House of Commons - Explanatory Note
Crime (International Co-Operation) Bill [HL] - continued          House of Commons

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Clause 77: Endorsement of counterparts issued to Northern Ireland licence holders

139.     This clause provides that the holder of a Northern Ireland driving licence committing a road traffic offence in Great Britain will be able to opt for the fixed penalty system for road traffic offences, like the holder of a GB licence, avoiding the inconveniences of a prosecution. The fixed penalty option is not currently available in Great Britain to the holder of a Northern Ireland driving licence. The clause facilitates endorsement of a Northern Ireland licence for a road traffic offence or offences committed in Great Britain for which the fixed penalty system is applied.

140.     Subsection (1) inserts a new section 109A of RTA 1988, enabling the Secretary of State to issue a driving licence counterpart to the holder of a Northern Ireland driving licence so as to enable endorsement by authorities in Great Britain. The clause makes provisions similar to those already applied to the holder of a European Community driving licence other than from Great Britain or Northern Ireland. It enables the Secretary of State to endorse a Northern Ireland driving licence, obliging him to return it to the holder. Section 109A(5) empowers the Secretary of State to require surrender of the counterpart or delivery of the licence to him, and to serve notice in writing that such delivery must be made and information provided within 28 days. It makes it an offence to drive a motor vehicle on a road whilst unreasonably failing to surrender the counterpart for endorsement or for correction of particulars of the holder's name or address.

141.      Subsection (2) inserts new sections 91ZA and 91ZB into the Road Traffic Offenders Act 1988, setting out the application of that Act to Northern Ireland licence holders. The provisions of RTOA 1988 to be applied to Northern Ireland licence holders are those which apply to them the fixed penalty system for traffic offences committed in Great Britain. The court procedures followed when penalty points are endorsed on a driving licence are extended to Northern Ireland licences. In particular, this includes various aspects of procedure when a driver is both disqualified and gains penalty points at the same time.

Clause 78: Prohibition on holding or obtaining Great Britain and Northern Ireland licences

142.     Subsection (2) prevents a Northern Ireland licence holder who obtains a GB licence from continuing to be able to drive in Great Britain by virtue of the Northern Ireland licence. It provides that, on surrender of the Northern Ireland licence when a GB licence is granted, the authorisation to drive a vehicle in Great Britain by virtue of the NI licence ceases, and that the Secretary of State must send the NI licence and its counterpart back to the Northern Ireland authorities.

143.     Subsection (3) is in respect of reciprocal provisions intended in Northern Ireland law. It requires the Secretary of State, where he is satisfied that a Northern Ireland driving licence has been granted to the holder of a Great Britain driving licence and he has received the GB licence, to serve written notice on the person concerned that the GB licence is revoked.

144.     Subsection (4) provides, in order to prevent duplication of licences, that a person holding a NI licence to drive a particular class or classes of vehicle is disqualified from holding or obtaining a GB licence to drive a motor vehicle of that class or classes, if he does not surrender the NI licence to the Secretary of State and remains authorised to drive in Great Britain as a holder of that licence.

Clause 79: Disability and prospective disability

145.     This clause amends the provisions of the RTA 1988 relating to disability and prospective disability of a licence holder. Subsection (2) inserts a new Section 109B into the RTA 1988, which provides for revocation by the Secretary of State of the authorisation to drive in Great Britain conferred by a Northern Ireland driving licence, on grounds of disability or prospective disability. Currently the Secretary of State has a power to revoke a driving licence issued in Great Britain as set out at section 93 of RTA 1988. The new provisions parallel those which already exist for revocation of a Great Britain driving licence on medical grounds, except that the revocation extends only to the right to drive in Great Britain conferred by virtue of section 109(1) RTA 1988. The Secretary of State may require the NI licence holder to deliver up his licence and the relevant counterparts, so that it may be returned to the Northern Ireland authorities.

146.     Subsection (2) also inserts a new section 109C into RTA 1988. This amendment places the holders of NI licences, if resident in Great Britain, under the same duty as GB licence holders to provide information relating to disabilities.

