6 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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| Document originated | 14 November 2003
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| Deposited in Parliament | 18 November 2003
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| Department | Home Office |
| Basis of consideration | EM of 27 November 2003
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| Previous Committee Report | None
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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
6.1 The United Kingdom is party to a number of international and
European agreements which provide for international cooperation
in the obtaining of evidence for use in criminal proceedings.[14]
The principal agreement at European level is the Council of Europe
Convention of 1959 on Mutual Assistance in Criminal Matters,[15]
as amended by its two Protocols of 1978[16]
and 2001.[17] Within
the European Union, the 1959 Council of Europe Convention has
been supplemented by the 1990 Schengen Convention[18]
and the Convention of 29 May 2000 on Mutual Assistance in Criminal
Matters between the Member States of the European Union[19]
and its 2001 Protocol.[20]
6.2 Under these arrangements for mutual legal assistance,
evidence may be obtained and provided by other countries in response
to a request. Such a request may be refused on a number of grounds,
including that of public policy (ordre public) or other
essential national interest, that the acts in respect of which
evidence is sought do not constitute a criminal offence in the
requested State (dual criminality), or that compliance with the
request would be inconsistent with the law of the requested State.
The measures taken in response to a request are a matter for the
law of the requested State, and there is no question of the requested
State recognising and directly enforcing the orders made by the
requesting State.
6.3 The Council has adopted a Framework Decision
on the execution in the European Union of orders freezing property
or evidence.[21] This
requires the mutual recognition of orders issued for the purpose
of freezing evidence with a view to its eventual transfer to the
issuing State, or for the purpose of freezing property with a
view to its eventual confiscation. The scope of the Framework
Decision is limited to provisional measures to prevent the destruction
or disposal of evidence or property, and such measures (including
coercive measures) remain a matter for the law of the executing
State. Moreover, the subsequent transfer of evidence remains a
matter governed by the traditional rules for mutual legal assistance.
The proposed European Evidence Warrant
6.4 The proposed Council Framework Decision would
introduce the concept of the European Evidence Warrant (EEW) which
would be directly enforceable in other Member States in accordance
with a generalised principle of mutual recognition. The executing
State would be expected to enforce orders issued by the issuing
State, with only limited grounds for refusal. An executing State
would not, for example, be permitted to refuse enforcement of
an EEW on the grounds that it 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. The Framework Decision would replace the provisions of
the EU mutual assistance Convention of 2000 and its Protocol of
2001 (even though the latter have yet to come into force).
6.5 The provisions of the proposed Framework Decision
may be summarised as follows. Article 1 defines the EEW as "a
judicial decision" which is issued by a competent authority
of a Member State "with a view to obtaining objects, documents
and data" from another Member State for use in criminal proceedings
and in the other kinds of proceedings mentioned in Article 4.
By virtue of Article 1(2) Member States are obliged to "execute
any European Evidence Warrant on the basis of the principle of
mutual recognition and in accordance with the provisions of the
Framework Decision".
6.6 Article 2 is concerned with definitions. An "issuing
State" means the Member State in which an EEW is issued and
an "executing State" is the Member State in which the
"objects, documents or data are available". An "issuing
authority" means "a judge, investigating magistrate
or prosecutor" having competence under national law to issue
an EEW, whereas an "executing authority" means an authority
with competence under national law to execute an EEW. Article
2 also defines "information system", "computer
data", "electronic communications network" and
"offence".
6.7 Article 3(1) provides that any type of object,
document or data which could be used in the proceedings mentioned
in Article 4 may be sought by an EEW. However, this is subject
to Article 3(2) which provides that an EEW shall not be issued
for the purpose of initiating the taking of evidence "in
the form of interviews, statements or other types of hearings
involving suspects, witnesses, experts or any other party",
or "from the body of any person, including DNA samples".
An EEW shall also not be issued for "the taking of evidence
in real-time such as through the interception of communications,
covert surveillance or monitoring of bank accounts". Neither
may an EEW be issued for the purpose of initiating "the taking
of evidence requiring further inquiries, in particular the compilation
or analysis of existing objects, documents or data". However,
Article 3(3) provides that an EEW may be issued for obtaining
existing evidence of all these classes where it has been gathered
prior to the issuing of the warrant.
