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Session 2002 - 03|
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|Crime (International Co-Operation) Bill [HL]|
These notes refer to the Crime (International Co-operation) Bill [HL] as brought from the House of Lords on 18th March 2003 [Bill 78]
CRIME (INTERNATIONAL CO-OPERATION) BILL [HL]
1. These explanatory notes relate to the Crime (International Co-operation) Bill as brought from the House of Lords on 18th March 2003. They have been prepared by the Home Office and the Department for Transport in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause does not seem to require any explanation, none is given.
3. The Bill is in five parts:
Part 1: Mutual Assistance in Criminal Matters
4. Part 1 implements the mutual legal assistance provisions of the Schengen Convention, the Convention on Mutual Assistance in Criminal Matters 2000 and the evidence-freezing provisions of the Framework Decision on the execution in the EU of orders freezing property and evidence. Chapter 4 of Part 1 implements the 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters which creates obligations for participating countries to respond to requests for assistance with locating banking accounts and to provide banking information relating to criminal investigations.
[Bill 78-EN] 53/2
Part 2: Terrorist Acts: Jurisdiction
5. Part 2 implements the EU Framework Decision on combating terrorism 2002, insofar as it requires the UK to take extra-territorial jurisdiction over a range of terrorist offences.
Part 3: Convention on Driving Disqualifications
6. Part 3 implements the EU Convention on Driving Disqualification 1998, which introduces the mutual recognition of driving disqualifications. Part 3 also introduces new measures to prevent drivers banned from driving in Northern Ireland from obtaining a British driving licence or vice versa.
Part 4: Miscellaneous
7. Part 4 implements additional measures set out in the Schengen Convention in the area of police co-operation, extradition and data-protection. Part 4 also contains provisions which are necessary to enable the UK to implement the EU Framework Decision on non-cash means of payment.
Part 5: Final Provisions
8. Part 5 contains amendments and repeals, and other miscellaneous provisions.
Schedule 4: Terrorist Property: Freezing orders
9. This schedule introduces the mutual recognition of orders freezing terrorist assets, partially implementing the asset freezing provisions of the Framework Decision on the mutual recognition of orders freezing property or evidence.
10. The Crime (International Co-operation) Bill implements several outstanding EU commitments in the area of police and judicial co-operation. The EU Scrutiny Committees of both Houses have examined the provisions in detail. This Bill makes primary legislative changes necessary to bring these commitments into force.
11. The Bill will implement the UK's partial participation in the Schengen Implementing Convention. ("the Schengen Convention"). The Schengen Convention was designed to facilitate the free movement of persons by removing internal border controls. A series of measures to enhance police and judicial co-operation was then agreed to compensate for the lifting of controls. The Schengen Convention was formally integrated into the European treaty structure by the 1997 Treaty of Amsterdam.
12. In May 1999, the UK formally applied to participate in the provisions on police and judicial co-operation, and the Schengen Information System (SIS), a database storing criminal information from all participating countries. The UK's implementation of Schengen will be formally evaluated by the other Schengen states before its participation can be approved by the Justice and Home Affairs Ministerial Council (JHA Council). Legislation is required to implement some of the mutual legal assistance measures, the extradition provisions and some of the measures on police co-operation.
13. Furthermore, the Bill implements several Framework Decisions (FD) in the field of Justice and Home Affairs policy. Framework Decisions were introduced by the 1997 Treaty of Amsterdam and have:
14. The UK government has agreed to the Framework Decisions contained in the Bill.
Part 1: Mutual Assistance in Criminal Matters
15. Part 1 of the Bill deals with mutual legal assistance generally and also with the evidence aspects of the Framework Decision on the execution in the EU of orders freezing property and evidence. The Schengen provisions on mutual legal assistance (MLA) are in part repealed and replaced by the 2000 Convention on Mutual Assistance in Criminal Matters ("the MLAC"). This Part implements both those MLA provisions of Schengen that are not repealed and the MLAC, as well as its Protocol. The primary aim of the MLAC is to improve judicial co-operation by developing and modernising the existing provisions governing mutual assistance, mainly by extending the range of circumstances in which mutual assistance may be requested, and by facilitating assistance so that it is quicker, more flexible and therefore more effective. The clauses amend the provisions in Part 1 of the Criminal Justice (International Co-operation) Act 1990 to widen the scope of cases in which the UK is able to request and offer assistance, and to introduce the direct transmission of legal process and requests for assistance where possible. This Part also implements the 2001 Protocol to MLAC, which extends mutual legal assistance to provision of a wider range of banking information than at present, including tracing any bank accounts and monitoring identified accounts held by an individual or company.
16. This Part of the Bill also introduces the mutual recognition of freezing orders on evidence, as introduced by the FD on the execution of orders freezing property and evidence. The Tampere Council (October 1999) - a special meeting of the European Council focusing specifically on JHA - agreed that the mutual recognition of judicial decisions should be the "cornerstone" of the future development of judicial co-operation within the EU, rather than harmonisation of legal systems. The December 2000 JHA Council adopted a programme of work to implement the principle of mutual recognition; the evidence/asset freezing measure and the European Arrest Warrant, to be implemented through the Extradition Bill, are the first results of that work programme. The FD is due to be adopted by the JHA Council once final parliamentary scrutiny reservations in other Member States have been lifted.
17. The provisions in Part 1 apply in respect of relations with all other countries, except where they are restricted to "participating countries." Other Member States of the EU will be participating countries for the purposes of those provisions, and some arrangements may be extended to other states by order if appropriate. Countries which are not member States of the EU will be designated by an order that will be laid before and approved by both Houses of Parliament, or, in relation to Scotland, the Scottish Parliament.
Part 2: Terrorist Acts: Jurisdiction
18. The Framework Decision on combating terrorism was drafted in response to the attacks of 11 September 2001, with the purpose of ensuring that all EU member states had effective terrorist legislation in place. The FD defines a range of terrorist offences and requires Member States to introduce "effective, proportionate and dissuasive" criminal penalties for these offences. Much of the substance of the FD is already given effect in existing UK legislation. However, Article 9 of the FD, which deals with extra-territorial jurisdiction for certain terrorist offences, is not for the most part covered. Part 2 of this Bill will therefore give effect to Article 9 of the FD by allowing the UK to take extra-territorial jurisdiction both over terrorist offences committed by UK residents and nationals anywhere in the world and over attacks on UK residents, nationals and diplomatic premises wherever they occur.
Part 3: Convention on Driving Disqualification
19. Part 3 provides for the implementation of the EU Convention on Driving Disqualifications, which was signed by the United Kingdom and other Member States in 1998. Under the Convention, drivers normally resident in one Member State of the EU who are disqualified from driving in another Member State will also be disqualified in their State of residence. The duties placed on the Secretary of State for Transport under this Part will be administered by the Driver and Vehicle Licensing Agency. The Convention will come into effect when it has been ratified by all the Member States but there is also provision for the Convention to be implemented on a bilateral basis between participating Member States.
Part 4: Miscellaneous
20. The Schengen provisions contained in this Part of the Bill cover three different areas. Firstly, clause 81 permits the information commissioner to inspect any of the three European information systems which are or will be used by the UK. In the realm of police co-operation, the provisions implement the requirement of the Schengen Convention for officers from one Member State to conduct unaccompanied surveillance in another Schengen Member State for up to five hours in exceptional circumstances. The extradition provisions allow the UK to apply the Schengen-building provisions of the 1996 Extradition Convention to non-EU member states such as Iceland and Norway; and the whole of the 1995 and 1996 Conventions to Italy.
