|Crime (International Co-Operation) Bill [HL] - continued
|House of Commons
|back to previous text
Clause 43: Information about a person's bank account
102. This clause makes provision for the UK to request assistance from other participating countries in obtaining details of any accounts held by a person subject to an investigation into serious criminal conduct in accordance with Article 1 of the Protocol. Whilst the general provisions of clause 7 of this Bill are relevant, special requirements apply to requests for information on bank accounts. An application may be made to a judicial authority (as defined) to make a request for assistance under this clause where a person is subject to an investigation in the UK, the person holds (or may hold) a bank account in a participating country, and the information is likely to be of substantial value to the investigation. A prosecuting authority which has been designated by order made by the Secretary of State may itself make a request for assistance under this clause if the conditions specified in subsection (3) are satisfied (in Scotland, the Lord Advocate or a procurator fiscal may likewise request assistance). Subsection (4) sets out the types of information which may be requested under this clause, and subsection (5) sets out what a request for assistance must specify.
Clause 44: Monitoring banking transactions
103. This clause implements Article 3 for the purpose of outgoing requests from the UK to other participating countries to monitor transactions conducted on a specified account or accounts. Subsection (1) provides that an application may be made to a judicial authority (as defined in subsection (2)) to request assistance under this clause if it appears relevant to a UK investigation into criminal conduct. A prosecuting authority designated by order made by the Secretary of State (in Scotland this would be the Lord Advocate or procurator fiscal) may itself request assistance under subsection (3).
Clause 45: Sending requests for assistance
104. This clause requires that, in general, the requests in clauses 43, and 44, must normally be transmitted via the Secretary of State, in Scotland the Lord Advocate, in contrast to the direct transmission provision introduced by clause 8. This is to enable the central authority to monitor these requests, to ensure that the detailed requirements of the Protocol are met and to assess how extensively the new powers are used. It can also monitor response to the requests. The Central Authority will monitor incoming requests in the same way.
105. The "Central Authority" is the UK Central Authority for mutual legal assistance, which is located in the Home Office and currently receives and transmits all incoming and outgoing requests for mutual legal assistance. However, in cases of urgency, a request may be sent directly to a court in the area where the information is to be obtained.
Clause 46: Interpretation of Chapter 4
106. The clause defines the terms used in Chapter 4. The definition of serious criminal conduct in subsection (3) derives from Article 1 of the Protocol. Article 1(3) lists the circumstances in which countries are obliged to provide assistance in tracing bank accounts. The list limits a general obligation to assist to particular circumstances: when the offence is punishable by a 4 year custodial penalty in the requesting state and 2 years in the requested state; or when the offence is one referred to in the Europol Convention or the Convention on the Protection of the EC's Financial Interests. The term "serious criminal conduct" is used to encompass all of these circumstances. The second part of the definition of serious criminal conduct in paragraph (b) enables it to be extended by order to cover new offences if the scope of Article 1(3) is amended by the Council of the EU at a future date.
Chapter 5: Transfer of Prisoners
Clause 47: Transfer of UK prisoner to assist investigations abroad
107. This clause provides for prisoners from the UK to be transferred to another participating country to assist with UK investigations, implementing Article 9 of the MLAC. This differs from section 5 of the 1990 Act which covers the transfer of UK prisoners to other countries at the request of the authorities of that country to assist their investigations. This new power might be used, for example, where a prisoner assisting an UK investigation could identify a site or participate in an identification parade in another participating country. It is unlikely to be used frequently. The requirement that a prisoner (or an appropriate person acting on his behalf) must give his consent before the transfer takes place (subsections (3) and (4)) is consistent with section 5 of the 1990 Act.
Clause 48: Transfer of EU etc. prisoner to assist UK investigation
108. This clause provides for the transfer of a prisoner from a participating country to the UK in order to assist with that country's investigation. Section 6 of the 1990 Act allows overseas prisoners to be transferred at the UK's request to assist with a domestic investigation. The requirement that a prisoner must give his consent before the transfer takes place (subsections (3) and (4)) is consistent with section 6 of the 1990 Act.
