17 Exchange of information between law
enforcement authorities
| (a)
(25729)
10215/04
—
(b)
(25795)
10215/04
ADD1
—
|
Draft Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, in particular as regards serious offences including terrorist acts
Commission Communication: explanatory Memorandum on the draft Framework Decision
|
| Legal base | Articles 30(1)(a) and (b) and 34(2)(b) EU; consultation; unanimity
|
| Department | Home Office
|
| Basis of consideration | Minister's letter of 26 August 2004
|
| Previous Committee Report | HC 42-xxvii (2003-04), para 7 (14 July 2004); and see (25536) 8200/04: HC 42-xxi (2003-04), para 7 (26 May 2004)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; information on progress requested
|
Background
17.1 On 25 March 2004 the European Council adopted a declaration
on terrorism which included an instruction to the Council to examine
measures to simplify the exchange of information between law enforcement
authorities of the Member States. Sweden has accordingly brought
forward a proposal (document (a))and an explanatory memorandum
(document (b)). The objective of the proposal is to create a "common
and simplified framework" for the exchange of information
and intelligence between law enforcement authorities of the Member
States during the investigation of crime or in the course of a
criminal intelligence operation.
17.2 We considered the draft proposal on 14 July
and raised a number of questions with the Minister. First, we
noted that the proposal states that it "does not imply"
any obligation on the part of the Member States to gather and
store information and intelligence only for the purpose of providing
it to the authorities of other Member States, or to provide information
and intelligence for use as evidence before a judicial authority
in another Member State; or to obtain information or intelligence
by means of coercive measures in the requested Member State. We
asked the Minister if it was sufficiently clear that no obligations
in these senses were being imposed.
17.3 Secondly, we asked the Minister what was meant
by the term "coercive measures" as used in Articles
1 and 2 of the proposal and, in particular, if the term was intended
to refer to the interception of communications and the inclusion
of material derived therefrom.
17.4 Thirdly, we asked the Minister what effect the
proposal, in particular Article 4 (which provides for the passing
of information and intelligence to law enforcement authorities
in other Member States), would have on the supply of information
from third countries to authorities within the UK and whether
such information would have to be communicated to Member States'
authorities under the proposal.
17.5 Fourthly, we asked the Minister for her views
on the necessity of fixing a 12-hour deadline for providing information
relating to particular offences listed in Article 4a, which, by
way of example, had the effect that a matter relating to an infringement
of intellectual property rights or "racism and xenophobia"
had to be dealt with more urgently than a request relating to
a major theft. We asked the Minister if she agreed that deadlines
for dealing with requests should be fixed according to the inherent
urgency of the particular inquiry, and not by reference to a list
of offences adopted for other purposes (in this case the list
from the European Arrest Warrant relating to the abolition of
dual criminality).[35]
17.6 Finally, we asked the Minister for a further
explanation of the concerns she had raised over the effect of
the proposal on persons who were not suspects (noting in this
respect that the proposal appeared to have a much wider scope
than Article 40.1 of the Schengen Convention) and of her concerns
over appropriate exemptions and exclusions to safeguard essential
national interests. We also asked the Minister for an account
of how the Dutch Presidency intended to deal with the overlapping
proposals in this area, since we were aware that the Government
is considering both the present proposal and a Commission Communication
on measures to be taken to combat terrorism and other forms of
serious crime, a draft Council Decision on the exchange of information
on terrorist offences[36]
and a further proposal on enhancing access to information by law
enforcement agencies.
The Minister's reply
17.7 In her letter of 26 August 2004 the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) addresses
these various points. First, in relation to the question whether
the use on three occasions of the formula "does not imply"
in Article 1 of the Framework Decision makes it sufficiently
clear that no obligations are being imposed to store information
and intelligence solely for the purpose of providing it to another
law enforcement authority, or to provide information and intelligence
for use as evidence, or to use coercive measures, the Minister
states her belief that the Article is clear on this point. The
Minister refers to the draft Explanatory Report, stating that
this is to be read with the Framework Decision, and noting that
this uses the term "non-obligation". Nevertheless, the
Minister notes that the Explanatory Report does not refer explicitly
to "coercive measures" in its commentary on Article
1, and indicates that the Government will seek to rectify this
during negotiations.
17.8 In relation to our question as to the meaning
of the term "coercive measures" as used in Articles
1 and 2, and in particular as to whether it includes the interception
of communications, the Minister refers us to the commentary on
Article 4 in the Explanatory Report, which explains that "
'coercive measures' include 'physical examinations, house searches
and formal questioning of persons' ".[37]
The Minister points out that the Explanatory Report also states
that measures of this kind are regarded as judicial cooperation
and that "the Framework Decision does not purport to infringe
on existing agreements in that field". The Minister adds
that the Government feels it would be appropriate to include a
clear definition of "coercive measures" on the face
of the Framework Decision itself. The Government will also suggest
that the Explanatory Report should make clear that the interception
of communications is dealt with under Title III of the EU Convention
of 29 May 2000 on mutual assistance in criminal matters,[38]
and is therefore outside the scope of this Framework Decision.
