22 Exchange of information between law
enforcement authorities
| (26648)
6888/2/05
—
| Draft Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union
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| Legal base | Articles 30(1)(a) and (b) and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office
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| Basis of consideration | Minister's letters of 19 July and 29 July 2005
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| Previous Committee Report | HC 34-iv (2005-06), para 10 (20 July 2005); and see (26416)HC 34-i (2005-06), para 26 (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
22.1 Following the declaration on terrorism by the European Council
on 25 March 2004, Sweden brought forward a proposal 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.
22.2 Earlier versions of the proposals were considered
by the previous Committee and then by us on 4 July. At that stage
we noted that, although the proposal had originally been presented
as concerned with serious crimes, including terrorism, it had
been extended to cover all crimes. It also appeared to impose
an obligation on Member States in relation to Interpol, and did
not clearly exclude the exchange of information which had been
obtained by the use of coercive measures. The current version,
which we considered on 20 July, addressed these concerns.
22.3 We noted that the proposal had been amended
to make clear that it did not impose any obligation on Member
States' authorities to gather and store information and intelligence
for the sole purpose of providing it to other Member States or
for the purpose of adducing it in evidence before a judicial authority
of another Member State. The "information and intelligence"
covered by the measure was defined so as to exclude the obtaining
of information by coercive means, and the reference to Interpol
was deleted, being replaced by a provision referring to the exchange
of information by means of all existing channels for law enforcement
cooperation.
22.4 The Minister explained to us the importance
attached by Government to this issue and informed us that the
Government was considering how the provisions on data protection
in the proposal compared with those of Article 39 of the Schengen
Implementation Convention and that it was seeking further views
from the Information Commissioner.
22.5 We had asked the Minister to inform us of the
identities of those Member States where, according to the analysis
made by the Luxembourg Presidency, criminal investigations are
carried out under the leadership and responsibility of a judicial
authority. These had been deleted from the deposited text, but
the Minister agreed with us that the information was not inherently
confidential, neither did it disclose the negotiating positions
of the Member States. In the event, the Minister's letter enclosing
this information was not received until 21 July and therefore
could not be considered in our report of 20 July.
The Minister's letters of 19 and 29 July 2005
22.6 In his letter of 19 July, the Parliamentary
Under-Secretary of State at the Home Office (Paul Goggins) comments
further on the decision to widen the scope of the measure, the
treatment of information obtained by coercive means, the relationship
with Interpol and on data protection and other safeguards. The
Minister also provides a copy of the Presidency paper analysing
the information provided by the Member States on their systems
of criminal investigation.
22.7 On the scope of the measure, the Minister recalls
that the Framework Decision is intended to repeal the provisions
of Article 39 of the Schengen Implementing Convention[67]
to the extent that there is any overlap. The Minister adds that
Article 39 of that Convention applies to all offences, but that
it is a "skeletal" provision and that in the course
of negotiations it was generally considered that if Article 39
was to be enhanced it would be most helpful to those in the field
if the new arrangements were to apply to the full range of offences,
and not just those which were serious. The Minister explains that
the Government supports this approach, on the understanding that
it will not lead to the diversion of scarce law enforcement resources
which, in comparable domestic circumstances, would be given a
low priority.
22.8 The Minister notes our view that information
and intelligence obtained by coercive measures should be excluded,
and agrees that there should no obligation under the Framework
Decision to obtain new information and intelligence by such measures.
The Minister adds that express provision is made to this effect
under Article 1(4)[68]
and that the measure does not impose an obligation to exchange
information and intelligence already obtained by coercive means
where, in comparable domestic circumstances, there would be a
need for judicial authorisation. The Minister comments that the
question of exchange of information and intelligence already obtained
by coercive means is still "under intensive discussion"
where opinion remains divided. The Minister undertakes to keep
us fully informed of further developments.
22.9 The Minister states that the reference to Interpol
in the former Article 7(1) did not impose any obligation on Member
States in relation to Interpol, but that this reference has now
been deleted from the latest text, which makes it clear that exchanges
of information and intelligence may take place using all existing
channels.
22.10 In relation to data protection, the Minister
states that the Government shares our view that the proposal must
incorporate adequate safeguards. The Minister considers that the
revised provisions in the latest text are an improvement and that
the views of the Information Commissioner are being sought. The
Minister adds that the Government attaches importance to including
adequate grounds for withholding information and intelligence,
and undertakes to keep us informed of further developments. In
his letter of 29 July the Minister undertakes to forward to us
an account of the views expressed by the Information Commissioner.
The Presidency paper
22.11 The Presidency paper (5815/3/05) attached to
the Minister's letter analyses and tabulates the replies to a
questionnaire sent to the Member States asking (i) if national
law and procedure permit pre-investigation and investigation information
to be exchanged and (ii) whether various types of information
(e.g. photographs, fingerprints, DNA samples etc.) may be obtained
with or without further judicial authorisation.
