Making the case for ECRIS

Publication Date01 October 2017
DOI10.1177/1365712717692813
AuthorAdam M Jackson,Gemma Louise Davies
Date01 October 2017
SubjectArticles
EPJ692813 330..350 Article
The International Journal of
Evidence & Proof
Making the case for ECRIS:
2017, Vol. 21(4) 330–350
ª The Author(s) 2017
Post-‘Brexit’ sharing of
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criminal records information
DOI: 10.1177/1365712717692813
journals.sagepub.com/home/epj
between the European Union
and United Kingdom
Adam M Jackson
Northumbria Centre for Evidence and Criminal Justice Studies, Northumbria University, UK
Gemma Louise Davies
Northumbria University, UK
Abstract
Criminal record information has various uses, including, in the detection of crime, as evidence
in criminal proceedings, in consideration of an appropriate sentence after conviction and in
determining the suitability of an individual for, or providing a bar to, employment. As such this
information can have a high value but can also significantly interfere with a person’s right to
private and family life under Article 8 of the European Convention on Human Rights. The
importance of Article 8 in this area has been increasingly recognised both domestically and in
Strasbourg, with such case law making clear the imperative that criminal record information is
accurate, retained and disclosed only in proper circumstances and, where appropriate, is
capable of being subject to proper challenge. The operation of the European Criminal Records
Information System (ECRIS) for exchange of criminal records between Member States is
explored and the benefits and risks of exchanging criminal records information within such an
automated system are identified. The compliance of ECRIS to Article 8 ECHR is considered
and suggestions made for future improvements. Evidence is provided that ECRIS constitutes a
singular improvement on earlier ad hoc arrangements and should therefore be retained by the
United Kingdom post-Brexit.
Keywords
Article 8 ECHR, Brexit, criminal records, criminal justice co-operation, ECRIS, information
sharing
Corresponding author:
Adam M Jackson, Northumbria Law School, Northumbria University, CCE1 – Room 352, Newcastle upon Tyne, NE1 8ST, UK.
E-mail: adam.jackson@northumbria.ac.uk

Jackson and Davies
331
Introduction
The European Criminal Records Information System (ECRIS) was established in 2012 to enable
Member States to exchange criminal records information for criminal justice purposes. Currently
Member States send approximately 288,000 requests per year on previous criminal convictions across
the EU through ECRIS (European Commission, 2016). The European Commission is currently in the
process of expanding the system to include the exchange of criminal records information of non-EU
citizens (European Commission, 2016). The position of the United Kingdom within the European Union
is currently the subject of major uncertainty following the result of the referendum held on the 23 June
2016 in which the United Kingdom voted by a majority of 52% to 48% to leave the European Union
(‘Brexit’). The timescale and mechanism for the withdrawal of the United Kingdom from the European
Union and the nature of the future relationship is, at the time of writing, unknown. What is clear is that
there is likely to be a protracted series of negotiations to establish new (or retain existing) UK–EU
relationships in areas such as trade, migration and criminal justice co-operation.
This paper will present a case supporting the retention of ECRIS as part of post-Brexit UK–EU
criminal justice cooperation and, by reviewing the operation of the system and its compliance with
Article 8 ECHR, seek to provide a justification for the retention of ECRIS as the fairest, most efficient
and most robust mechanism of exchange available. It is clear that the sharing of information in a union
predicated on the free movement of citizens is essential to the maintenance of law and order. It is
contended that due to the current high numbers of EU citizens resident in the UK (and vice versa) as
well as the likelihood that any post-Brexit access to the European free market will require at least some
form of free movement agreement, the sharing of criminal justice information between the UK and EU
will remain imperative.
As identified above, consideration will be given to the operation of ECRIS and the extent to which the
current system for the automatic transmission of criminal records information allows Member States to
understand and utilise the information received in a fair, reliable and lawful way. Equally any automated
system has to ensure that the information which is exchanged is accurate, retained and disclosed only in
proper circumstances and, where appropriate, subject to challenge. The considerable benefitfs offered by
ECRIS will be emphasised and any continuing difficulties identified, drawing inter alia upon the
authors’ findings from a pre-ECRIS research project. Although there have been significant case law
developments in relation to the proportionality of the UK system of recording and sharing criminal
records information,1 there has been little review or consideration of ECRIS to date. The potential
Article 8 implications emanating from the exchange of criminal records information via ECRIS will
be explored and suggestions for appropriate changes in policy and practice will be made.
Criminal records information may be used for a number of purposes, including: in evidence in
criminal proceedings,2 the determination of an appropriate sentence following conviction3 and in deter-
mining the suitability of an individual for, or in some instances providing a bar to, employment.4 The
1. See, for example, R (on the application of P) v Secretary of State for Justice [2016] EWHC 89 (Admin); Gallagher’s
Application for Judicial Review, Re [2015] NIQB 63; R. (on the application of T) v Chief Constable of Greater Manchester
[2014] UKSC 35; MM v United Kingdom (24029/07) ECHR; 13 November 2012; R (on the application of L) v Commissioner of
Police of the Metropolis [2009] UKSC 3. See also Grace (2014).
2. For example; in determining whether a defendant is entitled to a good character direction, see R v Benjamin [2015] EWCA
Crim 1377; or as evidence of a defendant’s bad character subject to the application of Part 11, Chapter 1 of the Criminal Justice
Act 2003, see R v Cortes Plaza [2013] EWCA Crim 501; R v Brooks [2014] EWCA Crim 562; R v Mehmedov [2014] EWCA
Crim 1523.
3. In England and Wales, by virtue of s. 143 (2) of the Criminal Justice Act 2003, a sentencing court when determining the
seriousness of an offence must consider a defendant’s previous conviction(s) as an aggravating factor provided the convic-
tion(s) can reasonably be so treated having regard, in particular, to the nature of the offence(s) and its relevance to the current
offence(s) and the time that has elapsed since conviction.
4. See R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3.

