The Criminal Procedure Rules 2020

Application to make, vary or revoke a European investigation order

47.61.—(1) This rule applies where—

(a) one of the following wants the court to make a European investigation order—

(i) a constable, acting with the consent of a prosecuting authority,

(ii) a prosecuting authority, or

(iii) a party to a prosecution; and

(b) one of the following wants the court to vary or revoke a European investigation order made by the court—

(i) the person who applied for the order,

(ii) a prosecuting authority, or

(iii) any other person affected by the order.

(2) The applicant must—

(a) apply in writing and serve the application on the court officer;

(b) demonstrate that the applicant is entitled to apply;

(c) if, and only if, the court cannot determine an application for a European investigation order in the absence of a respondent or other person affected (see rule 47.60(3)), serve on that respondent or other person such notice of the application as the court may direct; and

(d) serve notice of an application to vary or revoke a European investigation order on, as appropriate, the person who applied for the order and any other person affected by the order.

(3) An application for the court to make a European investigation order must—

(a) specify the offence under prosecution or investigation;

(b) explain why it is suspected that the offence has been committed;

(c) describe, as appropriate—

(i) the proceedings for the offence, or

(ii) the investigation;

(d) specify the investigative measure or measures sought for the purpose of obtaining evidence for use in the proceedings or investigation, as the case may be;

(e) specify the participating State in which the measure or measures are to be carried out;

(f) explain why it is necessary and proportionate to make a European investigation order for the purposes of the proceedings or investigation;

(g) where a measure is one which would require the issue of a warrant, order, notice or witness summons before it could be lawfully carried out in England and Wales, explain how such an instrument could have been issued taking into account—

(i) the nature of the evidence to be obtained,

(ii) 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),

(iii) the circumstances in which the evidence is held,

(iv) the nature and seriousness of the offence to which the investigation or proceedings relates, and

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

(h) where a measure 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 England and Wales, explain whether such authorisation has in fact been granted, or could have been granted, taking into account—

(i) the factors listed in paragraph (3)(g)(i) to (iv), and

(ii) the provisions of the legislation applicable to the granting of such authorisation;

(i) where a measure is in connection with, or in the form of, the interception of communications, explain whether any additional requirements imposed by legislation relating to the making of such a request have been complied with;

(j) where the application is for an order specifying one of the measures listed in any of regulations 15 to 19 of the Criminal Justice (European Investigation Order) Regulations 2017(1) (banking and other financial information; gathering of evidence in real time; covert investigations; provisional measures; interception of telecommunications where technical assistance is needed), explain how the requirements of that regulation are met; and

(k) attach a draft order in the form required by regulation 8 of the 2017 Regulations (Form and content of a European investigation order) and Directive 2014/41/EU.

(4) An application for the court to vary or revoke a European investigation order must—

(a) explain why it is appropriate for the order to be varied or revoked;

(b) propose the terms of any variation; and

(c) ask for a hearing, if one is wanted, and explain why it is needed.

(5) Where the court—

(a) makes a European investigation order the court officer must promptly—

(i) issue an order in the form required by regulation 8 of the 2017 Regulations (Form and content of a European investigation order) and Directive 2014/41/EU,

(ii) where the applicant is a constable or a prosecuting authority, serve that order on the applicant, and

(iii) in any other case, serve that order on the appropriate authority in the participating State in which the measure or measures are to be carried out; and

(b) varies or revokes a European investigation order the court officer must promptly notify the appropriate authority in the participating State in which the measure or measures are to be carried out.

[Note. Under regulation 6 of the Criminal Justice (European Investigation Order) Regulations 2017 the court may make an order specifying one or more ‘investigative measures’ that are to be carried out in a State listed in Schedule 2 to those Regulations (a ‘participating State’) for the purpose of obtaining evidence for use in a criminal investigation or criminal proceedings. Under regulation 10 of the 2017 Regulations the court may vary or revoke such an order.

Under regulations 6(4)(b) and 11 of the 2017 Regulations any such measure must be one that could have been ordered or undertaken under the same conditions in a similar domestic case; but under regulation 11(5) that does not require the court to take into account any provision of domestic law imposing a procedural requirement which the court considers cannot effectively be applied when making a European investigation order for the measure concerned.

See also regulations 9 and 10(5), (6) of the 2017 Regulations, which govern the transmission of an order or varied order and the giving of notice of revocation of an order.

The Practice Direction sets out a form of application for use in connection with this rule.]

(1)

S.I. 2017/730.