22.12 Before setting out the replies in a tabular
form, the paper sets out some general comments from a number of
Member States. Belgium points out that the ability of national
police forces to exchange information via police cooperation should
not prevent other Member States from having to obtain judicial
authorisation when the information is subject to judicial control
in the requested State. The concept of "pre-investigation"
also needs to be defined precisely, and may in any event only
concern a particular criminal act. The Czech Republic points
out that certain types of investigation, such as phone-tapping,
may be carried out only with judicial authorisation, but that
the product of such inquiries is protected by national law on
classified information and the protection of sensitive personal
data. Denmark points to its distinctive criminal justice
system in which the head of the police district is also chief
prosecutor in the district court. Each Danish police district
has a legal branch which handles the prosecution of offenders
in the district court as well as supervising the work of the police,
including the exchange of information. Germany points out
that the concept of "pre-investigation" (Vorermittlungen)
in unknown in German law. When a crime is suspected, investigations
are conducted under the supervision of the relevant public prosecutor
(Staatsanwaltschaft). Crime prevention measures are distinguished
from prosecutions, and in the former case, the exchange of information
and intelligence is permitted on certain conditions. In the case
of prosecution material, the exchange of information by the police
is exceptional and then only with specific authority. In individual
cases, the powers of the federal and Länder police may both
be in issue, and the question of exchange of information relating
to a prosecution will be a matter for the public prosecutor. The
exchange of information with other Member States may take place
only to the extent that this is also permitted within Germany.
Spain also explains that there is no distinction in its law
between pre-investigations and investigations.
22.13 France draws attention to the fact that
police investigations are subject to judicial supervision, and
that it is for the public prosecutor (Procureur de la République)
to investigate and prosecute crime and to direct the activities
of the police (i.e. police judiciare) for his district.
France points out that the proposal would cause major difficulties
in so far as it envisages direct communications between police
forces without any judicial oversight. The concept of "pre-investigation"
has no bearing on judicial investigations (enquêtes judiciaries).
France points out that where a judicial investigation has been
commenced there are strict rules preventing the disclosure of
material except under the authority of the public prosecutor.
22.14 Ireland explains that where information
is available to the police, it may be used or shared with other
police forces for intelligence or investigative purposes only.
Any use of such material as evidence requires a formal request
for mutual legal assistance or a warrant to be obtained. In Lithuania
investigations by the police are carried out either under the
Law on Operational Activity or under the code of criminal procedure.
In the former case, the police may decide whether to share information,
but in the latter requests for information are dealt with by the
Minister of Justice or the public prosecutor on the basis of letters
rogatory. A similar distinction appears to be made in Luxembourg,
where the exchange of information related to an ongoing investigation
requires judicial authorisation.
22.15 The paper also includes comments from Switzerland
and Norway.[69]
Switzerland has replied to the questionnaire on the basis
that the Framework Decision would be restricted to police cooperation
and would not affect arrangements for mutual legal assistance,
and that it would not apply to information which has been obtained,
or may only be obtained, by coercive measures. Norway points
out that the lower prosecuting authority is integrated within
the police, so that an investigation conducted by the police is
always led by a police prosecutor. Since there is such integration,
the police may share information without judicial authorisation,
unless a decision of the court is necessary for the use of coercive
measures.
22.16 The table setting out the replies to the questionnaire
shows a difference between those Member States where information
can be exchanged without judicial authorisation, and those where
authorisation is required.[70]
The table also sets out a more detailed summary of the position
in relation to specific items of information. The exchange of
information about persons convicted of a criminal offence requires
judicial authorisation in Spain, Netherlands, Poland, Portugal,
Slovakia, Finland and Iceland, and there are restrictions in France,
Lithuania and the Netherlands on the exchange of information relating
to suspects. It appears that information about missing persons
may be exchanged between all Member States without any prior judicial
authorisation, and the same is generally true of fingerprints,
photographs and DNA information.[71]
Other kinds of information relating to crimes may be exchanged
without prior judicial authorisation, except in Luxembourg and
(in relation to driving licences and passports) Poland. The exchange
of information relating to prison inmates requires judicial authorisation
in Luxembourg, Austria and Slovakia.
22.17 The exchange of customs information and information
obtained by coercive or covert means (such as interviews, observation
reports, intercepts, crime scene reports, banking information
and suspicious transactions) is much more restricted and in a
large number of Member States (including the UK) some form of
judicial authorisation is required.
Conclusion
22.18 We thank the Minister for his helpful response.
The Presidency paper which the Minister has made available provides
a valuable introduction to the context of this measure and illustrates
the wide differences in practice between the Member States.
22.19 We look forward to a further account by
the Minister of the state of negotiations on this proposal, notably
on the treatment of information which has been obtained by coercive
measures. We also look forward to an account of the views of the
Information Commissioner.
22.20 We shall hold the document under scrutiny
in the meantime.
67 This provides for mutual assistance in preventing
and detecting crime, including the exchange of information, but
does not require the requested State to undertaken any coercive
measure. Back
68
"This Framework Decision does not impose any obligation
to obtain or provide information or intelligence by means of coercive
measures in the State receiving the request for information or
intelligence". Back
69
The Framework Decision does not apply to EEA countries, but they
may adopt its principles by agreement. Back
70
In the case of information already obtained in the requested
state, such authorisation appears to be required in Belgium, Latvia,
Malta, Poland, Slovenia, Slovakia, Finland, Sweden and Switzerland. Back
71
However, a warrant or similar coercive measure is required in
Belgium, Spain and Switzerland. Back
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