1 European Evidence Warrant
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(26732)
11288/05
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(b)
(27001)
14246/05
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Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters
Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters
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| Legal base | Articles 31 and 34(2)(b) EU; consultation; unanimity
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| Deposited in Parliament | (b) 16 November 2005
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| Department | Home Office |
| Basis of consideration | (b) EM of 22 November 2005
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| Previous Committee Report | (a) HC 34-ix (2005-06), para 1 (9 November 2005) and see (25053) HC 42-iv (2003-04), para 6 (7 January 2004); HC 42-ix (2003-04), para 17 (4 February 2004); HC 42-xxxvi (2003-04), para 9 (10 November 2004); HC 38-iii (2004-05), para 8 (12 January 2005) and HC 34-ii (2005-06), para 7 (13 July 2005)
(b) none
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| To be discussed in Council | 1-2 December 2005
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) cleared; (b) for debate in European Standing Committee B. Decision to recommend (a) for debate, reported on 9 November 2005, rescinded
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Background
1.1 This proposal seeks to replace the traditional arrangements
for mutual legal assistance in the gathering of evidence by a
new procedure (a "European Evidence Warrant") by which
Member States would recognise and enforce, without any further
internal review, orders such as search warrants issued in other
Member States.
1.2 We considered the then current version of the
proposal (document (a)) on 9 November when we recommended it for
debate in European Standing Committee (see headnote). A revised
version of the proposal (document (b)) has now been produced,
and we make the following report on the revised text for the purposes
of the debate which we understand will now take place on 1 December.
We confine ourselves to those aspects of the revised proposal
where a material change has been made, and for the rest we maintain
the comments we have made in our previous reports, notably that
of 9 November 2005.
The revised draft Framework Decision
1.3 Document (b) represents the outcome of a meeting
on 3 and 4 November of the Council working party on cooperation
in criminal matters and of a meeting of Justice and Home Affairs
Counsellors on 9 November. It consists of a paper setting out
a discussion of outstanding questions and has annexed to it a
revised text of the Framework Decision. The paper explains that
the outstanding questions will be referred to the Article 36 Committee.[1]
The paper indicates that it remains the Presidency's intention
to reach a general approach on the text (apart from the recitals
and the form annexed to the Framework Decision) at the Justice
and Home Affairs Council on 1 and 2 December.
1.4 The outstanding questions identified in the paper
correspond, to a considerable extent, to the issues which we and
the previous Committee have raised in our scrutiny of this proposal.
The paper accordingly identifies the question of who is to be
competent to issue a European Evidence Warrant (EEW), the application
of "coercive measures", grounds for refusal to execute
a warrant, and legal remedies against the issue and execution
of a warrant as outstanding questions. The paper also refers to
the question of whether the warrant is to be translated into the
language of the executing State and the treatment of computer
data.
— WHO SHOULD ISSUE A EUROPEAN EVIDENCE WARRANT?
1.5 In our previous report of 9 November we noted
that other delegations had shared the UK's view that it was important
clearly to identify the issuing authority in the Framework Decision
and that the question should not be left to designations by Member
States. We did not think that the entire range of authorities
which were presently regarded as competent to make requests for
mutual legal assistance (which includes police authorities) should
be able to issue warrants. In our view, a request for mutual assistance
was an entirely different matter from requiring the near-automatic
enforcement of an order made by a foreign authority and we considered
that the principle of mutual recognition in judicial matters should
be confined to orders made by judges and courts or other bodies
having recognisably judicial functions.
1.6 The paper notes that there is a difference of
opinion between Member States as to which authorities should be
competent to issue warrants, with some Member States taking the
view that this is a matter for the issuing Member State to determine
under its national law. These Member States refer to the fact
that, under existing arrangements for mutual legal assistance,
it is for the requesting Member State to define the authorities
who are to be competent to make a request. The paper refers to
the views of other Member States in these terms:
"Others have taken the view that a different
approach is required in mutual recognition given that the executing
State is required to act without further formality on the basis
of the decision taken in the issuing State. They believe that
in order to accept such an obligation, the executing State must
have reassurance that the order has come from a court or judge.
