9 Organised crime
| (26319)
6582/05
COM(05) 6
| Draft Council Framework Decision on the fight against organised crime
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| Legal base | Articles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 22 June 2005
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| Previous Committee Report | HC 38-xv (2004-05), para 7 (6 April 2005); and see (25536)8200/04: HC42-xxi (2003-04), para 7 (26 May 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 | Not cleared; information on progress requested
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Background
9.1 Organised crime has long been the subject of cooperation at
EU and international level. In 1998 the Council adopted a Joint
Action on participation in a criminal organisation (1998/733/JHA[26]),
and the United Nations adopted a Convention against Transnational
Organised Crime in 2000, which has now entered into force having
received the required 40 ratifications.[27]
9.2 Under the Joint Action, Member States were given
the right to make criminal either an active participation in the
organisation's criminal activities or the making of an agreement
that an activity should be pursued. Similarly, Article 5(1)(a)
of the UN Convention requires that States Party to the Convention
must treat as criminal either (i) an agreement to commit a serious
crime, or (ii) conduct by a person who, with knowledge of either
the aim and general criminal activity of an organised criminal
group or its intention to commit the relevant crimes, takes an
active part in the group's criminal activities or in its other
activities in the knowledge that his participation will contribute
to achievement of the group's criminal aims. States Party to the
UN Convention may make both types of act criminal, but are not
obliged to.
9.3 The draft Framework Decision seeks to replace
the provisions of the 1998 Joint Action, to provide for specific
criminal offences of directing, and of active participation in,
a criminal organisation and to prescribe new offences relating
to criminal organisations.
9.4 When the previous Committee considered the proposal
on 6 April, it noted that the draft Framework Decision would require
active participation to be made criminal, with no provision for
an alternative means of satisfying the requirements of the Framework
Decision by referring to an agreement to commit a serious crime.
The Committee saw no useful purpose being served by this departure
from the UN Convention in this regard. In its view, the Framework
Decision did not appear to allow for the conduct to be dealt with
by the existing law on inchoate crimes such as conspiracy, and
thus did not appear to respect the differences between the traditions
and legal systems of the Member States.
9.5 The Committee also believed that the provisions
of Article 3(2) (which related to sentencing) might interfere
with judicial discretion, since they appeared to require that
offences committed in the context of criminal organisations incurred
longer periods of imprisonment. The Committee asked the then Minister
for her comments.
The Minister's reply
9.6 The letter of 22 June 2005 from the Parliamentary
Under-Secretary of State at the Home Office (Paul Goggins) addresses
these points. On the comparison between the United Nations Convention
against Transnational Organised Crime (UNTOC) and this proposal,
the Minister agrees that as it currently stands the proposal does
not allow for offences to be dealt with by existing law on inchoate
crimes. The Minister describes this as an area of concern which
is subject to continuing negotiations. The Minister adds that
the Government prefers the approach taken by UNTOC, that the government
is considering whether it could accept the new offences in the
proposal as drafted, and that it will let us know its views in
due course.
9.7 In relation to Article 3(2), the Minister replies
that the Government shares the concern expressed by the previous
Committee regarding judicial discretion in sentencing. He adds
that the Government will seek amendment of the provision so that
it reflects the pattern normally adopted in approximation instruments
by setting a standard based on a minimum level of the maximum
sentence. The Minister also undertakes to keep us informed of
the progress of negotiations.
Conclusion
9.8 We thank the Minister for his letter and we
look forward to further information on the negotiation of this
proposal. Like our predecessors, we see no useful purpose being
served by a departure from the UNTOC Convention or any need for
the "one size fits all" approach of this proposal, which
would prevent common law jurisdictions from relying on their existing
law on conspiracy and incitement.
9.9 We support the Minister's endeavours to seek
more appropriate wording of the provisions relating to sentencing
so as to avoid any encroachment on judicial discretion.
9.10 We shall keep the document under scrutiny
pending further information from the Minister on progress in these
negotiations.
26 OJ No. L 351 of 29.12.98, p.1. Back
27
It has been ratified by 13 EU Member States, namely, Austria,
Belgium, Denmark, Estonia, France, Lithuania, the Netherlands,
Poland, Portugal, Slovakia, Slovenia and Spain. Back
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