maritime policy for the EU.72 It has also expanded on some of those threat areas to include additional potential threats. It has identified some of the key routes into the EU in areas such as illegal/irregular migration and people trafficking, for the smuggling of drugs and also alcohol and tobacco, and in these cases highlights how the same routes may be used for more than one such activity, or the same criminal or terrorist organisations may be undertaking more than one activity at any given time. The next section of this chapter will consider some of the measures taken by the EU, either individually or in cooperation with other countries’ agencies or governments, or at an international level through agencies of the United Nations, for example, to try and counteract or minimise the threat posed by those issues.

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The Institute for the Analysis of Global Security (2005) provides the example of an Italian police search of a container on a Turkish vessel destined for the port of New York. That inspection, in April 2004, found more than 8,000 assault rifles, 11 sub-machine guns and magazines worth more than $7 million. Report available online at: http://www.iags.org/n0124051.htm 71 Ship inspections are conducted under the aegis of Memoranda of Understanding on Port State Control. Vessels are inspected against a range of international conventions. For further information see, for example, Carpenter, A, “International Protection of the Marine Environment”, chapter X in Nemeth AD (ed.); in The Marine Environment: Ecology, Management and Conservation, (2011), Nova Science Publishers, Inc., USA, 51-86. 72 European Commission Towards a future Maritime Policy for the Union, 29-31, paragraphs 4.1.1 to 4.1.4.

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EU measures and cooperative activities relating to Maritime Security In respect of the range of security issues facing EU maritime areas and seaports, the European Commission DG Maritime Affairs and Fisheries (hereinafter DG MAF), in a report on a Common Information Sharing Environment (CISE) for maritime surveillance, identifies the main user communities involved in maritime surveillance – and therefore security – as being general law enforcement, customs, marine environment, maritime safety and security, defence, fisheries control and border control for each member state.73 All of the bodies with responsibility in those areas (apart from fisheries control) will have some responsibility for combating the criminal and terrorist activities identified at Section 2 of this chapter, and/or providing security at sea or in EU seaports. For example, customs agencies will have responsibility for monitoring compliance with relevant regulations on the import, export and movement of goods through ports, and to provide support for any law enforcement operations to combat narcotics, cigarettes and alcohol trafficking. Border control agencies will have a responsibility to monitor illegal immigration and people trafficking, and to provide support for operations by law enforcement agencies to deport illegal immigrants, or to arrest and prosecute people traffickers. A number of legislative and regulatory measures have been introduced by the EU in recent years to protect its maritime security. In addition, it has reached agreement to cooperate with agencies such as the IMO, the US Coast Guard Service and NATO.74 Some examples of measures include a number of European Council Decisions relating to the UN Convention against Transnational Crime and in respect of the trafficking

73

European Commission DG Maritime Affairs and Fisheries, Integrating Maritime Surveillance – Communication from the Commission to the Council and the European Parliament on a Draft Roadmap towards establishing the Common Information Sharing Environment for the surveillance of the EU maritime domain. COM (2010) 584 final, 6. 74 See NATO Parliamentary Assembly Document 207 CDS 10 E bis – Maritime Security: NATO and EU Roles and Co-ordination for details of co-operative activities between the two parties. Available online at: http://www.natopa.int/default.asp?SHORTCUT=2087.

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of women and children,75 with specific reference to the smuggling of migrants by sea. In the area of ship and port security two measures, Regulation (EC) No 725/2004 on enhancing ship and port facility security76 and Directive 2005/65/EC on enhancing port security,77 were introduced in order to bring both ships and ports into line with the requirements of the International Ship and Port Facility Security Code (ISPS Code)78 and Chapter XI-2 of the International Convention on Safety of Life at Sea (SOLAS).79 80 Two measures were also introduced in respect or border security and an EU border security agency. The first of these was a proposal for a Regulation to establish a European Border Surveillance System (EUROSUR),81 that system to be used to help manage the Schengen external border and to strengthen information exchange and cooperation between member state border control agencies. The European Commission, in a communication examining the creation of EUROSUR, also makes reference to the need to both reduce cross-border crime (terrorism, human trafficking, drug smuggling and arms trafficking) and to 75

Council Decisions 2006/616/EC, 2006/617/EC of 24 July 2006 on the conclusion of the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organised Crime, and also Council Decisions 2006/618/EC and 2006/619 EC of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (2000). Respectively OJL 262/24-33, OJL 262/3443, OJL 262/44-50 and OJL 262/51-58, all dated 22.09.2006. 76 The ISPS Code, which came into force on 1 July 2004, aims to establish an international framework for ships and ports to cooperate against acts which threaten the maritime security. Regulation (EC) No 725/2004, OJL 129/6-91 of 29.04.2004. 77 For further information see: Official Journal of the European Communities, OJL 310/28-39 of 25.11.2005. 78 ISPS Code. Overview available at http://www.imo.org/ourwork/security/instruments/pages/ispscode.aspx. 79 SOLAS Chapter XI-2 – Special measures to enhance maritime security. In respect of ports, Regulation XI-2/6 covers requirement for port facilities including security assessments and security plans, Overview available at: http://www.imo.org/about/conventions/listofconventions/pages/internationalconvention-for-the-safety-of-life-at-sea-(solas),-1974.aspx. 80 For further discussion on ISPS Code and SOLAS Chapter XI-2 see Eski and Carpenter, chapter 4. 81 European Commission (2011), 1, 1.1 Legal Basis.

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reduce the death toll resulting from irregular migration using small boats to cross from Africa to the Canary Islands and also across the Mediterranean sea.82 The second measure was a Regulation establishing a new European Borders Agency, known as FRONTEX.83 This Agency has been developed in order to improve the integrated management of the EU’s external borders,84 which includes it sea borders and seaports.85 Since its introduction, Marin notes that a number of joint operations between FRONTEX and member state agencies have taken place along the southern maritime borders of Europe, to the south east (which included both land and sea borders and including Greece, Turkey, Bulgaria and Albania) and also around the Canary Islands.86 A number of maritime surveillance initiatives have also been developed by the EU in order to monitor marine environmental pollution, as a way of tracking vessels in distress and supporting search and rescue operations, and also as a way of tracking vessels suspected of illegal activities. The European Commission DG MAF set out an initiative to integrate maritime surveillance across states and sectors, where maritime surveillance is defined as “the effective understanding of all activities carried out at sea that could impact on the security, safety, economy, or environment of the EU and its Member States.”87 That report also identifies a number of challenges facing the EU in establishing an integrated maritime surveillance network, and these include different actors, different laws and different threats. In the case of “different actors,” these may be national or EU authorities responsible for a range of maritime activities including maritime safety and security, border control 82

European Commission, Examining the creation of a European Border Surveillance System, 3, 2.2.2 Increase internal security of the EU as a whole by contributing to the prevention of cross-border crime and at page 4, 2.2.3 Enhancing search and rescue capacity. 83 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union – FRONTEX regulation, OJ L 349 of 25.11.2004. 84 Ibid. Article 1.1. 85 Ibid. Article 1.4. 86 Marin, L., ‘Policing the EU’s External Borders: A Challenge for the Rule of Law and Fundamental Rights in the Area of Freedom, Security and Justice? An Analysis of Frontex Joint Operations at the Southern Maritime Border’. JCER (2011), 7 (4): 468-487, at Frontex operations at sea. 87 European Commission DG Maritime Affairs and Fisheries, Integrating Maritime Surveillance 7, What is maritime surveillance?

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and others which collect information for their own purposes. “Different laws” in this context is where surveillance systems have been developed to meet the requirements of sector specific legislation at national, EU or international levels, while “different threats” identifies the need for transnational or trans-sectoral actions due to the nature of threats which occur on the high seas.88 As a result of the challenges identified by DG MAF, it was considered that a Common Information Sharing Environment (CISE) for maritime surveillance would improve information exchange between relevant maritime authorities for a number of functions which align with the seven user communities outlined by DG MAF and discussed previously.89 The CISE would need to facilitate both interoperability between different systems and also the exchange of information between the relevant agencies and authorities at all levels. There are a number of systems in place for surveillance of vessels at sea. For example, in order to identify vessels intentionally dumping oily waste at sea (a criminal activity under international legislation90), surveillance by both aircraft and satellites is conducted under a number of regional agreements,91 and also by the EU under the CleanSeaNet92 service. Surveillance systems are also in place, covering EU waters, to track vessels at sea and identify those vessels which need to be inspected in seaports. The first of these is SafeSeaNet,93 a system which automatically gathers information from vessels in order to track the position of all ships in EU waters and in ports; track vessels by name or by IMO number; identify the routes taken by ships while in EU 88

Ibid. 7, 3. Challenges for better interoperability. Ibid. 6, Figure 1. 90 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) to which all EU member states are signatories. For further information see: http://www.imo.org/About/Conventions/ListOfConventions/Pages/InternationalConvention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx. 91 For example, 1983 Agreement for Cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Bonn Agreement – http://www.bonnagreement.org/eng/html/welcome.html ) and the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention - http://www.helcom.fi/stc/files/Convention/Conv1108.pdf ). 92 CleanSeaNet is a satellite-based oil spill and vessel detection system covering all EU maritime areas and is administered by the European Maritime Safety Agency. This system related to Directive 2005/35/EC on ship source pollution and on the introduction of penalties, including criminal penalties, for pollution offences. For further information see: http://emsa.europa.eu/operations/cleanseanet.html. 93 For more information see: http://91.231.216.7/operations/safeseanet.html. 89

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waters; monitor specific vessel types; and provide information to a range of bodies including maritime and port authorities, search and rescue bodies, coastguards etc. The second system is the EU LRIT,94 a global system established under the International Maritime Organization’s Safety of Life at Sea Convention,95 which is able to track EU-flagged vessels around the world, and also track vessels from third countries within 1,000 nautical miles of a participating country’s coastline. It tracks over 8,000 ships daily, both for the purpose of maritime security and for search and rescue activities. However, a report by the Centre for Strategy and Evaluation Services (CSES) identifies a number of shortcomings relating to marine security for the EU maritime regions which, in terms of satellite surveillance, include: a lack of wide-area maritime surveillance, with only partial coverage in open seas; only partial coordination and information between different coastal surveillance systems; limited interoperability between sectoral stakeholders and systems; and that surveillance systems have mainly been developed for maritime safety purposes, rather than for security.96 In light of these identified shortcomings, the CISE system may have the effect of overcoming two over-arching challenges identified by CSES, the need to ensure “effective coordination and integration of different national authorities involved in maritime (border) surveillance” at both national and EU levels, and the need to strengthen cooperation with neighbouring third countries. In addition to measures specific to the EU, cooperative measures have been undertaken with the US on the issue of terrorism, including a number of bilateral discussions since 9/11. The Delegation of the European Commission to the USA notes that, “[currently], there exists the very real risk that terrorist organisations could exploit the mechanisms of international trade to transport dangerous goods or carry out large-scale attacks,” going on to set out ongoing bilateral activities between the EU 94

For more information see: http://91.231.216.7/operations/lrit.html. International Convention for the Safety of Life at Sea 1974, as amended in 2006. For further information on this Convention see: http://www.imo.org/about/conventions/listofconventions/pages/internationalconvention-for-the-safety-of-life-at-sea-(solas),-1974.aspx. 96 Centre for Strategy and Evaluation Services (CSES), Ex-post Evaluation of PAST Activities in the field of Security and Interim Evaluation of FP7 Security Research: Maritime Security and Surveillance – Case Study. (January 2011) Centre for Strategy and Evaluation Services, UK, 5. 95

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and US to “advance security goals while ensuring the continued free movement of legitimate trade.”97 Those measures include the expansion of existing customs relations between the two countries, Archick98 noting that a customs cooperation accord was signed in April 2004 which called for the extension of the US Container Security Initiative (CSI) initiative throughout the EU. The CSI is a practical measure aimed, in part, at enhancing EU port and maritime container security, although its’ main intent was to enhance the security of the US by tracking containers to ensure they pose no risk to its ports. The original CSI began in January 2002 as a multi-national programme designed to protect containerized shipping from being exploited or disrupted by international terrorists. The accord requires cargo containers loaded on ships in foreign ports to be pre-screened against specific risk assessment criteria before they even leave port. The intention is to ensure that cargo containers destined for US ports do not contain dangerous substances or weapons of mass destruction. By August 2006, 20 EU seaports were active participants under the CSI system, in 10 EU member states.99 US Customs and Border Protection outline the four main elements of CSI as being the identification of high risk containers (those that pose a potential risk for terrorism) through the use of an automated targeting tool, the early pre-screening of containers before they are shipped, the use of technology including x-ray machines, gamma ray machines and radiation detection devices to screen those containers, and finally the use of smart/secure containers (containers fitted with electronic detection equipment which registers every time a container is opened) and which

97

Delegation of the European Commission to the USA, Securing Trade: The EU’s Approach to Port and Maritime Container Security. EU Insight, Issue 21, July 2008, (2008) Delegation of the European Commission to the United States. paragraph 3. 98 Archick, K., US-EU Cooperation Against Terrorism. Congressional Research Service Report for Congress, 18 July 2011, 14. 99 The 20 ports in 10 EU member states are: Antwerp and Zeebrugge in Belgium (which also includes Luxembourg); Le Havre and Marseille in France; Bremen/Bremerhaven and Hamburg in Germany; Piraeus in Greece; La Spezia, Genoa, Naples, Gioia Tauro and Livorno in Italy; Lisbon in Portugal; Algeciras in Spain; Gothenburg in Sweden; Rotterdam in The Netherlands; and Felixstowe, Liverpool, Thamesport, Tilbury and Southampton in the UK. See US Customs and Border Protection, Container Security Initiative: 2006-2011 Strategic Plan. CBP Publication No. 0000-0703 of August 2006. US Customs and Border Protection, Washington DC, CSI Operational Ports map and table for Europe.

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can be identified as having been tampered with before arrival in a US port.100 The Delegation of the European Commission to the USA notes that by 2012 all shipping containers destined for US ports must be scanned for nuclear weapons and radiation, although the same does not apply to containers leaving the US. It also notes that a similar 100% scanning approach is not advocated by the EU because of costs to ports and the fact that it is likely to lengthen shipping times.101 However, despite those issues, it is likely that some form of container scanning will occur in EU ports as a result of the mandatory scanning mentioned above, particularly if ports wish to trade with the US. Technological developments relating to smart/secure containers, and economies of scale in their production over time, may also result in a CSI-type system being used more widely in the future.

Conclusions As this chapter illustrates, there are a number of security threats facing the EU marine areas and seaports. While piracy and armed robbery is a geographically distant problem, the issues of illegal immigration/irregular migration, people trafficking and drug smuggling are ones with a major impact across EU member states, while activities such as tobacco and alcohol smuggling can have a significant economic impact, particularly in terms of lost revenue for member states. Southern European seaports and coastlines face threats from both illegal immigration and people trafficking from West and North Africa, for example, while drugs from South America and from countries such as Lebanon are being brought into the EU using similar entry routes in those same regions. While the levels of the movement of groups and individuals into the EU are not as high as in the Mediterranean region, similar problems also exist in northern European member states. However, in respect of drugs from South America, both southern Ireland and the UK are identified as key destinations. The threat of terrorist activities is also one of concern to the EU and its member states. While major terrorist incidents have not taken place on 100

Ibid. 9, Benefits to the Industry and Trade Community. Delegation of the European Commission to the USA, Securing Trade, at section 100 Percent Scanning, paragraphs 1 and 3.

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vessels or in ports, the threat is considered to be real and there is potential to cause damage to infrastructure and significant loss of life if such an incident occurred in a major EU seaport. There is also potential to cause severe disruption to EU trade, with a consequent major impact on the economy. Initiatives at EU and international levels have been taken to try and minimise this risk, with vessels and ports being required to undertake much more stringent risk assessment activities and put in place security measures to minimise the threat. These measures are discussed in more detail at Chapter 4.102 However, security of its maritime regions will remain an issue of concern to the EU, requiring vigilance on the part of agencies such as law enforcement, customs and border security, but at EU and at member state levels. This is therefore an area where further policy and legislative developments are likely to take place, in the short, medium and the long term, and where cooperative activities with other regions and countries may be necessary to reduce or minimise risk.

Bibliography Anderson, P., and Baumburg, B., Alcohol in Europe: A Public Health Perspective. Report for the European Commission. (July 2006), Institute of Alcohol Studies, London, UK. Available online at: http://ec.europa.eu/health-eu/doc/alcoholineu_summary_en.pdf. Archick, K., US-EU Cooperation Against Terrorism. Congressional Research Service Report for Congress dated July 18 2011. Baldwin-Edwards, M., The Changing Mosaic of Mediterranean Migrations, Online feature story for Migration Information Source (June 2004). Available online at: http://www.migrationinformation.org/Feature/display.cfm?id=230. Carafano, J. J. and Kochems, A., Making the Sea Safer: A National Agenda for Maritime Security and Counterterrorism. Heritage Special Report SR-03 of 17 February 2005, (2005) The Heritage Foundation, Washington DC. Available online at: http://www.dtic.mil/cgi-bin/ GetTRDoc?Location=U2&doc=GetTRDoc.pdf&AD=ADA487365. Carpenter, A., “International Protection of the Marine Environment”, chapter X in Nemeth AD (ed.); in The Marine Environment: Ecology, Management and Conservation,” (2011), Nova Science Publishers, Inc., USA, 51-86. Centre for Strategy and Evaluation Services (CSES), Ex-post Evaluation of PAST Activities in the field of Security and Interim Evaluation of 102

Eski and Carpenter, chapter 4 of this book.

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FP7 Security Research: Maritime Security and Surveillance – Case Study. (January 2011). Centre for Strategy and Evaluation Services, United Kingdom. Available online at: http://ec.europa.eu/enterprise/policies/security/files/doc/maritime_case _study_cses_en.pdf. Delegation of the European Commission to the USA, Securing Trade: The EU’s Approach to Port and Maritime Container Security. EU Insight, Issue 21, July 2008. (2008) Delegation of the European Commission to the United States. Available online at: http://www.eurunion.org/News/eunewsletters/EUInsight/2008/EUInsig htContainerJuly2008.pdf. Dettleff, J.C., Shipping Container Security at Boston’s Conley Terminal: A Policy Analysis Exercise. (2 April 2002), John F Kennedy School of Government, Harvard University. Available online at: http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/cen ters-programs/centers/rappaport/paes/Dettleff.pdf. EMCDDA-Europol, Cocaine: A European Union perspective in the global context. EMCDDA-Europol Joint Publications, EN-No 3/2010. (2010) Luxembourg: Publications Office of the European Union. Available online at: http://www.emcdda.europa.eu/attachements.cfm/att_101612_EN_TDA N09002ENC.pdf. Europe Against Drugs, The narco-terrorism connection. Online article by Europe Against Drugs dated 3 June 2010. Available online at: http://www.eurad.net/en/news/supply_reduction/The+narcoterrorism+connection.9UFRjY0z.ips Europa Press Release dated 15 May 2009. Available online at: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/792&f ormat=HTML&aged=0&language=EN&guiLanguage=en. European Commission DG Maritime Affairs and Fisheries, Integrating Maritime Surveillance – Communication from the Commission to the Council and the European Parliament on a Draft Roadmap towards establishing the Common Information Sharing Environment for the surveillance of the EU maritime domain. COM(2010) 584 final. (2010) Luxembourg: Publications Office of the European Union. Available online at: http://ec.europa.eu/maritimeaffairs/policy/integrated_maritime_surveill ance/documents/integrating_maritime_surveillance_en.pdf. European Commission (2006a), Communication from the Commission on Policy priorities in the fight against illegal immigration of thirdcountry nationals. COM(2006) 402 final, Brussels, 19 July 2006.

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—. (2006b), Commission of the European Community Green Paper “Towards a future Maritime Policy for the Union: A European Vision for the oceans and seas”. COM(2006) 275 final, Volume II – ANNEX – Background Paper No. 6. Brussels, 7 June 2006. —. (2008), Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Examining the creation of a European Border Surveillance System. COM(2008) 68 final, Brussels, 13 February 2008. —. (2011), Proposal for a Regulation of the European Parliament and of the Council Establishing the European Border Surveillance System (EUROSUR), COM(2011) 873 final, Brussels, 12 December 2011. European Commission Research Information Centre, 89,000 km of European Coastlines. (2009). Available online at: http://ec.europa.eu/research/infocentre/article_en.cfm?id=/research/res earch-eu/sea/article_mer27_en.html&item=Environment&artid=7348. European Environment Agency, The European Environment – State and Outlook 2010: Marine and Coastal Environment. (2010) Luxembourg: Publications Office of the European Union. European Environment Agency – Data for Sea Regions (2011). Available online at: http://www.eea.europa.eu/data-and-maps/figures/regionalsea-characteristics. European Anti-Fraud Office, OLAF and Chinese authorities join forces to fight cigarette smuggling from Asia. Press report OLAF/11/18 Beijing of 16 December 2011. Available online at: http://ec.europa.eu/anti_fraud/media-corner/press-releases/pressreleases/2011/20111216_01_en.htm. European Maritime Safety Agency, Port Waste Reception Facilities Overview. (Undated). Available online at: www.emsa.europa.eu/implementation-tasks/environment/port-wastereception-facilities.html. EUROPOL, EU Organised Crime Threat Assessment: OCTA 2011 – Key Trends and Judgements. Report O2 – analysis and Knowledge, File no. 2530-271. (April 2011) EUROPOL, The Hague. Eurostat, Statistics in focus 47/2009. Nearly half of the population of EU countries with a sea border is located in coastal regions. (2009) European Communities. Eurostat Passenger Transport Statistics. Available online at: http://epp.eurostat.ec.europa.eu/statistics_explained/index.pho/Passeng er_transport_statistics#Maritime_passengers.

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Germond, B., ‘The EU’s security and the sea: defining a maritime security strategy’. In: European Security (2011), 20 (4), 563-584, Routledge, Taylor and Francis Group. —. “From Frontier to Boundary and Back Again: The European Union’s Maritime Margins”. In: European Foreign Affairs Review (2010), Vol. 15, pp 39-55, Kluwer Law International BV. Greenberg, M.D., Chalk, P., Willis, H., Khilko, I. and Ortiz, D.S., Maritime Terrorism: Risk and Liability. (2006) RAND Centre for Terrorism Risk Management Policy, Rand Corporation, California. Available online at: http://www.rand.org/pubs/monographs/2006/RAND_MG520.pdf. Griffiths, H. and Jenks, M., Maritime Transport and Destabilizing Commodity Flows. SIPRI Policy Paper 32 of January 2012. Stockholm International Peace Research Institute. Available online at: http://books.sipri.org/files/PP/SIPRIPP32.pdf. Institute for the Analysis of Global Security, IAGS Energy Security article entitled Maritime Terrorism: A new challenge for NATO. Article by IAGS Energy Security dated 24 January 2005. Available online at: http://www.iags.org/n0124051.htm. Marin, L., “Policing the EU’s External Borders: A Challenge for the Rule of Law and Fundamental Rights in the Area of Freedom, Security and Justice? An Analysis of Frontex Joint Operations at the Southern Maritime Border”. In: Journal of Contemporary European Research (2011), 7, 4, 468-487. University Association for Contemporary European Research. Available online at: http://www.jcer.net/ojs/index.php/jcer/article/view/379/305 McLean, A., Mariani, B. and Vatanka, A., Enhancing EU Action to Prevent Illicit Small Arms Trafficking. Background Paper Prepared for the Project European Action on Small Arms and Light Weapons and Explosive Remnants of War. (Undated) United Nations Institute for Disarmament Research. McDonald, H. and Townsend, M., Ireland’s cocaine coast: A recent bust in the ‘Irish box’ shows drug smugglers are ruling over the Cork shore. Article in The Observer newspaper dated 8 July 2007. Available online at: http://www.guardian.co.uk/uk/2007/jul/08/drugsandalcohol.drugstrade. McNicholas, M., Maritime Security: An Introduction. (2008) ButterworthHeinemann Homeland Security Series, Elsevier Inc. Migration Observatory online (undated). Irregular Migration in the UK: Definitions, Pathways and Scale. The Migration Observatory at the University of Oxford. Available online at:

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http://migrationobservatory.ox.ac.uk/briefings/irregular-migration-ukdefinitions-pathways-and-scale Moreno-Lax, V., “Seeking asylum in the Mediterranean: against a fragmentary reading of EU Member States’ obligations accruing at sea”. International Journal of Refugee Law, (2011), 23 (2): 174-220. Oxford Dictionaries, Definition of Narcoterrorism. Oxford University Press. Available online at: http://oxforddictionaries.com/definition/english/narcoterrorism?q=narc oterrorism. Oxford English Dictionary. Oxford University Press. Available online at: http://www.oed.com/. Panebianco, S, Dealing with Maritime Security in the Mediterranean Basin: The EU as a Multilateral Actor. Documenti IAI 10/16 of August 2010. Instituto Affari Internazionali, Rome. Available online at: http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?id =124982. Pugh, M., “Drowning not Waving: Boat People and Humanitarianism at Sea”. Journal of Refugee Studies (2004), Vol. 17(1), pp 50-69, Oxford University Press. Richardson, M., A Time Bomb for Global Trade: Maritime-related Terrorism in an Age of Weapons of Mass Destruction. (2004) Institute of South East Asian Studies, Singapore. Roach, J.A., “Initiatives to enhance maritime security at sea”. Marine Policy, (2004) 28, 41-66, Elsevier Ltd., Netherlands. Spiegel Online, Hundreds Feared Dead After Immigrant Boats Sink Near Libya. Article in Spiegel Online dated 31 March 2009. Available online at: http://www.spiegel.de/international/world/0,1518,616513,00.html. Suárez de Vivero, JL and Rodríguez Mateos, JC, “New factors in ocean governance. From economic to security-based boundaries”. In: Marine Policy (2003), Vol. 28, pp 185-188. Elsevier Ltd., Netherlands. Testa, K., Are natural gas ships “boat bombs” for terror? Article for Associated Press dated 16 February 2004. Available online at: http://www.msnbc.msn.com/id/4276348/ns/us_news-security/t/arenatural-gas-ships-boat-bombs-terror/. The Migration Observatory at the University of Oxford, Irregular Migration in the UK: Definitions, Pathways and Scale. Online briefing (undated) available at: http://migrationobservatory.ox.ac.uk/briefings/irregular-migration-ukdefinitions-pathways-and-scale.

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uk-trucking.net, Alcohol and Tobacco Fraud. (2007) Available online at: http://www.uk-trucking.net/customs/tobaccofraud.asp. United Nations, United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, supplementing the United Nations Convention Against Transnational Organized Crime. (2000) United Nations. Available online at: http://www.uncjin.org/Documents/Conventions/dcatoc/final_document s_2/convention_%20traff_eng.pdf. United Nations Office on Drugs and Crime, Drug Trafficking as a Security Threat in West Africa. (November 2008) United Nations, New York. Available online at: http://www.unodc.org/documents/data-andanalysis/Studies/Drug-Trafficking-WestAfrica-English.pdf. —. Human Trafficking in the Baltic Sea Region: State and Civil Society Cooperation on Victims’ Assistance and Protection. (April 2010) United Nations, Vienna. Available online at: http://www.unodc.org/documents/human-trafficking/CBSSUNODC_final_assessment_report.pdf. —. Human Trafficking: What is Human Trafficking. (undated). Available online at: http://www.unodc.org/unodc/en/human-trafficking/what-ishuman-trafficking.html. —. The role of organized crime in the smuggling of migrants from West Africa to the European Union. (2011) United Nations, New York. Available online at: http://www.unodc.org/documents/human-traffick ing/Migrant-Smuggling/Report_SOM_West_Africa_EU.pdf. US Customs and Border Protection, Container Security Initiative: 20062011 Strategic Plan. CBP Publication No. 0000-0703 of August 2006. US Customs and Border Protection, Washington DC. Available online at: http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ada472713.pdf&Locat ion=U2&doc=GetTRDoc.pdf . US Department of State, Patterns of Global Terrorism 2003. (2004) US Department of State. Available online at: http://www.state.gov/j/ct/rls/crt/2003/c12153.htm. Webster’s Online Dictionary, Extended Definition: Narcoterrorism. Available online at: http://www.websters-online-dictionary.org/ definitions/Narcoterrorism.

CHAPTER FOUR POLICING IN EU SEAPORTS: IMPACT OF THE ISPS CODE ON PORT SECURITY POST 9/11 YARIN ESKI AND ANGELA CARPENTER Introduction In the aftermath of the terrorist attacks in New York and elsewhere in the USA in September 2001 (9/11), the attempted airline bombing by the shoe bomber in December 2001, and the subsequent attack on the French oil tanker the Limburg in October 2002, the issue of potential security threats was raised to the highest levels globally. In the case of the shoe bomber, Richard Reid, a UK born Islamic convert, boarded American Airlines Flight 62 from Paris to Miami with bomb material hidden in his shoes. He attempted to light a fuse but was restrained by passengers and crew until the flight landed in Boston. In the Limburg incident a dinghy carrying explosives rammed the tanker which subsequently caught fire and exploded. The measures introduced at airports worldwide are familiar as a response to 9/11 and the shoe bomber, but what is less well known are the measures taken by many countries to protect their shipping and port industries – the focus of this chapter. One of the most significant actions taken in the wake of 9/11 was the introduction of the International Ship and Port Facility Code (ISPS Code).1 The Code comes in two parts. Part A is mandatory for all states that are contracting governments to SOLAS, the International Convention for the Safety of Life at Sea, and are legally obliged to comply with the requirements of the code that they ensure the security of ships and ports through a standardised framework for risk assessment and the 1

ISPS Code. Overview available at http://www.imo.org/ourwork/security/instruments/pages/ispscode.aspx.

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determination of appropriate security measures. Part B is recommendatory, recognising that ships or ports may have their own special characteristics requiring specific action above and beyond the mandatory requirements in Part A. Part B also provides guidance to contracting governments on how to comply with Part A. The ISPS Code is part of SOLAS, a new chapter of which (Chapter XI-2 on special measures to enhance maritime security2) was introduced to enable governments to identify threats to ships and port facilities, and to develop and introduce security measures to counteract those threats. Both the ISPS Code and Chapter XI-2 are administered by the International Maritime Organization (IMO), the UN specialised agency with responsibility for the safety and security of shipping (including when ships are in ports) and for the prevention of marine pollution from ships.3 The United States Coast Guard, as the lead United States Agency at the IMO, was one of the main proponents of the need for increased security measures for ships, both at sea and in port. However this chapter deals mainly with the impact of ISPS code on activities in EU seaports, and will introduce specific examples of how it has impacted on frontline level staff in those ports, it will first provide an overview of the history of the SOLAS convention and the introduction of the code. It offers an overview of the requirements of ISPS for ships, for ports and for the people working in those ports. It provides empirical data from ethno-criminological fieldwork in a number of EU ports, setting out perceptions of the code and its requirements, and the impact it has had on security within ports. The chapter concludes with a discussion of how ISPS code’s political and legal reality shapes and is shaped in praxes.

Realising the ISPS code The amendment of SOLAS through the addition of Chapter XI-2 and the ISPS Code was an unusually rapid process in response to 9/11, together with the attack on the Limburg and US pressure at the IMO. The introduction of International Conventions such as SOLAS or MARPOL 73/78 (the International Convention for the Prevention of Pollution from 2

SOLAS Chapter XI-2 – Special measures to enhance maritime security. In respect of ports, Regulation XI-2/6 covers requirement for port facilities including security assessments and security plans, Overview available at: http://www.imo.org/about/conventions/listofconventions/pages/internationalconvention-for-the-safety-of-life-at-sea-(solas),-1974.aspx. 3 For more information on the IMO, see Introduction to IMO at http://www.imo.org/About/Pages/Default.aspx.

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Ships 1973, and its Protocol of 1978) normally take many years and is an ongoing process, where new amendments, protocols and other developments are introduced in response to new ideas, new scientific knowledge and the identification of new threats.4 The original Convention, from which SOLAS can trace its lineage, was a response to the sinking of the Titanic in 1912, and came into force in 1914. It introduced requirements relating to the number of lifeboats and other types of safety equipment which should be carried on board vessels. A series of iterations of SOLAS were introduced during the 20th Century and, in 1948, it came under the aegis of the Inter-Governmental Maritime Consultative Organization (IMCO), which became IMO in 1982. The IMO adopted a new version of SOLAS in 1960 with a revised text coming into effect in 1974. It is to this latter iteration of SOLAS that the new Chapter XI-2 was added, following a Conference of Contracting Governments to the Convention held in London in December 2002. Unusually, because of the reason behind the introduction of that Chapter and also the ISPS Code, it was deemed highly unlikely that any signatory to SOLAS would object to this amendment (permissible under Article VIII(b)(vi) of SOLAS 74), and so an entry into force date of 1 July 2004 was set. Subsequently, the EU introduced Regulation (EC) No. 725/2004 in March 2004,5 noting in a preamble to the summary of that Regulation that: “The recent past has taught us that no country in the world is safe from terrorist acts, and shipping is no exception to this rule. Measures are needed to ensure the security of maritime transport, of the citizens using it and of the environment in the face of threats of international unlawful acts such as terrorism at all times. If the cargoes shipped contain hazardous substances, unlawful acts of this kind could have far-reaching consequences for citizens and the environment in the EU.”6

This regulation was introduced in order to develop harmonised interpretation and implementation of SOLAS Chapter XI-2 and the ISPS Code in all EU member states. It also made possible the sharing of information between member states on what facilities were provided in 4

Carpenter A.; “Security and Europe’s Sea Ports: threats and issues facing maritime gateways to Europe,” chapter 3 of this book. 5 Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security, OJ L 129, 29/04/2004, 6. 6 Available on the Europa web site, 2011.

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ports,7 and would also allow those member states to monitor compliance by ships of the requirements of the code.8 While developed to respond to the events of 9/11, the attack on the Limburg, and heightened awareness of the potential for a major attack on a ship, whether at sea or in port, the ISPS Code and Chapter XI-2 also cover a wide range of security threats to both ships and ports, and also form part of a wider counter-terrorism initiative in conjunction with the UN Security Council’s Counter-Terrorist Committee (CTC) under Resolution 1373,9 the World Customs Organization (WCO) and the International Labour Organization (ILO). Carpenter examines the broader range of security issues, in the context of the EU and its seaports, in Chapter 3 of this book. While there are a wide range of potential threats facing ports in the EU and globally, and these threats have been apparent for many years. The main concern relating to terrorist activity at the start of the 21st Century was the trafficking of weapons and explosives. However, two attacks on US naval destroyers whilst tied up in the Port of Aden in Yemen raised awareness of the potential for significant terrorist atrocities taking place in ports. In January 2000 there was a failed attempt to attack the USS The Sullivans, when a small vessel carrying explosives sank before it could reach the ship.10 That attack failed because the vessel was carrying too much weight. However, in October 2000, the USS Cole was rammed by a small vessel carrying explosives and subsequently exploded, killing 17 and injuring 37.11 Subsequently al-Qaeda claimed responsibility for that attack. Particularly as a result of the USS Cole attack, there was increasing concern about the potential for small explosive-carrying vessels to ram 7

Regulation (EC) No 725/2004, Article 4 Communication of information. Ibid. Article 3, Joint measures and scope. 9 UN Security Council Counter-Terrorism Committee mandate states that “guided by Security Council resolutions 1373 (2001) and 1624 (2005), the CTC works to bolster the ability of the UN Member States to prevent terrorist acts both within their borders and across regions. It was established in the wake of the 11 September terrorist attacks”. For full text of the Mandate and details of the CTC, see http://www.un.org/en/sc/ctc. 10 Terrorism 2000/2001, Federal Bureau of Investigation. United States Government Printing Office 2004–306-694. 11 The main perpetrator of the attack was killed in May 2012 by, supposedly, an American air drone in Yemen: For further details see: http://news.yahoo.com/manwanted-uss-cole-bombing-killed-yemen-tribal-184942514.html. Last viewed 14 May 2012. 8

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larger vessels, either in port or at sea, resulting in environmental harm, loss of life, and economic loss if port entrances were blocked, or there was structural damage to key infrastructure. The consequence of the Yemen attacks by al Qaeda, closely followed by 9/11, and also the Limburg attack, was an increasing culture of distrust, fear, and a perceived need for increased security measures (see for example Howland12). In the US in particular, as the main target for these attacks, there was increased pressure at all levels of government to take action to minimise the risk of such atrocities occurring again. Subsequently, the ISPS Code was introduced to improve security in three main areas – on ships (including mobile drilling units), in ports, and for the people who work on and in them. These three areas are discussed below. While this paper mainly deals with the requirements of the Code in Ports and for port staff, Sagarra and Fernández indicate that the ISPS Code is aimed at certain types of ships involved in international travel including passenger ships and also cargo ships of 500 gross tonnes or greater,13 and also high sea mobile drilling units,14 IMO guidance15 indicating that while these mobile units are not considered as ships engaged in international voyages, they should have some security procedure in place while interacting with ship or port facilities. Petersen16 sets out the main requirements of the ISPS Code on ships and crew as being that: each shipping company should appoint a company security officer (CSO) to assess the threat to the company’s ships and take

12

Howland, J., Hazardous Seas: Maritime Sector Vulnerable to Devastating Terrorist Attacks. (2004) Pub: GlobalSecurity.org, Alexandria, VA. 13 Gross Tonnage (GT) is a way of categorising merchant vessels (i.e. those involved in the carrying of cargo), along with the type of cargo they carry and the distance they travel. 14 Sagarra and Fernández, The ISPS Code – 2: Development of port ordinances. (2009) Edicions de la Universitat Politècnica de Catalunya, SL, Barcelona, 16. 15 IMO Guidance Relating to the Implementation of SOLAS Chapter XI-2 and the ISPS Code. MSC/Circ.1097 of 6 June 2003, Guidance, Mobile and immobile floating units, Para 2. 16 Kim Petersen is the Executive Director of the Maritime Security Council (MSC), a non-profit organisation established in 1988 and representing ocean carriers, cruise lines, port facilities and terminals and other related maritime industries globally. Additional information available at: http://maritimesecurity.org/.

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steps to mitigate those threats;17 all ships must appoint a Ship Security Officer (SSO) to manage on-board security, implement and maintain a security plan,18 train crew members, document ship compliance with the code, and liaise with the Port Facility Security Officer (PFSO) when entering a port; all crew should receive specific training in security procedures including identification of dangerous substances and devices, and also asses threats and identify vulnerabilities of the ship; ships must undertake regular security drills19 – at least three monthly, or within one week where 25% of the crew is new to the vessel, or if the ship has not been operational for any length of time; and SSO must maintain records, including the ship security plan and records, a declaration of security, and a continuous synopsis record.20 In respect of ports, the main purpose of the Code is to provide a standardised, consistent framework for evaluating risk, enabling governments to determine what the threats are to ports, and what the appropriate security measures are to counteract those threats. Using a recognised security organisation (RSO), governments are required to conduct assessments of port facility security which lead to the development of a Port Facility Security Plan (PFSP). According to the EU Regulation No. 725/2004,21 the Port Facility Security Assessment (PFSA) is required to address a number of elements including: physical security, structural integrity, personnel protection systems; procedural policies, communication systems, transportation infrastructure, utilities, and “other areas that may ... pose a risk to persons, property or operations within the port facility.”22 The main elements of the PFSA, as outlined within the Regulation, are the “identification of the important assets and infrastructures” that are important to protect, taking into account potential loss of life, significance

17 See Guidelines on Training and Certification for Company Security Officers (IMO MSC/Circ. 1154 of 23 May 2005) for a full description of the duties of CSOs. 18 ISPS Code Part A, Section 9. 19 ISPS Code Part B, 13.1-13.8. 20 Petersen, K., “Maximum Security,” feature article for World Cruise Network dated 1 March 2005, online. 21 Regulation (EC) No 725/2004. 22 Ibid. ANNEX II ‘International Code for the Security of Ships and of Port Facilities’, Regulation 8.3.6.

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of the port, symbolic value, and the presence of government installations;23 the “identification of the possible threats to the assets and infrastructure and the likelihood of their occurrence in order to prioritise security measures” vital to each port and its operations;24 and the “identification, selection and prioritisation of countermeasures and procedural changes and their level of effectiveness in reducing vulnerability.”25 In the case of vulnerabilities which the regulation identifies as “vulnerabilities in physical structures, personnel protection systems, processes, or other areas that may lead to a security incident.”26 Consideration is to be given to water-side and shore-side access to the port, and the ships berthing within it. Security considerations therefore have to take into account issues such as the identification of persons able to access areas of the port, customs activities, illegal immigration and the smuggling of drugs, alcohol etc., in addition to the potential for terrorist activities. In order to minimise the risk of terrorists accessing port areas, a system of ship inspections, prior to their arrival in port, is in place under SOLAS Regulation XI-2/9.2.5, where contracting governments (signatories to the Convention) have the right to conduct inspections of ships in their territorial waters or intending to enter their ports, to search for “possible suspicious persons such as terrorists.”27 Once a PFSA has been carried out, a PFSP will be developed by the PFSO who will, as previously noted, be the point of contact between the port and the SSO on board any ship visiting the port. The PFSP will include details of the security organisation within the port, set out links with any relevant authorities and communication systems, identify the security level (levels 1 to 328) within the port, and detail additional measures necessary to move between security levels, provide regular 23

Ibid. Regulation 15.5.1. Ibid. Regulation 15.5.2. 25 Ibid. Regulation 15.5.3. 26 Ibid. ANNEX III “Guidance regarding the provisions of Chapter XI-2 of the Annex to the International Convention for the Safety of Life at Sea, 1974 as amended and Part A of this Code”, Regulation 15.15. 27 IMO Guidance Relating to the Implementation of SOLAS Chapter XI-2 and the ISPS Code. MSC/Circ.1097 of 6 June 2003, Guidance, Inspections prior to entering port, Para 22-24. 28 See Regulation (EC) No. 725/2004 at Annex III, Regulation 16.26 to 16.54 for details of security levels in ports, and Annex III, Regulation 19.14 to 19.49 for security levels of ships under specific headings including handling of cargo, delivery of ship’s stores and handling of unaccompanied baggage. 24

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review and audit of the plan, and contain details of reporting procedures to relevant bodies. In addition to the development and maintenance of the PFSP, the regulation identifies the main tasks and responsibilities of the PFSO and these include periodic inspections of facilities to ensure that security measures are adequate, organising the work of guards, encouraging awareness of security issues among port employees; and co-ordinating security with relevant protection services.29 In this latter respect, this may include local, regional or national police agencies, security or military forces, and customs and immigration agencies which may be required to deal with the specific security issue or threat once it has arrived on land, and in particular once it has left the port area. In this section we have identified some of the key historical factors which led to the development of the ISPS Code, and have also identified some of its main requirements on ships, on ports, and on the people who work in them. In the following section we examine the impact of the ISPS Code on a number of individuals working in EU ports, making reference to port visits and interviews conducted by Eski between August 2011 and May 2012.

The ISPS Code in reality Given its penetrative effect in the port realm, what is emphasised in this section is how the ISPS Code produced numerous security initiatives and frames for PFSO’s, security services, and relevant authorities, overseen by state control. There is some doubt, however, whether the ISPS Code security requirements are actually combating the increasing body of maritime terrorist-associated dangers and fears, e.g. modern piracy; drugs, weapons and human trafficking; environmental pollution; theft and plunder; and corruption.30 29

Regulation (EC) No 725/2004, ANNEX II ‘International Code for the Security of Ships and of Port Facilities’, Regulation 17. 30 Kostakos, P.A. and Antonopoulos, G.A., “The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece.” Global Crime, (2010) 11(1):34–57, 51, McNicholas, M., Maritime Security: An Introduction. (Butterworth-Heinemann Homeland Security Series, 2008), 132-134, Zaitch, D, Trafficking Cocaine. Colombian Drug Entrepreneurs in the Netherlands. (Kluwer Law International, 2002). 239.

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Whilst the post 9/11 rhetoric that is politically used to establish high(er) levels of national security, pushed member states to implement the ISPS Code, assessments and examination of actual insecurities and adequate responses to ports were not constructed.31 In a way, in ISPS compliant ports, it remains uncertain whether security has really increased or not.32 The coming into force of ISPS Code has resulted in restricted access to ports via “fences, gates, camera surveillance and access control systems” and resulted into the obligation for any incoming person, including own company and security personnel, “to justify their presence at identity checkpoints.”33 In sum, ports have become sealed off and heavily securitised areas. Moreover, because of the global liberalisation of labour markets, as Kane argues, port workers come and go, resulting in ad hoc worker relations that heavily affects social control and responsibility for a safe and secure port environment.34 Therefore, in the wake of 9/11 and other maritime terrorist related events, port life is lived with decreasing social interaction and communal interest in the port, connected with increasing security measures and fear of insecurity. Police officers, customs officers, private security guards and others are responsible for a safe and secure port environment. They operate together in what Hoogenboom calls a multi-agency in ports post 9/11.35 On a daily basis they are confronted with physical insecurity, as well as with the uncertainty of how to conceptualise (in)security. Plus, they simultaneously have to improve security as they are being targeted by security improvement initiatives, such as privacy penetrating family background checks.36 The port landscape shaped by security measures and control mechanisms, vis-à-vis the port securityscape is therefore a place where 31

Metaparti, P., “Rhetoric, rationality and reality in post-9/11 maritime security” Maritime Policy & Management, (2010) 37(7): 723-736, 723-725. 32 Nordstrom, C., Global Outlaws: Crime, Money, and Power in the Contemporary World, (University of California Press, 2007), 199-200. 33 Van Hooydonk, E., Soft Values of Seaports: A Strategy for the Restoration of Public Support for Seaports. (Apeldoorn: Garant Publishers 2007), 11. 34 Kane, S.C., “The Ethnography of Global Port Cities: Culture, Water, and Law”. Paper presented at the international conference on People of the Sea, 7-9, July 2005 Center for Maritime Research (MARE) and the University of Amsterdam. Pub: Centre for Maritime Research (MARE), Amsterdam, 3. 35 Hoogenboom, B., Bringing the Police Back in: Notes on the Lost & Found Character of the Police in Police Studies. (Dordrecht: SMVP, 2010), 40. 36 Van Oenen, G., “Paul Virilio: A Logistic Perspective on Crime” in New Directions for Criminology: Notes from Outside the Field, eds. Lippens R. and van Calster, P. (Antwerp: Maklu, 2010) 89.

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public and private authorities have major yet sometimes unclear and even conflicting responsibilities in securing and policing the port environment.37 In these settings, the participants interviewed carry out their tasks, and build their cultures, praxes and attitudes that are constantly (re)negotiated.38 These cultures, praxes and attitudes were explored by ethnographic research and data collection. Getting in touch with the participants turned out to be problematic, as the port securityscape is a closed realm. Nonetheless, access was granted and Eski was able to stay close to the participants to obtain data, observed and understood in interaction with their activities, as is often done during ethnographic studies in secret or “hidden” communities.39 Security questions are integrated into the daily lives of ordinary people working in extraordinary environments.40 Therefore, an ethnographic close-up allows for the discovery of the complex entanglement of security questions in the everyday work of members of the port security multi-agency. Crucial was to capture the meanings that are given to everyday security praxes and cultures. This in order to become aware the phenomenon “port security”, as well as “the phenomena of [port security] being-understood as such.”41 Having selected in-depth interviewing and undertaken (participant) observations, it became possible to collect narratives about the sociocultural dimension behind port security and see it come alive during active involvement of port security related work practices and social interactions.42 What follows are observations made of the ISPS Code in reality in ports A and X, those observations taking place between August 2011 and May 2012 when 40 interviews were conducted and over 56 hours of 37 Eski, Y., “Port of Call: Towards a Criminology of Port Security” in Criminology and Criminal Justice, (2011) 11(5): 415-431, 424. 38 Kunda, G., Engineering Culture: Control and Commitment in a High-Tech Corporation, (Philadelphia: Temple University Press, 2006) 68. 39 Blee, K.M., “Access and Methods in Research on Hidden Communities: Reflections on Studying U.S. Organized Racism” in E-Sharp Special Issue: Critical Issues in Researching Hidden Communities, (2009): 10-27, 11. 40 Goldstein, D.M., “Toward a Critical Anthropology of Security”, Current Anthropology, (2010), 51(4): 487-517, 489. 41 Wender, J., “Phenomenology, Cultural Criminology and the Return to Astonishment” in Cultural Criminology Unleashed, Ferrell, J. Hayward, K., Morrison W., and Presdee, M. eds., (2004) 49-60. Routledge: Cavendish, 59. 42 Adler, P.A. and Adler, P.; Membership Roles in Field Research. (1987) Newbury Park: Sage, 50.

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participant observations were undertaken with a total of 72 participants, all of who gave their informed consent. In addition, discussions took place with staff in ports Y and Z. Based on provisional analyses, the following observations are thematised into three subsections: -War on boredom -Trust in the ISPS Code -Bureaucracy Most of the participants claimed 9/11 and the ISPS Code to be the starting point of heightened security. Eleven years after 9/11, and about seven years of the Code’s first entry in force, none of the participants acknowledged having been confronted with terrorist attacks or a terrorist. In fact, most of the participants laughed and ridiculed the presence of terrorism on their turfs. “The only dangerous thing in our hangars are pomegranates, but yeah… I mean, hahaha […] but that’s the only thing, well, stealing a box of apples” (Aaron, former security guard at a fruit terminal, Port of X). “The risk of a little fire is bigger than terrorism… ISPS [created] more security-awareness, but not for preventing terrorism” (Bastiaan, Port Facility Security Officer (PFSO) at an oil refinery, Port of X).

What is illustrated here is how participants are worried about other more direct practical and site-specific dangers, (e.g. falling containers, aggressive truck drivers or leaking petrochemical gasses) rather than about terrorist activity. The daily routine and boredom during work was identified as being the most significant problem. Some private security guards explained they have to get up before 6.00 a.m., survive the day filled with repetition and go back home, to do the exact same thing the next day. It is a “war on boredom” that they seem to fight rather than a war on terror, as is more often observed in security work.43 In one example of this war on boredom, Teun, a private security guard, killed time by watching DVDs while guarding his client’s terminal, as was identified by one participant observation. During that observation he watched “Meet the Spartans”, a parody of the movie “300” which tells the story of 300 Spartan guards who defended Sparta until the very last man 43

Konopinski, N., Ordinary Security: an ethnography of security practices and perspectives in Tel Aviv. (Edinburgh: The University of Edinburgh, 2009) 54.

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died, and which ridicules the hyper masculinity and city-state pride of the old Greek legion of guards, as depicted in “300”. The very activity of watching a parody that ridicules guarding and defending, during the participant’s shift guarding his port security turf, makes a mockery, and perhaps reveals Teun’s appreciation of (the seriousness of) his line of work. For some, boredom and the simplicity of their work affect their selfworth: “Well, let’s be honest … a security guard is also just, well, that’s what I always say, a simple window and door shutter […] yeah, that’s what it comes down to, because closing is what you do. Closing a little window, closing a little door, and enable the alarm. Well, excuse me, but anyone can do that” (Wesley, private security guard, Port of X).

Teun and Wesley clearly consider the war on terror to be the least of their issues in the port securityscape. In fact, many participants had the opinion 9/11 and other terrorist attacks belong to New York City, London or Madrid, but not to “their port”. During several participatory activities of mobile surveillances in cars, performed by security guards, in the Port of X, it became clear that when working in the business of surveillance, control and security, it appeared to be a goal to somehow neutralise and normalise deviance or abnormalities, instead of focusing on them. It was apparent that the fear that boosted employability in especially the port security sector to begin with, was not necessarily reflected in the attitudes of those participants who work in that very same sector. They did, however, have some ideas of what a possible terrorist attack in the port could look like, and how easy it actually is to perform one: “If you want to do evil, in the Port of X, then it’s of course the perfect way to sink a ship. I mean, if you want to sink a ship, then a bomb or a mine, or a timed something or if necessary with a little cork with a telephone connection on it that bobs above the water, sort of speak […] if you want to do harm, it really is not that difficult” (Lucas, customs officer, Port of X).

During fieldwork in Germany, Eski regularly travelled with local waterways transport from the city centre area to the area around Port of A. In April 2012 he met Freimut, a police inspector at the German Waterways Police (WSP), with whom he was already familiar. Freimut was standing there, having a coffee, in his civilian clothing and they started to have a chat. Freimut indicated that less than one week previously “PKK Piraten” (Kurdistan Workers' Party (PKK) Pirates) had taken hostages on another ferry service often used by Eski. On this occasion the “pirates” had

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peacefully protested by taking over the ship. No weapons were used and the protesters were taken from on board by Freimut’s direct WSP colleagues. He was very enthusiastic about how it all went and how no injuries were caused. This was small and harmless incident in the end, but he suggested imagining if a peaceful hijack like this would happen on a cruise ship with American tourists.44 Such a protest would quickly be defined in terms of maritime piracy and terrorism, and the protesters would be terrorists. The fact such panic has entered the maritime domain of the port is something he deprecates. According to the participants who are actors in the multi-agency of the port securityscape, terrorism or terrorist related activities are non-existent. Terrorist events in a port, especially those envisaged as having the potential to cause massive infrastructure damage and loss of life with resulting massive media attention and an increase in public fear, are viewed as being too spectacular and unrealistic, although in their imagination, such events are easily done. The participants actually seem to miss excitement during their jobs - occupations that are filled with boredom and repetition. Despite this, and considering how the ISPS Code is seen by many of them to be pointless as a tool against terrorism, some of the participants do justify ISPS legislation and its rationale. In general, participants declared the ISPS Code to be the beginning of a new port security era. Radcliff, a PFSO and working for a shipping agency in the Port of X, indicated that after the attacks of 9/11, getting offand on-board was sharpened, it became very strict. Also Aaron explained that: “I think that [ISPS] has started it faster… yes, [security] got a bit quicker off the ground”.

The Port of X, in particular, eagerly implemented the ISPS code, an eagerness that was sometimes sarcastically referred to by the participants as behaviour of the blue eyed boy in matters of ISPS compliance and that

44

Freimut may, with this comment, be referring to the Achille Lauro hijacking of 7 October 1985 when four members of the Palestine Liberation Front (PLF) took control of the passenger liner off Egypt and, upon not being granted permission to sail into Tartus in Syria, then killed a disabled Jewish-American passenger. In this event the hijackers were seeking the release of a number of prisoners held in Israeli prisons..

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Port of X wanted to be the best secured port. Some participants portrayed their port as fully ISPS Code compliant. They glorified the ISPS code era: “I think it is better [since ISPS]. Well, it wasn’t secure, because I was a young boy in Z and I used to fish in the port, you know? We had free access, but now I think with ISPS and rightly so, it should be secure, you can’t have everybody going in and out” (Basil, police officer, Port of Z).

