5 EXCHANGE OF INFORMATION BETWEEN LAW
ENFORCEMENT AUTHORITIES
(a)
(25729)
10215/04
—
(b)
(25795)
10215/04
+ ADD1
—
(c)
(26190)
15187/04
—
|
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
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 — Explanatory memorandum
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 - note by Sweden
|
| Legal base | (a) and (b) Articles 30(1)(a) and (b) and 34(2)(b) EU; consultation; unanimity
(c) —
|
| Deposited in Parliament |
(c) 9 December 2004 |
| Department | Home Office
|
| Basis of consideration |
(c) EM of 15 December 2004 |
| Previous Committee Report |
(a) and (b) HC 42-xxxvii (2003-04), para 9 (17 November 2004); HC 42-xxxii (2003-04), para 17 (13 October 2004); 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; further information requested
|
Background
5.1 Following the declaration on terrorism by the European Council
on 25 March 2004, Sweden has brought forward a proposal (document
(a)) and an explanatory memorandum (document (b)) on the creation
of 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. More recently, Sweden
has produced a note (document (c)) setting out a list of types
of information or information sources to which law enforcement
bodies need access in order successfully to detect, prevent and
investigate criminal offences.
5.2 When we considered documents (a) and (b) on 14
July and 13 October 2004, we raised a number of questions with
the Minister (Caroline Flint). First, we urged the Government
to address the ambiguity created by use of the term "does
not imply" in the context of a provision intended to make
clear that obligations were not being imposed on 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 did not consider it satisfactory that
there should be ambiguities in this sensitive area, or that poor
drafting should be retrieved by references to an explanatory note
which had no binding force.
5.3 Secondly, we agreed with the Minister that the
meaning of the term "coercive measures" as used in Articles
1 and 2 was not clear. We welcomed the Minister's intention to
seek a clear definition of this term which would exclude the interception
of communications from the scope of the proposal. We also looked
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.
5.4 We shared the Minister's concern that in the
case of exchanging information on persons who were not suspects,
there should be a much closer link between the person in question
and the alleged offence before requests for information could
be made.
5.5 On 17 November 2004, we considered the views
of the Information Commissioner on the data protection issues
raised by the proposal. We noted that the Commissioner agreed
with our concern over the definition of "coercive measures"
in Article 4(1), and that he raised the question of whether this
was meant to extend to any information provided by a suspect under
caution.
5.6 The Information Commissioner found the purpose
of Article 4a(2) to be unclear (it sets out a list of offences
in respect of which Member States must provide information within
12 hours) and raised the question of whether such matters as conduct
which infringes road traffic regulations or infringements of intellectual
property rights (both of which are listed in Article 4a(2)) really
fell within the area of serious crime at which the Framework Decision
was aimed.
5.7 The Information Commissioner also considered
that Article 9 (3) should recognise that personal data obtained
in the course of one set of proceedings could not necessarily
be used in another set of proceedings whether or not those proceedings
fell with the Framework Decision. The Information Commissioner
pointed out that witnesses may be prepared to give evidence on
condition or on the understanding that it would be used only in
connection with a particular murder investigation and considered
that such information could not then be used for the investigation
of other crimes even if they were to fall within the scope of
the Framework Decision.
5.8 We were grateful to the Information Commissioner
for his detailed consideration of the data protection issues raised
by the proposal. We agreed with those views and asked the Minister
for her views, in due course, on these comments.
The note by Sweden
5.9 The note by Sweden (document (c)) sets out a
list of types of information or sources of information to which
law enforcement bodies may need access in order successfully to
detect, prevent and investigate criminal offences. Sweden has
prepared the list to illustrate the kinds of information which
might be exchanged under the proposed Framework Decision. The
Presidency asked the Member States on 6 December 2004 to consider,
in respect of each item on the list, whether the information is
already available to, or may be obtained by, domestic law enforcement
authorities without the involvement of the judicial authorities,
or whether judicial authorisation, possibly involving coercive
measures, is required.
5.10 The list refers to a wide range of registers
including criminal records, criminal intelligence registers, missing
persons registers and registers relating to photographs, fingerprints,
DNA samples, firearms, passports, driving licences, identity cards
and data on vehicles, aircraft and vessels. The list also refers
to information which is derived from investigations, such as statements
by persons co-operating with law enforcement agencies, statements
by undercover agents and statements by suspects, witnesses and
experts. Also included in the list is information derived from
searches of premises, the interception of communications and covert
surveillance, crime scene investigations, and the monitoring of
telecommunications, including communications data generated by
IT systems and handled by telecoms operators and internet service
providers. The list also refers to financial information, such
as reports of unusual or suspicious money transactions and information
held by banks and financial institutions.
The Government's view
5.11 In her Explanatory Memorandum of 15 December
2004, the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the Government is consulting interested
parties on the list prepared by Sweden with a view to answering
the Presidency's request. The Minister comments as follows:
"Insofar as the purpose of the inquiry is
to consider the extent to which information might be exchanged
through law enforcement channels rather than by way of mutual
legal assistance, the Government wishes to adopt a flexible approach
aimed at ensuring speedy and effective cooperation with EU partners.
But the range of information on the list in [document (c)] underscores
the importance of ensuring that there are adequate data protection
and other civil liberties and public interest safeguards. The
Government will also need to consider whether information already
obtained for domestic purposes through coercive measures such
as production orders and search warrants could be exchanged with
partners abroad within the terms on which the coercive powers
were granted. On present expectations, the Framework Decision
will not require changes to domestic legislation, but if this
assessment changes, the scrutiny committees will be informed accordingly."
Conclusion
5.12 We shall look forward to a fuller account
by the Minister of the United Kingdom's response to the Presidency's
request. It appears to us that a number of items on the list prepared
by Sweden concern information which is obtained by coercive measures.
A number of them also appear to involve the interception of telecommunications,
whereas we understood from the Minister's letter to us of 26 August
2004 that the UK intended to suggest that this should remain outside
the scope of this Framework Decision.
5.13 We welcome the Minister's emphasis on the
importance of ensuring adequate data protection, civil liberties
and public interest safeguards as regards the exchange of information
under this proposal. We shall look forward to an explanation by
the Minister of how these concerns are being met, and of the extent
to which domestic law in the various parts of the United Kingdom
would permit the disclosure to other Member States of information
which is obtained by means of coercive measures.
5.14 We shall hold the documents under scrutiny
pending the Minister's reply.
|
