10 Exchange of information extracted
from criminal records
| (a)
(26048)
13742/04
COM(04) 664
(b)
(26219)
15281/04
—
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Draft Council Decision on the exchange of information extracted from the criminal record
Draft Council Decision on the exchange of information extracted from the criminal record
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| Legal base | Article 34(2)(c)EU; consultation; unanimity
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| Document originated | (a) 13 October 2004
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| Deposited in Parliament | (a) 22 October 2004
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| Department | Home Office |
| Basis of consideration | (a) EM of 8 November 2004
(b) EM of 15 December 2004
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| Previous Committee Report | HC 38- i (2004-05), para 15 (1 December 2004)
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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 | (a) Cleared
(b) Not cleared; further information requested
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Background
10.1 We considered the original version of this proposal (document
(a)) on 1 December 2004, noting that it sought to improve the
operation of existing mechanisms for the exchange of criminal
record information, in particular under the European Convention
on Mutual Assistance in Criminal Matters, (adopted in 1959 within
the Council of Europe),[32]
pending the adoption of a computerised system for such exchanges.
10.2 We noted that the first part of the proposal
was concerned with ensuring that criminal record information is
sent to the State of the person's nationality as quickly as possible.
The proposal does not require the convicting State to pass information
to the State of the convicted person's residence, so that it would
not apply to nationals of third countries or to Community nationals
who reside in a State other than the State of their nationality.
The second part of the proposal was concerned with requests under
Article 13 of the 1959 Convention for information from judicial
records and would impose a requirement to deal with such requests
within five days, using standardised forms for requests and replies.
10.3 In relation to the forms, we noted that it
was proposed to oblige the State responding to a request for information
to specify whether the conviction fell within categories listed
in the standard form of reply. The list was the same as that set
out in Article 2(2) of the Council Framework Decision of 13 June
2002 on the European Arrest Warrant,[33]
but with a number of additions such as "conduct which infringes
road traffic regulation", "smuggling of goods",
"infringements of intellectual property rights", "threats
and acts of violence against persons, including during sports
events", criminal damage, theft and "offences established
by the issuing State and serving the purpose of implementing obligations"
arising from instruments adopted under the EC Treaty or Title
VI of the EU Treaty. The Commission's explanatory memorandum did
not explain what purpose this would serve. Neither did it explain
how the requested State was to form a view on whether the offence
for which there had been a conviction under its own law fell within
one of the categories in the form, such as "racism and xenophobia",
"swindling" or "sabotage" (or how to distinguish
"fraud" from "swindling") or how the requested
State was to form a view on whether the offence for which there
had been a conviction under its own law was an offence which fell
within the category of offences established by another Member
State to give effect to the latter's obligations under the EC
or EU Treaty.
10.4 We invited the Minister's views on whether this
proposal should more properly be made as a Framework Decision
under Article 34(2)(b) EU, rather than under Article 34(2)(c)
EU, since it appeared to require the approximation of the laws
and regulations of Member States in relation to a number of matters,
including the designation of a central authority, the requirement
to use standardised forms and the use of personal data.
10.5 We also asked the Minister if there was any
inconsistency between Article 3 (which appeared to impose an unqualified
obligation to inform central authorities in other Member States
of convictions) and Article 4 (under which replies to requests
for information were to be made "under the conditions imposed
by national law"), and if it was sought to impose any obligation
on Member States to disclose criminal convictions where an amnesty
or pardon had been granted.
10.6 In relation to the forms, we asked the Minister
if she agreed that no operational purpose was served by obliging
the requested State to classify convictions according to a list
of categories drawn from the European Arrest Warrant. We also
asked the Minister if she agreed that the provisions on designating
central authorities (which required each Member State to designate
a central authority) needed amendment to allow for more than one
authority to be designated, either for the purposes of transmitting
and receiving requests, or to take account of the different administration
of criminal records in England and Wales, Scotland and Northern
Ireland.
The revised draft Council Decision
10.7 A revised draft of the proposal (document (b))
has been produced which reflects the outcome of further discussion
at official level and which was submitted to the Council for an
"agreement on a general approach" at its meeting on
2 December 2004. Article 1 of the revised draft still requires
Member States to designate a central authority, but also permits
the designation of one or more central authorities for the purposes
of sending information under Article 2 or replying to requests
under Article 3 .