Basil’s belief in security here is conceptualised by Fidler as “securitism”,45 a security belief that is not doubted by its followers, such as Basil himself and several other participants. The ISPS (implemented) legislation may perhaps, therefore, be considered to be almost a religious text to live by in maritime realms. Once (new) issues arise, they ought to be conceptualised and understood in security-related terms. Such framing of issues as security related issues is a rhetorical act, but tends to confuse the understanding of security itself, without the certainty of actually solving these issues, as is a strong characteristic of securitisation.46 Some considered the ISPS Code to have tasked them with a necessary evil to perform in the port securityscape: “I think it’s a sad development, but it’s necessary... It’s a very sad state of affairs, that we’re in, and I can’t tell you how awkward it makes me feel... I mean, I’ve been 16 years as a policeman now and things have changed radically” (Sylvester, police officer, Port Y ship wharf).

Although regretting the status quo, Sylvester accepts the idea of a more secure environment and he accepts this ISPS reality. Hence, the Code’s goal “to perceive and manage security threats through integrating local/domestic threat-levels into a global awareness-level”,47 is embodied by the interviewed participants. On top of the goal of perceiving and managing threats to achieve a global awareness level, the ISPS effectuated a normalisation of transnational

45

Fidler, D.P., “Governing catastrophes: security, health and humanitarian assistance” International Review of the Red Cross, (2007) 89(866): 247-270, 258. 46 Buzan, B., Waever, O. and De Wilde, J., Security: A New Framework For Analysis. (London: Lynne Rienner Publishers, Inc., 1998) 24-26, Zedner, L., Security. Key Ideas in Criminology. (Oxon: Routledge, 2009) 45. 47 Bichou, K., “The ISPS Code and the Cost of Port Compliance: An Initial Logistics and Supply Chain Framework for Port Security Assessment and Management” Maritime Economics & Logistics, (2004) 6(4): 322–348, 328.

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work spheres and interaction, especially between the multi-agency and ship personnel: “All know what the ISPS code has done, they [ship crew] always have the necessary documentation at hand, which is quite good. So we’re not only holding back the business as such, because they have to go in anyway, and then we speak there [...] they’re not shocked or surprised to see you, which is quite a good thing” (Basil, Port of Z).

Ships operate transnationally, for example moving in and out of national and the international ISPS areas. When going aboard a foreign flagged ship, port staff may be visiting foreign territory. However, when describing their work, they did not seem impressed by its nationallytranscending nature, which is observed by Bowling as a common feature of performing policing and security related tasks while crossing borders.48 This normalisation of working transnationally became particularly clear during several participant observations. For example, during a visit to a container terminal in Port of A, a PFSO was interviewed in at his security lodge. The interview took place in a room next to the kitchen. Nearby was a bathroom, the door to which is the border between the non-ISPS area of the port, i.e. Germany, and ISPS area. The door was locked from the ISPS side, but not from the non-ISPS side. In order to go back into the non-ISPS area, you have to push a button that notifies the security desk. A camera next to the closed door (on ISPS territory) identifies you to the person at the security desk who can then open the door. However, on this occasion the door was left ajar, although it would normally be closed. These ISPS and non-ISPS areas were practically unrecognisable, as it was a simple door that separated the two areas. The fact that people using the bathroom are entrusted with closing the door again illustrates how agents of control and security working in these transnational securityscapes, such as ports, are required to maintain trust amongst each other, in order to perform their work, that is first and foremost shaped by cultivated fear49 and control.50 Garland argues that in a culture of control, contemporary, (inter)national governmental institutions, such as the IMO, design and use 48

Bowling, B,, “Transnational Policing: The Globalization Thesis, a Typology and a Research Agenda” Policing, (2009) 3(2): 149-160, 152. 49 Furedi, F,, Culture of Fear: Risk-taking and the Morality of Low Expectation, (London: Continuum International Publishing Group Ltd, 2005), 12-16. 50 Garland, D,, Culture of Control: Crime and Social Order in Contemporary Society. (Oxford: Oxford University Press 2001), 17-18.

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crime and security policies (e.g. the ISPS Code) in an instrumental fashion, by giving those responsible for street level policing and security, like the participants of this study, more authorities for coercive control and preventative measures.51 This is all undertaken, in the name of protecting the public against dangers (e.g. terrorism). The most significant effect of the control mechanism via the ISPS Code to all of the participants was a growing body of the paper work, as well as that related to other maritime regulations. The largest part of securing and controlling is seen to consist of documenting events. A culture of control in ports has, therefore, and in the participants’ opinion, led to them filling out forms and following the right protocols, rather instead of actual controlling and securing the port. The ISPS Code’s PFSA’s, PFSP’s and other regulations to improve secure access and exits, along with tighter control of security personnel by local governmental authorities, are considered to be more of a burden than actual port policing and security advancement. During an on-board environmental control in Port A, there were a number of documents that needed to be considered and forms that had to be filled out by Inspector Freimut of the German WSP, who is also responsible for environmental inspections of ships. Freimut had requested the ship’s certificates to determine whether the ship was compliant with national and international environmental laws, as well as with ISPS Code requirements. It indicates how, even where non-ISPS Code onboard checks are being undertaken, the documents and certificates that are required from a ship entering the port since introduction of the Code, may also be used to undertake far-reaching control checks. Freimut made the captain slightly nervous by requesting these documents, judging from the captain’s shouting to his first and second engineers. Although there was no reason for the captain to be nervous, Freimut explained, ship personnel sometimes exhibit fear if they are unable to immediately find the right documents, although in this case the right documents were there. Freimut expressed regret about these effects of the ISPS Code which, unlike other international regulations, have gone beyond their actual purpose: a safe and secure environment while stimulating the flow of goods. Instead, due to the ISPS code, frustration and nervousness has replaced a more comfortable, natural interaction between the ship’s crew and the port inspector as it was pre-ISPS Code, making inspections much more

51

Ibid. 24-26.

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difficult to conduct. If there is any clear fear present in the everyday of the port securityscapel, it is the fear of control. A similar narrative on the fear of control was picked up from explanations by Inspector Inkmar about his line of work at the German WSP, who suggested that the ISPS code is useless against terrorism. He identified, having undertaken an ISPS assessment, why he actually does the assessments at all: “I do it, because I, because I like to try… to interrupt maritime transport as little as possible. That is to say, I have the intention… they have to comply with the rules, I try to carry out the assessment, to show how people can invest a bit of time in these things, and at the same time carry them out in satisfaction of all” (Inkmar, Port of A).

Both Freimut and Inkmar feel responsible for protecting ship personnel against bureaucratic excesses as well as getting fined, as well as feeling responsible for stimulating obeyance of onboard personnel to ISPS’s security standards. It is about supporting global transport, a trend that Nordstrom discovered as well during her anthropological explorations in ports of several American and European countries.52 Besides controlling security on ships and in terminals, the participants are themselves controlled by port authorities. The Port of X Authority, for example, has the responsibility for maintaining security standards, and it was suggested that incidents are sometimes registered to merely show there are incidents, as it might create suspicion by the Authorities if no reports of incidents are made: “They [Port of X Authority] want to know some things, know how it’s arranged. And you should be able to discuss that, you should be able to get files from the lockers and listings of what has been there, what happened, ships and that kind of stuff. And if I cannot do that or don’t know an answer, a report is being made, after that it all gets fed back to the PFSO, who kicks to my superior and he comes again saying ‘they have been here, they controlled’” (Aaron, Port of X).

Bureaucracy, filing and registering in systems to communicate is thus experienced as avoiding (future) conflict on board as well as retaining 52

Nordstrom, C.,, Global Outlaws: Crime, Money, and Power in the Contemporary World. (Berkeley, CA: University of California Press, 2007), 192196.

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(future) cooperation, both by the monitoring as the monitored. Another frustration due to ISPS’s bureaucratisation had to do with abrupt interference in old friendships and collegiality: “Everything has to be registered, everything has to be monitored, everything nowadays has to be legally justified, sealed off. The job changed so much, it’s actually more... Before we had [departmental] agencies, then it was of course a lot of outside visits, on little ships, it was also more human […] That same driver arrives at an entrance and then there’s a guard with instructions and then he doesn’t know that whole driver anymore […] ‘yeah sorry, you cannot enter, you’re not registered’, ‘yeah, well, alright, I’m Anton, I have been driving here for 40 years, have been working together…’, ‘yes, you’re not on it [the list], so you cannot enter’. So actually, you get a bit of an awkward situation then...” (Radcliff, PFSO, Port of X).

Together with many more participants, Radcliff detests the bureaucratic effects of the ISPS and how it frustrates the port securityscape as an outside work place, making it less human and moving it to the inside. Basically, to the participants, it seems (the effect of) the ISPS Code has gone beyond its original goals. It is now crucial to see/conclude whether its relevance is there, or that its side-effects made the Code itself irrelevant.

Conclusions What becomes clear, when considering the intentions and content of the ISPS Code discussed in Section 2 against what was observed in Section 3 of the multi-agency of port policing and security at grassroots level, is that there appears to be a contradictory result between intent and actuality in the post 9/11 port securityscape; law in the books differs law in action. The threat to security on ships and in ports is still considered significant by policymakers and government agencies. In fact, the death of Bin Laden and the very recent death of the main attacker involved in the USS Cole attack in Yemen, discussed in section 2 above, have not made the terrorist threat from al-Qaeda disappear. However, the perception identified by the ethno-criminological fieldwork is that the ISPS Code was principally shaped by cultures of fear and control, and that this unravels itself in contradictory manner when considering actual security issues in ports. According to the participants, they have not been directly confronted with terrorist related activities whatsoever and consider a terrorist attack in

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their port as unlikely. This reflects, instead of a cultivated fear, rather a cultivated fearlessness. The US used 9/11-inspired fear to quickly call for the development of international maritime security legislation, a process in which the IMO was a facilitator. In so doing, the US therefore staged (and still stages) itself, by the initiation of the ISPS code as all-encompassing antiterrorism tool, as a powerful, expressive actor in the domain of international maritime justice and security – this is, as Garland notices, a strong characteristic of producing justice through cultures of control in late modernity. The preventive capacity of the ISPS Code is understood at the grass-roots level, but also appears to be, to a certain degree, ridiculed by the participants. Nevertheless it is considered a necessary evil. The participant, however, did not consider themselves part of an international army in the war on terror. For them the Code rather meant changes in onboard and off-board interactions. Since ISPS, daily work consists trusting and cooperating, as this is key to operate swiftly in the port securityscape. If anything, their biggest concerns are their own safety during security activities and to not interrupt transport. After all, the “show must go on”. If any significant change was identified, it was how the increased post 9/11 control through ISPS in reality meant increased bureaucracy. Desk-based tasks make up the larger part of their work now, compared with before ISPS. This demotivates them and frustrates the port’s traditional social cohesion, and the natural development of social control in ports. In reality port security and policing agents accept insecurities, build transnational trust and would prefer the status quo of social interaction to be the way it was before; more human. Based on these provisional findings, (the participants in) the multi-agency of the port securityscape seem to know how to be trusting, fearless and willing to decontrol while confronting the very fear and control-obsession that nourishes their employment. At this point it is necessary to add a caveat to the previous paragraph. This analysis is based on interviews with port personnel in EU seaports and police agencies. Were similar interviews and port visits to be conducted in US ports and with US Coastguard representatives, for example, the results might be very different. There, the threat of terrorist activities might be much more acutely felt, in light of the US being the direct target of the many attacks which ultimately led to the introduction of the ISPS Code, as has been admitted by several participants as well. A far higher level of concern about the risks of terrorist attacks in the US is highlighted by Testa, who identifies the additional security measures

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implemented in Port of Boston for the arrival of a specific category of vessels.53 McNicholas, Greenberg et al and Roach54 also identify a growing level of concern about the risk of ships being used to conduct terrorist attacks in US ports, while significant measures are being taken in the US to reduce the potential for terrorists to smuggle weapons and other materiel into its ports. These measures are as a result of the US Container Shipping Initiative, which is discussed by Carpenter in Chapter 3 of this book. What is apparent from this examination of the ISPS Code in the context of multi-agency port policing and security in EU seaports, is that there appears to be a disconnection between the intent of the Code to reduce the potential for terrorist attacks on ships and in ports, and the perception of the impact of the Code in the ports where ethnocriminological investigation has so far taken place. There is, therefore, an apparent contradiction between the intent and the effect of the code and, perhaps, scope for additional investigation. A useful step could be the extension of this study to non-EU countries, and in particular the US, where there may be significantly different perceptions of the Code at grass-roots level amongst port security employees. There is also the potential for a review of the ISPS Code, especially in respect of its goal of participating in the war on (maritime) terrorism. The everyday insecurity that passes through the port facilities continuously, as pointed out by the participants, may need to be codified or adapted in the ISPS Code, which would then reflect a closer reality to the port securityscape than it does now.

Bibliography Adler, PA and Adler, P; Membership Roles in Field Research, Newbury Park: Sage.1987. Bichou, K; “The ISPS Code and the Cost of Port Compliance: An Initial Logistics and Supply Chain Framework for Port Security Assessment 53

Testa, K., “Are natural gas ships ‘boat bombs’ for terror?”, article for Associated Press dated 16 February 2004. 54 McNicholas, Maritime Security: An Introduction. (Butterworth-Heinemann Homeland Security Series: Elsevier Inc., 2008) 263, Greenberg, MD, Chalk, P, Willis, H., Khilko, I. and Ortiz, D.S., Maritime Terrorism: Risk and Liability. (RAND Centre for Terrorism Risk Management Policy, Rand Corporation, California, 2006) xxi, and Roach, J.A., “Initiatives to enhance maritime security at sea” Marine Policy (2004), 28: 41-66, 41.

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and Management,” in Maritime Economics & Logistics, (2004) 6(4): 322–348. Blee, K.M., “Access and Methods in Research on Hidden Communities: Reflections on Studying U.S. Organized Racism.” E-Sharp Special Issue: Critical Issues in Researching Hidden Communities, (2009): 1027. Bowling, B., “Transnational Policing: The Globalization Thesis, a Typology and a Research Agenda.” Policing, (2009) 3(2): 149-160. Buzan, B., Waever, O. and De Wilde, J., Security: A New Framework For Analysis. London: Lynne Rienner Publishers, Inc. 1998. Carpenter, A., “International Protection of the Marine Environment”, chapter X in The Marine Environment: Ecology, Management and Conservation,” Nemeth A.D. (ed.), Nova Science Publishers, Inc., USA, 2011. —. “Security and Europe’s Sea Ports: threats and issues facing maritime gateways to Europe”, chapter 3 of this book. Eski, Y., “Port of Call: Towards a Criminology of Port Security” in Criminology and Criminal Justice, (2011) 11(5): 415-431. EU: Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security, OJ L 129, 29/04/2004, 6. Fidler, D.P., “Governing catastrophes: security, health and humanitarian assistance” International Review of the Red Cross, (2007) 89(866): 247-270. Furedi, F., Culture of Fear: Risk-taking and the Morality of Low Expectation, London: Continuum International Publishing Group Ltd. 2005. Garland, D., Culture of Control: Crime and Social Order in Contemporary Society. (2001) Oxford: Oxford University Press, 2001. Goldstein, D.M., “Toward a Critical Anthropology of Security,” Current Anthropology, (2010), 51(4): 487-517. Greenberg, M.D., Chalk, P, Willis, H, Khilko, I and Ortiz, DS, Maritime Terrorism: Risk and Liability. RAND Centre for Terrorism Risk Management Policy, Rand Corporation, California, 2006. Available online at: http://www.rand.org/pubs/monographs/2006/RAND_MG520.pdf. Hoogenboom, B., Bringing the Police Back in: Notes on the Lost & Found Character of the Police in Police Studies. Dordrecht: SMVP, 2010. Howland, J., Hazardous Seas: Maritime Sector Vulnerable to Devastating Terrorist Attacks. GlobalSecurity.org, Alexandria, VA. 2004. Available online at:

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http://www.globalsecurity.org/org/news/2004/040401-hazardousseas.htm. Kane, S.C., “The Ethnography of Global Port Cities: Culture, Water, and Law”, Paper presented at the international conference on People of the Sea, 7-9, July 2005 Center for Maritime Research (MARE) and the University of Amsterdam. Pub: Centre for Maritime Research (MARE), Amsterdam. Available at: http://129.79.131.64/curriculum/programs/centers/lawsociety/vault/kan e_globalportcities.pdf. Konopinski, N., Ordinary Security: an ethnography of security practices and perspectives in Tel Aviv. Edinburgh: The University of Edinburgh, 2009. Kostakos, P.A. and Antonopoulos, G.A., “The ‘good’, the ‘bad’ and the ‘Charlie’: the business of cocaine smuggling in Greece.” Global Crime, (2010) 11(1): 34–57. Kunda, G., Engineering Culture: Control and Commitment in a High-Tech Corporation. Philadelphia: Temple University Press, 2006. McNicholas, M., Maritime Security: An Introduction. ButterworthHeinemann Homeland Security Series: Elsevier Inc. 2008. Metaparti, P., “Rhetoric, rationality and reality in post-9/11 maritime security.” Maritime Policy & Management, (2010) 37(7): 723-736. Nordstrom, C., Global Outlaws: Crime, Money, and Power in the Contemporary World. Berkeley, CA: University of California Press, 2007. Petersen, K., “Maximum Security”. Feature article for World Cruise Network dated 1 March 2005. Available online at http://www.worldcruise-network.com/features/feature447/. Roach, J.A., “Initiatives to enhance maritime security at sea,” Marine Policy, 2004, 28, 41-66. Elsevier Ltd., Netherlands. Sagarra, R.M. and Fernández, R.S., The ISPS Code – 2: Development of port ordinances. Edicions de la Universitat Politècnica de Catalunya, SL, Barcelona, 2009. Testa, K., “Are natural gas ships ‘boat bombs’ for terror?” Article for Associated Press dated 16 February 2004. Available online at: http://www.msnbc.msn.com/id/4276348/ns/us_news-security/t/arenatural-gas-ships-boat-bombs-terror/. Van Hooydonk, E., Soft Values of Seaports: A Strategy for the Restoration of Public Support for Seaports Apeldoorn: Garant Publishers, 2007. Van Oenen, G., “Paul Virilio: A Logistic Perspective on Crime.” New Directions for Criminology: Notes from Outside the Field, Lippens R. and van Calster, P. eds., Antwerp: Maklu, 2010.

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Wender, J., “Phenomenology, Cultural Criminology and the Return to Astonishment.” in Cultural Criminology Unleashed, Ferrell, J. Hayward, K. Morrison W. and Presdee, M. eds., 49-60, Routledge: Cavendish, 2004. Zaitch, D., Trafficking Cocaine. Colombian Drug Entrepreneurs in the Netherlands. The Hague: Kluwer Law International, 2002. Zedner, L., Security. Key Ideas in Criminology, Oxon: Routledge, 2009.

THE BUSINESS OF CRIME

CHAPTER FIVE INTERNATIONAL COOPERATION IN PRIVATE INVESTIGATION OF ECONOMIC CRIME IN THE EU: EXPLORING RELEVANT ISSUES LUDO BLOCK Introduction Private investigation may, particularly in the unravelling of economic crime, play a considerable role in policing society,1 one that fits into a larger decade-long trend of increased private actor involvement in policing and security. Since the early 1960s, for example, North America has seen an enormous growth in private policing – the provision of police services for a fee2 – growth that not much later began also manifesting in Europe,3

1 E.g. Button, M., “Fraud investigation and the ‘flawed architecture’ of counter fraud entities in the United Kingdom.” International Journal of Law, Crime and Justice 39 (2011): 249-265; Gunther Moor, L. and Van der Vijver, C., “Privatisering van opsporing Een kader voor normering,” Justitiële verkenningen: Private opsporing, 77-86. (Den Haag: WODC, 2004); Schneider, S. “Privatizing Economic Crime Enforcement: Exploring the Role of Private Sector Investigative Agencies in Combating Money Laundering,” in Policing & Society 16, 3 (2006): 285–312; Williams, J. “Reflections of the Private versus Public Policing of Economic Crime.” ritish Journal of Criminology 45 (2005): 316-339. 2 Scott T. and McPherson, M. “The Development of the Private Sector of the Criminal Justice System.”, Law and Society Review 6, 2 (1971): 267-288; Shearing C. and Stenning, P. “Private Security: Implications for Social Control.”, Social Problems 30, 5 (1983): 493-506. 3 Gill, M. and Hart, J. “Policing as a business: The Organisation and Structure of Private Investigation.” Policing & Society 7 (1997): 117-141; van Steden, R., Privatizing Policing. Describing and explaining the growth of private security (The Hague: Boom Legal Publishers, 2007).

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Australia,4 and other parts of the world.5 Nevertheless, although manifestations of private policing have received sporadic academic attention over the decades,6 it was only in the early 1980s that more structured scholarly attention began with the publications of, for example, Johnston7 and Shearing and Stenning.8 Since then, studies on private policing have focused on different aspects of this phenomenon, including potential explanations for its growth,9 its regulation10 and the challenges posed by policing function privatisation for democratic governance.11 However, the majority of the private security literature is focused on the visible, frontline policing functions of private security firms and their role in managing threats to physical bodies and tangible forms of property.12 For a long time, therefore, the research has largely ignored the subsector of private investigators,13 perhaps because private investigators 4

Prenzler, T., Private Investigators in Australia: Work, Law, Ethics and Regulation. Report to the Criminology Research Council (Brisbane: Griffith University, 2001). 5 E.g. Minnaar, A., “Oversight and Monitoring of non-stare/private Policing: The Private Security Practitioners in South Africa”, in Private Security in Africa: Manifestation, Challenges and Regulation, Gumedze S. ed. (Pretoria: Institute for Security Studies, 2007); Tashiro H., “The Japanese Investigative Industry: Toward the Year 2000.”Competitive Intelligence Review 8, 2 (1997): 58-62. 6 Scott and McPherson, The Development. 7 Johnston, L., The Rebirth of Private Policing (London: Routledge, 1992). 8 Shearing, C. and Stenning, P., Private Security; Shearing C. and Stenning P., Private Policing (London: Sage, 1987). 9 Van Steden, Privatising; Williams, Reflections. 10 E.g. Batelaan H. and Bos, J., International Security Guards and Investigators: Survey of Regulations on Private Security and Investigation in Six EU Countries (Amsterdam: Regioplan, 2006); Button, M., “Assessing the Regulation of Private Security across Europe.”European Journal of Criminology 4, 1 (2007); Minnaar, Oversight. 11 E.g. Johnston, Rebirth; Meerts, C. and Dorn, N., “Corporate Security and Private Justice: Danger Signs?” European Journal of Crime, Criminal Law and Criminal Justice 17, (2009); Reiss, A., “The legitimacy of intrusion into private space”, in Private Policing ed. Shearing C. and Stenning P., (London: Sage, 1987); Stenning, P. “Powers and Accountability of Private Police.” European Journal on Criminal Policy and Research 8, (2000): Williams, J., “Governability Matters: The Private Policing of Economic Crime and the Challenge of Democratic Governance” in Policing & Society 15, 2 (2005): 187-221. 12 Williams, Governability, 188. 13 Gill M. and Hart, J., “Enforcing Corporate Security using Private Investigators”, in European Journal on Criminal Policy and Research 7 (1999) 246.

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operate less in the public eye.14 This void was more than compensated for, however, by the important publications of Gill and Hart,15 who intensively researched the private investigator’s working environment in Britain, and Williams,16 who contributed significantly to our knowledge of private investigation and especially the “high end” forensic accounting and corporate investigations industry. Prenzler’s work on the private investigation industry in Australia also provided valuable insights.17 Remarkably, however, these studies on private investigation generally only consider activities in a single jurisdiction without paying attention to any transnational aspects. Yet the transnational aspects of public policing have been the subject of a steadily growing body of research over recent decades,18 one that reflects the fact that police face the changing reality of a more economically, politically, technologically and socially interconnected world in all aspects of their work.19 Inevitably, private investigators must also contend with this same globalised reality, particularly in relation to the investigation of economic crime.20 Not only do economic crimes like fraud and corruption tend to involve transactions and asset transfers across 14

Scott and McPherson, The Development, 267; Williams, Governability, 189. Gill and Hart, Policing; Gill M. and Hart, J., “Exploring Investigation Policing. A Study of Private detectives in Britain.”, British Journal of Criminology 37, 4 (1997): 549-567; Gill and Hart, Enforcing. 16 Williams, Reflections; Williams, Governability; Williams, J., “Private Legal Orders: Professional Markets and the Commodification of Financial Governance”, Social & Legal Studies, 15, 2 (2006): 209-235. 17 Prenzler, Private. 18 See for an overview Block, L., From Politics to Policing: The Rationality Gap in EU Council Policy-Making (The Hague: Eleven International Publishing, 2011) 32-25, but see also Anderson M. and Den Boer, M., Policing Across National Boundaries (London: Pinter Publishers, 1994); Andreas P. and Nadelmann, E., Policing the Globe. Criminalization and Crime Control in International relations (Oxford: Oxford University Press, 2006). Hufnagel, S., Police Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia (Aldershot: Ashgate, 2013, ); Sheptycki, J., In Search of Transnational Policing (Aldershot: Ashgate, 2002). 19 Bowling, B., “Transnational Policing: The Globalization Thesis, a Typology and a Research Agenda.” Policing 3, 2 (2009), 149. 20 Although a discussion on the exact definition of “economic crime” might be warranted, such discussion falls outside the scope of this chapter. As used here, the term “economic crime” is loosely interchangeable with “white-collar crime” (a term more used by criminologists, see Levi, M, “Organised and financial crime”, in Handbook of Policing Newburn T., ed., (Cullompton: Willan, 2006), 445) and thus includes subsets such as fraud and money laundering. 15

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territorial borders,21 but certain types of fraud – for example, value-added tax “carousel” fraud – are by definition transnational. In particular economic crimes, including laundering the proceeds of crime benefit greatly from differences in jurisdictions. It may therefore be reasonable to expect that the private investigation industry also engages in transnational activities; a reality demonstrated later in this chapter. However, the transnational activities of private investigation firms have received little or no attention in the academic literature on private security, with even the comparative studies of the private investigation situation in different jurisdictions22 failing to discuss its transnational aspects. For instance, Johnston touches only superficially on private investigation in a transnational context,23 while Johnston and Stenning, although they discuss the challenges and accountability of transnational private policing, pay no specific attention to private investigation.24 Hence, in general, no research has been published to date that specifically addresses the transnational activities of private investigators. The purpose of this chapter is to broadly map relevant aspects of transnational private investigative activity and propose a research agenda for this field. As such, it is explorative and aims more to scope the terrain of transnational cooperation in private investigation than to fill the current gap in the academic literature. To do so, it draws largely on a review of the literature on both private policing and transnational police cooperation, as well as on data collected from the media, government, and legal proceedings. After briefly outlining the private investigation industry – including its definition, activities, methods, and regulation, size and nature – the discussion focuses on the “high end” investigation industry that can 21 Oliver, K., “Civil interim measures in England.” in Recovering Stolen Assets: A Practitioner’s Handbook (Basel: Basel Institute on Governance, International Centre for Asset Recovery, 2009). 22 E.g. Button, M. “Beyond the Public Gaze. The Exclusion of Private Investigators from the British Debate over Regulating Private Security”, in International Journal of the Sociology of Law 26, (1998): 1–16; Batelaan and Bos, International; De Waard, J. “The private security industry in international perspective.” European Journal on Criminal Policy and Research 7, 2 (1999). 23 Johnston, L. “Private investigation.”, in The Handbook of Criminal Investigation, Newburn, T, Williamson, T. and Wright, A., eds., (Cullompton: Willan, 2007), 291. 24 Johnston, L. and Stenning, P., “Challenges of governance and accountability for transnational private policing.”, in International Police Cooperation. Emerging issues, theory and practice, Lemieux, F. ed. (Cullompton: Willan, 2010).

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be expected to engage in transnational activities more than other actors in the industry. To open the door for a more nuanced assessment of transnational activity in private investigation, it then classifies the ways in which such activity may manifest and illustrates each of the four categories with real world examples. Thereafter it examines a number of legal issues and challenges to democratic governance that private investigation incurs. Besides addressing the challenges discussed in the extant literature, it identifies a number of additional challenges that are specific to transnational private investigative activity and succinctly illustrates these latter using a recent case of transnational private investigation. After summarising the key elements already discussed, the chapter concludes by outlining a possible research agenda for the field.

The private investigation industry Definitions and activities The concept of private investigation or private investigator is difficult to define because several other occupations undertake similar activities.25 Gill and Hart, for example, briefly define a private investigator as “an individual who either runs or is employed by a business which provides investigation services for a fee,” a description that could include other occupational groups that engage in investigative activity for a fee, including process servers, bailiffs, journalists, and even lawyers.26 Some definitions include in-house investigation units within industries like insurance, banking, and multinational corporations,27 and George and Button suggest an even broader definition for what they term “professional investigators”: “Individuals (whether in house or contract) and firms (other than public enforcement bodies) who offer services related to the obtaining, selling or supplying of any information related to the identity, conduct, movements, whereabouts, associations, transactions or character of any person, group of persons or association, or any other type of organisation.”28

25

Button, Beyond, 2; Johnston, Private, 277. Gill and Hart, Policing, 119. 27 Guarino Ghezzi, S., “A Private Network of Social Control: Insurance Investigation Units.” Social Problems 30, 5 (1983), 521. 28 George, B. and Button, M., Private Security (Leicester: Perpetuity Press, 2000), 88. 26

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Other definitions of private investigation can be found in regulatory frameworks. For example, the UK Private Security Industry Act 2001 defines private investigation as “surveillance, inquiries or investigations that are carried out for the purpose of (a) obtaining information about a particular person or about the activities or whereabouts of a particular person; or (b) obtaining information about the circumstances in which or means by which property has been lost or damaged.”29

Similarly, the Dutch Law on private security and investigation agencies defines private investigators as “an individual or legal entity that as an occupation undertakes investigation activities aimed at one or more natural persons for a profit, on request of a third party in relation to the interests of that third party,”30 and defines investigation activities as “the collection and analysis of data”. In particular the Dutch definition’s focus on natural persons suggests that it has been informed by data protection legislation. Both the Dutch and UK definitions could equally relate to (some of) the activities of lawyers and forensic accountants and this ambiguity, which is confirmed by the fact that both in the Netherlands and in the UK accountants are explicitly excluded from the reach of the private security regulation,31 is evidence of the struggle that also legislators face when defining private investigation. Besides using diverse definitions, authors also differ in their approach to describing private investigative activities: Johnston provides a list of functions undertaken by the private investigation sector,32 whereas Gill and Hart distinguish seven areas of activity.33 Prenzler, in a more aggregate classification, distinguishes four main categories: “fraud investigation work”; “legal work”, including factual enquiries, locating persons, and serving legal documents or recovering property; “commercial work”, involving a miscellany of services such as debugging, preemployment checks, and specialised investigations (e.g. for copyright 29

UK Private Security Industry Act of 2001, Schedule 2, Article 4(1). Article 1.1.e and 1.1.f Wet particuliere beveiligingsorganisaties en recherchebureaus 1997, author translation from the Dutch. 31 See Article 1.3 Wet particuliere beveiligingsorganisaties en recherchebureaus 1997 and Schedule 2, Paragraph 4(5) UK Private Security Act of 2001. In the UK the activities of lawyers are also excluded by Schedule 2 Paragraphs 4 (4). 32 Johnston, Private, 294. 33 Gill and Hart, Exploring, 553. 30

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violations); and “domestic work”, including finding missing persons, abduction recoveries, or spousal fidelity checks.34 .

Methods Although it is generally maintained that private police do not have law enforcement powers, Stenning argues that such a comprehensive statement is misleading and that the powers of private police should not be underestimated.35 In private investigation, the palette of both overt and covert investigation methods could in fact resemble that available to public police investigations, which led Gill and Hart to comment that, as regards the private investigation industry in Britain, “investigators are free to use whatever methods they see fit in the interests of speed and efficiency.”36 Nonetheless, the legitimacy of specific methods may differ between jurisdictions. In the Dutch situation, for example, a binding code of conduct37 regulates the (limits) of investigative methods like interviews; surveillance, including the use of video equipment and electronic (GPS) tracking devices, undercover actions, including pretexting,38 dumpster diving,39 the recording of (tele)communication,40 and the investigation and analysis of digital data. In the state of California, in contrast, the use of electronic tracking devices to determine a person’s location or movement is prohibited,41 but private investigators may – with a permit – carry a firearm,42 something that would be unthinkable in the Netherlands. This 34

Prenzler, Private, 6. Stenning, Powers, 329. 36 Gill and Hart, Enforcing, 254. 37 Privacygedragscode Sector Particuliere Onderzoeksbureaus (6 mei 2009). 38 Pre-texting, in the UK known as “blagging”, is the act of creating and using a made-up scenario in which information is solicited from a subject often through the impersonation a co-worker, official, or anyone to whom it is expected that the subject will divulge information. 39 Dumpster diving is the targeted collection and examination of trash of the subject either to find useful items, but in the setting of (private) investigations, to find useful information with regard to the subject. 40 In most jurisdictions the interception and recording without lawful authority of communication in the course of its transmission through a public telecommunication system constitutes an offence, however the interception of communication through a private telecommunication system (such as a corporate switchboard) may be legitimate. 41 California Penal Code Section 637.7. 42 See http://www.bsis.ca.gov/forms_pubs/pi_fact.shtml (last visited 8 February 2013). Although in the United States, the right to keep and bear arms is codified in 35

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example illustrates only one of myriad jurisdictional variations in the legality of investigative methods whose mapping across the board would require significant research. In addition to these more traditional investigative methods, the collection of publicly available information is becoming increasingly relevant for private investigators. Not only can significant amounts of detailed information be obtained from credit bureaux and data providers such as LexisNexis/Accurint,43 Bureau van Dijk,44 and Experian,45 also social media such as Facebook, Twitter, and Linkedin constitute important sources of (personal) information on individuals.46 Additionally, when working for a corporate client, the private investigator can in many jurisdictions derive legal powers for certain investigative methods from the client based on contract, property, or employment law.47 For instance, employment contracts and corporate regulations may contain clauses that allow the employer – and thus by proxy a private investigator hired by the employer – to access any (digital) data on the employee available in the corporate environment, including e-mail, web-browsing history, access system data, and fuel cards. In many instances, the employer is also the legal owner of the employee’s mobile phone and is the actual subscriber of the employee’s mobile number, which gives access to even more data. Thus, when the subject of an investigation uses a smart phone, a year’s worth of geo-location and messaging data may become available to the investigator.48 Indeed, the “high end” private investigation firms (discussed below) that particularly service the corporate investigations market frequently make use of sophisticated data acquisition and analytic software. It is not hard to imagine how much influence a private investigation could have on a subject’s personal life once the data collected from publicly available sources and through more traditional investigative methods are combined with those available in the corporate environment. the Second Amendment to the Constitution this right is not unlimited and is subject to prohibitions and regulations. 43 See http://www.lexisnexis.com/risk/ (last visited 8 February 2013). 44 See http://www.bvdinfo.com (last visited 8 February 2013). 45 See http://www.experian.com/ (last 8 February 2013). 46 See, for example, Dibben, K. “Private investigators use Facebook to uncover insurance fraud, Sunday Mail (Qld), 25 April 2010. 47 See Stenning, Powers, 332. 48 See, for example, Chen, B. “Why and How Apple Is Collecting Your iPhone Location Data,” Wired, 21 April 2011.

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Regulation As previously pointed out, regulation of the private investigation industry varies considerably throughout the world, from total prohibition on pain of a prison sentence, to no regulation whatsoever. For example, the United Kingdom as yet has no requirement for a private investigator to be licensed,49 although such licensing has been the subject of much debate,50 one refuelled by the recent “News of the World” scandal.51 The Netherlands, Belgium, Germany, France, Ireland, and Poland, on the other hand, all regulate private investigation activities, although there are significant differences in the scope of the regulation, its administration (centralised vs. decentralised system), the requirements for professional expertise and trustworthiness, and licensing enforcement.52 In addition, although regulation of private investigators is usually based on a licensing or registration system, it sometimes also includes restrictions on the way investigations can be carried out53 or, as discussed above, specific methods that may or may not be used. Other sources of regulation derive from the self-imposed standards and disciplinary systems of professional groups engaged in private investigation, such as chartered accountants and lawyers, and the limitations imposed by data protection laws on the type and scope of data that private investigators can collect. On the whole, however, the differences between jurisdictions, even within the EU, are significant yet largely ignored in the research to date, especially in relation to cross-border consequences.

49

The situation is rather more complicated in that private investigations are defined as activities liable to control under the 2001 Private Security Industry Act (see Schedule 2, Article 4). However, the Security Industry Authority does not currently license these activities. 50 Button, Beyond. 51 See, for example, “Does anybody regulate private investigators?”, BBC News, 9 November 2011, available at http://www.bbc.co.uk/news/uk-15633310 (last visited 8 February 2013). 52 Batelaan and Bos, International, xiii–xvi. 53 Button, Beyond, 5.

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Size and nature of the industry The size of the private policing industry is the subject of debate partly because this “industry” is not a clearly defined homogenous group.54 Hence, although Button estimates the size of the private policing industry in Europe at just over one million staff,55 it is not clear what portion of this number represents private investigation. Various studies do suggest, however, that the number of private investigators is usually much smaller than the number of their uniformed colleagues. For example, in comparison to the 30,000 uniformed guards active in the Netherlands,56 the number of licensed private investigators is less than 800.57 In Belgium, the number of individually licensed private investigators is just under 1,10058 compared to 18,000 uniformed private police,59 while in Britain, the number of private investigators has been estimated at between 3,000 and 15,00060 compared to 150,000 uniformed private police.61 Even more interesting than the exact number of private investigators is that the vast majority of private investigation firms are small businesses, many with sole traders.62 Current data from the Netherlands also show that whereas 425 private investigation agencies are licensed, only 12% of these

54 Van Steden R. and Sarre, R., “The Growth of Private Security: Trends in the European Union.”Security Journal 20, (2007) 223. 55 Button, Assessing, 111. 56 Van Steden, Privatising, 158. 57 These data, obtained through FOIA requests to the Dutch Ministry of Security and Justice and the 25 regional police agencies, show that as of 31 December 2011 a total of 736 private investigators are individually registered with the police, which constitutes a slight increase from 1997 when 630 investigators were officially performing activities in the Netherlands, see De Waard, The private, 149. However, the author has reason to doubt the accuracy of the data. provided by the police as one third of the companies that have a license according to Ministry of Security and Justice data are not represented in police data. 58 See Lijst vergunde prive detectives [list of licensed private investigators] on the Belgian Interior Ministry website: https://vigilis.ibz.be/upload/documents/or_detectives.pdf (list of 22 March 2012, last visited 6 April 2012). 59 Button, Assessing, 111. 60 Gill and Hart, Policing, 118. 61 Button, Assessing, 111. 62 Gill and Hart, Policing, 120; Papanicolaou, G. “Greece.” Plural Policing: A Comparative Perspective, Jones T. and Newburn, T., eds., (London: Routledge, 2006), 87; Tashiro, The Japanese, 58.

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agencies employ 4 or more investigators, and no more than 11 firms (2.5%) can be classified as “high end”.63 This high end of the industry includes the firms that Gill and Hart classify as “prestige” companies,64 and is labelled by Williams as the forensic accounting and corporate investigation (FACI) industry.65 After first emerging in 1960 in Canada, where they played a support role for public police that lacked the expertise to investigate sophisticated financial fraud, these high-end firms gradually began catering specifically to the needs of the corporate sector, which began increasingly to use their professional services.66 Hence, the working assumption here is that, as elaborated in the next section, high-end investigative firms in particular will engage in transnational private investigation activities.

Internationalisation of private investigation The assumption that the “high end” of the private investigation industry particularly will engage in transnational activities is based on Gill and Hart’s finding that smaller firms derive their work mostly from the local legal profession,67 while Williams argues that the high end of the industry consists of professional service providers that specifically offer their services to the corporate sector.68 These latter are thus more (or exclusively) involved in what Prenzler calls “fraud investigation” work rather than “domestic work”.69 Accordingly, while recognising that smaller firms located in European border regions are also likely to undertake transnational activities like cross-border surveillance, the remainder of this chapter focuses on the high end of the investigation industry. Most particularly, it compensates for the little or no attention paid to the transnational aspects of private security and private investigation by exploring the different transnational aspects observable in this area. In doing so, to provide a structural framework for further research and analysis, it classifies the manifestations of transnational activity in private investigation into four categories: (a) unilateral cross63

Data as of 31 December 2011 obtained through FOIA requests to the Dutch Ministry of Security and Justice and the 25 regional police agencies. 64 Gill and Hart, Policing, 139. 65 Williams, Reflections, 317. 66 Ibid. 67 Gill and Hart, Policing, 138. 68 Williams, Reflections, 317 69 Prenzler, Private, 6.

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border activities, (b) cross-border cooperation, (c) multinational investigative firms, and (d) international standards.

a. Unilateral cross-border activities The most straightforward manifestation of transnational private investigative activity is the private investigator unilaterally crossing the border of the home country70 (A) to undertake investigation activities in the territory of another country (B); for example, in the form of (continued) subject surveillance, interviews with witnesses/victims/ subjects, or other such information collection. The results of the investigation activities are then taken back to country A and used, for instance, as evidence in a civil case. Private investigators sometimes fly all over the world to undertake investigation activities.71 Another more complex but not unlikely scenario is an investigator from country A being contracted by a corporation or international organisation in country B to investigate a case in country C who has to obtain statements and other evidence in additional countries D, E, etc. This latter case is exemplified by the external consultants occasionally hired by New York-based UNDP to investigate allegations of wrongdoing of UNDP staff elsewhere in the world.72 But also relatively simple information gathering from publicly available online sources like corporate registries in another country may qualify as a unilateral transnational activity. For police, the unilateral crossing of borders and engagement in activities on another state’s territory would imply a breach of that state’s sovereignty, which is unacceptable for most, if not all, states. Over the past two decades, however, under the Schengen Agreement and Prüm Convention, European Union (EU) member states have gradually begun to allow police from other member states to conduct activities on their territory.73 The situation for private investigators, however, is nowhere near so straightforward and depends on the extent to which private investigation activities are regulated in the country of occurrence. In the 70 For the sake of brevity, the terms “country”, “territory”, and “jurisdiction” are used synonymously. 71 See for example, “Freed Briton reveals earlier Cuba mission”, BBC News, 27 November 2000. 72 UNDP, Investigation Guidelines (New York: United Nations Development Programme, Office of Audit and Investigations, Investigations Section, 2010), 13. 73 Block, From Politics, 60.

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EU the regulation of private investigation differs significantly between member states, but the cross-frontier provision of services has been regulated since 2006 based on an EU directive74 under which private investigation services also fall. As a result, private investigators that are licensed in one member state may provide their services in any other EU member state with a minimum of bureaucratic obstacles. The European Commission even has a “private detective” category in its regulated professions database,75 which aims to aid the application of a directive on the recognition of professional qualifications in other EU member states. It should be noted, however, that there is little knowledge of how this application works in practice, possibly because the enforcement of private investigator regulations in many member states does not seem very wellstructured.76 Also differences in data protection legislation may further complicate cross-border activities by private investigators, even in the EU in spite of an EU directive77 that provides some harmonisation between the member states’ legislation.

b. Cross-border cooperation The second category of transnational activity manifestations includes those in which a private investigation firm from country A contracts a private investigation firm in country B to perform services, which could range from surveillance78 to finding missing persons, interviewing, and or document collection or serving. This category mirrors the traditional form of police cooperation: a bilateral cooperation in which one of the parties undertakes specific activities at the request of another.79 The investigation firms find each other through such resources as the “World Association of Private Investigators (WAPI),”80 established in 2000, or more recently, 74 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27/12/2006, 36. 75

http://ec.europa.eu/internal_market/qualifications/regprof/index.cfm?fuseaction=pr ofession.general&profId=9001 (last visited 8 February 2013). 76 Batelaan and Bos, International, xv. 77 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, 23/11/1995, 31. 78 See, for example, Riley M. and Vance, A., “China Corporate Espionage Boom Knocks Wind Out of U.S. Companies”, Bloomberg, 15 March 2012. 79 Block, L., “Combating Organised Crime in Europe: Practicalities of Police Cooperation.” Policing 2, 1 (2008): 74-81. 80 See http://www.wapi.com/ (last visited 8 February 2013).

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LinkedIn groups that act as a focal point. For example, the “Worldwide Covert Surveillance Network,” a closed group with over 700 members worldwide, advertises that it is “more than a LinkedIn group; we are an international investigation NETWORK”.81 Whereas the logistic, legal, organisational, cultural, and political obstacles faced by police in (bilateral) transnational cooperation have been clearly identified in the growing body of literature on police cooperation,82 the broad literature search conducted for this chapter identified no research addressing cross border cooperation between private investigators. Some legal guidelines for cross border investigations83 exist and these suggest that legal obstacles could be expected to present major obstacles to transnational private investigation. Then again, any legal obstacles may lose importance when investigations result in private settlements84 that deflect legal scrutiny of the investigation output.

c. Multinational investigative firms The third manifestation occurs in multinational investigative firms whose focus is large corporations often headquartered in one country with divisions and subsidiaries operating in others. Such corporations, by definition, operate in multiple jurisdictions and face a diversity of issues (e.g. fraud, alleged corruption, breaches of integrity standards) that potentially include transnational elements. In fact, according to Williams, the troubles of multinational corporations make up the bulk of the caseload of the high-end investigative industry, a specialisation that is reflected in the self-promotion of many of the (larger) forensic accounting and corporate investigations firms85 that very often are multinationals themselves. Control Risks, for example, states on its website that it “…can provide a discreet, resourceful and innovative service to meet the 81

See http://www.linkedin.com/groups?gid=1882717 (last visited 8 February 2013 Block, From Politics, 153; Hewitt M. and Holmes, D., “Overview of problems facing police investigation of transnational crime”, in Investigating and Prosecuting Transnational Crime (Canterbury: University of Kent, Kent Criminal Justice Centre, 2002). 83 E.g. Deixler, B. and Martinez, D., “Cross-Border Civil and Corporate Internal Investigations”, in Proskauer on International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes (New York: Proskauer, 2012). 84 Williams, Governability, 201. 85 Williams, Private, 224. 82

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requirements of any investigation anywhere in the word.”86 Likewise, KPMG boasts that its “network of over 1900 forensic professionals work in 28 accredited practices within KPMG member firms around the world. The network brings a consistent global approach, combined with a tailored local focus, to sensitive and complicated cross-border engagements”.87

Moreover, these firms offer services that specifically relate to transnational issues, as clearly evidenced by U.S.-based PwC’s explanation of its capabilities in relation to the Foreign Corrupt Practices Act: “PwC’s Forensics services practice provides confidential, global resources to assist companies across the full spectrum of FCPA compliance. We perform background diligence investigations on agents and intermediaries, and conduct transactional investigations, under the direction of a company and its counsel. Our professionals have a global presence in over 70 territories.”88

These marketing expressions clearly demonstrate that the multinational investigation firms at least have the intention and possibly the capacity to undertake transnational investigations. However, although the literature does offer some case studies of such investigations,89 the exact scope and volume undertaken by the high-end investigative industry remains unclear.

d. International standards The fourth and last category of manifestations of transnational activity in private investigation is the emergence of international standards in the field of private investigation, exemplified most prominently by the Association of Certified Fraud Examiners (ACFE), which currently has nearly 65,000 members worldwide trained according to a common standard: 86

See http://www.controlrisks.com/Services/Integrity/investigations/Pages/Home.aspx (last visited 8 February 2013). 87 See http://www.kpmg.com/global/en/services/advisory/risk-consulting/forensic/pages/default.aspx (last visited 8 February 2013). 88 See http://www.pwc.com/us/en/forensic-services/foreign-corrupt-practices-actfcpa.jhtml (last visited 8 February 2013). 89 See for, example, the case study provided by Williams in Williams, Reflections, 316.

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“The Certified Fraud Examiner (CFE) credential denotes proven expertise in fraud prevention, detection and deterrence. CFEs around the world help protect the global economy by uncovering fraud and implementing processes to prevent fraud from occurring in the first place.”90

The AFCE professional standards include a code of ethics and addresses a number of practical issues, such as a categorisation of fraud (the “fraud tree”), and approaches for conducting different types of interviews. The standards influence users by virtue of the expertise on which they are based,91 and although they cannot literally be enforced, a CFE certification appears increasingly to be an important condition for employment in the high-end investigation industry, making it likely that ACFE will exert a growing influence on transnational private investigative activity. Another international standard in the private investigation field is the GIAC Certified Forensic Analyst certification in computer forensics.92 Like the ACFE standard, this standard originated in North America but seems increasingly meaningful in the industry in the rest of the world. These standards may be compared to, for example, the Interpol procedures for Disaster Victim Identification93 or the curriculum of the European Police Academy, CEPOL, that have both contributed to an increased transnational coordination between police in Europe.94

90

See http://www.acfe.com/about-the-acfe.aspx (last visited 8 February 2013). Kerwer, D., “Rules that Many Use: Standards and Global Regulation,” Governance: An International Journal of Policy, Administration, and Institutions 18, 4 (2005). 92 See http://www.giac.org/certified-professionals/directory/gcfa (last visited 8 February 2013). 93 See http://www.interpol.int/INTERPOL-expertise/Forensics/DVI (last visited 8 February 2013). 94 See http://www.cepol.europa.eu/ (last visited 8 February 2013). 91

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Accountability in private investigation Challenges of democratic governance in private investigation As briefly discussed in the introduction, several authors have pointed to the challenges and issues of legality, democratic governance, and accountability that accompany private policing. Together, these authors put forward a number of reasons why democratic governance and accountability are important issues for private investigation, reasons that can be grouped into four main classes. First, as already briefly illustrated in section 2, the accumulated power derived from employment, contract, and/or property law, combined with relatively easy access to new technology,95 and professional knowledge of the traditional investigative methods also applied by the public police,96 can result in serious intrusions into the private life of the subject of investigation. It is thus important to acknowledge that corporate goals are instrumental rather than social,97 and subjects do not have the same constitutional protection as when under investigation by public policing bodies. Moreover, it is the very “legal flexibility” that private investigators can provide to their corporate clients, that is instrumental to their needs and motivate these clients to turn to private firms rather than the police.98 Second, not only the instrumentality of private investigation and the associated effects for the subjects of investigation but also the very conduct of the private investigation industry has also led to questions and concerns. Button, for example, voices concern about the infiltration of dubious characters into the industry,99 and there is clear documentation from the UK100 of private investigators continually breaching the UK Data Protection Act 1998 by selling personal information obtained from government databases, banks, and mobile phone companies. Hoogenboom discusses the far-reaching covert operations conducted by the Wackenhut 95

See, for example, Stenning, Powers, 335. Williams, Reflections, 322. 97 Johnston, Private, 286. 98 Williams, Reflections, 329. 99 Button, Beyond, 6. 100 See, for example, Information Commissioner’s Office, What price privacy? The unlawful trade in confidential personal information (London: The Stationery Office, 2006); and more recently Atkins, C., “Watching the Detectives.” Huffington Post, May 14, 2012. 96

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Corporation (now, Group 4 Securicor) in 1990 at the request of the Alyeska Pipeline Service Company with the aim of discrediting environmental activists.101 Also even less serious behaviour by private investigators has raised questions; for instance, the 2008 discovery by the Dutch Information Commissioner that almost half of the private investigation firms in the Netherlands were failing to comply sufficiently with the Dutch Data Protection Act 2000.102 Then again, as Williams notes, questionable conduct is not always an issue of the legality versus illegality of industry practices per se; also problematic is the absence of clear criteria for judging the legal status of these practices and the lack of identifiable standards to which industry practitioners can be held accountable.103 The client-driven nature of engagements may increase the tension between commercial imperatives and professional standards. The third reason that accountability in private investigation is important is that the legality of the investigative methods employed, and the application of due process by private investigators are seldom challenged in court. That is, public security actors generally aim at criminal prosecution and in their quest face diverse legal and constitutional constraints, including an obligation to follow due process, such as, for example, that laid down in the UK Police and Criminal Evidence Act 1984.104 However, private investigators, and particularly those in the highend private investigation industry, are able to “selectively and strategically invoke and mobilise a variety of different legal avenues and forms of recourse, depending on the immediate objectives, needs and interests of clients”.105 In other words, they are able to go forum shopping while maintaining low visibility.106 In fact, Williams found that the vast majority of cases are resolved at the private, informal end of the judicial spectrum,

101

Hoogenboom, B., “Bedrijfsspionage. Infiltratie en inlichtingenwerk in de private sector.”, Justitiële verkenningen: Private opsporing (The Hague: WODC, 2004). 102 CBP, Naleving van de informatieplicht door particuliere recherchebureaus. Onderzoek naar de naleving van de informatieplicht bij negentien particuliere recherchebureaus (The Hague: College Berscherming Persoonsgegevens, 2008), 3. 103 Williams, Governability, 201. 104 Harfield, C. and K. Harfield, Covert Investigation (Oxford: Oxford University Press, 2005), 4. 105 Williams, Reflections, 329. 106 Williams, Governability, 189.