6.8 Article 4 lists the types of proceedings in respect
of which an EEW may be issued. In addition to criminal proceedings,[22]
the warrant may be issued in respect of proceedings brought by
administrative authorities in respect of acts punishable under
national law which may give rise to proceedings before courts
having criminal jurisdiction.[23]
6.9 Article 5 deals with the content and form of
the EEW. A form of warrant is set out in Annex A to the proposal
which must be signed, and the contents verified as accurate, by
the issuing authority. (Form A requires a signature "of the
issuing judicial authority and/or its representative" but
there is no requirement that the person signing should hold judicial
office).
6.10 Articles 6 to 10 are concerned with the conditions
for issuing an EEW, its transmission and with conditions on the
use of personal data. Article 6 requires the issuing State to
ensure that the warrant is issued only where "the objects,
documents or data sought are necessary and proportionate"
for the purposes of the proceedings mentioned in Article 4. In
addition, the issuing State must ensure that a warrant is sought
only where the objects, documents or data "can be obtained
under the law of the issuing State in similar circumstances if
they were available on the territory of the issuing State".
The Commission explains that this condition is proposed in order
to prevent the use of the EEW to circumvent restrictions under
national law, such as those relating to material covered by legal
professional privilege. A further condition is that the objects,
documents or data "are likely to be admissible in the proceedings
for which they are sought". The Commission explains that
this is intended to prevent the circumvention of rules on admissibility
under the national law of the issuing State.[24]
6.11 Article 7 requires the issuing authority to
transmit the EEW direct to the competent authority for execution.
If the authority of the executing State has no jurisdiction to
recognise the warrant or take the necessary measures, it is to
transmit the warrant ex officio to the competent authority
for execution.[25] Article
8 requires each Member State to designate a central criminal records
authority to which the EEW can be transmitted for the purpose
of obtaining a copy of any official record of conviction in that
State. Article 9 permits an issuing State to issue a simplified
form of EEW (a form for which is set out in Form B in the Annex)
where it has already issued an EEW and seeks additional evidence.
6.12 Article 10 limits the use which may be made
of personal data obtained under the Framework Decision to use
in the "proceedings for which the EEW may be issued",[26]
or for "other judicial and administrative proceedings directly
related" to such proceedings, or for preventing "an
immediate and serious threat to public security". In these
two latter cases, the issuing State may use the data only with
the consent of the executing State, or of the data subject.
6.13 Articles 11 to 20 contain a series of provisions
relating to execution of the EEW. Article 11 requires the executing
State to recognise an EEW "without any further formality
being required" and "forthwith" to take the necessary
measures for its execution in the same way as the evidence would
be obtained by an authority of the executing State.
6.14 Article 12(1)(a) requires the executing State
to use the "least intrusive means necessary" to obtain
the evidence, and Article 12(1)(b) provides that "a natural
person[27] shall not
be required to produce objects, documents or data which may result
in self-incrimination". Article 12(1)(c) provides that the
issuing authority is to be informed immediately if the executing
authority discovers that the warrant was executed in a manner
contrary to the law of the executing State. Article 12(2) requires
Member States to ensure that a search of "premises"[28]
shall not start "at night" unless "this is exceptionally
necessary due to the particular circumstances of the case".
Article 12(2) further provides for written notification to be
given of the search of any premises.
6.15 Article 13 is headed "formalities to be
followed in the executing State" but in reality the Article
contains a number of substantive obligations which may be imposed
by the issuing State on the executing State. By virtue of Article
13(a) the issuing authority may require the executing authority
to use "coercive measures" where, in the opinion of
the issuing authority, there is a "significant risk"
that the evidence "might be altered, moved or destroyed".