332
The International Journal of Evidence & Proof 21(4)
European Union has set itself the objective of providing citizens with a high level of safety within the
area of freedom, security and justice.5 In a union which facilitates the free movement of its citizens it is
perhaps axiomatic that achieving this objective presupposes the exchange, between the competent
authorities of the Member States, of information extracted from criminal records (Mitsilegas, 2009a,
ch. 5; Monar, 2007). This is emphasised, in the context of criminal proceedings by the requirement of
Article 3(1) of Council Framework Decision 2008/675/JHA that:
Each member state shall ensure that in the course of criminal proceedings against a person, previous con-
victions handed down against the same person for different facts in other member states, in respect of which
information has been obtained under applicable instruments on mutual legal assistance or on the exchange of
information extracted from criminal records, are taken into account to the extent previous national convic-
tions are taken into account, and that equivalent legal effects are attached to them as to previous national
convictions, in accordance with national law.
The case of Michel Fourniret6 provides a cogent example of the need for such information exchange
between Member States. In 1987 Fourniret was sentenced to seven years’ imprisonment in France for
sexual offences involving minors. He was released after less than one year in custody for a combination
of good behaviour and due to a period of time spent in custody prior to his conviction. Following his
release, Fourniret moved to Belgium, where he was able to secure employment as a school supervisor as
a result of the Belgian authorities being unaware of his convictions. In 2004 Fourniret admitted murder-
ing nine young women and girls in the Ardennes border region between Belgium and France. In respect
of the fact that Fourniret’s previous convictions for sexual offences had not been shared with other
Member States, the French Public Prosecutor, Yves Charpenel, commented in an interview with AFP
News; ‘At the time there were no laws to ensure the traceability of sexual offenders, so in my view there
were no failures of the system, given the judicial context at the time’ (BBC News, 2004). More recently,
terror attacks in Paris and Brussels have again highlighted the need for effective information sharing
between Member States. Veˇra Jourova´, Commissioner for Justice, Consumers and Gender Equality,
stated, ‘the Paris attacks in November [2015] confirmed the urgent need for more robust and seamless
judicial cooperation throughout the EU’ (European Commission, 2016).
In the...

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