Select Committee on European Scrutiny Eleventh Report


1 European Evidence Warrant


(a)

(26732)

11288/05



(b)

(27001)

14246/05


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

Legal baseArticles 31 and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament(b) 16 November 2005
DepartmentHome Office
Basis of consideration(b) EM of 22 November 2005
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

To be discussed in Council1-2 December 2005
Committee's assessmentLegally and politically important
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(b) for debate in European Standing Committee B. Decision to recommend (a) for debate, reported on 9 November 2005, rescinded

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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