147.     Subsection (3) makes provision for GB licences, where the right to drive in Northern Ireland has been revoked on medical grounds there under a corresponding provision of Northern Ireland law. In this event the Secretary of State may revoke the licence.

148.     In either circumstance, the Secretary of State may on application grant a new licence for a period which he determines. (For example in the case of an individual suffering from a degenerative disease likely progressively to impair his or her ability to drive, a short period licence might be granted).

Part 4: Miscellaneous

Clause 80: Disclosure of information by SFO

149.     This clause amends the information gateway provision in the Criminal Justice Act 1987 (which established the Serious Fraud Office).

150.     It extends the circumstances in which the SFO can disclose information. Currently, the SFO is permitted to disclose information, in particular circumstances, for the purposes of any prosecution: the amendment will enable that disclosure to take place also for the purposes of any criminal investigation, whether in the UK or elsewhere.

151.     This clause also extends the categories of persons or bodies to which information may be disclosed. At present, disclosure of information by the SFO is limited to bodies with functions equating to those of the SFO. The amendment will improve international co-operation in respect of crime, and extends to bodies established under the Treaty on European Union (designed in particular to facilitate exchanges of information with Eurojust) or any other treaty to which the UK is a party.

Clause 81: Inspection of Information Systems

152.     This clause extends the functions of the Information Commissioner under Part VI of the Data Protection Act 1998 ("the 1998 Act"). It allows the Information Commissioner to inspect personal data recorded in the UK sections of three European information systems without a warrant. These information systems are the Schengen Information System (SIS), the Europol Information System (EIS) and the Customs Information System (CIS). The requirement for an independent power of supervision arises from the Conventions referred to in subsection (7) of the clause, establishing these systems. These Conventions require the supervisory authority to have free access to the national sections of the systems. At present the Commissioner is only able to enter premises to carry out inspections of the EIS either by agreement with the relevant UK body (NCIS) or on production of a warrant. The UK is not yet connected to the SIS or the CIS, but similar arrangements would apply once connection has been established.

153.     As required by the Conventions, the purpose of the Information Commissioner's inspections will be to ensure that the processing of personal data in the national sections of these systems is in compliance with processing requirements under the 1998 Act. The Information Commissioner will be required to notify the relevant data controller of his intention to inspect the systems (other than in cases of urgency), but a person obstructing the Information Commissioner in the course of his inspection or failing without reasonable excuse to give him any reasonable assistance will be guilty of an offence. The penalties for the offence are as established by section 60 of the 1998 Act, which states that a person guilty of an offence in relation to the powers of the Information Commissioner is liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). However, if required for the purposes of safeguarding national security, the additional powers attributed to the Information Commissioner under this clause in respect of personal data in the systems will not apply.

Clause 82: Foreign Surveillance Operations

154.     Article 40 of the Schengen Convention provides that police officers keeping a person under surveillance in their own country because he is suspected of having committed an extraditable offence may require neighbouring Schengen countries to assist in keeping the person under surveillance if he crosses the border into their territory. In the vast majority of cases such assistance will be requested in advance and, when the surveillance enters the UK, our own officers will take over the surveillance. These UK officers will need to be properly authorised to conduct such surveillance under the Regulation of Investigatory Powers Act 2000 (c.23) (RIPA) the Regulation of Investigatory Powers (Scotland) Act 2000. However, on occasions it will not be possible for a request to be made sufficiently far in advance for a UK team to take over the surveillance at the point of entry to the UK. This clause implements Article 40(2) of the Schengen Convention, which covers such cases by making provision for a foreign surveillance operation, which was initiated in one participating country but which has had to travel unexpectedly to another participating country, to continue lawfully to keep an individual under surveillance for a period of up to five hours. To legislate for this change, this clause amends RIPA by introducing a new section (Section 76A Foreign surveillance operations) to allow police or customs officers from other Member States to continue surveillance on UK territory for this period.

155.     At present, UK police officers are not allowed to follow suspects across the border into the territory of another Schengen State (and vice versa foreign officers may not travel into the UK to conduct similar activities). Instead they are expected to contact the police authorities of that state, and arrange for them to take over the surveillance operation. However, in practice police officers are not always immediately available to take over the operation, and this can result in losing the suspect. The provisions set out in this clause are meant to avoid this occurrence.