By virtue of Article 13(b) the executing authority may be required
to keep the investigation confidential. Under Article 13(c) the
issuing authority may require the executing authority to allow
the competent authority of the issuing State "to be present
during the execution of the warrant" and to have the same
access as the executing authority to the evidence obtained as
a result of execution of the warrant . Under Article 13(d) the
issuing authority may be required to keep a record of who has
handled the evidence from the time of execution of the warrant
to transfer of the evidence to the issuing State. Finally, Article
13(e) provides that the issuing authority may require the executing
authority to comply with other "specified formalities and
procedures" unless these are contrary to fundamental principles
of law in the executing State.
6.16 Article 14 requires the executing authority
immediately to inform the issuing authority if it considers that
further investigations, not initially foreseen, should be undertaken.
6.17 Article 15 contains very limited grounds for
refusing recognition or enforcement of the warrant. Article 15(1)
provides that a judge, investigating magistrate or prosecutor
in the executing State shall "oppose" recognition or
enforcement of the warrant "if this would infringe the ne
bis in idem principle" as defined in the Framework Decision
on the application of the principle of ne bis in idem.[29]
Article 15(2) provides that such a person may "oppose"
recognition or enforcement if execution of the warrant would infringe
the ne bis in idem principle with respect to proceedings
in a third State, or if there is an immunity or privilege under
the law of the executing State which makes it impossible to execute
the warrant.
6.18 Article 16 abolishes the requirement, which
has hitherto applied in arrangements for mutual legal assistance,
that the conduct in respect of which evidence is sought should
be criminal in both the issuing and the executing State (dual
criminality). Article 16(1) provides that dual criminality shall
not be required if execution of the warrant does not involve a
search of "private premises" or if the warrant relates
to an offence listed in Article 16(2). The list of offences is
similar to, but more extensive than, the list in Article 2(2)
of the Framework Decision on the European Arrest Warrant.[30]
Like the draft Framework Decision on mutual recognition of financial
penalties the list in Article 16(2) does not contain any minimum
threshold level of penalty. As with those instruments, the list
of offences refers to such matters as "computer-related crime",
"environmental crime", "racism and xenophobia"
and "swindling" for which no definition is provided,
the characterisation of such acts as criminal being left wholly
to the law of the issuing State.
6.19 Article 16(3), read with Article 24(2) and (3),
imposes a further limit on the ability of the executing State
to refuse recognition on the grounds of dual criminality. Article
16(3) provides that, in a case to which Article 16(1)(a) or (b)
does not apply, execution of a warrant may only be refused on
dual criminality grounds for a transitional period of five years.
Thereafter, it would seem that a warrant must be executed in all
circumstances and dual criminality cannot be relied on as a ground
for refusing enforcement.[31]
6.20 Article 17 imposes strict deadlines on the executing
authority for execution of the warrant. A warrant must in all
circumstances be executed within 60 days of its receipt, and the
evidence transferred within 30 days thereafter. Article 18 sets
out limited grounds for postponement of execution. These include
the case where the form is incomplete or where execution of the
warrant "might damage an ongoing criminal investigation"
or where the evidence is already being used in other proceedings
of the kind mentioned in Article 4.
6.21 Article 19 requires Member States to ensure
that any interested party, including a bona fide third party,
has legal remedies against the execution of an EEW where this
involves the use of "coercive measures". Such proceedings
may be brought before the courts of the issuing or the executing
State, but the "substantial reasons" for issuing a warrant
may be challenged only before the courts of the issuing State.
Article 16(6) provides that, "despite the existence of a
legal remedy in the executing State" the issuing authority
may require the executing State to transfer the evidence 60 days
after execution of the warrant. If the outcome of the proceedings
in the executing State is that the transfer should not have been
allowed the evidence "shall immediately be returned to the
executing State".
6.22 Article 20 contains provisions for the reimbursement
by the issuing State of any damages awarded against the executing
State by reason of its execution of the warrant, except if the
injury is "exclusively due to the conduct of the executing
State".
