6 Combating terrorism
| (25756)
10528/04
COM(04) 409
+ ADD 1
| Commission Staff Working Paper: Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism
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| Legal base | — |
| Document originated | 6 June 2004
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| Deposited in Parliament | 18 June 2004
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| Department | Home Office |
| Basis of consideration | EM of 13 July 2004
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| Previous Committee Report | None; but see (22655) 12103/01: HC 152-ii (2001-02), para 8 (17 October 2001), (22925) 12647/01: HC 152-ix (2001-02), para 11 (5 December 2001) and (22990) 14867/1/01: HC 152-x (2001-02), para 5 (12 December 2001)
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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 We considered the draft Framework Decision on combating terrorism
on a number of occasions before it was adopted by the Council
on 13 June 2002. We noted that the provisions of the draft Framework
Decision were largely consistent with those of the Terrorism Act
2000 and provided for a definition of terrorist offences, extended
jurisdiction over such offences and increased penalties.
6.2 Article 11 of the Framework Decision requires
Member States to forward to the General Secretariat of the Council
and to the Commission the texts of the measures transposing into
national law the obligations imposed by the Framework Decision.
On the basis of a report from the General Secretariat and from
the Commission, the Council is to assess whether Member States
have taken the measures necessary to comply with the Framework
Decision. Article 11(3) provides that the report from the Commission
is to "specify, in particular, transposition into the criminal
law of the Member States of the obligation referred to in Article
5(2)".
6.3 Article 5(2) of the Framework Decision is concerned
with increasing penalties for offences carried out in the context
of terrorism. It provides as follows:
"Each Member State shall take the necessary
measures to ensure that the terrorist offences referred to in
Article 1(1) and offences referred to in Article 4, inasmuch as
they relate to terrorist offences, are punishable by custodial
sentences heavier than those [imposed] under national law for
such offences in the absence of the special intent required pursuant
to Article 1(1), save where the sentences imposable are already
the maximum possible sentences under national law."
The Commission's report
6.4 The Commission's report reviews the implementation
by the Member States of the obligations imposed by the Framework
Decision. The Commission states that "the Framework Decision
must not be regarded as a series of fragmentary provisions, but
as a whole: a global system whose elements are inevitably intertwined".
The Commission takes the view that the Framework Decision requires
Member States to incorporate the concept of "terrorist offences"
into their legal systems, including the concept of specific terrorist
intent (i.e. the intent to intimidate a population, or unduly
to compel a government to act or abstain from acting or seriously
to destabilise or destroy a country's fundamental political, constitutional,
economic or social structures), which suffices to cause crimes
of violence to the person or criminal damage to be deemed to be
a terrorist offence. In the Commission's view, the requirement
to incorporate this concept "derives from the obligation,
set up in Article 5(2), to punish terrorist offences with heavier
custodial sentences[13]
than those imposable under national law for the correspondent
'common' offences".
6.5 The Commission's view appears to be that the
United Kingdom has complied with the Framework Decision, except
in relation to Article 5. The Commission describes Article 5
(which deals with penalties) as one of the key provisions of the
Framework Decision. The Commission recalls that in its original
proposals for Article 5(2) and (3) it had proposed common penalties
of 2 to 20 years' imprisonment for terrorist offences, but that
no agreement was reached on the harmonisation of penalties to
"the extent sought by the Commission", except in relation
to offences relating to terrorist groups under Article 5(3).
6.6 A specific criticism is made by the Commission
of the UK's implementation of Article 5(2) of the Framework Decision.
Article 5(2) provides as follows:
"Each Member State shall take the necessary
measures to ensure that the terrorist offences referred to in
Article 1(1) and offences referred to in Article 4, inasmuch as
they relate to terrorist offences, are punishable by custodial
sentences heavier than those imposable under national law for
such offences in the absence of the special intent required pursuant
to Article 1(1), save where the sentences imposable are already
the maximum possible sentences under national law".