Chapter 6: Supplementary
Clause 49: Rules of court
109. This clause provides that rules of court may be made governing court practice and procedure in proceedings under Part 1 of the Bill. These are additional to the rules set out in Schedule 1 which govern the proceedings of a court nominated to receive evidence under clause 15, and Schedule 2 which govern hearings via television and telephone link under clauses 30 and 31.
Clause 50: Subordinate legislation
110. This clause provides that the power to make orders under Part 1 of the Bill is to be exercised by statutory instrument, and that the negative resolution procedure will apply to such instruments. However, subsection (5) provides that an order designating a country that is not a member state of the EU as a "participating country" under section 51(2)(b) is subject to the affirmative resolution procedure.
Clause 51: General interpretation
111. This clause defines the terms used in Part 1 of the Bill. Most are self-explanatory.
112. The inclusion of "administrative proceedings" is to cover the requirement of the Schengen Convention and the MLAC to provide assistance not only in criminal matters, but also in administrative proceedings where the outcome can lead to criminal proceedings. In some EU member states offences such as driving infractions are classified neither as criminal nor civil proceedings, but as administrative proceedings. In the UK, there is no precise parallel to these proceedings, but legislation is needed to allow assistance to be provided to other participating countries in relation to this type of proceedings.
113. The Schengen Convention also provides for assistance in relation to "clemency proceedings", which are defined in this clause.
114. It also requires assistance to be granted in relation to civil proceedings joined to criminal proceedings, where a final decision has not yet been reached in the criminal proceedings. The definition of "criminal proceedings" therefore allows for assistance to be provided in these cases.
Part 2: Terrorist Acts: Jurisdiction
Clause 52: Jurisdiction for terrorist offence
115. The main UK legislation on counter-terrorism is the Terrorism Act 2000. The Terrorism Act defines terrorism as being both a serious criminal act, and one that is designed to influence the government or to intimidate the public and made for the purpose of advancing a political, religious or ideological cause. Under UK law, in general, there are no "terrorist" offences (apart from a few specific offences such as directing terrorism, weapons training, terrorist funding and inciting terrorism). Suspected terrorists are prosecuted under criminal legislation such as murder, conspiracy to cause explosions etc. Criminal offences falling within the definition of terrorism contained within the Terrorism Act 2000 can be investigated by the police using the powers within the Act. The UK's extensive anti-terrorism legislation already broadly meets the requirements of the Framework Decision, with the exception of the provisions on extra-territorial jurisdiction.
116. Article 9 of the FD on combating terrorism requires participating countries to take extra-territorial jurisdiction for specified offences where these are committed for a terrorist purpose. Existing UK legislation does not provide for this because the primary basis of criminal jurisdiction in the differing parts of the UK is territorial, which has the effect that, unless a criminal statute expressly provides for extra-territorial jurisdiction, jurisdiction is only in respect of offences which take place in that part of the UK. There is already provision for extra-territorial jurisdiction in the Terrorism Act 2000 for terrorist financing and terrorist bombing offences. These provisions allowed the UK to ratify the UN Convention for the Suppression of Terrorist bombings and the UN Convention for the Suppression of the Financing of Terrorism (see sections 62 and 63 respectively). The provisions enable the UK to meet its obligations under the "extradite or prosecute" provisions of these Conventions.
117. The purpose of Article 9 of the FD is to ensure that Member States take responsibility for terrorist activities by their own nationals and residents, no matter where those acts occur, and also to ensure that those who attack UK nationals, residents, UK diplomatic staff and EU institutions can be prosecuted effectively. The first clause inserts extra sections 63 A to E after section 63 of the Terrorism Act 2000.
63A Other terrorist offences under this Act: jurisdiction
118. Section 63A extends the jurisdiction of specific terrorist offences included within the Terrorism Act to outside the UK for section 54 (weapons training) and sections 56 to 61 inclusive (directing a terrorist organisation, possession for terrorist purposes, collection of information, and inciting terrorism overseas). Extra-territorial jurisdiction is only taken in respect of UK nationals and residents. Subsections (2) and (3) define respectively a UK national and a UK resident for the purposes of sections 63A, 63B and 63C.
119. Where an extra-territorial offence is created, extra territorial jurisdiction is also automatically taken over secondary and inchoate offences, such as aiding, abetting, attempting, inciting, conspiring, counselling or procuring.