156.     There are three conditions that must be satisfied before urgent cross border surveillance will be lawful under these clauses. These are set out in subsection (1)(a), (b) and (c). Subsection (1)(a) provides that before crossing the border the surveillance must be lawful in the country in which it is being carried out. In addition the surveillance must be "relevant surveillance". Subsection (2) defines this as being surveillance which would fall within the definition of directed or intrusive surveillance in RIPA, therefore being covert surveillance that the target is unaware of. In addition the target of the surveillance is suspected of having committed a relevant crime.

157.     Subsection (3) provides that a relevant crime is one that falls within Article 40(7) of Schengen; namely murder, manslaughter, rape, arson, forgery of money, aggravated burglary and robbery and receiving stolen goods, extortion, kidnapping and hostage taking, trafficking in human beings, illicit trafficking in narcotic drugs and psychotropic substances, breach of laws on arms and explosives, wilful damage through the use of explosives, illicit transportation of toxic and hazardous waste. Subsection (3)(b) sets out that a relevant crime can also be a crime as defined in other international agreements, which contain provisions on cross-border surveillance, specified by the Secretary of State by order

158.     The second condition, in subsection (1)(b), is that the surveillance can only be carried out in the UK. Third, subsection (1)(c) provides that the circumstances must be such that it is not reasonably practicable for UK officers (as defined in subsection 10) to take over the surveillance when the suspect arrives in the UK under a normal RIPA authorisation (or its Scottish equivalent).

159.     The purpose of subsection (5) is to provide that urgent cross border surveillance will be lawful under RIPA if certain conditions are complied with. Two key conditions from Article 40 have been placed on the face of the Bill. Subsection (7)(a) implements the requirement in Article 40(2) for foreign officers to contact the authorities of the State into which they have entered immediately upon crossing the border and to submit a formal request for assistance. Subsection (5)(b) implements the condition in Article 40(3) that prohibits the officers from entering private homes or places. The Secretary of State is also given an order making power to specify, if needed, other appropriate conditions for the conduct of foreign officers should their surveillance operation unexpectedly cross into the UK. Failure to comply with any such conditions would mean that the surveillance would not be lawful under this new section. Article 40(3) places other conditions on the conduct of foreign officers, which apply for the period they are operating in a foreign state. These conditions prohibit, for example, the officers from arresting the person under surveillance. However, foreign officers operating under the clause are not being given any power to arrest the target. Furthermore, the clause simply makes the covert surveillance lawful. Indeed, if the officer did seek to arrest the target he would no longer be conducting surveillance on him and the clause would no longer apply. Accordingly, such a condition does not need to either be placed on the face of the Bill or be imposed by order. Rather, the order making power will be used if subsequent experience indicates other further conditions should be imposed.

160.     Subsection (6) provides that foreign police officers carrying out such surveillance operations are not subject to civil liabilities in relation to conduct which is incidental to surveillance which is lawful. Incidental conduct is considered to be conduct that is inextricably associated with surveillance to the extent that it is effectively unavoidable if the surveillance, which would have to be lawful, is to continue. Incidental conduct covers an extremely narrow set of circumstances, for example trespass. The same protection is given to UK officers by section 27(2) of RIPA in respect of UK officers who conduct surveillance authorised under RIPA.

161.     Subsection (8) establishes that this type of unaccompanied surveillance should not last for more than five hours. The five hour period will allow officers to continue surveillance, whilst providing time for officers in the destination country to be mobilised. If resources are available to mobilise a UK surveillance team within the five-hour period, a joint operation will be established, with the UK officers taking over the surveillance and the foreign officers adopting observer status at the point of handover. If the UK has not taken over the operation by the time the five-hour period has elapsed then the foreign officers will no longer have lawful authority to continue and will be expected to cease the surveillance.

162.     Subsection (9) sets out further restrictions on the operation of such teams. That subsection permits the Secretary of State to designate persons within UK law enforcement with the power to terminate surveillance operations of this kind taking place in the UK, fulfilling the requirements of Article 40(2) of Schengen. The decision to terminate might be taken because UK officers have taken over the surveillance or because the surveillance was considered inappropriate.

