6 Taking previous convictions into account
in new criminal proceedings
| (26453)
7645/05
COM(05) 91
| Draft Council Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings
|
| Legal base | Articles 31 and 34(2)(b) EU; consultation; unanimity
|
| Document originated | 17 March 2005
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| Deposited in Parliament | 30 March 2005
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| Department | Home Office |
| Basis of consideration | EM of 23 May 2005
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| Previous Committee Report | None; but see (26385) 6584/05: HC 34-i (2005-06), para 27 (4 July 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
6.1 The proposal is referred to in the Commission White Paper
on exchanges of information on convictions and the effect of such
convictions in the European Union. The White Paper, which we considered
on 4 July, commented that the scope for attaching consequences
to foreign convictions was a matter for national law and was
"often limited".
6.2 The Commission refers to the principle of mutual
recognition as a cornerstone of judicial cooperation in civil
and criminal matters and, in support of the present proposal,
points to a programme of measures adopted by the Council in December
2000,[19] one of which
was for the adoption of measures "establishing the principle
that a court in one Member State must be able to take account
of final criminal judgments rendered by the courts in other Member
States for the purposes of assessing the offender's criminal record
and establishing whether he has re-offended, and in order to determine
the type of sentence applicable and the arrangements for enforcing
it".
6.3 In its explanatory memorandum on the present
proposal, the Commission suggests that little account is in fact
taken of convictions in other Member States and argues that "the
fact that equivalent effects cannot be attached to a decision
taken in another Member State is contrary to the mutual recognition
principle and puts the citizens of Europe on an unequal footing
in the event of subsequent prosecutions depending on the place
where the first and second cases are brought. Hence the need for
Union legislative action". The Commission's explanatory memorandum
does not explain the basis for the assertion that "equivalent
effects cannot be attached" to foreign convictions, and nor
does it explain that this question is already dealt with by Article
56 of the Convention of 28 May 1970 on the International Validity
of Criminal Judgments.[20]
Article 56 provides as follows:
"Each Contracting State shall legislate
as it deems appropriate to enable its courts when rendering a
judgment to take into consideration any previous European criminal
judgment rendered for another offence after a hearing of the accused
with a view to attaching to this judgment all or some of the effects
which its law attaches to judgments rendered in its territory.
It shall determine the conditions in which this judgment is taken
into consideration."
The draft Framework Decision
6.4 By virtue of Article 1, the purpose of the proposal
is to determine the conditions under which a Member State is to
take account of a previous conviction in another Member State
in the course of new criminal proceedings based on different facts.
The Commission explains that the proposal does not affect the
rules against double jeopardy (i.e. the rules which prevent, or
restrict, the bringing of new proceedings based on the same facts).
Article 1(2) sets out the usual formula stating that the proposal
does "not have the effect of amending the obligation to respect
the fundamental rights and fundamental legal principles as enshrined
in Article 6 of the Treaty".[21]
6.5 Article 2 defines the concepts of "conviction"
and "criminal record". "Conviction" is defined
as any final decision of a criminal court establishing guilt of
a criminal offence or "an act punishable in accordance with
national law as an offence against the law". A decision of
an administrative authority is also a "conviction",
provided that the decision can be appealed in the criminal courts.
"Criminal record" is defined as the national register
or registers recording convictions in accordance with national
law.
6.6 Article 3 sets out the obligation on Member States
to take account of foreign convictions. It requires Member States
to "attach to convictions handed down in the other Member
States in accordance with rules determined by them legal effects
that are equivalent to those they attach to national convictions".
Article 3(2) requires the above rule to be applied "at the
pre-trial stage, at the trial stage itself and at the time of
execution of the conviction" and also requires it to be applied
to rules of procedure, questions of provisional detention, the
definition of the offence, the type and level of the sentence,
and the rules governing the execution of the decision.
6.7 Article 4 sets out four instances where the foreign
conviction must not be taken into account. The first is where
"the conviction violates the non bis in idem principle"
(i.e. the rule against double jeopardy). Presumably, the intention
is that the foreign conviction should not be taken into account
if it is based on the same facts as some earlier conviction or
acquittal. This would seem to produce the result that only the
earlier, but not the later, conviction is to be taken into account.
The second case arises "where the criminal proceedings were
time-barred in accordance with national legislation at the time
of the conviction and the alleged offence could have been within
the jurisdiction of this Member State in accordance with its own
criminal law". It is far from clear how this provision is
meant to operate, but it may be intended to cover the case where
there has been a conviction in Member State A in respect of a
matter which could have been within the jurisdiction of Member
State B, but was time-barred in that Member State.