They are also concerned at the possibility that a judge in one
Member State could be expected to act on an order made by e.g.
a police officer in another, or that a police officer could decide
not to recognise an EEW sent by a judge in another Member State,
or to postpone its recognition or execution."
1.7 The paper notes that the Presidency has proposed
a compromise package to bring together these differing opinions.
This consists of a revised definition of "issuing authority"
in Article 2(c), with the possibility of a "validation procedure"
under Article 11(2) and (3) for requests from an authority which
was not a judge, court, investigating magistrate or public prosecutor
and of additional grounds for refusing or postponing execution
under Articles 15 and 18 respectively.
1.8 As before, "issuing authority" is defined
generically as a "judge, court, an investigating magistrate,
[or] a public prosecutor". In addition, an "issuing
authority" is defined as "any other judicial authority
as defined by the issuing State and, in the specific case, acting
in their capacity as an investigating authority in criminal proceedings
with competence to order the obtaining of evidence in cross-border
cases in accordance with national law". The definition also
includes "judicial authorities from whom such competences
have been delegated" but this inclusion is opposed by a substantial
number of Member States. However, the revised definition would
no longer refer to police, customs or frontier authorities acting
as preliminary investigating authorities, a definition which we
criticised in our previous report.
1.9 The "validation procedure" is provided
for in a revised Article 11(2) and (3). Under Article 11(2), an
executing Member State may decide that no search or seizure is
to take place if the issuing authority is not a judge, court,
investigating magistrate or public prosecutor and the EEW has
not been validated in the issuing State by such an authority.
Under Article 11(3), a Member State may make a declaration that
it will require such validation in all cases where the issuing
authority is not a judge, court, investigating magistrate or public
prosecutor and where the measures necessary to execute the EEW
would have to be ordered by a judge, court, investigating magistrate
or public prosecutor under the law of the executing State in a
similar domestic case. (The revised text notes that a number of
Member States wished the validation process to apply to all requests,
not simply those which involved coercive measures).
1.10 A final element of the Presidency proposal is
the addition of further grounds under Article 15 for refusing
to execute a warrant. A new Article 15(2)(aaa) provides that recognition
or enforcement may be refused if, in a case falling within Article
16(3),[2] a search or seizure
would not be available in a similar domestic case. A new Article
15(2a) provides that a decision to refuse to execute a warrant
which has not been validated in the issuing State may be taken
by any judicial authority competent under the law of the executing
State.[3]
— APPLICATION OF "COERCIVE MEASURES"
1.11 The paper on outstanding questions notes that
there is no common understanding of the term "coercive measures",
and that there is also a division of views between Member States,
with some wishing to focus on more limited types of coercive measure
such as search and seizure, and those who wished a "broad
application of coercive measures throughout the text". The
revised text proposes, in a new Article 2(dd), a broad definition
of the term "search and seizure" so as to include measures
under criminal procedure as a result of which a person may be
required to provide objects, documents or data on pain of sanctions.
This would be coupled with a new Article 11(1a) which makes it
clear, as was agreed at the October JHA Council, that in every
case it is for the executing State to decide what measures need
to be taken within its own territory to enforce a warrant.