6.23 Article 21 contains provisions relating to jurisdiction
over electronic communications networks. Article 21(1) requires
each Member State to adopt measures to ensure that it is able
to execute a warrant without further formality where the computer
data sought is held on an information system in another Member
State, provided that the data is lawfully accessible to a legal
or natural person in the territory of the executing State and
relates to a service provided by that legal or natural person
in the territory of the executing State to a legal or natural
person in that same territory. Article 21(2) requires each Member
State to take measures to ensure that, with respect to computer
data "on its territory", its national law "permits
another Member State to take action in accordance with" Article
21(1).
6.24 Articles 22 to 26 contain transitional and final
provisions. Article 23 deals with the relationship of this proposal
with other instruments. Article 23(3) and (4) provide that Member
States may continue to apply or conclude bilateral or multilateral
agreements or arrangements "so far as such agreements or
arrangements allow the objectives of this Framework Decision to
be extended or enlarged and help to simplify or facilitate further
the procedures for obtaining evidence falling within the scope
of this Framework Decision".
The Government's view
6.25 In her Explanatory Memorandum of 27 November
2003 the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) describes the existing context of mutual legal
assistance arrangements and, in broad terms, the effect of the
proposal on them. The Minister explains that the present law (Part
I of the Criminal Justice (International Co-operation) Act 1990)
provides for the execution of foreign requests, rather than the
automatic recognition and enforcement of overseas orders, and
that the current law and practice embodies specific conditions
and discretionary powers in dealing with incoming requests, in
line with existing EU and Council of Europe Conventions.
6.26 The Minister explains further that these conditions
and discretionary powers include the requirement for dual criminality
in cases which involve the exercise of search and seizure powers
or the special investigation powers of the Serious Fraud Office
or Crown Office in cases of serious or complex fraud, the power
to refuse requests where execution may prejudice UK investigations,
proceedings, national security or other essential interests, the
right to refuse the request where a trial in the executing country
would involve double jeopardy, and the right to refuse a request
to allow intercept material to be used in evidence.
6.27 The Minister points out that, although the Criminal
Justice (International Co-operation) Act 1990 will be largely
repealed by the Crime (International Co-operation) Act 2003, the
above conditions will not be changed, except in relation to allowing
intercept material to be used in evidence.
6.28 On the policy implications of the proposal,
the Minister comments as follows:
"The Government supports the principle of mutual
recognition, and welcomes measures which may lead to more effective
and efficient judicial co-operation. The concept of the EEW is
a reasonable development of the mutual recognition programme of
2001 because the EEW would provide greater legal certainty that
evidence within the scope of the Decision can be obtained from
other Member States. The Government is studying the draft text
in detail to ascertain the full implications of this draft proposal
on our domestic criminal justice systems".
6.29 The Minister notes a number of points on which
the Government is able to comment immediately. First, the Minister
notes that Article 7, which provides for the direct transmission
of the EEW between competent authorities, makes no special arrangements
for the UK or Ireland to designate a Central Authority. Secondly,
the Minister notes that the definition of competent judicial authorities
in Article 2 specifically excludes police, customs and administrative
authorities from issuing a warrant and that the Government will
be seeking "flexibility" in this Article to determine
the competent judicial authority in accordance with the national
law of each Member State.
6.30 In relation to Article 15 the Minister states
that the Government is concerned that "the UK may be obliged
to disclose sensitive material which is normally protected by
Public Interest Immunity" and that the Government will be
seeking an amendment so that a Member State may refuse to execute
an EEW that seeks material that would not be disclosed in similar
proceedings in the executing State.
6.31 In relation to Article 16 the Minister notes
that the dual criminality requirements for search and seizure
do not apply if the offence is one of those listed in the Article.
The Minister comments that "the limitation of dual criminality
requirements is in line with the principle of mutual recognition".
Nevertheless, the Minister notes that there is no requirement
that the offence be punishable by a maximum of three years' imprisonment,
and that the Government is considering whether to seek a more
specific threshold, for example, that the offence is at least
punishable in the issuing State by a custodial sentence of six
months.
6.32 The Minister also notes that the time limit
in Article 19 of 60 days for suspending the transfer of evidence
pending an appeal is shorter than the three months allowed to
a domestic applicant to apply for judicial review. The Minister
comments that "we will need to look at this Article in negotiation".