21. The Framework Decision on non-cash means of payment 2001, one aspect of which is implemented in Part 4 of the Bill, is intended to support the fight against fraud and counterfeiting across the EU. The measure forms part of the Commission's Fraud Prevention Action Plan. It requires Member States to criminalise different types of conduct in relation to non-cash means of payment, for example, the obtaining and possession of false or counterfeit monetary instruments for fraudulent purposes. With the exception of part of one article, the provisions of the FD are already covered within UK law.
Schedule 4: Terrorist Property: Freezing orders
22. Schedule 4 implements the mutual recognition of orders freezing terrorist property under the Framework Decision on the Execution of Orders Freezing Property and Evidence. The orders apply to property that is likely to be used for terrorism, that represents the proceeds of terrorism, or that has been used to pay someone who has committed a terrorist act. Schedule 4 provides for domestic orders freezing terrorist property in another member state to be sent to that state for enforcement and for overseas orders freezing terrorist property in the UK to be registered and enforced here.
COMMENTARY ON CLAUSES
Part 1: Mutual Assistance in Criminal Matters
Chapter 1: Mutual Service of Process etc.
Clause 1: Service of overseas process in the UK
23. This clause replaces and expands upon sections 1(1) and (2) of the Criminal Justice (International Co-operation) Act 1990 (the "1990 Act"), which established the procedure for service of overseas procedural legal documents in the UK. (Paragraph 35 of Schedule 5 omits various sections from the 1990 Act, including section 1.) The Schengen Convention and the MLAC introduce different procedures. Following the entry into force of MLAC, most procedural documents will be sent directly by post from the issuing authority in countries which are participating in the MLAC or the Schengen Convention to persons in the UK. (A "participating country" is defined in clause 51 as a Member State of the European Union, or any other state designated by order made by the Secretary of State, or, in relation to Scotland, the Scottish Ministers.)
24. This clause regulates those cases:
1) where direct service is not appropriate, and,
2) where documents are issued in countries which are not "participating countries".
25. Schengen and the MLAC refer to "procedural documents" but deliberately do not define this term. These instruments also extend the scope of mutual legal assistance generally to a much broader range of proceedings, and it is anticipated that the process to be served under clause 1 will encompass documents relating to the extended categories of proceedings specified in clause 1(2). The types of administrative and criminal proceedings to which this clause applies are defined in clause 51(1).
26. Subsection (3) replaces section 1(2) of the 1990 Act, giving the Secretary of State, (or, in Scotland, the Lord Advocate), discretion as to how to serve the document - it may be served by post, or the chief officer of police in the relevant area may be directed to serve it personally where this is required.
Clause 2: Service of overseas process: supplementary
27. This clause replaces subsections (3) to (6) of section 1 of the 1990 Act, and there are no material changes. Where the process served requires a person to appear as a defendant or witness, the process must be accompanied by a notice stating that no obligation under UK law to comply with the process is imposed, but that the person may wish to take advice on failure to comply under the laws of the overseas country, and that the person may not be accorded the same rights and privileges as he would be in the UK. Where a chief officer of police causes process to be served under clause 1, that officer must inform the Secretary of State (or the Lord Advocate) when and how it was served and (if possible) provide a signed receipt: where the process cannot be served, the officer must inform the Secretary of State (or the Lord Advocate) of the reason for this.
Clause 3: General requirements for service of process
28. This clause, with clause 4, replaces and expands section 2 of the 1990 Act, which governs the service of UK legal process to persons in other countries. The clause extends that provision to enable service of all documents issued or made for the purposes of criminal proceedings, making it consistent with the broad interpretation of "procedural documents" envisaged in the MLAC and Schengen. It does not provide for the service of documents relating to administrative proceedings, as the UK does not have proceedings of this nature.
29. Subsection (3) creates an obligation on the person at whose request the process is issued to meet the MLAC requirement relating to translation where he is aware that the recipient does not understand English.
