What would happen if ….. ?

It seems that the armed police unit SO19 officers are not happy. 120 of them have downed tools, that is, guns because of the court finding that the killing of Harry Stanley in 1999 was illegal. Harry Stanley was the chap who was shot because the wrapped table leg he was carrying was mistaken by the police for a sawn-off shotgun. It is not clear whether there will be prosecutions but, at any rate, the killing is deemed to be illegal.

The officers, according to Glen Smyth, Chairman of the Metropolitan Police Federation, no longer know what sort of rules they operate under and, therefore, understandably, would rather not operate with guns in their hands. According to Mr Smyth, as quoted by Reuter’s “it had been accepted that the officers who had been suspended were acting during the incident in accordance with their training”. That raises the question of training that instructs officers to shoot because somebody is carrying a parcel that might conceivably be a sawn-off shotgun but probably is not. We are not, after all, talking about Belfast or Baghdad, but the streets of London.

There is, however, another aspect to the problem of police operating in London, and one that has not, so far, been raised by anyone in authority. Mr Smyth talks of the officers seeking “guidance, clarity and reassurance”. Well, may I humbly suggest that some of us would like some guidance, clarity and reassurance on the subject of Europol and some rather odd aspects to its existence?

On the Europol website there is this solemn introduction:

“Europol is the European Law Enforcement Organisation which aims at improving the effectiveness and co-operation of the competent authorities in the Member States in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international organised crime.”

Excellent, one thinks, but somewhat unnecessary, as Interpol has been dealing with the same issues for some time, reasonably successfully and there is no particular reason to suppose that this organization would be better.

Further text is no more revealing. What does the following sentence mean, for instance:

“The mission of Europol is to make a significant contribution to the European Union’s law enforcement action against organised crime, with an emphasis on targeting criminal organisations.”?

We know that the war on terror has been a useful excuse for the EU to try to integrate many of the law promoting and law-enforcing organizations, pleading that integration is absolutely essential for information to be passed from country to country. It isn’t as it happens. What is essential is the will to deal with terrorists and terrorist organizations not the mealy-mouthed ambivalence that has characterized European attitudes.

Among the suggested measures are a greater uniformity of law and criminal procedure, the creation of a European Public Prosecutor (an old idea that, together with the European Arrest Warrant, predates the attacks of 9/11), a European Corps of Border Guards, more power to Eurojust and – here is a thing, as they say – making Europol into an investigative police force. We have covered these suggestions in several earlier blogs.

The position of Europol thus becomes rather interesting. But it is not altogether surprising. Some suspicion was raised a while ago when it became obvious that for just a few hundred staff, a rather large and elaborate structure both in managerial and resource terms was being set up. Whatever for, we asked ourselves.

Then, in 1997, several Statutory Instruments were passed, more or less on the nod, about the European Police Office. Of particular interest is SI 2973/97, entitled The European Communities (Immunities and Privileges of the European Police Office) Order 1997.

The title does not deceive. It goes through all the various immunities staff of Europol will have wherever they happen to operate, in this case the UK. No taxes or rates, no insurance or car tax or VAT; they are not to be hassled by customs or excise, should they wish to import or export anything; and their office and files will enjoy diplomatic protection, that is, no matter what information they might collect and no matter how many Acts of Freedom of Information we may pass, Europol will keep its secrets.

Part II, Article 6 states:

“Europol shall have immunity from suit and legal process, except to the extent that the Director shall have waived such immunity in a particular case, in respect of any damage caused to an individual as a result of legal or factual errors in data stored or processed at Europol.”

Hmm. One cannot help wondering about that.

Or what are we to make of Part III, Article 15:

“Except in so far as in any particular case any privilege or immunity is waived by the Board, in the case of the Director, Financial Controller and members of the Financial Committee, by the Director, in the case of staff members of Europol, or, in the case of the members of the Board, by the Member State of the European Union of which the member is the representative, such persons shall enjoy immunity from suit and legal process in respect of acts, including words written or spoken, done by them in the exercise of their official functions, except in respect of civil liability in the case of damage arising from a road traffic accident caused by them.”

Good. At least, if they prang your car, pursuing a suspected international drug dealer, they will be liable to you. Though if said suspect turns out to be completely innocent, well, too bad. The officers in question are exempt from suit and legal process, unless their bosses say otherwise.

That brings me back to the table leg case. As we know, the Italian Minister of Foreign Affairs already describes Europol as an operational force and that is certainly what is proposed under Tampere II. Well, now, what will happen in the case of a joint operation? Will Europol officers have immunity, if a man gets shot because he is carrying a wrapped table leg, which could be a sawn-off shotgun, while Met officers have to be responsible for their actions? Do we know what the chain of command will be? Who will be taking responsibility? More to the point, does the newly appointed Commissioner, Sir Ian Blair know?