Select Committee on European Scrutiny Second Report


COM(01) 521

Draft Council Framework Decision on combating terrorism.

Legal base: Articles 24(2)(b), 29 and 31(e) EU; consultation; unanimity
Document originated: 19 September 2001
Forwarded to the Council: 19 September 2001
Deposited in Parliament: 27 September 2001
Department: Home Office
Basis of consideration: EM of 11 October 2001
Previous Committee Report: None
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


8.1 The European Council met in extraordinary session on 21 September 2001 to analyse the international situation following the terrorist attacks in the United States on 11 September. The European Council approved a plan of action in which it signified its agreement to the adoption of a common definition of terrorism as well as the introduction of a European arrest warrant.

8.2 At the meeting of the Justice and Home Affairs Council on 20 September, the Council considered the draft Framework Decision and emphasised 'the urgent need for a common understanding, not only politically but also legally, of what terrorism means in order to facilitate transborder cooperation' and also the need 'to overcome the requirement of double criminality[12] in terrorist cases'.

The Framework Decision

8.3 The proposal is based on Article 34(2)(b) EU, which empowers the Council to adopt framework decisions 'for the purpose of approximation of the laws and regulations of Member States'. The Commission's explanatory memorandum points out that only six Member States (France, Germany, Italy, Portugal, Spain and the United Kingdom) have specific legislation defining terrorism. Such definitions appear to depend on the motivation of the offender. In the Commission's view, 'if the motivation is to alter seriously or to destroy the fundamental principles and pillars of the state, intimidating people, then there is a terrorist offence'.

8.4 Article 2 defines the scope of the Framework Decision. It is to apply to terrorist offences which are committed in whole or in part within a Member State, or which are committed by a national of a Member State. In addition, the Framework Decision applies to offences which are committed for the benefit of a legal person established in a Member State, or which are committed against the institutions or people of a Member State.

8.5 Article 3 of the Decision defines[13] a terrorist offence as an offence (being one of the acts referred to in Article 3.1(a) to (m)) which is:

    'intentionally committed by an individual or a group against one or more countries, their institutions or people with the aim of intimidating them and seriously altering or destroying the political, economic, or social structures of a country'.

8.6 The relevant acts in Article 3.1(a) to (m) include such offences against the person as murder, 'bodily injuries' and kidnapping or hostage taking. They also include extortion, theft or robbery, 'unlawful seizure of or damage to state or government facilities, means of public transport, infrastructure facilities, places of public use and property'. In addition, there are included offences of making or possessing explosives and weapons, releasing contaminating substances, causing fires, explosions or floods, endangering people, property or the environment, interfering with or disrupting the supply of water or power and 'attacks through interference with an information system'. They are also to include threats to do any of the above, or 'directing a terrorist group' or promoting, supporting or participating in a terrorist group. 'Terrorist group' is defined as a 'structured organisation established over a period of time, of more than two persons, acting in concert to commit terrorist offences'.

8.7 Articles 4 and 5 deal with connected offences (such as instigating,[14] aiding and abetting) and with penalties. Article 6 requires Member States to ensure that the penalties 'may be increased' in particular aggravating circumstances. These circumstances include those where the offence is committed 'with particular ruthlessness' or where it 'affects a large number of persons or is of a particularly serious and persistent nature'. The final category seeks to identify, as constituting an aggravating circumstance, attacks on particular persons such as 'Heads of State, Government Ministers, internationally protected persons, elected members of parliamentary chambers, members of regional or local government, judges, magistrates, judicial or prison civil servants and police forces.'

8.8 Article 7 provides for 'mitigating circumstances', requiring Member States to ensure that penalties may be reduced in circumstances where the offender 'renounces terrorism' or assists the administrative or judicial authorities with information.

8.9 Article 8 provides for the liability of legal persons. It requires Member States to ensure that legal persons can be held liable (although not necessarily criminally liable)[15] for terrorist offences carried out for their benefit by any person who has a 'leading position' within the legal person. Article 8(2) provides for the legal person to be held liable where the lack of supervision or control by a person having a leading position within the legal person 'has made possible' the commission of terrorist offences.

8.10 Article 10 is a key provision dealing with jurisdiction. Member States are required to make rules to establish jurisdiction where the offence is committed in whole or in part within its territory (the territoriality principle). In addition, optional jurisdictional rules are set out in Article 10.1 (b) to (d). Under these, each Member State is to establish jurisdiction (unless it decides otherwise for specific cases), where the offence is committed by one of its nationals, or is committed for the benefit of a legal person having its head office in that Member State,[16] or where the offence is committed 'against its institutions or people'.

8.11 These grounds of jurisdiction are limited when compared with those for offences which, by virtue of international conventions, are crimes of 'universal' jurisdiction i.e. ones which may be prosecuted by any Contracting State, irrespective of questions of nationality or territoriality.[17] It is not clear if Article 10 has the effect of excluding or limiting the broader grounds of jurisdiction which have become internationally accepted in this field.

