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

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Part 4: Cross Border Surveillance

232.     Clause 82 implements Article 40(2) of the Schengen Convention, which provides for foreign police officers to conduct surveillance in the UK of those suspected of serious crimes in urgent circumstances for up to five hours. The clause achieves this by introducing a new section (76A) to the Regulation of Investigatory Powers Act 2000, the legislation which governs surveillance operations in the UK. Surveillance authorised under RIPA is lawful under UK law, and "in accordance with the law" for the purposes of Article 8 ECHR.

233.     Urgent cross border surveillance conducted under this clause may engage the Article 8 (right to privacy) rights of the target under surveillance. However, the clause contains a number of safeguards. First, clause 82 only applies where it is not reasonably practicable for UK officers to take over the surveillance when the target enters the UK and only allows the foreign officers to operate independently for up to five hours from when they enter the UK. Second, it only applies where the target of the surveillance is suspected of having committed one of a limited range of serious criminal offences. A further precondition is that the surveillance must be lawful in the State where it comes from. The Government considers that as our Schengen partners are all signatories of ECHR, the UK is entitled to assume that their law enforcement agencies will act in accordance with ECHR. The surveillance should therefore be lawful and proportionate in the state where it originates before crossing to the UK. In any event the clause requires the foreign officers to contact the UK authorities immediately they enter the UK and at that point, and at any stage thereafter in the five hour period, the clause gives UK officers the power to tell the foreign officers to cease the surveillance.

234.     Furthermore, clause 82(5)(b) explicitly states that officers carrying out this type of surveillance are prohibited from entering into private property or places inaccessible to the public. This further safeguards rights under Article 8. Finally, as the foreign officers undertaking the surveillance will be acting under this clause and have the approval of the UK authorities when doing, so it is considered they will be public authorities under the Human Rights Act 1998, accordingly granting individuals the right to challenge the legitimacy of the surveillance if so desired.

Schedule 4: Terrorist Property: freezing orders

235.     Schedule 4 introduces the mutual recognition of orders freezing terrorist assets under the Framework Decision on the execution in the EU of orders freezing property or evidence. The provisions build on the provisions for restraint orders in Schedule 4 to the Terrorism Act 2000, and set out a procedure for transmitting such orders abroad under the Framework Decision to another EU Member State and for giving effect to overseas freezing orders transmitted to the UK by another Member State.

236.     The provisions on freezing terrorist assets could be seen to engage Convention rights, particularly the right to property. However the Government considers that interference of this right is justified insofar as it is in accordance with the law, and is necessary in a democratic society in the interests of national security, public safety, or the prevention of disorder or crime. These provisions are limited to terrorist assets and instrumentalities. The system of restraint and forfeiture orders in the Terrorism Act may only be used to limit the capability of terrorist organisations. The Bill does not extend the power of UK courts to make restraint orders and the existing safeguards applying to the making of such orders (the notice and the variation and discharge provisions) apply equally to certificates made under the Bill's provisions. Provision is made for a UK court to decide not to give effect to an overseas freezing order if to give effect to it would be incompatible with Convention rights. The Government is satisfied that the procedures for the transmission of UK restraint orders to other Member States and the execution of overseas freezing orders in the UK are compatible with ECHR.

COMMENCEMENT

237.     The Bill will be brought into force by commencement order. It is expected that there will be different commencement dates for different parts of the Bill.

 
 
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Prepared: 19 March 2003