30. Subsections (4) to (7) replace sections 2(3) and (4) of the 1990 Act. As with overseas process served on persons in the UK under clause 1, the serving of process does not impose an obligation under UK law to comply with that process, with the result that failure to comply does not constitute contempt of court. However, if the process is later served on the person in the UK, the usual consequences for non-compliance will apply. This does not represent any change from existing practice.
Clause 4: Service of process otherwise than by post
31. Although the standard way of serving process from the UK will be by post, this clause retains the option of serving process in accordance with arrangements made by the Secretary of State:
32. In such cases, process may be sent via the Secretary of State to the central authority of the other country, which will transmit the process to the recipient. Alternatively, they may be sent via the Secretary of State and then transmitted directly to the recipient.
Clause 5: General requirements for effecting Scottish citation etc.
33. This clause is the Scottish equivalent to clause 3. It reflects the provisions of clause 3 but refers to the Scottish term "citation" rather than "process". In criminal proceedings in Scotland "citation" is the term used for the procedure whereby someone is called to court to answer an action or give evidence as a witness.
Clause 6: Effecting Scottish citation etc. otherwise than by post
34. This clause is the Scottish equivalent to clause 4. It reflects the provisions of clause 4 but provides that the Lord Advocate, rather than the Secretary of State is to make arrangements for service of a citation or document otherwise than by post.
Chapter 2: Mutual Provision of Evidence
Clause 7: Requests for assistance in obtaining evidence abroad.
35. Clauses 7 to 9 deal with requests to obtain evidence from abroad in relation to a prosecution or investigation taking place in the UK. These provisions develop and expand on section 3 of the 1990 Act, which they replace.
36. Clause 7 sets out the authorities which may make requests for assistance, in which circumstances, and the form in which requests may be made. The judicial authorities which may request assistance under this clause, (provided it appears that an offence has been committed or there are reasonable grounds for suspecting this, and proceedings or an investigation are underway), are any judge, and a justice of the peace (in England and Wales), a sheriff (in Scotland) and a resident magistrate (in Northern Ireland). A prosecuting authority which has been designated by an order made by the Secretary of State (in Scotland, this would be the Lord Advocate or a procurator fiscal) may also request assistance if the conditions set out in subsection (5) are satisfied. This arrangement is not new: designated prosecuting authorities were able to issue requests under the 1990 Act. The assistance which may be requested is to obtain evidence located outside the UK for use in a domestic criminal proceeding or investigation.
37. Subsection (7) requires that any outgoing requests for information about banking transactions made to participating countries under Article 2 of the 2001 Protocol to the MLAC must clearly state the relevance of the evidence to the investigation. This is in line with the conditions set out in the Protocol.
Clause 8: Sending requests for assistance
38. This clause makes provision for the transmission of UK requests to overseas authorities. It enables requests made under clause 7 to be sent directly from the requesting authority in the UK to the relevant overseas authority, rather than via the central authorities of the two countries. This is a new arrangement. Under existing powers, direct transmission is only possible in cases of urgency. Direct transmission is a key tenet of the MLAC, which these provisions implement, and in general where a request is destined for the EU it will in future be sent directly to the appropriate overseas authority from the UK authority making the request.
39. As there will be situations where direct transmission is not possible, for example where the particular executing authority is not known, where direct transmission is not permitted under the MLAC, or where the requested state is outside the EU, subsection (2) retains the option of indirect transmission via the Secretary of State (or Lord Advocate in Scotland).
40. Subsection (3) implements Article 6(4) of the MLAC, and permits urgent requests to be submitted via Interpol or any other body able to receive it under any provisions adopted under the Treaty on European Union. This will permit, for example, EU Member States to make a request to their national member of Eurojust, a body established by Council Decision under Part VI of the Treaty with a view to reinforcing the fight in member States against serious crime.
Clause 9: Use of evidence obtained
41. This clause ensures that evidence obtained from a foreign authority may be used only for the purposes for which it was requested (unless the consent of the requested overseas authority has been obtained), and is subject to the same provisions on the admissibility of evidence as evidence obtained under normal domestic arrangements. This clause replicates sections 3(7) to 3(9) of the 1990 Act.