6.7 The Commission argues that the wording of Article
5(2) implies that the acts in question should already have been
made criminal under the national law, and that in such cases of
"common" offences, a "general aggravating rule"
(i.e. one which makes higher penalties applicable where the offences
are committed with terrorist intent) is necessary in order to
comply with the Article.
6.8 The Commission states that the United Kingdom
explained that "although the maximum sentence for offences
is prescribed by statute the actual sentence imposed generally
depends on the discretion of the trial judge. The sentence for
murder is an exception as a life sentence is mandatory. The UK
courts do, however, regularly impose strong penalties for terrorist-related
criminal offences". The Commission adds that further information
about the maximum sentences was not provided, and comments that,
apart from a limited number of specific terrorist crimes, "a
substantial distinction between terrorist and corresponding or
common [crimes] has not been generally made". In relation
to the UK the Commission states:
"It therefore seems that whether or not offences
falling within the definition of terrorism in the United Kingdom
are punished more heavily than those not covered by the definition
remains a matter of judicial discretion. This would not meet
the terms of the Framework Decision except for those offences
for which a life sentence is mandatory or is set [out] as the
maximum sentence."
6.9 The Commission considers that in Germany, Spain,
Ireland and the United Kingdom "it cannot be concluded that
enhanced penalties have been provided for all the offences in
Articles 1(1) and 3". The Commission argues that the purpose
of Article 5(2) is that "the level of punishability applicable
to terrorist offences is heavier than the one provided for equivalent
offences committed without a terrorist intent and that it obliges
Member States to adapt their legislation in this sense".
The Commission goes on to argue, first, that providing for an
aggravated penalty that remains within the same maximum penalty
applicable to an offence committed without a terrorist intent
is not enough to comply with this provision, and, secondly, that
"enhanced penalties must be provided by law and not through
the possible application of law". The Commission adds that
the fact that courts may normally impose heavier penalties for
terrorist offences, or that they may take into account the offender's
motives in order to impose stronger penalties, "is irrelevant
from the point of view of implementation when heavier custodial
penalties have not been legally provided".
The Government's view
6.10 In her Explanatory Memorandum of 13 July 2004
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) notes that, while the Commission's report is
able to conclude that the UK has complied with the Framework Decision
in most respects, there are a few Articles where it is unable
to do so, notably in relation to Article 5, which provides for
enhanced penalties for terrorist offences.
6.11 The Minister adds that the Commission's report
is currently being examined in detail, particularly in relation
to those Articles where uncertainty is raised as to the completeness
of the UK's implementation of specific measures.
Conclusion
6.12 We shall be grateful for an account, in due
course, of the Government's response to the criticisms and comments
made by the Commission on the implementation by the UK of this
Framework Decision, particularly on the implementation of Article
5(2).
6.13 In this connection, we find the Commission's
comment that "enhanced penalties must be provided by law
and not through the possible application of law" to be disturbing,
as it would conflict with judicial discretion in sentencing.
Unlike the Commission, we think it wrong to regard Article 5(2)
as imposing an obligation to punish terrorist offences with a
heavier custodial sentence. It simply requires that such offences
be punishable with a heavier custodial sentence. The sentence
which is in fact imposed in a particular case is a matter for
the trial judge in the exercise of his discretion. It is open
to the trial judge in England and Wales, Scotland and Northern
Ireland to impose a heavier sentence than the one which he might
have imposed in the absence of terrorist intent. We consider
that Article 5(2) imposes no greater requirement on Member States
than to ensure that such offences are so punishable.
6.14 We ask the Minister if she agrees with this
view and with the importance of maintaining national judicial
discretion over sentencing in measures adopted at EU level.
13 Article 5(2) refers to provisions to ensure that
terrorist offences are punishable by heavier sentences. There
is no requirement to ensure that such offences are punished by
heavier sentences. Such a provision could interfere with judicial
discretion. Back
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