27 Exchanges of information on convictions
| (26385)
6584/05
COM(05) 10
+ ADD 1
| White Paper on exchanges of information on convictions and the effect of such convictions in the European Union
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| Legal base | — |
| Document originated | 25 January 2005
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| Deposited in Parliament | 25 February 2005
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| Department | Home Office |
| Basis of consideration | EM of 1 April 2005
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| Previous Committee Report | None; but see (26219) 15281/04 and (26391) 6137/1/05: HC 38 -xv (2004-05), para 19 (6 April 2005)
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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
27.1 Articles 13 and 22 of the European Convention on Mutual Assistance
in Criminal Matters, adopted in 1959 within the Council of Europe,[112]
provides for the exchange of information from national criminal
records. Article 13 of the 1959 Convention provides for the making
of specific requests for information, whilst Article 22 requires
each Contracting Party to inform any other Party of all criminal
convictions and subsequent measures in respect of nationals of
the latter Party which are entered in its judicial records.
27.2 The Commission considered that a number of improvements
needed to be made to the system under the 1959 Convention and
introduced a proposal to make a number of minor adaptations. The
previous Committee considered that proposal for a Council Decision
on 12 January, 23 February and 6 April 2005.
27.3 The Justice and Home Affairs Council of 19 July
2004 had considered the need to improve the quality of criminal
record information exchanged between Member States and had invited
the Commission to bring forward proposals with a view to improving
such exchanges of information contained in national registers
of convictions and disqualifications, particularly on sex offenders.
The Commission has produced the White Paper in response.
The Commission White Paper
27.4 The White Paper reviews first the systems within
the Member States for recording convictions. It notes that some
national registers of convictions contain all convictions, whilst
others refer only to the most serious offences, and that the practice
varies in recording convictions of legal persons. It appears that
some national registers record only final judgments whereas others
include interim orders and judgments which are subject to appeal.
In some Member States, the only judgments which are recorded are
those given by criminal courts, whereas in other Member States
the national register includes decisions by administrative or
civil courts imposing disciplinary penalties or disqualifications
from pursuing certain occupations.
27.5 The White Paper also notes that there is no
uniformity in national laws determining who has a right of access
to criminal record information, or as to the period for which
information may be held.
27.6 The White Paper goes on to advance a number
of criticisms of the arrangements under the 1959 Convention, referring
to "three main problem areas". These are, first, a difficulty
in rapidly identifying the Member State in which an individual
has been convicted. The White Paper points out that, although
the 1959 Convention requires signatories to notify each other
when persons who are not nationals of the country of conviction
are convicted, it does not require the Contracting Party of nationality
to include such convictions in their national registers and in
practice it appears that some do not do so, or do so only to a
limited extent. Secondly, the White Paper refers to "the
difficulty in obtaining information quickly and by a simple procedure",
asserting that the mechanism for requests for mutual assistance
under Article 13 of the 1959 Convention "does not work as
it should" and that "national courts often take the
view that the procedure for obtaining details of an individual's
previous offences in another Member State is cumbersome, unfamiliar
and incompatible with the constraints of domestic proceedings".
(The evidence on which this conclusion is reached is not set out
in the White Paper). Thirdly, the White Paper suggests that there
is "difficulty in understanding the information provided".
It considers that this is in part a result of problems of translation,
but that the "legal problems are even greater", because
the information entered in the national register varies considerably
from one country to another. The White Paper comments that there
is considerable diversity in the national systems and that "recipients
may sometimes be disconcerted by the information provided, particularly
as regards sentencing".
27.7 The White Paper next considers the special problems
raised by disqualifications. It notes that disqualifications may
be ordered at the time of conviction but may also be ordered in
civil, administrative or disciplinary proceedings which follow
on from a conviction. The White Paper notes that, because of these
differences in origin, disqualifications are not always included
in national criminal records. It also asserts that the information
which is recorded is not always usable, because "the lack
of harmonisation represents a real obstacle to mutual recognition".
The White Paper indicates that the Commission will issue a communication
on disqualifications in the course of this year, and refers to
the proposal by Belgium on the mutual recognition of orders disqualifying
a person from working with children.[113]
27.8 The White Paper discusses three options for
improving the exchange of information on convictions, namely facilitating
bilateral exchanges between the Member States concerned, the networking
of national criminal records offices and the setting up of a "genuine
European central criminal records office". The White Paper
considers that the first two of these options have disadvantages,
whilst the third would be disproportionate, since it would involve
duplicating at European level the information contained in national
registers. It suggests instead a "hybrid" solution which
it describes as being "somewhere between setting up a European
central records office and networking national criminal records
offices".
