Select Committee on European Scrutiny Fourth Report


COM(01) 521


Draft Council Framework Decision on combating terrorism.

Draft Council Framework Decision on combating terrorism.

Legal base: Articles 24(2)(b), 29 and 31(e) EU; consultation; unanimity
Document originated: (b) 10 October 2001
Forwarded to the Council: (b) 10 October 2001
Deposited in Parliament: (b) 25 October 2001
Department: Home Office
Basis of consideration: (b) EM of 31 October 2001
Previous Committee Report: (a) HC 152-ii (2001-02), paragraph 8 (17 October 2001)
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


4.1  We considered a first draft of this proposed Framework Decision (document (a)) at our meeting on 17 October. We held the document under scrutiny pending the Minister's reply to a number of questions, notably as to the operation of the Decision in relation to legal persons, and as to the very limited nature of the provisions on jurisdiction which seemed to fall short of those under UN conventions on this subject.[11]

4.2  The revised draft of the Framework Decision (document(b)) records the state of negotiations on the matter by 10 October.

The revised draft Framework Decision

4.3  The revised draft makes a number of detailed changes, but the most significant are those relating to penalties and to jurisdiction.

4.4  As before, Article 1 contains a list of substantive offences which become terrorist offences if committed with a specific intent of 'affecting....or destroying the political, economic or social structures of a country or an international organisation'. Article 1 has been amended by including a reference to 'the intimidation of the population' as an example of this specific intent. Article 1 has been further amended by including homicide and 'aggravated' robbery in the list of substantive offences, and by deleting theft from the list.

4.5  Whereas the previous draft referred to offences which were intentionally committed, the revised draft refers to acts which are 'unlawful'. These are defined in a new Article 1(2) as acts 'committed without any justification laid down in national law or in international public law.'[12]

4.6  The provisions relating to terrorist groups are now contained in an expanded Article 2. As before, 'terrorist group' is defined as a 'structured organisation of more than two persons, established over a period of time, acting in concert to commit terrorist offences'. Member States are required to ensure that a number of 'intentional and unlawful'[13] acts are punishable. The offence of directing or participating in a terrorist group has remained unchanged, but the offence of supporting a terrorist group is not committed unless the support is given 'with a view to the commission of terrorist offences by supplying it with information or material resources, including funding[14] for its activities'. This represents a narrowing of the offence proposed in document (a) which simply referred to promoting or supporting a terrorist group. On the other hand, Article 2 now contains a new offence of 'laundering the proceeds of terrorist or other offences committed as part of a terrorist group'.

4.7  Article 3 refers to the offences of instigating, aiding or abetting, or attempting[15] a terrorist offence or any of the offences in Article 2. Article 3 has been amended so that there is now to be no offence of attempting to possess weapons or explosives or an attempt to threaten to commit a terrorist offence.[16]

4.8  The provisions on penalties (previously in Article 5, but now in a new Article 4) have been substantially revised. In place of the previous list of maximum penalties ranging from two years' to twenty years' imprisonment, there is now a general provision in Article 4(2) requiring Member States to provide for sentences of imprisonment which are heavier than those which would be imposed if the specific terrorism intent had not been shown. In relation to the offence of directing a terrorist group, Member States are to provide for a sentence of at least twenty years' imprisonment. A sentence of at least eight years' imprisonment is to be provided for in the case of the other offences related to a terrorist group (i.e. participating, supporting with information or material resources and laundering the proceeds of offences).

4.9  As with the previous version, there are provisions on aggravating circumstances (Article 5) and reduction of penalties (Article 6). Whereas the previous version required Member States to provide for increased penalties in all cases where the aggravating circumstances were in issue, the present version of Article 5 does not require Member States to increase the sentence 'where the sentences imposable are already the maximum sentences possible under national law.'[17] The circumstances which are to be regarded as aggravating include those where the offence is 'of a particularly cruel nature',[18] (but no guidance is given as to how this is to be assessed), or where it is committed against a number of persons with the use of serious violence or with the causing of particularly serious harm to the victims, or where it is committed against one or more persons particularly exposed to terrorist offences on account of their public office.[19]

4.10  Article 6 deals with the reduction of penalties and has remained substantially unchanged, except that the information which a person renouncing terrorism provides must now be information which the authorities 'would not otherwise have been able to obtain' before the person is eligible for a reduction in sentence.

4.11  Articles 7 and 8 contain provisions on the liability of and penalties for legal persons which are in substance the same as in the previous versions.

4.12  Article 9 contains expanded rules on jurisdiction to replace the limited rules in the previous version. As far as territorial rules are concerned, Member States are required to make rules to establish jurisdiction over offences committed in whole or in part within the territory of a Member State of the EU.[20] In addition, they are to establish jurisdiction where the offence is committed on board a ship or aircraft registered in or flying the flag of a Member State.

4.13  Member States are also required to establish jurisdiction where the offence is committed by a national or resident of a Member State of the European Union. This marks a considerable extension of the previous version which only permitted (and did not require) that each Member State establish jurisdiction over its own nationals, with the additional proviso that the Member State could also require that the conduct be punishable in the country where it occurred.

4.14  The rules of jurisdiction over legal persons have been expanded so that each Member State is now required (and not simply permitted) to establish jurisdiction, not merely over a legal person having its head office in that State, but also over a legal person established in the territory of any Member State.