63B Terrorist attacks abroad by UK residents or nationals: jurisdiction
120. Section 63B(1) gives the UK extra-territorial jurisdiction over certain specific domestic offences where they are committed by UK nationals or residents outside the UK as an act of terrorism or for the purposes of terrorism. Subsection (2) lists the specific offences. These reflect those contained in Article 1 of the FD. The FD uses a similar definition of terrorism to that in the Terrorism Act. This new section and the sections below depend on the definition of terrorism in section 1 of the Terrorism Act to ensure that extra-territorial jurisdiction is only taken for acts that would be considered acts of terrorism under the Terrorism Act.
63C Terrorist attacks abroad on UK nationals, residents and diplomatic staff etc: jurisdiction
121. Section 63C(1) gives the UK extra-territorial jurisdiction over certain domestic offences where they are committed against UK nationals or residents and "protected persons" outside the UK as an act of terrorism or for the purposes of terrorism. The nationality or residence of the offender is irrelevant. Subsection (2) lists the offences for which the UK will take extra-territorial jurisdiction. Subsection (3) specifies those persons who are "protected persons." "Protected persons" includes all diplomatic and consular staff, whether of UK nationality or not. Because Article 9(1)(e) of the FD requires Member States to take extra-territorial jurisdiction over offences against institutions of the European Union established on their territory, subsection (3)(c) includes in the definition of "protected persons" employees of the European Agency for the Evaluation of Medicinal Products, which is at present the only EU institution based in the UK. Should further EU agencies set up in the UK in future, subsection (3)(d) provides a power for the Secretary of State to add further bodies by order. Subsection (4) limits subsection (3)(d) to any future European Union institution based in the UK. Subsection (5) enables a protected person to be identified by the issue of a certificate by the Secretary of State.
63D: Terrorist attacks or threats in connection with UK diplomatic premises etc: jurisdiction
122. This section gives the UK jurisdiction over terrorist offences or the threat of terrorist offences committed either against the residential or working premises or vehicles of protected persons when a protected person is in, or likely to be, on the premises or vehicle. This will cover attacks on UK embassies and consulates abroad. This is to give effect to Article 9(1)(e) of the FD, which requires Member States to take extra-territorial jurisdiction in cases of terrorist attack on their institutions. At present if a terrorist act is committed against UK diplomatic residencies, any proceedings have to be brought by the relevant authorities of the country in which the incident took place. Under these new provisions, the UK government would be able to prosecute effectively those who attack or threaten to attack its personnel and premises. Subsection (1) provides that the UK will take extra-territorial jurisdiction over certain domestic offences where they are committed against the premises or vehicles of protected persons when a protected person is in, or likely to be, on the premises or vehicle. Subsection (2) lists the offences for which the UK will take extra-territorial jurisdiction. Subsections (3) and (4) provide that in addition the UK will take extra-territorial jurisdiction over the threat offences in the Criminal Damage Act 1971, (and its Northern Ireland equivalent, and, in Scotland, breach of the peace), when committed in respect of protected persons premises or vehicles, as an act of terrorism or for the purposes of terrorism.
63E Sections 63B to 63D: supplementary
123. This section provides for the Attorney General's consent for prosecutions in England and Wales in respect of conduct which would not be an offence apart from sections 63B, C and D and the consent of the Advocate General for Northern Ireland in respect of prosecutions in Northern Ireland. In relation to offences under sections 54 to 61 of the Terrorism Act 2000, section 117 makes provision for consent to prosecution. No express provision is required for Scotland. The Lord Advocate has responsibility for all prosecutions.
Clause 53: Jurisdiction for offence under section 113 of the Anti-Terrorism, Crime and Security Act 2001.
