Despite the increased willingness of States to engage in formal methods of mutual legal assistance, there are many other less formal methods of evidence gathering which permit law enforcement agencies to exchange information and material relevant to transnational investigations. TheExplanatory Report on the European Convention on Mutual Legal Assistance in Criminal Matters206indicates that the Convention was designed to supplement rather than replace existing co-operative arrangements. Informal methods of co-operation include: Memoranda of Understanding, which are non-legally binding written agreements setting out an undertaking to provide the assistance requested, indicating the procedures to be
199 See USA-Switzerland MLAT, Art 18(5).
200 Ibid,Art 37(3).
201 USA v D Sturman; R Levine; R Sturman; and M Kaminsky,951 F 2d 1466 (1991), 6th Cir, US Ct of Appeals.
202 USA-Switzerland MLAT, Art 2(1)(a) and (5).
203 US v D Sturman; R Levine; R Sturman; and M Kaminsky,951 F 2d 1466 (1991), 6th Cir, US Ct of Appeals, p 1482.
204 Ibid,p 1483.
205 Ibid,p 1484.
206 1969 report, Council of Europe.
followed and the grounds for refusing a request for assistance; and mutual administrative assistance which allows for the delivery of information between investigating agencies on a voluntary basis. This procedure requires the consent of the person holding the information.207 The methods by which requests for information are transmitted through the international police networks of Interpol and Europol are discussed in some detail in the next chapter. Undoubtedly, police officers engage in less formal methods of information and evidence exchange.208
In addition to launching new conventions on extradition and mutual legal assistance, the EU has taken several other important initiatives. Activities under the Third Pillar of the TEU address the field of judicial co-operation in criminal matters.
It is relevant whether mutual legal assistance measures come under the Third Pillar of the TEU or the Treaty establishing the European Communities. Third Pillar bodies are subject to less stringent control than community bodies. It is of note that Europol and Eurodac are not subject to the same protection regime as First Pillar bodies.
Several new initiatives arose as a result of the European Council meeting in Tampere.
Thus the JHA Council has given its approval for the setting up of a European public prosecutions unit which will be located in The Hague, operating alongside Europol.
The formation of a Eurojust unit will operate with a management team of prosecutors, magistrates and police officers drafted in from Member States; each participant can seek information from their relevant national authorities and have access to the SIS.209 When acting in their own State, members will be bound by national rules of procedure. However, when operating in another State:
Each Member State shall define the nature and extent of the powers it grants its national members in its own territory. The other Member States shall undertake to accept and recognise the prerogatives thus conferred.210
These initiatives raise concerns about public accountability. Eurojust reports from the unit to the JHA Council and the European Parliament are less likely to be as extensive as reports from national prosecuting authorities to national bodies.211The European Council endorsed the principle of mutual recognition of judicial decisions at Tampere, which is in line with other EC policies designed to promote free movement,212and considered that it should apply to judgments and other decisions of judicial authorities. To promote the free movement of prosecutions, it is proposed to replace the current system of sending requests for assistance through a central authority with a directly enforceable European Enforcement Order. Other developments have included the issuing of European arrest warrants in extradition cases and mutual recognition of final judgments by criminal courts. While the creation of simplified procedures for judicial co-operation assist prosecuting authorities in
207 For further discussion, seeop cit,Murray and Harris, note 1, Chapter 14.
208 See, eg,R v Aujla[1998] 2 Cr App R 16.
209 Draft decision contained in the Joint Initiative Setting up Eurojust, Art 9(2).
210 Ibid,Art 8(2).
211 For further criticism, see (2000)Statewatch,No 3/4, June-August 2000, Vol 10.
212 For a general discussion on free movement, see P Mathijsen,A Guide to European Union Law,2000, London: Sweet & Maxwell.
transnational cases, the removal of traditional procedural safeguards for the defendant raises issues regarding fair trial rights. The need for national parliamentary scrutiny of Third Pillar proposals is essential since under Title VI of the TEU there is no effective role for the European Parliament. Concerns have been voiced regarding this lack of scrutiny and accountability.213
213 See JUSTICE,Submission to the House of Lords European Communities Committee: Report on the Rules and Regulations Governing EUROPOL,May 1997. See alsoThe Scrutiny of European Business,Select Committee on European Legislation, 27th Report, July 1996.