12 Exchange of information extracted from
criminal records
| (26219)
15281/04
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| 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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| Department | Home Office |
| Basis of consideration | Minister's letter of 3 February 2005
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| Previous Committee Report | HC 38-i (2004-05), para 15 (1 December 2004); HC 38-iii (2004-05), para 10 (12 January 2005)
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| To be discussed in Council | 24 February 2005 JHA Council
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
12.1 This proposal seeks 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),[26]
pending the adoption of a computerised system for such exchanges.
12.2 When we considered the matter on 1 December
2004 and 12 January 2005 we noted that the proposal did not apply
to criminal record information held on nationals of third countries
or on Community nationals who reside in a State other than the
State of their nationality. We also noted that requests under
Article 13 of the 1959 Convention for information from judicial
records had to be responded to within five days, using standardised
forms for requests and replies.
12.3 We raised the concern that the proposed standard
form of reply required the responding Member State to specify
whether an offence under its own law fell within one of the categories
in the form, such as "racism and xenophobia", "swindling"
or "sabotage" (and to distinguish "fraud"
from "swindling"), or whether the offence 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. This seemed to us to oblige
Member States to engage in a difficult, if not impossible, exercise
of classification for no operational purpose, and we welcomed
the deletion of this form from the latest version of the proposal.
12.4 We noted that Article 2 appeared to impose an
unqualified obligation to disclose criminal convictions, whereas
Article 3(3), relating to replies to specific requests for information
on convictions, provided for the reply to be accompanied by a
statement of convictions "under the conditions provided for
by national law". We asked the Minister for her views on
the apparent inconsistency between the duty under Article 2 and
that under Article 3 to supply information in reply to requests
(which was to be "under the conditions provided for by national
law") and to explain her statement that the Decision did
not place any additional obligations on the United Kingdom.
The Minister's reply
12.5 In her letter of 3 February 2005 the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) replies
to our concern, as follows:
"The Committee points out that in Article 3
of the Council Decision, which relates to the duty of Member States
to reply to requests for information, there is a reference to
such action being taken 'under the conditions provided for by
national law'. The Committee notes that in Article 2 which concerns
Member States providing information as an own-initiative measure,
there is no reference to such information being provided in accordance
with national law. Whilst the Committee is absolutely correct
in its observation, the Government would emphasise that Article
2 relates to Member States providing information to other Member
States on their own initiative. In such situations one can legitimately
assume that a Member State would only be sending information in
line with its own national legal provisions.
"Article 3 deals with the mechanism for Member
States replying to requests for information and sets out that
replies shall be made 'under the conditions imposed by national
law'. It was felt that such text was needed in Article 3 to ensure
that it is clear that Member States are not required by the Council
Decision to provide information that would contravene their own
national law provisions when replying to requests for information.
It was felt that this was of importance for situations where Member
States are replying to requests for information, as opposed to
providing information as an own initiative measure as set out
in Article 2, where a Member State would only ever provide information
in accordance with the conditions imposed by its national law."
12.6 The Minister concludes that, whilst we are correct
in saying that there is some "variation" between the
text of Articles 2 and 3, the Government believes that "this
reflects the slightly different circumstances for own-initiative
information exchange and replying to requests for information"
and that it can support the current text.
Conclusion
12.7 We thank the Minister for her letter, which
advances a plausible argument to address the inconsistency between
Articles 2 and 3 of this proposal. Nevertheless, the contrary
is also arguable. If the intention is so clear that the supply
of criminal record information under Article 2 is to be subject
to the same conditions of national law as apply to replies to
requests under Article 3, we find it difficult to understand why
this is not put beyond doubt by a comparatively simple amendment.
12.8 We urge the Minister to resolve this ambiguity,
but having done so, we do not consider that we can take this matter
further, and we now clear the document.
26 European Treaty Series No.30. Back
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