10.8 Article 2 (Article 3 in the previous version)
still appears to impose an unqualified obligation to disclose
criminal convictions. This is to be contrasted with Article 3(3),
relating to replies to specific requests for information on convictions,
where the reply is to be accompanied by a statement of convictions
"under the conditions provided for by national law".
10.9 Article 3 (formerly Article 4) has been amended
so as to increase to ten days (from five) the period within which
a request must be complied with. The revised proposal refers to
requests for information being made on the basis of a request
form, which is to be annexed to the proposal, but no reference
is now made to a standard form of reply.
10.10 Article 6 of the previous version provided
for the request to be sent in the official language, or one of
the official languages, of the requested Member State. The corresponding
provision in the revised version (Article 5) provides for the
requested State to reply either in one of its official languages
or "in another language agreeable to both Member States".
The Government's view
10.11 In her Explanatory Memorandum of 15 December
2004, the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) replies to the concerns we raised on 1 December
and comments on the revised version of the proposal.
10.12 On 1 December we raised as a preliminary issue
the question of whether the proposal should more properly have
been made as a Framework Decision under Article 34(2)(b) EU rather
than as a Decision under Article 34(2)(c) EU. In reply, the Minister
states that the Government has considered carefully whether Article
34 (2)(c) EU was the most appropriate legal base, and is satisfied
that the proposal is not concerned with the approximation of laws
but with setting out mechanisms for the exchange of information
between Member States. The Minister adds that the Government does
not consider that the requirement to designate a central authority
can be said to be a provision for the purpose of the approximation
of the laws and regulations of the Member States.
10.13 The Minister does not comment on the apparent
inconsistency between Articles 3 and 4 of the previous version
(now reproduced in Articles 2 and 3). The Minister does explain
that replies to requests under Article 3 must be made "under
the conditions provided under national law", so that the
United Kingdom would be required to provide information to the
authorities of any Member State "solely on the same basis
as information would be provided to authorities in the United
Kingdom". The Minister adds that this could take into account
spent convictions, but that this would depend on the specific
purpose for which the request for information is being made, and
that the Council Decision would not place any additional obligations
on the United Kingdom.
10.14 In relation to the points we made on the forms,
the Minister replies that the Government itself had concerns over
the content of the forms. The Minister explains that discussion
of the forms has not yet been completed and points out that they
do not feature in the revised proposal. The Minister adds that
"it is likely that Form B (containing the list of offences)
will be deleted and Form A will be revised to include a section
relating to the purpose of the request. Thus one form will be
used to request the information and to respond to such a request".
10.15 On the revised proposal (document (b)) the
Minister comments that it adequately addresses the United Kingdom's
initial concerns and that the Government is content with the
proposal. In particular, the Government is content with the amendment
which permits Member States to designate one or more central authorities
for sending information and for replying to requests. The Minister
is also content with the extension to ten days of the period for
replying to requests.
Conclusion
10.16 We thank the Minister for her reply and
for her explanation of the revised proposal. Since the revised
proposal no longer appears to require Member States to designate
only one central authority or to require a responding Member State
to classify convictions according to the somewhat arbitrary list
set out in a reply form, our concern that the proposal might amount
to the approximation of laws is substantially allayed.
10.17 We also welcome the intention to
dispense with the standard form of reply (Form B in document (a)),
which seemed to us to oblige Member States to engage in a difficult,
if not impossible, exercise of classification for no operational
purpose.
10.18 We would still be grateful for the Minister's
views on the apparent inconsistency between the duty to provide
information under Article 2 (which duty appears to be unqualified)
and the duty under Article 3 to supply information in reply to
requests (which is to be "under the conditions provided for
by national law"). The Minister informs us that the Decision
does not place any additional obligations on the United Kingdom,
but if this is so, then we question why Article 2 is not also
subject to the express condition that the information is to be
supplied only in accordance with national law.
10.19 We shall hold the present version (document
(b)) under scrutiny pending the Minister's reply, but we are content
to clear document (a) on the grounds that it has been superseded.
32 European Treaty Series No.30. Back
33
OJ No. L 190 of 18.7.2002, p.1. Back
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