A few weeks ago, the Garda Síochána and the Police Service of Northern Ireland established the first ‘Joint Investigation Team’ to advance the cross-border investigation of a shocking and brutal attack on one of the senior executives of a large business organisation in the region.
For almost 20 years, there has been provision in EU law for the establishment of temporary joint investigation teams (JITs) encompassing police officers from two or more Member States to investigate specific criminal activity with a cross-border dimension. Although the UK frequently establishes and participates in such teams with other Member States, the same cannot be said for Ireland. In an article in the Journal of Law and Society in 2011, I drew attention to the surprising failure of the Garda Síochána (Irish police force) to establish or participate in a JIT and, in particular, the failure of the Garda and the Police Service of Northern Ireland (PSNI) to establish a formal JIT to investigate any of the criminal gangs engaged in serious criminal activities straddling the Irish border.
A few weeks ago, this omission was finally remedied with the establishment of the first formal Garda/PSNI JIT to investigate a campaign of intimidation against the senior management of Quinn Industrial Holdings (QIH), including a shocking and brutally violent assault on Kevin Lunney, one of QIH’s senior executives.
The Lunney attack
On the 17th of September 2019, Kevin Lunney was abducted near his home in Derrylin in Northern Ireland, about five miles from the border with the Republic of Ireland. He was driven across the border into County Cavan where he was subjected to a sustained and brutal attack that left him with severe injuries. He was then dumped on the roadside. This was the latest and most severe of a long series of criminal acts against QIH executives.
On the 8th November, the Garda, PSNI and the Derbyshire Constabulary carried out coordinated searches as part of the police investigation into the attack and related criminality. During the search of a house in Derbyshire one of the suspects died of a heart attack after being handcuffed. Later that day, the Garda Commissioner and an Assistant Chief Constable in the PSNI announced the establishment of a JIT to progress the investigation into the Lunney attack.
Joint Investigation Teams
A JIT generally refers to a team composed of police officers from two or more jurisdictions who have been assembled together to progress an investigation into a specific criminal matter which affects their respective jurisdictions. Typically, the investigation will relate to criminal acts or a criminal enterprise associated with a suspect or suspects operating in the jurisdictions concerned.
In the absence of a JIT, the police force in each jurisdiction would have to conduct their own separate, jurisdictionally based, investigation. This is likely to entail substantial and wasteful duplication of effort across the jurisdictions. It may even result in failure either because of difficulties in cross-jurisdictional access to evidence and suspects, or because each of the police forces are unaware of key information in the other’s jurisdiction which is essential to an understanding of the true nature and scale of the acts or enterprise in question.
Some of these difficulties can be overcome through informal police cooperation across borders. Over the past few decades, for example, there has been a high level of such cooperation and engagement on the ground between the Garda and PSNI officers. They also participate in a cross-border, inter-agency, team (with counterparts in Customs and Excise and Revenue Commissioners) to combat smuggling. While this has proved valuable in combating organised criminal gangs in the Border area, there are limits to what it can achieve. If, for example, a police force in one jurisdiction wants an entry, search and seizure operation conducted in another jurisdiction to seek and secure vital evidence, or to have a suspect arrested and questioned in another jurisdiction, it will normally have to proceed through the cumbersome ‘letter of request’ (LOR) procedure associated with international mutual assistance in criminal matters.
Typically, the LOR procedure entails a time-consuming and formal procedure through diplomatic channels in both jurisdictions, together with judicial process in the requested jurisdiction. There is no guarantee that the request will be granted. Even if it is granted, the evidence or suspect being sought may have disappeared by the time it can be executed. Where it is executed and the evidence or information requested is obtained, it may simply raise further lines of inquiry which may entail the issue of further LORs, and so on.
An advantage of the JIT concept is that it breaks through some of the limitations that sovereign jurisdictional borders impose on police operations. It brings together a multinational team of police officers to work together on the same cross-jurisdictional investigation, for which the individual members can contribute their respective competences in their own jurisdictions for the collective benefit of the team. It does not necessarily amount fully to a multinational team of officers able to exercise their coercive powers across the jurisdictional boundaries as if they were operating in a single jurisdiction. Nevertheless, it can go some way towards that.
