17 European Evidence Warrant
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COM(03) 688
| Draft Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters
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| Legal base | Articles 31 and 34(2)(b)EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 20 January 2004
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| Previous Committee Report | HC 42-iv (2003-04), para 6 (7 January 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
17.1 We considered the proposed Council Framework Decision for
a European Evidence Warrant (EEW) on 7 January 2004. We noted
that such a warrant would be directly enforceable in other Member
States with the executing State being expected to enforce orders
issued by the issuing State, with only limited grounds for refusal.
An executing State would not be permitted to refuse enforcement
of an EEW on dual criminality grounds (i.e. that the warrant related
to conduct which was not criminal in the executing State), even
in the case of entry into and search of private premises. Strict
time limits would be imposed for execution of the request, with
appeals on the substantive grounds for the order being heard only
in the courts of the issuing State.
17.2 We noted that the Framework Decision would replace
the provisions of the Convention of 29 May 2000 on Mutual Assistance
in Criminal Matters between Member States of the European Union[33]
and its Protocol of 2001,[34]
even though these have yet to come into force.
17.3 We also noted that the Government supported
the principle of mutual recognition, and that it regarded the
concept of the EEW as a reasonable development of the mutual recognition
programme, as it would provide greater legal certainty that evidence
within the scope of the Decision could be obtained from other
Member States, but that the Government was studying the draft
text in detail to ascertain its full implications for the criminal
justice systems in the United Kingdom.
17.4 We confined ourselves at this stage to raising
a number of initial concerns on which we asked for the Minister's
views. First, we asked if the principle of mutual recognition
was really appropriate in the case of search warrants which are
made solely on the application of one party and are not the result
of any adversarial proceeding in which the grounds for the order
can be tested, and also how it had been established that the EU
Convention of 2000 and its Protocol of 2001 were, or would be,
ineffective when they have not yet come into force.
17.5 Secondly, we noted the Minister's desire to
obtain "flexibility" in the definition of "issuing
authority" in Article 2(c) so as to include police, customs
or administrative authorities, but we asked whether such flexibility,
which would have the effect of providing for the near-automatic
enforcement in this country of orders made by foreign police forces,
was a desirable objective.
17.6 Thirdly, we noted the provisions of Article
24(2) which we understood would oblige the UK to abandon the safeguard
of dual criminality after five years, even in respect of the forcible
search of a person's home in respect of evidence relating to acts
which were not criminal here, indicated that we and did not believe
this would be tolerable.
17.7 Finally, we observed that Article 13 appeared
to allow the issuing authority to give detailed instructions as
to how evidence was to be gathered by an executing authority in
this country. We did not believe an issuing authority should
be given the power to determine whether or when coercive measures
are to be applied to persons or premises in this country and we
asked the Minister if she agreed.
The Minister's reply
17.8 In her letter of 20 January 2004 the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) indicates
that the Government is still considering its initial negotiating
position prior to the commencement of discussions in the Council
working group. On the question of the appropriateness of relying
on the principle of mutual recognition in relation to search warrants,
the Minister replies that the Commission has proposed the European
Evidence Warrant in response to the Conclusions of the European
Council at Tampere in 1999, which called for the "principle
of mutual recognition [to] apply to pre-trial orders, in particular
to those which would enable competent authorities quickly to secure
evidence". The Minister adds that the current mutual legal
assistance arrangements and those which are due to enter into
force under the EU Convention of 2000 and its Protocol are not
based on the principle of mutual recognition, and concludes: "we
consider therefore that it is appropriate for the Commission to
be putting forward such a proposal".
17.9 The Minister acknowledges that to consider the
Commission proposal will mean that there will be negotiations
to replace two instruments which have yet to enter into force,
and comments as follows:
"Although this is not ideal, equally we do not
see it as a bar to the proposed European Evidence Warrant. In
particular, we believe it unlikely that the Warrant would enter
into force much before 2007/2008. The MLA Convention and its
Protocol will therefore provide an improved system for mutual
legal assistance in the intervening period. However, as concluded
at Tampere, they will eventually be replaced by mutual recognition
arrangements which we believe will provide added benefits in terms
of speed and efficiency."
17.10 In relation to our concern that "flexibility"
in the definition of an issuing authority in Article 2c could
lead to the near-automatic enforcement in this country of orders
made by foreign police forces, the Minister replies that the Government
notes our concerns. The Minister adds that the Article, as now
drafted, would specifically exclude HM Customs Prosecutors from
issuing warrants, but that in the light of our comments the Government
"will reflect further on how best to protect the current
powers of our competent authorities".
17.11 On the question of abandoning the safeguard
of dual criminality, the Minister comments as follows:
"The Government's position on the abolition
of dual criminality for the effective operation of mutual recognition
is well known and we support the proposal here to abandon its
general application in relation to the securing of evidence.
However, consistent with previous instruments, we are considering
whether to seek a specific threshold requirement in the text to
the effect that a warrant can only be issued in respect of an
offence that is punishable in the issuing State by a custodial
sentence of a minimum period."
17.12 In relation to our concerns over Article 13,
the Minister replies that the Government is looking carefully
at the implications of this Article. The Minister agrees that
the "UK competent authorities should retain some flexibility
in enforcing a warrant as appropriate to our domestic systems
and in accordance with the principles of our laws".
Conclusion
17.13 We are grateful to the Minister for her
prompt reply, but we do not consider that our concerns about the
sweeping nature of this proposal have been laid to rest. Despite
what may have been recorded as Council Conclusions nearly five
years ago at Tampere, we consider that the case for the mutual
recognition across the European Union of pre-trial orders, such
as search warrants, has yet to be made out.
17.14 Whilst we have reservations about the principle
of mutual recognition in such cases, these are compounded by the
possibility of recognition and enforcement of orders made by persons
who do not hold a recognisably judicial office. We emphasize
our concern about the risk of "flexible" interpretations
of Article 2c which would allow orders made by foreign police
authorities to be enforced here.
17.15 We note the Minister's comments on dual
criminality, but we ask her how the use of coercive measures to
enforce a European Evidence Warrant can be justified in relation
to conduct which is not criminal in this country.
17.16 We note the Minister's comments on Article
13, but we repeat our concern that an issuing authority should
not be given the power to determine whether coercive measures
are used in this country. We do not believe that it is enough
for the UK competent authorities to "retain some flexibility".
We ask the Minister to confirm that the UK will not accept any
direction or control by issuing authorities as to the measures
to be used to enforce a European Evidence Warrant in this country.
17.17 Given the importance and sensitivity of
the issues raised by this proposal and to which we have referred,
we invite the Minister to appear before us to give oral evidence.
We shall hold the document under scrutiny in the meantime.
33 OJ No. C 197 of 12.7.00, p.1. Back
34
OJ No. C 326 of 21.11.01, p.1. Back
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