124. This clause provides for extra territorial jurisdiction over offences under section 113 of the Anti-terrorism, Crime and Security Act 2001 (offences involving noxious substances) by adding section 113A. It is an offence under section 113 for a person to use or threaten to use a biological, chemical, radioactive or other noxious substance to cause various kinds of serious harm in a manner designed to influence the government or intimidate the public. Offences under this section carry a sentence of up to 14 years and a fine. Extra-territorial jurisdiction for offences under section 113 are confined however to those committed for a terrorist purpose in the sense that it is undertaken for the purpose of advancing a political religious or ideological cause through subsection (2). Subsection (3) outlines the circumstances when extra territorial jurisdiction is to be taken. These are the same as in the clauses above namely; when the act is by a United Kingdom national or resident; by any person to a United Kingdom national, resident or protected person; and by anyone against the premises or vehicle of a protected person when they are in or on it.
Part 3: Convention on Driving Disqualification
Chapter 1: Convention on Driving Disqualifications
Clause 54: Application of clause 55
125. This clause prescribes when the duty in clause 55 to notify a central authority of an EU Member State about a disqualification will apply. The duty covers a driving disqualification imposed in the UK on a resident of another Member State. Schedule 3 lists the road traffic offences which, in the circumstances specified, would require notification of disqualification. A minimum period of disqualification must apply in respect of the offences in Part 2 but not Part 1.
126. The requirement will only apply to a disqualification which is no longer subject to appeal. The clause also provides for clause 55 not to apply in circumstances prescribed in regulations. Where another Member State has declared that it will apply, in full or in part, the discretionary conditions to the recognition of disqualifications described in Article 6(2) of the Convention, regulations will state when notification is not required in respect of that State.
Clause 55: Duty to give notice to foreign authorities of driving disqualification of a non-UK resident
127. This clause places a duty on the appropriate Minister (the Secretary of State in Great Britain or the Department of the Environment in Northern Ireland) in the circumstances specified in the previous clause, to notify a driving disqualification to the authorities in the Member State where the offender is normally resident. The notice must include information required by the Convention to allow the central authority to locate the offender, together with details of the offence and the order made against him. The appropriate Minister is also required to provide evidence that an offender who did not take part in the proceedings was properly notified of them. This will usually have been by way of a summons and subject to the normal conditions of service. Under Article 6(1)(e) of the Convention, the State of residence must refuse to recognise a disqualification if it considers that the person concerned did not have an adequate opportunity to defend himself. If the period of disqualification is reduced or removed by a court subsequent to the appropriate Minister sending his notification, he must also inform the central authority.
Clause 56: Application of clause 57
128. This clause describes when under clause 57 a driving disqualification, imposed in another Member State on a person normally resident in the UK, will be enforced in the UK. This will be the case where the offence which gives rise to the disqualification constitutes one of the categories of conduct specified in the Convention, or other conduct constituting an offence which results in a disqualification of at least the minimum period. The offender must have been duly notified of, and entitled to take part in, the proceedings and the disqualification must not be subject to any further appeal in the State of the offence. A disqualification will not be enforced if the relevant proceedings in the State of offence were brought later than the time provided for the commencement of summary proceedings for a corresponding offence in the United Kingdom. This accords with Article 6(1)(d) of the Convention which precludes enforcement of a disqualification where the period of limitation would have expired under the state of residence's legislation. The Minister may make regulations about the correspondence between UK offences and other States' offences.
Clauses 57 and 58: Recognition in the UK of foreign driving disqualifications
129. These clauses allow for a person in the circumstances set out in the previous clause, and to whom the appropriate Minister sends notification, to be disqualified from driving in the UK. The appropriate Minister will receive a notification under the Convention from the State of offence with the information he requires to enforce the disqualification. The Minister has discretion as to whether to enforce a disqualification where the unexpired period is less than one month. Where the disqualification also requires the driver to satisfy a condition that will also be enforced. The UK disqualification takes effect 21 days after notification to the offender. But the appropriate minister has power to substitute a longer period. The intention is that the period at the end of which the disqualification takes effect should be the same as the period for appealing under clause 59.
130. The Convention requires that any part of the disqualification already served in the State of the offence is taken into account in recognising the disqualification in the offender's State of residence. Clause 57 grants the appropriate Minister power to make regulations to prescribe how the unexpired period of disqualification is to be determined. Although the normal appeals process will have been exhausted before the disqualification is notified to Great Britain, if the State of the offence removes the disqualification at any time during the unexpired period, the disqualification will also cease to have effect in Great Britain at that time.