27.9 This "hybrid" solution would be implemented
in two stages. The first would involve the creation of a "European
index of offenders". This would consist of personal data
identifying the individual and the Member State in which he was
convicted, but would not contain details of the offence or of
the sentence. According to the Commission, the index "would
comply with national and European privacy laws" and would
make it possible to identify the Member States in which the person
concerned had previously been convicted. Further details of the
offence and sentence would then be obtained by a direct approach
to the Member State concerned. The Commission considers that such
a system would make it necessary to adopt a "common European
definition of the concept of conviction" and proposes the
definition contained in its proposal for a Council Decision on
the exchange of information extracted from the criminal record,[114]
which it describes as being confined to "final decisions
handed down by criminal courts and establishing an individual's
guilt, plus a number of mixed (administrative/criminal law) decisions".
(The Commission does not, however, refer to the fact that this
definition appears now to have been removed from the proposal.)
27.10 The second stage would involve the devising
of a "standard European format" to permit information
to be transmitted and readily translated and understood. This
format would include data on the individual information relating
to the form of the decision, on the acts which gave rise to it
and on its content. The White Paper also indicates that a "dictionary"
could be devised to explain the nature and significance of terms
used in the national legal systems. The Commission envisages making
a proposal for a Decision on a computerised European index and
carrying out a feasibility study on the second stage in the course
of 2005.
27.11 The second part of the White Paper discusses
the use which may be made of information relating to convictions.
The White Paper states that one of the main effects would be
to prevent new proceedings being commenced in another Member State
in respect of the same offence in breach of the rule against double
jeopardy (ne bis in idem). However, the White Paper also
notes that exchanging information on previous convictions is not
by itself sufficient to prevent double jeopardy, because national
criminal records generally do not record acquittals.
27.12 The White Paper notes that the 1959 Convention
does not address the question of the legal consequences which
might flow from a foreign conviction. It refers to the 1970 European
Convention on the International Validity of Criminal Judgments,
adopted within the Council of Europe and ratified by nine Member
States.[115] The White
Paper comments that the scope for attaching consequences to foreign
convictions is a matter covered by national law and asserts that
the scope for taking account of convictions in other Member States
"is often limited". The Commission states that, with
a view to remedying what it describes as these "shortcomings",
it will be proposing a draft Framework Decision.
The Government's view
27.13 In her Explanatory Memorandum of 1 April 2005
the then Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explained that the Government broadly welcomed
the White Paper as a positive step towards enhancing current mechanisms
for exchanging criminal record information and that it supported
the proposed "hybrid" solution.
27.14 The then Minister also explained that the Government
viewed the creation of the European index of offenders as an
opportunity to broaden the exchange of criminal record information
for purposes in addition to co-operation in criminal matters.
In relation to the envisaged proposal by the Commission for a
Council Decision on a computerised European mechanism for exchanging
information on convictions, the Minister stated that the Government
would "welcome a recognition" by the Commission of a
need to allow access to the register for purposes other than in
relation to cooperation in criminal matters. The Minister went
on to state that such purposes would have to be pursuant to Union
aims in the field of Justice and Home Affairs, but that "they
could include crime prevention as well as the effective prosecution
of serious offences". The Minister argued that this would
ensure flexibility in the use of the Index but would not oblige
Member States to submit to requests made to them for "other
purposes" within the meaning of Article 5 of the draft Council
Decision on the exchange of information extracted from the criminal
record. The Minister added that this would nevertheless allow
those Member States which were content to engage in exchanges
of information for other purposes, such as employment vetting,
to benefit from access to the computerised Index.
27.15 In relation to the discussion in the White
Paper on the use which may be made of criminal record information,
the Minister explained that the Government could "support
in principle the proposal expected in the near future from the
Commission regarding the principle of mutual recognition of criminal
convictions for the purpose of sentencing".
Conclusion
27.16 The White Paper serves essentially as an
introduction to proposals which the Commission intends to make
in relation to criminal records, and such proposals will need
to be examined in detail. The case for such proposals seems to
us to rest largely on assertion rather than evidence, and we note
that some of them, such as the adoption of a "common European
definition of the concept of conviction", have the potential
to bring about a wide-ranging harmonisation of substantive criminal
law.
27.17 We note, in particular, the apparent enthusiasm
of the Government for an expansion of the purposes of the proposed
register beyond those of cooperation in criminal matters, so as
to include, for example, crime prevention and employment vetting.
We ask the Minister to explain if it is the Government's intention
to promote an expansion of EU competence in relation to such matters
and for an explanation of how measures in relation to them can
be justified under the existing EU Treaty provisions.
27.18 We shall hold the document under scrutiny
pending the Minister's reply.
112 European Treaty Series No. 30. Back
113
(26163) 14207/04; see HC 38 -ix (2004-05), para 5 (23 February
2005). Back
114
See (26391) 6137/1/05: HC 38-xv (2004-05), para 19 (6 April 2005).
The original Commission proposal defined a "conviction"
as "any final decision of a criminal court or of an administrative
authority whose decision can be appealed against in the criminal
courts establishing guilt of a criminal offence or an act punishable
in accordance with national law as an offence against the law".
The definition has not been retained in subsequent versions. Back
115
European Treaty Series No. 70. It has been ratified by Austria,
Cyprus, Denmark, Estonia, Latvia, Lithuania, the Netherlands,
Spain, and Sweden. Back
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