4.15  Finally, Member States are required to establish jurisdiction over an offence committed against the institutions or people of that Member State or against an EU or EC institution based in that Member State.[21]

4.16  The revised draft of the Framework Decision appears to recognise that it will give rise to cases where the courts of a number of Member States would be competent to try offences arising out of the same set of facts. Article 9(2) provides for the Member States to 'cooperate in order to decide which of them will prosecute the offenders with the aim, if possible, of centralising proceedings in a single Member State'. To this end it is provided that Member States may call on Eurojust 'to coordinate the action of the competent authorities' in accordance with the Decision setting up Eurojust.[22]

4.17  In relation to victims, the revised draft requires Member States to ensure that investigations into or prosecutions of terrorist offences should not be dependent on a report or accusation of a victim.[23] The revised Article 10(2) also requires Member States to apply 'where necessary and possible' Article 4 of the Framework Decision on the standing of victims in criminal proceedings.[24]

The Government's view

4.18  In his Explanatory Memorandum of 31 October the Parliamentary Under- Secretary of State at the Home Office (Mr Bob Ainsworth) describes the policy implications of the revised version as follows:

    "No major policy implications. Any extension of extraterritorial jurisdiction would be consistent with the approach already taken in relation to UN Conventions on terrorist bombing and finance. The Government welcomes the inclusion in the definition of terrorist offences, of offences of financing terrorism and money laundering. On penalties for terrorist offences and offences concerned with association with a terrorist group, the UK is committed to a firm stance against all forms of terrorism and tough sanctions against all those convicted of terrorist offences. The Government's strong preference is therefore to retain Article 5 of the original Commission proposal and will seek to improve the current text accordingly. Article 13 of the previous document, relating to co-operation provisions has been removed as it is not an appropriate provision in an approximation measure. The Government agrees with this change but would strongly support a separate measure to provide for operational co-operation in this area."


4.19  In our consideration of the previous draft of this proposal we raised a number of concerns which appear to be addressed in the revised version. We drew attention to the narrowness of the rules of jurisdiction in the previous draft, which seemed to us to fall short of those provided for in international conventions in this area, notably those adopted under the auspices of the United Nations. We welcome the broader rules of jurisdiction now provided for, which seem to us more appropriate to deal with the international nature of terrorist crimes.

4.20  Nevertheless, we still look to the Minister for his assurance that adoption of this Framework Decision will not have the effect of preventing the adoption by the United Kingdom of wider rules of extra-territorial jurisdiction, such as those now contained in section 62 and section 63 Terrorism Act 2000 (terrorist bombing and finance).

4.21  We welcome the simplification of the provisions relating to sentencing, but note with concern the open texture of the drafting, particularly the use of such subjective concepts as an offence 'of a particularly cruel nature', currently in Article 5 of the draft.

4.22  We also note that the revised provisions on 'aggravated circumstances' in Article 5 appear to have the effect of no longer requiring Member States to provide for any increase in penalties where a crime is committed for the purposes of terrorism. This appears to us to be a substantial weakening of the proposal and we ask the Minister to keep us informed of the progress of his efforts to improve the current text.

4.23  We note that the difficulty we identified with Article 14 of the previous draft (where it appeared that the protection of victims was linked — for no apparent reason — to offences to be imputed to a legal person) has now been resolved.

4.24  However, the new provision gives rise to a new difficulty. We would be grateful if the Minister would explain why the provisions of Article 4 of the Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings are to be applied only 'where necessary and possible'. It seems to us that the victims of terrorist crime are as entitled to information about their protection, access to legal advice, the outcome of proceedings and the other matters dealt with in Article 4 of that Decision as any other victim of crime.

4.25  We look forward to an early reply from the Minister on the points we have raised, and in the meantime we shall hold the documents under scrutiny.

11  See, for example, the 1997 UN Convention for the Suppression of Terrorist Bombings and the 1999 UN Convention for the Suppression of Financing Terrorism. Back

12  It is not clear why this provision is necessary, since the question of whether an act is lawful is already determined by the applicable national law.  Back

13  It is again not clear why the reference to being 'unlawful' is necessary, since the acts are to be made punishable under national law. The requirement that the act be 'intentional' seems to be different from that under Article 1. Back

14  cf. The fund-raising offence under s.15(3) Terrorism Act 2000. Back

15  It is not clear if this would include a conspiracy to commit one of the offences listed in Articles 1 or 2. Back

16  Presumably, this is because attempts to make, acquire, transport or supply weapons or explosives are already covered, and an attempted threat remains a threat covered by Article 1(1)(k). Back

17  As the existing statutory maximum penalties are presumably already the maximum possible under national law, the new provision appears to produce the result that there is in practice no obligation to provide for increased penalties. Back

18  The previous version referred to an offence being committed 'with particular ruthlessness'. Back

19  This latter provision replaces the list of office-holders in the previous Article 6.  Back

20  The previous version referred only to the territory of the relevant Member State. Back

21  In most cases, such an offence would already fall under one of the territorial or nationality jurisdiction rules, but this provision might cover the case of an attack on an EU or EC mission in a third country. Back

22  See (22273) 7408/01, (22370) 7408/1/01 and (22455) 7408/2/01; HC 152- i (2001-02), paragraph 8 (18 July 2001). The Decision establishing Eurojust has yet to be adopted. Back

23   This rule now applies to all terrorist offences, not just (as in the previous draft) to offences committed for the benefit of a legal person. Back

24  OJ No. L 82, 22.3.01, p.1. Article 4 provides for the right of victims to receive information inter alia as to how and under what conditions they can receive protection, legal advice and compensation, as well as to information as to the outcome of the case. It is far from clear why the rights which have been conferred on victims under this Framework Decision should now be restricted to cases where the Member State considers this 'necessary and possible'.  Back

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