Clauses 59 to 62: Appeal against Disqualification and Power of Appellate Courts to Suspend Disqualification.
131. Clause 59 enables a person disqualified under clause 57 to appeal on limited grounds to their local Magistrates Court in England and Wales, the sheriff court in Scotland or a court of summary jurisdiction in Northern Ireland. The appeal is only concerned with the imposition of the disqualification under clause 57 and has no bearing on the conviction and disqualification in the State of the offence. An appeal must be made within 21 days of the notice of disqualification being issued (although there is power to substitute a longer time limit). Separate provision is made for the appellate courts in each part of the UK, where the court thinks fit, to suspend the disqualification and notify the appropriate Minister that it has done so. If the court allows the appeal it is also required to notify the appropriate Minister.
Clauses 63 to 65: Production of Licence
132. Clauses 63 and 64 require a licence holder disqualified under clause 57 to deliver his licence and counterpart to the appropriate Minister within 21 days of the notice being given. An offence is created where a person does not comply with this requirement. There are exceptions to this offence where the person is not in possession of his licence or has applied for a new licence. Where a Community licence is produced to the appropriate Minister by a person disqualified under clause 57, the Minister is required to send the details of the holder and the disqualification to the authority in the relevant State which issued the licence. The Minister will return the licence to the holder at the appropriate time unless the driver would not be authorised to drive in Great Britain or Northern Ireland, in which case the licence will be returned to the issuing authority in the relevant State.
Clauses 66 and 67: Effect of disqualification and Rule for determining end of period of disqualification
133. The licence is treated as revoked from the beginning of the period of UK disqualification, subject to any suspension which is granted. Similarly, any period when a disqualification has been suspended, or the driver not disqualified, will not count towards determining the end of the period of disqualification.
Clauses 68 and 69: Endorsement of Licence
134. The particulars of a disqualification under clause 57 must be endorsed on the counterpart of a licence. The endorsement remains effective for four years from conviction in all cases. A person may obtain a licence free from the endorsement at the end of this period. If a disqualification is removed under clause 57(6), the appropriate Minister must endorse the counterpart of the licence.
Clause 70: Duty of appropriate Minister to inform competent authority
135. Under this section, where the appropriate Minister has been notified of a disqualification under the Convention, in accordance with the Convention, he is required to inform the competent authority of the State where the offence took place of the details of the disqualification imposed in Great Britain, or if he has not recognised the disqualification, then he must inform the State of his reasons.
Clause 71: Notices
136. This specifies how a notice which is required to be sent under this Chapter to an individual, or a Community licence which is required to be returned to its holder, may be delivered to that person. The latest address known to the appropriate Minister will be the proper address for this purpose.
Chapter 2: Mutual Recognition with the United Kingdom
137. Chapter 2, together with its consequential amendments, removes driver licensing anomalies between Great Britain and Northern Ireland, so as to give the United Kingdom a more coherent system for the implementation of the EU Convention on Driving Disqualifications. It provides that a person disqualified from holding or obtaining a driving licence in Northern Ireland, the Isle of Man, the Channel Islands or Gibraltar is similarly disqualified in Great Britain. The Secretary of State's powers to revoke a licence either on grounds of medical disability, or during a new driver's probationary period are extended to holders of Northern Ireland driving licences in Great Britain.
Clause 76: Recognition in Great Britain of disqualifications in Northern Ireland etc.
138. This clause amends the 1988 Road Traffic Act (RTA) to introduce the recognition in Great Britain of driving disqualifications imposed in Northern Ireland, the Isle of Man, the Channel Islands and Gibraltar. So long as a person is subject to a driving disqualification imposed in Northern Ireland, the Isle of Man, the Channel Islands or Gibraltar, he will also be disqualified in Great Britain. This remedies an existing anomaly in the UK driver licensing system, under which none of these jurisdictions recognised driving disqualifications imposed in any of the others. Reciprocal legislation will be needed in these territories for mutual recognition: legislation will be implemented in Northern Ireland by Order in Council under clause 91 due to the current suspension of the Assembly; the Isle of Man has already implemented legislation.
|© Parliamentary copyright 2003
|Prepared: 19 March 2003