1.12 Under Article 16(1b) Member States would, however,
be obliged to provide that any measures which "would be available
in a similar domestic case" should also be available for
the purposes of executing a warrant. Member States would also
be obliged to provide for "search and seizure" in the
execution of a warrant relating to any of the offences listed
in Article 16(2).[4]
— GROUNDS FOR REFUSING TO EXECUTE A WARRANT
1.13 The paper notes that there remains a difference
of opinion between Member States on the extent to which a "territoriality
principle" should apply as a ground for refusing to execute
a warrant. (The "territoriality principle" was put forward
as a means of meeting the objection that an executing State should
not be obliged to enforce a warrant in respect of conduct which
was lawful within its own territory.) The paper notes that the
text of Article 15(2)(c) continues to provide that a Member State
may refuse to execute a warrant if it relates to conduct which
under the law of the executing State is committed wholly or partly
within its territory or in a place equivalent to its territory,
or if it relates to conduct outside the territory of the issuing
State and the law of the executing State does not permit legal
proceedings in respect of such offences where they are committed
outside that State's territory.[5]
It is to inferred from this that the views of some Member States
which wished to restrict the "territoriality principle"
to cases where the offence has been committed entirely, or for
an essential part, in the territory of the executing State have
not been taken up. In our previous report, we drew attention to
the analogous "territoriality principle" in Article
4(7) of the European Arrest Warrant,[6]
and considered that the "territoriality principle" should
not be limited in the way suggested by these Member States.
1.14 The paper also notes that a number of Member
States do not agree with the inclusion (in Article 15(2)(e)) of
grounds for refusing to execute a warrant where to do so would
harm essential national security interests, jeopardise the source
of information, or involve the use of classified information relating
to specific intelligence activities. These Member States argue
that such grounds are not included in current mutual legal assistance
agreements, but the paper notes that these agreements "offer
far broader rights" to refuse assistance based on considerations
of "ordre public, sovereignty, security or other essential
interests".
— PROVISION OF LEGAL REMEDIES
1.15 The paper states that it is agreed that the
decision to recognise and execute the warrant are matters to be
challenged in the executing State, but that it is also agreed
(except by one Member State) that a challenge to the substantive
reasons for issuing the warrant may only be brought in the issuing
State. To deal with the concern of some Member States that the
text should provide for remedies in the issuing State, and to
provide reassurance that all Member States have legal remedies
in their domestic proceedings, a recital is proposed which would
provide as follows:
"Each Member State has in its law legal remedies
available against the substantive reasons for issuing national
orders for obtaining evidence, including whether the order is
necessary and proportionate, although those remedies may differ
between Member States and may apply at different stages of proceedings."
1.16 The paper notes that this does not address the
concern of the Member State which considers it necessary to provide
for an effective legal remedy in the executing State against the
decision to issue a warrant in order to allow that State to protect
its citizens, but it appears that no amendment is being proposed
to meet this concern.
— COMPUTER DATA
1.17 The paper notes that two main questions remain
outstanding. The first is whether to maintain the provisions of
Article 21 on jurisdiction over computer data held on an information
system in the territory of another Member State. It notes that
the majority of Member States consider that this provision should
be deleted, given the deadline in the Hague programme for adopting
the EEW Framework Decision, but that some Member States wish to
retain it.
1.18 The second question is whether, irrespective
of the outcome of negotiations on Article 21, the text should
or should not exclude execution of a warrant in relation to data
which is not physically present in the executing State but may
be lawfully accessible in that State. The Presidency notes that
the executing State is only under an obligation to execute a warrant
if this can be done by the means which must be made available
in domestic law under Article 11. It further notes that Article
7(1) does not contain any further obligation to execute a warrant,
but only determines the Member State to which an EEW may be transmitted
(i.e. a State where the data is "available"). To resolve
the difference of opinion between those States which wish to refer
to the place where the data is "available", and those
which wish to refer to the place where the data is "located",
the Presidency proposes a formula "located, or, in the case
of electronic data, lawfully and directly accessible" to
be used in Article 2(b) and Article 7(1).
The Government's view
1.19 In his Explanatory Memorandum of 22 November
2005, the Parliamentary Under-Secretary of State at the Home Office
(Mr Andy Burnham) describes the changes made in this most recent
version of the proposal and recalls that the UK Presidency will
seek to reach a general approach on the proposal at the Justice
and Home Affairs Council on 1-2 December.
