The Criminal Justice (European Investigation Order) Regulations 2017

Meaning of “under the same conditions in a similar domestic case”

11.—(1) When deciding for the purposes of regulation 6(4)(b) or 7(4)(b) whether an investigative measure could lawfully have been ordered or undertaken under the same conditions in a similar domestic case, the judicial authority or designated public prosecutor (“the relevant authority”) must consider in particular the following matters.

(2) Where the investigative measure requested is one which would require the issue of a relevant instrument before it could be lawfully carried out in the United Kingdom, the relevant authority must consider whether it could have issued such an instrument taking into account in particular—

(a) the nature of the evidence to be obtained;

(b) the purpose for which that evidence is sought (including its relevance to the investigation or proceedings in respect of which the European investigation order is sought);

(c) the circumstances in which the evidence is held;

(d) the nature and seriousness of the offence to which the investigation or proceedings relates;

(e) any provision or rule of domestic law applicable to the issuing of such an instrument.

(3) Where the investigative measure requested is one which would require authorisation under any enactment relating to the acquisition and disclosure of data relating to communications, or the carrying out of surveillance, before it could be lawfully carried out in the United Kingdom, the relevant authority must consider whether such authorisation—

(a) has in fact been granted, or

(b) could have been granted, taking into account in particular—

(i) the matters specified in sub-paragraphs (a) to (d) of paragraph (2), and

(ii) the provisions of the enactment applicable to the granting of such authorisation.

(4) Where the investigative measure requested is in connection with, or in the form of, the interception of communications, the relevant authority must consider whether any additional requirements relating to the making of such a request, imposed by any enactment other than these Regulations, have been complied with.

(5) Paragraph (2)(e) does not require the relevant authority to take into account any provision of domestic law imposing a procedural requirement which the judicial authority or designated public prosecutor considers cannot effectively be applied when making a European investigation order for the investigative measure concerned.

(6) For the purposes of this regulation—

“relevant instrument” includes a warrant, order, notice, witness summons, citation or equivalent instrument;

“enactment” means an enactment whenever passed or made and includes—

(i)

an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978(1);

(ii)

an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;

(iii)

an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales, and

(iv)

an enactment contained in, or in an instrument made under, Northern Ireland legislation.

(1)

1978 c. 30.