8.12 Article 11 is concerned with extradition. The Commission explains that these provisions may be overtaken by the proposed measure on the European arrest warrant. The Article requires those Member States which do not extradite their own nationals to make rules to establish jurisdiction over such nationals where they commit terrorist offences in the territory of another Member State. As with Article 10, the scope of the provision is limited, since a number of international conventions already require States to establish jurisdiction where they do not extradite, whether or not the person in question is a national.[18]

8.13 Articles 12 and 13 deal with co-operation and exchange of information. Article 14 is a provision which is described as being for the protection of victims. It provides that the investigation or prosecution of a terrorist offence should not be 'dependent on the report or accusation made by a victim of the offence, at least in cases where Article 8 (1)(a) applies'. The Commission explains that victims of certain kinds of terrorist offences, such as threats or extortion, are vulnerable and that it is therefore appropriate to ensure that investigations or prosecutions are not dependent on reports or accusations by a person subject to the offence. The Commission does not indicate if this is the case in any Member State. Moreover, provision has already been made for the protection of prosecution witnesses and the victims of crime in 2001/201/JHA Council Framework Decision on the standing of victims in criminal proceeding.[19] It is far from clear why the provision made in Article 14 is particularly necessary in the case of offences by legal persons.

8.14 Articles 15 and 16 deal with implementation, reports and entry into force. Member States are required to comply with the Framework Decision by the end of 2002.

The Government's view

8.15 In his brief Explanatory Memorandum, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) explains that the measure is aimed at reinforcing criminal law measures within the Member States to combat terrorism. The Minister describes the policy implications of the measure as follows:

    "No major policy implications. While the proposal should help Member States strengthen where needed their domestic legislation, the UK already possesses comprehensive counter-terrorist legislation, which we are looking to strengthen further in response to the 11 September attacks in the United States through the introduction of an Emergency Anti-Terrorism Bill."


8.16 We would have found it helpful if the Minister had explained more fully how the proposal would affect the law of the United Kingdom, in particular how it compares with the provisions of the Terrorism Act 2000.

8.17 In a number of respects, the proposal appears to us to be not well adapted to terrorist crimes, and we ask the Minister if he agrees that the provisions on sanctions and aggravating or mitigating circumstances are neither necessary nor helpful.

8.18 We would be grateful if the Minister would explain how the provisions of Article 8 on liability of legal persons would operate, if at all, in relation to a body such as a terrorist organisation which has no recognised legal status.

8.19 We note with concern the very limited nature of the provisions on jurisdiction. These appear to us to fall short of the requirements of international conventions in this area, notably of the United Nations Conventions on the Suppression of Terrorist Bombings and the Suppression of Financing Terrorism, which, for example, require (and do not merely permit) States to establish jurisdiction over their own nationals, irrespective of the place where the offence is committed. We ask the Minister for his comments on the question of jurisdiction and, in particular, if he can assure us that the Framework Decision will not have the effect of limiting the broader grounds of jurisdiction which have become internationally accepted in this field.

8.20 We ask the Minister to explain the purpose and effect of Article 14, in particular as to why the protection of victims is thought to be particularly necessary where liability in respect of terrorist offences is to be imputed to a legal person. It seems to us that the provision is either unnecessary (because provision has already been made in the Framework Decision on the Standing of Victims in Criminal Procedure), or that it should apply to terrorist offences generally.

8.21 We ask the Minister to ensure that we receive his reply in time to consider the document again before any decisions are taken.

12   That is, the requirement that given conduct should be criminal in both the state requesting extradition and the state granting extradition. Back

13  The definition is therefore very similar to that contained in s.1 Terrorism Act 2000. An equivalent to Article 3.1(a) to (m) is found in s.1(2). The equivalent provisions on motivation are contained in s.1(1)(a) and (b) which refer to the use or threat of action;
'(b) which is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause'. 

14  It is not clear if incitement is also included. Back

15  See the Commission's Explanatory Memorandum on Article 8. Back

16  It is not clear that the concepts of a 'legal person' or a 'head office' are particularly useful in the context of terrorist organisations, since these are unlikely to enjoy any legal recognition in the Member States. The Terrorism Act 2000 (s.121) refers instead to 'organisation' as 'any association or combination of persons', and no question of legal status arises. Back

17  For example, Article 6 of the 1997 UN Convention for the Suppression of Terrorist Bombings requires (not merely permits) States to establish jurisdiction where the offence is committed by one of its own nationals. By virtue of Article 6.4 of that Convention, a State is required to establish jurisdiction where the offender is present within its territory and it does not extradite the offender to another State party to the Convention. Such extended jurisdiction is provided for in s.62 and 63 Terrorism Act 2000. Back

18  See Articles 6 and 8 of the UN Conventions for the Suppression of Terrorist Bombings, and for the Suppression of Financing Terrorism.  Back

19  (21732) 11855/00; see HC 28-i (2000-01), paragraph 2 (13 December 2000). Back

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