27 January 2014
– The UK government is debating whether it should opt out of more than 100 EU police and criminal justice measures which predate the 2009 Lisbon Treaty. These include Joint Investigation Teams, European Arrest Warrants and even the UK’s membership of Europol.
While the current proposal is simply to retain only those measures that best suit the UK, there is a real risk that other member states will be resistant to this cherry picking exercise – and that many hard-won, pan-European crime prevention strategies will be lost.
This is despite a number of high-profile cases that have demonstrated the benefits of well-equipped and co-ordinated international policing efforts – and others that have shown the pitfalls of insufficient cross-border co-operation.
There has been an increase in the numbers of UK police who have “taken to the air” to investigate serious crimes committed against British nationals overseas. Globalisation has encouraged British nationals to travel, work and live abroad, and accordingly, they are involved in more overseas crimes: Foreign & Commonwealth Office statistics for 2012/13 show that 310 Britons were sexually assaulted, 710 went missing, 5,435 were arrested and 6,193 died. In many of these circumstances, and particularly in relation to homicide, there will be an investigative role for UK police.
Currently there are many other overseas criminal investigations that require UK police assistance, including terrorism, piracy, war crimes and kidnappings. Most of these use the legal premise of “universal jurisdiction”, implying that the crime could be prosecuted in the UK – though prosecutions tend to take place in the country where the crime has been committed, or in the International Criminal Court in The Hague.
In most murder cases, a state’s sovereignty and territorial integrity will lead to prosecution in that country in relation to homicide committed against a British national. But the 1861 Offences Against the Person Act stipulates that “where any murder or manslaughter shall be committed on land out of the United Kingdom … by any subject of Her Majesty [it] may be dealt with, inquired of, tried, determined, and punished … in England or Ireland”. Overseas, a lack of forensic testing around the cause of death in many parts of the developing world and even the European Union may preclude an adequate police investigation. As a result, leverage from the bereaved family and UK coroners may bring about a UK police investigation conducted abroad.
This is often true of more complex cases, such as the 2008 murders of Ben and Catherine Mullany on their honeymoon in Antigua. Following a lengthy inquiry extensively supported by the Metropolitan and South Wales Police, two Antiguan nationals, Avie Howell and Kaniel Martin, were convicted of their murder. This investigation came about as a result of request for assistance by the Antiguan government for the expertise of British Police and at a significant financial cost to the British taxpayer. It was also complicated by Antigua’s continued use of the death penalty for murder. This meant that before British police officers could set foot on Antiguan soil, the British government needed assurances from the Antiguan government that the death penalty would not be enacted in this case.
The UK police faces many other potential challenges and pitfalls in carrying out overseas investigations. Aside from cultural differences and language barriers, UK police officers deal with an array of judicial processes and varying standards of policing practice. In much of the developing world, for instance, there will be little or no access to computers, DNA or fingerprinting assets; across the globe, penalties for and definitions of offences will vary.
There are also challenges in managing relationships not only with local police and international institutions (for example, Interpol and Europol) but also those UK government bodies that will have an involvement, including the Foreign and Commonwealth Office, Victim Support Homicide Service, coroners, and various peer support groups.
In the event of the death of a British national overseas by murder or manslaughter, the Foreign Office consular section provides assistance to the bereaved family, which might include the arrangements for the body to be repatriated and updates on the progress of the local police investigation. In 2012, the FCO released a memorandum of understanding, an agreement between the FCO, the Association of Chief Police Officers and the Coroners Society that establishes minimum standards for what the bereaved can expect from these authorities.
Practical and emotional support to the family can be provided by the National Homicide Service, which is managed by the national charity Victim Support and funded by the Ministry of Justice. They can appoint a dedicated caseworker to assist with issues like funeral arrangements, counselling, translation and interpreting, legal advice, travel and repatriation. This becomes invaluable when families are dealing with complex cultural and political issues overseas.
In addition to these measures, recent cases have clearly demonstrated the advantages afforded by European policies. In January this year, it was announced that the brother of Surrey British national, Saad al-Hilli, shot dead together with his wife, mother-in-law and a French cyclist in the Alps in September 2012, had been released from police bail and would face no further action.
Shortly after the French police began their investigation, they forged a strong working relationship with Surrey Police through a formalised Joint Investigation Team (JIT). This effectively gave joint police executive and coercive powers to the French and British police when operating in each other’s jurisdiction. As a result, it brought about more effective intelligence sharing and generated quicker responses to formal requests for evidence and information.
The Madeline McCann case is often cited as an example of international collaboration, yet it was plagued for years by suspicion and a lack of support from the Portuguese police. There is now a team of UK officers working with the Portuguese authorities to bring about possible arrests after a review of the case by the UK police over the last two years at the cost of several million pounds. Investigating a homicide or missing person overseas is thus an extremely complex and costly exercise.
The JIT approach has proven to be a formidable tool for tackling overseas crime, and in particular, human trafficking and drug smuggling. Without the advantages of tools and procedures like this, UK police will continue to find it extremely challenging to serve the interests of British crime victims overseas – or to police British criminals abroad.
There is a strong argument for the establishment of a dedicated pool of British investigators with the specialist skills and professional expertise necessary to deploy anywhere in the world. These investigators could manage international criminal cases across all international legal frameworks, liaise with the relevant UK agencies and deliver consistent support and advice to the families of victims.
But without the advantages of the pan-European policies still in force, their tasks will still be unnecessarily fraught. The UK government must decide by May 2014 whether to retain the pre-Lisbon measures. As they go about their decision, we can only hope that they remember lessons of the cases described here.
– Georgina Sinclair and in collaboration with former Detective Chief Superintendent Neville Blackwood