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with less than 20 per cent ending up in civil litigation, and a mere 1 or 2 per cent resulting in criminal charges.107 The fourth and final reason, according to Williams,108 pertains to “multiple legal proceedings and the types of standards and procedural restrictions governing the transfer of evidence and information from one legal sphere to another.” For Williams, the problem here is not only a lack of transfer protocols but also a more systemic tension between the constitutional assurances of due process and individual rights afforded within the public sector, and the legal status of investigators as private citizens removed from the constitutional burdens of state actors. Because of this tension, the legal standards at play in the transfer of cases from the private to the public domain are highly ambiguous. Notwithstanding these four reasons for concern, however, Johnston argues that there is no reason in principle, why private policing should be unable to contribute to collective well-being, “provided that it is located within an appropriate governmental regime”(emphasis in the original).109 This contingency is also acknowledged, for example, in an EU Council Recommendation on cooperation between the national authorities responsible for the private security sector,110 which argues that the stream of information generated by the activities of private security firms is of significance in the prevention of crime, and the safeguarding of public security. Stenning further argues that many of the mechanisms through which private police can be held accountable tend to be overlooked, including state regulation, industry self-regulation, criminal liability, civil liability, contract liability, and accountability through the market.111 However, Stenning also notes that the “transnational character of many of the larger private policing organisations gives them the flexibility to effectively evade some state-based regulation and control which poses problems for them,”112 a point elaborated below. 107

Williams, Private, 222. Williams, Governability, 200. 109 Johnston, L., “Transnational Private policing. The impact of global commercial security”, in Issues in transnational policing, Sheptycki J. ed. (London: Routledge, 2000), 39. 110 Council Recommendation of 13 June 2002 regarding cooperation between the competent national authorities of Member States responsible for the private security sector, OJ C 153, 27 June 2002. 111 Stenning, Powers, 337. 112 Stenning, Powers, 338. 108

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Transnational realm The assumption that the challenges for democratic governance and accountability of private investigation will be amplified, and complicated, in a transnational context by the plural legal regimes that then apply to the investigative activities,113 is supported by several observations. First, it may not always be clear which regulation applies to transnational activities, and whether these take place unilaterally, bilaterally, or multinationally. For example, Swiss data protection legislation contains a specific provision on cross-border disclosure of personal data,114 yet how many investigators will know and be able to respect and comply with the conditions that this provision imposes on cross-border personal data transfer? Second, as discussed before, legality of investigative methods differs between jurisdictions. For example, the “blagging” (i.e. making pretext calls to solicit confidential information), for which some private investigators in Britain were recently jailed,115 is an admissible private investigative method in many other jurisdictions. So what if a pretext call is made from across the border? As a third illustration, it is also unclear which rules for due process apply to a transnational investigation. Should private investigators follow the rules of the jurisdiction in which the investigative activities take place, the jurisdiction in which the investigator originates, the jurisdiction in which the client is based, the jurisdiction in which the results will be used, or a combination of all four? To deal with this confusion, international organisations and governments frequently impose their own investigative standards on both their own staff and any private investigators they hire. For instance, the UNDP Investigation Guidelines116 clearly outline the admissible methods and due process that an external consultant must follow when investigating on behalf of the UNDP. According to Williams, this loose coupling of private investigations and formal legal frameworks represents one of the most significant limits to the governability of the industry.117 Yet the above questions clearly indicate that in the transnational realm, engagements are even more 113

See also Johnston and Stenning, Challenges, 294. Swiss Federal Act on Data Protection, Article 6. 115 See “Private detectives given jail terms for ‘blagging’”, BBC News, 27 February 2012. 116 UNDP, Investigation. 117 Williams, Governability, 201. 114

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removed from the possibility of legal scrutiny and redress because the location of the client, the investigator, the subject of investigation, and the “settlement” may all be different. Thus, as Williams points out, for a significant number of cases, the question of legal standards is “largely a moot point,”118 and private investigators may, for instance, choose to apply methods in the jurisdiction that sanctions them, or that will accept the evidence at hand. In fact, Sheptycki, in a discussion of transnational police investigations,119 eloquently argues that “proficiency with the transnational kaleidoscope of legal rules is requisite for membership in the sub-culture of transnational policing,” an observation that may very well also apply to private investigators in the transnational realm. One may of course wonder whether these accountability challenges in a transnational private investigative context are not a mere theoretical exercise. The following case, however, demonstrates that they are all too real. In 2010, the Ukrainian President Viktor Yanukovych's administration hired two U.S. law firms, together with a well-known high-end investigation firm, to investigate six alleged cases of fraud by members of the former government under Yulyia Tymoshenko.120 The report of the investigation – of which a full and un-redacted copy is published on the website of Ukraine’s Ministry of Finance121 – not only reads like a novel but also clearly reveals that the investigation, at least as presented in the report,122 lacks any (internationally) accepted standard of due process and investigative independence. It does not, for example, stipulate which standard of proof was applied nor does it show that the subjects were given the opportunity to be heard or to comment. It also makes clear that large parts of the evidence, rather than being independently collected and verified by the investigators, were simply handed to them by Ukrainian government employees. Moreover, the report’s conclusions not only build on hearsay from confidential, and thus unverifiable, interviews, intertwined with documentary evidence, but totally ignore any alternative 118

Williams, Governability, 201. Sheptucki, In Search, 89. 120 U.S. firms hired for probe, Kyiv Post 20 May 2010, available at www.kyivpost.com/news/nation/detail/67370/ (last visited 8 February 2013). 121 See http://www.minfin.gov.ua/control/en/publish/article?art_id=274247&cat_id =54644 (last visited 8 February 2013). 122 For this research, the author has so far only been able to scrutinise the methodology chapter and first case detailed in the report. Nonetheless, the general methodology (see 11–15 of the report) under which the investigation was conducted applies to all six cases. 119

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explanations for the events. Nonetheless, the names of the high-end firms and the use of ostensibly sophisticated analytical techniques like linkanalysis schemes lent the report certain credibility, and the new Ukrainian government subsequently used it to legitimise purgatory action against former cabinet members, landing Yuliya Tymoshenko in jail, and some of the persons mentioned in the report on Interpol’s being placed wanted list. The obvious question emerging from this case is how the subjects of investigation can seek redress from these investigative firms for not following evidentiary standards and due process in the investigation, thereby handing the new political regime a ready retributive tool with serious consequences for these subjects. Although the accountability mechanisms identified by Stenning (see above) may apply in theory, the individuals who were subjected to this form of private policing may find it challenging (to say the least) to apply them in practice.

Conclusions Based on a review of the literature, this chapter discussed a number of key issues and insights related to private investigation activities, and then set these issues and insights in a transnational context. One key finding of the literature review is that, as regards transnational private investigative activity, the extant literature on private investigation is marked by a notable empirical void and that, beyond some anecdotal information contained in case studies and media reports, the understanding of this realm is rather limited. The chapter therefore addressed different aspects of private investigation as a basis for further exploration of the subject, not in the hope of offering a comprehensive overview of the field but merely to provide a starting point for a discussion on transnational activities in this area. To provide a structural framework for further research and analysis and facilitate a more nuanced assessment, this chapter proposed four categories of transnational activity manifestations in private investigation. It also explored a number of challenges and issues related to legality, democratic governance, and accountability that tend to accompany private investigation. Most particularly, it provided clear illustration that the transnational context complicates and amplifies the challenges of legality and accountability that already exist in single-jurisdictional private investigations.

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Based on the issues discussed in the chapter, this final section proposes a research agenda that may help fill the current empirical void in the field of transnational activity in private investigation. Specifically, it poses four sets of questions that may guide future research. The first set relates to the scope and nature of transnational activities in private investigations. For example, how often do private investigators engage in transnational activity? What is the nature of their transnational engagements? Does the high-end private investigation industry indeed engage more often in transnational activity than smaller firms? Is the proposed classification of transnational activity manifestations exhaustive, sufficiently precise, and conceptually sound, and if not, what would be a better classification? The second set of questions concerns the actual mechanisms of transnational activity. That is, how do transnational investigations actually take place? What obstacles are encountered, and what solutions do or do not work? What specific types of decisions need to be made in transnational investigations, and how should these be addressed? What competences must private investigators have to be successful in the transnational realm? The third set of questions relates to (comparative) legal questions on the methods, conduct, and products of (transnational) private investigations. What different regulatory frameworks and professional standards exist, and what are the common denominators in these frameworks? In which ways are products of transnational private investigation used in legal procedures, and what are the different perspectives on their admissibility as evidence in different types of proceedings? Are there any possibilities for transnational regulation? Finally, the fourth set addresses diverse issues related to democratic governance and accountability. What, for example, is the potential value and applicability in the transnational realm of the national mechanisms through which private police are held accountable? Are private investigation firms more accountable if they work for an international organisation or government that imposes its own standards on the way the investigation is conducted? How does the tension between commercial imperatives and professional standards manifest itself in transnational investigative work?

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As these questions imply, much research needs to be done to achieve a clear understanding of transnational activity in private investigation. The only option for further assessing these issues, no matter how evasive the object of research, is on-the-ground empirical (ethnographic) research in the field.

Bibliography Anderson, M. and Den Boer, M., Policing Across National Boundaries, London: Pinter Publishers, 1994. Andreas, P. and Nadelmann, E., Policing the Globe. Criminalization and Crime Control in International relations, Oxford, Oxford University Press, 2006. Atkins, C., “Watching the Detectives”, Huffington Post, May 14, 2012. Batelaan, H. and Bos, J., International Security Guards and Investigators: Survey of Regulations on Private Security and Investigation in Six EU Countries, Amsterdam: Regioplan, 2006. Block, L.. “Combating Organised Crime in Europe: Practicalities of Police Cooperation”, Policing 2, 1 (2008), 74–81. —. From Politics to Policing: The Rationality Gap in EU Council PolicyMaking. The Hague: Eleven International Publishing, 2011. Bowling, B., “Transnational Policing: The Globalization Thesis, a Typology and a Research Agenda”, Policing 3, 2 (2009) 149–160. Button, M., “Beyond the Public Gaze. The Exclusion of Private Investigators from the British Debate over Regulating Private Security”, International Journal of the Sociology of Law 26, (1998) 1– 16. —. “Assessing the Regulation of Private Security across Europe.”, European Journal of Criminology 4, 1 (2007) 109–128. —. “Fraud investigation and the ‘flawed architecture’ of counter fraud entities in the United Kingdom.” International Journal of Law, Crime and Justice 39 (2011) 249-265. CBP, Naleving van de informatieplicht door particuliere recherchebureaus. Onderzoek naar de naleving van de informatieplicht bij negentien particuliere recherchebureaus, The Hague: College Bescherming Persoonsgegevens, 2008. Chen, B., “Why and How Apple Is Collecting Your iPhone Location Data”, Wired, 21 April 2011. Council of the European Union, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376 of 27 December 2006.

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Deixler, B. and Martinez. D., “Cross-Border Civil and Corporate Internal Investigations,” in Proskauer on International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes. New York: Proskauer, 2012. De Waard, J., “The private security industry in international perspective,”,European Journal on Criminal Policy and Research 7, 2 (1999) 143–74. Dibben, K., “Private investigators use Facebook to uncover insurance fraud,”, Sunday Mail (Qld), 25 April 2010. George, B. and Button, M., Private Security, Leicester: Perpetuity Press, 2000. Gill, M. and Hart, J., “Policing as a business: The Organisation and Structure of Private Investigation.”, Policing & Society 7 (1997) 117– 141. —. “Exploring Investigation Policing. A Study of Private detectives in Britain”, British Journal of Criminology 37, 4 (1997) 549–567. —. “Enforcing Corporate Security using Private Investigators”, in European Journal on Criminal Policy and Research 7 (1999) 245–261. Guarino Ghezzi, S., “A Private Network of Social Control: Insurance Investigation Units.”, Social Problems 30, 5 (1983) 521–531. Gunther Moor, L. and Van der Vijver, C., “Privatisering van opsporing Een kader voor normering”, Justitiële verkenningen: Private opsporing, 77–86, The Hague: WODC, 2004. Harfield, C. and Harfield, K., Covert Investigation. Oxford: Oxford University Press, 2006. Hewitt, M. and Holmes, D., “Overview of problems facing police investigation of transnational crime”, in Investigating and Prosecuting Transnational Crime, 1–12, Canterbury: University of Kent, Kent Criminal Justice Centre, 2002. Hoogenboom, B., “Bedrijfsspionage. Infiltratie en inlichtingenwerk in de private sector”, in Justitiële verkenningen: Private opsporing, 54–64. The Hague: WODC, 2004. Hufnagel, S., Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia. Aldershot: Ashgate, 2013, forthcoming. Information Commissioner’s Office, What price privacy? The unlawful trade in confidential personal information. London, The Stationery Office, 2006. Johnston, L., The Rebirth of Private Policing. London: Routledge, 1992.

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—. “Transnational Private policing. The impact of global commercial security”, in Issues in transnational policing, edited by J Sheptycki, 21–42. London, Routledge, 2000. —. “Private investigation”, in The Handbook of Criminal Investigation, edited by Newburn, T., Williamson T. and Wright, A. 277-298. Cullompton: Willan, 2007. Johnston, L. and Stenning, P., “Challenges of governance and accountability for transnational private policing”, in International Police Cooperation. Emerging issues, theory and practice edited by Lemieux, F. 281–297. Cullompton, Willan, 2010. Kerwer, D., “Rules that Many Use: Standards and Global Regulation”, Governance: An International Journal of Policy, Administration, and Institutions 18, 4 (2005), 611–632. Levi, M., “Organised and financial crime”, in Handbook of Policing edited by Newburn, T. 444–466. Cullompton, Willan, 2006. Meerts, C. and Dorn, N., “Corporate Security and Private Justice: Danger Signs?”, European Journal of Crime, Criminal Law and Criminal Justice 17, (2009), 97–111. Minnaar, A.,“Oversight and Monitoring of non-stare/private Policing: The Private Security Practitioners in South Africa”, in Private Security in Africa, Manifestation, Challenges and Regulation, edited by Gumedze, S., 127-148. Pretoria: Institute for Security Studies, (2007). Oliver, K., “Civil interim measures in England”, in Recovering Stolen Assets: A Practitioner’s Handbook, 89–99. Basel, Basel Institute on Governance, International Centre for Asset Recovery, 2009. Papanicolaou, G., “Greece”, in Plural Policing: A Comparative Perspective edited by Jones T. and T. Newburn, T., 77–97, London, Routledge, 2006. Prenzler, T., Private Investigators in Australia: Work, Law, Ethics and Regulation. Report to the Criminology Research Council. Brisbane: Griffith University, 2001. Reiss, A., “The legitimacy of intrusion into private space”, in Private Policing edited by Shearing C. and Stenning, P., 19–44, London, Sage, 1987. Riley, M. and Vance, A., “China Corporate Espionage Boom Knocks Wind Out of U.S. Companies”, Bloomberg, 15 March 2012. Schneider, S., “Privatizing Economic Crime Enforcement: Exploring the Role of Private Sector Investigative Agencies in Combating Money Laundering”, Policing & Society 16, 3 (2006) 285–312.

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Scott, T. and McPherson, M., “The Development of the Private Sector of the Criminal Justice System”, Law and Society Review 6, 2 (1971), 267-288. Shearing, C. and Stenning, P., “Private Security: Implications for Social Control”, Social Problems 30, 5 (1983), 493-506. —. Private Policing. London, Sage, 1987. Sheptycki, J., In Search of Transnational Policing, Aldershot: Ashgate, 2002. Stenning, P., “Powers and Accountability of Private Police”, in European Journal on Criminal Policy and Research 8 (2000) 325–352. Tashiro, H., “The Japanese Investigative Industry: Toward the Year 2000”, Competitive Intelligence Review 8, 2 (1997) 58-62. UNDP, Investigation Guidelines, New York, United Nations Development Programme, Office of Audit and Investigations, Investigations Section, 2010. Van Steden, R., Privatizing Policing. Describing and explaining the growth of private security. The Hague, Boom Legal Publishers, 2007. Van Steden, R and Sarre, R., “The Growth of Private Security: Trends in the European Union”, Security Journal 20, (2007): 222–235. Williams, J., “Reflections of the Private versus Public Policing of Economic Crime”, British Journal of Criminology 45 (2005) 316–339. —. “Governability Matters: The Private Policing of Economic Crime and the Challenge of Democratic Governance”, Policing & Society 15, 2 (2005), 187–221. —. “Private Legal Orders: Professional Markets and the Commodification of Financial Governance”, Social & Legal Studies, 15, 2 (2006), 209– 235.

CHAPTER SIX NON CONVICTION BASED ASSET RECOVERY: LESSONS TO BE DERIVED FROM THE UK EXPERIENCE OF CIVIL RECOVERY REGIME FOR THE PROPOSED DIRECTIVE ON THE FREEZING AND CONFISCATION OF PROCEEDS OF CRIME IN THE EU KEN SWINTON

Since 1991 the successive money laundering directives1 have provided a system applicable across the European Union (EU) to prevent the financial system, broadly defined, from being used as a conduit for the proceeds of crime. The directives as transposed into the domestic orders of member states now give effect to requirements of Article 6 of the United Nations Convention against Transnational Organized Crime (the Palermo Convention).2 This article requires signatory states to criminalise the laundering of proceeds of crime but imposes no obligation on states to deprive criminals of the proceeds of their criminal activities. The Palermo 1

First Money Laundering Directive, Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ 1991 L166/77, Second Money Laundering Directive, Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, OJ L 344, 28/12/2001, 76, and Third Money Laundering Directive, Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (Text with EEA relevance), OJ L 309, 25/11/2005, 15. 2 United Nations Convention against Transnational Organized Crime adopted by General Assembly resolution 55/25 of 15 November 2000.

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Convention deals broadly with combating transnational organised crime and addresses the deprivation of assets in Article 12 which has no counterpart in the money laundering directives. This requires signatories to adopt such measures as may be necessary to enable the identification, tracing,3 freezing or seizure of the proceeds of crime or property representing those proceeds. While EU member states may comply with the Palermo Convention and the relevant framework decisions4 there is a lack of a coherent comprehensive strategy across the EU in relation to confiscation of the proceeds of crime which was recognised in the Stockholm Programme.5 The European Commission has recently issued a proposal for a directive on the proceeds of crime in pursuance of the Stockholm agenda.6 This chapter will examine whether lessons applicable at EU level can be drawn from the United Kingdom (UK) experience7 in relation to non-conviction based recovery of assets which represent the proceeds of crime.8

3

This may be used in the operational policing sense or in the doctrinal sense of following the legal title to assets or property representing them. 4 Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 182, 05/07/2001, 1, Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, OJ L 68, 15/03/2005, 49, Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196, 02/08/2003, 45, Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, OJ L 328, 24/11/2006, 59, Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime, OJ L 332, 18/12/2007, 103. 5 An open and secure Europe serving and protecting the citizens, Council document 17024/09, adopted by the European Council on 10/11 December 2009. 6 Proposal for a Directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union, COM(2012) 85 final [12.3.2012]. 7 Within the UK there are differences in the Scottish legal system and those of the rest of the UK which are discussed below. 8 There are two distinct regimes within the UK legislative framework – confiscation as part of the sentencing process following conviction and civil recovery where there is evidence of a criminal lifestyle whether or not a conviction has been obtained in any earlier proceedings.

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The concept of dispossessing criminals from the proceeds of their crimes is one which has proved compelling at the international level with the adoption of the Palermo Convention. The same is true at the regional level with the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime9 (the Strasbourg Convention) and domestically Parliament in the UK enacted the Proceeds of Crime Act 2002 (POCA).10 International treaties must take account of the two predominant western legal traditions. Civilian systems draw their inspiration from classical Roman law in the form of the Code of Justinian11 and employ extensive codifications of law. In contrast, common law systems do not rely to any significant extent on Roman law and as the label suggests are more reliant on the development of case law as precedent. English law and systems which can trace their lineage back to it, such as those of the United States of America, have these characteristics. Laws of the United States have proven to be an inspiration in the drafting of international instruments in this field. While the law in England, Wales and Ireland follows the common law model, Scotland has a mixed legal system which adopts the model of precedent from England. It has a civilian property root, akin to other legal systems in Europe. POCA has been enacted throughout the UK in part recognising the different legal traditions but in relation to civil recovery offering a single solution optimised for common law jurisdictions, which nonetheless applies in Scotland. Organised criminal activities often take place without respect for national boundaries and the proceeds of those activities are often distributed in the same way. If non-conviction based sanctions are to be effective against individuals then those sanctions must be effective across national boundaries. However if the regime in one member state for civil recovery is not compliant with the legal system of other member states then it is unlikely that requests for transnational assistance can be given effect by the relevant authorities there. The Commission intend to remedy this position through the implementation of the EU Internal Security Strategy, with the proposal of mutual recognition measures specifically securing the recognition of non conviction based recovery orders between

9

European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime [T141] adopted at Strasbourg on 8/111990. 10 Proceeds of Crime Act 2002 c.29. 11 Published in CE 529 - 534 and often referred to as the corpus iuris civilis.

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member states.12 However, as it stands, issues arise in relation to the standard of proof required in such proceedings. The decisions in both the UK and Strasbourg courts have permitted a proof of a criminal lifestyle rather than specific offences, with the onus then being reversed to require the defendant to show a legitimate source of funds. Some conclusions will be offered in relation to whether a broad civil recovery mechanism can respect fundamental rights in the EU, and offers a comfortable fit with civilian property law systems, or whether they are better adapted to Anglo American systems. This tension is hinted at in the opening words of the Palermo Convention Article 12 (1) - “States Parties shall adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation.” This chapter explores two issues - whether the differing property law traditions within the UK impact on the ability to embrace civil recovery of illicit property, and whether this has implications for the draft directive on the proceeds of crime which must apply throughout the EU. The second issue affecting the civil recovery of illicit property is the protection afforded by the European Convention on Human Rights and Fundamental Freedoms (ECHR),13 particularly in relation to Article 6 (fair trial), Article 7 (no punishment without crime) and Article 1 Protocol 1 (A1P1) (right to peaceful possession of property). The issues around civil recovery concern the fairness of using a lower standard of proof. If property is removed without a criminal conviction being required can this amount to punishment? In relation to A1P1, citizens are entitled to enjoyment of their possessions, and if deprived of them by the state in the absence of compensation, then the state must be able to demonstrate a legitimate purpose and that the measure is proportionate. There are doubts at to the extent to which civil recovery is compliant with those principles. Again the UK offers an opportunity to test these issues. The UK Human Rights Act 199814 mainstreams human rights under the ECHR, requiring UK courts to give effect to citizens’ convention rights.15 12

European Commission, Communication from the Commission to the European Parliament and the Council, The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM 2010, 673 Final, Action 3. 13 European Convention on Human Rights and Fundamental Freedoms adopted at Strasbourg 4/11/1950. 14 Human Rights Act 1998 c.42. 15 The Human Rights Act 1998 applies throughout the UK. Additionally public authorities bases in Scotland are required to comply with citizens convention rights in all their actions in terms of the Scotland Act 1998 c46.

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The UK Government claimed that “forfeiture is an age-old legal concept”16 in seeking to justify the introduction of civil recovery. Both Scotland and the rest of the UK developed three concepts in relation to recovering the proceeds of crime; (a) a fundamental defect in title – vitium reale which attaches to the property itself; (b) forfeiture which was restricted to death following an unlawful killing and (c) tracing which permits following either the assets into third party hands or the property received in exchange for the proceeds of crime. Each has distinct limitations. Furthermore the UK developed statutory regimes of forfeiture from the 1950s,17 which relates to the property equipment or instrumentalities18 of the offence, but not the proceeds of crime. The extension of the tools available to the authorities to civil recovery is conceptually more problematic, and is justified by the assertion that it operates in rem (against the property) rather than in personam (against the person). The limitations of the common law are discussed below in order to recognise that even within the UK the creation of a non-conviction based remedy of civil recovery involves a considerable extension of existing concepts. It is pertinent to examine these issues in this context, as, noted above, the EU Internal Security Strategy declares the Commission’s intention to develop further measures securing mutual recognition of non conviction based recovery orders between member states.19

Common law - Private civil recovery In Scots law the idea of in rem remedies in relation to the proceeds of crime can be traced from early cases where the law established that in relation to goods which had been stolen there attached a vitium reale. As this suggests this amounted to a defect in title which attached to the goods themselves.20 Unlike the position in England, where the principle of open markets operated,21 this defect in title was not cured by sale in an open 16

UK Cabinet Office, Recovering the Proceeds of Crime June 2000, CABI J005816/0006/D40. 17 The Obscene Publications Act 1959 is perhaps the best known. The Act permits seizure of obscene material and then its forfeiture. 18 Palermo Convention, Article 12.1(b). 19 European Commission, Five steps towards a more secure Europe, Action 3. 20 Scottish Law Commission Consultative Memorandum No 27 Corporeal Moveables: Protection of the Onerous Bona Fide Acquirer of Another’s Property (1976) paragraph 17. 21 Market overt originally contained in Sale of Goods Act 1893 c71 s.22. This provision was repealed with the passage of the Sale of Goods Act 1979.

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market in Scotland.22 As a result property which was stolen could always be recovered by the owner. The right to recover is now contained in statute.23 Although the exact meaning is not free from doubt,24 it appears that the criminal, or someone who acquires from the criminal, can never obtain a good title, and that the right to recover is never lost - apparently remaining real in perpetuity. The doctrine of vitium reale does not extend to property of which the owner was dispossessed by other means, such as fraud or robbery, or where property which is mislaid is simply acquired. So property can be recovered from the thief or someone who acquired from the thief. That person may have acted in good faith and the transaction may have been onerous. So, by applying a concept of recovery in favour of the true owner, to the disadvantage of an innocent third party, a remedy which operates in rem may not remove the profit from the criminal achieved by sale, to the detriment of the third party, who then has a right of recompense from the criminal. If the underlying principle is the recovery of property for the benefit of the true owner then it achieves that aim, but if the aim is to ensure that the criminal does not profit from his crime, then the application of a straightforward in rem tool, such as vitium reale, has underlying flaws. In relation to the proceeds of other crimes, such as fraud or embezzlement, the property acquired will typically be money or value in the form of an obligation to account which in English law would be a chose in action. As such rights are substitutional, there is no need to pursue a right in rem, and a remedy in personam, which returns an equivalent value, is considered a sufficient remedy. This goes someway to explaining why the concept of vitium reale has not been required to be further developed in Scots law.

Common law - Private forfeiture The courts in England, and subsequently in Scotland, have developed a broader equitable tool under the broad concept that no-one shall profit from their crime. This formed the argument in Cleaver v Mutual Reserve,25 where a wife had been found guilty of murdering her husband, 22

Bishop of Caithness v Fleshers of Edinburgh (1629) Mor 4145, 9112; Ferguson v Forrest (1639) Mor 4145; Ramsay v Wilson (1666) Mor 9112. 23 Prescription and Limitation (Scotland) Act 1973, Sch. 3 paragraph (g). 24 Scottish Law Commission DP 144 Prescription and Title to Moveable Property (2010) paragraph 2.11 et seq. 25 Cleaver v Mutual Reserve Fund Life Association [1892] 1 Q.B. 147.

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with the case centring on entitlement to the proceeds of a life policy, payable on the husband’s death to the wife and children.26 In Cleaver Fry LJ in the course of his opinion stated: “The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.”27

He was however forced to concede that there was no prior authority asserting the principle.28 The English Court of Appeal determined that particular case by treating the wife as though she had not survived, and was thus unable to inherit leaving the scope of the principle espoused by the judges uncertain. The high watermark of the principle is to be found in Beresford v Royal Insurance,29 where the principle was extended to the family of the criminal.30 Scotland, where there appeared to be no domestic precedent, has adopted the English doctrine.31 It must now be regarded as settled that the common law in both jurisdictions applies a doctrine that profit from crime, where that crime is the cause of an unlawful death, is not permitted. There is no case law which extends the principle to other criminal activity.

Common law - Tracing The doctrine of tracing32 is the strongest example of the recovery of assets operating in rem. It operates differently in Scotland and England, representing the differing cultures in civilian based property systems and Anglo American systems, which permit the existence of equitable interests in property, as well as the legal interests. This difference can be found in

26 This decision was followed in re Crippen [1911] P 108. It was not adopted in Scotland in Hunter’s Executors Petitioners 1992 SLT 1141 nevertheless the same outcome was achieved however on construction of the terms of the will. 27 Cleaver v Mutual Reserve Fund Life Association, 156. 28 Ibid. 29 Beresford v Royal Insurance [1938] AC 586. 30 Prior to the Suicide Act 1961 suicide was a crime in England. It has never been criminal in Scotland. In the instant case the deceased committed suicide and his family were disqualified from benefitting a life insurance policy. 31 Burns v Secretary of State for Scotland 1985 SLT 351. 32 It is used throughout this chapter in its doctrinal sense of following the title to the asset rather than the operational policing sense.

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Foskett v McKeown.33 The deceased had defrauded the plaintiffs of a total of over £2m in relation to a property development in Portugal. The deceased had previously taken out a life insurance policy on his own life with a death benefit of £1m. At the time of his death the deceased had paid three annual premiums from his own resources and two from the monies which were the proceeds of the fraud. The plaintiffs were those defrauded and the defendants, the family of the fraudster. The House of Lords were required to determine who should inherit. The plaintiffs argued that they were entitled to trace the premiums to the policy proceeds and recover the proportion of the proceeds which represented the proportion of the premiums paid from the funds of defrauded investors. The defendants argued that tracing should relate to the value of the premiums paid only and the balance should be available to the family. The House of Lords held by a majority of three to two for the plaintiffs - in other words that the equitable tracing was proprietary in nature and attached to the proceeds - it operated in rem. It is however instructive to note that two opinions from the bench came from those judges who had first trained in civilian/mixed property jurisdictions.34 The majority considered that they were applying rules derived from Roman law in relation to a mixed fund, and thus traced the ownership of the resulting fund through the proportion of the premiums paid from the misappropriated source.35 Lord Hope36 however, in his dissenting judgment, indicated that the civilian jurists would not have reached the same conclusion on the matter which applied to corporeal moveables which could be possessed. This type of possession is not possible in respect of the claim to payment under a policy of insurance, which is an incorporeal moveable claim. As such the civilian jurists would have resolved through the application of one of the condictiones37 as an application of the rules of unjust enrichment, which was seen as a personal 33

Foskett v McKeown [2001] 1 AC 102. Lord Steyn having called to the South African Bar in 1968 and Lord Hope of Craighead practised at the Scottish Bar before his elevation, first to the Scottish Bench and then the House of Lords. 35 The principles of commixtio of solids confusio of liquids and Institutes of Justinian, II.I.27 and 28. 36 Foskett v McKeown, 121-122. 37 The condictio indebiti and the condictio causa data causa non secuta are the most well known with the latter being the most likely to be applied had the circumstances in Foskett come before a civilian trained court. The condictio ob turpem veli iniustam causam might be most appropriate for proceeds derived from drug offences. For an excellent discussion of the the condictiones in Scots Law see Evans-Jones R, Unjustified enrichment: enrichment by deliberate conferral Thomson/W Green (2003). 34

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claim which has the effect of restricting the value of the claim which was represented by the two premium payments, rather than the proportion of the value of the policy on death of the insured. Lord Steyn, adopted the analysis of Birks,38 that tracing is the process of determining whether a claim can be made on a particular fund, and that is a prior step to determining the value of the claim which falls to be made against that fund. As such claim should be for the value and not for a share of the fund.39 Further he stated40 that the defendants had not been unjustly enriched, and the plaintiffs had not suffered loss. In such circumstances a remedy which operated in rem was inappropriate. There is no doubt that the majority in Foskett represents the position in English law.41 The division of opinion in the case however is a neat illustration of the divergence of English law and other common law jurisdictions which have an extended doctrine of tracing, and civilian systems where the remedy is restricted to a personal right.42 Where legal systems such as England Wales and Northern Ireland as well as Ireland already have well developed principles of tracing there is little difficulty in accepting civil recovery regimes, whereas the civilian systems of other member states and Scotland do not accept extended doctrines of tracing, relying on personal rights of action. As a result civil recovery may appear alien to those tasked with giving effect to such a regime. This distinction is reflected in the drafting of the Palermo Convention, as noted earlier, which permits “buy-in” from the broadest range of legal systems.43

38

Birks, P., The Necessity of a Unitary Law of Tracing in Making Commercial Law: Essays in Honour of Roy Goode Oxford : OUP 1997), 239. 39 Foskett v McKeown, 112. 40 Ibid, at 115. 41 It is, for example, cited with approval, paragraph 61 of the opinion of seven judges in the UK Supreme Court decision in R v Waya [2012] UKSC 51. 42 There is one Scottish authority Pringle v Pringle (1999) unreported, but available at http://www.scotcourts.gov.uk/opinions/0_47_17_16A_99.html, where the forfeiture principle was applied in circumstances where the pursuers had already been compensated for their loss and where the outcome of the case is that the remedy applied in rem. The defender was a party litigant and from the report it is not possible to discern the basis of the argument presented or for that matter the ratio of the court in determining the issue. 43 As noted above the opening words of Palermo Convention Article 12(1) “State Parties to the greatest extent possible within their domestic legal systems...”

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Common law - evaluation The common law recognises three concepts (1) recovery through the operation of the doctrine of vitium reale but only in respect of goods obtained by theft; (2) forfeiture where benefit is obtained, but only in cases of homicide, and (3) tracing where there is considerable divergence between the common law of the rest of the UK and the common law of Scotland. The civilian roots of Scots property law allow only a restricted role for tracing, whereas the development of equity in England has permitted an extensive concept of tracing, which can be said to operate truly in rem. In contrast, in Scotland with a developed law of unjustified enrichment, it offers remedies which operate in personam. This is equally applicable in other member states which have codified civilian based legal systems. The claims made in the UK Cabinet Office paper44 concerning the introduction of a civil recovery regime as an extension of the common law are correct only to a limited extent. It is preferable to see civil recovery for what it truly is - an innovation imposed on the legal systems in each jurisdiction within the UK, designed to dispossess a criminal of property. The Cabinet Office paper drew inspiration from legislative models in the USA and Ireland.45 It might be considered that given the differing legal traditions in relation to tracing that this imposition would be more easily grafted on to English law compared with Scots law. As will be seen in the discussion below the Scottish Courts have accepted the compatibility of civil recovery, which has implications for its potential acceptance in other member states.

Proceeds of Crime Act 200246 – civil recovery The Proceeds of Crime Act 2002 (POCA) has separate provisions enabling proceedings in England, Wales and Northern Ireland on the one hand, and Scotland on the other hand, which represents the different court traditions of the different legal jurisdictions. However POCA has a single section in relation to tracing,47 notwithstanding the different legal traditions in relation to this concept. These provisions offer the possibility of tracing recoverable property into the hands of third parties, while also 44

UK Cabinet Office, Recovering the Proceeds of Crime. Ibid. para 5.9 and 5.10, Box 2. For an evaluation of the Irish Republic regime see King, C., “Using civil processes in pursuit of criminal law objectives: a case study of non-conviction-based asset forfeiture” IJE&P (2012) 337. 46 Proceeds of Crime Act 2002 c.29. 47 Ibid. s.305. 45

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designating any property received in exchange for the recoverable property as itself part of the recoverable property. As such there exists a possibility that this can result in double counting where the perimeter of inquiry is placed around the family unit, and assets have been exchanged within the family.48 The scheme for civil recovery in the UK relies on a series of interlocking definitions. It is necessary to prove that the defendant engaged in unlawful conduct. A court order can be made in respect of “recoverable property.”49 Property is recoverable if it is obtained through unlawful conduct.50 Conduct is unlawful if it is proved to a civil standard to have been criminal in the UK. The reach of the legislation is such that it extends to the conduct outwith the UK where it must satisfy the dual criminality test in both the UK and that jurisdiction.51 The Act provides that the test for determining whether there has been unlawful conduct is to be satisfied on the civil, rather than criminal, standard – the balance of the probabilities.52 Property can be traced into converted forms, and into the hands of associates.53 Where property becomes mixed with other property, which has been legitimately obtained or is owned in shares with third parties, then it is treated as a mixed fund.54 This is therefore similar to the majority decision in Foskett,55 while the opinions of the dissenting judges represented the position in Scotland. POCA therefore imposed on Scotland, what might be regarded as a foreign regime, in relation to tracing for civil recovery. As will be seen from the discussion which follows, that does not appear to have troubled the Scottish courts, which have applied the law consistently with the courts in the rest of the UK, suggesting that the caution expressed by the draftsmen of the Palermo Convention, noted above, was misplaced. The successful reception of this concept into Scots

48 See Buchanan v Scottish Ministers [2006] CSOH 121 paragraph 42 and following. Both the immoveable property which was allegedly funded by loans from the pursuer and the subsequent transfer of that property in favour of her son result in double counting. See further Scottish Ministers v Buchanan (no 2) [2008] CHOH 5 and Swinton K., “Counting the Proceeds of Crime” (2008) SLG 65. 49 POCA s.304. 50 POCA s.242. 51 POCA s.241. 52 POCA s.241(3). 53 POCA s.305. 54 POCA s.307. 55 Foskett v McKeown.

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law might embolden the Commission to widen the scope of the provisions of the draft directive.56

Human rights compliance Civil recovery in the UK has to be operated in a way that respects rights of the criminal in relation to the European Convention on Human Rights and Fundamental Freedoms [ECHR]. All member states are required to comply with Convention Rights.57 Non-criminal dispossession of property, as proposed in the draft directive, engages Article 6 ECHR – the right to a fair hearing before an impartial tribunal, and Article 1 Protocol 1 [A1P1] – the right to peaceful enjoyment of possessions. The UK Cabinet Office Paper declared in relation to civil recovery: “[that it] is not intended as a punitive measure, it can be expected to be keenly felt and strongly resisted by individuals who have grown accustomed to having possession of their unlawful assets.”58

Furthermore: “Like other forms of asset recovery, civil forfeiture is a disincentive to crime – more effective recovery of unlawful assets will act to reduce the anticipated reward in the risk/reward trade-offs that some criminals make.”59

This attitude was also expressed in the Judicial Committee of the House of Lords, at around the same time, in relation to criminal confiscation issues, in a passage which has come to be quoted in subsequent cases of criminal confiscation and civil recovery: “It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act60 are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to 56

Proposal for a Directive - on the freezing and confiscation of proceeds of crime. Ibid. 58 UK Cabinet Office, Recovering the Proceeds of Crime, paragraph 5.13. 59 Ibid paragraph 5.14. 60 Criminal Justice Act 1988 c33 which contained predecessor provisions to those in POCA dealing with criminal confiscation in drug related cases only. 57

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deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy.”61

At the same time the Cabinet Office Paper recognised the need to balance the civil rights of the individual in a way which was compliant with the ECHR. It identified62 a number of measures which it stated were designed to comply with the Convention rights of individuals: (a) a £10,000 de minimis threshold; (b) the burden of proof remaining with the state; (c) the provision of civil legal aid; (d) compensation provisions; and (e) organisational management arrangements to ensure that the civil forfeiture route is not adopted as a “soft option” in place of criminal proceedings. It appears that the threshold value was designed to ensure proportionality, although that concept under the Convention is about the balance to be struck between the aim and the means, which a simple threshold does not address.63 The standard of proof provided for in relation to ascertaining whether there has been unlawful conduct is provided for in the Act,64 as the balance of probabilities, but that does not exhaustively determined whether the civil or criminal standard should be applied to all aspects of such a case. While the Cabinet Office Paper suggested that legal aid should be made available, that is not replicated in the Proceeds of Crime Act 2002 itself. Compensation, where an interim order is made and subsequently the Crown is unable to obtain a recovery order, is provided for in the legislation.65 In relation to administrative arrangements the jurisdiction is conferred on the High Court in England with the Scottish equivalent being the Court of Session.66 For smaller amounts of cash seizures inferior courts in the UK retain jurisdiction.67

61 R v Rezvi [2002] UKHL, 1, Lord Steyn at paragraph 14, although exception has rightly been taken to the use of “punish” for the reasons which are explored in UK Cabinet Office, Recovering the Proceeds of Crime. 62 Ibid. paragraph 5.24. 63 The power to establish a threshold for civil recovery is established in s.287 POCA and this is fixed at £10,000 by the Proceeds of Crime Act 2002 (Financial Threshold for Civil Recovery) Order 2003/175. 64 POCA s.241(3). 65 POCA s.283. 66 The legislation prior to POCA had permitted criminal confiscation in magistrates courts in England, which were ill-equipped to deal with such technical issues. 67 The magistrates courts in England and Wales and the Sheriff courts in Scotland.

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Are civil recovery proceedings civil or criminal? POCA characterises the proceedings for recovery as civil,68 with jurisdiction conferred on the High Court in England, and the Court of Session in Scotland. That however is not sufficient to conclusively determine that the proceedings are civil, as opposed to criminal, in the Strasbourg jurisprudence. There are three tests derived from the Engels69 decision which the ECtHR requires to be satisfied: (a) the classification in the domestic law; (b) the nature of the offence alleged against the individual, and (c) the seriousness of what is at stake or the nature of the penalty to be imposed in determining whether the proceedings are to be regarded as criminal, which it is now accepted have become an autonomous concept in the interpretation of Convention rights. The starting point for the classification is the provision in the legislation itself, which characterises the provisions of Part 5 of POCA as civil recovery. In the Scottish case of McIntosh Petitioner,70 which dealt with confiscation proceedings associated with a criminal prosecution.71 The issue before the court was the statutory assumptions which a court is obliged to make as to the source of the funds as the proceeds of crime,72 and the compatibility of such statements with the presumption for innocence guaranteed by Article 6.2 of the ECHR. Lord Prosser stated;73 “By asking the court to make a confiscation order, the prosecutor is asking it to reach the stage of saying that he has trafficked in drugs. If that is criminal, that seems to me to be closely analogous to an actual charge of an actual crime, in Scottish terms. There is of course no indictment or complaint, and no conviction. ..But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat Kafkaesque and to portray a vice as a virtue. With no notice of what he is supposed to have done, or any basis which there might be for treating him as having done it, the accused’s need for the presumption of innocence is in my opinion all the greater. …”

68

POCA s.243 for England and Wales and s.244 for Scotland. Engel v Netherlands (No 1) (1976) 1 EHRR 647, particularly 678-679. 70 McIntosh Petitioner, 2001 JC 78. 71 Under the Proceeds of Crime (Scotland) Act 1995 c.43 the provisions of which were repealed and substantially re-enacted in POCA. 72 These statutory assumptions are now contained in s.10 (England & Wales) and s.96 (Scotland) POCA. 73 Ibid. Paragraph 30. 69

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That might be seen as a precursor of the arguments later developed by the ECtHR in Geering.74 However McIntosh was subsequently successfully appealed to the Judicial Committee of Privy Council on this devolution issue which following the establishment of the UK Supreme Court are now dealt with by that institution, where Lord Bingham of Cornhill closely analysed the processes involved in confiscation as civil. He pointed out75 that the sum which the accused is ordered to pay as the result of such proceedings may not be related to the offence for which he has been convicted, or any other specific offence, and that, in relation to confiscation, he has not been charged with any offence – the statutory provision requires that the proceeds are those of drug trafficking not a drug trafficking offence. The Privy Council therefore reached the decision that confiscation proceedings may be classified as civil. In Walsh76 the Court considered the question of whether the civil recovery provisions of POCA were truly civil. The Court was directed to Lord Prosser’s comments, noted above, but given the successful appeal in that case these were of no assistance. Kerr, the Lord Chief Justice of Northern Ireland [LCJ], found the arguments articulated by Lord Rodger, then Lord President, in another case emanating from Scotland,77 to be more persuasive. In interpreting the terms of the English text of Article 6.2 he examined the equally authoritative French text which made reference to the penal code, compared with the English text which refers to a criminal charge against him.78 The reference to a penal matter, and such matters were normally to be found in the penal codes of civilian states, makes clear what is intended by a criminal charge, and that a penal element is a defining characteristic of criminal charges.79 Furthermore in Walsh Kerr LCJ, found that there was no need for the Crown to prove specific offences. Rather the approach might be taken that income and expenditure statements be drawn up, looking for expenditure unexplained by income, rather than seeking to prove specific offences or illegal activity. The purpose of the action seeking recovery was held to be; to recover from the 74

Geerings v The Netherlands (2007) 46 EHRR 1212. HMA v McIntosh [2001] 3 WLR 107, paragraph 6. 76 Walsh v Director of the Assets Recovery Agency [2005] NICA 6. A decision of the Court of Appeal in Northern Ireland which holds a similar status to the Court of Appeal in England. 77 S v Miller [2001] SC 977. This case related to whether a referral of a minor to the Children’s Panel ought to be characterised as civil or criminal. 78 Ibid. Paragraph 21. 79 Ibid. Paragraph 22. 75

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defendant that which he could not justify having. It therefore could not be seen as penal in operation. In this way the decision in Walsh adopts the logic used by the Cabinet Office Paper. The second of the Engel’s tests is the nature of the proceedings themselves. Arguably it is difficult to disentangle the classification from the nature of the proceedings, but the intention is clearly to allow the courts to look behind the labelling, to the substance of the regime which applies. In Walsh the nature of the proceedings was examined.80 There is no additional criminal record as a result of civil recovery. It is dealt with by an authority which has no role in relation to prosecution,81 and there is no penalty, only the recovery of assets for which no legitimate audit trail can be established. As such the court was content that proceedings were civil in nature. In relation to the final branch of the Engel’s tests, the question of the nature of the penalty involved was also considered in Walsh. It was accepted, once again, that the notion of penalty was an autonomous concept in the Strasbourg jurisprudence. As a result of the analysis discussed above, there was no penalty because the defendant could not demonstrate a legitimate source of funds in relation to the property which was to be recovered. The action operated in rem, recovering specific property identified in the action, and not in personam, as occurred in confiscation proceedings attached to prosecutions, which created a cash penalty on the individual. Therefore it could not be seen as a penalty against the individual. However Kerr LCJ went further, holding that even if the recovery order could be classified as a penalty within the Strasbourg jurisprudence, that alone would not satisfy all three of the Engel’s tests, and in the final analysis the proceedings could not be classified as criminal.82 Leave to appeal was sought in Walsh, but was refused by the House of Lords. Since the decision in that case there have been attempts in Scotland to have the Scottish courts determine that civil recovery ought properly to be determined as criminal in nature, according to the Engel’s tests. In 80

Walsh v Director of the Assets Recovery Agency, paragraph 29. Although in Scotland that independent authority – the Civil Recovery Unit of the Scottish Ministers is co-located with the Crown Office and Procurator Fiscal Service which stretches the concept of independence to the point where it must be seen as a matter of form over substance. 82 Walsh v Director of the Assets Recovery Agency, paragraph 39. 81

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McGuffie83 reliance was placed on the decision in Walsh as representing the position correctly and adopted as the position in Scotland as well. That was confirmed on appeal. Notwithstanding the McGuffie decision, an argument was advanced in Buchanan84 that all the previous decisions were simply wrong, and that civil recovery does not operate in rem at all, but in personam. In practice the assessment took a balance sheet approach, and added or subtracted from the balance sheet over time, depending on any legitimate income and expenditure, so that the excess over those sources must then represent proceeds of criminal activity. This global approach did not require tracing or identification of what assets represented that excess. Assets were allocated to the excess at the end of the exercise with the effect of reducing the possessions of the defender. This once again failed on the analysis that the remedy operated in rem, because the defender was unable to demonstrate a legitimate source for the acquisition of the asset.85 Similar arguments were deployed in the Scottish case of Stirton,86 as late as 2012, meeting with a similar fate.87 The matter has now been authoritatively settled throughout the UK in the Supreme Court decision in SOCA v Gale.88 However this proved to be less than a straightforward adoption of the decision in Walsh. Matters became more complex as a result of the decision of the ECtHR in Geerings.89 Prior to this decision the Strasbourg court had been prepared to hold that confiscation proceedings associated with criminal proceedings were not a separate occasion of charging with a criminal offence under Article 6.2 ECHR, and therefore were not in breach of the defendant’s Convention rights. While cases prior to Geerings had involved drugs offences, he had been found guilty of a number of thefts and handling stolen goods. He successfully appealed on the basis that the evidence was insufficient to justify conviction, but the prosecution moved for a confiscation order in sum of the benefit received from the actions which had resulted in the criminal prosecution. This penalty was upheld on further appeal, on the basis that on the lower standard of evidence required in civil matters had been met. The ECtHR held that this was all part of the

83

Scottish Ministers v McGuffie [2006] CSOH 34 and on appeal [2006] CSIH 54. Scottish Ministers v Buchanan. 85 Ibid. Paragraph 6. 86 Scottish Ministers v Stirton & Anderson [2012] CSOH 15. 87 Ibid. Paragraph 97. 88 SOCA v Gale [2011] UKSC 49. 89 Geerings v The Netherlands. 84

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same proceedings and did not constitute a separate civil matter.90 The crucial feature appeared to be reliance on an unsubstantiated police report specifying the benefit, which the accused had not had an opportunity to challenge. The applicant’s Convention rights had therefore been infringed. The decision in Geerings appeared to be a considerable departure from earlier Strasbourg authority, and the opportunity to consider its implications arose in the UK in R v Briggs-Price.91 This again involved criminal confiscation proceedings following a trial. The defendant had been charged with conspiracy to import heroin. Evidence was led that he was recruited to the conspiracy only on the day of his arrest, because of his extensive distribution network for cannabis. He was convicted of the conspiracy charge, but clearly had not benefited from the importation of heroin, as this had not taken place at the time of his arrest. Nevertheless the confiscation proceedings continued to a succession conclusion in favour of the prosecuting authorities. The statutory presumption of benefit from the crime could not apply in the absence of conviction. but the judge held that there was sufficient evidence of criminal conduct in dealing in cannabis, and proceeded to make a confiscation order. On the face of it Briggs-Price was in full agreement with Geerings. The House of Lords unanimously disagreed. Lord Rodger92 held that as the Crown had outlined in their initial submissions that the defendant was a career criminal engaged in cannabis dealing and that they intended to apply for a confiscation order then this was sufficient notice to satisfy the Engel’s test of being charged with a criminal offence in relation to the cannabis dealing. Lord Neuburger agreed with this point.93 It is however far from convincing and requires interpreting the Engel’s test in a way which is quite contrary to its plain terms. The majority held that the cannabis conspiracy did not form a criminal charge, that there were no statutory presumptions available to as to benefit, but all the judges held that the civil standard of proof applied, and that it was possible to prove criminal conduct other than the offences charged, which had been done thus satisfying the requirements of Art 6.2 and 6.3 ECHR, and that Geerings could be distinguished.94 It is clear that the majority of the judges had a degree of misgiving in coming to the decision that there was no 90

Ibid. Paragraph 44. R v Briggs-Price [2009] UKHL 19. 92 Ibid. Paragraph 74. 93 Ibid. Paragraph 152. 94 Lord Phillips paragraph 42, Lord Rodger, paragraph 52, Lord Brown, paragraph 95; Lord Mance, paragraph 103, and Lord Neuburger, paragraph 147. 91

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infringement of the rights of the accused, however the procedural history of the case was seen as exceptional with both the Crown and the defence having made errors, this limiting the applicability of the decision for the future. Returning then to Gale,95 the opinion of Kerr in Walsh is in some doubt given the decision in Geerings, and notwithstanding the qualification in Briggs-Price. Gale had been acquitted of drugs offences in Portugal. Civil recovery proceedings were brought in England where evidence of the alleged criminal activity in Portugal was led, as was evidence of a criminal charge in Spain, which was not proceeded with. It was held that there was not the relevant link between the criminal proceedings in other jurisdictions and the civil recovery proceedings in England.96 The civil recovery proceedings did not require the criminal standard of evidence,97 and that Geerings was not engaged. Lord Brown robustly stated that the link between the failed criminal proceedings and the subsequent civil recovery action was that the latter would not have arisen but for the failure of the former.98 This however is tantamount to overriding the presumption for innocence and overstates the position in lifestyle cases where there may have been no criminal proceedings withing the statutory period of inquiry of twelve years.99 It is evident from the volume of reported cases in the UK that the apparently simple statements, in POCA s.243 and s.244, that proceedings for civil recovery shall proceed in the civil courts have not been accepted at face value, and have been comprehensively tested in the UK courts. Notwithstanding the decision in Geerings, civil recovery and criminal confiscation proceedings are not to be seen as the defendant facing a criminal charge within the meaning of the Engel’s tests. There is a lesson here for the proposed directive,100 - to obviate any Geerings style 95

SOCA v Gale. Ibid. Lord Phillips paragraph 35, with whom Lord Dyson agreed paragraph 117. 97 Ibid. Lord Clarke of Stone-Cum-Ebony (with Lord Phillips of Worth Matravers, Lord Judge, Lord Mance and Lord Reed), paragraph 57. 98 Ibid. Paragraph 117. In other words notwithstanding the collapse of the criminal proceedings that was sufficient to justify an attempt at civil recovery. 99 Scottish Ministers v Buchanan (No 2) is an obvious example. There the action was brought against Mrs Buchanan as holding the benefit derived from her husband’s criminal activities. 100 Proposal for a Directive - on the freezing and confiscation of proceeds of crime, Article 5 provides “Each Member State shall take the necessary measures to enable 96

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difficulties the language employed should explicitly provide for independent civil proceedings. POCA s.266(1) provides that “if the Court is satisfied that any property is recoverable property then it must make a recovery order”. It makes no provision as to the standard of proof required. Is this the criminal standard or the civil standard? In the UK the decision in Gale101 conclusively determines that as the proceedings are categorised as civil then it would be inappropriate to apply the criminal standard - beyond a reasonable doubt, and that the civil standard ought to be applied. Debate has taken place as to that standard in the UK. It has been suggested that although it was the civil standard of proof, that the nature of the proceedings required something beyond a mere balance of probabilities. However in re B102 Lord Hoffmann, in delivering one of the two reasoned opinions, stated: “There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities.”103

Baroness Hale dismissed the myth that the seriousness of the allegations required a greater standard in the following passage: “As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.”104

These comments are of general application.105 There are only the two standards of proof, beyond a reasonable doubt for criminal cases, and on the balance of probabilities for civil cases. This has important implications for the UK in relation to the proposed directive, which provides in relation to criminal confiscation that:

it to confiscate proceeds and instrumentalities without a criminal conviction, following proceedings which could, if the suspected or accused person had been able to stand trial, have led to a criminal conviction.” 101 SOCA v Gale. 102 re B [2008] UKHL 35. 103 Ibid. Paragraph 15. 104 Ibid. Paragraph 72. 105 Secretary of State for the Home Department v Rehman [2003] 1 AC 153 particularly Lord Hoffmann, paragraph 55 and Jugnauth v Ringadoo [2008] UKPC 50 Lord Rodger paragraph 15.

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“a court finds it substantially more probable that the property in question has been derived by the convicted person from similar criminal activities than from other activities.”106

In relation to non conviction based deprivation, the draft provides that the measure should be enacted “which could, if the suspected or accused person had been able to stand trial, have led to a criminal conviction.”107 This it is suggested requires a criminal standard of proof in both cases which would place the current UK regime in jeopardy if this were adopted. The balance of probabilities test suggests a level playing field. However the UK criminal confiscation legislation places a handicap on the accused by applying presumptions which have the effect of reversing the onus of proof. In Phillips108 the applicant in relation to criminal confiscation proceedings argued that the presumption that sums represented the proceeds of criminal activity contravened the presumption of innocence enshrined in Article 6. The ECtHR held that the confiscation proceedings were akin to part of the sentencing procedures and were not associated with the determination of guilt in the predicate offence. As a result the presumption of innocence was unaffected. The applicant had disclosure of the Crown’s case in advance, had an opportunity to present his own arguments, and to adduce evidence intended to rebut the presumption as to the source of the assets. The Strasbourg court had a further opportunity to consider a similar matter in Grayson.109 They confirmed the views expressed in Phillips that it was not contrary to Article 6, following conviction, for a major drugs offence to require the accused to give a credible account of his finances, and that in the absence of such a statement to rely on statutory inferences.110 In McIntosh,111 in the domestic context, Lord Hope stated that the application of the presumptions in criminal confiscation proceedings: “[Has] much more to do with the civil process of tracing (a restitutionary remedy), especially where, as in this case, the court is asked to bring the value of implicative gifts into the assessment.”

