Select Committee on European Scrutiny Twentieth Report


COM(01) 259

Draft Council Framework Decision laying down minimum provisions on the
constituent elements of criminal acts and penalties in the field of drug

Legal base:Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
Document originated:23 May 2001
Forwarded to the Council: 27 June 2001
Deposited in Parliament: 16 July 2001
Department:Home Office
Basis of consideration: Minister's letter of 8 February 2002
Previous Committee Report: HC 152-iv (2001-02), paragraph 3 (7 November 2001), HC 152-xi (2001-02), paragraph 1 (9 January 2002)
To be discussed in Council: No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared


  6.1  The draft Framework Decision which we considered on 7 November 2001 and 9 January 2002 defines drug trafficking and related offences, and provides for maximum penalties of not less than five years' imprisonment in serious cases. The Framework Decision also provides for a number of aggravating and mitigating circumstances to be taken into account in sentencing, for the liability of legal persons, and for the making of rules on jurisdiction.

  6.2  We noted that Article 9 of the draft Framework Decision referred to the case where Member States refuse to extradite their own nationals, and suggested that this would need to be considered again in the light of the proposals for the European Arrest Warrant[13], the effect of which would be to prevent a Member State from refusing to extradite a person solely on the grounds that he was a national of that State.

  6.3  We also noted the rules on jurisdiction in the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and asked the Minister if he thought that the rules on jurisdiction in the Framework Decision ought to be more closely aligned with those in the UN Convention, particularly in relation to nationals or persons habitually resident within the national territory[14].

The Minister's letter

  6.4  In his letter of 8 February 2002, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) addresses the points we raised. In relation to Article 9 and the effect of the adoption of the European Arrest Warrant, the Minister comments as follows:

    "The Committee are correct in pointing out that the adoption of proposals for a European Arrest Warrant means that Member States will not be able to refuse to extradite their nationals[15]. This does call into question the need for the Framework Decision to include provisions for Member States to exercise jurisdiction over their nationals who commit drug trafficking offences in another Member State, and officials will raise this point in negotiations."

  6.5  On the more general question of aligning the rules of jurisdiction more closely with those of the 1988 UN Convention, the Minister replies as follows:

    "With regard to provisions covering extension of jurisdiction in other circumstances, we agree that these should be more closely aligned to those in the 1988 UN Convention against Illicit Traffic in Narcotic Drugs. A text is currently being negotiated at working group level which we hope will reflect these provisions, in particular including:—
  • Extension of jurisdiction to offences committed on vessels flying the flag of, or registered in, a [Member State];

  • Optional extension of jurisdiction to offences committed by residents

    "Whilst the UK wishes to clearly retain the option to extend extra territorial jurisdiction to residents involved in drug trafficking offences, in practice this would be problematic and difficult to carry out successfully. It would involve significant resource costs, and would also, like all assumption of extra territorial jurisdiction, pose problems in relation to the traditional reliance of UK courts on evidence being submitted orally. At present we do not feel that the benefits of extending jurisdiction in this way to drug trafficking offences would outweigh these considerations."

  6.6  Finally, the Minister indicates that constructive discussion is continuing at working group level and that he hopes to see an early depositing of a revised text.


  6.7  We are grateful to the Minister for his explanations concerning the negotiation of this proposal and for the indication that the rules on jurisdiction it contains will be aligned more closely with those of the 1988 UN Convention. We accept the connection drawn by the Minister between extradition and the assertion of jurisdiction and we acknowledge that, for reasons relating to the giving of evidence, the offences covered by the Framework Decision are generally best tried in the Member States in which they are committed.

  6.8  In our examination of this proposal we have noted a number of points on which improvements to the text have been promised (notably in relation to the definition of 'illicit drug trafficking', the absence of definition of the term 'serious' in describing the offences and the unclear scope of the provisions on aggravating and mitigating circumstances). We shall therefore look forward to early deposit of a revised text, so that we may consider how these issues have been addressed.

  6.9  In the meantime, we shall continue to hold the current document under scrutiny.

13  HC 152-xvii (2001-02) (30 January 2002). Back

14  Article 4.1(b)(i) of the 1988 UN Convention requires each Party to take such measures as may be necessary to establish jurisdiction over offences covered by Article 3.1(e.g. possession, manufacture etc. with a view to supply to others) where the offence is committed by a national of that party or a person who has his habitual residence in that Party's territory. Back

15  At present, Austria, France, Germany, Greece and Luxembourg will not extradite their own nationals under any circumstances, whilst conditions are attached to such extradition by Belgium, Denmark, Finland, the Netherlands, Portugal, Spain and Sweden. Back

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