11 Taking previous convictions into account
in new criminal proceedings
| (27615)
10676/06
| Draft Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings
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| Legal base | Articles 31 and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 25 October 2006
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| Previous Committee Report | HC 34-xxxvii (2005-06), para 18 (11 October 2006); HC 34-xxxv (2005-06), para 6 (12 July 2006) and see (26453) HC 34-ii (2005-06), para 6 (13 July 2005)
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| To be discussed in Council | Justice and Home Affairs Council 4-5 December 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
11.1 This proposal seeks to provide for equivalent effects to
be given to a conviction (i.e. a final decision of a criminal
court establishing guilt in respect of a criminal offence) in
another Member State as are given to domestic convictions.
11.2 In our previous consideration of the proposal we found it
far from clear that the proposal conferred only a discretion on
the national court to take the foreign conviction into account.
The terms of Article 3(1) of the proposal (which required Member
States to "ensure that their national judicial authorities
… take into account previous convictions handed down against
the same person for different facts") appeared to us to impose
an obligation.
11.3 We were also concerned as to how the provisions of Article
3 were intended to operate in a case where the foreign conviction
related to conduct which was not criminal in a relevant part of
the United Kingdom. It seemed to us that they provided for the
foreign conviction (for conduct which would be lawful here) to
be used to increase the penalty to be imposed in this country
for a subsequent conviction and thus to lead to a heavier punishment
being imposed. We asked the Minister to explain if such a provision
would be consistent with Article 7 of the European Convention
on Human Rights.[30]
11.4 In reply to these concerns, the Minister agreed with us that
the obligation to give the same, or equivalent legal effect to
foreign convictions under Article 3 of the proposal went further
than the provisions of the Criminal Justice Act 2003 which permitted,
but did not require, a court to treat a conviction by a court
outside the UK as an aggravating factor for sentencing purposes.
However, the Minister did not share our concern that the obligation
under Article 3 removed the court's discretion not to take a foreign
conviction into account. The Minister explained that the discretion
enjoyed by the court in determining the relevance of and weight
of a previous domestic conviction in a new criminal proceeding
would apply equally to foreign convictions. The Minister commented
that the obligation was qualified by a reference to national law
and that it had been agreed at Working Group level that the Article
would be redrafted to clarify this point.
11.5 The Minister referred to our concern over the taking into
account of foreign convictions for offences which are not criminal
in the relevant part of the United Kingdom, but stated that the
recitals to the proposal made clear that Member States were not
obliged to take into account previous convictions imposed in other
Member States where a national conviction would not have been
possible for the conduct for which the conviction had been imposed.
11.6 We welcomed the statement by the Minister that the proposal
was not intended to affect judicial discretion in determining
the relevance and weight to be attached to a previous foreign
conviction, and that it did not oblige courts in the United Kingdom
to take into account a previous foreign conviction for conduct
which does not constitute a crime in the relevant part of the
UK. However, we found neither point to be expressed sufficiently
clearly in the text which had been deposited. We considered it
important to make it clear in the operative part of the Framework
Decision that it did not affect judicial discretion not to take
a foreign conviction into account and that the principle of dual
criminality was still to be applied. In our view, it was not safe
either to rely on inferences to be drawn from the recitals, or
on the formula "in accordance with national law", since
this could be taken to refer only to questions of procedure rather
than substance.
11.7 We held the document under scrutiny pending further information
from the Minister on the re-drafting of the proposal.
The Minister's reply
11.8 The Parliamentary Under-Secretary of State at the Home Office
(Joan Ryan) replies to our concerns in her letter of 25 October
2006, and attaches to her letter a copy of the revised text of
the Framework Decision. In reply to our concerns about dual criminality
and the effect of the proposal on judicial discretion, the Minister
comments as follows:
"The Government is satisfied that the Framework Decision
does not limit the application of dual criminality. This is made
explicit in the recitals which state that there is no obligation
to take into account previous convictions in cases where a national
conviction would not have been possible regarding the act for
which the previous conviction had been imposed. It is not, from
our point of view, vital that the operative part of the Framework
Decision states that the application of dual criminality is not
limited, since the Framework Decision itself has no direct legal
effect. Since the recitals unambiguously state that dual criminality
applies, we will ensure that we implement the Framework Decision
in a way which reflects this.
"Regarding the concerns of the Committee on judicial
discretion; the latest draft of the Framework Decision states
that previous foreign convictions should be 'taken into account
to the extent previous national convictions are taken into account
and equivalent legal effects attached to them as to previous national
convictions, in accordance with national law'. We are satisfied
that giving the same legal effect to previous foreign convictions
as to previous domestic convictions will not curtail judicial
discretion. Just as courts have the discretion to determine whether
a previous domestic conviction is relevant in the context of current
criminal proceedings and, if so, how much weight to attach to
it, they will have the same discretion when taking into account
foreign convictions."
Conclusion
11.9 We are grateful for the Minister's letter and for sight
of the latest version of the proposal.
11.10 The amendments which have been made, in particular to
Article 3(1) which now makes clear that the obligation to take
a foreign conviction into account applies only to the extent that
a domestic conviction would have been taken into account, address
the concerns we had over judicial discretion.
11.11 In relation to dual criminality, we agree with the Minister
that the amended recitals do make it clear that there is no obligation
to take a foreign conviction into account if it concerns conduct
which is not criminal here. The matter is put beyond doubt, as
far as the law of the United Kingdom is concerned, by the statement
from the Minister that the proposal will be implemented so as
to preserve the principle of dual criminality.
11.12 In the light of the Minister's reply, we now clear the
document from scrutiny.
30 Article 7(1) ECHR provides that "No one shall
be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national
or international law at the time when it was committed. Nor shall
a heavier penalty be imposed than the one that was applicable
at the time the criminal offence was committed. "Article
7(2) contains an exception for war crimes and crimes against humanity
i.e. crimes under "the general principles of law recognised
by civilised nations". Back
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