1.20 The changes made are described by the Minister
as follows:
"(i) The definition of 'issuing authority'
in the second part of Article 2(c) has been revised. A definition
has been added at (dd) of 'search or seizure' as it applies in
this Framework Decision.
(ii) A requirement has been added in Article
2a to notify the Council Secretariat of the authorities competent
to issue and recognise or execute an EEW. This requirement also
extends to the designation of a central authority under Article
7(1a).
(iii) It has been proposed in Article 3(2) to
exclude retained communications data from the scope of the EEW,
although this has not been supported generally. Article 3(4) has
been sub-divided into two paragraphs to improve clarity. The text
also makes clear that the taking of statements will be subject
to relevant national rules.
(iv) Article 9 has been amended so that only
one EEW form will exist but it will be possible to indicate when
it relates to an earlier EEW or Freezing Order.
(v) Article 10(2) on the protection of personal
data has been deleted in the light of plans for a Commission proposal
to address the same issue as a horizontal measure.
(vi) The executing State's obligations in respect
of the availability and use of measures, including search or seizure,
to execute an EEW have been further detailed in Article 11. The
provisions on the validation of EEWs have also been revised to
allow a Member State to make a declaration requiring validation
in all cases where the issuing authority is not one of those listed
in the first part of Article 2(c) and the measures required would,
in a similar domestic case, by ordered by one of the authorities
listed there.
(vii) A sentence has been added to Article 13
on formalities to confirm that this Article 'shall not create
an obligation to take coercive measures'.
(viii) Article 14 on obligations to inform has
become new Article 18bis. A new sub-paragraph has been proposed
at (2)(e) to cover circumstances where it is impossible to execute
an EEW by the measures available under the law of the executing
State, although this has not been supported generally.
(ix) Further grounds for refusal have been added
at (aa) and (aaa) of Article 15 addressing circumstances, as provided
for in Article 16(3), in which dual criminality does not exist
or in which search and seizure would not be available in a similar
domestic case. Grounds of refusal have also been added at (bb)
in respect of an EEW which has not been validated and at (f) where
the issuing authority fails to complete or correct an EEW within
a deadline set by the executing State. The authorities competent
to refuse an EEW are now set out in Article 15(2a) and include
other judicial authorities where an EEW issued by such authorities
has not been subject to validation.
(x) Article 17 has been revised to state more
clearly the obligations to recognise or execute an EEW and transfer
the evidence to the issuing State within certain timescales. Paragraph
(3bis) addresses where it is not practical to meet the deadline
in a specific case. The executing authority is now required in
paragraph (5) to indicate whether it requires the return of evidence
supplied and this will be addressed in the form.
(xi) A new ground for postponement has been
added at Article 18(1)(b) dealing with the need for validation
of an EEW. New paragraph (3) addresses the authorities competent
to postpone the recognition or execution of an EEW and corresponds
to Article 15(2a).
(xii) Article 19 on legal remedies has been
revised so that it encompasses a challenge against the recognition
and execution of any EEW, although a Member State retains discretion
to restrict this to EEWs involving coercive measures. An issuing
State is now required by paragraph (2) to make available the legal
remedies which would apply in a comparable domestic case.
(xiii) Article 23 on the relationship to other
legal instruments has been simplified to reflect that the EEW
will co-exist with existing mutual legal assistance instruments.
Paragraphs (2a) and (2b) now set out the circumstances in which
the EEW or mutual legal assistance should be used to obtain the
evidence sought".
1.21 The Minister notes that legislation would be
required to implement the Framework Decision in the UK. The Minister
adds that current law and practice in relation to mutual legal
assistance "embody specific conditions and various discretionary
powers that may lead to co-operation being refused" and that
current grounds for refusal include "prejudice to domestic
investigations or proceedings, national security or other essential
interests, absence of dual criminality in cases involving the
use of coercive powers and inconsistency with national law".
The Minister also notes that under current law, mutual legal assistance
"may also take a considerable period of time because there
is no time limit for executing requests".