6.8 The third case arises "when the offence
which gave rise to the conviction is covered by amnesty and the
Member State had jurisdiction to prosecute the offence in accordance
with its own criminal law". This seems to address the case
where the conviction in Member State A would have been covered
by an amnesty in Member State B, in circumstances where Member
State B would have had jurisdiction to prosecute that offence.
The fourth case arises where "under the national rules which
govern entries in the national criminal record the entry relating
to the conviction would have been removed from the record".
This seems to cover the case where the foreign conviction, had
it arisen in Member State B, would have been removed from the
record in Member State B. In this case, as in the second and third
cases, the meaning is ambiguous as the draft does not explain
which system of law or which Member State is in issue.
6.9 Article 5 sets out a number of optional grounds
for not taking a foreign conviction into account. Article 5(1)
provides that such convictions may be disregarded by a Member
State where the "underlying facts" do not constitute
an offence against the criminal law of that Member State. However,
Member States may not so disregard offences if they are mentioned
in the list set in Article 5(1). The list is substantially the
same as that which appears in Article 2(2) of the European Arrest
Warrant, and therefore includes such concepts as "computer-related
crime", "racism and xenophobia", "swindling"
and "sabotage". The list also includes "conduct
which infringes road traffic regulations", "smuggling
of goods" and infringement of intellectual property rights.
6.10 Article 5(2) permits a Member State to disregard
a conviction where the consequence of being convicted in another
Member State in new criminal proceedings on different facts "is
that the person concerned is treated more unfavourably than if
the conviction had been handed down by a national court".
The Commission's explanatory memorandum describes this provision
as a "safety net" to ensure that a person who has been
convicted in another Member State is not treated more unfavourably
than a person who is convicted of the same offence in the national
courts. (However the provision is not mandatory).
6.11 Article 6 introduces a rule for criminal records
which is analogous to that in Article 5(2) for treatment of previous
convictions. Article 6(2) accordingly provides that where foreign
convictions are entered in national criminal records, such entries
must not have the effect of causing the person to be treated more
unfavourably than if the person had been convicted by a national
court. Article 6(3) requires any modification or deletion of
an entry in the Member State of conviction to be the subject of
a corresponding modification or deletion in the Member State of
the person's nationality or residence.
6.12 Article 7 of the proposal provides that the
provisions of Article 56 of the Convention of 28 May 1970 on the
International Validity of Criminal Judgments ceases to have effect
as between Member States. Articles 8 and 9 are concerned, respectively,
with implementation and entry into force.
The Government's view
6.13 In his Explanatory Memorandum of 23 May 2005
the Parliamentary Under-Secretary of State at the Home Office
(Andrew Burnham) explains that the Government can support the
principle that Member States must be able to make full use of
criminal record information by mutually recognising convictions
in other Member States; the Government considers that the mutual
recognition of judicial decisions is the foundation for effective
judicial cooperation within the EU.
6.14 The Minister points out that Part 11 of the
Criminal Justice Act 2003 (which, in England and Wales, governs
the admissibility of evidence of previous convictions in a criminal
trial) does not preclude evidence being given of previous convictions
on the ground that the conviction was in a jurisdiction outside
the UK. The Minister also points out that section 143(5) of the
Criminal Justice Act 2003 does not prevent a court in England
and Wales from treating a previous conviction by a court outside
the United Kingdom as amounting to an aggravating factor for the
purposes of sentencing. Similarly, section 57 of the Criminal
Justice (Scotland) Act 2003 allows a court in Scotland to take
convictions in other EU Member States into account on a equal
footing with domestic convictions. In Northern Ireland the matter
is not regulated by statute.
6.15 The Minister explains that the Government has
identified some key features within the proposal and states that
the UK's support would be contingent on its objectives being attained
in relation to them.
6.16 Commenting on Article 1, the Minister notes
that the proposal covers new criminal proceedings based on different
facts, and that such wording is important in ensuring that a person
cannot be tried more than once for the same crime. In relation
to Article 2, the Minister notes that the definition of "conviction"
takes account of the concept of an offence as used in Articles
51 and 52 of the Convention implementing the Schengen Agreement
of 1990 and in the 2000 EU Convention on Mutual Assistance in
Criminal Matters[22]
and that it would include offences which "whilst criminal
in nature are defined as administrative offences and are dealt
with through administrative procedures". The Minister states
that the Government is content with this, "so long as the
offence is one that can be appealed against in a criminal court".