106

Proposal for a Directive - on the freezing and confiscation of proceeds of crime, Article 4.1. 107 Ibid. Article 5. 108 Phillips v UK [2001] ECHR 437. 109 Grayson v UK (2009) 48 EHRR 30. 110 Ibid. Paragraph 49. 111 McIntosh Petitioner.

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That however can be contrasted with his comments in Foskett112 where his dissenting opinion restated the traditional civilian response to tracing.

A1P1 and legitimate aim The Strasbourg jurisprudence suggests that where the owner of property is deprived of his possessions completely, or is effectively prevented from making use of them so as to be deprived of any economic benefit from the possession without compensation, then there is at least a prima facie argument that his A1P1 rights have been breached.113 In Buchanan114 this argument was dismissed by Lord Penrose summarily: “The recovery of .. property [obtained by unlawful conduct] is not obviously penal: the person obtaining the property by unlawful conduct never had a right to it. He or she may have obtained a title to it or to something that comes to represent it. But, essentially, it was a legitimate policy consideration that the target assets never were property to which the original recipient acquired a right. By definition the assets were acquired unlawfully. It is not obviously penal to take from someone what that person did not have a right to acquire and does not have a right to retain.”115

It was expressed in the Cabinet Office Paper116 thus: “The proposed civil forfeiture regime is intended to provide a reparative measure - taking away from individuals that which was never legitimately owned by them.” Such an argument may be superficially attractive - that the criminal had a title to the property but never really had the beneficial ownership of it.117 That suggests that there can be more than one interest in property at the same time. Such legal and equitable estates are well known in England, but after a twenty year dalliance with such notions they were finally rejected in Scotland in 1995.118 Accordingly this aspect of Lord Penrose’s decision on the matter ought not to be relied upon. He is on firmer ground when justifying his ruling on a public policy basis. In Belton119 Nicolson LJ gave an opinion that the legislation should be interpreted purposively: 112

Foskett v McKeown. Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85. 114 Scottish Ministers v Buchanan (no 2). 115 Ibid. Paragraph 6. 116 Paragraph 5.12. 117 Walsh v Director of the Assets Recovery Agency, paragraphs 38 and 41. 118 Sharp v Thomson 1995 SC 455. 119 Belton v Director of Assets Recovery Agency [2006] NICA 2. 113

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“The aim is to recover property, not to pursue an individual. As the property has been obtained by criminal conduct, it appears to us that it must be in the public interest to recover the property for the benefit of the public.”120

This is a more measured approach and seeks to justify recovery on public policy grounds – thus serving a legitimate purpose. In McGuffie121 on appeal to the Inner House of the Court of Session, the Scottish appeal court, held that the provisions must operate in rem, as the statutory provisions made no distinction between recoverable property held by the wrongdoer, and that held by a third party. Thus the very inclusion of the tracing provisions proves that recovery operates in rem.122 Such mental gymnastics as have been undertaken by the Scottish Courts in particular appear entirely unnecessary. In Phillips123 the ECtHR considered an argument based on A1P1 which was shortly dismissed by reference to the provisions of the article itself the proviso to which states: “The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Although this uses the term “penalty” which must be interpreted autonomously. The ECtHR held that this was a complete answer to the issue. Civil recovery serves a legitimate purpose and does not engage A1P1 rights.124 While this may be seen as exhausting the arguments with Article 6 ECHR coupled with A1P1, there remain issues which are yet to be tested. In relation to criminal confiscation the court order operates in personam the court determines a sum which is payable based on the benefit obtained by the person convicted. As was seen in Briggs-Price that may be obtained from unlawful conduct which was unrelated to the criminal charge. The statutory assumptions125 require the court to take as a starting point that all property obtained since the reference date are obtained as result of 120

Ibid. Paragraph 15. Scottish Ministers v McGuffie. 122 Ibid. Paragraph 31. 123 Phillips v UK. 124 Ibid. Paragraphs 51 to 53. 125 POCA s.10 (England & Wales) and s.96 (Scotland). 121

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criminal conduct, and that any property held at the date of conviction is also the result of criminal conduct. It is therefore entirely appropriate to take an annual balance sheet approach. Thus any assets acquired over the total received from legitimate sources must be criminal property. The court will add the sums and then come to an amount to be paid by the criminal. That balance sheet approach has also been adopted in certain civil recovery cases. The court as noted above needs to be satisfied on a number of steps; (1) that the there was unlawful conduct, (2) that the result of the unlawful activity was the acquisition of property which is criminal property, and (3) that the criminal property is recoverable or that property which represents it is recoverable. It is submitted that the legislation envisages a chain which requires to be proven. In practice however the courts have not required such a detailed approach to be undertaken, allowing the broad brush of the balance sheet method to be adopted, using the tracing provisions in s.305 to fill in the gaps, thus achieving the same result as a criminal confiscation. In Buchanan Lord Penrose held: “if it were established that [he] had engaged in unlawful conduct, it would be open to the court to hold that it was an irresistible inference that the property sought to be recovered was obtained and held by him through that unlawful conduct, or was property, obtained through such conduct, that was held by persons into whose hands it might be followed, or represented property obtained through unlawful conduct.”126

This approach was followed in Smith127 in Scotland, and in Jackson128 and Olupitan129 in England. The effect of these decisions has been to reduce the burden of proof on the authorities and, in effect, allows recovery to be sought from the current assets on the basis of an assumption absent in POCA. In Buchanan130 the interim administrator appointed by the court to investigate took the process further, by setting the perimeter for the balance sheet exercise as the family unit rather than the criminal himself, thus including bank accounts in the name of the son. Investigations into property transactions involving the mother in law of the criminal were also examined. The result in the case was that the global figures reached by the administrator included both the substituted and

126

Scottish Ministers v Buchanan (no 2), paragraph 13. Scottish Ministers v Smith [2009] CSOH 167. 128 Director of the Assets Recovery Agency v Jackson & Smith 2007 EWHC 2553. 129 Olupitan v The Director of the Assets Recovery Agency [2008] EWCA Civ 104. 130 Scottish Ministers v Buchanan (No 2). 127

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traced property. This approach was rejected as inappropriate.131 However Lord Penrose confirmed in principle the approach to be taken in the earlier Buchanan132 proceedings was appropriate, and in [No2] he expressed it clearly in the following passage, which has been adopted in subsequent cases:133 “In the case of an individual who holds a number of items of potentially recoverable property, and who has been shown to have engaged in unlawful conduct of a kind likely to have generated disposable funds, it is highly likely to be sufficient to ask whether that individual's legitimate resources as a whole were sufficient to explain his possession of the totality of the targeted property. ..it would be unnecessary to engage in a detailed analysis of each transaction as at the date it occurred and to show that at that time and in the circumstances obtaining it was more likely than not that the particular item was obtained by or represented property obtained by particular unlawful conduct.”134

POCA includes provisions which are designed to prevent this double counting although his Lordship does not appear to have been directed to them,135 casting some doubt on the decision.

Predicate offence In considering the remedy of civil recovery it is instructive to compare the requirements for the predicate offence. The Palermo Convention uses the test of serious crime defined as one punishable by at least four years imprisonment.136 The draft directive uses a system of reference to a range of eleven directives and framework decisions for relevant offences.137 This produces a complex set of provisions. For example, in relation drug trafficking138 the framework decision refers to period of imprisonment of at least 5 to 10 years for some offences, and at least 1 to 3 for others, whereas in relation to the fight against organised crime the framework 131

Ibid. Paragraph 13. Scottish Ministers v Buchanan (No 2). 133 Scottish Ministers v Smith. 134 Ibid. Paragraph 12. 135 POCA s.308. 136 Palermo Convention Article 2(b). 137 Palermo Convention Article 2(6). 138 Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, OJ L 335, 11/11/2004. 132

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decision139 refers to a period of at least 2 to 5 years. Some of these periods therefore satisfy the Palermo standard, and others do not. This is in stark contrast to the UK approach to civil recovery, where the test is based on unlawful conduct which, as noted above, is criminal in the UK, and if conducted outwith the UK, is criminal in both jurisdictions.140 Any property obtained by such conduct is criminal property, and if it can be identified as such, is recoverable.141 Recovery is not specific to any offence, or the accused having been sentenced to any specific period of imprisonment. This has the merit of simplicity, whereas the draft directive embraces complexity, with confusion being likely. POCA imposes a threshold of £10,000 as the minimum recovery level which both the Civil Recovery Unit in Scotland142 and SOCA in England and Wales and Ireland must abide.143 This is designed to ensure that the legislation complies with the Strasbourg requirement of proportionality in any measure adopted by a signatory state. In the UK, where civil recovery actions have been commenced on the basis of previous drug convictions a extensive the investigation process ensues, with may similiarities to the investigations in a bankruptcy situation. Ownership of houses has been probed and it has been discovered that the defendant obtained mortgages to part fund the purchase. Courts have determined that the loans have been obtained by way of mortgage fraud. This brought the property into the recovery mechanism with the need to determine that proceeds of criminal activities were also used. The courts reasoned that lenders would not have advanced funds to those who could not demonstrate legitimate sources of income resulting in the whole of the property being subjected to recovery.144

Circumstances of raising proceedings The very limited ambitions of the draft directive are disclosed by recital 11 which provides:

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Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime OJ L 300/42 of 11-11-2008. 140 POCA s.241. 141 POCA s.304. 142 POCA s.293. 143 POCA s.292. 144 See for example Scottish Ministers v Smith. This then brings the property acquired by the alleged fraud within the net of civil recovery.

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“In accordance with the principle of ne bis in idem it is appropriate to exclude from extended confiscation the proceeds of alleged criminal activities for which the affected person has been finally acquitted in a previous trial or in other cases where the ne bis in idem principle applies.”

This principle - that no-one should be charged twice with the same charge - applies where the proceedings are treated as criminal. There is no such restriction in the Palermo Convention. The POCA provisions for civil recovery, as noted above, have been characterised as being truly civil with the result that the principle has no application. There have been no decisions to date of the ECtHR which have suggested otherwise. In relation to criminal confiscation the UK courts have categorised this as being part of the sentencing process. In Geerings the ECtHR gave effect to the ne bis in idem rule, which has placed constraints in the criminal confiscation process, the limits of which have still be effectively explored. Furthermore the draft directive envisages that non-conviction based sanctions should be applied only where the suspect has died, is permanently ill preventing prosecution, or flight has prevented conviction or sentencing.145 The recitals explain that this is intended to comply with the Charter of Fundamental Rights of the European Union146 which mirrors the provisions of the ECHR in relation to A1P1 and Article 6 in relation to matters regulated by EU. If the draft directive is adopted this becomes a matter of EU law which may be determined by the Court of Justice of the EU.147

ECHR Article 6.2 and Proportionality A standard test applied to assess the overall impact of any decision, in any ECHR case, is to assess whether the result is proportionate. It is a slippery concept to grasp, and arguably confers a significant degree of discretion which the ECtHR can apply in determining the final outcome of any application. This is only curtailed by the court applying the doctrine of 145

Proposal for a Directive - on the freezing and confiscation of proceeds of crime, Article 5. 146 Charter of Fundamental Rights of the European Union 2010/C 83/02, C83/389. 147 This may give rise to interesting issues as to the relative competences of the Court of Justice of the EU and the ECtHR. See Egan, M., “Non-conviction Based sanctions: The Court of Justice v the European Court of Human Rights, who decides?” European Journal of Crime, Criminal Law and Criminal Justice (2011) 19.

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margin of appreciation to states, on the basis that they are best placed to respond to their own political, social and economic conditions. Proportionality therefore offers a long stop argument as to whether the application of the law has been disproportionate in any circumstances. Retrospectivity of criminal law is prohibited by Article 7 ECHR. However as civil recovery proceedings are characterised as civil rather than criminal, with the result that challenges based on Article 7 inevitably fail.148 POCA provides a limitation period of 12 years for actions149 based on civil recovery, commencing when the right of action first accrued. This matches with the periods contained within the limitation scheme in England and Wales and Northern Ireland enshrined in the Limitation Act 1980.150 The scheme in Scotland is contained in the Prescription and Limitation (Scotland) Act 1973,151 and a twelve year period is imposed, whereas the Scottish legislation generally uses five or twenty years as the relevant period. This UK-wide period does not appear to cause problems in practice. The draft directive provides a reference to statutory limitation periods, but only in the justifications for non-conviction based sanctions. So the expiry of a limitation period for prosecution but be grounds for civil recovery. The inclusion of a limitation period for the exercise of civil recovery which is presently absent would be a useful addition to the draft directive, to ensure that the remedy is not applied to stale claims, and would ensure that no challenges based on proportionality, and also ensure harmonised measures on these points throughout the EU. The very inclusion of a double criminality tests in POCA152 is an expression of intent to ensure the reach of civil recovery to transnational crime. In Gale153 Lord Phillips, in the leading judgment, did not regard it as any obstacle to successful recovery that the unlawful conduct was alleged to have taken place in Portugal, and that prosecution there had failed.154 In Perry155 the unlawful conduct had taken place in Israel in the form of a large scale fraud. Following his conviction, a UK Bank made a disclosure to SOCA that it held significant sums for the criminal, members 148

See for example Scottish Ministers v McGuffie, paragraphs 5 -7. POCA s.288. 150 Limitation Act 1980 c.58. 151 Prescription and Limitation (Scotland) Act 1973. 152 POCA s.241. 153 SOCA v Gale. 154 Ibid. Paragraph 35. 155 Serious Organised Crime Agency v Perry [2012] UKSC 35. 149

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of his family, and an entity controlled by him, together with information leading to other deposits held in offshore accounts. SOCA obtained a worldwide freezing order in respect of his moveable assets. The Supreme Court however ruled that while POCA purported to extend to assets wherever situated,156 this did not warrant a worldwide freezing order as there was a presumption in both UK and international law against extraterritorial effect. That presumption was not overcome by the Council of Europe Convention on Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime,157 nor the Council Framework Decision158 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime were to be regarded as authority to the contrary.159 Thus the authorities will have to rely on other cooperation measures. Article 5 of the draft directive does not address extra territorial effect. This is a missed opportunity to promote harmonised rules across the EU, to ensure that the sophisticated organised crime groups do not seek to exploit jurisdictions which do not have the tools to extend their reach to other member states. By setting the threshold value for civil recovery actions in the UK at £10,000160 there is an attempt to balance proceedings so that small actions at disproportionate expense are not undertaken. However the requirement to make an order in the UK legislation when property is found to be recoverable,161 which has the effect of vesting the property in question in the trustee for civil recovery, has the potential to operate in a disproportionate way because it is not possible to qualify the proportion except in cases of mixed funds. In Waya162 the Supreme Court considered a criminal confiscation following a conviction for mortgage fraud. All nine judges recognised the importance of A1P1 arguments, and held that POCA should be construed in accordance with the defendant’s convention rights

156

POCA s.316. T141 European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. 158 Council Framework Decision 2001/500/JHA. 159 It was however noted in passing that s.286 appeared to confer on the Scottish Courts such a worldwide jurisdiction. 160 POCA s.287 and Proceeds of Crime Act 2002 (Financial Threshold for Civil Recovery) Order 2003/175. 161 POCA s.266. 162 R v Waya. 157

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which allowed them to consider the actual (lower) benefit received.163 In a civil recovery case if the property is recoverable then the order must be made to recover the whole property without any modifying factors, which may well fail the ECHR requirement of proportionality. The draft directive makes provision in Article 9 for further measures to effectively execute the order made for non-criminal deprivation of assets. Arguably other measures might involve mitigating measures designed to ensure proportionality. An important aspect of the right to a fair trial is that of equality of arms. The draft directive makes provision for representation throughout.164 Under POCA no legal aid is available, and in a number of cases the defenders are party litigants.165 The Act however does permit an exclusion from interim freezing orders for reasonable living expenses,166 which presumably could be used to fund legal expenses. Arguably the UK provisions are not if fact compliant with the defender’s convention rights, whereas the draft directive offers a compliant solution.

Conclusions The Palermo Convention sets international benchmarks for states to legislate to deal with the proceeds of organised transnational crime. The Convention does not specifically refer to civil recovery, but nonconviction based sanctions are envisaged. If crime is organised across boundaries then the more sophisticated criminals will organise the location of their assets in such a way as to minimise the risk of the loss of those assets through criminal confiscation or civil recovery. There is a therefore a risk of a race to the bottom in search of weaker regimes. In its preparation for the drafting of the directive the Commission consulted with Camden Asset Recovery Inter-Agency (CARIN). No open consultation process was entered into because “confiscation is a specialised topic where

163

However two justices issued a partially dissenting judgment as to the method of calculation in relation to what was a mortgage fraud. In their view the benefit would be negligible, and they would have made no order at all. 164 Proposal for a Directive - on the freezing and confiscation of proceeds of crime, Article 8.5. 165 For example Scottish Ministers v Stirton & Anderson, and Scottish Ministers v Smith. 166 POCA s.261(3)(a).

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limited expertise is available.”167 It is apparent however that some member states expressed concerns about non-conviction based sanctions, as did defence lawyers.168 The result has been a lack of ambition in order to reach the consensus necessary to proceed. There is now a number of years’ experience in the UK to draw upon to examine whether civil recovery has been effective. The value of assets recovered has been modest.169 In Scotland some of the largest recoveries have been in relation to missing trader carousel frauds in relation to Value Added Tax, with the largest ever relating to the money laundering of the proceeds of a fraud in Russia.170 It should therefore not be seen as simply depriving drug dealers of their illicit assets. Cooper has referred to civil recovery as the “neglected confiscation regime”, and has called on the relevant authorities to use it more widely.171 The UK legislation has been tested in relation to whether civil recovery proceedings should be seen as civil or truly criminal in nature. It has been held that they are civil by application of the Engel’s standards. At the time of Walsh172 such actions were brought in England and Wales and Northern Ireland by the Asset Recovery Agency. This separation from the prosecution authorities was a factor in the court’s determination. However the Asset Recovery Agency was merged into SOCA which is far closer to the prosecution process. SOCA itself will be merged into a new National Crime Agency (NCA) when the current Crime and Court Bill173 is enacted, and comes into force. The Bill174 provides that the NCA will have a role in investigating serious organised crime, as well as taking over the POCA

167

Explanatory Memorandum to the Draft directive Paragraph 2.1 Consultations with interested parties. 168 Ibid. 169 £1m in Scotland in 2011/12. Source: Civil Recovery Unit Annual Report 2011/12, 16; £14.1m in 2011/12 in the rest of the UK: source SOCA Annual Report 2011/12. The figures are not directly comparable the Scottish measure is on the basis of assets recovered while the corresponding order for the rest of the UK is based on orders made rather than the assets actually recovered. However there is likely to be a very high rate of conversion from orders to actual recoveries as a result of the use of interim restraining orders. 170 Ibid. Civil Recovery Unit 2010/11 Annual Report, 6. 171 Cooper J., “The neglected confiscation regime”, C.L. & J. (2012), 176(27), 390. 172 Walsh v Director of the Assets Recovery Agency. 173 Crime and Court Bill HL Bill 49 2012/13. 174 Ibid. s.1(7).

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jurisdiction for civil recovery. It however has no role in prosecution.175 With that absence of distance the argument for compliance with the Engel’s176 standards is weakened. In Scotland the separation remains with the Civil Recovery Unit, being part of the Scottish Government, and legally distinct from the Crown Office and Procurator Fiscal Service, which brings all prosecutions in Scotland, although they are co-located. The standard of evidence under POCA for civil recovery has been held to be the civil standard, and after some decisions on earlier legislation, which suggested that given the importance of the matters under consideration a greater weight was appropriate, it has now been settled that the standard is on balance of probabilities. The draft directive requires criminal confiscation following conviction, a standard of “substantially more probable”, and in civil recovery cases following proceedings which could have led to a criminal conviction, which again would indicate the criminal standard. The argument that civil recovery operates in rem has been accepted by the courts in Scotland and the rest of the UK. Where a person has been proven to have engaged in unlawful conduct, and has assets for which he can show no legitimate source, he is said to have title but no legitimate interest. This is quite a natural argument for those trained in English law, and other common law jurisdictions, where an extended regime for tracing assets already existed. It has, surprisingly, been accepted in Scotland, with its civilian property roots, where tracing at common law was very restricted. That suggests that broad civil recovery provisions might be grafted into the codified civilian systems of other member states without collateral damage to property law. Accordingly the draft directive could be more expansive in promoting civil recovery in a broader range of situations. The extended tracing provisions of POCA and the interpretation adopted by the UK courts dispenses with a trail from the proceeds of crime to the current assets held. This “balance sheet” approach simply requires a surplus of assets over legitimate sources, and places the onus on the defendant to prove that they were not acquired by illicit means. The draft directive, in comparison, will require a much higher standard, and is unlikely to provide a significant impact on removing assets.177

175

Ibid. s.1(10). Engel v Netherlands (No 1). 177 See Rui, J., “Non-conviction based confiscation in the European Union – an assessment of Art 5 of the proposal for a directive on the freezing and confiscation of proceeds of crime in the EU”, ERA Forum (2012) 13:349. 176

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While human rights challenges have been made to the POCA civil recovery provisions, they have been unsuccessful in the domestic courts in the UK on the basis that the property has never truly been owned by the criminal, and there he can have no A1P1 rights, and the safeguards of Article 6.2 ECHR do not apply to civil proceedings. The chamber decision in Geerings178 may yet lead to further challenges to POCA at Strasbourg. However, given the narrow scope of the draft directive, it is unlikely that Geerings will impact on the draft directive’s provisions. The UK experience suggests that the human rights challenges may have been overstated in the negotiations leading up to the draft directive. There is a balance to be struck between the rights of individuals, and the public interest in ensuring that crime does not pay. Proportionality and the margin of appreciation afforded to states by the Strasbourg jurisprudence, however, should not be used to justify the lowest common denominator approach taken in the draft directive. The UK experience of a broadly drafted, and generously interpreted, provision for civil recovery has not resulted in the values of recoveries being disproportionate to the problem of transnational organised crime. There is, accordingly, scope for the final directive to have more extensive provisions relating to civil recovery. If these are to be found in one member state, but not others, there is a risk that transnational recovery through mutual cooperation will not be achievable. As Kofi Annan expressed matters in relation to the Palermo Convention: “If crime crosses borders, so must law enforcement. If the rule of law is undermined not only in one country, but in many, then those who defend it cannot limit themselves to purely national means…..”179

It requires the appropriate tools and it is submitted that the draft directive if implemented as its stands will not provide them.

Bibliography Annan, K., Foreword, UN Convention against Transnational Organized Crime. Belton v Director of Assets Recovery Agency [2006] NICA 2. Beresford v Royal Insurance [1938] AC 586. Birks, P., The Necessity of a Unitary Law of Tracing in Making Commercial Law: Essays in Honour of Roy Goode Oxford: OUP 1997. 178

Geerings v The Netherlands. Annan, K., Foreword, UN Convention against Transnational Organized Crime, page iii.

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Bishop of Caithness v Fleshers of Edinburgh (1629) Mor 4145, 9112. Burns v Secretary of State for Scotland 1985 SLT 351. Buchanan v Scottish Ministers [2006] CSOH 121. Charter of Fundamental Rights of the European Union 2010/C 83/02, C83/389. Civil Recovery Unit 2010/11 Annual Report. Civil Recovery Unit 2011/12 Annual Report. Cleaver v Mutual Reserve Fund Life Association [1892] 1 Q.B. 147. Cooper J., “The neglected confiscation regime”, C.L. & J. (2012), 176(27), 390. Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime, OJ L 332, 18/12/2007, 103. —. 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ 1991 L166/77. Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime OJ L 300/42 of 11-11-2008. —. 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, OJ L 328, 24/11/2006, 59. Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, OJ L 68, 15/03/2005, 49. —. 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, OJ L 335, 11/11/2004. —. 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196, 02/08/2003, 45. —. 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 182, 05/07/2001, 1. Crime and Court Bill HL Bill 49 2012/13. Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (Text with EEA relevance), OJ L 309, 25/11/2005, 15. Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, OJ L 344, 28/12/2001, 76.

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Director of the Assets Recovery Agency v Jackson & Smith 2007 EWHC 2553. Engel v Netherlands (No 1) (1976) 1 EHRR 647. Egan, M., Non-conviction Based sanctions: The Court of Justice v the European Court of Human Rights, who decides? European Journal of Crime, Criminal Law and Criminal Justice (2011) 19. European Commission, Communication from the Commission to the European Parliament and the Council, The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM 2010, 673 Final, Action 3. European Council, An open and secure Europe serving and protecting the citizens, Council document 17024/09, adopted by the European Council on 10/11 December 2009. European Convention on Human Rights and Fundamental Freedoms adopted at Strasbourg 4/11/1950. Evans-Jones R., Unjustified enrichment: enrichment by deliberate conferral Edinburgh Thomson/W Green 2003. Ferguson v Forrest (1639) Mor 4145. Foskett v McKeown [2001] 1 AC 102. Geerings v The Netherlands (2007) 46 EHRR 1212. Grayson v UK (2009) 48 EHRR 30. HMA v McIntosh [2001] 3 WLR 107. Human Rights Act 1998 c.42. Hunter’s Executors Petitioners 1992 SLT 1141. in re Crippen [1911] P 108. Jugnauth v Ringadoo [2008] UKPC 50. King, C., “Using civil processes in pursuit of criminal law objectives: a case study of non-conviction-based asset forfeiture” IJE&P (2012) 337. Limitation Act 1980 c.58. McIntosh Petitioner, 2001 JC 78. Obscene Publications Act 1959. Olupitan v The Director of the Assets Recovery Agency [2008] EWCA Civ 104. Phillips v UK [2001] ECHR 437. Prescription and Limitation (Scotland) Act 1973. Pringle v Pringle (1999) unreported. Proceeds of Crime Act 2002 c.29. Proceeds of Crime Act 2002 (Financial Threshold for Civil Recovery) Order 2003/175. Proceeds of Crime (Scotland) Act 1995 c.43.

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Proposal for a Directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union, COM(2012) 85 final [12.3.2012]. R v Briggs-Price [2009] UKHL 19. Rui, J., “Non-conviction based confiscation in the European Union – an assessment of Art 5 of the proposal for a directive on the freezing and confiscation of proceeds of crime in the EU”, ERA Forum (2012) 13:349. Ramsay v Wilson (1666) Mor 9112. R v Rezvi [2002] UKHL, 1. R v Waya [2012] UKSC 51. Re B [2008] UKHL 35. Sale of Goods Act 1979. Sale of Goods Act 1893 c71 s.22. Scotland Act 1998 c46. Scottish Law Commission Consultative Memorandum No 27 Corporeal Moveables: Protection of the Onerous Bona Fide Acquirer of Another’s Property (1976). Scottish Law Commission DP 144 Prescription and Title to Moveable Property (2010). Scottish Ministers v Buchanan (No 2) [2008] CHOH 5. Scottish Ministers v McGuffie [2006] CSOH 34 and on appeal [2006] CSIH 54. Scottish Ministers v Smith [2009] CSOH 167. Scottish Ministers v Stirton & Anderson [2012] CSOH 15. Secretary of State for the Home Department v Rehman [2003] 1 AC 153. S v Miller [2001] SC 977. Serious Organised Crime Agency v Perry [2012] UKSC 35. SOCA v Gale [2011] UKSC 49. Suicide Act 1961. Swinton K., “Counting the Proceeds of Crime” (2008) SLG 65. Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85. Sharp v Thomson 1995 SC 455. UK Cabinet Office, Recovering the Proceeds of Crime June 2000, CABI J00-5816/0006/D40. United Nations Convention against Transnational Organized Crime adopted by General Assembly resolution 55/25 of 15 November 2000. Walsh v Director of the Assets Recovery Agency [2005] NICA 6. European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime [T141] adopted at Strasbourg on 8/111990.

TRAFFICKING IN HUMAN BEINGS

CHAPTER SEVEN ASSESSING THE IMPACT OF EU STRATEGIES POST-STOCKHOLM ON UK POLICING OF HUMAN TRAFFICKING ALEX BALCH AND GLYNN RANKIN

Introduction When the UK government signed up to the 2011 EU Framework Directive on Human Trafficking,1 the decision was hailed by NGOs such as Anti-Slavery International (ASI) as a “campaign victory”. ASI argued that the impact would be significant: “When incorporated into British law, it will create extra provisions to protect the victims of trafficking, including witness protection. The Directive will also help increase prosecutions of traffickers by extending the scope of extraterritorial jurisdiction and allowing criminal proceeds to be confiscated to pay for victim compensation.”2

Yet according to the UK government, the original decision to opt out of the directive was because of claims that it would make little difference to the combating of trafficking and victim support in the context of the UK.3 The main reasons stated for finally opting in were to maintain the 1

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ 2011 L101/1. 2 ASI (Anti-Slavery International) press release: “Trafficking Campaign Victory” http://www.antislavery.org/english/press_and_news/news_and_press_releases_200 9/trafficking_campaign_victory.aspx. 3 European Scrutiny Committee, 9 March 2011 – Hansard: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428xxii/42805.htm.

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UK’s status as “a world leader with regard to its anti-trafficking work” and “to send a signal to traffickers that the UK is not a soft touch, and that we are supportive of international efforts to tackle trafficking.”4 According to the 2012 report of the Inter-Departmental Ministerial Group on Human Trafficking, “From its initial assessment of the requirements of the Directive the UK considered it was already compliant with the majority of its provisions” although some new legislation was eventually required. 5 This raises the possibility that the UK signing the directive was simply an act of political symbolism, aimed at domestic and international audiences. An alternative narrative to those put forward by ASI and the government is that UK policing initiatives on THB have emerged through spontaneous police innovation, influenced by individual policy entrepreneurs, and autonomous decision making, rather than government policy or the impact of international agreements. While it is conceded here that we are unlikely to ever fully know the actual government reasoning or political calculations that inform the signing of international agreements on trafficking, we can try to better understand the influence of these agreements at the operational level. This chapter hopes to shed light on the added value of the EU in this area by analysing the development of policing around THB in the UK. Human trafficking has been marked out as one of the top priority areas for international coordination on criminal justice. There have been notable achievements at the international and regional levels since the UN Palermo Protocol (2000)6 – of which the 2011 EU Directive is a significant addition but we know relatively little about the impacts these have had on the actual practice of policing at the national level. This chapter takes the opportunity to pause and take stock of these developments in the context of the UK, where policing is characterised by complexity. Processes of 4

Green, Damian, Minister for Immigration (Letter from) to the European Scrutiny Committee European Scrutiny Committee, 9 March 2011 – Hansard: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428xxii/42805.htm. 5 Inter-Departmental Ministerial Group (IDMG) on Human Trafficking, First Annual Report of the Inter-Departmental Ministerial Group on Human Trafficking, (Cm. 8421), TSO (London: The Stationery Office, 2012). 6 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime 2000, (Palermo Protocol) - came into force on December 25, 2003.

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devolution (particularly in Scotland and Northern Ireland), coupled with various attempts at reforming policing structures, have led to dynamic change for the UK’s police forces. This makes it all the more important to improve our understanding of the meaning and significance of regional (European) agreements for UK policing. While the Council of Europe (CoE) will be included in the analysis, the focus here will be mainly on EU agreements. A key aim is to develop a more thorough understanding of the question of impact on policing by considering system-effects and the non-operational (i.e. political and symbolic) roles of international agreements, such as via agenda-setting. The Stockholm Programme, after the Tampere (1999-2004) and The Hague (2004-2009) programmes is a multi-annual set of priorities for the EU in the area of freedom, justice and security. The fight against human trafficking is prominent and is mentioned under several of the priorities outlined.7 The Action Plan sets out a range of EU activities on the subject of human trafficking,8 of which the 2011 EU Directive “on preventing and combating trafficking in human beings and protecting its victims”9 (hereafter referred to as the “2011 EU Directive on trafficking”) is one of the key outcomes. Overall the Stockholm programme represents an increase in the EU’s involvement in this area.10 The directive itself continues the strategies adopted in previous EU policies in mandating an increasing number of responsibilities that policing has to execute. For example, under the directive the definition of trafficking is extended to include begging and the exploitation of criminal activities. This is consistent with emerging trends and the increase of trafficking for benefit fraud, internal trafficking for forced labour, sexual exploitation, and committing acquisitive crime. The directive also requires cross-border 7

Trafficking is mentioned, for example, in relation to the priorities of achieving “a Europe of rights”, “a Europe of law and justice” and “a Europe that protects” (FRA, The Stockholm Programme: A chance to put fundamental rights protection right in the centre of the European Agenda, Fundamental Rights Agency, Vienna 2009). 8 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Delivering an area of freedom, security and justice for Europe's citizens, Action Plan Implementing the Stockholm Programme, Brussels, 20.4.2010, COM(2010) 171 final. 9 Directive 2011/36/EU. 10 O’Neill, M., “The EU Legal Framework on Trafficking in Human Beings: Where to from here – the UK Perspective,” (2011) Journal of Contemporary European Research, 7, 4, 452-467.

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cooperation, information sharing, closer working with civil society and an integrated holistic approach to trafficking in addition to traditional policing responsibilities of victim protection, asset forfeiture and child assistance. It addresses the problem of how to prosecute trafficking cases when victims are either unable or unwilling to give evidence. The contribution of the EU to the development of European countries’ responses must be placed alongside previous cooperative agreements developed under the auspices of the Council of Europe (CoE) which pressed ahead with a Convention in 2005.11 The human rights focus of the CoE as an institution initially turned out to be better suited to European cooperation - perhaps unsurprisingly considering the sensitivities of states to a harmonisation of criminal justice arrangements - an area generally characterised by an absence of formal integration measures. Indeed, it has been decisions by the European Court of Human Rights [ECtHR] rather than Court of Justice (formerly the European Court of Justice – ECJ) which have developed a positive obligation on states to investigate instances of suspected trafficking including cooperation with other states involved.12 However, the EU’s membership of the European Convention on Human Rights and Fundamental Freedoms [ECHR] post-Lisbon, and the 2011 EU Directive reflect an interesting shift towards a more formal style of integration in this area; it also raises a number of questions about the impact of different kinds of international cooperation on the policing of human trafficking. This chapter intends to explore these issues through an analysis of the UK response to human trafficking since 2000. To summarise, our main question is: how can we understand, analyse and assess the added value of European integration in the area of the policing of trafficking in human beings? The rest of the chapter proceeds by developing an analytical framework to generate a hypothetical range of impacts, drawing from research on THB and Europeanisation. Following this there is a presentation of the case study material with discussion of the anatomy of the UK system of policing of trafficking as it has developed since 2000. The final sections discuss the impacts and added value of international cooperation through reference to the analytical framework before drawing conclusions. 11

Council of Europe Convention on Action against Trafficking in Human Beings, CETS No.: 197. 12 Rantsev v Cyprus and Russia [2010] ECHR 25965/04.

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A Europeanisation of policing to tackle THB? As the international response to THB has developed, the focus of academic research has also expanded: from attempts to ascertain the scope and extent of the problem, through to a human rights perspective on state responses,13 or a critical questioning of government motives,14 to a more practical focus on the difficulties of individual states to implement.15 This chapter seeks to turn the debate towards a critique of international cooperation, through analysis of the interface between multiple levels of policymaking, and the impacts that this has, in organisational terms, on the context of efforts to police human trafficking in the UK. As such it draws upon existing research into international cooperation on THB, but also from the literature on European integration and Europeanisation. There has been a huge amount of work that has studied the effects of European integration on the EU’s member states.16 One of the outcomes of this work has been the development of a number of conceptual tools which could be useful in the task of assessing the impacts of international agreements on national policing to tackle human trafficking. The field of Europeanisation provides us with typologies for different types and forms of impact: for example, distinguishing between “hard” and “soft” law17 and “horizontal” and “vertical”18 forms of influence. In terms of causeeffect mechanisms “hard” and “soft” forms of integration overlap with distinctions between rational/materialist understandings and sociological/

13

Obokata, T., “A Human Rights Framework to Address Trafficking of Human Beings,” Netherlands Quarterly of Human Rights, 24, (2006), 377-409. 14 Anderson, B. and Rogaly, B., Forced Labour and Migration. (2005) London: TUC. 15 ATMG (Anti-Trafficking Monitoring Group) Report on human trafficking. (2010) London: ATMG; O’Neill M., “The EU Legal Framework”; Balch, A. Regulation and enforcement to tackle forced labour: a systematic response? (2012), JRF – Joseph Rowntree Foundation, York. 16 Bache, I. and George, S., Politics in the European Union, 2nd ed., (Oxford: Oxford University Press, 2006); Ladrech, R. Europeanization and National Politics (Basingstoke: Palgrave Macmillan, 2010). 17 Olsen, J., “The Many Faces of Europeanization”, Journal of Common Market Studies, (2002) 40(5), 921-952. 18 Bomberg, E. and Peterson, J., “Policy Transfer and Europeanization: Passing the Heineken Test?” (2000), Queen’s Papers on Europeanization, 2.

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ideational approaches.19 The former tend to see European integration as creating a re-distribution of resources to which domestic actors have to respond while the latter focus on the ways in which the EU can support and facilitate change through social learning and the diffusion of norms. There are different schools of thought with respect to explaining the variation in levels of impact across member states. The first has been described as “goodness of fit,”20 where adaptational pressures differ according to the congruity of domestic structures with respect to EU developments. Here the most important variable explaining the variation in impact of EU integration on member states is institutional compatibility.21 The focus is squarely on the “misfit” between the EU and its member states, and which kinds of mediating variables can explain the variation of effects across different systems.22 The second emphasises how EU policies play out within the complex struggle over national policy development over time.23 This perspective is more likely to see policy change as dependent upon the opening and closing of “windows of opportunity” through the interplay of domestic interests, political/electoral cycles and policy feedback.24 In other words, the EU can directly and indirectly affect political opportunity structures and offer the possibility for policy reframing with or without institutional compliance.25 This “differential effects” approach highlights intervening

19

Börzel, T. and Risse, T., “Conceptualising the domestic impact of Europe” in Featherstone K. and Radaelli C. M. eds., The Politics of Europeanization (Oxford: Oxford University Press, 2003). 20 Green-Cowles, M. J. Caporaso, et al. Transforming Europe: Europeanization and domestic change. (Ithaca, NY, Cornell University Press, 2001). 21 Duina, F., “Explaining legal implementation in the European Union,” International Journal of the Sociology of Law 25, (1997), 155-179. 22 Borzel, T., “Europeanization: How the European Union Interacts with its Member States”, in The Member States of the European Union, Bulmer S. and Lequesne. C. eds. Oxford, Oxford University Press, (2005), 50-51. 23 Héritier, A., Kerwer, D, Knill, C., Lehmkuhl, D., Teutsch, M. and Douillet, AC., Differential Europe. The European Union Impact on National Policymaking (Lanham, MD: Rowman and Littlefield, 2001). 24 Kingdon, J. W., Agendas, alternatives, and public policies (2nd ed.). (New York: Longman, 1995). 25 Knill, C. and Lehmkuhl, D., “The National Impact of European Union Regulatory Policy: Three Europeanization Mechanisms,” European Journal of Political Research 41(2), (2002). 255-280.

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domestic variables which influence how different types of international cooperation can lead to different types of impact at the national level. The co-ordination on organised crime is relatively recent and undeveloped in the context of the EU. Cooperation began with the 1997 EU Action Plan, and has progressed via incentives for member states to adapt their national criminal justice organisations (e.g. by creating national coordination units for the exchange of intelligence). The criminal justice systems of the member states are fairly autonomous, and there has been relatively little harmonisation of national systems. On this basis, it is expected the influence of international cooperation would be felt through the diffusion of norms and social learning rather than material impacts associated with the re-distribution of resources (i.e. “soft” rather than “hard” forms of integration); for political opportunity structures to be key determining variables shaping impact at the national level; and for impacts to be instrumentalised by competing domestic interests, i.e. largely through competition over agenda-setting, and the mobilisation of opinion.

Analytical framework Based on the above discussion, and on previous research which has been carried out in the area of Europeanisation, we would expect findings to confirm the second of the two approaches outlined. In other words, while the EU is increasingly relevant, domestic forces are likely to be decisive when it comes to developing and reforming policing structures.26 Considering this, and the general expectation of responsiveness to integration in the area of policing two initial hypotheses can be generated: 1) it is expected the development of the UK system of policing over THB will be relatively more affected by softer forms of international cooperation when compared with harder forms; this would thus be more likely to lead to weaker effects at the operational level and stronger effects over agenda-setting and in terms of symbolic mobilisation.

26

den Boer, M. (ed.) Organised Crime: A Catalyst in the Europeanisation of National Police and Prosecution Agencies? (EIPA (European Institute of Public Administration), 2002).

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2) it is expected these effects will be highly dependent upon domestic factors, in particular the opening/closing of national-level political opportunity structures.

Tracing EU impacts on THB in the UK In simple legal terms, and as a matter of both UK domestic law and EU law, the provisions of EU directives have direct effect in national law if the provision is clear, precise, unconditional and the deadline for implementation has passed.27 This means that the provisions of the EU directives are binding on the police and they have a legal responsibility to ensure that they are carried out. The police have a further legal responsibility following the decision of the European Court of Human Rights,28 which held that “[t]he state is obliged to identify and protect victims, or potential victims, of trafficking and take all reasonable measures to remove them from harm. States are also required to provide relevant training for law enforcement and immigration officials. Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act. States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other states.”29

This decision and others30 has emphasised this obligation on the police to investigate THB cases. The 2011 EU Directive on trafficking continues the strategies adopted in recent EU policies of prioritising THB and increasing the responsibilities for policing. This is a mandatory directive for member states where there is no power to opt out of any of its articles. The key areas of interest for policing are victim care, developing the partnership approach, as well as the expanded definition of THB.

27 As established in the UK by The European Communities Act 1972. Section 2(4) provides that all UK legislation, including primary legislation (Acts of Parliament) are to have effect “subject to” directly applicable EC Law. 28 Rantsev v Cyprus and Russia. 29 Ibid. paragraphs 285 - 288. 30 See, for example, OOO and others v Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB).

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The 2011 EU Directive on trafficking replaces the Framework Decision 200231 which imposed a duty on member states to take necessary measures to punish and investigate THB, and protect victims. There were no direct responsibilities placed upon policing, but the EU had established a role in coordinating member states responses. In 2005 the EU plan on preventing trafficking in human beings32 pointed out that “the Hague Programme required the EU to develop a plan with a view to the development of common standards, best practices and mechanisms to prevent and combat trafficking in human beings.” This EU THB plan was instituted during the UK Presidency of the EU (second half of 2005) and set out a table of actions to be implemented by member states. Paragraph 4 (iii) states that: “Member States should provide for necessary organisational structures, specialised personnel and adequate financial resources to their law enforcement agencies to effectively combat human trafficking. In so far as possible, the Council in close cooperation with the Commission as appropriate should promote regular monitoring on the basis of clear and measurable criteria.”

This action plan put an onus on member states to implement their own action plans and to set objectives for policing, provide them with resources and evaluate the outcomes. This was the continuation of the EU seeking to strengthen the law enforcement operational response to THB. Considering the previous discussion, how does the content of EU directives match up to the policing environment in the UK and policies on THB? How do they directly affect UK police forces? What are the adaptational pressures, and the opportunities for them to add value or have impact in terms of policy change/reform? To answer these questions we will look at the context of policing in the UK and the development of the response to THB.

31

Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, OJ 2002 L203/1. 32 EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings, OJ 2005 C311/1.

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The UK as a case study The UK is a particularly interesting case study with which to examine the developing response to trafficking in human beings. The point here is not to critically analyse gaps in implementation,33 but rather to ask how the developing model of international cooperation fits with the specificities of the UK system of enforcement/regulation on trafficking and forced labour. We would expect two key aspects of UK regulatory/enforcement arrangements to be important in influencing the way that the system reacts to the challenge of human trafficking. These are both political and organisational in character. First, there are related national political agendas regarding business regulation, employment-related crime and how these fit into broader government objectives over economic management and immigration control.34 Second, there is the interplay of organisational/structural factors, including the variable geometry of the UK’s police service (i.e. the large number of separate police forces, and the devolution of control over police forces in Scotland and Northern Ireland) and various ongoing processes of reform that affect the police and enforcement sector more widely. These include the creation of the National Crime Agency (NCA) for police forces in England and Wales, and the merging of the eight territorial forces in Scotland to a single police service.35 Despite the reality of devolved powers over policing, the UK government is confident in planning for the new NCA to play a leading and highly visible role in the fight against human trafficking. According to the 2012 Inter-Ministerial report, “the arrangements for the NCA will take account of the policing structures in Scotland and Northern Ireland. The NCA will work closely with policing partners in Scotland and Northern Ireland, including on human trafficking, to support the collective response to tackling trafficking across the UK.”36

33

Balch A., Regulation and enforcement to tackle forced labour. In the context of devolution, these remain “reserved” competencies, i.e. those that are dealt with at the national level. 35 Police and Fire Reform (Scotland) Act 2012 asp8. 36 Inter-Departmental Ministerial Group (IDMG) on Human Trafficking, First Annual Report, 94. 34

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The political agenda over trafficking has been framed by concerns over immigration control and the flexible nature of the UK’s employment market. This has contributed to a tendency for governments to demonstrate a certain reluctance to join international agreements on THB. Faced with such decisions in both 2007 and 2011 (when Westminster was controlled by parties of different political hues) the UK government expressed concerns about joining international agreements in this area. This led to hesitation before eventually signing up to both the CoE Convention in 200737 and the 2011 EU Directive. This pattern has been repeated with the UK government decision not to join other international agreements such as the 2011 ILO Convention on domestic workers. The rationale in each case has been different, but two common themes emerge. First, a lack of political will to enhance enforcement regimes in the workplace where trafficking is most likely to occur; and second, a fear of adopting any commitments which might be perceived to be reducing the UK’s power to control its own borders/immigration flows. These themes were apparent in the initial reluctance to sign the CoE and EU agreements, but perhaps most obvious with the UK government’s rejection of the 2011 ILO convention on domestic work. The general argument is that the priority is to reduce “red tape” or the burden of regulation on business. The Beecroft report38 is a good example of the desire of elements within central government to adapt employment law in order to remove obstacles to corporate growth. The report was satirised by Richard Lambert (ex director of the CBI Confederation of Business Industry) who suggested (ironically) that Beecroft should have gone further and proposed the reintroduction of slavery.39

The context of reforms in UK policing Efforts to tackle trafficking in human beings are generally recognised to involve a number of components – e.g. prevention, protection and prosecution. We will focus here on a few key aspects that are particularly

37 Balch, A. and Geddes, A., “Opportunity from Crisis? Organisational Responses to Human Trafficking in the UK”, British Journal of Politics and International Relations, (2011) 13, 1, 26–41. 38 Beecroft, A., Report on Employment Law, submitted to the Department for Business, Innovation and Skills (BIS), 2011. 39 FT.com “A proposal for the philosopher Beecroft by Richard Lambert (with apologies to Jonathan Swift)”, 25 May 2012.

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relevant to the challenge of THB: the policing of organised crime, community policing, and partnership working. The replacement of SOCA with the National Crime Agency (NCA), which will become operational in 2013, represents the second overhaul of the policing of organised crime in 5 years. SOCA was supposed to eliminate competition between different agencies.40 Rather than a law enforcement agency, it was an executive non-departmental public body, sponsored by the Home Office – as a national overarching “intelligenceled organisation” it was a new type of agency for the UK. One of the key ideas was for SOCA to be the main point of contact for international/EU interaction. According to Sergi,41 SOCA has faced a number of problems since its inception. First of all, the UK has not traditionally differentiated organised crime from other types of crime. This means that some of the tools available in other countries (particularly the use of certain types of evidence in court, and the specific laws on conspiracy) are not always available in the UK. Furthermore, links between SOCA and the police were not always “harmonious.”42 The NCA will be much like its predecessor, absorbing more tasks (such as border policing), but supposedly more “police-oriented” and “less bureaucratic.” It remains to be seen, but Sergi claims that the NCA is likely to face some of the same legal and procedural challenges in mounting investigations that SOCA did.43 Community-policing is increasingly seen as one of the key principles of modern policing in Britain, but it is difficult to pin down how this role fits within the broader mission of the police. On becoming Home Secretary Theresa May told senior officers that she wanted to be crystal clear that the mission of the service was “to cut crime, no more or no less.”44

40

Harfield, C., “SOCA: a paradigm shift in British policing,” British Journal of Criminology, 46 (4): (2006) 743-761. 41 Sergi, A., “Crime - stoppers, UK overhauls organised crime policing,” Jane's Intelligence Review, December 2011. 42 Ibid. 47. 43 Ibid. 44 Easton, M., “What are the police for?” (2012) BBC News http://www.bbc.co.uk/news/uk-16789158.

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As Richard Mayne (the First Commissioner of Police of the Metropolis) put it in 1829: “The primary object of an efficient police is the prevention of crime: the next the detection and punishment of offenders if crime is committed. To these ends all the efforts of police must be directed. The protection of life and property, the preservation of public tranquillity, and the absence of crime, will alone prove whether these efforts have been successful and whether the objects for which the police were appointed have been attained.”

It is police policy to work with partners, and this includes engaging with the community, through Community Safety Partnerships and other mechanisms, to disrupt serious and organised crime. However, if THB is not a priority it is probable that the police are not working with the right partners or sectors of the community to prevent and disrupt trafficking. Also, if the police do not identify the right partners to work with, especially in the non-governmental sector, then a victim centred human rights approach to THB, as advocated both by the EU and as identified good practice, is unlikely to be adopted, and then it is probable that their response to THB will neither be satisfactory or compliant with the EU directive. These tensions demonstrate how the challenge of THB touches upon key issues within the priorities of UK policing. What is the role of UK policing, who has responsibility for that policing and who are they accountable to? Who sets and/or implements the policing agenda, and are they the same authority? This is further complicated by the differing jurisdictions within the UK. Westminster is responsible for policing in England and Wales and the Scottish Government for policing in Scotland. In Northern Ireland the Police Service Northern Ireland (PSNI) is overseen through a system of accountability structures including the Police Ombudsman for Northern Ireland and the Northern Ireland Policing Board. The role of the police in combating THB reflects these questions, especially the input the police have into THB policy, and to what extent THB policy impacts on the police e.g. do EU directives/policies have any impact on operational policing? This is further complicated in Scotland where the legislation for trafficking for sexual exploitation, section 22 Criminal Justice (Scotland) Act 2003, is a devolved power, whilst, the legislation for trafficking for forced labour, section 4 Asylum and

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Immigration (Treatment of Claimants etc) Act 2004, is a reserved power with responsibility remaining with Westminster. The UK government published its strategy on trafficking in human beings in July 2011, entitled: “Human Trafficking: The Government’s Strategy.”45 There are only two specific actions set out within the policy that the police have responsibility for: “to boost the capacity of financial investigations”46 and “to explore opportunities to establish JITS”47 (JITS are Joint Investigation Teams between two or more EU member states which have a specific purpose and are for a defined period of time).48 This strategy was published after the (2011) EU directive was signed. However, it does not refer to any of the articles nor does it give the police any of the responsibilities that are set out within the directive. The Scottish Government, in 2010, published; “Letting Our Communities Flourish One Year On” A strategy for tackling serious organised crime in Scotland. This strategy document refers to THB only once when it states that the Scottish Intelligence Co-ordination Unit (SICU) has been established and “That Unit includes staff dedicated to developing the intelligence picture around human trafficking, enhancing intelligence links with the Scottish Prison Service, and understanding the opportunities for the Scottish Police Service through the work of the Serious and Complex Fraud Project.”49

Thus THB does not appear to have been a priority within Scottish police priorities, and there is a lack of a comprehensive strategy - something

45 HM Government, Human Trafficking: The Government’s Strategy, available at http://www.homeoffice.gov.uk/publications/crime/human-trafficking-strategy. 46 Ibid, paragraph 92 and Annex A, Action 28. 47 Ibid, paragraph 61 and Annex A, Action 18. 48 Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 197, 1–2, Article 13. 49 Serious Organised Crime Task Force, Letting our communities flourish, One year on, a strategy for Tackling Serious Organised Crime in Scotland, The Scottish Government, June 2010, available at http://www.scotland.gov.uk/Resource/Doc/313639/0099447.pdf.

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noted by the EHRC (Equality and Human Rights Commission) inquiry into the issue.50 It could be asserted that if THB was a key government policy there would be no guarantee that each individual police force would implement that policy. Alternatively, even if it was not government policy, it is possible that for certain regions, forces or units it could become a policing priority. Returning to the opening arguments regarding the impact of European-level agreements, and given the pre-existing police structures, we might expect there to be a stronger “bottom up” than “top down” influence on operational practice. This poses broader questions about the impact and added value of the EU to UK policing of THB, and the way that efforts to combat the crime are framed. This could also explain the differences in priority and approach within the UK e.g. the EU categorises THB as an organised crime and yet, in the UK, THB is understood to occur in loose knit to hierarchal organised crime groups which may deflect or diminish the priority this crime is given. Before it is possible to consider whether any of these propositions are correct it is necessary to understand the role of the UK police and ascertain who is responsible for them.

Control and accountability for UK Police Forces The 53 modern police forces in the UK,51 the 8 police forces in Scotland which are due to become one force on 1st April 2013,52 have differing accountability structures. The police forces in England & Wales have tripartite accountability. They are accountable to the Home Office, which has the responsibility for determining the key national policing objectives and presents an annual National Policing Plan, the local Police Authority and the Chief Constable. The legal responsibility for the police forces in Scotland is between Scottish Ministers, Police Authorities and Chief Constables and the priorities are set through the Scottish Policing

50 EHRC “Inquiry into Human Trafficking in Scotland: Report of the Equality and Human Rights Commission” (2011) http://www.equalityhumanrights.com/uploaded_files/Scotland/Human_Trafficking _in_Scotland_/inquiry_into_human_trafficking_in_scotland-full-report_pdf_.pdf. 51 43 in England and Wales, 8 in Scotland (due to be one as of 1 April 2013) and Police Service Northern Ireland. 52 Police and Fire Reform (Scotland) Act 2012 asp8.