1.22 The Minister makes the following statement on
the policy implications of the proposal:
"There has been significant progress during
the UK Presidency in resolving the outstanding issues on the Framework
Decision and improving existing provisions in the text. The Government
believes that the current draft provides an effective and practical
mutual recognition instrument to speed up and improve the transmission
of evidence between Member States, with appropriate safeguards
to protect the rights of interested parties. When implemented,
the Framework Decision will be an important new tool to criminal
justice practitioners dealing with cross-border crime and terrorism.
"The Government welcomes the addition of Article
11(1a) and the revision to Article 13 which make clear that the
executing State is responsible in every case for choosing the
measures under its national law which may be used to execute the
EEW. The executing authority will apply those measures which would
be available to it in a similar domestic case but, under Article
11(1b), this must include powers of search or seizure where the
EEW relates to offences which are not subject to dual criminality
under Article 16(2).
"The authorities competent to issue an EEW may
now include other judicial authorities with competence under national
law to order evidence from overseas. To address the views of some
Member States, Article 11(2) of the Framework Decision allows
the executing authority, in a specific case, to decide that it
will not execute a warrant using search or seizure unless it has
been validated in the issuing State by a judge, court, investigating
magistrate or public prosecutor. A new paragraph (3) has been
added to provide that a Member State may make a notification requiring
such validation in all cases where the issuing authority is not
a judge, court, investigating magistrate or public prosecutor
and where the measures necessary to execute the EEW would have
to be ordered by one of those authorities in a similar domestic
case.
"The additional grounds for refusal in Article
15 are also helpful, for example in addressing cases under Article
16(3) where search or seizure would not be available domestically.
A specific ground for refusal also now exists if the issuing State
fails to obtain validation of an EEW in appropriate cases by a
judge, court, investigating magistrate or public prosecutor in
the issuing State."
Conclusion
1.23 We note that a number of Member States appear
to share the concern we expressed that the orders of a foreign
police force would have to be given effect in the national territory.
We note the proposal for a validation procedure, but this
remains one which is carried out in the issuing State, whereas
the more obvious and direct safeguard would have been to require
judicial validation in the State in which enforcement is sought.
1.24 As we have said before, the proposal appears
to us to place too high a value on the supposed merits of mutual
recognition and too little on the rights of persons in this country
not to be subjected to investigations ordered by foreign authorities
in respect of conduct which is not criminal in this country. The
revised text does not address this central concern.
1.25 The recommendation in our previous report
was for document (a) to be debated in European Standing Committee
B. However, as this document has now been superseded by the most
recent version attached to document (b), we think it right to
withdraw that recommendation and replace it with a recommendation
that document (a) should be cleared, as having been superseded,
and for document (b) to be debated in European Standing Committee
B.
1 A committee of senior officials of the Member States
appointed under Article 36 EU to assist the Council in its work.
Back
2
These being the cases where dual criminality may still be required
as a condition of giving effect to a warrant. Back
3
The reasoning of this provision appears to be that if a warrant
has been issued by an authority which is not a judge, court, investigating
magistrate or public prosecutor, then the decision not to execute
the warrant may similarly be taken by an authority in the executing
State which is not a judge, court, investigating magistrate or
public prosecutor. Back
4
This is the list of concepts, including 'swindling', 'racism and
xenophobia' and 'sabotage', in respect of which a warrant must
be executed irrespective of whether the conduct is criminal in
that State. Back
5
This would cover the case where e.g. a broadcast trivialising
war crimes is recorded in this country, and is subsequently broadcast
in a country such as Germany or Austria where the expression of
such views may be a criminal offence. In these circumstances,
it would seem that an EAW for production of evidence relating
to the recording here would not be enforced. The same would seem
to apply where the programme is recorded in a third State (but
involving persons resident in the UK) and subsequently broadcast
in Germany or Austria. Back
6
And see s.137 and 138 Extradition Act 2003. Back
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