44 Exchanges of information on convictions
| (26385)
6584/05
COM(05) 10
| White Paper on exchanges of information on convictions and the effect of such convictions in the European Union
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| Legal base | — |
| Department | Home Office |
| Basis of consideration | Minister's letter of 27 July 2005
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| Previous Committee Report | HC 43-i (2005-06), para 27 (4 July 2005); and see (26219) and (26391): 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 | Cleared
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Background
44.1 The Justice and Home Affairs Council of 19 July 2004 invited
the Commission to bring forward proposals with a view to improving
exchanges of information contained in national registers of convictions
and disqualifications, particularly on sex offenders. We considered
the resulting Commission White Paper on 4 July 2005.
44.2 The White Paper made a number of criticisms
of the arrangements under the 1959 European Convention on Mutual
Assistance in Criminal Matters,[112]
including the difficulty in rapidly identifying the Member State
in which an individual has been convicted and in obtaining information
quickly and by a simple procedure. The White Paper also asserted
that national courts often took the view that the procedure for
obtaining details of an individual's previous offences in another
Member State was "cumbersome, unfamiliar and incompatible
with the constraints of domestic proceedings". We noted that
the evidence on which these conclusions were reached was not set
out in the White Paper.
44.3 The White Paper discussed options for improving
the exchange of information on convictions, including 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 identified disadvantages with each of these options,
and suggested instead a "hybrid" solution which as a
first stage would involve creating a "European index of offenders"
(i.e. an index of personal data identifying the individual and
the Member State in which he was convicted but without any details
of the offence or of the sentence) which would serve to identify
the Member State in which the person concerned had previously
been convicted and from which details of the offence and sentence
could be obtained. The second stage would involve devising 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.
It would also necessitate, in the Commission's view, the adoption
of a "common European definition of the concept of conviction".
44.4 We noted that the Government broadly welcomed
the White Paper and that it supported the proposed "hybrid"
solution and that it saw the creation of the European index of
offenders as an opportunity to broaden the exchange of criminal
record information for additional purposes such as crime prevention
and employment vetting. We considered that the case for the Commission's
proposals seemed to rest more on assertion rather than evidence,
and that some of them, such as the adoption of a "common
European definition of the concept of conviction", had the
potential to bring about a wide-ranging harmonisation of substantive
criminal law.
44.5 We asked the Minister to explain the apparent
enthusiasm of the Government for an expansion of the purposes
of the proposed register to include crime prevention and employment
vetting, for an explanation of how measures in relation to those
matters could be justified under the existing EU Treaty provisions,
and if it was the Government's intention to promote an expansion
of EU competence in relation to such matters.
The Minister's letter
44.6 The letter of 27 July from the Parliamentary
Under-Secretary of State at the Home Office (Mr Andy Burnham)
addresses these concerns. By way of background, the Minister informs
us that France, Spain, Germany and Belgium have embarked on a
pilot project to link their respective national criminal registers
and that information will be recorded in the State of nationality
rather than the State of conviction. The Minister adds that this
project and the Commission White Paper proposals were discussed
at the Justice and Home Affairs Council in April 2005 and that
it was generally accepted that, in principle, criminal conviction
records should be held in the country of nationality. The Commission
was invited to bring forward a proposal to provide for criminal
record exchange based on the "hybrid" model.
44.7 The Minister explains that the approach is likely
to be markedly different from the Commission proposals. The Minister
expects proposals which will require the networking of Member
States' criminal record systems and an obligation on the Member
State of nationality to record criminal conviction information
sent by another Member State where the conviction has been reached.
The common format for the exchange of information is likely to
consist of an agreement to use a common form. However, the Minister
does not expect the proposals for a common EU definition of "conviction"
or for a "dictionary" of legal terms in the criminal
law of Member States to be taken forward.
44.8 In relation to our concern over the Government's
apparent enthusiasm for expanding the purposes of the proposed
register beyond those of cooperation in criminal matters, the
Minister comments that crime prevention is a "central part"
of activity under the Third Pillar[113]
and that the reference the then Minister made in her Explanatory
Memorandum to allowing access to criminal records for other purposes
was intended to be a reference to crime prevention as well as
to the prosecution of serious offences once a crime has occurred.
The reference to employment vetting was made in this context so
as, for example, to prevent sex offenders from working in sensitive
areas. The Minister concludes:
44.9 "... the reference to expanding the purposes
of the register did not indicate any enthusiasm to promote an
expansion of EU competence in this area. The intention was, rather,
to ensure that the exchange of information should properly be
available for crime prevention as well as the prosecution of crime,
crime prevention being something that is specifically referred
to in the treaty."
Conclusion
44.10 We are grateful to the Minister for his
letter, which contains a helpful clarification of the Government's
intentions. We look forward to considering the Commission's proposals
in more detail when they are deposited, but we welcome the Minister's
indication that he does not expect the Commission to pursue its
proposals for a common EU definition of "conviction",
or the "dictionary" of legal terms in the criminal law
of the Member States.
44.11 In the light of the further information
given by the Minister, we are content to clear the document.
112 European Treaty Series No. 30. Back
113
i.e. the provisions of Title VI of the EU Treaty dealing with
police and judicial cooperation in criminal matters. Back
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