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Performance Network.53 In addition case law has determined that the police are servants of the law in terms of their operational discretion, and are not subject to administrative or political discretion in this respect.54 The police are accountable to their respective governments which have the responsibility for setting police objectives including the police response to THB, and also to the Serious and Organised Crime agency (SOCA). In England & Wales the modern police forces were created under the Police Act 1964, which also constituted the Police Authorities, and the current system of police accountability. The Police Reform Act 2002 required the Secretary of State to produce a National Policing Plan. In Scotland the police forces were created by the Police (Scotland) Act 1967 and policing priorities are set under the Scottish Policing Performance Network. In Northern Ireland the Policing Board and the PSNI publish an Annual Policing Plan in accordance with the Police (Northern Ireland) Act 2000 and the Police (Northern Ireland) Act 2003.55 The Plan is prepared by the Chief Constable, agreed by the Policing Board and endorsed by the Justice Minister. These are the formal structures within the UK that incorporate UK and EU legal policy. Therefore, it would be expected that if the government where taking the policy lead on THB, and implementing the content of EU Directives, that the National Policing Plan would include THB. This would then ensure that Chief Constables would incorporate THB into their own force policing plans.

Case study: Merseyside police The Merseyside Policing Plan 2011-2014,56 a formal structure, which is arguably representative of most policing plans, sets out their strategy and objectives. They have two strategic objectives; “fighting crime means continuing to reduce overall crime and implement strategies, with our partners, to prevent crime occurring. Protecting communities means identifying and responding to threat, harm and risks as and when they emerge in our local communities”. It states that “by striking a balance 53

http://www.scotland.gov.uk/Topics/Justice/public-safety/Police/Performance. Mawby, R. and Wright, A., “Human Rights Initiative: Police Accountability in the UK” Written for the Commonwealth Human Rights Initiative (Keele University, 2005). 55 PSNI Policing Plan: http://www.nipolicingboard.org.uk/index/our-work/over sight-of-the-psni/content-policing-plan.htm. 56 Policing Plan for Merseyside Police Authority: www.merseysidepoliceauthority.gov.uk. 54

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between the deployment of resources and the management of risk, we want to protect communities from criminal activity and protect the most vulnerable people from harm”. This policing plan sets out the priorities for Merseyside Police, and includes neighbourhood policing, working with partners in the community and the reduction of crime. It makes no reference to THB and, it is arguable, that when writing this plan, and how it would be implemented in practice, no consideration was given to THB. The fact that THB was not mentioned within the plan or policing priorities may impact on any police force response to THB policies and initiatives. Other important aspects of the Merseyside Policing Plan include how they will make saving cuts and provide value for money. The force must make £61.5m savings over the next four years. These constraints on both financial and human resources may also impact on the ability to implement THB policies and initiatives, especially, those dictated from the EU. Tackling Serious and Organised Crime is another Merseyside Police priority. Again THB is not specifically mentioned. They have set up a number of specialist units to tackle these crimes, and have formed partnerships with other North West police forces in combined specialist teams and units. The National Strategic Assessment informs strategic planning by identifying current, emerging and future threats to policing,57 and this determines the police response. If this assessment does not prioritise THB, or recognise it as a threat, which it doesn’t, then irrespective of EU directives, it may not become a policing priority, and it is probable that there could be no strategic or operational police response to THB. There are two apparent difficulties to ensuring that the UK police respond to the THB governmental and police objectives and priorities. Unless these can be overcome then EU directives will have little significance or impact, and will be unlikely to add value. First, governments must ensure that THB is made a priority, and that it is included within its National Policing Plans and strategy documents. Second, if THB is not a primary policing objective, irrespective of police 57 Through the Research, Analysis and Information Unit (RAI). For more information see: www.npia.police.uk/en/17087.htm.

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reforms and the requirement to make resource savings, they will be incapable of building the required capacity, resource and knowledge to combat trafficking. It is arguable that the police are currently not equipped to deal with THB, only one force has a specialist THB unit, training within police would appear to be neither mandatory nor a priority. Until THB becomes a policing priority they will not be in a position to combat THB. This includes basic measures, such as being able to identify victims, taking a victim centred approach in both interviews and the protection of victims, knowing which NGOs have responsibility for THB, and how to form partnerships to ensure a holistic, integrated approach. Also, it is apparent that even if the police are directly tasked by government to undertake efforts to tackle THB, then this will not guarantee it becoming a policing priority. At present there appears to be no government policy to make THB a policing priority, or formally ensure that those articles pertaining to policing within EU directives are prioritised. The probability is that the police will undertake THB initiatives of their own volition, rather than be directed by government. The current role and accountability structure of policing questions whether they are either equipped or suited to take responsibility for EU policy as envisaged within the EU directive, in terms of strategies, resources and priorities. Even if THB were a police priority, it still must be accepted that in respect of traditional policing the skill base and resource that is required to undertake victimless prosecutions and the other key proposals, is not present. We turn next to the evolution of THB within UK policing, which raises further questions over whether the police are the correct agency to take responsibility for THB, as stated within the EU directive.

The Developing UK Law Enforcement Response to THB While governments are ultimately responsible for setting national policing objectives (including THB as a serious and organised crime) the police response to THB since 2000 is likely to be a result of a combination of factors, including national government policies, international agreements and endogenous policing initiatives. By analysing the UK response we hope to identify where each of these factors play a role, and thereby shed light on the impact and added value of the EU for the UK response.

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The role of the Association of Chief Police Officers (ACPO) and Association of Chief Police Officers Scotland (ACPOS) The role of ACPO is important in the context of the development of THB policies and priorities for England and Wales policing in the absence of any direct policy from government, police authorities or Chief Constables. Whilst the machinery of government acts in a rapporteur capacity there is no direct channel for England and Wales police representation on THB policy except through ACPO. Unlike other serious crime areas there is no consultative process that directly involves police in the development and implementation of government strategy and policy. The position is similar in Scotland, in that ACPOS are represented at the Scottish Organised Crime Taskforce. Although, in relation to asset recovery elements there is a specific forum where practitioners can contribute at the Scottish Asset Recovery Group. The United Kingdom Human Trafficking Centre (UKHTC), which has a UK-wide remit, is involved in the consultation on policy, and is also able to inform government through SOCA. The ACPO lead for THB played a significant role in the initial police responses to THB, and currently has responsibility to inform and promote ACPO policy on THB in England and Wales. Unfortunately, this is not mandatory on police forces under their accountability structure. Reflex Integral to the story of the UK law enforcement response to THB is the establishment of Reflex, which was launched in 2000 as a multi-agency task force to tackle organised immigration crime. The government provided £20 million annually to fund activity against people smuggling and human trafficking. Reflex was a multi-agency operation, chaired by the National Crime Squad (now SOCA), with membership from a number of UK police forces, Foreign and Commonwealth Office, Crown Prosecution Service, Home Office, Immigration Service (now United Kingdom Borders Agency) and others. The money provided by Reflex resulted in the formation of a number of specialist units within police forces including, South Yorkshire, West Yorkshire, Kent, Merseyside and Metropolitan Police Service (MPS) (it funded both Operation Maxim (a dedicated response to Reflex issues, working in partnership with the Immigration Service and Passport Service and latterly adding an anti-

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trafficking team) and Operation Paladin Child (Metropolitan Police),58 as well as funding being provided to other forces. Reflex is a good example of how the enforcement response to THB was not a simple case of implementing a top-down strategy directly by government. In the absence of widespread national-level expertise on new types of crime, the value of Reflex was its ability to develop strategy, and direction, through an innovative combination of the agencies that where represented in its membership. It was responsible for informing government, and government policy, rather than following government policy. Operation Pentameter 1 and 2 Operation Pentameter was the first proactive policing operation to involve all police forces within the UK. It was a Reflex-funded operation and its planning commenced in June 2005. It was launched in February 2006, and finished in June 2006 with an outcome in the establishment of the UK Human Trafficking Centre. The aims of Pentameter where to raise national awareness of THB, identify the scale of the problem, improve intelligence, the recovery of victims of THB, and reduction of harm, asset recovery, and to make the UK a hostile environment to THB. Operation Pentameter involved multi-agency working with law enforcement, governmental and non-governmental agencies, working together on a victim focussed approach to combating THB. It developed a training programme, as well as a victim strategy, a media strategy, and a campaign to reduce demand. It provided the first evidence that trafficking for sexual exploitation was a problem in the UK. As with Reflex itself, Operation Pentameter cannot be traced to a specific government strategy on THB, but that of an individual police officer. Dr Tim Brain, who was the Chief Constable of Gloucestershire and Gold Commander of Pentameter, stated;59 “The idea for a national operation to combat human trafficking for the purposes of sexual exploitation came from detective superintendent Nick Kinsella, formerly of NCIS now of South Yorkshire Police”.

58

Reflex and Metropolitan Police, “Paladin Child: A Partnership Study of Child Migration to the UK via London Heathrow”, July 2004, available online. 59 Pentameter operational overview; Gloucestershire Constabulary July 2006.

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According to the officer himself, upon being asked about the scale of the THB problem in the UK he realised that there was almost no intelligence or data available to provide an answer. His response was to develop what eventually became Operation Pentameter, with support from ACPO and Reflex, which provided the funding. Therefore, Pentameter was a bottom up police response to a perceived problem as opposed to either governmental or police policy. The second Operation Pentameter commenced in June 2007 and was designed to build upon both the lessons learned and the successes of the first Pentameter operation. It was a police-led multi-agency operation that was funded by law enforcement. Whilst more strategic than the original operation (the UKHTC had been launched in between Pentameter 1 and 2) it still was not a product of a defined police or governmental policy on THB. The government believed that Pentameter 2 would contribute to the development of their THB strategy.60 UK Human Trafficking Centre The UK Human Trafficking Centre (UKHTC), opened in June 2006, and was formally launched in October 2006. As previously mentioned, it was a result of Operation Pentameter which concluded that there was a requirement for the UKHTC and this was further supported by a number of written responses to the to the consultation paper on the UK Action Plan in 2006. This resulted in the ACPO lead for THB, supported by the future head of the centre, using the Reflex budget, (it was not funded by central government until 2008), and laying the foundations for the centre. The aims, policies and strategies of the UKHTC were written by the founding members of the centre, under the line management of the ACPO lead. The UKHTC is a multi-agency centre, which aims to develop and promote a victim centred approach to THB, improve the UK's law enforcement response to THB, and to build a knowledge and understanding of THB. The UKHTC was originally overseen by the ACPO lead on Serious Immigration Crime, before being amalgamated into SOCA in April 2010. Whilst often referred to as a government-led initiative, its genesis can therefore be traced to the entrepreneurial actions of particular actors in the law enforcement community, only subsequently 60

Introduction to Pentameter 2: Jacqui Smith MP, July 2007.

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becoming part of government, and ultimately intrinsic to government policy.

The Challenges and Issues for UK policing Issues that confront the police across the UK are the increasing number of THB cases, and the dynamic evolution and shifting methodologies of traffickers. The National Referral Mechanism (NRM) figures indicate a growing proportion of cases of forced labour, internal trafficking, domestic servitude, and THB associated with cannabis farming, begging and benefit fraud. Between 1st April 2009 and 31st March 2011 THB victims referred to the NRM came from 88 different countries61 which presented its own problems, including language and resource issues. Additionally, recent case law emphasises the differing types of THB, and the challenges presented to policing to prevent, identify and detect it. There has been considerable change since Pentameter 1 and the police need to be able to adapt, increase their awareness, and be properly trained. The apparent decline in the number of convictions may be an indicator that the current police response could be improved. The challenge for the police response is whether it can deal with these new, and changing trends, in terms of criminality, combined with a dynamic context of multi-level legislative activity. These issues are exacerbated by the lack of a direct government policing plan, and no new police strategies. In this context, it might be reasonable to lower expectations regarding police capacity to take lead responsibility for implementing EU policy, – something currently not foreseen in force policing plans, and where no additional resource appears likely at a time of value for money and cost savings.

Conclusions The case study presented here illustrates some of the problems of “misfit” between philosophies of policing at EU and national levels, which relates to the first type of Europeanisation (adaptational pressures) mentioned at the start of this chapter. The framing of the issue also emerges as a key point of tension, for example the categorisation of trafficking as organised crime, and the consequences that this has for 61 NRM 24 Monthly Statistics 1/4/09-31/3/11 www.soca.gov.uk/about-soca/abouttyhe-ukhtc/national-referral-mechanism.

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policing. Overall, we find support for our hypotheses that the ‘harder’ forms of international cooperation (i.e. those contained in the EU directive) are generally weaker in terms of the generation of real impacts on policing. These findings are in contrast to the tendency of commentators and observers to overstate the agency of the international cooperation on national policing practices, and likewise to understate the autonomy of the police when it comes to the development of the criminal justice response to new crimes. EU policy on THB has expanded incrementally, and this has been, arguably, a change without monitoring or evaluation. The only recorded evaluation was in 2009, before the implementation of the new directive, when a pilot evaluation was carried out in Belgium and France. There now appears to be a general consensus within the EU that a prioritised approach to THB is essential, and that a holistic integrated approach is to be the cornerstone of strategy and planning, and that approach needs to be on a local, national and international basis. There has been rather less consideration given to assessing the impact of EU policies themselves. The objectives of EU directives post-Stockholm are laudable, but are they realistic in terms of expanding a mandatory approach? Should the EU modify or diminish its objectives to ensure that each member state has developed the most appropriate THB strategy and focus more upon how those strategies are monitored and evaluated? Without evaluation it is difficult to determine how realistic current EU policies are, and whether police forces, in the UK or elsewhere within the EU, are the bestpositioned to either take the lead responsibility or indeed assume full responsibility for the implementation of EU policies on THB. Ultimately the UK governments have responsibility for policies on THB, and although they are administered differently within the UK, any THB policy lead is the responsibility of government. It would thus seem that the UK police do not have the responsibilities within the UK that the EU envisaged. Arguably, the EU is expanding THB policy in a mandatory manner, without the benefit of evaluation, and appears to be pursuing a “one size fits all” policy, with an all-embracing strategy that is the same for each member state. This raises the danger that member states are agreeing to regional THB policies that they are incapable of implementing, and where there is little knowledge of the impact of these measures. It also risks stifling local/national innovation which has thus far been the most influential in shaping the development of the UK’s law enforcement response to THB.

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The increase in the responsibility on policing from the EU expands both the police’s responsibilities and remit. We suggest that this is at odds with all government policy in the UK, as set out in the current strategies or previous action plans on THB. Equally important, this is not in line with current policing policy and planning, where THB tends not to be directly mentioned, or even seen as a priority. Finally, even if the EU policies were tasked directly to policing it is debatable, in the current climate, whether the police have the financial or human resource to undertake those responsibilities. The findings of this chapter raise a number of key questions about the role of international or EU agreements on THB, and the impact that these have at the national level. If member states such as the UK do not properly implement EU directives (and enable policing to take on the responsibilities this implies), will this lead to a breakdown in cooperation between government and non-government agencies? Will this erode any partnership approach and the integrated holistic approach that the EU champions? There is a possibility that the current EU approach could be counter-productive, and undermine all that it seeks to achieve. There is already growing criticism amongst partner agencies, especially in the NGO sector, that UK policing and government are not fulfilling their obligations, and this is causing tensions and increasing problems. Arguably, this problem is further compounded by the continued expansion of EU policy without fully understanding the impact upon those with the responsibility for its implementation, and without ensuring that policing is supported by the requisite objectives and resources. At present the concern is that member states adopt EU policies that are then ignored, not properly evaluated and are rendered irrelevant without any sanction to ensure compliance. This has the potential to expose fractures between the EU and domestic member state law over policing matters. Without answers to some, or all of these questions, it is difficult to say that the 2011 EU Directive on Human Trafficking will have the significant impact that was hailed by ASI. However, it is equally difficult to say that implementation of EU directives were purely acts of political symbolism, that will have no apparent impact or influence on national police planning or operational policing. In the post-Lisbon era EU directives have direct effect in the law enforcement sector, something well-understood in other areas such as the single market. Our survey of the UK’s response to the challenge of human trafficking reveals that both explanations are

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potentially inaccurate. This is because they overlook the specific features of UK policing, and the ability of this system to construct innovative and effective operational practices. Moreover, these particular features are unlikely to be present in other EU member states where different systemspecific factors may lead to a range of different outcomes. Ultimately we conclude that impact, in terms of enhancing the UK response to human trafficking, is likely to be best achieved by recognising and harnessing these endogenous features, and the creative resources already within UK policing.

Bibliography Anderson, B. and Rogaly, B., Forced Labour and Migration, London: TUC, 2005. ATMG (Anti-Trafficking Monitoring Group) Report on human trafficking. London: ATMG, 2010. ASI (Anti-Slavery International) press release: “Trafficking Campaign Victory” http://www.antislavery.org/english/press_and_news/news_and_press_r eleases_2009/trafficking_campaign_victory.aspx. Bache, I. and George, S., Politics in the European Union, 2nd edition, Oxford: Oxford University Press, 2006. Balch, A. Regulation and enforcement to tackle forced labour: a systematic response? JRF – Joseph Rowntree Foundation, York, 2012. Balch, A. and Geddes, A., “Opportunity from Crisis? Organisational Responses to Human Trafficking in the UK”, British Journal of Politics and International Relations, (2011) 13, 1 26–41. Beecroft, A., Report on Employment Law, submitted to the Department for Business, Innovation and Skills (BIS), 2011. Bomberg, E. and Peterson, J., “Policy Transfer and Europeanization: Passing the Heineken Test?”, Queen’s Papers on Europeanisation, 2, 2000. Börzel, T. and Risse, T., “Conceptualising the domestic impact of Europe” in Featherstone K. and C.M. Radaelli C.M. eds. The Politics of Europeanisation, Oxford: Oxford University Press, 2003. Borzel, T., “Europeanization: How the European Union Interacts with its Member States”, in The Member States of the European Union, Bulmer S. and Lequesne. C. eds. Oxford, Oxford University Press, 2005, 50-51. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the

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Committee of the Regions, Delivering an area of freedom, security and justice for Europe's citizens, Action Plan Implementing the Stockholm Programme, Brussels, 20.4.2010, COM(2010) 171 final. Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 197, 1–2. Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, OJ 2002 L203/1. Council of Europe Convention on Action against Trafficking in Human Beings, CETS No.: 197. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ 2011 L101/1. Duina, F., “Explaining legal implementation in the European Union.” International Journal of the Sociology of Law (1997) 25(155-179). den Boer, M. ed. Organised Crime: A Catalyst in the Europeanisation of National Police and Prosecution Agencies? (2002) EIPA (European Institute of Public Administration). Easton, M., “What are the police for?”, 2012 BBC News. http://www.bbc.co.uk/news/uk-16789158. EHRC “Inquiry into Human Trafficking in Scotland: Report of the Equality and Human Rights Commission”, 2011. http://www.equalityhumanrights.com/uploaded_files/Scotland/Human _Trafficking_in_Scotland_/inquiry_into_human_trafficking_in_scotlan d-full-report_pdf_.pdf. European Communities Act 1972 (UK). European Scrutiny Committee, 9 March 2011 – Hansard: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeule g/428-xxii/42805.htm. EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings, OJ 2005 C311/1. FRA, The Stockholm Programme: A chance to put fundamental rights protection right in the centre of the European Agenda, Fundamental Rights Agency, Vienna 2009. FT.com “A proposal for the philosopher Beecroft by Richard Lambert (with apologies to Jonathan Swift)”, 25 May 2012. Green Damian, (letter from) (Minister for Immigration) to the European Scrutiny Committee European Scrutiny Committee, 9 March 2011 – Hansard:

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http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/42 8-xxii/42805.htm. Green-Cowles, M., Caporaso, J., et al., Transforming Europe: Europeanization and domestic change. Ithaca, NY, Cornell University Press, 2001. Harfield, C., “SOCA: a paradigm shift in British policing.” British Journal of Criminology (2006) 46 (4): 743-761. Héritier, A., Kerwer, D, Knill, C., Lehmkuhl, D., Teutsch, M. and Douillet, A-C., Differential Europe. The European Union Impact on National Policymaking, Lanham, MD: Rowman and Littlefield, 2001. Human Trafficking: The Government’s Strategy, HM Government, available at http://www.homeoffice.gov.uk/publications/crime/humantrafficking-strategy. Introduction to Pentameter 2: Jacqui Smith MP, July 2007. Inter-Departmental Ministerial Group (IDMG) on Human Trafficking, First Annual Report of the Inter-Departmental Ministerial Group on Human Trafficking, (Cm. 8421), TSO, London: The Stationery Office, 2012. Kingdon, J. W., Agendas, alternatives, and public policies (2nd ed.). New York: Longman, 1995. HM Government, Human Trafficking: The Government’s Strategy, available at http://www.homeoffice.gov.uk/publications/crime/humantrafficking-strategy. Knill, C. and Lehmkuhl, D., “The National Impact of European Union Regulatory Policy: Three Europeanization Mechanisms.” European Journal of Political Research (2002) 41(2): 255-280. Ladrech, R., Europeanization and National Politics, Basingstoke: Palgrave Macmillan, 2010. Mawby, R. and Wright, A., “Human Rights Initiative: Police Accountability in the UK” Keele University, 2005, available at: http://www.humanrightsinitiative.org/programs/aj/police/res_mat/polic e_accountability_in_uk.pdf. NRM 24 Monthly Statistics 1/4/09-31/3/11 www.soca.gov.uk/aboutsoca/about-tyhe-ukhtc/national-referral-mechanism. Olsen, J. “The Many Faces of Europeanization”, Journal of Common Market Studies, (2002) 40(5), 921-952. O’Neill, M., “The EU Legal Framework on Trafficking in Human Beings: Where to from here – the UK Perspective,” Journal of Contemporary European Research, (2011) 7, 4, 452-467. OOO and others v Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB).

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Peers, S., “The new Directive on trafficking in persons” (2011) Statewatch Analysis www.statewatch.org/analyses/no-113-trafficking.pdf. Pentameter operational overview; Gloucestershire Constabulary July 2006. Policing Plan for Merseyside Police Authority: www.merseysidepoliceauthority.gov.uk. Police and Fire Reform (Scotland) Act 2012 asp.8. PSNI Policing Plan: http://www.nipolicingboard.org.uk/index/ourwork/oversight-of-the-psni/content-policing-plan.htm. Rantsev v Cyprus and Russia [2010] ECHR 25965/04. Reflex and Metropolitan Police, “Paladin Child: A Partnership Study of Child Migration to the UK Via London Heathrow”, July 2004, available online. Sergi, A., “Crime stoppers - UK overhauls organised crime policing” Jane's Intelligence Review, December 2011 http://essex.academia.edu/AnnaSergi/Papers/1292373/Crime_stoppers _-_UK_overhauls_organised_crime_policing. Obokata, T., “A Human Rights Framework to Address Trafficking of Human Beings,” Netherlands Quarterly of Human Rights, (2006) 24, 377-409. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime 2000, (Palermo Protocol) - came into force on December 25, 2003. Serious Organised Crime Task Force, Letting our communities flourish, One year on, a strategy for Tackling Serious Organised Crime in Scotland, The Scottish Government, June 2010, available at http://www.scotland.gov.uk/Resource/Doc/313639/0099447.pdf.

CHAPTER EIGHT TRAFFICKING IN HUMAN BEINGS AND THE EUROPEAN NEIGHBOURHOOD POLICY: NEW CHALLENGES FOR THE EU JUSTICE AND LAW ENFORCEMENT FRAMEWORK MARIA O’NEILL

Introduction Trafficking in human beings (THB) is viewed by the EU as being “a constantly growing problem.”1 The EU has recently put its internal house in order in the area of THB with the passing of Directive 2011/36/EU.2 Much work will have to follow internally on its implementation, and the development of follow up supportive and active policing measures. At the EU level the focus has already shifted to the external relations of the EU in the area of THB with the approval of the Stockholm Programme in December 2010.3 The EU is currently developing its justice and law 1

Multi-annual programme 2010-2014 regarding the area of freedom, security and justice (Stockholm programme), European Parliament resolution of 25 November 2009 on the Communication from the Commission to the European Parliament and the Council – An area of freedom, security and justice serving the citizen – Stockholm programme, 2010 OJ C 285 E/02, paragraph 126. 2 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15/04/2011, 1. 3 Stockholm Programme – An open and secure Europe serving the citizen, 2nd December 2009, 17024/09, JAI 896, http://europa.eu/legislation_summaries/human_rights/fundamental_rights_within_ european_union/jl0034_en.htm.

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enforcement framework with willing third countries.4 Recognised THB trafficking routes will, no doubt, be prioritised. This could be done either through EU – third country agreements, or agreements between law enforcement regional groupings and Europol. The EU is likely to prioritise “multilateral solutions to common problems” in its relationships with “third countries and international, regional or global organisations”, pursuant to Article 21 TEU, post Lisbon. Both the South East European Law Enforcement Centre (SELEC),5 and the Central Asian Regional Information and Coordination Centre (CARICC)6 in Kazakhstan, are likely potential partners in this crime area. These likely developments will put pressure on the existing EU legal frameworks, and the justice and law enforcement provisions in particular. This chapter will critically analyse from a legal perspective the problems which are likely to emerge in the development of the EU’s external provisions for tackling THB with SELEC and CARICC countries. Of the two organisations, SELEC has closer relations with the EU, however both organisations show potential, at their different levels of development, for cross-border law enforcement cooperation with the EU. The closer relationship that SELEC countries have with the EU is reflected in the fact that a number of SELEC member states are already inside the EU. The others are all members of the Council of Europe (CoE). In the specific area of THB, the EU member states of Greece and Hungary, together with Turkey, having signed, but not ratified the CoE Convention on Action against Trafficking in Human Beings.7 For all other SELEC members the CoE convention is in force. Of those SELEC members which are not in the EU, they are all, with the exception of Moldova, either candidate or pre-candidate countries for membership of the EU. Moldova, the SELEC member state with the weakest relationship 4 See, inter alia, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Cooperation in the Area of Justice and Home Affairs within the Eastern Partnership, COM(2011) 564, 3.3.2. Addressing trafficking in human beings. 5 Whose membership comprises Albania, Bosnia & Herzegovina, Bulgaria, Croatia, Greece, Hungary, FRY Macedonia, Moldova, Montenegro, Romania, Serbia, Slovenia and Turkey. http://www.secicenter.org/ . 6 Whose membership comprises Azerbaijan, Kazakhstan, Kyrgyz Republic, Russian Federation, Tajikistan, Turkmenistan and Uzbekistan. http://www.caricc.org/index.php?lang=english . 7 CETS No.: 197.

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with the EU, is currently negotiating an Association Agreement with the EU. It will therefore be selected as the SELEC case study. The CARICC countries are further east, and are very much in the Russian sphere of influence. Only Azerbaijan, among the CARICC member states, could be said to enjoy close relations with the EU. Azerbaijan has therefore been selected as the case study for the CARICC group, as a potential link between these two groups of countries. It should also be noted that Europol is one of the transnational organisations, along with SELEC, which is assisting in the development of CARICC.8 Russia, a member of CARICC, was offered European Neighbourhood Policy (ENP) status with the EU. However the approach of the ENP was politically highly problematic for Russia. This led to the development of the “four common spaces” approach between the EU and Russia. This arrangement is generally considered to be less developed than the ENP agreements with other countries. Two of the common spaces9 are relevant to the subject matter of the AFSJ which are the Common Space of Freedom, Security and Justice, (CSFSJ) and the Common Space of External Security (CSES).10 These four common spaces with Russia are being implemented by way of road maps.11 The EU’s Action Orientated paper on implementing the CSFSJ12 with Russia makes clear reference to ongoing work in the area of THB.13 Russia, a member of the CoE has, at the time of writing, yet to sign the CoE Convention on Trafficking in Human Beings. There is a further set of countries, some of which are not members of either SELEC or CARICC, that have close relations with the EU, and show potential for development in the area of THB. These are the eastern members of the European Neighbourhood Policy (ENP).14 The ENP has 8

CARICC web site. The two other common spaces with Russia are the Common Economic Space and the Common Space of Research and Education. 10 van Elsuwege, “The Four Common Spaces: New Impetus to the EU–Russia Strategic Partnership?” in Law and Practice of EU external relations, Salient features of a changing landscape, Dashwood A. and Maresceau M., eds. (Oxford University Press, 2008, 334.) 11 Ibid. 335. 12 Action Oriented Paper on Implementing with Russia the Common Space of Freedom, Security and Justice, Brussels, 28 November 2006, 15534/1/06. 13 In particular 16-17 of the 2006 Action Oriented Paper. 14 Subject to ongoing political change in the regions, these are Algeria, Armenia, Azerbaijan, Belarus (relationship currently frozen), Egypt, Georgia, Israel, Jordan, 9

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been described as being “a regional implementation of the European Security Strategy.” The underlying intention of the ENP is seen as securing the external borders of the EU.15 It is “conceived as an allencompassing promotion of EU norms and standards towards neighbours”.16 Many of the Stockholm Programme proposals for the development of the external aspects of its AFSJ focus on the ENP countries. These countries17 are also members of the CoE, all having signed, ratified, and entered into force within their own jurisdictions the provisions of the CoE Convention on Action against Trafficking in Human Beings.18 With a shared understanding with the EU of the concepts of human rights, even if their countries are currently undergoing transition, interesting possibilities arise with regard the potential for developing cross border law enforcement operations with these countries in the context of human trafficking.

The Stockholm programme and THB external relations The challenge of tackling THB in the Stockholm Programme is seen as going “beyond the area of freedom, security and justice,” and needs to take in “external relations.”19 The Stockholm Programme calls for “all means of action” to be mobilised, “bringing together prevention, law enforcement, and victim protection, and [for them to] be tailored to combating trafficking into, within and out of the Union.”20 Strangely enough, the Stockholm Programme makes no reference to anti-money laundering provisions in the context of THB, despite the Financial Action Task Force (FATF) having developed a policy document on this issue.21 As THB is Libya (had observer status under the ENP under the old regime), Moldova, Morocco (more focused on the Euro-Med agreements), Occupied Palestinian Territory, Syria (ENP negotiations started, but no agreement has been signed), Tunisia and the Ukraine. 15 Hillion, C., “The EU’s Neighbourhood Policy towards Eastern Europe,” in Law and Practice of EU External Relations; Salient Features of a Changing Landscape, Dashwood A. and Maresceau M. eds. (Cambridge, 2008, 314). 16 Ibid. 313. 17 Armenia, Azerbaijan, also a member of CARRIC, Georgia, Moldova, a member of the SELEC centre, and the Ukraine. 18 CETS No.: 197. 19 The Stockholm Programme, 4.4.2. Trafficking in human beings, first paragraph, 21. 20 Ibid. 4.4.2. Trafficking in human beings, third paragraph, 21. 21 Money laundering risks arising from the Trafficking in Human Beings and Smuggling of Migrants, July 2011, FATF/OECD 2011, www.faft-gafi.org.

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invariably undertaken for the purposes of making illegal money, the EU will have to address this part of its external relations strategy in the near future. The internal EU THB provisions make express reference to the external provisions, recognising that both aspects of this crime area are linked, and need to be tackled together. Under the Stockholm Programme the European Council has asked the Commission, to develop ad hoc cooperation agreements with specified third countries, using “all leverage available to the Union, including the use of financing programmes, cooperation for the exchange of information, judicial cooperation and migration tools.”22 The Commission has also been asked to establish partnerships with the main countries of origin, on behalf of the Union. This is with a view to developing “compensation schemes, safe return and assistance with reintegration into society in their country of origin” if trafficked individuals return ‘voluntarily’ to their country of origin.23 The EU, through the Stockholm Programme, has recognised that its external and internal policies in AFSJ matters are “inextricably linked.”24 Just as THB matters are being upgraded within the EU, so too must there be “continuity and consistency between internal and external policies” in order to lead to effective results.25 The Strategy for the External Dimension of Justice and Home Affairs26 has already been adopted. Crucial to these developments of EU external THB matters will be “an adequate and consistent internal human rights policy,”27 allied with the Human Rights Action Plan called for in the Stockholm Programme, in order that the EU can effectively export EU values in its external AFSJ provisions.28 This proposed Action Plan appears to be still at an early stage of development. Not only will particular “gender issues” need to be 22

The Stockholm Programme, 4.4.2. Trafficking in human being, fifth paragraph, second indent, 22. 23 Ibid. 4.4.2. Trafficking in human beings, fifth indent, first sub indent, 22. 24 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Delivering an area of freedom, security and justice for Europe's citizens Action Plan Implementing the Stockholm Programme, Brussels, COM(2010) 171, 8. 25 Ibid. 26 Council of the EU: A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, Brussels 15446/05, 6 December 2005. 27 Multi-annual programme 2010-2014, paragraph 22. 28 The Stockholm Programme, 7. Europe in a globalised world – the external dimension of freedom, security and justice, 7.2. Human rights, 34.

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written into the external dimension of EU THB provisions,29 but so too will be the needs of undocumented “children of third-country origin” who “can find themselves particularly vulnerable to exploitative labour situations.”30 The Stockholm programme anticipates the strengthening of “operational agreements by Eurojust, Europol, as well as working arrangements with Frontex” with external third country partners.31 The prioritisation of these external operational arrangements will be informed and be guided by “priorities in [the EU’s general] external relations.”32 A particular focus will be on the development of close cooperation with our neighbours,33 “making full use of all ranges of instruments available to it.”34 The “neighbours” in EU law are the members of the ENP, and similar countries, such as Algeria35 and Russia, both of whom have been offered ENP agreements, but have opted for alternative arrangements. The Commission has also been tasked with examining the options for developing “ad hoc” agreements “with specific third countries to be identified by the Council”, in order to enhance “the fight against trafficking in human beings and smuggling of persons”, to include the use of “existing financing programmes, cooperation in the exchange of information, judicial cooperation and migration tools.”36 All of the EU agencies in the area of law enforcement, namely Europol, Eurojust and Frontex “are offering interesting possibilities for cooperation,” not including membership, with third countries.37 Once a third country wants to enter into partnership agreements with the EU in the 29

Multi-annual programme 2010-2014, paragraph 115. Ibid. paragraph 81. 31 The Stockholm Programme, 7. Europe in a globalised world – the external dimension of freedom, security and justice, 7.3. Continued thematic priorities with new tools, fourth paragraph, 35. 32 Ibid. 7. Europe in a globalised world – the external dimension of freedom, security and justice, fourth paragraph, 33. 33 Ibid. 7.1. A reinforced external dimension, second paragraph, 34. 34 Ibid. 35 Algeria and the EU have started exploratory negotiations on the development of an ENP, press release IP/12/255 of the 19/3/2012, available on the Europa web site. 36 Ibid 7. Europe in a globalised world – the external dimension of freedom, security and justice, 7.3. Continued thematic priorities with new tools, third paragraph, 35. 37 Communication from the Commission to the Council and to the European Parliament on the general approach to enable ENP partner countries to participate in Community agencies and Community programmes, COM(2006) 724 final, 7. 30

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area of THB, and has put the necessary data protection rules in place, the potential for these developments are open for negotiation. The EU operates the Directive 95/46/EC,38 which is based on the CoE’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.39 Despite Russia’s membership of the CoE, it has not acceded to the CoE data protection convention, giving rise to problems in the EU - Russian cross border justice and law enforcement relationship.40 These developments, to include choosing which countries with whom to prioritise developments, will be based on the “priorities of external relations policies” of the EU, and “on operational needs.”41 The involvement of “ENP partners” will “require bilateral agreements to be drawn up on a case-by-case basis, for each ENP partner and agency, individually and separately.”42 The exact structure and practice with each third country law enforcement agency would then be the subject matter of negotiation between Europol and/ or Eurojust and that third country agency. The Ukraine, an ENP country, for example, had opened up discussions on cooperation agreements with both Europol and Eurojust,43 and has ratified, and implemented, since the beginning of 2011, the CoE’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data,44 together with its additional protocol.45 EU

38

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OL L 281/31. 39 CETS No.:108. 40 Commission staff working document accompanying the communication from the Commission to the Council - Review of EU-Russia relations pursuant to conclusions of the Extraordinary European Council of September 1, 2008 {COM(2008) 740 final}, SEC(2008) 2786, paragraph 71. 41 Communication from the Commission to the Council and to the European Parliament on the general approach to enable ENP partner countries to participate in Community agencies and Community programmes, COM(2006) 724 final, 7. 42 Ibid. 10. 43 Commission staff working document accompanying the Communication from the Commission to the Council and the European Parliament on strengthening the European neighbourhood policy - ENP Progress Report - Ukraine {COM(2006)726 final}, SEC(2006) 1505, 9, Cooperation on justice, freedom and security, Revision of the JLS Action Plan. 44 CETS No.:108.

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provisions on the transmission of classified information to the Ukraine have also been signed and implemented within the EU.46 Ukraine, for its part, has been party to the development of an “informal network” based in Kyiv which consists of the EU Commission, its member state embassies and relevant international organisation representatives, with the intention of improving “the exchange and analysis of information in justice and home affairs” in the context of the Ukraine.47 ENP agreements are very clearly legal relationships. The legal status of association agreements has been adjudicated on by the then ECJ in the Demirel case,48 which determined that association agreements create “special, privileged links with a non-member country which must, at least to a certain extent, take part in the Community system.”49 In addition the then ECJ has regularly found50 that the EU’s external association agreements have internal direct effect.51 These negotiations must therefore be developed with these considerations in mind. The European Council has asked Europol, “to step up support for information gathering and strategic analysis, to be carried out in cooperation with the countries of origin and of transit” of THB, with the support of the EU member states.52 The task set for Eurojust is less wide ranging, having been asked “to step up its efforts to coordinate investigations conducted by Member States’ authorities into trafficking in 45

Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows, CETS No.:181. 46 Agreement between Ukraine and the European Union on the security procedures for the exchange of classified information, OJ 2005 L 172/84, as implemented by Council Decision 2005/481/CFSP of 13 June 2005 concerning the conclusion of the Agreement between the European Union and Ukraine on the security procedures for the exchange of classified information, OJ L 172/83. 47 European Council Common Strategy 1999/877/CFSP of 11 December 1999 on Ukraine, OJ L 331/1, III(ii) Cooperation in the field of justice and home affairs, paragraph 64. 48 Case 12/86 Meryem Demirel v. Stadt Schwäbisch Cymünd [1987] ECR 3719. 49 Ibid. paragraph 9 of the ruling. 50 See Case 192/89 Sevince [1990] ECR 3461, Case C-63/99 Gloszckuk [2001] ECR I-6369; Case C-171/01 Wählergrupe Gemeinsam [2003] ECR I-4301 and Case C-265/03 Simutenkov [2005] ECR I-2579. 51 Hillion, “The EU’s Neighbourhood Policy” 332. 52 The Stockholm Programme, 4.4.2. Trafficking in human beings, fifth paragraph, third indent, 22.

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human beings.”53 It is clearly expected that Europol will develop some level of operational capacity outside the EU, with both countries of origin and transit. This is reflected in its ongoing relationship with both SELEC54 and CARICC.55 Some work on Europol’s role in the external relations of THB has already been conducted. As pointed out by the EU’s external THB action oriented paper, both the criminals engaged in THB and the “proceeds from their activities pose a serious threat to the community”.56 In order to address this issue, a “Threat Assessment of THB to the EU, including from third countries and regions, should be drawn up”. This is to build on both the Council Conclusions on intelligence-led policing,57 and the Council Conclusions on the Architecture of Internal Security.58 It is to be informed by the Europol Organised Crime Threat Assessment (OCTA),59 the Russian Organised Crime Threat Assessment (ROCTA),60 and the South-East European Organised Crime Threat Assessment (SEEOCTA).61 It would build on intelligence supplied by a variety of EU organisations, to include Frontex, Eurojust, Cospol62 and the PCTF.63 This THB Threat Assessment would then inform decisions on both the feasibility and prioritisation of third countries for the development of AntiTHB Partnerships.64 53

Ibid. 4.4.2. Trafficking in human beings, fifth paragraph, fourth indent, 22. Through its European Union support group. SELEC web site. 55 CARICC web site. 56 Implementing the Strategy for the External Dimension of Justice and Home Affairs: Global Freedom, Security and Justice - Action-Oriented Paper on strengthening the EU external dimension on action against trafficking in human beings; Towards Global EU Action against Trafficking in Human Beings - final version, Brussels, 25 February 2010, 3.4 Investigating, prosecuting and controlling the external borders of the EU, point ii, 20. 57 Council Conclusions of 12 October 2005 on intelligence-led policing, 10180/4/05 CRIMORG 56 ENFOPOL 75. 58 Council Conclusions on the Architecture of Internal Security, 9596/06 JAI 271 CATS 104. 59 Europol Organised Crime Threat Assessment (OCTA), 8061/09 CRIMORG 47 (EU RESTREINT). 60 Russian Organised Crime Threat Assessment (ROCTA), 15819/08 CRIMORG 197 EUROPOL 244 (EU RESTREINT). 61 Implementing the Strategy 3.4 Investigating, prosecuting and controlling the external borders of the EU, point ii, 20. 62 Comprehensive Operational Strategic Planning for the Police. 63 EU Police Chiefs Task Force. 64 Implementing the Strategy, 3.4 Investigating, prosecuting and controlling the external borders of the EU, point ii, 20. 54

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As mentioned above, a problem which arose with the development of the EU’s law enforcement relationship with Russia, and which will clearly inform the development of other EU external relations in the area of law enforcement, is the level not only of human rights protection in the partner country, but also the level of protection of personal data. This issue brought a halt to both Europol – Russia negotiations and Eurojust – Russia negotiations.65 As the Commission has stated, the proper implementation of the CoE’s data protection convention is a “prerequisite for a possible Operational Agreement between Russia and Europol, which would allow exchange of personal data.”66 This matter was also underlined in the Stockholm Programme, which required an “information exchange that flows securely, efficiently and with adequate data protection standards between the Union and third countries”,67 with the “protection of personal data [being] a core activity of the Union.”68 The Stockholm Programme called for “a framework model agreement consisting of commonly applicable core elements of data protection” to be created.69 In addition the EU’s law enforcement community will have concerns on data security, and the capacity of third countries to handle varying levels of security classification.70 On the specific topic of the EU external relations on THB, the EU has already published its proposals in this area.71 The EU recognises that a particular “feature of the criminal groups” in this crime area, “is that they operate not only in source and transit countries, but also in EU Member 65

Commission staff working document accompanying the communication from the Commission to the Council - Review of EU-Russia relations pursuant to conclusions of the Extraordinary European Council of September 1, 2008 {COM(2008) 740 final}, SEC(2008) 2786, paragraph 73. 66 Ibid. paragraph 71. 67 The Stockholm Programme, 7. Europe in a globalised world – the external dimension of freedom, security and justice, 7.3. Continued thematic priorities with new tools, second paragraph, third intent, 35. 68 Ibid. 7.4. Agreements with third countries, second paragraph, 35. 69 Ibid. 70 The EU’s rules on data security are set out in Council Decision 2011/292/EU of 31 March 2011 on the security rules for protecting EU classified information, OJ L 141, 27/05/2011, 17, while Europol continues to maintain its own, but very similar provisions in Council Decision 2009/968/JHA of 30 November 2009 adopting the rules on the confidentiality of Europol information, OJ L 332/17. 71 Action-Oriented Paper (AOP) on strengthening the EU external dimension on action against trafficking in human beings; Towards Global EU Action against Trafficking in Human Beings, Brussels, 4 July 2011, 12401/11.

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States.”72 The internal and external to the EU aspects of the criminal activity cannot be disentangled. THB is to become “one of the priorities in the continuous enhancement of cooperation between Frontex, Eurojust and Europol and third countries.”73 This enhancement of activity is to be “through the implementation of cooperation agreements, contact points and operational activities.”74 As reported by the Commission, “there has been an apparent increase in recent years in the number of victims trafficked into the EU”, in particular “from the Russian Federation, Ukraine, Central and SouthEastern Europe.”75 These are predominantly the countries which are members of SELEC and CARICC. The Action-Oriented Paper on strengthening the EU external dimension on action against trafficking in human beings also highlights the fact that victims are also regularly identified as being from Asia, Africa and Latin America. However these latter source countries are out with the scope of this paper.76 As THB activity “is driven by profit”77 the further development of the pre-existing EU anti-money laundering provisions, particularly in the context of the EU’s external relations in the context of THB will also be crucial. The EU’s action oriented paper on the external dimension of THB speaks of the establishment of “Swift Action Teams (SATs)”, in cooperation with Europol and Frontex, which would be deployed to third countries in order to “assist third countries in identifying victims of THB at airports before they board and providing training on the identification of victims and forged identity papers.”78 It is expected that “Country and Regional Strategy Papers and Indicative Programmes” will be developed, to cover specific regions and third countries with regard to THB.79 Once third countries have acceded to

72

Implementing the Strategy, 3.4 Investigating, prosecuting and controlling the external borders of the EU, 22, point ii. 73 Ibid. 3.4 Investigating, prosecuting and controlling the external borders of the EU, 19, point i. 74 Ibid. 75 Ibid. III. Situation overview, 6. 76 Ibid. 6. 77 Ibid. III. Situation overview, 7. 78 Ibid. 3. Developing partnerships between the EU, third countries, regions and organisations at international level against THB, point iii, 13. 79 Ibid.

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the CoE convention on THB,80 it is expected that the CoE’s “monitoring mechanism (GRETA)”81 would have the “potential to cater for concrete recommendations for further action in this context.”82 It is anticipated that training programmes would be developed “aimed at relevant target groups, including potential victims, policymakers, law enforcement officers and border guards, labour inspectorates, diplomatic and consular personnel and other relevant actors in third countries,”

such as “medical, social and employment personnel or representatives of tourist agencies.”83 The Organisation for Security and Cooperation in Europe (OSCE),84 which all of the SELEC and CARRIC members, and other Eastern ENP countries,85 are also members of, has already developed, along with a THB action plan,86 a manual87 dealing with the “proper identification and referral of trafficking victims and the provision of adequate assistance.”88 This manual takes a community policing89 approach to THB. The OSCE,

80

CoE Convention on Action against Trafficking in Human Beings, CETS No.: 197. 81 GRETA stands for the CoE’s Group of Experts on Action against Trafficking in Human Beings, http://www.coe.int/t/dghl/monitoring/trafficking/docs/monitoring/greta_EN.asp. 82 Implementing the Strategy, 3. Developing partnerships between the EU, third countries, regions and organisations at international level against THB, point vi, 14. 83 Ibid. 3.2 Preventing trafficking, including addressing and reducing demand, point vii, 17. 84 Organisation for Security and Cooperation in Europe http://www.osce.org. 85 Ukraine, Armenian and Georgia. 86 Decision No. 557 OSCE Action Plan to combat Trafficking in Human Beings, Organization for Security and Cooperation in Europe Permanent Council, PC.DEC/557, 24 July 2003. 87 OSCE; Trafficking in Human Beings: Identification of Potential and Presumed Victims. A community policing approach, 21 June 2011, SPMU Publication Series Vol. 10, Vienna, June 2011. 88 Implementing the Strategy, 3.3 Protecting and supporting victims of trafficking, point ii, 19. 89 Community based policing is the high visibility policing approach used in the UK, involving uniformed police officers, engaging with the community, and addressing their (perceived) needs. The Community policing movement originated

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for its part, has called on all its participating states, not all of whom are either in Europe, or members of the CoE, to sign and ratify the UN Convention against Transnational Organised Crime (the Palermo Convention), and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.90 In addition, the OSCE has passed ministerial declarations on combating THB.91 The Lisbon Treaty provides “new and more efficient procedures for the conclusion of agreements with third countries”92 at an internal EU level. It will be interesting to see how these operate in practice, particularly as the subject matter of these agreements increasingly get more ambitious, leaving traditional transnational trade issues, and move into highly sensitive transnational law enforcement issues. For example, the Implementing Strategy of the external dimension of AFSJ anticipates the development of “joint investigation teams (JITs) and at least the use of mirror investigations”93 with third countries, in order to effectively tackle THB. In particular developments in this respect with both Interpol and SELEC have been highlighted.94 In this context, it is worth noting that Secretariat of SELEC visited CEPOL on the 23rd January 2012, with a view to accessing and developing police training programmes.95 A network of specialists within the EU in the area of THB will be set up, involving member state “law enforcement officials and judicial authorities.” Representatives from Eurojust, Europol and Frontex, would then “assist in exchanging best practices, gathering information, signalling trends and developments.” This would include the potential and

from the US, where it is was adopted to a greater extent than in the UK. See further Ratcliffe, J.: Intelligence-Led Policing, (Willan, Cullompton, 2008), 35. 90 OSCE Ministerial Council in its Decision No. 6 (2001). 91 Ministerial Declaration on Trafficking in Human Beings adopted in Porto in 2002, the Bucharest Plan of Action for Combating Terrorism of 2001, the Ministerial Decision No. 6 adopted in Bucharest in 2001, and the Ministerial Decision on Enhancing the OSCE’s Efforts to Combat Trafficking in Human Beings adopted in Vienna in 2000. 92 The Stockholm Programme, 7. Europe in a globalised world – the external dimension of freedom, security and justice, 7.4. Agreements with third countries, first paragraph, 35. 93 Implementing the Strategy, 3.4 Investigating, prosecuting and controlling the external borders of the EU, point iii, 21. 94 Ibid. 95 http://www.cepol.europa.eu, accessed 26th January 2012, Ref: 05/2012/CEPOL.

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competences for establishing JITs, with financial support for these developments being provided by the EU.96

SELEC – Moldova case study As mentioned above, SELEC countries are a mixture of current EU member states and neighbouring states which are all either candidate countries, or potential candidate countries for membership of the EU, Croatia having been accepted for membership of the EU from 1st July 2013. The exception to the above is Moldova, which is currently an ENP country and is in the process of negotiating an association agreement with the EU. The EU’s relations with the non-EU members of SELEC are of particular interest to this paper.97 Cross-border law enforcement has begun to change in this region with the signing of the South-Eastern Europe Police Cooperation Convention in 2006. The International Organisation for Migration (IOM)98 has reported that “two of the major sources of trafficked women in Western Europe are the Balkans and Moldova.”99 The Balkans are home to “particularly brutal crime groups hardened by years of conflict” in Kosovo and BosniaHerzegovina, with the region also suffering from the “economic collapse of Albania.”100 Moldova, for its part, has lost control of Transdniester, which is “run by a criminal leadership,” that is primarily interested in selling the “output of the weapons factories under their control”. They have no interest in protecting the rights of women, or others, with “no prevention or enforcement programmes” in place in Transdniester.101 Surtees has described THB in the regions as being “prolific.”102 As she says, one of the indicators of “the scope of trafficking in the region is the 96

Implementing the Strategy, 3.4 Investigating, prosecuting and controlling the external borders of the EU, point iv, 22. 97 The other non-EU SELEC centre members are Albania, Bosnia & Herzegovina, FRY Macedonia, Montenegro, Serbia and Turkey. 98 http://www.iom.int/jahia/jsp/index.jsp. 99 Shelly, L., “Human Security and Human Trafficking,” in Human Trafficking and Human Security, Jonsson A. ed., (Routledge Transnational Crime and Corruption, (2009,) 16. 100 Ibid. 101 Ibid. 102 Surtees, R., “Traffickers and Trafficking in Southern and Eastern Europe; Considering the Other Side of Human Trafficking,” 5(1): European Journal of Criminology, (2008), 39-68, 41.

