7 Exchange of information and cooperation
concerning terrorist offences
| (25536)
8200/04
COM(04) 221
| Commission Communication on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information
Draft Council Decision on the exchange of information and cooperation concerning terrorist offences
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| Legal base | (Communication) —
(draft Council Decision) Articles 29, 30(1) and 34(2)(c) EU; consultation; unanimity
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| Document originated | 29 March 2004
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| Deposited in Parliament | 14 April 2004
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| Department | Home Office |
| Basis of consideration | EM of 5 May 2004
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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
7.1 A number of measures had already been taken at EU level in
relation to terrorism even before the attacks on New York and
Washington in September 2001. The European Council of 21 September
2001 approved a plan of action including enhanced police and judicial
cooperation and taking measures against terrorist funding. A
wide variety of measures has since been adopted, many of which
(such as the European Arrest Warrant) are not specifically directed
towards terrorism, whilst others give effect to United Nations
Security Council resolutions on terrorism and terrorist funding.
The Framework Decision 2002/475/JHA of 13 June 2002 on combating
terrorism[31] defines
a "terrorist group" and creates the offence of directing
a terrorist group, as well as other offences related to terrorism
and provides for a common range of penalties across the EU.
The Commission Communication
7.2 The Communication from the Commission argues for a more direct
link between measures to combat terrorism and those dealing with
organised crime. It suggests that the scope of Joint Action 1998/733/JHA
making it a criminal offence to participate in a criminal organisation
in the Member States should be reviewed and expanded. It suggests
that a new Framework Decision to replace the Joint Action should
harmonise the definition of offences and penalties, that it should
provide for a specific offence of "directing a criminal organisation"
and that it should provide for specific aggravating circumstances
(such as the commission of an offence in conjunction with a criminal
organisation) and for mitigating circumstances (such as a reduction
of penalty for those who assist the police with their inquiries).
7.3 The Communication suggests that such a revision
of the Joint Action would contribute to the fight against terrorism
and the financing of terrorism, in particular where "the
group's terrorist motives have not yet become visible", or
where the group "commits terrorist offences, in particular
to obtain sources of finance, without it being possible to charge
with terrorist offences at that stage" or "in the case
of links, or even confusion, between terrorist organisations and
organised criminal groups".
7.4 The Communication also argues for systems to
be established by the Member States for registering bank accounts
allowing the true owners to be identified and for such systems
to be accessible to law-enforcement agencies and judicial authorities.
The Commission notes that the establishment of such a system
is being considered in the context of a draft proposal for a third
Directive on money-laundering.
7.5 The Communication recommends that Member States
should include, in their legislation on the creation and management
of bodies corporate, mechanisms providing for the disqualification
of individuals or firms convicted of offences related to terrorism
or organised crime.
7.6 The Communication indicates that the Commission
will be making a proposal before the end of 2004 for a European
criminal record. It notes that such a record was envisaged in
the Commission Communication in 2000 on the mutual recognition
of final judgements in criminal matters and in the Council and
Commission programme of measures to give effect to the principle
of mutual recognition of decisions in criminal matters, published
in January 2001. The Commission has since funded three studies
into the question. The Communication notes that there are major
differences between the Member States in the way that criminal
records are kept and in the rules governing access to them. It
argues that a European criminal record would identify repeat offenders
and extend "the effectiveness of penalties throughout the
Union", but that other uses would be conceivable such as
allowing the national court to apply the ne bis in idem principle[32]
and that "it could also help to prevent terrorist groups
and organised crime from infiltrating the legitimate public and
private sectors".
7.7 The Communication states that, in the light of
the studies funded by the Commission, the discussion on the establishment
of a European criminal record "must at the very least"
deal with the questions of data protection, access, content, removal
of data, organisation and financing. The Communication notes
that it will be necessary to decide whether police and administrative
authorities, as well as judicial authorities, should have access
to the record and that "the question of access for Eurojust,
Europol, and OLAF will arise". On the question of content,
it would have to be decided whether all convictions or disqualifications
should be recorded, or only those relating to particularly serious
offences such as terrorism and organised crime. On the question
of organisation, the Commission does not consider that its proposals
necessarily imply a central computer storing all the data, but
that it will be necessary to determine what body is best placed
to manage the register at European level, and raises the possibility
that Europol or Eurojust might do so.
7.8 Apart from the question of a European criminal
record, the Communication introduces (under the rubric "the
exchange of information between the Member States and the Union
bodies responsible for combating terrorism must be total")
a draft Council Decision on the exchange of information relating
to terrorist offences as defined by the Framework Decision on
terrorism (Council Decision 2002/475/JHA) and requiring information
concerning investigations, prosecutions and convictions to be
sent to Europol and Eurojust.
The draft Council Decision
7.9 Article 1 of the draft Council Decision is concerned
with definitions. Article 2 would require Member States to designate
a specialised service within its police services which is to have
access to and collect information concerning or resulting from
criminal investigations into terrorist offences. It would also
require each Member State to designate a Eurojust national correspondent
for terrorism, or an appropriate judicial or other authority,
which would have access to and collect information concerning
prosecutions and convictions for terrorist offences. Member States
are required to ensure that information obtained by these bodies
is passed to Europol and to Eurojust.