6.17 In relation to Article 3 (which requires Member
States to give foreign convictions an effect equivalent to that
given to national convictions at any stage in the proceedings)
the Minister states that the Government "can support this
provision provided it balances the need to make full use of conviction
information for crime prevention purposes, with the fair treatment
of suspects/defendants".
6.18 The Minister explains that Article 4 sets out
"adequate" mandatory grounds for not taking a previous
conviction into account, and that the rule relating to double
jeopardy is of particular importance. The Minister adds that the
rule against double jeopardy is a fundamental principle within
the United Kingdom and that the Government's support for the proposal
is contingent on this provision being retained. The Minister comments
that the other grounds for not taking a previous conviction into
account "appear to be incompatible in certain respects with
current UK legislation", and that the Government will provide
us with fuller information when it has consulted other interested
parties.
6.19 On the optional grounds for not taking a previous
conviction into account, the Minister notes that Article 5(1)
provides that Member States may refuse to take a previous conviction
into account where the facts on which that foreign conviction
is based would not constitute an offence under the national law.
(This is subject to an exception for the list of offences in Article
5(1)). The Minister states that the Government supports in principle
the approach taken in Article 5, but is still considering the
list of offences for which dual criminality[23]
would not be required. The Minister also states that the Government
can support the provisions of Article 5(2) as it ensures that
the proposal "would not cause a national of a Member State
to receive a harsher punishment on account of being subjected
to different sentencing provisions in another Member State".
6.20 The Minister considers the provisions of Article
6 on criminal record information to be necessary to ensure that
"EU citizens, having received a conviction, would receive
a level of treatment consistent with the national law of their
Member State of nationality should they be subject to criminal
proceedings at a later date where the information will be used".
6.21 Finally, the Minister comments as follows on
the treatment of spent convictions:
"The proposal does not specifically touch
upon the use of spent convictions, in new criminal proceedings,
though it does make reference to time-barred proceedings and proceedings
where an amnesty may be relevant.. We understand that a spent
conviction is not a concept commonly found in the criminal justice
systems of many other Member States of the European Union. Whilst
we would not wish this proposed framework decision to impose obligations
relating to domestic criminal procedure, we would wish to ensure
that UK nationals do not receive unfair treatment on account of
spent convictions. It may be that we will seek to include a reference
to spent convictions not being taken into account by an overseas
court, if that spent conviction would not be taken into account
by a United Kingdom court."
Conclusion
6.22 We thank the Minister for his Explanatory
Memorandum, but we would be grateful if the Minister would explain
whether the proposal meets any real practical need which could
not be dealt with by a provision similar to the one made in Article
56 of the 1970 Council of Europe Convention on the International
Validity of Criminal Judgments. To seek exact equivalence in all
circumstances between "convictions" in the Member States
seems to us to be disproportionate, and to be likely to work unfairly.
6.23 In this regard, we draw attention to the
wide meaning attributed to "conviction" and ask the
Minister if this meaning excludes fixed penalty notices, or their
equivalents in other Member States. We also ask the Minister
to explain if a conditional discharge or binding over would fall
to be regarded as a "conviction" under this proposal.
6.24 We note that dual criminality may not be
relied on as a ground for disregarding a foreign conviction for
an infringement of a road traffic regulation, and we ask the Minister
if he will confirm that, by reason of this proposal, such foreign
convictions (which, presumably, would include on-the-spot fines)
must attract penalty points and ultimate disqualification from
driving in this country.
6.25 We consider that the Minister is right to
be concerned about the potential for unfairness for UK nationals
arising from the treatment in foreign jurisdictions of spent convictions,
and will look forward to an account in due course of how this
problem is to be addressed. At present, the "safety net"
provisions of Article 5(2) appear to us to be too narrow to deal
with this case. In any event, such provisions should be mandatory
and not merely optional as they are at present.
6.26 We shall keep the proposal under scrutiny
pending the Minister's reply.
19 OJ No. C 12, 15.01.2001, p.10. Back
20
European Treaty Series No.70. The Convention has been ratified
by Austria, Cyprus, Estonia,Latvia, Lithuania, the Netherlands,
Spain and Sweden. Back
21
i.e. Article 6EU. Back
22
OJ No. C 197, 12.07.2000. Back
23
i.e. the principle that the conduct should be criminal in both
countries concerned. Back
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