The JIT members will be able to participate in operations as part of the team on the ground in each other’s jurisdiction. They can share information directly with each other and, critically, they can secure arrests and the gathering of evidence from private and State sources in each other’s jurisdictions without having to go through the cumbersome and time-consuming LOR procedure. Although individual members cannot normally exercise powers of arrest, detention, taking bodily samples, entry, search and seizure etc in jurisdictions other than their own, they can be present during such operations and participate in the questioning etc of suspects in the jurisdictions of the other members for the purposes of the investigation.
Operational cross-border police cooperation on a bilateral basis has a relatively long history, but multilateral cooperation facilitating the establishment of JITs is of much more recent origin. The primary instruments in Europe are the 2001 Second Additional Protocol to the Council of Europe’s 1959 Convention on Mutual Assistance in Criminal Matters, and the EU’s Convention on Mutual Assistance in Criminal Matters 2000. Implementation of the latter in EU Member States was slow. Accordingly, under pressure from the perceived need to step up cross-border police cooperation in the wake of 9/11, its substance was essentially duplicated by EU Framework Decision 2002/465/JHA. This Framework Decision had to be implemented in Member States no later than 1 January 2003.
The Framework Decision makes provision for the authorities in two or more Member States to set up a JIT to carry out criminal investigations in one or more of the States setting up the team. It will be located in one of the States in which it is expected investigations will be carried out, and the team leader shall be appointed from a participating police authority of that State. Members are seconded to the team from the other participating States. The team will be based on a formal written Agreement which, among other things, will specify its composition and the purpose and period for which it is established. It will carry out its operations in accordance with the laws of the State in which it is operating, and the members will carry out their tasks under the direction of the team leader and in accordance with the terms of the Agreement.
Members of the team can share information from their own home sources directly with each other. Critically, seconded members of the team can take investigative measures, or apply for such measures, in their own home State for the direct benefit of the team. So, for example, they can use their own summary powers of arrest and interrogation etc to gather information and evidence in their home States for the team, and they can seek relevant coercive orders (eg. warrants of entry, search and seizure) from their own judicial authorities. This cuts directly through the alternative of having to go through the cumbersome and time-consuming LOR procedure that would otherwise be applicable in such cross-border investigations. Seconded members of a team can only exercise coercive powers in the home base of the team if the Agreement establishing the team makes express provision for that. However, they can normally be present during investigations on the ground in the team’s home State.
Europol and Eurojust personnel can be included in individual JITs. Eurojust is the EU’s agency for cooperation across national prosecution agencies. It supports the establishment and operation of JITs by, for example, assisting in the drafting of the JIT agreement, helping to coordinate investigative and prosecutorial strategies and providing financial assistance. It even provides a model Agreement enabling the relevant national authorities to establish a JIT swiftly.
The 2nd Additional Protocol to the Convention on Mutual Assistance in Criminal Matters is a Council of Europe, as distinct from EU, instrument. Nevertheless, the substance of its provisions on JITs is much the same as those in the Framework Decision (and EU Convention) as outlined above. The Second Additional Protocol came into effect in the UK in October 2010, and in Ireland in November 2011.
Ireland gave full effect to the EU Framework Decision by the Criminal Justice (Joint Investigations team) Act 2004. It designated the Garda Commissioner as the competent authority for the establishment of a JIT in Ireland, and for Irish participation in a JIT established in another Member State. Interestingly, Irish members of a JIT are not necessarily confined to gardaí. They can extend to officers of Customs and Excise, officers of the Revenue Commissioners, officers of a Government Minister and other persons with relevant experience or expertise.
For reasons that will become apparent below, it is worth noting that Ireland did not enact bespoke legislation to give effect to the terms of the Second Additional Protocol. It seems that it is relying on the 2004 Joint Investigations Team Act, together with ad hoc amendments or provisions, for that purpose.
The UK’s implementation of the Framework Decision and the Second Additional Protocol is more obscure. It has relied on an untidy mixture of Home Office Circulars (non-legally binding policy guidance which is generally followed in practice) and disparate statutory provisions in the Police Reform Act 2002 and the Crime (International Cooperation) Act 2003. The effect is to conceal the European basis for the measures, even though the intention would appear to be to satisfy the European requirements in practice.
Despite its coyness about the original legal source, the UK is one of the most active players in EU JITs. In 2017, for example, it was involved in a total of 65 JITs (24 new and 41 continuing). Typically, these have been established for serious crimes such as: drug-trafficking, trafficking in human beings, illegal immigration, fraud, money-laundering, vehicle crime and cybercrime. Operation Golf (2008-2010), for example, involved a highly successful JIT between the London Metropolitan Police and the Romanian National Police in combating a Romanian organised crime group specialising in the trafficking and exploitation of children from the Romanian Roma community. A less successful example is the JIT established by the Surrey Police and French police authorities to progress the investigation into the murder of three members of the al-Hilli family from Surrey and a French cyclist on a remote mountain road near Lake Annecy in the French Alps in 2012.