163.     Taking account of devolved responsibilities and to maintain a consistent approach with similar legislation (Section 103(4) of the Police Reform Act 2002), the wording of this and the other order making powers in section 76A provide for a single order to be made to cover the whole of the UK, subject to the consent of Scottish Ministers.

164.     Subsection (11) includes a definition of UK officer which is relevant to subsection (1) to clarify which officers will be permitted to carry out this type of surveillance.

Clause 83: Assaults on foreign officers

165.     The purpose of this clause is to provide, in accordance with Article 42 of the Schengen Convention, that officers from abroad conducting surveillance under the new section 76A are treated in the same way as constables while in England and Wales, Scotland or Northern Ireland with respect to offences committed against them. Section 104 of the Police Reform Act 2002, which already provides the same rights for foreign officers who are members of a Joint Investigation Team, will cover foreign officers taking part in pre-planned joint surveillance operations.

166.     The modifications to the relevant Acts provide that just as it is already an offence to assault or obstruct a constable or a person assisting a constable in the execution of his duty, it shall also be an offence to assault or obstruct members of foreign surveillance teams whether or not the team member from abroad is in the company of a UK constable.

Clause 84: Liability in respect of foreign officers

167.     This clause implements Article 43 of Schengen, which establishes that in the first instance the state in whose territory the surveillance operation is being undertaken, is liable to cover the cost of any damage foreign surveillance officers may commit, or legal action to which they may be subject. The UK has decided that the National Criminal Intelligence Service should be responsible for such liabilities in the first instance, albeit under Schengen they will later be reimbursed by the foreign state.

Clause 85: Schengen-building provisions of the 1996 Extradition Convention

168.     The UK is participating in Chapter 4 of the Schengen Convention (Articles 59 to 66) which relates to extradition. No legislation is needed to implement these provisions as they have been superseded by two further Conventions on extradition in 1995 and 1996 which build on the Schengen provisions - the Convention on Simplified Extradition Procedure between Member States of the European Union (the "1995 Convention") and the Convention Relating to Extradition between Member States of the European Union (the "1996 Convention"). The 1995 and 1996 Conventions have already been implemented in the UK by the European Union Extradition Regulations 2002 (S.I. 2002/419) (the "2002 Regulations"), which amended existing extradition legislation contained in the 1989 Extradition Act.

169.     As non-EU Member States, Norway and Iceland were not original parties to the 1995 and 1996 Conventions but they are participants in Schengen, including the extradition provisions. As such, it is open to them, subject to the approval of the Member States, to seek to participate in those elements of the 1995 and 1996 Conventions that have been classified as "Schengen-building". The 1995 Convention is entirely "Schengen-building", and such a decision would bring the Convention into force between the UK and Norway/Iceland under the 2002 Regulations. But the 1996 Convention is only partially "Schengen-building", and if Norway and Iceland chose to participate in the "Schengen-building" parts alone, the Convention as a whole would not be in force between the UK and Norway/Iceland and the implementation of the 1996 Convention under the 2002 Regulations would not suffice. This clause therefore provides a power for the UK to bring into force the relevant parts of the 1996 Convention by Order in Council, subject to the negative resolution procedure. This would enable the relevant provisions of the Extradition Act 1989 to apply to Norway and Iceland; and to any other state which may participate in these Schengen-building measures.

170.     The Schengen building provisions are concerned with the definition of extraditable offences; extradition for fiscal offences; statute barring of extradition; barring by amnesty; and facsimile transmission of documents in extradition requests.

Clause 86: States in relation to which 1995 and 1996 Extradition Conventions are not in force

171.     This clause is designed to allow the UK unilaterally to apply the provisions of the 1995 and 1996 Conventions to countries which have not ratified the Conventions themselves. The clause is largely necessary so that the UK is able to fulfil its Schengen obligations to Italy, which has ratified the Schengen extradition provisions but has not ratified the subsequent 1995 and 1996 Conventions.