17.9 Our third question concerned the effect of Article
4 on the supply of information from third countries to authorities
in the UK. In reply, the Minister states that the Government attaches
importance to ensuring that the Framework Decision will enhance,
rather than inhibit, existing cooperation arrangements involving
the flow of information between the Member States and third countries
and that "it is therefore important that this is specifically
addressed in the negotiations". The Minister adds that it
will be important to ensure, in particular, "that such information
flows are accompanied by adequate data protection and other safeguards
essential to maintaining the integrity of, and confidence in,
the cooperation arrangements".
17.10 Our fourth question was concerned with the
reasons for fixing a 12-hour deadline for specific offences listed
in Article 4a, which produced some curious results, such as a
request relating to an infringement of intellectual property rights
or "racism and xenophobia" benefiting from the 12-hour
deadline, but not a request concerning, for example, a major theft.
In reply, the Minister explains that the 12-hour time limit and
the list of offences are intended to be "indicative of expectations
of good practice" and that the list of offences is "broadly
in line with the list in the European Arrest Warrant, with which
Member States' competent law enforcement authorities are already
familiar". The Minister adds that the list may need to be
adjusted, for example, to include major theft. The Minister also
points out that the 12-hour deadline is being discussed with the
UK authorities, as the Government understands that a number of
Member States are likely to have difficulties with it. The Minister
emphasises the need for the provisions of Article 4a to be operationally
workable, bringing about real improvements in present transmission
and response times.
17.11 The Minister also gives a further explanation
of her concern over the effect of the proposal on persons who
are not suspects, which concern arose from the scope of the proposal
appearing in this respect to be wider than the provisions of Article
40.1 of the Schengen Convention. The Minister explains that this
relates to the fact that the Explanatory Report, in commenting
on Article 6 of the proposal, simply draws attention to the wording
of Article 40.1, which is said to be in substance identical to
the provisions of the Council Decision amending Article 40.1 of
the Schengen Convention permitting the cross-border surveillance
of non-suspects.[39]
The Minister adds that the Government's preference would be to
draw attention to the "factual reasons" linking the
non-suspect to the offence which is the subject of the inquiry,[40]
and that the Government intends to revisit this point when Sweden
issues the Annex referred to in Article 5(3) of the draft Framework
Decision. The Government expects this to make clear that the request
for information "should show the link between the information
sought and the offence".
17.12 The Minister also explains, in relation to
exemptions and exclusions to safeguard essential national interests,
that the Government is continuing discussions with the agencies
to ensure that the Framework Decision "would not impose obligations
inconsistent with the need to safeguard essential national interests".
17.13 The Minister undertakes to provide us with
the views of the Information Commissioner as soon as these are
received. On the risk of overlap between the various initiatives
being considered by the Council in this area, the Minister indicates
her understanding that there is no intention to merge any of the
proposals, and that they will continue to be negotiated separately.
The Minister comments that the Government will seek to ensure
that, to the extent there is any overlap, there will not be any
inconsistency.
Conclusion
17.14 We thank the Minister for her letter. We
welcome the indication by the Minister that the Government will
seek to rectify at least one of the drafting problems we identified
in Article 1, and we urge the Government also to address the ambiguity
created by use of the expression "does not imply" in
relation to an obligation, when what is intended is that the proposal
does not impose an obligation. We do not consider it satisfactory
that there should be ambiguities in this sensitive area, or that
poor drafting should be retrieved by references to texts which
have no binding force.
17.15 We welcome the Minister's intention to seek
a clear definition of the term "coercive measures" and
the exclusion of the interception of communications from the scope
of the proposal. We also look forward to an account, in due course,
of what has been achieved to ensure that the proposal does not
inhibit cooperation between the UK and third countries.
17.16 We note the Minister's comments on the
operation and scope of the 12-hour deadline. We agree with the
Minister on the importance of arrangements which are operationally
workable, and suggest that this is better achieved by linking
the deadline to cases which are inherently urgent rather than
to a somewhat arbitrary list of named offences.
17.17 We share the Minister's concern over the
current wording of Article 6, and agree that in the case of exchanging
information on persons who are not suspects, there should be a
much closer link between the person in question and the alleged
offence before requests for information are made.
17.18 We shall hold the proposal under scrutiny
pending further information from the Minister on the progress
of negotiations.
35 The principle in extradition law whereby a person
is not to be extradited except in respect of acts which are regarded
as criminal in both the requesting and requested State. Back
36
On which we reported on 26 May 2004 (see headnote). Back
37
The relevant part of the commentary states that 'the purpose is
not to create rules for obtaining information and intelligence
by coercive measures such as physical examinations, house searches
and formal questioning of persons'. It is not clear from this
whether the interception of communications is to be regarded as
a 'coercive measure'. Back
38
OJ No. C. 197, 12.7.00, p. 1. Back
39
Council Decision 2003/725/JHA, OJ No. L. 260,11.10.03, p.37. Back
40
Article 6.1(c) of the proposal refers to exchanges of information
and intelligence where 'there are factual reasons to believe'
that such an exchange could assist in detecting, preventing or
investigating a crime. This differs from Council Decision 2003/725/JHA
which permits cross-border surveillance where there is 'serious
reason' to believe that the person can assist in identifying or
tracing a suspect. Back
| 