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number of criminal investigations and proceedings in progress.”103 In addition to transnational THB, “victims are increasingly being trafficked within their home countries” in this region,104 with “most victims” being recruited by “someone of their own nationality,” although there are foreign nationals active in this region as well.105 Groups in the region tend to be structured differently, depending on ethnic origin. It would clearly appear that collaboration with law enforcement agencies in the SELEC region is key to dealing with THB from that region into the EU. The money gained from THB is being reinvested into other criminal enterprises “such as arms and drugs trading”, as well as into “legitimate business ventures.”106 EU/ SELEC collaboration should therefore be at the THB, organised / drugs crime and the anti-money laundering levels of law enforcement agencies, in order to be truly effective. In addition, the issue of corruption in the region needs to be focused on, “given the high estimates of the number of persons trafficked.”107 The pull factors which lead individuals to be exploited by traffickers would also need to be addressed, however this is outwith the scope of a paper on cross border law enforcement. Bulgaria, a recent EU member, in July 2011, was in a position to report on interesting developments in THB in the South East of Europe.108 This report in particular involved the then SECI, now renamed SELEC. References were also made to cooperation with the CARICC country with the closest legal relationship with the EU, Azerbaijan. SELEC has been operating with funding from individual countries’ Ministries of the Interior, from its’ own funds, the EU, and also the FBI. Rapid progress is being made on the development of capacity and active cross border policing activities in the area of THB. This work included a “strategic analysis, concerning the regional situation”, with support, inter alia, from Europol and Interpol. Bilateral intelligence exchange agreements have been signed, and “intelligence exchange” and “international police operations through the SECI Centre, mirror investigations and study visits” have already been undertaken.109 In addition, work has developed to such an extent in the context of South-Eastern Europe that a project has 103

Ibid. Ibid. 105 Ibid. 46. 106 Ibid. 48. 107 Parmentier S., “Epilogue: Human Trafficking Seen from the Future,” European Journal of Criminology, 7(1) (2010), 95-100, 97. 108 Strengthening the EU external dimension, 19-26. 109 Ibid. 20. 104

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been initiated to introduce “the requirements for establishing Joint Investigation Teams (JIT) to fight trafficking in human beings” in the region.110 It will not be long before SELEC countries will be interested in developing joint operations and joint investigations teams with the rest of the EU’s law enforcement community in the context of THB. The CoE has also been providing assistance to SELEC, for “the development of codes of ethics for the police and for prosecutors.”111 In addition to multi-lateral developments through the centre, individual countries will be developing their own bilateral relations with the EU law enforcement framework, to include both Eurojust and Europol. This is the case with Moldova.112 The political will in both SELEC and CARICC may well be in place to engage in cross border policing activity at a high level. Moldova, in the context of drug trafficking, reported that despite “a Government approval of a strategy for amending national legislation,” the implementation of the new strategy and legal framework was being hampered by resourcing issues. These included problems with financial expertise, technical equipment and human resources.113 Assistance from external parties may prove useful here, but only if it leads to developments which are sustainable in that particular country after the relevant funding stream ends. This would be particularly relevant for third countries which are not about to join the EU. Those countries joining the EU would benefit from the (internal to the EU) Regional Policy funding streams. Another issue is that the further east one travels in Europe the more one is likely to encounter ethnic minorities, such as the Roma, who are not fully integrated into the relevant majority society. This could lead to issues of ostracism, rejection, and a lack of representation by or in government. In situations of exploitation, social inequalities, the lack of representation in or by the state, and discrimination would be highly relevant. This is an issue both inside and outside the EU. However, for countries with less financial resources, this could prove problematic in the context of THB. In the case of Moldova, its ENP report highlighted continuing discrimination

110

Ibid. 25. Commission staff working document accompanying the Communication from the Commission to the European Parliament and the Council – Taking stock of the European Neighbourhood Policy (ENP) – Implementation of the European Neighbourhood Policy in 2009 Progress Report Republic of Moldova, SEC (2010) 523, 7. 112 Ibid. Police and judicial cooperation, 8. 113 2009 Progress Report - Moldova, 7. 111

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against the Roma, particularly with regard to health, education and general standard of living issues.114 The Commission has reported on some ongoing major reforms to the Moldovan legal system, noting however that some of the reforms in 2010 had “disregarded a number of important recommendations made by the Council of Europe.”115 The need to eliminate “economic and military courts” a legacy of the Soviet era,116 and the need to meet their “demilitarisation objective” highlights the very high level of transition that is required to meet both CoE and EU standards.117 These require major restructurings, and major retraining programmes, however, “the lack of adequate financial resources poses serious challenges to the process and may lead to delays.”118 While these points were made with regard to Moldova, similar points could be made to other post Soviet states in transition. However, transition is happening. With appropriate training and funding streams, and given time, the prospects for cooperation with the EU, at some level, in active policing provisions, should improve. In the context of transnational organised crime including THB the Commission reported in its 2006 report that “progress can also be noted”, but that “implementation still lags behind.”119 IOM120 programmes in Moldova with the Ministry of the Interior and NGOs, have been assisting in developing “judicial, psychological and social assistance to victims” of THB, “with a view to their reintegration.”121 The need for retraining the police, to adjust to modern police practices, and the improvement of police detention facilities and prisons were also highlighted in the Commission’s 2010 report.122 Despite structural and financial problems, the Moldovan authorities have been active in combating trafficking, both through “information 114

Ibid. 4. Ibid. 3. 116 Ibid. 117 Ibid. 12. 118 Ibid. 119 Ibid. 1. 120 International Organisation for Migration. 121 Commission staff working document accompanying the Communication from the Commission to the Council and the European Parliament on strengthening the European neighbourhood policy - ENP Progress Report - Moldova {COM(2006)726 final}, SEC(2006) 1506, 7. 122 2009 Progress Report – Moldova, 4. 115

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campaign[s] in schools,” and in the improvement in the “quality of criminal investigations in the field of trafficking.”123 This has led to dismantling 38 criminal networks, and a significant increase in the number of registered trafficking offences.124 Clearly the Moldovan authorities have prioritised this crime area. However, as the Commission has pointed out, not only is THB an issue, but so also is trafficking-related corruption, requiring both prevention and prosecution programmes.125 From the perspective of the money laundering associated with THB, the CoE MONEYVAL126 system would inform relations in any new developments in this area with countries such as Moldova.127 While there have been Moldovan legislative reforms, the actual practice of the prosecution and penalisation of “criminal activities in this area” of money laundering was, in 2006, “weak due to a lack of resources and expertise in financial investigations.”128 A similar general lack of resources was also referred to in the 2010 report on Moldova,129 which was written after the April 2009 disputed elections which led to “street riots and serious violations of human rights” before a second election led to the appointment of a government.130 Moldova is currently implementing the FATF 40 + 9 recommendations on money laundering and counter-terrorist financing.131

CARICC – Azerbaijan case study The CARICC members are key countries in the context of tackling THB. As stated by Berman and Friesendorf, “the dissolution of the USSR rendered the [THB] problem increasingly visible in the EU.”132 Both 123

Ibid. 12. Ibid. 125 Ibid. 126 CoE Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism. 127 2006 Progress Report – Moldova, Money laundering, financial and economic crime, 8. 128 Ibid. 129 2009 Progress Report - Moldova, 2. Political dialogue and reform, Democracy and the Rule of law, paragraph 5. 130 Ibid. 1. Background and overall assessment, paragraph 5. 131 Ibid. 5. Cooperation on justice, freedom and security, paragraph 11. 132 Berman J. and Friesendorf, C., “EU Foreign Policy and the fight Against Human Trafficking: Coercive Governance as Crime Control,” European Foreign Affairs Review, 13: (2008), 189-209. 124

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economic necessity and the “rejection of socialist ideology” have been identified as being reasons for this change in the former USSR.133 Key criminals in this area in the former Soviet Union have been identified as being “the former intelligence service and the secret police,”134 which will pose its own problems for the development of cross border law enforcement capabilities. Leman and Janssens have also identified, from Belgian court files, certain money laundering typologies in the Bulgarian, Albanian and Russian criminal business networks, which may assist in dealing with other post-Soviet criminal groups. An interesting point which is highlighted is the ready “availability of fraudulent passports in Kyrgyzstan”, which led to “the illegal movement of individuals from Uzbekistan and Tajikistan to transit through Kyrgyzstan.”135 A regional approach to the issues surrounding THB is therefore clearly needed in the CARICC region, as presumably the provisions on obtaining fraudulent passports were tighter in the other countries in the region. Of the CARICC members, only Azerbaijan, so far, has been happy to enter into ENP arrangements with the EU. It is noticeable that the other eastern ENP countries of Armenia, Georgia and the Ukraine, are members of neither SELEC nor CARICC. Taking one CARICC country as a case study, Azerbaijan is a country in transition. It does, according to 2011 reports, lag “behind in the reforms” necessary to meet its ENP Action Plan, “in the areas of rule of law, democracy, [the] fight against corruption and human rights.”136 In addition the “lack of independence of the judiciary and the media” and the need to achieve “greater democracy” remain issues.137 However, Azerbaijan “is primarily a country of origin and transit for trafficking in persons,” with “a considerable number of Azerbaijani citizens, especially 133

Leman J. and Janssens S., “The Albanian and Post-Soviet Business of Trafficking Women for Prostitution; Structural Developments and Financial Modus Operandi,” European Journal of Criminology, 5(4): (2008) 433-451, 438, citing Shelly, L., “The trade in people in and from the former Soviet Union.” Crime, Law and Social Change 40, (2003), 231-49. 134 Ibid. 135 Perrin B., “Just Passing Through? International Legal Obligations and Policies of Transit Countries in Combating Trafficking in Persons,” European Journal of Criminology, 7(1) (2010), 11-27, 14. 136 Opinion of the Committee of the Regions on ‘Local and regional government in Azerbaijan and the development of cooperation between Azerbaijan and the EU’ 2011 OJ C 104/04, (Brussels, 27 January 2011) I. Policy Recommendations, The Committee of the Regions, Background - Azerbaijan and Europe, point 3. 137 Ibid.

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women, [falling] victim to various forms of trafficking.”138 A National Action Plan for Combating the Trafficking of Persons was adopted in 2003,139 with an ongoing review of its operation being part of the EUAzerbaijan Action Plan. The current plan is the 2009-13 plan.140 Azerbaijan has also “signed and ratified the 2005 CoE Convention on Action against Human Trafficking, which entered into force in October 2010.”141 In addition, the Azerbaijani implementation of the “OSCE action plan to combat trafficking in Human Beings, Maastricht 2003,142 remained a priority in its 2006 ENP Action Plan. Proceeds of crime have also been given attention, with the setting up, under the control of the Central Bank, of a financial intelligence unit, within the context of its 2009 Anti-Money Laundering law,143 with the new laws “addressing the issues highlighted” by the CoE MONEYVAL committee the previous year.144 The modernisation of the Azerbaijan law enforcement authorities has been a focus of the EU - Azerbaijan action plan,145 with the “possibilities for cooperation between Azerbaijan law enforcement agencies and

138

European Neighbourhood and Partnership Instrument Azerbaijan Country Strategy Paper 2007-2013, ANNEX 5 “Policy mix” considerations in the context of the Azerbaijan CSP JLS cooperation, 42, (Europa web site). 139 EU Azerbaijan ENP Action Plan, jointly endorsed by Azerbaijan and the EU on 14 November 2006, Priority area 9, Enhancement of cooperation in the field of Justice, Freedom and Security, including in the field of border management, 9, third indent. 140 Joint Staff Working Paper: Implementation of the European Neighbourhood Policy in 2010 Country report: Azerbaijan {COM(2011) 303}, Brussels, 25/05/2011 SEC(2011) 640, 5. Cooperation on Justice, Freedom and Security, 10 paragraph 5. 141 Ibid. 142 EU Azerbaijan ENP Action Plan (2006), 16, 4.3.3 Fight against organised crime, trafficking in human beings, drugs and money laundering Reinforce the fight against trafficking in human beings, especially of women and children, (as well as activities to integrate victims of such traffics) and smuggling of illegal migrants, First Indent. 143 2010 Country report - Azerbaijan, 5. Cooperation on Justice, Freedom and Security, 10, paragraph 7. 144 Ibid. 5. Cooperation on Justice, Freedom and Security, 10, paragraph 7. 145 EU Azerbaijan ENP Action Plan, (2006) 4.3. Cooperation in the Field of Justice, Freedom and Security, Develop an efficient and comprehensive border management system, Second indent, 14.

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Europol” being addressed in the action plan.146 This would have been subject to the ratification by Azerbaijan of the CoE Convention on the Protection of Individuals with regard to Automatic Processing of Personal Data, which was done by Azerbaijan in May 2010,147 thereby opening up the possibilities for further cooperation with the EU in cross border law enforcement. Also of interest to the EU is the improvement of international law enforcement cooperation in the region, “with neighbouring States in the Black Sea region and in the Caspian Sea region.”148 This is also the focus of the EU’s special representative to the region, who has been tasked with encouraging “Armenia, Azerbaijan and Georgia to cooperate on regional themes of common interest, such as common security threats, the fight against terrorism, trafficking and organised crime.”149 It is worth noting in this context that the EU’s Special Representative (EUSR) to the region is also tasked with respecting the “security principles and minimum standards established by Council Decision 2001/264/EC of 19 March 2001 adopting the Council's security regulations, in particular when managing EU classified information.”150 The latest developments in the EU - Eastern Partnership law enforcement relationship are reflected in the proposal for a Council decision of 2009, which calls on the establishment, inter alia, of a sub committee of the EUAzerbaijan Cooperation Committee on “Justice, Freedom and Security and Human Rights and Democracy.”151 Clearly there is a lot of political will on both sides to progress matters in this area.

146

Ibid. 4.3.4 Police and judicial cooperation, Further develop cooperation between Azerbaijan and EU Member State judicial and law enforcement authorities Second indent, 18. 147 Joint Staff Working Paper: Implementation of the European Neighbourhood Policy in 2010 Country report: Azerbaijan {COM(2011) 303}, Brussels, 25/05/2011 SEC(2011) 640, 5. Cooperation on Justice, Freedom and Security, 11, fourth paragraph. 148 EU Azerbaijan ENP Action Plan, 2006, 18, 4.3.4 Police and judicial cooperation Develop international and regional law enforcement cooperation third indent. 149 Council Joint Action 2007/111/CFSP of 15 February 2007 amending and extending the mandate of the European Union Special Representative for the South Caucasus, OJ L 46/75, Article 3.b. 150 Ibid. Article 7.1. 151 Proposal for a Council Decision on the Union position to be adopted in the Cooperation Committee established by the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part, in relation to the

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Other ENP developments The ENP frameworks are of relevance to both Moldova, until it signs the closer “Association Agreement” with the EU, and Azerbaijan. They are also of relevance to Armenia, Georgia and the Ukraine, who are not members of either the two above discussed centres. The ENP “promotes legislative and regulatory approximation to selected EC [now EU] standards in return for “a stake in the internal market,”152 with the intention of developing an “economic community” between the EU and the ENP partners.153 In addition to developing a focus on issues such as fundamental rights, the EU has called for closer cooperation with regard to the EU’s European Security and Defence Policy (ESDP), in particular its operations, and “stronger cooperation in Justice and Home Affairs” issues.154 In the general ENP framework dealing with external relations of the EU in the AFSJ, the Commission, in 2011, had proposed a subcommittee which would focus on the “fight against transnational crime” in the context of the “Black Sea synergy.”155 Reference is expressly made in this document to Moldova’s membership of SECI.156 Perhaps the underlying text here is to encourage other ENP countries to join, if not SECI, then comparable centres in the region, such as CARICC.

Prospects for the future Research into THB law enforcement activity in destination countries has highlighted the “lack of actionable intelligence,”157 with the police being unable to raid suspected premises without a warrant, this being only obtainable either with surveillance intelligence, “first-hand observation or establishment of new subcommittees, COM(2009) 686 final, Brussels, 16.12.2009, Explanatory Memorandum, 3, paragraph 7. 152 Ibid. 153 Ibid. 314. 154 Ibid. 155 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Cooperation in the Area of Justice and Home Affairs within the Eastern Partnership, Brussels, 26.9.2011, COM(2011) 564 final, Annex: General overview of the frameworks for dialogue and cooperation in the area of Justice and Home Affairs between the EU and Eastern Partnership countries, 2. Existing Frameworks for Dialogue and Cooperation at the Regional and Multilateral Level, 20. 156 Ibid. 157 Lebov, K., “Human Trafficking in Scotland,” European Journal of Criminology, (2010) 7(1) 77-93, 85.

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reliable third-party sources.”158 In addition police in countries of destination have “problems with interpretation,” not only with the “lack of appropriate interpreters”, but also “the reliability of those available.”159 While other issues also arise in destination countries, actionable intelligence could be developed in conjunction with law enforcement in both the countries of origin and transit, along the human trafficking routes. As pointed out by Leman and Janssens, it is necessary when dealing with THB to “combat criminal networks in their entirety”,160 keeping in sight the transnational nature of these networks. While pinning down the crime of THB may be more difficult in the early stages of transit, as “a trafficked person may actively and willingly seek to travel to the destination country,” being unaware of “their ultimate fate,”161 the UN Office on Drugs and Crime (UNODC) has pointed out that this may also provide an opportunity for the transnational law enforcement community to exploit. It would be useful if trafficking chains can be identified either in the later transit or country of destination, and investigation and surveillance worked back through the trafficking chain. This would then lead to activities in the earlier transit countries and countries of origin being identified. If properly done, this should assist in developing sufficient intelligence at all points of the transit to enable the trafficking route to be closed. The perpetrators should then be liable to be successfully prosecuted in what ever country they are eventually seized.162 UNODC has stated that traffickers are “often less concerned to conceal and protect themselves from investigation on the States of origin or transit because they feel safer.”163 This would require a very high level of coordination across the jurisdictions. However, where necessary, this coordination could shift from an intelligence led approach,164 used in most EU cross-border law enforcement operations, to a community policing approach, allied to an anti-money laundering approach. This would all 158

Ibid. Ibid. 86. 160 Leman and Janssens, “The Albanian,” 448. 161 Perrin, “Just Passing Through?”, 15. 162 Ibid. 17, quoting from UNODC [United Nations office on Drugs and Crime] (2008) Toolkit to combat trafficking in persons. New York: United Nations. URL (accessed 14 September 2009): http://www.unodc.org/documents/humantrafficking/Toolkit-filed/07-89375_Ebook[1].pdf. 163 Ibid. 164 The UK approach to intelligence-led policing is discussed in detail in Ratcliffe, Intelligence-Led Policing. 159

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depend on the level of development of the particular police force, the particular third country, the resources available, and the circumstances on the ground at that particular point of the trafficking chain. In addition the posting of police officers across borders, to liaise with their colleagues further up or down the trafficking chain would greatly assist, both in intelligence sharing and police practice knowledge transfer. Inter-(police) culture and language issues could also be address through this practice. However, there would need to be some flexibility, or at least a multi-lateral approach to transnational THB law enforcement, as while trafficking “trends may be identified,” routes often vary, with regular changes being made in practice, by criminals, in order to avoid detection.165 UNDOC have advocated joint operations, enabling investigators to “exploit these evidential opportunities and gather valuable corroborative evidence of the recruitment and transportation phases of the crime.”166 The above proposed strategy may be an impossible task in many regions, but with the development of both CARICC, SELEC, Europol, and the various ENP arrangements, the possibilities for developments in this geographical region, to the mutual advantage to all relevant countries, arise. Even if THB is not seen as a crime priority in a particular country, the proven connection between THB and other serious crimes, to include organised crime, and Class A drugs trafficking,167 should be sufficient incentive to become involved in a transnational law enforcement operation tackling serious criminals passing through a particular country. Lebov has pointed out that it is likely that “tackling those involved in human trafficking will contribute to a more effective understanding, prevention and disruption of these other manifestations of serious organized crime.”168 Perrin also advocates this approach, stating that cooperation should be “encouraged among countries along the trafficking 165

Perrin, “Just Passing Through?” 12, referring to United States- Canada (2006) Bi-national assessment of trafficking in persons. URL (accessed 14 September 2009): http://www.publicsafety.gc.ca/prg/le_fl/166i-en/pdf. 166 Ibid. 17, quoting from UNODC [United Nations office on Drugs and Crime] (2008) Toolkit to combat trafficking in persons. New York: United Nations. URL (accessed 14 September 2009): http://www.unodc.org/documents/humantrafficking/Toolkit-filed/07-89375_Ebook[1].pdf. 167 Lebov, “Human Trafficking in Scotland,” 84. 168 Ibid. 87.

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chain, rather than between clusters of countries that share traits as transit, origin or destination countries.”169 Whether any of the law enforcement organisations of any of countries, or origin, transit, or destination, are structured in such a way to reward officers who assist in operations which, in all probability, lead to arrests, or the seizure of criminal assets in another country, is a matter those law enforcement organisations need to examine for themselves. The lack of a country’s ability to engage in transnational law enforcement operations will only result in that country becoming the weak link in the chain, and being exploited, as was Kyrgyzstan in the context of easy access to fraudulent passports, discussed above, or in the case of corruption of state officials.

Bibliography Action-Oriented Paper on strengthening the EU external dimension on action against trafficking in human beings – first implementation report/update of information on Member States’ external action, Brussels, 4 July 2011, 12401/11. —. on Implementing with Russia the Common Space of Freedom, Security and Justice, Brussels, 28 November 2006, 15534/1/06. Agreement between Ukraine and the European Union on the security procedures for the exchange of classified information, OJ 2005 L 172/84. Berman J. and Friesendorf C., “EU Foreign Policy and the fight Against Human Trafficking: Coercive Governance as Crime Control,” European Foreign Affairs Review 13: (2008), 189-209. Case 12/86 Meryem Demirel v. Stadt Schwäbisch Cymünd [1987] ECR 3719. Case 192/89 Sevince [1990] ECR 3461. Case C-63/99 Gloszckuk [2001] ECR I-6369. Case C-171/01 Wählergrupe Gemeinsam [2003] ECR I-4301. Case C-265/03 Simutenkov [2005] ECR I-2579. CoE Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, CETS No.:108. CoE Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows, CETS No.:181.

169

Perrin, “Just Passing Through?” 21.

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CoE Convention on Action against Trafficking in Human Beings, CETS No.: 197. Commission staff working document accompanying the Communication from the Commission to the Council and the European Parliament on strengthening the European neighbourhood policy - ENP Progress Report - Moldova {COM(2006)726 final}, SEC(2006) 1506, 7.to the European Parliament and the Council – Taking stock of the European Neighbourhood Policy (ENP) – Implementation of the European Neighbourhood Policy in 2009 Progress Report Republic of Moldova, SEC (2010) 523. —. to the Council - Review of EU-Russia relations pursuant to conclusions of the Extraordinary European Council of September 1, 2008 {COM(2008) 740 final}, SEC(2008) 2786. —. to the Council and the European Parliament on strengthening the European neighbourhood policy - ENP Progress Report - Ukraine {COM(2006)726 final}, SEC(2006) 1505. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Cooperation in the Area of Justice and Home Affairs within the Eastern Partnership, COM(2011) 564. —. to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Delivering an area of freedom, security and justice for Europe's citizens Action Plan Implementing the Stockholm Programme, Brussels, COM(2010) 171. —. to the Council and to the European Parliament on the general approach to enable ENP partner countries to participate in Community agencies and Community programmes, COM(2006) 724 final. Council Conclusions on the Architecture of Internal Security, 9596/06 JAI 271 CATS 104.of 12 October 2005 on intelligence-led policing, 10180/4/05 CRIMORG 56 ENFOPOL 75. Council Decision 2011/292/EU of 31 March 2011 on the security rules for protecting EU classified information, OJ L 141, 27/05/2011. 17. Council Decision 2009/968/JHA of 30 November 2009 adopting the rules on the confidentiality of Europol information, OJ L 332/17. Council Decision 2005/481/CFSP of 13 June 2005 concerning the conclusion of the Agreement between the European Union and Ukraine on the security procedures for the exchange of classified information, OJ L 172/83. Council Joint Action 2007/111/CFSP of 15 February 2007 amending and extending the mandate of the European Union Special Representative for the South Caucasus, OJ L 46/75.

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Council of the EU: “A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice”, Brussels 15446/05, 6 December 2005. Dashwood A. and Maresceau M., Law and Practice of EU External Relations; Salient Features of a Changing Landscape, Cambridge: Cambridge University Press, 2008. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15/04/2011, 1. EU Azerbaijan ENP Action Plan, jointly endorsed by Azerbaijan and the EU on 14 November 2006. European Council Common Strategy 1999/877/CFSP of 11 December 1999 on Ukraine, OJ L 331/1. Europol Organised Crime Threat Assessment (OCTA), 8061/09 CRIMORG 47 (EU RESTREINT). European Neighbourhood and Partnership Instrument Azerbaijan Country Strategy Paper 2007-2013, ANNEX 5 “Policy mix” considerations in the context of the Azerbaijan CSP JLS cooperation, (Europa web site). http://europa.eu. http://www.fatf-gafi.org. http://www.cepol.europa.eu. http://www.iom.int. http://www.unodc.org. Implementing the Strategy for the External Dimension of Justice and Home Affairs: Global Freedom, Security and Justice - Action-Oriented Paper on strengthening the EU external dimension on action against trafficking in human beings; Towards Global EU Action against Trafficking in Human Beings - final version, Brussels, 25 February 2010. Money laundering risks arising from the Trafficking in Human Beings and Smuggling of Migrants, July 2011, FATF/OECD 2011. OSCE Decision No. 557 OSCE Action Plan to combat Trafficking in Human Beings, Organization for Security and Cooperation in Europe Permanent Council, PC.DEC/557, 24 July 2003. OSCE Ministerial Council in its Decision No. 6 (2001). OSCE Ministerial Declaration on Trafficking in Human Beings adopted in Porto in 2002, the Bucharest Plan of Action for Combating Terrorism of 2001, the Ministerial Decision No. 6 adopted in Bucharest in 2001, —. Ministerial Decision on Enhancing the OSCE’s Efforts to Combat Trafficking in Human Beings adopted in Vienna in 2000.

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OSCE: Trafficking in Human Beings: Identification of Potential and Presumed Victims. A community policing approach, 21 June 2011, SPMU Publication Series Vol. 10, Vienna, June 2011. Joint Staff Working Paper: Implementation of the European Neighbourhood Policy in 2010 Country report: Azerbaijan {COM(2011) 303}, Brussels, 25/05/2011 SEC(2011) 640. Lebov K., “Human Trafficking in Scotland,” European Journal of Criminology, (2010) 7(1) 77-93. Leman J. and Janssens S., “The Albanian and Post-Soviet Business of Trafficking Women for Prostitution; Structural Developments and Financial Modus Operandi,” (2008) European Journal of Criminology, 5(4): 433-451. Multi-annual programme 2010-2014 regarding the area of freedom, security and justice (Stockholm programme), European Parliament resolution of 25 November 2009 on the Communication from the Commission to the European Parliament and the Council – An area of freedom, security and justice serving the citizen – Stockholm programme, 2010 OJ C 285 E/02. Opinion of the Committee of the Regions on “Local and regional government in Azerbaijan and the development of cooperation between Azerbaijan and the EU” 2011 OJ C 104/04. (report of Brussels, 27 January 2011.) I. Policy Recommendations, The Committee of the Regions, Background - Azerbaijan and Europe. Proposal for a Council Decision on the Union position to be adopted in the Cooperation Committee established by the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Azerbaijan, of the other part, in relation to the establishment of new subcommittees, COM(2009) 686 final, Brussels, 16.12.2009. Parmentier, S., “Epilogue: Human Trafficking Seen from the Future,” in European Journal of Criminology, (2010) 7(1) 95-100, 97. Perrin B., “Just Passing Through? International Legal Obligations and Policies of Transit Countries in Combating Trafficking in Persons,” European Journal of Criminology, (2010) 7(1) 11-27. Press release IP/12/255 of the 19/3/2012. Ratcliffe, J., Intelligence-Led Policing, Willan, Cullompton, 2008. Russian Organised Crime Threat Assessment (ROCTA), 15819/08 CRIMORG 197 EUROPOL 244 (EU RESTREINT). Shelly, L., “Human Security and Human Trafficking”, in Human Trafficking and Human Security, Jonsson A. ed., Routledge Transnational Crime and Corruption, 2009.

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Stockholm Programme – An open and secure Europe serving the citizen, 2nd December 2009, 17024/09, JAI 896. Surtees R., “Traffickers and Trafficking in Southern and Eastern Europe; Considering the Other Side of Human Trafficking,” (2008) 5(1) European Journal of Criminology: 39-68.

TRANSNATIONAL POLICING: THE BIGGER PICTURE

CHAPTER NINE THE EXTERNALISATION OF THE EU INTERNAL SECURITY STRATEGY IN THE FRAMEWORK OF MULTILATERALISM: THE CASE OF THE FIGHT AGAINST TRANSNATIONAL ORGANISED CRIME DANIELA IRRERA

Introduction The management of global security is a collective concern, dealing with various actors, either state or non-state ones and requires responsibility and a more sophisticated involvement from the international community, which goes beyond the traditional military measures experienced until today. Major global challenges deal with increased pressure from non-state groups to play a part in international affairs, able to represent structured – and even non structured – interests and to convey them into policy demands. Therefore, the role they can play on traditional policy-making is increasing more and more. This can contribute to democratisation and openness to people’s needs; at the same time, it can strengthen “uncivil” groups, such as organised crime. Organised crime is progressively increasing its ability to perform at a global level (moving resources, activities and incomes); to combine forces with other seditious groups (terrorists, paramilitaries, etc.) and to establish its “free areas” inside “failed” and weak states, in which they can easily profit from the presence of ethnic and/or religious conflicts. Even if it is part of the global political agenda and is increasingly associated with transnational terrorism and security issues, organised crime is not a special policy priority. The difference among the most important political actors’ position (US, EU, individual EU member states, UN) is significant. This can dangerously contribute to a lack of awareness of the problem and, consequently, of a

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lack of real global commitment. Even though the institutional discourse on TOC is still very vague and hesitant, the transformations affecting the concept of global security are modifying governments’ understanding, pushing them to include TOC more and more in the list of global threats. Therefore, there is a significant gap between the discourse and the perception of TOC within the international political system. This chapter aims to define and discuss the relationship between TOC, and global security, in the broader context of multilateralism rules, by stressing the role played by the EU. Firstly, TOC will be analysed as non state-actors able to influence policy-making on a global level, to face state sovereignty and to be associated to new threats, namely ethnic wars, and failed states. Secondly, in order to describe how perceptions are changing while discourse tends to remain rigidly confused, theories of global security – namely the Copenhagen school and the multilateral approach will be used to analyse both the documents, produced by the leading political actors to express their strategies, and their positions. It is argued that any internationalisation process of crime definition and crime control is the outcome of the export of domestic perceptions and definitions, which is reflected in the relations between political powers. The internationalisation process was essentially based on the attempts of Western powers to export their domestic definitions, expressed in political, economic and moral terms. The US and EU security agendas as described in their official documents will be examined and compared. Shifting perceptions of global threats, in which TOC is increasingly present, will be at the core of the analysis. These considerations will be used, thirdly, to provide some conclusions on the political implications as to outcomes of the different perceptions within the political agendas at a global level. As stated in the Palermo Convention, where TOC is perceived to be a national law enforcement issue, multilateral cooperation, defined as the conduct founded on universal principles, equal participation of states in collective mechanisms, and no discrimination in putting principles into action – as has been shaped by US and EU - can be the only way to match perception to discourse, as well as the political framework within which a coherent and efficient counterstrategy can be conceived and developed.1 Also, it is the ideal context for balancing the internal security concerns of the EU and the foreign policy ambitions.

1

Attinà F., “Multilateralism and the emergence of minilateralism in EU peace operations,” Romanian Journal of European Affairs, (2008) 8(2), 5-24, 6.

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In the first part of this chapter, TOC will be analysed as a global threat and linked to other challenges such as global terrorism, ethnic wars, and failed states, showing how and how much it constitutes a security problem for the EU. Secondly, the EU strategy will be analysed and compared to the most important positions and strategies, developed by the leading political actors. The most important changes introduced through the Lisbon Treaty will be stressed as well. In the last part, some conclusions on the perception of organised crime within the political agendas, at a global level, will be exposed.

States, Non-State actors and Global security The post-Westphalian nation-state had been the dominant political arrangement over the centuries. In the period between the two World Wars and even later, during the Cold War, the nation-state remained the most important actor within the international system, determining foreign policy and global decision-making.2 In the 1960s and 1970s, however, states had to recognise that new and different actors were evolving, imposing their requirements in the international arena, and demanding to be involved. The entry of new member states into the UN General Assembly, the consequent increasing number on Southern NGOs into the ECOSOC register, the rising of social movements for human rights in US and Europe are only few example of such phenomenon. Globalisation processes contributed to the rise of these actors, and required a collective approach to the resolution of the problem. Thus, some scholars used the label “sovereignty crisis” for naming a condition in which traditional political and normative powers were less effective, borders could be more easily crossed, and more citizens wanted to be involved, through associations, trade unions, local government bodies, than in the past.3 The state, still important within the global system, is not disappearing. It continues to remain as the most solid and implemented political management system, yet, it appears to be necessary to go beyond the traditional elements of the state, in order to face modern challenges, firstly the rise of non-state actors.

2

Roberts. D., “War and the historical formation of States” in State and Society in International Relations, Banks, M. Shaw M. eds., (Exeter: Wheatsheaf, 1991). 3 Strange, S., The retreat of the state: the diffusion of power in the world economy, (Cambridge: Cambridge University Press, 1996).

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One logical evolution from the globalisation of issues and problems is that the traditional nation-state may retreat in the face of other actors, reducing, by way of a small or large quantity, its sovereignty.4 By working with “positive” non-state actors, retreat as a mechanism fosters the accomplishment of major goals and contributes to introducing democracy and pluralism but, with “uncivil” actors, results will necessarily be different. Criminal clans, terrorist groups and/or paramilitaries can be considered to be such non-state actors. They are usually based in the territory of a state but they respect no borders; yet, they do have an internal structure, they represent some interests - even if illegal or subversive. They are autonomous and, by pursuing their aims, they are able to influence the global system. The quality of their activities has, however, a very negative influence. Non-state actors must interface with national institutions in order to function, and at the same time, they challenge legal systems and rules.5 In order to face those challenges, states have to combat organised crime. They can fight it, through their national legislation and/or international conventions, as most states certainly do. Those states which have a long standing problem of criminal activity have developed several means of counter-attack: laws and regulations, best practices and manuals used by police and specialised agencies. In some cases, organised crime is not opposed by the states and, therefore, it can interact with them. How it interacts depends on the “strength” of a state, as well as of its vulnerability, and can produce different gradations of criminalisation. Several analyses made on the wide range of possible cases can be summed up using the following taxonomy:6 x “Weak” States: In the first step in the criminalisation process criminal groups prey on state weaknesses when institutions are able to

4

Strange, The retreat of the state; Attinà F., “Globalization and crime. The emerging role of international institutions,” Department of Political Studies, Jean Monnet Working Paper in Comparative and International Politics JMWP 07.97 (1997). 5 Rosenau J. N., Turbulence in World Politics. A theory of Change and Continuity, (New York: Harvester Wheatsheaf, 1990). 6 Irrera D., “Organized Crime, Non-State Actors and Weak/Failed States,” in: Organized Crime: From Trafficking to Terrorism, 357-363, Shanty M. eds. (Santa Monica: ABC-CLIO, 2007).

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function, but in a less efficient way. For example, this occurred in the post colonisation period of African states;7 x “Fragile” states: the political and institutional dimensions are absent, but the economic and financial ones are lacking too, for example, as in some countries of Eastern Europe after the fall of communism, and in some Latin American countries;8 x “Kleptocratic” states: Increased vulnerability to criminalisation is evident where illegal activities produce the most significant or only economic resource and are necessary to guarantee services to the citizens, for example, as in Serbia and Kosovo;9 x “De-structured” states: With such a chaotic situation, institutions, in some sectors, are not able to function at all and they retreat completely in the face of organised crime groups;10 x “Captured” states: Criminal overtaking increases further with in some sectors, institutions are being replaced by organised crime groups;11 x “Mafia” states: The merging of criminal elements with the corrupted state, a crime group, is able to corrupt and manage political activity and combine with the political system which has abandoned its legitimate functions; x “Failed” states: With the total absence of legitimate state characteristics, institutions and public services are no longer existent, and criminal organisations, in effect, replace the legitimate governance of the state. Within the states, what is public (institutions, funds, taxes, etc.) is clearly separated from what is private. The two dimensions cannot be merged together, and nobody who has a public role can act for personal or private benefit. But, if the state retreats in the face of an illegal actor, on an illegal issue, this separation becomes increasingly less clear. The retreat 7

Jackson R. H., Quasi-states: sovereignty, International Relations and the Third World, (Cambridge: Cambridge University Press, 1990.) 8 Sorensen G., “Development in Fragile/Failed States,” Paper presented to the II Conference on Failed States, Purdue University, Mimeo, 1999. 9 Grossman H.I, “Rival kleptocrats: the mafia versus the State” in: Fiorentini, G. and Zamagni, S., The economics of corruption and illegal markets, (Northampton: Edward Elgar, 1999). 10 Doornbos, M., “State collapse and fresh starts: some critical reflections.” Development and Change, 2002, 33, [5], 797-815. 11 Williams P., “Transnational crime and corruption” in: White, B. Little, R. Smith, M. Issues in World Politics, (New York: Palgrave, 2001).

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can be gradual: beginning from the lower level (i.e. a public administrative officer illegally accepting money in doing his/her job), to the middle level (i.e. a private company benefiting from public funds, or engaging in votemanagement in local political elections) to the upper level (i.e. politicians and party leaders involved in illicit business practices).12 Corruption is defined as “the act of a public charge to gain a private benefit,” and is the mode used by organised crime to spread throughout the state, and reach its apex. The most serious results are evident when every sector and every institution of a state has become corrupted. When regular productive capacity is reduced and competent national institutions are unable to manage resources on their own, the fiscal system becomes inefficient or nonexistent. In such a case, the most likely probability is an economy where any resource and activity, legal or illegal, will be accepted in order to maintain the political and economic power. This grave situation is often associated with total corruption.13 In conclusion, fragmented political and economic contexts, with neither cohesion nor autonomy, represent the best ground on which an organised crime group may enter the state, gain a footing and conquer it. The retreat of the state, and the rise of these actors, produce detrimental effects firstly, on the state itself and, subsequently, on the whole international system. Even though the fact is rarely reported by the international media or discussed in debates, for several years, TOC has slowly became a dangerous global threat. The consequences liable to be produced should be linked to the transformation occurring in the concept of global security.14 The traditional concept of security is based on protection of the state, images of the enemy, on the military mobilisation and the potential for violence. The technological improvements, the rising of non-state actors, political innovations introduced during and after the Cold War all contributed to change this perception, by changing the nature of contemporary civil conflicts, as well as the importance of weak, collapsed and failed states. Institutional weakness, the lack of the rule of law, and 12

Chiottolini G., “The ‘Private’, the ‘Public’, the ‘State”, The Journal of Modern History, 1995, 67(4). 13 Gupta S., Davoody H. and. Alonso-Terme R. eds., “Does corruption affect income inequality and poverty?” IMF Working Paper, WP/1998/76. 14 Migdal J. S., Strong societies and weak states, (Princeton: Princeton University Press, 1988.)

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economic collapse became the cause of “new” wars.15 Scholars have frequently mentioned the fact that the main trait describing “new wars” is the fact that their dimension shifted from traditional interstate war to an intrastate one. This distinction does not imply that effects of conflict are contained within state borders. On the contrary, conflict normally spreads from a country to neighbouring countries and the region. An additional and important common feature of these wars is the active, and sometimes conditioning, presence of non-state actors. “New” wars are fought by a wide range of political and social groups that have different identities and alliance relations. Conflicting parties are sometimes inclined to easily change affiliation.16 In many cases, states are not the aggressor, and have no direct role in the causes and the development of conflict. Lastly, in these wars, the clear distinction between civilians and combatants dramatically fades out. Organised crime groups can effortlessly join fighters, by filling grey zones which dramatically rise in deprived conditions, or by establishing stable relationship with terrorist groups or local paramilitaries. In so doing, the possibility of exerting a significant influence on the conflict is high. Thus, this kind of new war affects different levels of security which cannot be reduced only to the military dimension and, consequently, require a more adequate global strategy. Buzan analysed security, in agreement with Waltz17 by stressing the existence of three levels of analysis (individual, state and the international system), as well as a series of dimensions (political, economic, and social) which are parallel to the military ones. Later, he continued his analysis within the Copenhagen School.18 The concept of “comprehensive security” became more diversified and enriched; a wide range of sectors (they identified security through its military, environmental, economic and political spheres) implies that different actors are involved, as well as different actions. In weak states security does not deal with the state, but mainly with the antagonist groups and individuals.19 At the same time, a diversified concept of security requires a proper set of actions; the Copenhagen School stressed securitisation, arguing that an issue is 15

Holsti K., The State, War, and the State of War, (Cambridge: Cambridge University Press, 1996). 16 Kaldor M., New and Old Wars: Organized Violence in a Global Era, (Cambridge: Polity Press, 1999). 17 Waltz K., Man, the State, and War, (New York: Columbia University Press, 1958). 18 Buzan B., People, States & Fear, (Pearson: Longman, 1991). 19 Kaldor, New and Old Wars.

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securitised when it is considered to be an actual threat, and emergency measures are adopted to respond to, or prevent a situation developing. Human security is therefore perceived more and more in a multilevel dimension, both in a vertical sense (different threats shape the state by involving individuals) and in a horizontal one (threats engage different sovereign states). Evidently, some securitisation processes remain useless and inefficient if only included in national political agendas. The dangerous potential represented by TOC is a very good example. Crimes are defined and created by a state through law. Thus, any internationalisation process of crime definition and crime control is, first of all, the outcome of the export of domestic perceptions and definitions. In the aftermath of the Cold War, this process occurred according to the same rules which dominated relations among political powers. In other words, it was essentially the attempts of Western powers to export their domestic definitions, expressed in political, economic and moral terms. This officially happened through the production of formal definition and documents. At the same time, this procedure is based on governments’ understanding of organised crime itself. The perception of organised crime is the basis of this analysis, and it will be used to explore the different attitudes of the leading political actors. The different law enforcement policies, produced by US and European states – to include EU member states – reflected their dissimilar perceptions of organised crime, as well as dissimilar approaches to security. However, the shifting perceptions of the security environment, together with the parallel transformation of the global system, have pushed the prominent states to change their attitudes, and to strengthen multilateral cooperation for developing adequate responses to new threats. The events of September 11 dramatically contributed to a change the perception of the threat, contributing to shape the fight against terrorism at the global level. Cooperation in tackling organised crime seems to be slower.

The EU security agenda and TOC The internationalisation of EC/EU crime control started at the beginning of the Cold War, through the development of cross-border policing institutions, and the extension of its own practices to its

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neighbours. The deepening and widening of the European integration contributed to the increase of this two-fold process. As far as the first element is concerned, Didier Bigo observed that an “internal security field” was emerging in Western Europe, dealing with a continuum in which organised crime, terrorism, and illegal migration were place together, by urging the need of more structured joint policies.20 The increasing will of European countries to strengthen their cooperation in the key issue of illegal drug trafficking was shaped by different factors.21 One of these was the building up of a common security policy. The nuclear deterrence strategy and arms control negotiations of the Cold War, the three-decade-long Helsinki process, and the formulation of national and multilateral defence policies in the 1990s’ in response to new security threats, such as the proliferation of weapons of mass destruction (WMD), pushed European states towards this direction. As affirmed by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), during the 1990s, the number of member countries which started to have national single strategies increased and, over time, a trend in producing joint policies also increased. The adoption of the EU Drug Strategy, in December 2004, witnessed the existence of a larger political concern about drugs across the EU, beyond the different approaches among member states. Successive EU Drugs Action Plans, to include the most recent, issued for the period 2009-12, were based on the same set of basic principles: a balanced approach to reducing the supply and demand for drugs, and the founding values of the Union: respect for human dignity, liberty, democracy, equality, solidarity, the rule of law and human rights. Among the measures prescribed for establishing joint policies, the enhancement of judicial cooperation in the area of combating drug trafficking and law enforcement, and the strengthening of Europol, Eurojust and other EU structures, are included.22 As far as the second element is concerned, the tradition of close cooperation with less developed countries, in the field of aid and relief, 20

Quoted by Andreas P. – Nadelmann E. Policing the Globe. Criminalisation and crime control in international relations, (Oxford: Oxford University Press, 2006) 178. 21 Shelley L., “Transnational organized crime: an imminent threat to the NationState?,” Journal of international affairs, 1995, 48 (2), 466-467. 22 Council of the European Union (2008), EU Drugs Action Plan for 2009-2012, OJ C326/7, 20.12.2008.

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offered the already exploited platform and expertise for improving cooperation with third countries, and international organisations, in the field of illegal drug trafficking, through closer coordination of the policies within the EU. In other words, the perception of organised crime within and outside EU borders cannot evade the set of principles which form the basis of integration and civil power. The internationalisation of EU organised crime control passes also through the document entitled “A Secure Europe in a Better World,” issued by the European Council in December 2003, in which the then EU High Representative for Common Foreign and Security Policy, Javier Solana, pointed out the main elements which were required to build a strong and solid European Security Strategy (ESS). The above mentioned set of principles is used also for enlarging EU capabilities and contribution to global security. The ESS stresses European responsibility for global security, the need of effective multilateralism and the extension of the international rule of law, considering that “the post Cold War environment is one of increasingly open borders in which the internal and external aspects of security are indissolubly linked.”23 The ESS lists five key threats to Europe: terrorism, the proliferation of WMD, regional conflicts, failed/failing states, and organised crime. This last one, in particular, is strictly linked to the conditions that cause conflict, fear and hatred, a criminalised economy that profits from violent methods of controlling assets, weak illegitimate states, the existence of warlords and paramilitary groups.

The US security agenda and TOC Since the first articulated analysis, made by the Kefauver Committee in 1951, the American perception of organised crime as a domestic issue has changed significantly. The alien conspiracy has turned into a larger involvement in illegal migration and border control issues, especially with

23

Solana J., A Secure Europe in a Better World, European Security Strategy, Brussels, 12 December 2003.

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relation to Mexico and other Central American countries, such as Guatemala and El Salvador.24 However, drug trafficking and money laundering continue to be the most important targets. In so doing, the US developed an international strategy which has been essentially based on the protection of US interests, and the strengthening of law enforcement and information systems, as it reflected the development of the internal and international structure of organised crime groups. The Bureau of International Narcotics and Law Enforcement Affairs (INL) is part of the structure created by the Department of State for reinforcing the international network of laws and conventions against the narcotics trade and corruption, through a wide range of bilateral, regional, and international initiatives, aiming at strengthen law enforcement capabilities of foreign governments. In the aftermath of September 11, 2001, US officials started to include counternarcotics in a broader security strategy, focusing on lawless zones. In March 2003, General James Hills described this change as follows: “Today’s foe is the terrorist, the narco-trafficker, the arms trafficker, the document forger, the international crime boss, and the money launderer. This threat is a weed that is planted, grown and nurtured in the fertile ground of ungoverned spaces such as coastlines, rivers and unpopulated border areas. This threat is watered and fertilized with money from drugs, illegal arms sales, and human trafficking. This threat respects neither geographical nor moral boundaries.”25

The US National Security Strategy, issued by President G. W. Bush in 2002, marked the formalisation of this change, and contributed to link new global challenges, including organised crime activities, to fertile grounds which can be easily found in weak or failed states.

24 Bynum S., “Controversies in the Study of the Organized Crime” in Organized Crime in America. Concepts and Controversies, Bynum S. ed. (Monsey: Criminal Justice Press, 1987); Finckenauer J., “Problems of definition: what is organized crime?,” Trends in Organized Crime, 2005, 8 (3), 63-83. 25 United States Army, Commander, United States Southern Command Before the House Armed Services Committee, quoted by Andreas P. – Nadelmann E. Policing the Globe.

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As of 2006, this affirmation is confirmed, and globalisation becomes the new force which is shaping more and more US national security. However, any strategy against TOC and its consequences is still related to information systems and transport control: “…illicit trade, whether in drugs, human beings, or sex, that exploits the modern era’s greater ease of transport and exchange. Such traffic corrodes social order; bolsters crime and corruption; undermines effective governance; facilitates the illicit transfer of WMD and advanced conventional weapons technology; and compromises traditional security and law enforcement.”26

Transatlantic cooperation, multilateralism, and the role of the EU Even before 9/11, the transatlantic law enforcement infrastructure was actively working, through several joint initiatives against money laundering and cybercrime. The terroristic attacks contributed, however, to change the characteristics of those initiatives, because it modified the security dimension. As already seen, in the aftermath of the terrorist attacks, the security strategies of both political powers presented some significant differences but, at the same time, also some potential sources for cooperation, too. The European Security Strategy (ESS) was essentially produced in response to the challenges posed by the US about the Union’s actorness in the sphere of security policies. The list of key security issues are basically identical in the two texts. Key dangers consist of terrorist threats, WMD and state failure as key dangers. However, both documents use different tones to describe the same need for more international cooperation. The ESS argues that “the best protection for our security is a world of well-governed democratic states” and for strengthening international order by “spreading good governance, supporting social and political reform, dealing with corruption and abuse of power, establishing the rule of law and protecting human rights”, which are all seen as being necessary.27 The NSS, for its part, affirms that “the United States must start from the core beliefs and look outward for 26

White House, The National Security Strategy of the United States of America, September 2002. 27 Solana J., A Secure Europe in a Better World, 10.

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possibilities to expand liberty.”28 Moreover, while the US stresses the term “rogue states,” the EU document refers to “failed” or “failing states”, to indicate the fertile grounds in which terrorism and organised crime can be nurtured. There are many “enemies” in the NSS,29 while many “challenges” in the ESS. Finally, the EU explicitly includes regional conflicts and organised crime in its list of challenges. As has already been done in the past, especially during the Cold War, the US documents and declarations use a more authoritative language, which takes the lead but, at the same time, requires US allies share their own responsibilities. In the latest NSS, issued in 2006, national security is no more defined in traditional terms, but associated to the globalisation of threats and to greater cooperation, as a sign of discontinuity. This evident shift in the language and in the approach continued to increase in the following years and reached a meaningful exploit in President Barak Obama discourses. The more recent Strategy to Combat Transnational Organised Crime, issued in July 2011, influences the perception of TOC as it establishes new patterns of cooperation and a re-launch of multilateral structures. According to Attinà, multilateralism is a step down the road of civilising politics among states, if it is considered as the attitude of several states acting together, and it sides with the political science view of multilateralism as conduct founded on universal principles, equal participation of states in collective mechanisms, and no discrimination in putting principles into action.30 In so doing, multilateralism is firstly a commitment to common ways of working and agreed rules: common rules and norms are commonly created for solving problems. Secondly, multilateralism means “coordination,” instead of rivalry or simply juxtaposition. If the human security approach is considered to be the most efficient approach in the face of global threats, then a greater coordination of policies in different fields, including external relations, trade, development and security, is required.31 These considerations bring some

28

White House, The National Security Strategy, 3. (US) National Security Strategy. 30 Attinà, “Multilateralism and the emergence of minilateralism”, 8. 31 Keohane R., “Multilateralism: An Agenda for Research,” International Journal, 1990, 45, 731-764. Caporaso J. “International Relations theory and multilateralism: the search for foundations,” in Multilateralism matters. The theory and practice of an institutional form, Ruggie J.G. ed., (New York: Columbia University Press, 29

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important political implications, in terms of cooperation between States and intergovernmental organisations. The responses and the new partnerships created for tackling global threats and emergencies should be addressed, first of all, to solve a specific problem, but, at the same time, they can for example, also serve as a catalyst for changing existing political conditions, and to tackle other problems, for establishing new rules of conduct, and, in the long term, for enforcing the rules themselves. The need to respond and manage natural disasters is an example of political implication associated with multilateralism. The US leadership in mobilising a regional task force to respond to the South East Asian tsunami of 2004 contributed, for example, to the creation a more structured international response to global emergencies. The efficacy of the response to the tsunami in Southeast Asia, as well as to the earthquake in Pakistan in 2011, developed new channels of communication and cooperation at a local level, either logistics or political support to local actors which have also been exploited in other fields, such as in the longstanding regional conflicts in Aceh and the Kashmir.32 Attempts to facilitate greater cooperation in crime control on an international level necessarily involves multilateral arrangements on a regional and global level. These kinds of arrangements are also created, however, for promoting more communication, establishing guidelines and best practices, and regularising cooperation.33 Even though the US played an important role in motivating and deepening new agreements in criminal law enforcement issues, the EU showed a different approach which, in the context of multilateralism, can be of added value. As is clear from the ESS, the rationale on which the fight against TOC is based in the EU is part of the broader security culture the EU, member states developed in the early 1990s, for avoiding international and internal wars in the region. This culture is based on shared principles and beliefs, as well as on

1993), 51-90, Lake A. D., “American hegemony and the future of East-West relations,” International Studies Perspectives, 2006, 7 (1), 23-30. 32 Koivusalo M. and Ollila E., Making a healthy world. Agencies, actors and policies in international health, (Helsinki: Stakes, 1997). 33 Hignett K., “Transnational crime and its impact on international security,” in Organized Crime: From Trafficking to Terrorism, Shanty M. ed. (Santa Barbara: ABC-CLIO, 2008), 294-298.

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common actions and commitments.34 Underlying these policies, was the understanding that the same security model can be applied to other parts of the world. This is also recommended in the Strategy for the External Dimension of JHA: Global Freedom, Security, Justice, which was adopted in December 2005, in which cooperation with those countries which have already developed an advanced strategy, namely the US, are greatly emphasized. Therefore, the EU has become a regional power, able to use its own principles and actions in a larger context. The constant employment of the common behaviors, during recent decades, has contributed to the development of a specific international image of EU, as a civilian power. The building up of long-term stabilisation, the use of multilateralism, and the setting of shared norms and ideas are the main elements of the global actorness that EU has developed in the field of promotion of democracy and security.35 In addition, the Treaty of Lisbon was expected to give greater emphasis to the role that the EU could play in security issues, by strengthening the link between foreign policy and the fight against TOC. As stated in the treaty, the Union “shall offer its citizens an area of freedom, security and justice”, the second of the treaty’s fundamental objectives.36 As was discussed earlier, the EU has built its security strategy on the fact that perceived threats should first be resolved inside member states, in order to create a safer external environment. The level of interdependence between different regions and, at the same time, between threats of different nature are, however, increasing. The treaty has tried to reconcile internal security concerns with foreign policy aspirations, by strengthening the set of principles and values which are at the basis of the EU action, and by abolishing the pillar structure, to include giving more powers to the parliament.37 Even though the new set of procedures will take time to be consolidated, some institutional confusion (an excess of power given to the post-Lisbon High Representative for Foreign Policy, as well as the hectic attempts by the European Parliament to use its powers) can be observed. Despite the improvements of institutional arrangements, and while issues remain, the core point is the accomplishment of a multilateral process, of building up joint policy 34

Attinà, F., “Multilateral Security and Peace Operations. The Decentralization Turn.” paper presented to the 21st Congress of the Italian Political Science Association, Catania, Italy, 20-22 September 2007. 35 Duchene F., “Europe’s Role in World Peace,” in Europe Tomorrow: Sixteen Europeans Look Ahead, Mayne R. ed. (London: Fontana, 1972), 32-47. 36 Article 3, par. 2 TFEU. 37 Trauner F., “The internal-external security nexus: more coherence under Lisbon?”, ISS Paper n.89, 2011.

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initiatives and rational exploitation of international institutions, such as the UN, the World Bank, the IMF and regional ones, such as ASEAN or OAS.

Conclusions In this chapter, it is argued that TOC is still perceived as a national law enforcement issue. Some significant changes are, however, occurring within the international system. The shifting of the perception of TOC from a domestic public order issue to a global threat is due to some broader transformations affecting, firstly the relations among states and, secondly, the concept of human security. The internationalisation of crime control was essentially the export of law enforcement rules, namely the domestic definition of security and of organised crime, from the Western powers to the rest of the global system. Even though there were efforts to collaborate on various initiatives, since the Cold War, the US and the EU have offered contrasting views of the threat, and of the way that it should be tackled. The EU has mainly focused on cross-border law enforcement and judicial cooperation; while the US security power has been more focused on the use of military power. Both the US and the EU contributed to shape the international set of definition and rules in the field of organised crime, by using their different, but leading roles. The globalisation process, the rising of non-state actors, and the consequent development of the human aspects of security, as well as the events of September 11, have pushed the main international political actors to change this composite structure of relations. The security agendas they have produced were, apparently, divergent, but both focused on the need to strengthen regional and global cooperation, and to re-launch transatlantic relations. The EU has developed, in particular a great potential for going beyond the law enforcement approach to the problem. The attempt to bring the fight against TOC in the context of a broader strategy aiming at strengthening security can be considered to be a fundamental basis for launching multilateral cooperation in security affairs. In this framework, even TOC has started to be perceived as an increasing challenge and, even though it is not yet at the core of joint priorities, like terrorism, the danger it represents for the whole international system is increasingly being acknowledged. A significant gap has developed between the discourse and the perception of TOC within the international political system. Multilateralism, defined as the conduct

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founded on universal principles, equal participation of states in collective mechanisms, and no discrimination in putting principles into action, can represent the only tool for filling this gap as well as the only political context within which a coherent and efficient global counterstrategy can be conceived and developed.

