Cian Murphy

The European Evidence Warrant: Mutual Recognition and Mutual (Dis)Trust?

The European Evidence Warrant (EEW) is a key element of the EU’s attempt to improve criminal justice co-operation within Europe. The evidence warrant build on the European Arrest Warrant (EAW) and several other Framework Decisions that are based on the principle of mutual recognition to develop more integrated EU criminal justice. It aims to facilitate speedier co-operation in the transfer of evidence between Member States in criminal proceedings. This essay critically analyses the evidence warrant and considers what its adoption can tell us about the development of mutual recognition in EU criminal justice. The central argument is that the European Evidence Warrant demonstrates the tensions of enforcement-led criminal justice co-operation in the absence of mutual trust. It concludes that the Stockholm Programme offers the potential for change towards more complete criminal justice co-operation or the continuation of the status quo. Section 1 critically analyses the historical background to the evidence warrant. Section 2 considers the adoption of the Framework Decision on the European Evidence Warrant and examines how the measure contributes to European criminal justice. Section 3 examines mutual recognition and mutual trust in light of the evidence warrant legislation. Finally, section 4 considers the future for criminal justice co-operation and evidence transfer under the newly adopted Lisbon Treaty and Stockholm Programme. While the focus in this essay is on the evidence warrant, certain aspects of the debate concerning the arrest warrant are raised insofar as they shed light on the development of mutual recognition and co-operation in criminal justice.

Counter-Terrorism and the Culture of Legality: The Case of Special Advocates

The pre-emptive shift that marks the reaction to the September 11, 2001 attacks has had a profound effect on the operation of both security services and law enforcement agencies. States identify threats based on intelligence and subject them to restrictive measures that seek to protect the public not just from terrorism but also from the risk of terrorism. Administrative and judicial tribunals have developed rules of procedure for the use of evidence that the state is unwilling, or sometimes unable, to disclose to the subject of the proceedings. The key component of the UK solution to secret evidence is the use of special advocates: lawyers with high security clearance given access to secret evidence that cannot be disclosed to those for whom the advocates act. These special advocates act in closed material proceedings. In such proceedings the individual subject to state action and his legal representatives are excluded but the special advocate acts on the subject’s behalf. The first part of this paper charts the rise of special advocates and closed material proceedings in the UK legal system after the decision of the European Court of Human Rights in Chahal v United Kingdom. It examines the extension of use of closed material proceedings beyond the confines of immigration law into counter-terrorism including in preventive detention and proscription and into other areas of civil law. The second and third parts of the paper highlight the flaws of closed material proceedings. The second part considers the special advocate’s ability to ensure that rule of law principles are upheld in closed material proceedings. It notes several limitations on the special advocate’s role and concludes that the system as it currently works does not comply with the rule of law and is corrosive of the culture of legality. The third part takes a critical turn, examining the special advocate and closed material proceedings as part of a legal grey hole. As the UK tends to be a model for other counter-terrorism systems the final part of the paper examines the potential for these problems to manifest in a new legal setting: the European Union. When Advocate General Sharpston sought to develop ideas on the use of secret evidence before the European Court of Justice it was the UK system to which she turned. This paper advocates the elimination of legal grey holes in UK law and cautions against an erosion of the strong culture of legality in proceedings before the European Court of Justice.

Transnational Counter-Terrorism Law: Law, Power and Legitimacy in the 'Wars on Terror'

The transnationalisation of counter-terrorism law is a key feature of law after 11 September 2001. The development of a ‘transnational counter-terrorism law’ has been led by efforts through the UN Security Council, in particular in its resolution 1373 (2001) and 2178 (2014). This paper uses these examples of transnational law to critique the idea of transnational criminal law and to examine the extent to which the transnationalisation of law poses new questions for the legitimacy of the criminal law. The paper argues that efforts to categorise and contextualise the law need to be undertaken alongside critical projects to understand changes in state power and in the use of that power to regulate politics across the globe.

Counter-Terrorism Law and Judicial Review: The Challenge for the Court of Justice of the European Union

Any discussion of European Union counter-terrorism law poses challenges. There is a challenge for the conservative observer that sees the former economic community with power akin to that of a sovereign state. For the liberal observer, the substance of much EU counter-terrorism law is so far-removed from European ideals of respect for human rights and the rule of law as to be rather alarming. In the present context, a book exploring judicial review of counter-terrorism action, there are also challenges. In the first half of this paper the idea that the ECJ is an appropriate institution for review of counter-terrorism law is subject to challenge. The ECJ has been the subject of much praise for its judicial review of counter-terrorism law – but that praise often overlooks the Court’s limitations. In earlier work it was possible to speak of ‘the difficult position of the European judiciary’. In that work the analysis set out the problem the Court faces in striking an appropriate balance between rules of EU constitutional law on division of powers and the protection of human rights. In this chapter the analysis takes a further look at the Court’s work in light of its history and practices. A key question is whether the Court of Justice conducts review in a manner appropriate to counter-terrorism law. The substantive challenge for the Court of Justice in more recent cases has been to reconcile overlapping rules of counter-terrorism law with legal principles such as the rule of law. Thus, the second half of the paper turns to the Court’s emerging counter-terrorism jurisprudence. That jurisprudence, in particular the line of cases dealing with restrictive measures, now ranks amongst the most discussed judgments in its history. After its judgment in Kadi I the Court is seen as a bastion of the rule of law in the face of executive power that has a global reach. That judgment was undoubtedly a positive one for the rule of law but it left many questions without answers. These questions – on intensity of review, secret evidence, and due process – have since been the subject of litigation in Kadi II and other cases. The central aim of this paper is to challenge the complacency in much European legal debate that courts – and the Court of Justice in particular – can be relied upon to control executive power. The paper argues that although they are a necessary part of a system of constraint they are by no means sufficient by themselves.

Opinion of AG Villalón In Case 293/12 Digital Rights Ireland Ltd and Case 594/12 Seitlinger & Others (12 December 2013)

Is it lawful for the European Union to require telecommunications companies to retain meta-data on every telephone and internet user across Europe? This is the question before the Court of Justice of the European Union in Digital Rights Ireland Ltd and Seitlinger and others - preliminary references to the Court from Ireland and Austria. As telecommunications data surveillance is a key example of counter-terrorism after 11 September 2001, the litigation before the Court of Justice has the potential to shape a broader debate on surveillance in Europe. Although the Court has not, at the time of writing, given judgment, Advocate General Villalon has given an Opinion that merits reporting in its own right.

Fundamental Rights and Security: The Difficult Position of the European Judiciary

This paper examines three key judgments of the European Court of Justice in matters relating to criminal justice and security: addressing the Passenger Name Record Agreements, Data Retention Directive and targeted asset-freezing sanctions. It argues that faced with increasing criminal justice and security action at EU level, the European judiciary have struggled to articulate a clear position on fundamental rights and security.