Clause 10: Domestic freezing orders
42. This clause provides for the issuing of domestic freezing orders, in accordance with the draft Framework Decision of the Council of the European Union on the execution of orders freezing property or evidence. The clause deals with orders to freeze evidence only. Schedule 4 of the Bill deals with orders to freeze terrorist assets, but orders to freeze property are not otherwise covered by this Bill. A domestic freezing order is defined for the purposes of this section as an order for protecting evidence which is in a participating country (explained in the Note to clause 1) pending the transfer of the evidence to the UK.
43. The clause specifies the circumstances in which a judicial authority (as defined in subsection (4)) may make a freezing order. For a domestic freezing order to be made, it should appear to the judicial authority that proceedings in respect of an offence covered by the FD have been instituted or such an offence is being investigated, that there are reasonable grounds to believe there is evidence in a participating country which satisfies the requirements of this clause (including, for example, that the evidence is likely to be of substantial value to criminal proceedings or an investigation in the UK), and that a request has been (or will be) made to the authority for the evidence to be sent to the UK.
Clause 11: Sending freezing orders
44. This clause provides that freezing orders must be sent via the Secretary of State (or, in Scotland, the Lord Advocate). This is in contrast to the general direct transmission provision in clause 8.
45. This requirement is because mutual recognition orders are completely new, and freezing orders will be unfamiliar to those issuing and receiving them in terms of format, conditions and procedural requirements. Transmission via the central authority will enable the orders to be checked and monitored, to ensure that they comply with the requirements of the FD, and to ensure that they are responded to by the overseas authority in the appropriate manner. Under the terms of the FD the UK is allowed to require transmission via the central authority.
46. The clause provides that freezing orders must be accompanied by a certificate, and lists requirements relating to the certificate. This is in accordance with Article 9 of the FD. Subsection (3) requires the judicial authority to send the order to the Secretary of State within 14 days of being made. Whilst we expect that such orders will be transmitted without delay, the time limit has been included to ensure that they are not held up for lengthy periods.
Clause 12: Variation or revocation of freezing orders
47. This clause provides that a judicial authority which makes a freezing order under clause 10 may vary or revoke it on application by the persons mentioned in this clause.
Clause 13: Requests for assistance from overseas authorities
48. This clause deals with handling incoming requests for assistance with obtaining evidence located in the UK.
49. Subsection (1) provides that, if the conditions set out in clause 14 are satisfied, arrangements may be made for evidence to be obtained, or for an application for a warrant to be made in response to a request for assistance.
50. Subsection (2) sets out the authorities competent to make requests for mutual legal assistance. These are courts, prosecuting authorities and other authorities which have the function of making such requests (e.g. examining magistrates). Subsection (3) also provides for requests to be received from Interpol and from bodies or persons competent to make requests pursuant to agreements adopted by the European Union. Eurojust is an example of such a body.
51. The clause makes provision for requests to be received by "territorial authorities". These are defined in clause 28(9). This enables transmission not only to the Secretary of State, but also to the Lord Advocate and the Secretary of State for Northern Ireland. This represents a partial move towards direct transmission.
52. Article 6 of the MLAC envisages direct transmission of most requests, but direct transmission is difficult to apply to our domestic system where jurisdiction is largely based on function rather than geography, and where the same authorities are not necessarily competent to both issue and execute letters of request. Misdirection of requests sent directly to the wrong authority would create delays, defeating the purpose of direct transmission, which is to speed up the process. The UK therefore has a special provision in the MLAC enabling it to opt out of the direct transmission requirement.
53. Clause 27 of the Bill contains an order-making power to confer powers held by the Secretary of State on other bodies, such as HM Customs & Excise, in the future, enabling more extensive direct transmission.
|© Parliamentary copyright 2003||Prepared: 19 March 2003|