172.     Rather than introduce a different extradition regime to that for other EU Member States, this clause creates an enabling power which may be used to extend to Italy the relevant provisions of the 1995 and 1996 Conventions. (The power could also be used to apply these to other states as are specified by Order in Council). It is expected that in the case of Italy, this will be a short-term measure, as it is anticipated that all existing EU Member States will have implemented the Framework Decision on the European Arrest Warrant by 1 January 2004, which will significantly alter current extradition proceedings within the EU.

Clause 87: False monetary instruments: England and Wales and Northern Ireland

173.     This clause implements Article 2 of the Framework Decision of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment. The purpose of the Framework Decision is to ensure that fraud and counterfeiting involving non-cash means of payment are recognised as criminal offences and are subject to effective sanctions in all EU Member States. Because these offences often occur increasingly on an international scale, it was considered appropriate for action to be taken at EU level.

174.     UK law already covers most of the provisions of the FD. However, Article 2 requires Member States to make it a criminal offence to misuse specified "payment instruments", where misuse includes possession of a stolen instrument or of a counterfeit instrument for fraudulent purposes. The Forgery and Counterfeiting Act 1981 criminalises the forgery and fraudulent use of any instrument. However, simple possession is only an offence in relation to a specific list of forged instruments, as set out under section 5(5) of the Act. The list is not quite as extensive as that covered by the FD. This clause therefore extends the list of instruments covered by section 5(5) of the 1981 Act to include bankers drafts, promissory notes and debit cards, all of which fall within the scope of the FD. The clause also creates a power for further monetary instruments to be added by order, should future developments require this. This power will be exercised by the Secretary of State.

Clause 88: False monetary instruments: Scotland

175.     This clause makes provision for Scotland in relation to the FD on combating fraud and counterfeiting of non-cash means of payment. The position in Scotland is different from the rest of the UK because under the common law of Scotland forgery itself is not a crime and only becomes so when a false instrument is uttered as genuine. Section 5 of the Forgery and Counterfeiting Act 1981 does not apply to Scotland. This clause inserts a new section 46A into the Criminal Law (Consolidation) (Scotland) Act 1995. This new provision creates an offence of counterfeiting or falsifying a specified monetary instrument ("specified" means by order of the Scottish Ministers). It will also be an offence for a person to have in his custody or control equipment for making a specified monetary instrument. The new section 46A also makes provision relating to offences committed by companies and partnerships.

Clause 89: Freezing of Terrorist Property

176.     This clause gives effect to Schedule 4, which introduces the mutual recognition of orders freezing terrorist assets.

Part 5: Final Provisions

Clause 91: Northern Ireland

177.     This clause will enable Northern Ireland to replicate the provisions in Chapter 2 of Part 3 of the Bill (mutual recognition of driving disqualification within the UK) by way of Order in Council subject to negative resolution procedure. The clause is necessary due to the current suspension of the Northern Ireland Assembly.

178.     The provisions of Chapter 2 of Part 3 of the Bill cannot come into force until reciprocal measures are in place in Northern Ireland. This clause will expedite Northern Ireland legislation and allow the earliest introduction of the mutual recognition measures between Great Britain and Northern Ireland, which will remedy the existing anomaly, whereby a disqualification imposed in Northern Ireland is not recognised in Great Britain.

Clause 92: Supplementary and consequential provision

179.     This clause will allow UK and Scottish Ministers to make supplementary and consequential amendments to give full effect to any provision of the Bill. The clause provides that any provision which adds to, replaces or omits any part of the text of an Act of Parliament is subject to the affirmative resolution procedure, whilst other provisions will be subject to the negative resolution procedure.

Schedule 4: Terrorist Property: freezing orders

180.     This Schedule implements those provisions of the European Union Framework Decision on the execution, under the mutual recognition principle, of orders freezing property or evidence as far as the proceeds and instrumentalities of terrorism are concerned. It does so by building on the provisions for restraint orders in Schedule 4 of the Terrorism Act 2000 ("the Act"), and sets out a procedure for transmitting such orders abroad under the Framework Decision, and for giving effect to incoming freezing orders transmitted to the EU by another Member State. Implementation of the Framework Decision so far as the freezing of evidence is concerned is covered in Part 1 of the Bill.

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Prepared: 19 March 2003