The implementation and practical application of the European Investigation Order in the United Kingdom: an academic perspective

The EIO directive is an important measure for improving EU criminal justice cooperation. Its introduction marks a rapid intensification of the change within the EU legal order from a MLA to a MLR evidence gathering regime. This has been generally welcomed in the UK, but could amplify two risks within the English criminal justice system: inadequate protection for defence rights, and significant and potentially complex extra work when its resilience is already threatened by fiscal austerity. Both risks are resource related (especially inadequate legal aid funding), but the EIO’s impact will be magnified in some cases by potential complexities stemming from differences between member state legal systems. Also this change is taking place at a time when there are already substantial concerns about evidence gathering and analysis, and the protection of defence rights (particularly disclosure) in English proceedings. These challenges (not restricted perhaps to the UK) and the politico-legal consequences of any problems in EIO implementation suggest that thought might be given to whether limits could or should be imposed on the number of EIOs that can be executed. There are multilateral and unilateral precedents for rationing in the implementation of earlier EU criminal justice cooperation measures, but achieving this for the EIO directive would be much more difficult.