The net effect of these EU measures, and associated measures in Ireland and the UK, is that it has been legally possible for the Garda and PSNI to establish and participate in a formal JIT with each other for the past 15 years. Given their shared interests and challenges in tackling cross-border criminality, it is surprising that it has taken until November of this year for them to establish the first one. Equally surprising is the lack of transparency associated with it.
A lack of transparency?
A JIT injects a degree of transparency which can often be lacking in the practice of cross-border police cooperation. The formal Agreement establishing the team is potentially valuable for this purpose. One of the strange features of the first Garda/PSNI JIT, however, is the lack of public transparency attaching to its basic features. Indeed, it is quite striking how little information has been made publicly available. I asked the Garda Press Office for further basic and non-operationally sensitive details about the JIT about two weeks ago, but I have yet to receive a response or acknowledgment of any kind.
The most detailed information officially published on the Garda/PSNI JIT consists of a public announcement by the Garda Commissioner and a PSNI Assistant Chief Constable to a media briefing, followed by a press release from the Irish Minister for Justice. The Agreement underpinning the JIT has not been published, and I cannot find any reference to it on the website of either the Garda or the PSNI.
Most surprisingly, it is not clear where the JIT is formally located. Is it based in Northern Ireland or the Republic of Ireland? It is also not clear how many officers have been appointed/seconded to it; whether members can exercise investigative powers in both jurisdictions; and the time period for which the team has been established. There is even some uncertainty over the remit. While it seems clear that the remit includes the attack on Kevin Lunney and the wider campaign of intimidation against QIH management, it is not clear whether it extends to other aspects of cross-border criminality.
There is also a degree of fuzziness over the legal basis for this JIT. The ‘editorial note’ accompanying the press release from the Irish Minister for Justice said that the JIT was established under Article 20 of the Second Additional Protocol to the European Convention on Mutual Legal (sic) Assistance in Criminal Matters 1959. It is not entirely clear why this provision has been adopted as the legal basis. The more obvious one, at least for Irish purposes, would appear to be EU Framework Decision 2002/465/JHA on joint investigation teams. At least that has the merit of having been implemented into Irish law through the medium of a bespoke detailed statutory enactment, namely the Criminal Justice (Joint Investigations Team) Act 2004.
Interestingly, the 2004 Act was subsequently applied to give effect to the JIT provisions of the Second Additional Protocol to the Council of Europe’s 1959 Convention. The immediate intention behind that, however, would appear to be the application of the 2004 Act to designated States outside the EU. Citing the Protocol as the legal basis for the Garda/PSNI JIT, therefore, conveys the impression that the PSNI is participating as a police force from a State party to the Council of Europe’s Protocol, rather than as an EU Member State that has adopted the EU’s Framework Decision. Having said that, a statement from the Irish Minister for Justice on the JIT states that it “involves Eurojust”. This suggests that it is established under the EU’s Framework Decision. The position is not quite clear.
One further murky aspect of the Garda/PSNI JIT concerns how it came about. Three days before it was announced, the Taoiseach (Irish Prime Minister) stated in the Dáil (Lower House of Irish Parliament) that he had discussed the possibility of a JIT with the Garda Commissioner who is reported as having replied that he would examine the practicalities of doing so. The Taoiseach stated (correctly) that that can be done quite quickly. Later the same day in the Dáil, the Minister for Justice said that a joint investigation into the Lunney attack was ongoing, including the sharing of information and evidence, between the Garda and the PSNI. Significantly, he made no mention of a JIT being considered. However, when welcoming the establishment of the JIT three days later, the Minister said that the initiative had been in preparation for some time. While it is not impossible to reconcile the Minister’s comments with those of the Taoiseach, there is a sense that either or both were not being fully transparent on how the JIT came about.
The establishment of this first formal JIT on the island of Ireland is welcome as a realistic response to the policing and criminal law enforcement challenges presented by a jurisdictional border that is essentially invisible. It will have to be the first of many to enable the Garda and PSNI pool their resources effectively in combating the activities of the cross-border criminal gangs. Hopefully, they will adopt a much more transparent approach to the establishment of such JITs in the future.