Bibliography Andreas P. and Nadelmann E., Policing the Globe. Criminalisation and crime control in international relations, Oxford: Oxford University Press, 2006. Attinà F., “Multilateralism and the emergence of minilateralism in EU peace operations,” Romanian Journal of European Affairs, (2008)8 (2), 5-24. —. “Multilateral Security and Peace Operations. The Decentralization Turn.” Paper presented to the 21st Congress of the Italian Political Science Association, Catania, Italy, 20-22 September 2007. —. “Globalization and crime. The emerging role of international institutions,” Department of Political Studies, Jean Monnet Working Paper in Comparative and International Politics JMWP 07.97. Bynum S., “Controversies in the Study of the Organized Crime” in Organized Crime in America. Concepts and Controversies, Bynum S. ed., Monsey: Criminal Justice Press, 1987. Bull H., Watson A. eds. The Expansion of International Society, Oxford: Clarendon Press, 1984. Buzan B. People, States & Fear, Pearson: Longman, 1991. Caporaso J., “International Relations theory and multilateralism: the search for foundations,” in Multilateralism matters. The theory and practice of an institutional form, Ruggie J. G. ed., 51-90, New York: Columbia University Press, 1993. Chiottolini G., “The ‘Private’, the ‘Public’, the ‘State’”, The Journal of Modern History, 1995, 67 (4). Council of the European Union, EU Drugs Action Plan for 2009-2012, OJ C326/7, 20.12.2008. —. A Strategy for the External Action of JHA: Global Freedom, Security and Justice, doc. 15446/05, 6 December 2005, Brussels. Doornbos, M., “State collapse and fresh starts: some critical reflections”, Development and Change, 2002, 33, 5, 797-815. Duchene F., “Europe’s Role in World Peace,” in Europe Tomorrow: Sixteen Europeans Look Ahead, Mayne R. ed., 32-47, London: Fontana, 1972.

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Finckenauer J., “Problems of definition: what is organized crime?,” Trends in Organized Crime, 2005, 8 (3), 63-83. Galtung J., “A New Era for Nongovernmental Organizations in the UN?,” Transnational Associations, 1987, 3, 183-186. Gellner E., Conditions of Liberty: Civil Society and its Rivals, London: Hamish Hamilton, 1994. Grossman H.I., “Rival kleptocrats: the mafia versus the State” in The economics of corruption and illegal markets, Fiorentini, G. Zamagni, S. eds., Northampton: Edward Elgar, 1999. Gupta S., Davoody H. and. Alonso-Terme R. eds., “Does corruption affect income inequality and poverty?,” IMF Working Paper, WP/1998/76. Hignett K., “Transnational crime and its impact on international security,” in Organized Crime: From Trafficking to Terrorism, Shanty M. ed., 294-298, Santa Barbara: ABC-CLIO, 2008. Holsti K., The State, War, and the State of War, Cambridge: Cambridge University Press, 1996. Irrera D., “Organized Crime, Non-State Actors and Weak/Failed States,” in Organized Crime: From Trafficking to Terrorism, Shanty M. ed. 357-363, Santa Monica: ABC-CLIO, 2007. Jackson R. H., Quasi-states: sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1990. Kaldor M., New and Old Wars: Organized Violence in a Global Era, Cambridge: Polity Press, 1999. Keohane R., “Multilateralism: An Agenda for Research,” International Journal, 1990, 45, 731-764. Koivusalo M. and Ollila E., Making a healthy world. Agencies, actors and policies in international health, Helsinki: Stakes, 1997. Lake A. D., “American hegemony and the future of East-West relations,” International Studies Perspectives, 2006, 7 (1), 23-30. Migdal J. S., Strong societies and weak states, Princeton: Princeton University Press, 1988. Müller K., “The Civil Society–State Relationship in Contemporary Discourse: A Complementary Account from Giddens’ Perspective,” British Journal of Politics and International Relations, 2006, 8, 311– 330. Roberts. D., “War and the historical formation of States” in State and Society in International Relations, Banks, M. Shaw M. eds., Exeter: Wheatsheaf, 1991. Rose-Ackerman S., Corruption and government: causes, consequences and reform, Cambridge: Cambridge Univ. Press, 1999.

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Rosenau J. N., Turbulence in World Politics. A theory of Change and Continuity, New York: Harvester Wheatsheaf, 1990. Ruggie J. G. ed., Multilateralism matters. The theory and practice of an institutional form, New York: Columbia University Press, 1993. Shelley L., “Transnational organized crime: an imminent threat to the Nation-State?,” Journal of international affairs, 1995, 48 (2), 466-467. Solana J., A Secure Europe in a Better World, European Security Strategy, Brussels, 12 December 2003, http://consilium.europa.eu/uedocs/cmsUpload/78367.pdf. (accessed 16 October 2012. Sorensen G., “Development in Fragile/Failed States”, paper presented to the II Conference on Failed States, Purdue University, Mimeo, 1999. Strange, S., The retreat of the state: the diffusion of power in the world economy, Cambridge: Cambridge University Press, 1996. Trauner F., “The internal-external security nexus: more coherence under Lisbon?,” ISS Paper n. 89, 2011. Trentmann F., Paradoxes of Civil Society. New Perspectives on Modern German and British History, New York: Berghan Books, 2000. United Nations, United Nations Convention Against Transnational Organised Crime, 2000 http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC %20Convention/TOCebook-e.pdf. Waltz K., Man, the State, and War, New York: Columbia University Press, 1958. Williams P., “Transnational crime and corruption” in White, B. Little, R. Smith, M. eds. Issues in World Politics, 2001 New York: Palgrave, 2001. White House, The National Security Strategy of the United States of America, September 2002. —. The National Security Strategy of the United States of America, March 2006.

CHAPTER TEN THE EXTERNALISATION OF THE EU INTERNAL SECURITY STRATEGY IN THE FRAMEWORK OF MULTILATERALISM: THE CASE OF SECURITY SECTOR REFORM FRANCESCA LONGO

Introduction Since Security Sector Reform (SSR) has dramatically emerged as a key point of the international activity since the end of 1990s, the EU has included SSR among the main instruments of its external action. This chapter aims to analyse in the first part the concept of SSR as it has emerged at international and European level. In the second part SSR is approached as one of the main instruments of the externalisation of the Internal Security Strategy. The main assumption is that, in the framework of the European integration process, the inclusion of the SSR among the EU’s external action tasks develops from either external and domestic conditions. One of the most relevant internal conditions is the notion of security as developed in the EU and stressed in the Internal Security Strategy, and in the European Security Strategy. EU SSR activity seems to be based on a twofold aim: the first aim is the reconstruction of the institutional framework of the Security Sector (SS) with the view of assuring and/or increasing the effectiveness of the management of domestic security, in the view to assure a secure environment for the people. The second aim is to promote the development of SS policies compatible with human rights, humanitarian law, good governance, transparency and respect for the rule of law, in order to assure that the reconstruction of the institutional framework of third countries will be based on the respect for their citizens. In this framework, the European Security and Defence Policy (ESDP) civilian operations are at the very

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foundation of the SSR activity of the EU and SSR tasks have increased in number, as demonstrated by empirical analysis of the relevance and presence of SSR provisions in EU missions.

The Security Sector Reform: a definition in a theoretical frame The Security Sector Reform (SSR) concept was adopted by international institutions at the end of the 1990s, to refer to a relevant and critical part of the action of peace missions launched for crisis management, and stabilisation activities, in the countries of intervention. It consists of reforming the institutional sectors involved in the management of domestic security in those receiving countries which were unable to assure domestic security needs to their own population during institutional and political transition processes. In 2005 the Organisation for Economic Cooperation and Development (OECD) Guideline defined SSR as: “the transformation of the ‘security system’ – which includes all the actors, their roles, responsibilities and actions – working together to manage and operate the system in a manner that is more consistent with democratic norms and sound principles of good governance, and thus contributes to a well-functioning security framework”.1

In this context, security and development have become increasingly linked to one another for two main reasons. Firstly “inappropriate security structures and mechanisms can contribute to weak governance and to instability and violent conflict, which impact negatively on poverty reduction”.2 Secondly, the Security Sector and its reform, when it is needed, is considered to be a fundamental component of human security.3 Sustainable security systems are considered to be a crucial step in the development process by international institutions, and development and security are defined as interconnected sectors by both the OECD4 and the UN.5 1

OECD: DAC Guidelines and Reference Series Security System Reform and Governance A DAC Reference Document, OECD 2005, 20. 2 Ibid. 11. 3 See Commission on Human Security, Human security now, (N.Y. Commission on Human Security/UNOPS (United Nations Office for Project Services) 2003), available on line. 4 Ibid.

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The Security Sector is a very broad policy area because it includes a large spectrum of services which are provided not only by the state but also by a large number of other actors: state agencies and departments, but also private security firms and non-state organisations. The OECD Guideline on Security System Reform and Governance classifies four main components of the Security Sector System: “core security actors”, which include the state institutions provided with the authority and instrument to use force.6 “security management and oversight bodies”, which include state political actors, which have the power of governing, monitoring and directing security policy.7 “justice and law enforcement institutions”, which include judicial authorities and civil bodies in charge of the implementation and control of the judicial system and the rule of law.8 “non-statutory security forces”, which include private actors acting in states affected by violent conflicts.9

The relevance of SSR in the process of peace-making and/or the stabilisation and development process, is strongly based on abandoning the classical concept of security as strictly connected with the territorial integrity of the state. It is related to the adoption of the broader concept of security and the security agenda, which is considered to include the well-

5

See the Conclusion of the UN Security Council in supporting Security Sector Reform, 20/02/2007. 6 The document’s list is: armed forces; police; gendarmeries; paramilitary forces; presidential guards, intelligence and security services (both military and civilian); coast guards; border guards; customs authorities; reserve or local security units (civil defence forces, national guards, militias). 7 The executive; national security advisory bodies; legislature and legislative select committees; ministries of defence, internal affairs, foreign affairs; customary and traditional authorities; financial management bodies. 8 Even if the label of this component refers to the law enforcement actors, it includes: judiciary; justice ministries; prisons; criminal investigation and prosecution services; human rights commissions and ombudsmen; customary and traditional justice systems. The traditional “law enforcement agencies” are included in the first component. 9 Liberation armies; guerrilla armies; private body-guard units; private security companies.

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being of populations, and respect for human rights. The OECD DAC10 Guideline on Security System Reform and Governance defines security as “an all-encompassing condition in which people and communities live in freedom, peace and safety, participate fully in the governance of their countries, enjoy the protection of fundamental rights, have access to resources and the basic necessities of life, and inhabit an environment which is not detrimental to their health and wellbeing. The security of people and the security of states are mutually reinforcing.”

The traditional concept of security developed during the cold-war period focused on the protection of states from external military threats. Security actions were defined by their relevance to military statecraft. As Baldwin stressed, “If military force was relevant to an issue, it was considered a security issue and if military force was not relevant, that issue was consigned to the category of low politics.”11 The object of the security policy is the state, and the ultimate aim of security actions is to face those threats challenging political independence and the territorial integrity of a political system. The perception of high international tension motivated by the Cold War contributed to the creation of a narrowly focused concept of security, related to the defence of the territorial integrity of the nations from threats posed by territorial attacks by other states.12 Since the 1980s, this conception became increasingly questioned in terms of the nature of international threats, the nature of the actors to be secured, and the type of actions to be taken in order to assure security. In this perspective, international security was no longer defined as the guarantee of the territorial integrity of nations, but it is enlarged in terms of referent objects, the nature of the threats, and the content of security agenda. Even if the strict definition of security had not been totally abandoned, a new concept of security has consolidated in which the object is not only the state, but also the general population. Military threats are no longer considered to be the main challenges, and a collective and cooperative security strategy is considered to be more useful than unilateral responses. SSR is based on a different security paradigm. It 10

Development Cooperation Directorate. Baldwin D., “The concept of security”, in Review of International Studies, 23, 1, (1997) 5-26, 9. 12 Nye, J. S. Jr. and Lynn-Jones, S. M., “International Security Studies: A Report of a Conference on the State of the Field.” International Security, 12, (1988), 5-27, Walt S., “The Renaissance of Security Studies.” International Studies Quarterly, 35(2), (1991), 211-239. 11

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considers security at the individual level as being intimately linked to state security and to international security.13 With this perspective, the referent object of security is no longer the state and the integrity of its power. The security referent objects are the individuals who must be secured in terms of well-being, human rights and rule of law. The SSR concept and practice are to be considered as part of this new security concept. It aims at improving “the way a state or governing body provides safety, security, and justice to its civilian population within the context of rule of law.”14 Since the mid 1990’s, SSR has become a central component of all those operations and programmes activated by the international community in order to manage conflict and post-conflict situations in a number of countries.

The Security Sector Reform and the Security Policy framework of the European Union In 1999, the EU started to develop the common military and civilian capabilities of crisis management and conflict resolutions. Though the SSR is not new in international relations,15 the EU included the principles and practices of SSR among the most relevant of its external tasks in the mid 2000’s. There are two main factors which determined the inclusion of SSR among the external activities of the EU. The first is the change that occurred in world politics which affected the theory and practices of security, and multilateral peace missions.16 In this perspective, from the dramatic growth in the level of interdependence in the global system, it emerges that every country is very sensitive to instability in any other country or region. This gives rise to the need and willingness to act of those actors to ensure the maintenance or restoration of stability at the international system level. Moreover, the development of principles and 13

Buzan B., People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era, 2nd ed., (Boulder, CO. 1991). 14 Meharg S., Arnusch A., Security Sector Reform: a case study approach to Transition and capacity building, (PKSOI Papers, 2010), 1. 15 Sabiote M.A., “New tasks for Peace Operations? The interlinkage between SSR and Integrated Peace Missions”, in Multilateral Security and ESDP Operations, Attinà F. and Irrera D. eds. (London, Ashgate, 2010). Schroeder U. “EU Security Sector reform: a Research Agenda”, in The European Union and Security Sector Reform, Britz M. ed., Vallingby, (Swedish National Defense College, 2007). 16 Attinà F., “Global power competition and the rise of minilateralism in Peace Operations”, in Multilateral Security and ESDP Operations, Attinà F. and Irrera D. eds. (London, Ashgate, 2010).

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values aiming to respect and protect not only the stability of states, but also human life and dignity, has increasingly connected the task of stabilisation to the task of economic and social development. SSR is at the very foundation of this new paradigm, which basically involves three main security concepts. The first security concept is related to the interdependence between state security and security of individuals: with individuals being the referent object of the security policy, security is addressed to provide individuals with equitable safety, security, and justice. The second is related to the interdependence between domestic security and external security: if security is addressed to provide people with safety and well-being, the distinction between domestic and external sources of threats are more vague, and the distinction between domestic and external security is weakened, not only at the theoretical level, but also at the policy level. At this stage the third concept arises, the interdependence between external security policy and domestic security policy. The distinction between “national security”, which aims at defending core values of a national community, and other sectors of domestic security, aiming to manage public order and law enforcement, is no longer useful to provide an effective security policy. The activity aiming to prevent or address security threats facing population safety, security and justice, includes a large spectrum of actions. These actions are included in a broad range of policies and involve a large number of different actors. Security policy results in a multi-layered process, involving actors at different levels, including public and private bodies: the government, ministries, legal systems, the judiciary, administrative entities, and also private security actors. Security outcomes are the result of negotiated relationships between independent actors and institutions. The process of governing security can be defined as a governance system, in which the content of the rules and norms is the result of a complex decision-making process, in which a high number of social and political actors are involved.17 SSR is relevant in those cases in which a state is not able to guarantee a secure environment to its citizens in terms of rule of law, safety, security and justice.

17

On the concept of governance see, among others, Higgott, R. “The Theory and Practices of Global and Regional Governance”, European Foreign Affairs Review, 10, (2005) 575–594, Longo F., “Governance in International Relations” Security Identity and the Southern Caucasus, the Role of the EU, the US and Russia, in Longo F., Geistlinger M., Lordkipanidze G., Nasibli Y., (Vienna. Neuer Wissenschaftlicher Verlag. 2007).

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The second factor concerns the specific dynamics of the EU’s external action. European integration, and its institutional and political structure, have been founded and are based on a sophisticated model for conflict resolution, based on shared values and peaceful negotiation. Since the very beginning of the development of the Common Foreign and Security Policy (CFSP), and European Security and Defence Policy (ESDP), the main characteristic of the EU international action was the attempt to export these values and the EU model to the outside world, influencing both the structuring of global cooperative processes and the issues related to soft security. The relevance of the policies grouped in the SSR for sensitive issues, such as respect for human rights, respect for the rule of law, guarantees of personal freedom, the right of defence, and freedom of movement, makes it one of the more value-based areas in international action, and is strictly speaking, connected with the EU internal Area of Freedom Security and Justice policy (AFSJ). The process of externalisation18 of the AFSJ, and its inclusion in the list of the relevant tasks of the EU external action, is now one of the main, and newer, arguments of the CFSP. SSR seems to be the perfect instrument for including the AFSJ into the foreign policy of the EU.

EU Security Concept and SSR The SSR policy of the EU has been developed since the 2005 on the basis of the European Commission’s communications, “A Concept for European Community Support for Security Sector Reform,”19 and the

18

The term “Externalisation” has been introduced into EU theoretical analysis by Schmitter; Schmitter, P.C., “A Revisited Theory of European Integration”, in Regional Integration: Theory and Research, Lindberg L.N. and Scheingold J.A. eds., (Cambridge, University Press, 1971) for explaining the importance of the external environment in creating common institutions and the role of interaction between member states and the international system in stimulating closer integration among states. In this chapter the term is used with a different meaning for defining the recognition of the international dimension of the AFSJ and the relevance of this policy on the political and security relationships of the Union with third countries (see Longo F., “The Mediterranean Dimension of the Area of Freedom Security and Justice”, in The External Dimension of the European Union's Area of Freedom Security and Justice, Cremona, M., Monar, J. Poli, S. eds., (Berne: Peter Lang, Editions Scientifiques Internationales, 2011). 19 Communication from the Commission to the Council and the European Parliament; A Concept for European Community Support for Security Sector Reform COM (2006) 253 final.

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“Concept for ESDP support to Security Sector Reform,”20 adopted by the Council in November 2005. These documents form the foundation of the “Policy framework for security sector reform” adopted by the EU Council in 2006.21 In this document, SSR is considered to be an instrument to “…reduce insecurity and eradicate poverty through strengthening good governance and the rule of law in third countries.” It is evaluated as “an important contribution to EU’s external action” and defined as a “holistic, multi-sector, and long-term process encompassing the overall functioning of the security system as part of governance reforms.” Even though SSR appeared on the agenda of the EU in mid-2000s, the concepts and underpinning practice of SSR are tightly connected to the concepts and practice of the external action of the EU from its outset. If the traditional strict definition of security does not give the EU any opportunity to be considered an international actor, as it does not have any instrument to defend its own territorial security, the transformation of the concepts and the underpinning practices of security after the end of the Cold War gives the EU new opportunities to be considered as a security actor. The development of a complex institutional structure framed in the CFSP and ESDP in the 2000s engaged the EU in the deployment of military and civilian operations, which focused the EU external action on peace building, conflict prevention and management. The preferred means to promote these objectives, and the specific concepts behind this mode of acting in foreign policy, put SSR at the very core of the EU’s external action in the last fifteen years. The relevance of the SSR in the external action of the Union is based on the “security-development nexus,” which is to be considered to be a key concept of the EU foreign policy. This has been institutionalised in the security strategy developed by the Union since the 1990s. In the 1990s there was a transformation in the perception of the role of the European member states and EU associated with the conceptual change described above. At the time of the East/West confrontation the EU developed an international role which was defined as “civilian power.”22 The EU was able to influence the structure and processes of international relations by non-military means. The Union always presented 20

Council of the European Union, EU Concept for ESDP support to Security Sector Reform (SSR), Brussels, 13 October 2005, 12566/4/05. 21 Council Conclusions on a Policy Framework for Security Sector Reform, 2736th General Affairs Council Meeting, Luxembourg, 12 June 2006. 22 Duchêne, F., “Europe’s role in world peace”, in Europe Tomorrow, Mayne R. ed. (London, Fontana, 1972).

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itself as an actor that had internally developed a negotiation structure of conflict management, and was based on increasingly complex interdependence. Furthermore, through its external relations of a commercial, economic, cooperative and diplomatic nature, the EU played a relevant part in the management of the international soft security issues, and disseminated its peaceful conflict management model throughout the world. After the end of the Cold War a European approach to security was developed when the Paris Charter 199023 was signed.24 The European approach was in line with the new security concept, and it was based on “the preference for the model of cooperative and comprehensive security.”25 This approach added to the traditional view of security defined as the defense of states’ territorial integrity through military means, a new multidimensional security, which encompassed not only a purely military dimension, but also other aspects connected to the territorial survival of states, such as environmental and energy issues, and the issue of terrorism. The change in the meaning of security required a broadening of the security agenda, and an increase in the number and nature of the threats to this new definition of security.26 Environmental disasters, terrorist attacks, instability and weakness of the neighbouring countries’, and energy problems, were only a few of the issues that became part of the new security agenda of states, and were added to the classical issue of the management of military relations. In December 2003 the European Council formally approved the European Security Strategy (ESS), “A Secure Europe in a Better World”, which had been drafted by the then Secretary-General Javier Solana, in May 2003. It aimed at providing the EU with a comprehensive foreign, defence and security strategy in order to increase the EU impact on international politics. More specifically, the document identified three goals for the security strategy of the EU:

23

Charter of Paris for a New Europe 1990, Organisation for Security and Cooperation in Europe (OSCE). 24 Attinà F., La sicurezza degli stati nell’era dell’egemonia americana, (Milano, Giuffrè, 2003). 25 Ibid. 103. 26 The literature on the transformation of the concept and on the security agenda is very broad. Buzan B., People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era, 2nd ed., (Boulder, CO, Buzan 1991) is one of the fundamental such texts. For a synthesis and extended bibliography, please see Le Relazioni Transatlantiche e la Sicurezza Internazionale, (Milano, Giuffrè, 2003).

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“addressing the threats,”27 “building security in our neighbourhood”28 and an “international order based on effective multilateralism.”29 Moreover, since 1991 the EU has specified the objectives of CFSP. The Maastricht Treaty, in the then Article J.1, stated that they include conflict resolution, the strengthening of international security as well as the promotion of democracy, the rule of law and human rights. The EU Security Strategy and the reformed EU treaties reaffirmed these priorities. The Treaty of Lisbon enlarges the list and affirms, at Article 3.5 TEU: “In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights” (Article 3.5).

Article 43 TEU stresses the issue by stating that: “the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and postconflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.”

The entrance of the SSR in the agenda of the EU’s external policy is to be considered as a logical consequence of this European security approach, with this approach now formally based on the securitydevelopment nexus. The analysis of the ESS is a useful starting point for conceptualizing the close link between the EU security approach, the EU SSR policy framework, and the logic of the security-development nexus. Solana’s security strategy was developed in the context of security post the Cold War, and it lists, among the new threats to security, socioeconomic underdevelopment, regional conflicts, lack of democratic institutions and respect for human rights, failed states, and failing 27 Solana J., “A Secure Europe in a Better Word. European Security Strategy, European Council, December 2003, 6. http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf. 28 Ibid. 7. 29 Ibid. 9.

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multilateral institutions. This document adopts a multidimensional approach to security, and links security to the rule of law, democracy, and the well being of people: “The progressive spread of the rule of law and democracy has seen authoritarian regimes change into secure, stable and dynamic democracies.”30 Moreover security is considered to be a precondition for development. Conflicts are considered not only a source of destruction of infrastructures, but also a source of endemic poverty. The EU aims to secure the global system, with particular regard to its neighbouring countries, by: “spreading good governance, supporting social and political reform, dealing with corruption and abuse of power, establishing the rule of law and protecting human rights are the best means of strengthening the international order…”31

The will to contribute to the SSR is declared at the end of the ESS by stating “we should think in terms of a wider spectrum of missions. This might include joint disarmament operations, support for third countries in combating terrorism and security sector reform.”32 The securitydevelopment nexus is definitively stated in the “Report on the Implementation of the European Security Strategy - Providing Security in a Changing World”, adopted by the European Council in December 2008.33 It states that “there cannot be sustainable development without peace and security, and without development and poverty eradication there will be no sustainable peace… Security Sector Reform and Disarmament, Demobilisation and Reintegration are a key part of post-conflict stabilisation and reconstruction”.34

The relevance of the SSR in EU external action is also linked to the process of externalisation of those domestic policies and processes included in the AFSJ, in a practice of linking domestic and external security. It is to be noted that since the 1990s, the promotion of the 30

Ibid. 1. Ibid. 10. 32 Ibid. 13. 33 Report on the Implementation of the European Security Strategy - Providing Security in a Changing World, European Council, Brussels, 11 December 2008, S407/08. 34 Ibid. 8. 31

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international actorness of the EU has been one of the declared objectives of the EU and, in particular, conflict and crisis management has become a growing priority for EU external policy. There is no goal to enter the civilian/military actor debate, nor introduce the notion of the EU as civilian power. Nevertheless, it is to be noted that in the EU foreign policy lays more emphasis on seeking to prevent conflicts through political engagement and constructive dialogue, with military action being seen as a measure of last resort. With this perspective, the inclusion of the AFSJ issues among the variables that influence the structure of political and security relationships of the Union, with non-EU states, is key for the development of an approach based on the convergence of security and democracy and human right promotion policies. The process of the externalisation of the AFSJ is the main strategic action that links external to internal security, and the promotion of humanitarian norms and minimum standards of rule of law. The Tampere Council (1999), the Seville Council (2002) and the Thessaloniki Council (2003) identified the “external dimension” of the AFSJ, providing the EU with the institutional tools needed to include the AFSJ domain in its foreign policy. In 2004, the Hague Programme35 confirmed the relevance of the freedom, security and justice policies for the external relations of the EU. In addition, in December 2005 the European Council adopted the Strategy for External Dimension of Justice, Freedom, Security.36 This document pointed out the relevance of cooperation with third countries for the development of a genuine AFSJ, due to the nature of the policies included into the AFSJ domain. “Internal Security Strategy”37 and “Internal Security Strategy in action”38 reaffirm the link between domestic and external security, by stating that “Internal security cannot be achieved in isolation from the rest of the world, and it is therefore important to ensure coherence and complementarity between the internal and external aspects of EU security. The values and priorities in the Internal Security Strategy, including our commitment to promoting human rights, democracy, peace and stability in 35

“The Hague Programme: ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice”, COM(2005) 184 final OJ C 236, 24.9.2005. 36 Commission Communication: “A strategy on the external dimension of the area of freedom, security and justice”, COM(2005) 491 final. 37 Communication from the Commission to the European Parliament and the Council of 22 November 2010 – The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM/2010/0673 final. 38 MEMO/10/598.

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our neighbourhood and beyond, are an integral component of the approach laid down in the European Security Strategy”.39

The institutional and operative link between AFSJ policies and external action’s instrument is stated as follows: “Cooperation with the Common European Security and Defence Policy, especially between the EU agencies and the respective missions, must therefore to be enhanced even further. It is also very important to strengthen the participation of law enforcement agencies and Justice Freedom and Security bodies at all stages of civilian crisis-management missions.”40

Since SSR involves a high number of policies and sectors included in the domestic AFSJ, the engagement of the EU in restoring the SS in third countries is the instrument for linking external security, development and internal security.

The institutional arrangements of the EU’s SSR activity The Council’s Document “EU Concept for European Security and Defence Policy support to Security Sector Reform”41 stresses the relevance of the European foreign and security policy for the SSR. It considers SSR as a key action in order: “to prevent conflict in fragile states. It is also a core task in countries emerging from conflict, and is a central element of the broader institutionbuilding and reform efforts in countries in a more stable environment”.42

From this perspective the CFSP and the ESDP might be the main institutional frameworks of common SSR actions. Nevertheless, the adopted SSR paradigm which links security to SSR, development and wellbeing of the people, involves a wide range of actors and processes, and shapes SSR as a multi-tasking policy. 39

Communication from the Commission to the European Parliament and the Council; The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, Brussels, 22.11.2010, COM(2010) 673 final. 40 JHA Council: Internal Security Strategy for the European Union: “Towards a European Security Model,” Brussels, 23 February 2010. 41 Council of the European Union, EU Concept for ESDP support to Security Sector Reform, 12566/4/05, 13th October 2005. 42 Ibid. 8.

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The EU Council showed the EU’s willingness to: “take a coherent and consistent approach, where complementarity of actions undertaken in the framework of ESDP and by the European Community is vital, both in the area of SSR, and in relation to Community activities in other areas in a given country”.43

In the Council’s perspective the SSR activities must have a “crosspillar” approach and “the Council General Secretariat and the Commission will need to work in close cooperation both to ensure a clear, functional division of responsibilities and to ensure maximum coherence and effectiveness of overall EU effort.”44

The cross-pillar strategy seems to be based on the division of tasks between ESDP and Commission.45 In line with this strategy, the Council designs the role of ESDP in the area of SSR: since the ESDP is an instrument for conflict prevention and conflict management, it will use its own instrument for undertaking integrated actions in order to achieve objectives of SSR, when it is needed. SSR is considered as one of the conflict prevention and crisis management tools. According to the Council’s Document the specific competencies of ESDP action in undertaking SSR operations are: x Support in Reforming the Defence Sector, the armed forces, including the relevant non-statutory bodies; x Support in Reforming the Police Sector, including the relevant nonstatutory bodies; x Support in Strengthening Justice/Rule of Law elements in Security Sector Reform; x Support in strengthening the border and customs sector; x Support in reforming the financial and budgetary aspects of the Security Sector; x Support in re-organising the structure/working methodologies/ linkage with the Security Services/Intelligence agencies.

43

Ibid. 4. Ibid. 5. 45 This work is focused on the SSR as it works in the ESDP framework. The Commission’s activities and tasks on SSR are not analysed. 44

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This long list of competencies enlarges ESDP activity in the SSR area and these latter results in a new EU field of intervention, which enriches the tasks of the EU’s external action instruments. x Moreover, the Council Conclusions on a Policy Framework for Security Sector Reform46 defined the core principles of the EU’s SSR activities in accordance with the SSR guidelines and principles adopted by the OECD.47 Participation of the interested actors to the processes of defining the SSR activities. x Inclusion of diverse security challenges facing state and populations as gender-sensitive security issues and the access to Justice; x Inclusion of civil society and non state actors; x Relevance of accountability and transparency standards of the security governance structures; x Relevance of the political dialogue on human rights, development and security concerns, with the interested countries.

These principles frame the EU SSR activities in a cooperative dimension which includes local actors and populations. Since “peacebuilders empower conflict-ridden societies to change themselves in an improving direction yet in doing so they necessarily impose political limits,”48 and since SSR includes a list of very sensitive sectors affecting personal freedoms and physical integrity, the involvement of those populations living in the targeted countries is a crucial instrument for avoiding the risk of a top down processes, it is necessary to lead to transformations that are locally-owned and sustainable. The main instrument used by the EU for its SSR actions are the civilian operations launched in the framework of the ESDP. Since the establishment of the ESDP, and the launch of the first ESDP mission in

46

Council of the European Union, Security and Development - Conclusions of the Council and the Representatives of the Governments of the Member States meeting within the Council, Brussels, 20 November 2007, 15097/07. 47 OECD: DAC Guidelines. 48 Merlingen M. and Ostrauskatê R., European Union Peacebulding and Policing, (2006), London Routledge, 3.

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2003,49 the EU launched sixteen civilian missions, seven military mission and one integrated civilian-military mission.50 The civilian missions represent the majority of the launched ESPD mission as far, and the EU’s role in conflict and crisis management is based mainly on non-military means. Moreover, SSR have emerged as the principal component of ESPD missions, as Table 1 suggests. Some missions were launched with an explicit SSR mandate, (EupolCongo,51 Eusec DR Congo,52 EU SSR Guinea-Bissau53), while others understood to include SSR related tasks in their mandate.54

Conclusions Since SSR has dramatically emerged as a key aspect of EU international activity since the end of 1990s, the EU has included SSR among the objectives of its external action. The EU strategy on SSR is in line with the extensive definition of the security sector as it has now been drawn by the international community, in particular by the OECD DAC. In the framework of the European integration process, the inclusion of 49

It was the civilian mission Proxima in FYROM. On this mission see Longo F. “Il Ruolo della Politica Europea di difesa e di sicurezza comune”, in L’Occidente Diviso. La Politica e le Armi, Colombo, A. ed., (Milano, Egea Bocconi Editore 2004), 69-101. 50 Data on ESPD operations are from the official site of EU: http://www.consilium.europa.eu/eeas/security-defence/euoperations.aspx?amp;lang=en. Data are updated at the July 2012. 51 Council Joint Action 2007/405/CFSP of 12 June 2007 on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo), OJ L 151, 13.6.2007, 46. 52 Council Joint Action 2005/868/CFSP of 1 December 2005 amending Joint Action 2005/355/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (DRC) with regard to setting up a technical assistance project on improving the chain of payments of the Ministry of Defence in the DRC, OJ L 318/29. 53 Council Joint Action 2008/112/CFSP of 12 February 2008 on the European Union mission in support of security sector reform in the Republic of GuineaBissau (EU SSR GUINEA-BISSAU) OJ L 40, 14.2.2008, 11. 54 In the table 1 ESPD missions are classified as SSR Missions not only in the case the SSR is listed as an official task, but even when mission’s task includes one or more sectors which are listed in the definition of the SSR as it results from the official documents.

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SSR among the EU’s external action tasks develops from either external or internal EU conditions. Within the context of global politics, the EU has refined its political paradigm of external intervention, by adopting a broader interpretation of peace and stability promotion, which has been developed by international institutions, mainly by the OECD. This interpretation considers not only the needs of the states and institutions, but also the well-being of peoples and populations as well as requiring development and respect for human rights and rule of law to be among the tasks of humanitarian intervention. Within the context of internal processes, the EU has steadily developed the AFSJ as one of the main instruments of its external policy, despite the high relevance that this policy-making domain has in EU domestic policies, in order to improve its capability to act as a stability promoter in the international system. Moreover, EU SSR activity seems to be based on a twofold aim: the first aim is the reconstruction of the institutional framework of the SS, with a view to assuring and/or increasing the effectiveness of the management of internal security with the view to providing a secure environment to the people. The second aim is to promote the development of SS policies compatible with human rights, humanitarian law, good governance, transparency and respect for the rule of law, in order to ensure that the reconstruction of institutional framework will be based on respect for citizens. In this framework, the ESDP civilian operations are at the very foundation of the SSR activity of the EU.

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Table 1. EU Civilian Missions 1 2 3 4 5 6 7 8 9 10 11 12 13

14 15 16

Name EUPM BiH

start 2003

EULEX Kosovo EUPOL COPPS EUBAM Rafah Eubam Mold/Uk

2008

EUMM Georgia EUJUST Themis Georgia Eupol Afghanistan Eujust LexIraq Aceh Indonesia Eupol RD Congo Eupol Kinshasa EUSEC Rd Congo

2008

2006 2005 2005

2004 2007 2005 2005 2007

End Ongoing (2011) Ongoing (2012) Ongoing Ongoing (standby) Ongoing (2011) Ongoing (2011) 2005 Ongoing (2013) Ongoing (2012) 2006

2005

Ongoing (2011) 2007

2005

2012

EU SSR GuineaBissau EUPAT Fyrom

2008

2010

2005

2006

Eupol Proxima Fyrom

2003

2005

Mission Police mission Rule of Law mission Police Mission Police Mission Borders Guard/Police Mission Civilian Monitoring Rule of Law Mission

strength 134 EU 151 LS 1650 EU 1200 LS 53 EU 33 LS 30

SSR X

100 EU 126 LS

---

266 EU 266 LS Not available

X

Police Mission Rule of Law Mission Monitoring Mission Police mission/SSR Police Mission advisory and assistance mission for SSR SSR

317 EU 193 LS 60 EU

X X

80 EU

----

38 EU 19 LS 30

X X

50 EU

X

8 EU 16 LS

X

police advisory team Police Mission

30 EU

X

200 EU

X

X X ---

X

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Bibliography Attinà F., La sicurezza degli stati nell’era dell’egemonia americana, Milano, Giuffrè, 2003. —. “Global power competition and the rise of minilateralism in Peace Operations”, in Attinà F. and Irrera D. (eds): Multilateral Security and ESDP Operations, London, Ashgate, 2010. Baldwin D., “Security Studies and the End of the Cold War”, in World Politics, 48(1), (1995), 117-141. —. “The concept of security”, in Review of International Studies, 23(1), (1997), 5-26. Bagayoko N., and Gibert M., The European Union in Africa: the linkage between Security, Governance and Development from an Institutional Perspective, IDS Working Paper n.284, (2007). Biava A., “The Emergence of a Strategic Culture within the Common Security and Defence Policy” 16 European Foreign Affairs Review, (2011), 41–58. Buzan B., People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era, 2nd ed., Boulder, CO, 1991. Checkel, J., “Norms, institutions, and national identity in contemporary Europe”, International Studies Quarterly, 43, (1999), 83-114. —. “‘Going Native’?” In Europe? Theorizing Social Interaction in European Institution” Comparative Political Studies, 36, (1-2), (2003), 209-231. Commission on Human Security, Human security now, N.Y. Commission on Human Security/UNOPS (United Nations Office for Project Services) 2003. Communication from the Commission to the Council and the European Parliament; A Concept for European Community Support for Security Sector Reform COM (2006) 253 final. Communication from the Commission to the European Parliament and the Council; The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, Brussels, 22.11.2010, COM(2010) 673 final. Conclusion of the UN Security Council in supporting Security Sector Reform, 20/02/2007. Council Conclusions on a Policy Framework for Security Sector Reform, 2736th General Affairs Council Meeting, Luxembourg, 12 June 2006. —. Council Joint Action 2008/112/CFSP of 12 February 2008 on the European Union mission in support of security sector reform in the

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Republic of Guinea- Bissau (EU SSR GUINEA-BISSAU) OJ L 40, 14.2.2008, 11. —. Council Joint Action 2007/405/CFSP of 12 June 2007 on the European Union police mission undertaken in the framework of reform of the security sector (SSR) and its interface with the system of justice in the Democratic Republic of the Congo (EUPOL RD Congo), OJ L 151, 13.6.2007, 46. —. Council Joint Action 2005/868/CFSP of 1 December 2005 amending Joint Action 2005/355/CFSP on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (DRC) with regard to setting up a technical assistance project on improving the chain of payments of the Ministry of Defence in the DRC, OJ L 318/29. —. Council of the European Union, EU Concept for ESDP support to Security Sector Reform, 12566/4/05, 13th October 2005. —. Council of the European Union, Security and Development Conclusions of the Council and the Representatives of the Governments of the Member States meeting within the Council, Brussels, 20 November 2007, 15097/07. Duchene F, “Europe’s Role in World Peace”, in Europe Tomorrow: Sixteen Europeans Look Ahead, Mayne R. ed., London, Fontana, 1972. Ginsberg, R. H., The European Union in International Politics: Baptism by Fire, New York: Rowman and Littlefield, 2001. Higgott, R., “The Theory and Practices of Global and Regional Governance”, in: European Foreign Affairs Review, 10, (2005) 575– 594. Hill, C. and Smith, K.E. eds., European Foreign Policy: Key Documents. London: Routledge, 2002. Internal Security Strategy in action, MEMO/10/598. JHA Council Internal Security Strategy for the European Union: Towards a European Security Model, Brussels, 23 February 2010. Law D., Myshlovska O., “The Evolution of the Concepts of Security Sector Reform and Security Sector Governance: the EU perspective”, in The European Union and the Security Sector Reform, Spence D., Fluri P. eds. London: John Harper Pub, 2008. Longo F., “The Mediterranean Dimension of the Area of Freedom Security and Justice”, in: The External Dimension of the European Union's Area of Freedom Security and Justice, Cremona, M., Monar, J., Poli, S. eds., Berne: Peter Lang, Editions Scientifiques Internationales, 2011.

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—. “Governance in International Relations” in: Security Identity and the Southern Caucasus, the Role of the EU, the US and Russia, Longo F., Geistlinger M., Lordkipanidze G., Nasibli Y. eds. Vienna. Neuer Wissenschaftlicher Verlag, 2007. —. “Il Ruolo della Politica Europea di difesa e di sicurezza comune”, in L’Occidente Diviso. La Politica e le Armi, A. Colombo, ed., Milano, Egea Bocconi Editore, 2004. Meharg S. and Arnusch A., Security Sector Reform: a case study approach to Transition and capacity building, PKSOI Papers, 2010. Merlingen M. and Ostrauskatê R., European Union Peacebulding and Policing, London Routledge, 2006. Monteleone C., Le Relazioni Transatlantiche e la Sicurezza Internazionale, Milano, Giuffrè, 2003. Nye, J. S. Jr. and Lynn-Jones, S. M., “International Security Studies: A Report of a Conference on the State of the Field” International Security 2. (1988), 5-27. OECD: DAC Guidelines and Reference Series Security System Reform and Governance A DAC Reference Document, OECD 2005, http://www.oecd.org/dataoecd/8/39/31785288.pdf. Sabiote M. A., “New tasks for Peace Operations? The interlinkage between SSR and Integrated Peace Missions”, in Multilateral Security and ESDP Operations, Attinà F. and Irrera D. eds: London, Ashgate, 2010. Schroeder U., “EU Security Sector reform: a Research Agenda”, in The European Union and Security Sector Reform, Britz M. ed., Vallingby, Swedish National Defense College, 2007. Smith M. E., “Toward a theory of EU foreign policy-making: multilevel governance, domestic politics and national adaptation to Europe’s common foreign and security policy”, in Journal of European Public Policy, 11(4), (2004). Solana J., A Secure Europe in a Better World, European Security Strategy, Brussels, 12 December 2003. The Hague Programme: ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice”, COM(2005) 184 final OJ C 236, 24.9.2005. Walt S., “The Renaissance of Security Studies”, in International Studies Quarterly, 35 (2), (1991), 211-239.

CHAPTER ELEVEN EUROPEAN POLICE COOPERATION FRAMEWORKS: A MODEL FOR AUSTRALIAN INTERGOVERNMENTAL COORDINATION? SASKIA HUFNAGEL

Introduction A considerable body of academic literature has examined police cooperation in the EU, encompassing, for example, the disciplines of police and political science, anthropology, criminology, sociology, law and history, indicating that the topic has been - and still is - of great interest to a wide range of researchers. Some of their work has been used to improve cross-border policing practice in the EU, other works have focused on establishing a theoretical framework for EU policing studies. What has, however, so far not been established is how the lessons learned from EU police cooperation can potentially be used to improve policing in other political systems consisting, similar to the EU, of a number of distinctly separate jurisdictions. The present study will, while well aware of the existence of other federal jurisdictions, such as Canada and the US, focus on a comparison between the EU and Australia, as systems similarly consisting of independent criminal law jurisdictions. The choice of jurisdictions was influenced by the funding provided by the European Commission and the Australian National University, to conduct this research.1

1 The research presented in this chapter builds on the author’s broader study comparing EU and Australian cross border law enforcement strategies, Hufnagel,

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In this study it was concluded that police cooperation strategies in the EU could advance Australian approaches, and vice versa. The two most important EU strategies potentially of value for policing in Australia are: 1) EU legal frameworks adopting and integrating regional (bilateral/multilateral) formal (legally binding) and informal cooperation frameworks between a select number of EU member states into EU level legislation; 2) Regional cooperation frameworks between a select number of member states, such as the Nordic Police Cooperation Scheme.

The present chapter addresses these two strategies of EU cross-border law enforcement, and elaborates how Australian states and territories could benefit from them, with a view to the intergovernmental coordination of police cooperation. The first part following the introduction sets the scene and gives an overview as to why and how the two entities can be compared. In particular the potential problems resulting from the Australian system of cooperative federalism for police cooperation are addressed. The next part of the chapter provides a background to the first EU strategy, set out above, and assesses its applicability in the Australian context. In particular, the impact of “formal” and “informal” regional and EU level frameworks on crossborder policing practice is taken into account. Considering that a legal framework is only as good as its implementation and application in practice, the study relies on practitioner perspectives drawn from interviews conducted for the underlying broader study, with EU and Australian practitioners in the field. Lastly, this chapter assesses whether a regional EU cooperation framework could be beneficial to Australian intergovernmental coordination and if so, how this could be achieved. With regard to terminology it needs to be clarified that the terms “formal” and “informal” cooperation strategies in this research have been attributed particular meanings. Formal strategies are defined as those based on binding legal frameworks, while informal strategies are considered to be those based on non-binding legal frameworks, or on no valid legal basis at all. This distinction becomes relevant here as many informal strategies exist in the Australian context that work very well on the level of intergovernmental cooperation. However, the present research comes to the conclusion that formal cooperation frameworks, whether at a S., Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia (Farnham: Ashgate, 2013).

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regional or national level, are beneficial even in the Australian context as portrayed through the EU experience.

The Challenge of Australian Intergovernmental Coordination Cross-border crime has influenced the formation of police cooperation strategies in both Australia, (as a federal system consisting of nine different and mainly independent criminal jurisdictions), and the EU. However, the most prominent difference between the two systems is the level of formalisation applied to achieve cooperation. Between Australian states and territories the predominant models of cooperation are informal structures. These rely on police-to-police cooperation through informal networks and agreements, such as Memoranda of Understanding (MOU). Australia is a federation of states comprised of six states, two territories, and a federal jurisdiction, where each have their own criminal and criminal procedure laws, and are policed by their own police forces.2 The possibilities of creating federal laws are limited by the constitution, which gives power to legislate in the area of criminal law and policing to the states.3 Police cooperation between the states and territories predominantly takes place at the informal police-to-police level, though in the last decade a small number of bilateral and multilateral formal initiatives have evolved, such as the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) lands cooperation between South Australia (SA), Western Australia (WA) and the Northern Territory (NT). This initiative is the first - and so far only - formal multilateral police cooperation framework in Australia. None of these initiatives have, however, been adopted at the federal level, as was the case in the EU context. At the Australian federal level, policing across various jurisdictions is facilitated by two federal law enforcement agencies: the Australian Federal Police (AFP) and the Australian Crime Commission (ACC). It can generally be said that in the Australian intergovernmental context, fewer attempts to harmonise cooperation mechanisms and cross-border policing practice, 2 Bronitt, S., “The Criminal Law of Australia” in The Handbook of Comparative Criminal Law, Dubber M. and Heller K. eds., (Stanford: Stanford University Press, 2009) 2, 4. 3 While Australian states have sovereignty under ch. V, s. 108 of the Constitution, the two territories (Northern Territory and Australian Capital Territory) are more dependent on the federal state. However, the territories also have their separate jurisdiction, police and criminal legislation.

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both formal and informal, exist than in the EU between sovereign nation states. Among EU member states, police cooperation has developed informally, as well as through a considerable number of formal structures. In this context, many bilateral and multilateral cooperation mechanisms, some of which were informal and others based on binding legal frameworks, need to be distinguished from the mainly formal EU initiatives. Close bilateral and multilateral cooperation between EU member states started in the 1950s and some of these formal and informal frameworks influenced later EU legislation in the field.4 The EU developed a number of binding legal frameworks with a view to facilitating police cooperation most prominently since the 1990s. The most significant of these is probably the Convention Implementing the Schengen Agreement of 1990 (Schengen Convention).5 Furthermore, the police agency, Europol, was established, which, though lacking its own enforcement powers, has the potential to coordinate inter-jurisdictional cooperation between EU member states. So, despite the importance of informal police-to-police cooperation, cross-border policing in the EU is more formalised by now than police cooperation between sovereign nation states generally. With a view to advantages of and obstacles to Australian police cooperation, it first needs to be stated that Australian police forces do not only need to cooperate with foreign nation states, but also among the 4

See with regard to the incorporation of the Benelux Treaty on Extradition and Mutual Legal Assistance in Criminal Matters of 1962 into the Schengen Convention, for example, Fijnaut, C., “Police Cooperation and the Area of Freedom, Security and Justice” in Europe’s Area of Freedom, Security and Justice Walker N. ed., (Oxford: Oxford University Press, 2004) 241, 248-249. 5 Convention Implementing the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, signed 19 June 1990, [2000] OJ L 239/19 (entered into force 1 September 1993); henceforth also “Schengen Convention”; note that the Convention is only being enforced since 1995 and was extended to all EU member states in 1998 (subject to UK, Danish and Irish opt outs) via the Treaty of Amsterdam and its Protocol Integrating the Schengen Acquis into the Framework of the European Union, [2000] OJ L 239/1; D’Oliveira, H.U.J., “Schengen Agreements” in Butterworth’s Expert Guide to the European Union, Monar, J. Neuwahl, N. O’Keeffe D. and Robinson W. eds., (London: Butterworth, 1996) 268, 268-269.

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different Australian jurisdictions. Since Australia became a federation in 1901 different strategies have been created to enable cooperation. The most significant national strategy to overcome cross-jurisdictional issues is the creation of federal law enforcement agencies. While this chapter focuses on intergovernmental agency-to-agency cooperation, it needs to be stressed that, similar to the US and Canada, federal law enforcement strategies across jurisdictions have a major impact on police cooperation in Australia. For example, the policing of terrorism and drug/organised crime offences, fall under the competences of federal agencies. It can therefore be assumed that the existence of these agencies does, to a certain extent, make intergovernmental cooperation between states and territories redundant. Focusing on the formality or informality of strategies within the Australian system it is remarkable that even Australia’s first “federal” law enforcement agencies had a rather weak, if any, legal basis. The first federal agency to be established was the Commonwealth Police Force. It had competence in relation to offences against federal law contained in the War Precautions Act 1914.6 However, the legal basis for this law enforcement strategy was only created 40 years later by the Commonwealth Police Act 1957. Similarly, the Commonwealth Investigative Branch, later called Commonwealth Investigative Service (CIS),7 was not established by an act of parliament; its only legal basis was an administrative direction.8 In 1925, the Peace Officer Guard (POG) was created, which was also headed by the Director of the CIS.9 The POG found its legal basis in a widely debated Commonwealth Act, the Peace Officers Act 1925 (Cth),10 which assigned the force the responsibility of protecting Commonwealth property in the times of civil unrest.11 However, due to the rushed nature of that Act, it has been claimed that the mandate and functions of federal peace officers were never clear.12 In 1960, the two services were amalgamated by the aforementioned 6 Milte K.L. and Weber, T.A., Police in Australia: Development Functions and Procedures (London: Butterworths, 1977) 29, 30. 7 Dupont, B., Construction et Réformes d’une Police: Le Cas Australien (17882000) (Paris: L’Harmattan, 2002) 145. 8 Milte and Weber, Police in Australia, 31. 9 Peace Officers Act 1925 (Cth). 10 Byrnes, J., “The Body Snatchers – Peace Officers and the Peace Officers Act 1925” Platypus Magazine 99 (2008), 28. 11 Ibid. 31. 12 Ibid. 28.

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Commonwealth Police Act 1957. This marked the establishment of COMPOL,13 the first federal police agency with powers based on a formal legal framework.14 Like the EU, Australia has experienced an increased emphasis on the importance of coordinating policing efforts between jurisdictions during the second half of the 20th century.15 A particularly important stimulus for this development in the Australian context followed the bombing of the Hilton Hotel in Sydney, in 1978, which led to the creation of the AFP, and several other national police services.16 Unlike its less stable predecessors, the AFP was established with a solid legal basis, the Australian Federal Police Act 1979 (Cth), which also clearly determines its competences. The creation of the AFP was justified as a new “supra-jurisdictional” institution, established with a secure legal framework, with an enforcement mandate that did not stop at state and territory borders, at least in relation to those offences that fell within federal competence, such as terrorism.17 Apart from this “supra-jurisdictional” effort to coordinate law enforcement across Australian state and territory borders there are also informal intergovernmental police cooperation mechanisms between all states and territories,18 and many bilateral and multilateral informal cooperation initiatives.19 All of these cooperation efforts, have been 13

Australian Commonwealth Police. Milte and Weber, Police in Australia, 31. 15 See Etter, B., “Policing: Reflecting on the Past, Projecting into the Future” in Policing the Lucky Country, Enders M. and Dupont B. (eds), (Sydney: Hawkins Press, 2001) 22, 23-24. 16 See Australian Federal Police, History of the AFP (2010) . 17 Dupont B., Construction et Réformes d’une Police, 156; see also Bronitt S. and McSherry, B., Principles of Criminal Law (Oxford: Oxford University Press, 3rd ed, 2010) 985-986. 18 The earliest and probably most significant informal Australian police cooperation strategy at the national level was the 1903 Conference of Australian Police Commissioners. This regular meeting of regional senior law enforcement officials continues to this day, but has changed its name and constitution several times. Most recently it has been rebadged from the “Conference of Commissioners of Police in Australasia and the South West Pacific Region” to the “Australia and New Zealand Police Commissioners Forum”. 19 See Hufnagel, S., “Cross-Border Police Cooperation: Traversing International and Domestic Frontiers” Criminal Law Journal 333 (2011) 339-342. 14

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classified as “strategies” for the purpose of this study if their aim is the enhancement of cross-jurisdictional policing. Cross-border cooperation between state and territory police is, furthermore, significantly supported by legal harmonisation initiatives in the area of criminal procedure, and the federalisation of offences. Model laws applicable to all jurisdictions were developed by a Joint Working Group (JWG) on National Investigative Powers and published in a Report of the Leaders Summit on Terrorism and Multijurisdictional Crime, Cross-Border Investigative Powers for Law Enforcement in November 2003. A broad range of model laws potentially applicable to all jurisdictions extending beyond the already existing mutual recognition of forensic procedures, and search warrants between states and territories, is currently being implemented, and will include surveillance devices and controlled operations.20 Coming back to the focus of this chapter, intergovernmental cooperation, Australian states and territories frequently establish informal bilateral and multilateral initiatives to counter cross-border crime, mostly in the form of ad hoc memoranda of understanding (MOU) that apply to specific investigations only. A common cross-jurisdictional cooperation strategy is the use of Joint Investigation Teams (JITs). These, for example can be set up when needed under MOU and the parties involved can also encompass enforcement agencies other than police, such as social services.21 The JIT cooperation between state and territory police, federal agencies, and nonenforcement agencies, has been described by practitioners as working well, despite the lack of a stable legal framework.22 Positive JIT experiences were even mentioned in parliamentary debates on the Police Legislation Amendment (Recognised Law Enforcement Officers) Act

20 Standing Committee of Attorney General and Australasian Police Ministers Council Joint Working Group on National Investigations, “Leaders Summit on Terrorism and Multijurisdictional Crime – Cross-Border Investigative Powers for Law Enforcement: Report” (Australian Government, Canberra, 2003) v-vi; One of the few states to have implemented the model legislation was Victoria: see Victorian Crimes (Controlled Operations) Amendment Act 2008 (Vic). 21 See, e.g., Memorandum of Understanding between the Department of Child Protection Western Australia and Western Australia Police in Relation to The Family and Domestic Violence Co-location Model (2009) http://www.community.wa.gov.au/NR/rdonlyres/596E138E-8E5141F2A0749883794 C3246/0/FDVMOUCPR34b.pdf. 22 Interview CrimTrac, December 4, 2009; Interviews Australian Federal Police, December 5, 2009, May 14 and 25, 2010; Interviews Victoria Police, December 6, 2009, April 7, 2010; Interview Queensland, May 7, 2010.

