9 European Evidence Warrant
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COM (03) 688
| Proposal for a 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 oral evidence of 28 April 2004
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| Previous Committee Report | HC 42-iv (2003-04), para 6 (7 January 2004); HC 42-ix (2003-04), para 17 ( 4 February).
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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
9.1 We considered the proposed Council Framework Decision for
a European Evidence Warrant (EEW) on 7 January and 4 February
2004. We noted that such a warrant would be directly enforceable
in other Member States, 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.
9.2 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[17]
and its Protocol of 2001,[18]
even though these have yet to come into force.
9.3 We 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,
since 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.
9.4 We raised a number of initial concerns with the
Minister. First, we asked if the principle of mutual recognition
was really appropriate in the case of search warrants which were
made solely on the application of one party and were not the result
of any adversarial proceeding in which the grounds for the order
could be tested. We also asked how it had been established that
the EU Convention of 2000 and its Protocol of 2001 were, or would
be, ineffective when they had not yet come into force.
9.5 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.
9.6 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 for evidence relating to acts which
were not criminal here. We did not believe that this would be
tolerable.
9.7 Finally, we noted 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.
9.8 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) gave a prompt reply on 20 January
2004, but we did not consider that our concerns had been laid
to rest and we accordingly invited the Minister to appear before
us.
The Minister's oral evidence
9.9 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) gave evidence on 28 April 2004,
and her evidence has been published.[19]
The following is a description of the main points covered by the
Minister's evidence.
9.10 As a preliminary matter, we put to the Minister
the point that the present proposal, being designed to replace
the Convention of 29 May 2000 on Mutual Assistance in Criminal
Matters between Member States of the European Union and its Protocol
of 2001 when neither of these had yet come into force, might be
thought to be premature.
9.11 In reply, the Minister thought this a "fair
point", but remarked that such matters took a long time to
discuss and that Member States wished to start looking at this
area as one where improvements could be made. The Minister emphasised
that the Government was "only at the start of discussions"
and that "this clearly is not going to happen for a number
of years".[20] The
Minister did not think it had been established that the EU mutual
legal assistance Convention and its Protocol were ineffective,
but added that there was a view that a system of mutual recognition
could be applied to requests to obtain evidence.[21]
9.12 The Minister was asked how the near-automatic
recognition and enforcement of a search warrant could be justified
in circumstances where there would have been no adversarial proceedings,
the need for the warrant would not have been tested and the person
affected would not have been heard. In reply, the Minister said
that the European Council had called in 1999 for the principle
of mutual recognition to apply to pre-trial orders and that the
reason for this was "to enable competent authorities to secure
evidence quickly".[22]
The Minister also referred to the European Arrest Warrant and
the Framework Decision on orders freezing assets or evidence as
being precedents for the application of mutual recognition of
an order made solely on the application of one party.[23]
9.13 In reply to questions on whether dual criminality[24]
would be required as a condition of executing a European evidence
warrant in this country, the Minister confirmed that the fact
that the conduct in respect of which it was sought to enforce
a warrant was not criminal in this country "would not be
a bar to us executing the evidence warrant".[25]
The Minister further explained that if the conduct was an offence
in the country applying for the warrant and the offence took place
in that country, then "it would be appropriate for the issuing
State or authority to seek our support to gather evidence".[26]
However, the Minister also explained that surrender of a person
under the European Arrest Warrant would not be ordered where the
conduct in question took place wholly or partly within the UK
and that the Government was considering whether there should be
a similar safeguard which might be sought in relation to the European
Evidence Warrant.[27]
9.14 In this connection, the Minister confirmed that
it was correct that circumstances could or would arise under the
European Arrest Warrant whereby the home of a person in this country
could be forcibly entered at the request of a foreign authority
to gather evidence in respect of conduct which was not a crime
in this country.[28]
9.15 In reply to questions relating to the effect
of the Human Rights Act 1998 on the execution of a European Evidence
Warrant in this country, the Minister gave an undertaking that
in no circumstances would an authority in this country be obliged
to execute a warrant when to do so would be contrary to the 1998
Act.[29]
9.16 The Minister was asked why Article 12 of the
proposal provided that a natural person could not be obliged to
produce evidence which might result in self-incrimination, but
provided no such protection for a legal person such as a company.
The Home Office official accompanying the Minister replied that
this was a point on which the Government would have to seek some
clarification to ensure that it understood the reasons for making
this distinction between natural and legal persons and to be sure
that it could agree with it.[30]
9.17 The Minister was asked why Article 13 of the
proposal appeared to leave it to the issuing authority to decide
whether and when to use "coercive measures", and if
it could possibly be right to leave the exercise of police powers
in this country to a foreign authority. The Minister replied that
"the implication at present is that the issuing authority
instructs almost the executing authority", but that the Government
did not think that the issuing authority was best placed to decide
in what way the collection of evidence is carried out in the executing
State.[31] The Minister
added:
"It would be fair for the issuing authority
to ask for premises to be searched for evidence as outlined on
the form they would have to fill in, but the way in which that
is carried out should be left to the Member States in line with
their procedures and how their police are currently regulated
in relation to these issues. So there are two distinct issues
here. I am not saying the issuing State should not request a search
of the premises for evidence, but the way in which that is carried
out should be left to the authorities within the Member State."[32]
9.18 The Home Office official accompanying the Minister
added that the Government was considering whether it should be
necessary when executing a European Evidence Warrant for the
police in this country to apply to the court as they would for
a domestic warrant and to seek the authority of the court to carry
out a search of premises.[33]
Conclusion
9.19 We draw some comfort from parts of the Minister's
evidence, notably her undertaking that in no circumstances would
an authority in this country be obliged to execute a European
Evidence Warrant where to do so would be contrary to the Human
Rights Act 1998 and her statement that the way a warrant is executed
in this country is a matter for the authorities in this country,
not those of the issuing State.
9.20 Nevertheless, there are a number of features
of this proposal which we find deeply disturbing, notably the
proposition that a person's home may be forcibly entered and searched
at the request of a foreign authority, even for the purpose of
obtaining evidence to prosecute conduct which is not criminal
in this country. We repeat our earlier view that we would consider
this intolerable.
9.21 A number of possible limitations on the scope
of the warrant have been suggested by the Minister, but we are
not aware that any of these has been accepted, since we have had
no recent account of the state of negotiations on this proposal
. We therefore hold the document under scrutiny pending further
information from the Minister and the deposit of any revised text.
17 OJ No.C197 of 12.7.00, p.1. Back
18
OJ No.C326 of 21.11.01, p.1. Back
19
HC 562-i, published on 5 July 2004. Back
20
Q2 Back
21
Q6 Back
22
Q19 Back
23
Q19 Back
24
i.e. the principle in the law of extradition that the conduct
in respect of which a warrant is issued should be criminal in
both the issuing and executing State. Back
25
Q31 Back
26
Q30 Back
27
Q8 Back
28
Q34 Back
29
Q29 Back
30
Q41 Back
31
Q49 Back
32
Q50 Back
33
Q52 Back
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