Conclusion
6.33 Like the Government, we are considering the
likely impact of this proposal and will confine ourselves to a
number of preliminary comments, as we shall need to return to
this proposal in more detail as the negotiations progress. We
have a number of initial concerns, on which we would be grateful
for the Minister's views.
6.34 First, we note the Minister's invocation
of the principle of mutual recognition, but we ask if this principle
is really appropriate in the case of orders 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. It seems to us that search warrants are materially
different from the case of judgments or orders (such as those
imposing financial penalties) which are the result of proceedings
which are recognisably judicial in character, and where the person
affected has been given the opportunity to be heard in his defence.
In this regard, we consider that the existing mutual legal assistance
arrangements strike the right balance between ensuring effective
co-operation and protecting the rights of defendants and witnesses
in this country. We question the need to replace the EU Convention
of 2000 and its Protocol of 2001 before it has come into force.
We ask the Minister to explain how it has been established that
these instruments are, or will be, ineffective.
6.35 Secondly, we note 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 question whether achieving
a system which would provide for the near-automatic enforcement
in this country of orders made by foreign police forces is a desirable
objective. We therefore urge the Minister (as we did in the case
of the European Arrest Warrant) to ensure that such orders may
be issued only by courts or persons having recognisably judicial
functions.
6.36 We note with particular concern the proposal
to abandon the safeguard of dual criminality . We do not think
it acceptable to rely on a vaguely-worded list of offences, which
include such concepts as "swindling", "racism and
xenophobia" and which leave the characterisation of such
acts as criminal wholly to the law of the issuing State, with
the likely result that a European Evidence Warrant could be issued
against persons in this country in respect of conduct which is
lawful here. We note the provisions of Article 24(2) which, as
we understand them, 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 are not criminal here. We do not believe that this would
be tolerable.
6.37 We also draw attention to the provisions
of Article 13, which appear to us to allow the issuing authority
to give detailed instructions as to how evidence is to be gathered
by an executing authority in this country. In particular, we do
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. We believe this must remain
a matter for the authorities of the United Kingdom, and we ask
the Minister if she agrees.
6.38 We shall hold the document under scrutiny
pending the Minister's reply. As we are likely to recommend a
debate on the Floor of the House, we ask the Minister for an early
reply.
14 Implementing legislation is contained in Part 1
of the Criminal Justice (International Co-operation) Act 1990
and the Crime (International Cooperation) Act 2003. Back
15
European Treaty Series No. 30. Back
16
European Treaty Series No. 99. Back
17
European Treaty Series No. 182. Back
18
Convention of 19 June 1990 implementing the Schengen Agreement
of 14 June 1985 on the gradual abolition of checks at the common
borders OJ No. L 239, 22.9.2000, p.19. Back
19
OJ No. C197 of 12.7.2000, p.1. Back
20
OJ No. C326 of 21.11.2001, p.1. Back
21
OJ No. L196 of 2.8.2003, p.45 and see (23144) HC 152 -xxiii (2001-02),
paragraph 1 (10 April 2002). Back
22
Presumably the reference is to proceedings which are classified
as 'criminal' according to the law of the issuing State. Back
23
This would seem to include a variety of motoring offences, as
well as cases where (in the UK) a fixed penalty is provided for. Back
24
However, this purpose might better be served by requiring the
issuing State to certify that the evidence would be so admissible. Back
25
This arrangement seems apt only for a unitary State, but is not
appropriate for the United Kingdom's three legal districts of
England and Wales, Scotland and Northern Ireland. Back
26
It is not clear whether this is meant to impose some kind of specialty
rule, so that the data can only be used for the proceedings for
which the EEW was issued. Back
27
For reasons which are not explained, this protection is not extended
to legal persons. Back
28
It is not clear if the reference is meant to be to a dwelling. Back
29
Not yet adopted. Back
30
OJ No. L 190 of 18.7.2002, p.1. Back
31
The effect of this appears to be that a search of a private home
in the United Kingdom must be carried out at the demand of the
foreign issuing authority, even in respect of an act which is
not criminal in the United Kingdom. Back
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