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2010 (NSW).23 In these debates it was pointed out that the New South Wales Police Force has good working partnerships with other Australian jurisdictions, resulting in successful cross-border investigations, for example with the Australian Capital Territory Policing Drug Investigations Team.24 The flexibility granted to law enforcement and non-law enforcement personnel under ad hoc MOU appears to enhance cooperation in Australia. However, these flexible frameworks do not offer much stability, unlike the EU initiative on JITs governed by the EU Convention on Mutual Assistance in Criminal Matters 2000.25 Nevertheless, one could argue that a well-working JIT promotes security, regardless of its regulation by a common legal framework.26 The 2000 Mutual Assistance Convention in the EU, by promoting a common set up, may (somewhat paradoxically) even hamper cooperation by limiting the range of operational choices for police. While the JITs under the 2000 Convention can only be created through a rigid bureaucratic process, the old-established common investigation mechanism of parallel investigation, in particular between neighbouring countries with frequent cross-border contacts, was perceived by practitioners to allow for more flexibility.27 In Australia the lack of legal frameworks has been described by practitioners as hampering coperation.28 One interviewee noted that agreements were only easily reached on mutually beneficial arrangements, for example, at common state borders, and that jurisdictional proximity, 23 Legislative Assembly, Motion Police Legislation Amendment (Recognised Law Enforcement Officers) Bill, Hansard, Parliament of NSW, 22 June 2010. 24 Ibid. 25 EU Council Act of 29 May 2000 Establishing in Accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, [2005] OJ C 197/3 (entered into force 23 August 2005); henceforth also “2000 Mutual Legal Assistance Convention” or simply “Mutual Legal Assistance Convention”. 26 In the EU, the 2000 Mutual Assistance Convention provides a common legal framework for the setting up of JITs, but the acceptance of the strategy is quite limited, see Block‚ L., “Combating Organised Crime in Europe: Practicalities of Police Cooperation” Policing 2 (2008) 79. 27 Hufnagel, Policing Cooperation Across Borders, Chapter 4, 3.2.2. 28 Interviews Australian Federal Police, July 10, 2008, December 5, 2009, August 11, 2010, May 14 and 25, 2010; Interviews Victoria Police, December 6, 2009, April 7, 2010; Interview Queensland May 7, 2010; Interview CrimTrac, May 10, 2010.

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common problems, a common need, a density of population, and frequent police interaction, promoted cooperation in this context.29 Another practitioner noted that small regions and bilateral and multilateral cooperation always worked well in Australia, as people knew each other across the border.30 It was further specified in relation to intergovernmental cooperation that the personal level was generally very important and that informal interaction and contacts with colleagues were crucial to promote cooperation. The same interviewee also pointed out that problems only emerged when a decision on the personal level was carried up the hierarchy to the next level.31 The lack of legal frameworks therefore seems to predominantly hamper vertical cooperation, cooperation between non-neighbouring states and jurisdictions with generally less frequent cross-border policing interactions, or a fast staff-turnover. This suggests that regional cooperation is usually more effective than broader horizontal (intergovernmental) or vertical (federal) cooperation. An example for successful regional cooperation is that routinely, NSW police officers stationed in border towns and cities join forces with interstate police in the conduct of routine patrols in their area,32 one of their frequent partners being Victoria police. Their collaborative efforts ensure that the needs of their communities are served efficiently.33 However, while successful bilateral policing cooperation occurs in Australia on a day-to-day basis, and in relation to some of the most common offences, cross-border operations are rarely recognised in either academic or media commentary.34 Clearly, an increased official recognition of the importance of this activity in the Australian context, among politicians, policy-makers and the wider community, would serve to bolster practitioner enthusiasm for, and commitment to, bilateral and multilateral cooperation, as well as 29

Interview CrimTrac, May 10, 2010. Interview Victoria Police, December 6, 2009. 31 Ibid. 32 Interview Australian Federal Police, July 10, 2008; Interview Victoria Police, December 6, 2009, April 7, 2010; Interview Queensland, May 7, 2010; Interview CrimTrac, May 10, 2010. 32 Interview CrimTrac, May 10, 2010. 33 Ibid. 34 A rare exception is: Legislative Assembly, Motion Police Legislation Amendment (Recognised Law Enforcement Officers) Bill, Hansard, Parliament of NSW, 22 June 2010; See also The Far North Coaster, “Queensland Governor Recognises Bravery of Tweed/Byron Police Officers” (04 May 2010) http://www.farnorthcoaster.com.au/news/8532/queensland-governor-recognisesbravery-oftweedbyr on-police-officers. 30

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the acknowledgement of such efforts through legislation, for example by establishing more permanent legal frameworks. Returning to the legal basis of police cooperation, there are not only ad hoc MOU regulating bilateral and multilateral cooperation in Australia, but also permanent MOU. The most prominent permanent MOU at the moment is the legal basis for the CrimTrac Agency, an agency created under a multilateral MOU between all states and territories and the Commonwealth, to facilitate information sharing.35 Practitioners interviewed in relation to CrimTrac are in favour of the establishment of firmer legislation regulating CrimTrac, and the codification of the MOU in legislative form is being discussed.36 Permanent, but informal, cooperation exists in all border regions, for example, at the Queensland-NSW and the Victoria-NSW border. In response to cross-border policing problems at the Queensland-NSW border, there have recently been calls for the cooperation to be formalised.37 The Victorian-NSW Chief Executives of Police Meeting has initiated formalised cooperation in the form of common Cross-Border Policing Principles, a Police Working Group Agreement and an Agreement on the Policing of the Murray River.38 However, while the Victorian and NSW Ministers for Police had planned the signing of a Cross-Border Policing Agreement in 2008, the signing has not yet taken place.39 Reasons given for this delay, as noted by one of the Ministers in parliamentary debate, were related to the need to clarify the powers of special constables and 35

Memorandum of Understanding between New South Wales Police, Victoria Police, Queensland Police, Western Australia Police, South Australia Police, Northern Territory Police, Tasmania Police, ACT Policing, Australian Federal Police and The CrimTrac Agency (2009). 36 Interviews CrimTrac, December 4, 2009; Interview Australian Federal Police, July 10, 2008; Interview Queensland, May 7, 2010. 37 Noffke, K., “Border Divides Police Powers,” Tweeds Daily News, Rivendell, NSW, 27 April 2010. 38 New South Wales Chief Executives’ Committee and the Victorian State Coordination and Management Council, Outcomes of the 2008 New South WalesVictoria Chief Executives’ Cross-Border Issues Meeting, http://www.dpc.vic.gov.au/CA256D800027B102/Lookup/CrossBorderSenior OfficialsMeeting/$file/Communique%20NSW%20Victoria%20Senior%20Official s%20Cross%20Border%20Issues%20Meeting.DOC, 2. 39 Legislative Assembly, Statement by Greg Aplin (Albury), Legislative Assembly, Motion Police Legislation Amendment (Recognised Law Enforcement Officers) Bill, Hansard, Parliament of NSW, 22 June 2010.

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make necessary amendments to legislation in both jurisdictions. However, as the Minister noted, the aim was to standardise existing practices to provide consistent decision-making and to resolve or minimise any conflicts.40 The result of the consultation process around the NSW-Victorian Agreement is the recent Police Legislation Amendment (Recognised Law Enforcement Officers) Act 2010 (NSW). During the passage of the legislation, it was noted that the positive outcome was not merely the product of intergovernmental negotiation alone.41 Greg Aplin, Member of the NSW Parliament, for the NSW-Victorian border region of Albury, underscored the important role of the local police in demonstrating the value of cross-border powers to the local affected electorates: “I note that it is due only to the professionalism of our local police in both New South Wales and Victoria that they continued to work so well together to overcome some border issues while we were waiting for action from the New South Wales Government to formalise these arrangements. I asked the Minister what joint operations would be introduced or facilitated under the proposed agreement and in 2008 the Minister responded and said that the cross-border policing agreement aimed to formalise and standardise existing practices to provide consistent decision-making in response to incidents or emergency situations, particularly in remote areas, and to resolve or minimise any conflicts that may arise.”42

From this example, the problems of police cooperation in Australia are brought into sharper focus. Practitioners struggle to develop effective cross-border policing in the Albury-Wodonga area (NSW-Victoria) and while achieving some successes similar to EU regional initiatives and advanced bilateral legislative initiatives, respective state governments are weakly committed and opposed to applying these “experiments” to other regions. The following statement from the local backbencher representing the border region in NSW Parliament hints that a development from formal and informal, bilateral and multilateral cooperation initiatives towards national laws - similar to the EU - might be difficult to achieve in Australia: “Subsequently, I asked the Minister whether it was intended that the crossborder policing agreement would be extended to other border areas after a 40

Ibid. Ibid. 42 Ibid. 41

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trial period. The answer was an emphatic ‘No’. I think that with the Police Legislation Amendment (Recognised Law Enforcements Officers) Bill 2010 the Minister may well consider extending that cross-border agreement because when this bill is enacted he will have the authority to note the powers of the special constables. I would like to think that the cross-border policing agreement could be extended to all borders of New South Wales to enable the police to operate that much more effectively with their neighbouring police forces in the other jurisdictions. I do not oppose this bill. I look forward to its implementation in the border region where my electorate lies”.43

It follows notwithstanding the emphatic ministerial “no”, that legislation adopted in NSW and practiced with Victoria might, in fact, provide the incentive and template for further harmonisation. More importantly, it leads to the conclusion that learning from processes of formalisation in the EU can be beneficial to Australia. The following part of this chapter examines strategies applied in the EU, and in particular the adoption of EU legislation on police cooperation, as well as the incorporation of regional practices into this legislation with a view to its advantages for Australian law enforcement cooperation.

Application of EU Legal Frameworks to Australia The most prominent EU legal frameworks highlighted in this chapter are the Schengen Convention and the 2000 Mutual Assistance Convention mentioned above. However, before turning to EU legislation, it is important to focus on regional strategies, and how their development might have influenced the establishment of EU legal frameworks. In the 1950s the first formalised structure of police cooperation developed between the Nordic states of Europe. This cooperation mechanism is outlined here in some detail, as the Nordic countries display similarities to Australia, and their cooperation framework could be used as the model for Australian formalisation of police cooperation mechanisms. The Nordic countries - Denmark, Finland, Norway, Sweden and Iceland - concluded the Nordic Passport Control Agreement (NPCA) in 1957,44 43

Ibid. Also the Convention Between Denmark, Finland, Norway and Sweden Concerning the Waiver of Passport Control at the Intra-Nordic Frontiers, signed on 12 July 1957; henceforth also “Nordic Passport Convention”; Iceland acceded to the Convention on 24 September 1965; The Convention has been amended by an

44

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through which the participating countries abolished passport controls at their common borders.45 It developed from a pre-existing history of bilateral, and multilateral, agreements between these states, on the subject of police cooperation.46 The NPCA established a system similar to the Schengen Convention long before other European states initiated closer cooperation.47 The informality that reigns within this first formal European cooperation set up is nevertheless striking. Nordic cooperation, relies predominantly on personal contacts, informal networks and informal modes of cooperation, which has been claimed to be the recipe for its success.48 Notwithstanding the emphasis on informal methods, Nordic cooperation has even been labelled “best practice” within the EU.49 It has also partly influenced the shape of harmonised legal frameworks within the EU. The establishment of the Schengen Convention, has, for example, partly been triggered by the success of the Nordic cooperation model.50 Steps towards implementing a Nordic model more widely across the EU were taken in 2005, when Sweden proposed the Draft Framework agreement of 27 July 1979, supplemented by the agreements of 2 April 1973 and of 18 September 2000. 45 Joubert and Bevers, Schengen Investigated, 31; also the Nordic Passport Convention. 46 Das D.K. and Kratcoski, P.C., “A World Perspective” in International Police Cooperation: A World Perspective Koenig D.J. and Das D.K. eds. (Oxford: Lexington Books, 2001) 3, 7. 47 A more developed regional police and judicial cooperation framework was established in 1962, the Nordic Cooperation Agreement (NCA), which led to the establishment of the Nordic Police and Customs Cooperation (in Norwegian: PTN) in 1984. The parties to the PTN agreed upon a common instruction manual incorporating basic guidelines for police cooperation applicable to all Nordic countries. The Nordic Cooperation Agreement only provided a broad legal framework that has been further developed by police practitioners in the Nordic states and which now functions as an effective set of common working practices. 48 Takala, H., “Nordic Cooperation in Criminal Policy and Crime Prevention”, Journal of Scandinavian Studies in Criminology and Crime 5 (2005) 131, 131-133; Larsson, P. “International Police Cooperation: A Norwegian Perspective” Journal of Financial Crime 13 (2006) 456, 459-460. 49 General Secretariat, EU Schengen Catalogue, Volume 4, Police Cooperation: Recommendations and Best Practices (Council of the European Union, 2003) 16. 50 Bertozzi, S., “Schengen: Achievements and Challenges in Managing an Area Encompassing 3.6 million km2,” (Working Document 284, Centre of Excellence in Policing and Security, Griffith University, Brisbane, 2008) 3.

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Decision on Simplifying the Exchange of Information and Intelligence51 to the EU Council. This proposal found great resonance at EU level and the so-called “Swedish Initiative” was adopted by the end of 2006.52 It is often claimed by commentators that the success of the Nordic model of cooperation was facilitated by the similarities in laws, languages, cultures and histories of the participating countries.53 It has been suggested that the Nordic model of cooperation would not be possible on an EUwide, or international scale, because the differences between other EU member states are too great.54 The high levels of police cooperation between Nordic countries, based on a basic common framework, relies, in particular, on long-established trust between police agencies, and the inherent similarities of the Nordic legal systems.55 It would logically follow that the absence of socio-cultural and ethnic barriers is an enabler of police cooperation. In other words, the similarities of police organisations, criminal laws and procedure, as well as culture and language between Australian law enforcement agencies, should be an enabler of trust, and promote cooperation. A highly formalised structure for this cooperation is not required, following the Nordic model, as possibilities of infringing procedural laws is low due to the similarities of norms police in all participating systems need to obey. While the Nordic model will later be referred to as most applicable regional model for Australian law enforcement cooperation, other successful multilateral cooperation mechanisms between groups of EU 51 Council of the European Union, Draft Framework Decision on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, in Particular as Regards Serious Offences Including Terrorist Acts, [2004] Doc 10215/04, henceforth also “Draft Framework Decision on Simplifying the Exchange of Information and Intelligence”. 52 Council Framework Decision 2006/960/JHA on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, [2006] OJ L 386/89. 53 Joubert C. and Bevers, H., Schengen Investigated: A Comparative Interpretation of the Schengen Provisions on International Police Cooperation in the Light of the European Convention on Human Rights 31; Das and Kratcoski, “A World Perspective”, 7. 54 Larsson, “International Police Cooperation” 461-464. 55 Ibid. 462, further states that the systems and cultures are in fact not that similar between the Nordic countries and that the French, Italian and Spanish systems in fact show more similarities in culture and organisation.

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member states today include the 1968 Cross Channel Intelligence Conference between the United Kingdom, France, Belgium and the Netherlands; the 1962 Treaty on Extradition and Mutual Legal Assistance in Criminal Matters between the Benelux countries; NeBeDeagPol,56 an informal police cooperation initiative between the Netherlands, Belgium and Germany established in 1969; and about 40 Police and Customs Cooperation Centres (PCCCs)57 operational in most border regions of the European Union (EU).58 These diverse regional (formal and informal) strategies form a patchwork of cooperation mechanisms throughout the EU, but have provided the platform for the 1990 Schengen Convention, the most comprehensive legal framework on police cooperation in the EU. Regional, formal and informal, cooperation mechanisms thereby contributed to the formalisation of EU strategies. In particular NeBeDeagPol and the Benelux Treaty 1962 laid the foundation and were incorporated into the 1990 Convention. Harmonised legal frameworks are a prominent promoter of cooperation in the EU context. It has been stated at the outset that such frameworks could potentially be beneficial to Australian police cooperation. However, two main types of legal frameworks in the EU need to be distinguished: x broad legal frameworks, developed through a bottom-up process, leaving the establishment of procedural solutions to the member states, such as the Schengen Convention;

56

The official German translation of the acronym NEBEDEAG-Pol, is “Arbeitsgemeinschaft der Leiter der belgischen, niederländischen und deutschen Polizeibehörden im Rhein-Maas-Gebiet” - Association of Belgian, Dutch and German Chiefs of Police in the Rhine-Meuse Region - with the addition of ‘e.V.’ (registered association), for short also “Arbeitsgemeinschaft der Polizeibehördenleiter der Euregion Maas-Rhein” (Association of the Chiefs of Police in the Meuse-Rhine Euroregion); see Spapens T. and Fijnaut, C. Criminaliteit en Rechtshandhaving in de Euregion Maas-Rijn (The Hague: Intersentia, 2005) 3. 57 PCCCs are by now a crucial cross-border policing strategy in the EU. About 40 PCCCs and about 16 “joint police facilities” (with less operational influence) have been established throughout the EU today. The first Centre was established between France and Germany and became operational in 1999. Almost simultaneously a Centre was developed between the Netherlands and Belgium. 58 Felsen O., “European Police Cooperation: The Example of the German-French Centre for Police and Customs Cooperation Kehl (GZ Kehl)” in Cross-Border Law Enforcement Regional Law Enforcement Cooperation – European, Australian and Asia-Pacific Perspectives Hufnagel S, Bronitt S and Harfield C eds., (New York: Routledge, 2012), 73.

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x tighter legal frameworks developed through a top-down process, suggesting procedural and operational rules to member states’ cooperation, such as the EU Convention on Mutual Assistance in Criminal Matters 2000.

The efficiency of these legal frameworks was perceived differently by practitioners, which should be taken into account when attempting to inform possible Australian processes to establish legal frameworks. The Schengen Convention, which is a focus of this chapter as it was established through incorporation of regional formal and informal cooperation initiatives, was particularly developed to compensate for the removal of general police controls at border crossings in the EU.59 While the situation triggering its establishment is comparable to the removal of borders between the Australian jurisdictions, no similar legislative responses to internal security resulted in the federal context. However, both systems established a patchwork of mutual recognition, the EU under legal frameworks, Australia mainly under model laws. Australia and the EU thereby created the opportunity for all their constituent entities to establish systems of mutual recognition, but only some states seized the opportunity. State responses to legal formality are hence equally inconsistent in both systems, and it is questionable whether the introduction of legal frameworks, similar to the EU model, would be beneficial in the Australian context. According to the interviews with Australian practitioners, legal harmonisation and even uniformity is desirable.60 However, the Schengen Convention only formulates particular aims, and provides a legal basis for cooperation in Articles 39-47 that is far from creating legal uniformity, and might therefore not be required in a federal context. Australian states and territories are free to cooperate and conclude bilateral and multilateral agreements as they wish. Unlike EU member states, they do not need the legitimisation of an overarching legal framework to do so. Through other processes, such as model laws, Australian states have already established more advanced systems of mutual recognition than the EU. Furthermore, centralised systems of information exchange and a federal police with 59

Mitsilegas, V., EU Criminal Law (London: Hart, 2009) 7-8, 35. Interviews Victoria Police, July 30, 2009, December 6, 2009; Interviews CrimTrac, December 4, 2009, May 20, 2010; Interviews Australian Federal Police, December 5, 2009, May 25, 2010, August 11, 2010; Interview Queensland, May 7, 2010. 60

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national enforcement powers are in place. Multilateral information systems (similar to the Schengen Information System61 or Prüm initiatives62) between states and territories, promoted by a common framework are also not likely to further promote information exchange in Australia. CrimTrac already operates in a more advanced fashion and is an accepted centralised system. The possibility of intergovernmental cooperation in Australia has therefore been replaced by more advanced federal initiatives compared to the EU and legal frameworks promoting police cooperation might not be necessary. Also, the priority setting for policing entailed in EU legal frameworks is realised in the Australian context, by publishing the “Directions in Australasian Policing,” which present a framework for cooperation and partnerships.63 A more binding legal framework might therefore be futile to achieve cooperation aims. Cross-border pursuit, as regulated in Article 41 of the Schengen Convention, is carried out in Australia by “special constables”, a technique far more advanced and harmonised than regional solutions under European frameworks. Surveillance is still an issue in both systems, but will in Australia – similar to the Schengen Convention – be regulated under model laws introducing mutual recognition between Australian jurisdictions. A legal framework similar to the Schengen Convention appears therefore not needed in this area.

61 The SIS works on a “hit”/ “no hit” basis and alerts generally concern immigration data and data related to police and judicial cooperation in criminal matters. With a view to police and judicial cooperation, the alerts concern persons wanted for extradition within the Schengen area, missing persons, wanted persons (as witnesses or for purposes of prosecution or enforcement of sentences), persons or vehicles to be placed under surveillance, or subject to specific checks, and objects sought for the purposes of seizure or use in criminal proceedings. 62 Council of the European Union, Austrian Delegation, The Prüm Decision – The Need for a Focused Approach on the Implementation, [2009] Doc 16623/09 and Council Decision 2008/615/JHA of 23 June 2008 on the Stepping up of Crossborder Cooperation, Particularly in Combating Terrorism and Cross-border Crime, [2008] OJ L 210/1; Council Framework Decision 2006/960/JHA of 18 December 2006 on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, [2006] OJ L 386/89. 63 See Australian Police Minister’s Council, Directions in Australasian Policing 2005-2008 (2005).

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Data protection is less problematic than in the EU due to the high standards that apply to federal agencies entrusted with it such as CrimTrac, the AFP, the Australian Crime Commission (ACC) and the Australian Security Intelligence Organisation (ASIO). However, problems exist with a view to the implementation of new information exchange products, such as the CrimTrac Automated Number Plate Recognition (ANPR) initiative. Legal harmonisation and/or mutual recognition between states and territories are required to put these initiatives into practice, but have already been achieved with a view to, for example, DNA exchange. General provisions, as provided in the EU by the Prüm Council Decision, would therefore not be likely to add value in this field. It can be concluded that a legal framework might not be the correct fit in order to enhance existing police cooperation strategies in Australia. However, the interview responses in the Australian context could suggest otherwise. Police cooperation is not dealt with in the academic literature; it is not frequently dealt with by the media; and existing problems are not responded to by way of uniform legislation. It is an area in Australia that is – as in the EU – reliant on practitioner initiative and action, but not rewarded, recognised, or in any way subject to a harmonised approach. Regional practitioner efforts are not recognised at the federal or intergovernmental level. Although it could be claimed that this is due to the mainly informal nature of bilateral and multilateral cooperation in Australia, the example of NeBeDeagPol shows that even informal cooperation initiatives can be valuable promoters of a harmonised legal framework, such as the Schengen Convention in the EU. Schengen was a major step in formalising existing practice at the EU level, whether by implementing formal (e.g. 1962 Benelux Treaty) or informal (e.g. NeBeDeagPol) initiatives. It attracted prominent academic and media attention, and gave recognition to the state and practitioner movements that had triggered it. This was of course due to the different historical development of the EU, and the fact that participating jurisdictions are sovereign nation states, and have pronounced political, cultural, structural, historical and organisational differences. However, the sociological and political impact of a common legal framework should not be underestimated, and could also be valuable for a federal system. The Schengen Convention recognised existing innovation, and norm generation, by practitioners, and triggered in turn further innovative initiatives and legal regulation. A dynamic interaction between regional and EU/higher level formalisation is lacking in the Australian context, and could also explain the lower perceived success of police cooperation by Australian

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practitioners. As was pointed out in relation to the CrimTrac initiative, part of its success is that practitioners, states and territories feel that they “own the initiative.”64 This can similarly be observed in relation to the Schengen Convention in the EU context. The establishment of bottom-up norm generation in Australia could, therefore, lead to greater practitioner enthusiasm and innovation in relation to police cooperation. From a legal point of view, the Schengen Convention, initiated the establishment of concurrent bilateral and multilateral approaches to police cooperation. The agreements establishing PCCCs in particular border regions, for example, were a response to the aims of the Convention and operationalise its procedural norms. Also, the Convention triggered the establishment of more concrete cooperation procedures at the EU level, in particular in the field of information exchange, for example through the Prüm Convention. It created an upward dynamic of enhancing police cooperation, by triggering the mutual interaction between regional and harmonised legislation that does not exist in the Australian context.65 While all Australian practitioners recognize that bilateral and multilateral cooperation works well, there is as yet no mechanism in place that promotes it. Such a mechanism could be introduced by a common framework similar to the Schengen Convention. It can therefore be concluded that the introduction of a legal framework in the Australian context could promote formalised regional cooperation and thereby add value to the current system of police cooperation. Furthermore, despite being a “legal” framework, it could have a beneficial sociological effect, by establishing common aims, generating media and academic attention and thereby affecting attitudes of practitioners towards cooperation positively. Lastly, formal regional cooperation initiatives are very prominent in the EU, but not in Australia although calls for the formalisation of existing practices are now emerging. Regional cooperation promoting formal frameworks in the EU was most apparent in regions facing particular demographic and political challenges for cross-border policing (such as major cities in the border region, high population densities and different

64

Interview CrimTrac, December 4, 2009. See, in relation to the policy pendulum, Wallace, H., “Politics and Polity in the European Union: The Challenge of Governance” in Policy Making in the European Union Wallace H. and Wallace W. eds. (Oxford: Oxford University Press, 5th ed., 2000) 60, 61. 65

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drug policies).66 This situation is partly comparable to the Australian NPY lands. Very little research has so far been conducted on policing in this region, and this research refers predominantly to pioneer work conducted by prominent Australian policing scholar Jenny Fleming in 2009.67 In the Australian scenario, particular policing strategies across borders became necessary as a response to challenges faced by policing domestic violence, child abuse, sexual abuse, substance abuse and other forms of offending in Aboriginal communities.68 Furthermore, the NPY lands border area is remote from towns and cities with established policing structures.69 This demographic situation created major difficulties for policing in these communities.70 It triggered complaints and the lobbying of governments by the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council (NPYWC),71 which resulted in government inquiries, including the Gordon Inquiry into Complaints of Family Violence and Child Abuse in WA Aboriginal Communities.72 It is remarkable that, in common with the European examples, NPY lands police cooperation was complicated by differences in structural and organisational responsibilities across the jurisdictions, divergent procedural and evidentiary rules, offence definitions, and investigative capacities.73 There were also evident tensions between the different operational cultures and statutory functions that followed from the development of different approaches to the same problem across

66

Spapens and Fijnaut, Criminaliteit en Rechtshandhaving, 8. Fleming, J., “Policing Indigenous People in the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands” in Cross-Border Law Enforcement, Hufnagel, Bronitt and Harfield eds., 163-176. 68 Ibid. 69 Ibid. 70 Western Australia Police (WAPOL), An Innovative Approach to Remote Policing in Western Australia (2004) http://www.aph.gov.au/House/committee/jpaa/atsis/report/appendixb.pdf. 71 Blandford, J. and Sarre, R., “Policing in South Australia’s Remote and Rural Communities: Preliminary Observations from a Novel Police Diversionary Strategy for Young Indigenous Offenders” Police Practice and Research: An International Journal 10 (2009) 187. 72 Gordon, S. The Hon Hallahan K. and Henry, D. Putting the Picture Together: Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities (31 July 2002) http://www.austlii.edu.au/au/journals /AILR/2002/65.html. 73 Fleming, “Policing Indigenous People”. 67

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jurisdictions.74 A person could, for example, be convicted of an offence in one state but not convicted of a similar offence in another state, because of significant differences in rules concerning evidence gathering and admissibility.75 Criminals therefore exploited the lack of cooperation and the differences in criminal laws, procedure, practices and policies, to avoid prosecution.76 The police realised that the uncoordinated efforts in the region were insufficient to cater for these vulnerable communities.77 There was a perceived need for a more effective, co-ordinated multi-agency approach78 and in particular more information sharing between relevant agencies, better cooperation and co-ordination, and specific legislative and policy responses.79 While initial responses only included the exchange of intelligence, transportability of domestic violence orders, joint operations and “special constables”, it was later agreed that the common practice of establishing bilateral and multilateral MOU in the border region was not sufficient, and that a legal framework had to be set up to ensure its efficient policing.80 The first practical response to these developments included establishing a multi-jurisdictional police facility in Kintore, which became operational in April 2004, forty kilometres east of the WA border, and run as a test case for the cooperation model.81 While the social contexts triggering closer cooperation were different, 74

Broome, J., “Commonwealth/State Boundaries in Crime and Justice” (Paper presented at the 3rd National Outlook Symposium on Crime in Australia: Mapping the Boundaries in Crime and Justice, Australian Institute of Criminology, Canberra, 22-23 March 1999) 1-10, cited in Fleming, “Policing Indigenous People”. 75 Ibid. 76 Fleming, “Policing Indigenous People”. 77 Ibid, 166-167; Gordon, A., The Cross Border Justice Project – Enhancing Justice and Victim Services in the Central Desert Region, (2007) http://www.aph.gov.au/lib rary/pubs/ BD/2008-09/09bd120.htm. 78 Gordon, S., the Hon Hallahan K. and Henry, D., Putting the Picture Together: Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities, 341. 79 Ibid. Recommendations 124, 131, 132, 136. 80 Ngaanyatjarra Council (Aboriginal Corporation), Doing Business with Government (July 2003) http://www.tjulyuru.com/notices/DBWGRepApp.pdf; Northern Territory Government Hansard, Submission to Cross Border Justice Bill, Second Reading Speeches (2008) http://www.austlii.edu.au/au/legis/nt/bill_srs/cjb2008236/srs.html. 81 Northern Territory Police, “Concept of Operations Paper for a Multijurisdictional Police Facility at Kintore” (2003).

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the similarity of the NPY lands and regions within the EU lies in the unique challenges of the border problem, and the tailor-made strategies developed to counter them. In the EU context the importance of such approaches became apparent in most interviews, with practitioners citing frequently the inability of harmonised frameworks to respond to regional issues and the perceived advantages of perfectly fitted regional strategies.82 Practitioners in both Australia and the EU questioned on the topic recognised the benefits of regional cooperation for harmonisation, but criticised the “one-size-fits-all” approach practitioners.83 However, specialised regional initiatives could be reduced to a common denominator and accepted more widely than the regionally participating member states; indeed it can be observed that the Schengen Convention and the Prüm Council Decision apply particular cooperation measures that were developed in previous regional initiatives. By contrast the NPY lands cooperation has so far not stimulated discussions at federal level. However, cross-border measures, based on the principle of mutual recognition, as established in the Cross-Border Justice Acts of 2008-2009, could apply to other border regions, and enhance cooperation. A possible reason for the lack of discussion on these matters could be the differences in the legal instruments implementing the measures in both entities and their impact on sovereignty and competences. While EU legal frameworks leave it to the member states to create further bilateral and multilateral treaties and agreements for implementing measures into practice, such as Article 39.5 of the Schengen Convention the Cross-Border Justice Acts impose in participating jurisdictions acceptance of the practices through mutual recognition. General police powers could, as a consequence, be exercised in another jurisdiction, under mutual recognition of warrants and police powers.84 If this model was harmonised, Australian jurisdictions would, unlike EU member states under legal frameworks, not have the freedom to preserve differences in 82

Interview German-French Police and Customs Cooperation Centre, July 10, 2007, July 7, 2009; Interview The Netherlands Police, April 22, 2008; Interview Prosecutor Euregional Office, Maastricht, July 28, 2010; Interview Prosecutor, The Netherlands, April 22, 2008; Interview Norwegian Police, January 21, 2009; Interview CEPOL, August 17, 2010; Interview Austrian Ministry of Justice, August 30, 2010. 83 Ibid. 84 See Cross-border Justice Act 2009 (NT), the Cross-Border Justice Act 2008 (WA) and the Cross-Border Justice Act 2009 (SA).

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their respective systems, and to develop approaches tailored to their own border regions. As the interviews confirmed, harmonisation could create downsides for some jurisdictions in need of tailored responses to their border situation. While the EU frameworks foster the creation of measures on a bilateral and multilateral basis, the Australian framework prescribes, more generally, mutual recognition of criminal procedural laws, and is therefore already more advanced, though also less flexible to allow specialised solutions. It can be concluded that the Australian regional framework approach is more geared at overcoming the legal and procedural differences, rather than achieving closer police cooperation. There are hence socio- and psychological advantages to the “imperfect” EU legal frameworks that could also be beneficial in the Australian context. However, seeing that Australia shows less legal differences between jurisdictions than most Schengen states, and has already introduced systems of mutual recognition, for example in the field of forensic procedures, as well as centralised databases for information and intelligence exchange, a “firstaid-kit” framework similar to the Schengen Convention might not do its advanced stage of development justice. The section below, therefore, addresses the potential applicability of the Nordic police cooperation scheme, which is more specialised in coordinating jurisdictions with greater similarities, as a framework for Australia’s police cooperation.

Transfer of a legal framework: the Nordic Police Cooperation Scheme While the Nordic countries are, in fact, not as similar in relation to police structure and criminal law and procedure as Australian states and territories, they display more similarities than many other border-regions in the EU. The Nordic countries have furthermore developed closer cooperation since the abolition of borders between them in the 1950s. This regional cooperation model could therefore be more applicable to enhance cooperation in the Australian context than the Schengen Convention. As with Australian cooperation, Nordic police cooperation began as a “gentleman’s agreement,” with a focus on informal networks.85 The police and justice ministers in the different Nordic states agreed on establishing a form of cooperation, but no legal framework was created. Cooperation was 85

Larsson, “International Police Cooperation”, 458-459.

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simply a political decision.86 However, the first formalised police cooperation between the Nordic police services, the Nordic Police and Customs Cooperation (in Norwegian: PTN87), was concluded under an agreement in 1984 and adopted by all Nordic countries.88 This Agreement covered important areas, like police investigations, criminal law and procedure, and aimed at the simplification of practical cooperation between the police and justice authorities. Similar to later EU initiatives, it was geared at enhancing the effectiveness of previously complicated and time-consuming police and judicial procedures.89 Unlike later EU cooperation initiatives, it did, however, aim for the harmonisation of criminal laws.90 There are hence strong similarities between the Nordic and Australian cooperation requirements, which may indicate a possible applicability of the Nordic model, should Australian states and territories decide to create an overarching legal framework. However, in relation to information exchange, Australia is already more advanced than the Nordic cooperation. It has established federal, centralised data pools, such as CrimTrac, to facilitate information exchange, while the Nordic cooperation continues to rely on direct agency-to-agency cooperation and information and intelligence nodes, the so called “PTN desks.”91 It could therefore be claimed that a legal framework is not needed in Australia, with a view to information exchange, as federal agencies have effectively taken on these tasks. The Nordic Police Cooperation Agreement could nevertheless be valuable as a model, as its establishment could focus stronger political and public attention on intergovernmental police cooperation in Australia, thereby making it both a more prestigious, but also more legitimate exercise between jurisdictions. The agreement of states towards such a harmonised initiative could be achieved as, unlike Australian mirror legislation, the PTN model would not have to be implemented into national laws, but represent an overarching agreement fostering direct

86

Kleiven, M.E., “Nordic Police Cooperation” in Cross-Border Law Enforcement, Hufnagel, Bronitt and Harfield eds., 64. 87 Polis Tull i Norden. 88 See Politi International Cooperation (12 April 2005) http://www.politi.dk/en_gl/Inter national_ cooperation. 89 Kleiven, “Nordic Police Cooperation,” 65. 90 Ibid. 91 Larsson, “International Police Cooperation,” 458-459.

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cooperation at the practical level.92 It would be different from, for example, mutual recognition under the NPY lands cooperation, and generally more informal than Australian federal cooperation strategies. A framework similar to the Nordic agreement could therefore foster cooperation in the Australian context by furthering common practices, while not requiring implementation in the different Australian jurisdictions. The Nordic Police Cooperation Agreement promotes practical cooperation in border regions, in particular by requiring local police authorities to initiate joint operations and joint investigation teams to deepen cooperation.93 The promotion of joint operations as a distinctly informal practice is unique to the Nordic cooperation and could be a good starting point for fostering cooperation in, for example, the recently problematic NSW-Victorian and NSW-Queensland borders. The application of the framework could have a strong psychological, and sociological, effect on practitioners, by encouraging cross-border cooperation similar to the Schengen Convention, discussed above. It could thereby open up avenues of further practitioner-led bilateral and multilateral cooperation in Australia, and consequently legal regulation of this cooperation. As with the EU, cooperation that is stimulated by a legal framework might even be more likely to be bound by legal regulation itself. More concretely, as practitioners in Australia do, by now, desire legal regulation in bilateral contexts and on a harmonised level, they could promote this desire more effectively if it was fostered by a harmonised framework. A loose harmonised legal framework, like the Nordic cooperation scheme might therefore give the final push towards regional regulation. The Nordic model as a European regional initiative can be distinguished as offering the closest comparison to Australian state and territory cooperation. As evidenced by the interviews with practitioners in Australia, the establishment of a common legal framework regulating police cooperation in Australia would be welcomed, provided it built upon existing networks of close informal cooperation.94 The Nordic Police Cooperation Agreement seems to combine these aims. While giving the 92

Kleiven, “Nordic Police Cooperation,” 65. See the Nordic Police Cooperation Agreement 2002, Art 5. 94 Interviews Australian Federal Police; Interviews Victoria Police; Interview Queensland; Interviews CrimTrac. 93

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police of the Nordic states incentives to work together by, for example, fostering joint operations in the border regions, it still leaves parties freedom to cooperate informally and have direct contacts unfettered by bureaucratic obstacles. This model of legislation could therefore be applicable to police cooperation in the Australian context.

Conclusion While EU member states have already established formal bilateral and multilateral agreements, as well as harmonised frameworks, similar agreements do not exist, or at least not to the same extent, in Australia. One reason for this lack of formalised regional cooperation is the federal structure, which means that federal agencies operate as a vehicle (or bridge), that obviates much of the direct contact otherwise required between agencies in the states and territories. Another reason is that EU member states, as distinct nation states, are more inhibited from cooperating with foreign police in the absence of a formal legal basis contained in domestic legislation or in a treaty. What stresses the importance of formal agreements is that criminal justice matters touch directly upon core national sovereignty and security concerns. By contrast, states within the Commonwealth of Australia, operating within one nation, do not face these challenges. The jurisdictions engaging in police cooperation in the EU also display more dissimilarity in terms of legal and constitutional traditions, which generates further problems of managing and negotiating procedural differences. The need to create formalised frameworks to enable cooperation is understandably more prominent in the EU. Australian cooperation is hampered by the lack of legal frameworks, whether bilateral, multilateral or harmonised in nature. A conclusion drawn from the present research is that there exists a need for formalisation of cooperation arrangements. Furthermore, practitioner support for the introduction of common legal frameworks in Australia will assist in clarifying some basic rules of cooperation. This became particularly apparent with a view to recent events in the NSW, Victoria and Queensland border regions. As long as informal cooperation works well, it is the preferred means, applying the adage “if it ain’t broke, don’t fix it!” However, there will be cases where informal cooperation, for either practical or political reasons, will break down. This can result from, for example, the employment of new and inexperienced staff unaware of the informal norms, or, in the Queensland-NSW example, understaffing on

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one side of the border. When the informal arrangements break down, calls for legal frameworks surface. The need for cross-border cooperation frameworks have become particularly apparent in the recent statements and calls for more regulation of police cooperation by local NSW Members of Parliament responsible for electorates in border areas.95 A legal framework, for example modelled after the Nordic police cooperation scheme, which harmonises cross-border practices and promotes cooperation enthusiasm, while not imposing inflexible procedural rules, could therefore improve Australian intergovernmental police cooperation. The EU has a comparative advantage over Australia insofar as its legal frameworks are mandatory, therefore ensuring the creation of formal regulation in a speedier and broadly uniform fashion. Knowledge about the Australian example might make EU practitioners value their existing legal frameworks more. Going even one step further, the fact that codification of cooperation strategies is now desired by states and practitioners in Australia evidences a slow movement from the “common law” system and the desire for vast discretion, towards a more “civil law” system, and the appreciation of more legal regulation in the field of police cooperation in Australia.

Bibliography Australian Federal Police, History of the AFP (2010) http://www.afp.gov.au/about-the-afp/our-organisation/history.aspx. Australian Police Minister’s Council, Directions in Australasian Policing 2005-2008 (2005). Bertozzi, S., “Schengen: Achievements and Challenges in Managing an Area Encompassing 3.6 million km2”, Working Document 284, Centre of Excellence in Policing and Security, Griffith University, Brisbane, 2008. Blandford, J. and Sarre, R., “Policing in South Australia’s Remote and Rural Communities: Preliminary Observations from a Novel Police Diversionary Strategy for Young Indigenous Offenders,” Police Practice and Research: An International Journal 10 (2009). Block‚ L., “Combating Organised Crime in Europe: Practicalities of Police Cooperation,” Policing 2 (2008). 95 Legislative Assembly, Motion Police Legislation Amendment (Recognised Law Enforcement Officers) Bill, Hansard, Parliament of NSW, 22 June 2010.

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Bronitt, S., “The Criminal Law of Australia,” in The Handbook of Comparative Criminal Law, Dubber M. and Heller K. eds., Stanford: Stanford University Press, 2009. Bronitt, S. and McSherry, B. Principles of Criminal Law, Oxford: Oxford University Press, 3rd ed., 2010. Broome, J., “Commonwealth/State Boundaries in Crime and Justice”, paper presented at the 3rd National Outlook Symposium on Crime in Australia: Mapping the Boundaries in Crime and Justice, Australian Institute of Criminology, Canberra, 22-23 March 1999. Byrnes, J., “The Body Snatchers – Peace Officers and the Peace Officers Act 1925,” Platypus Magazine 99 (2008). Convention Between Denmark, Finland, Norway and Sweden Concerning the Waiver of Passport Control at the Intra-Nordic Frontiers, signed on 12 July 1957. Council Framework Decision 2006/960/JHA of 18 December 2006 on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, [2006] OJ L 386/89. Council of the European Union, Austrian Delegation, The Prüm Decision – The Need for a Focused Approach on the Implementation, [2009] Doc 16623/09 and Council Decision 2008/615/JHA of 23 June 2008 on the Stepping up of Cross-border Cooperation, Particularly in Combating Terrorism and Cross-border Crime, [2008] OJ L 210/1. —. Draft Framework Decision on Simplifying the Exchange of Information and Intelligence Between Law Enforcement Authorities of the Member States of the European Union, in Particular as Regards Serious Offences Including Terrorist Acts, [2004] Doc 10215/04. Convention Implementing the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, signed 19 June 1990, [2000] OJ L 239/19. Crimes (Controlled Operations) Amendment Act 2008 (Vic). Cross-Border Justice Act 2008 (WA). —. 2009 (NT). —. 2009 (SA). Das, D.K. and Kratcoski, P.C., “A World Perspective,” in International Police Cooperation: A World Perspective, Koenig D.J. and Dilip K.D. eds., Oxford: Lexington Books, 2001.

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D’Oliveira, H.U.J., “Schengen Agreements,” in Butterworth’s Expert Guide to the European Union, Monar, J., Nanette N., O’Keeffe D., and Robinson W. eds., London: Butterworth, 1996. Dupont, B., Construction et Réformes d’une Police: Le Cas Australien (1788-2000), Paris: L’Harmattan, 2002. Etter, B., “Policing: Reflecting on the Past, Projecting into the Future” in Policing the Lucky Country, Enders M. and Dupont B. eds., Sydney: Hawkins Press, 2001. EU Council Act of 29 May 2000 Establishing in Accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, [2005] OJ C 197/3. Felsen, O., “European Police Cooperation: The Example of the GermanFrench Centre for Police and Customs Cooperation Kehl (GZ Kehl),” in Cross-Border Law Enforcement Regional Law Enforcement Cooperation – European, Australian and Asia-Pacific Perspectives, Hufnagel S, Bronitt S and Harfield C eds., New York: Routledge, 2012. Fijnaut, C., “Police Cooperation and the Area of Freedom, Security and Justice”, in Europe’s Area of Freedom, Security and Justice, Walker N. ed., Oxford: Oxford University Press, 2004. Fleming, J., “Policing Indigenous People in the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands,” in Cross-Border Law Enforcement Regional Law Enforcement Cooperation – European, Australian and AsiaPacific Perspectives Hufnagel, S. Bronitt S., and Harfield C. eds., New York: Routledge, 2012. General Secretariat, EU Schengen Catalogue, Volume 4, Police Cooperation: Recommendations and Best Practices, Council of the European Union, 2003. Gordon, A., The Cross Border Justice Project – Enhancing Justice and Victim Services in the Central Desert Region, (2007) http://www.aph.gov.au/library/pubs/ BD/2008-09/09bd120.htm. Gordon, S., The Hon Hallahan K., and Darrell, H., Putting the Picture Together: Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities (31 July 2002) http://www.austlii.edu.au/au/journals /AILR/2002/65.html. Hufnagel, S., “Cross-Border Police Cooperation: Traversing International and Domestic Frontiers,” Criminal Law Journal 333 (2011).

European Police Cooperation Frameworks

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—. Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia, Farnham: Ashgate, 2013. Interviews Australian Federal Police, December 5, 2009, May 25, 2010, August 11, 2010. Interview Austrian Ministry of Justice, August 30, 2010. Interview CEPOL, August 17, 2010. Interviews CrimTrac, December 4, 2009, May 20, 2010. Interview German-French Police and Customs Cooperation Centre, July 10, 2007, July 7, 2009. Interview Norwegian Police, January 21, 2009. Interview Prosecutor Euregional Office, Maastricht, July 28, 2010. Interview Prosecutor, The Netherlands, April 22, 2008. Interview Queensland, May 7, 2010. Interview The Netherlands Police, April 22, 2008. Interviews Victoria Police, July 30, 2009, December 6, 2009. Joubert, C. and Bevers, H., Schengen Investigated: A Comparative Interpretation of the Schengen Provisions on International Police Cooperation in the Light of the European Convention on Human Rights, The Hague: Kluwer Law International, 1996. Kleiven, M.E., “Nordic Police Cooperation” in Cross-Border Law Enforcement Regional Law Enforcement Cooperation - European, Australian and Asia-Pacific Perspectives, Hufnagel, S., Bronitt S. and Harfield C. eds., New York: Routledge, 2012. Larsson, P., “International Police Cooperation: A Norwegian Perspective”, Journal of Financial Crime, 13 (2006). Legislative Assembly, Motion Police Legislation Amendment (Recognised Law Enforcement Officers) Bill, Hansard, Parliament of NSW, 22 June 2010. Memorandum of Understanding between New South Wales Police, Victoria Police, Queensland Police, Western Australia Police, South Australia Police, Northern Territory Police, Tasmania Police, ACT Policing, Australian Federal Police and The CrimTrac Agency (2009). Memorandum of Understanding between the Department of Child Protection Western Australia and Western Australia Police in Relation to The Family and Domestic Violence Co-location Model (2009) http://www.community.wa.gov.au/NR/rdonlyres/596E138E-8E5141F2A0749883794C3246/0/FDV MOUCPR34b.pdf. Milte, K.L. and Weber, T.A., Police in Australia: Development Functions and Procedures, London: Butterworths, 1977. Mitsilegas, V., EU Criminal Law, London: Hart, 2009.

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New South Wales Chief Executives’ Committee and the Victorian State Co-ordination and Management Council, Outcomes of the 2008 New South Wales-Victoria Chief Executives’ Cross-Border Issues Meeting, . Ngaanyatjarra Council (Aboriginal Corporation), Doing Business with Government (July 2003) http://www.tjulyuru.com/notices/DBWGRepApp.pdf. Noffke, K., “Border Divides Police Powers”, Tweeds Daily News, Rivendell, NSW, 27 April 2010. Nordic Police Cooperation Agreement 2002. Northern Territory Government Hansard, Submission to Cross Border Justice Bill, Second Reading Speeches (2008) http://www.austlii.edu.au/au/legis/nt/billsrs/cjb 2008236/srs.html. Northern Territory Police, “Concept of Operations Paper for a Multijurisdictional Police Facility at Kintore”, (2003). Peace Officers Act 1925 (Cth). Politi International Cooperation (12 April 2005) http://www.politi.dk/en_gl/Inter national_ cooperation. Spapens, T. and Fijnaut, C., Criminaliteit en Rechtshandhaving in de Euregion Maas-Rijn, The Hague: Intersentia, 2005. Standing Committee of Attorney General and Australasian Police Ministers Council Joint Working Group on National Investigations, “Leaders Summit on Terrorism and Multijurisdictional Crime – CrossBorder Investigative Powers for Law Enforcement: Report”, Australian Government, Canberra, 2003. Takala, H., “Nordic Cooperation in Criminal Policy and Crime Prevention,” Journal of Scandinavian Studies in Criminology and Crime 5 (2005). The Far North Coaster, “Queensland Governor Recognises Bravery of Tweed/Byron Police Officers” (04 May 2010) http://www.farnorthcoaster.com.au/news/8532/queensland-governorrecognises-bravery-oftweedbyr on-police-officers. Wallace, H., “Politics and Polity in the European Union: The Challenge of Governance” in Policy Making in the European Union, Wallace H. and Wallace W. eds., Oxford: Oxford University Press, 5th ed., 2000. Western Australia Police (WAPOL), An Innovative Approach to Remote Policing in Western Australia (2004) http://www.aph.gov.au/House/committee/jpaa/atsis/report /appendixb.pdf.

CONTRIBUTORS

Dr. Alex Balch, Department of Politics, University of Liverpool, UK. Alex’s interests include the international politics of security and mobility, border systems and transatlantic cooperation over security. He has published extensively on the development of immigration policies in the UK, Spain and the EU, and worked with a number of public bodies such as the UK Human Trafficking Centre, Gangmasters’ Licensing Authority, and the International Centre for Migration Policy Development in Vienna. Current projects include research on forced labour funded by the Joseph Rowntree Foundation. Recent publications include Managing Labour Migration in Europe, with Manchester University Press. Dr. Ludo Block, Adjunct Fellow in the ARC Centre of Excellence in Policing and Security at Griffith University, Australia. Ludo Block is a former police officer with the Dutch Police, having spent some time as a liaison officer for the Dutch National Police in Moscow. He has recently obtained a PhD for a thesis entitled From Politics to Policing; the Rationality Gap in EU Council Policy-Making, at the VU University, the Netherlands, which was published by Elven International Publishing. As well as his academic work, he is currently working as an investigator in private practice. He writes from a public administration perspective. Dr Angela Carpenter, Jean Monnet European Centre of Excellence, School of Earth and Environment, University of Leeds, UK. Angela, is a geographer who specialises in security issues surrounding maritime ports and installations. Angela is also involved in non-security related port and maritime research, and is a regular contributor to the Maritime Pollution Bulletin. Yarin Eski, Scottish Centre for Crime and Justice Research, and the School of Social and Political Sciences, University of Glasgow, UK. Yarin is completing his Scottish Centre for Crime and Justice Research funded PhD into security at ports. The focus of his PhD is to analyse social realms of port security in Greenock, Grangemouth port and Clydeport, the port of Rotterdam and port of Hamburg. This work will shed light on how workers control and eliminate transnational insecurities at national seaport

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Contributors

borders. It will contribute to a critical engagement within the prioritised theorisation of the globalised security society and of security consumerism. Prof. Artur Gruszczak, Institute of Political Science and International Relations, Jagiellonian University, Krakow, Poland. Artur writes from a Political Science and International Relations perspective. His output to date includes work on the European Arrest Warrant – Achievements and Dilemmas, as editor and contributor, with the European Centre Natolin, Warsaw, and a number of other papers on the Internal Security strategy of the EU. He has also published a book with the Jagiellonian University, in Polish, on Cross-border police cooperation in the European Union, legal and political aspects. Dr Saskia Hufnagel, ARC Centre of Excellence in Policing and Security, Australia. Saskia has been based in Australia for a number of years. She is a lawyer whose main focus is Australian and EU policing legal structures, and their effectiveness. She has co-edited a book published by Roudledge entitled Cross-border Law Enforcement - Regional Law Enforcement Cooperation - European, Australian and Asia-Pacific Perspectives, and has a book forthcoming with Ashgate, entitled Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement within the EU and Australia. Dr. Daniela Irrera, Department of Political Studies, University of Catania, Italy. Daniela writes from a political science perspective. She has a number of publications which focus on global terrorism, transnational organised crime, civil society and humanitarian affairs. She is an organising committee of the European Consortium for Political Research (ECPR) Standing Group on Organised Crime. She has written a number of books in Italian, to include one on the Northern Ireland peace process, with Tirsform. Prof. Francesca Longo, Department of Political Studies, University of Catania, Italy. Francesca is Jean Monnet Professor of Political Science. She is an organising committee of the European Consortium for Political Research (ECPR) Standing Group on Organised Crime. She has been editor and co-author of a number of books in Italian and English, to include being co-editor of a book with Routledge entitled Defining and Defying Organised Crime. Discourse, Perceptions and Reality.

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Dr. Maria O’Neill, Law Division, University of Abertay Dundee, UK. Maria is an EU lawyer, who specialises in the EU’s provisions on Police and Judicial Cooperation in Criminal Matters. She is the coordinator of the University Association for Contemporary European Studies collaborative research network on “Policing and European Studies”. She has a number of publications in this area, to include a recent book on The Evolving EU Counter-Terrorism Legal Framework, with Routledge. Glynn Rankin, Independent Anti-Trafficking Specialist, Rankin Associates Ltd. UK. Glynn is a barrister, a former prosecutor, employed with the UK Human Trafficking Centre, now part of the Serious Organised Crime Agency of the UK. He is now retired from that post, and works as an Independent Anti-Trafficking specialist. He advises on policy, law and strategy, providing expert evidence and training in the context of trafficking in human beings. Ken Swinton, Law Division, University of Abertay Dundee, UK. Ken is a Scottish qualified solicitor, legal academic, and editor of a number of Scottish based law publications, to include the Scottish Law Gazette. He specialises in Financial Services law. He writes his paper from the perspective of EU and UK law. Dr. Aaron Winter is Lecturer in Sociology at the University of Abertay. He holds a DPhil in Social and Political Thought from the University of Sussex. His research examines racism, terrorism and political violence and the extreme-right in the United States and Canada. He is co-editor of and a contributor to Discourses and Practices of Terrorism: Interrogating Terror (Routledge, 2010) and the author of White Separatism and the Politics of the American Extreme-Right: Civil Rights, 9/11 and a Black Man in the White House (Ashgate, forthcoming).