Draft Council Framework Decision on combating terrorism.
Draft Council Framework Decision on combating terrorism.
||Articles 24(2)(b), 29 and 31(e) EU; consultation; unanimity
||(b) 10 October 2001
|Forwarded to the Council:
||(b) 10 October 2001
|Deposited in Parliament:
||(b) 25 October 2001
|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
||Legally and politically important
||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.
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.'
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'
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
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
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.
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.'
The circumstances which are to be regarded as aggravating include
those where the offence is 'of a particularly cruel nature',
(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.
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
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
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.
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.
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.
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.
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
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
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
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
The fund-raising offence under s.15(3) Terrorism Act 2000. Back
is not clear if this would include a conspiracy to commit one
of the offences listed in Articles 1 or 2. Back
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
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
previous version referred to an offence being committed 'with
particular ruthlessness'. Back
latter provision replaces the list of office-holders in the previous
Article 6. Back
previous version referred only to the territory of the relevant
Member State. Back
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
(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
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
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'.