7.10 Article 2(4) specifies that the information
to be passed to Europol and Eurojust is information which identifies
the person, group or entity, the acts under investigation and
their "specific circumstances", the offence concerned,
any links with other terrorist offences, requests for mutual legal
assistance, any previous convictions for terrorist offences, penalties
imposed or previous criminal record. In addition, Article 2(5)
requires information on the use of communications technologies
or any threat posed by the possession of weapons of mass destruction
to be passed to Europol. Article 2(6) provides that each Member
State must ensure that any relevant information "included
in document, file, item of information, object or other means
of evidence" which is taken in the course of investigations
into a terrorist offence "can be made accessible or available
immediately" to authorities in any other Member State where
investigations are being carried out or might be initiated or
where prosecutions are in progress.
7.11 Article 3 requires Member States "in appropriate
cases" to take the necessary measures to set up joint investigation
teams to investigate terrorist offences. Article 4 requires Member
States to ensure that requests for mutual legal assistance and
recognition and enforcement of judgments in connection with terrorist
offences are dealt with as a matter of urgency and priority.
The Government's view
7.12 In her Explanatory Memorandum of 5 May 2004
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that it is not possible to assess the
impact on UK law of the measures outlined in the Communication
until these have been developed into firm proposals. In relation
to the link which the Communication seeks to draw between terrorism
and organised crime, the Minister comments as follows:
"The fight against serious and organised crime
is an important one in its own right for all EU Member States.
However, the nature of the links between terrorists and organised
crime within the EU are complex. The UK considers that the extent
of these links within the EU should be carefully assessed before
new legislation on organised crime is proposed."
7.13 On the disclosure of information generally,
the Minister comments that there is a large body of case-law concerning
the disclosure of personal information, such as on convictions,
to a third party. The Minister adds that the proposed Council
Decision increases the extent of information exchange and is a
matter on which the Minister is seeking further advice on the
possible legal consequences.
7.14 With regard to the possibility of a new legal
instrument on the registration of bank accounts showing their
true owners, the Minister comments that the UK already has effective
"know your customer" rules in force and welcomes measures
which support EU Member States on a voluntary basis rather than
by any new instrument.
7.15 The Minister states that the UK has concerns
over the feasibility and cost-effectiveness of harmonising information
in national registers of companies and charities, but that improved
access to national registers would be welcome.
7.16 On the proposal for a European criminal record,
the Minister comments as follows:
"The UK is doubtful whether the benefits of
a central EU register of criminal records relative to those offered
by simply improving access to national criminal records would
justify the cost and complexity of overcoming the considerable
differences in the formats in which criminal records are stored
across Europe."
7.17 The Minister explains that the draft Council
Decision complies with the principle of subsidiarity and that
it is broadly supported by the UK. The Minister adds that the
Government would wish to see a national security exemption, and
would like the Council Secretariat to comment on the extent to
which the existing instrument has been implemented and on the
extent to which the new proposals may duplicate information contained
in the Europol Information System.
Conclusion
7.18 We agree with the Minister that there should
be a careful assessment of the links between terrorism and organised
crime in the EU before any new legislation on organised crime
is proposed at EU level. The Commission's Communication rests
more on assertion than on evidence in this regard.
7.19 We also agree with the Minister's hesitation
over compulsory measures on the registration of bank accounts.
The proportionality of any such measure would require the closest
attention.
7.20 The Minister does not comment specifically
on the question of subsidiarity in relation to the possibility
of a European criminal record. In our view, it is not the business
of the European Union to determine the composition or content
of national criminal records. Such a matter bears directly on
the rights of the individual, and is a matter for national parliaments.
7.21 With regard to the draft Council Decision,
we note that the Minister is examining the legal consequences
of disclosing personal information to third parties, and we ask
the Minister for her assessment, in due course, of the compatibility
of the draft Council Decision with Article 8 of the European Convention
on Human Rights, and whether any amendment of the Human Rights
Act 1998 or the Data Protection Act 1998 would be necessary to
give effect to the Council Decision.
7.22 We ask the Minister for an account of the
views expressed by the Council Secretariat on the points raised
with it by the Government. We also ask the Minister to explain
how the Council Decision might affect the handling of confidential
or secret information provided to the United Kingdom by third
countries (notably on the use of communications technologies)
and whether it is the Government's intention to seek to qualify
or restrict the apparently absolute obligation to pass all information
to Eurojust or Europol.
7.23 Article 2(6) of the Council Decision appears
to us to duplicate the provisions of the proposal for a European
Evidence Warrant, and we ask the Minister to explain the relationship
between these two proposals.
7.24 We shall hold the document under scrutiny
pending the Minister's reply.
31 OJ No. L 164 of 22.6.02, p.3. Back
32
i.e. the avoidance of double jeopardy. Back
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