8 Exchange of criminal record information
| (27195)
5463/06
COM(05) 690
| Draft Council Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States
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| Legal base | Articles 31 and 34(2)(b) EU; consultation; unanimity
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| Document originated | 22 December 2005
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| Deposited in Parliament | 18 January 2006
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| Department | Home Office |
| Basis of consideration | EM of 27 March 2006
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| Previous Committee Report | None; but see HC 38-xv (2004-05), para 19 (6 April 2005) and HC 34-i (2005-06), para 27 (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
8.1 The 1959 Council of Europe Convention on Mutual Assistance
in Criminal Matters[24]
provides for the exchange of criminal record information. Article
13 of the 1959 Convention provides for the making of specific
requests for information, whilst Article 22 requires each Contracting
Party to inform any other Party of all criminal convictions and
subsequent measures in respect of nationals of the latter Party
which are entered in its judicial records.
8.2 The previous Committee considered a draft Council
Decision to improve the operation of the 1959 Convention between
EU Member States, pending the adoption of a computerised exchange
system, and cleared it from scrutiny on 6 April 2005.[25]
8.3 We considered a Commission White Paper on the
exchange of information on convictions and the effect of such
convictions on 4 July 2005. The White Paper had been produced
in response to the invitation to the Commission by the Justice
and Home Affairs Council on 19 July 2004 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 noted that the White Paper suggested a "hybrid"
solution which would not be confined to networking national criminal
records offices, but would not go so far as proposing the setting
up of a European central criminal records office. It was further
proposed to implement the proposal in two stages. The first would
involve the creation of a "European index of offenders"
consisting of personal data identifying the individual and the
Member State in which he was convicted, but would not contain
details of the offence or the sentence. Such details would be
obtained by direct approach to the Member State concerned. The
second stage would involve the devising of a "standard European
format" for information relating to the form and content
of the decision and the acts which gave rise to it, so as to permit
such information to be transmitted and readily translated and
understood.
The draft Council Framework Decision
8.4 The proposed draft Framework Decision is described
by the Commission as responding to the expectations of the Justice
and Home Affairs Council on 14 April 2005. At that meeting, the
Member States indicated that they wished to retain the current
principle whereby it was for each Member State to centralise information
on convictions in respect of its own nationals. In relation to
nationals of other Member States and of third countries convicted
within the European Union, Member States were in favour of creating
an index of convicted persons confined to such information as
was necessary to identify the Member State of conviction.
8.5 The Commission describes its proposal as being
concerned to ensure that the Member State of the convicted person's
nationality is enabled to respond to requests made to it for criminal
record information on its own nationals. The proposal is also
intended to lay down the framework for a computerised information
exchange system, based on a "standardised European format"
which would allow the information to be exchanged in a "uniform,
electronic and easily machine-translatable form".
8.6 Article 1 sets out the purpose of the proposal,
which is to define the ways in which a convicting Member State
may transmit information relating to a conviction to the Member
State of the convicted person's nationality, to define the obligations
of the Member State of nationality to record the information and
respond to requests for information from criminal records and
to provide a framework for a computerised information exchange
system.
8.7 Article 2 defines a "conviction" as
any final decision of a criminal court, or of an administrative
authority whose decision can be appealed against before a criminal
court, which establishes guilt for a criminal offence or for an
"act punishable in accordance with national law as an offence
against national law". "Criminal record" is defined
as the national register or registered recording convictions in
accordance with national law. Both definitions are in the same
terms as those used in the proposed Framework Decision on taking
account of convictions in the Member States in the course of new
criminal proceedings.[26]
The Commission describes the definitions as being consistent with
the scope of traditional arrangements for mutual legal assistance
and includes a reference to administrative and criminal decisions
with a view to covering certain road traffic offences where knowledge
of criminal records may be particularly useful.
8.8 Article 4 sets out the obligations of the convicting
Member State. The Article requires Member States to ensure that
wherever a national of another Member State is convicted, his
nationality is also transmitted to the national criminal record,
and to inform the central authorities of the Member State of nationality
of the relevant conviction. Where the convicted person has dual
nationality, the information is to be transmitted to both States
concerned.
8.9 Article 5 deals with the obligations of the Member
State of nationality of the convicted person. These are to maintain
the information so to reflect the information held in the convicting
Member State and to ensure that any updated information does not
lead to less favourable proceedings in national proceedings than
would have been the case if the person had been convicted by a
national court.
8.10 Article 6 provides for requests for information
on convictions, by central authorities of Member States or by
individuals for information on their own criminal record, provided
the individual is a national of, or resident in, either the requesting
or the requested State. Article 7 requires the requested State
to provide information on national convictions, on convictions
in other Member States and communicated before or after the adoption
of the Framework Decision, and on convictions in third States.
Where information is requested from a Member State for purposes
other than criminal proceedings, the requested Member State is
to deal with such a request in accordance with its national law.
Where a third country requests information on convictions from
the Member State of nationality of the convicted person under
Article 13 of the 1959 European Convention on Mutual Assistance
in Criminal Matters, the Member State is to comply with the request
in accordance with its national law. Article 8 imposes a deadline
of 10 working days for sending a reply and prescribes the use
of a form which is annexed to the Framework Decision.
8.11 Article 9(1) provides that personal data provided
for the purposes of criminal proceedings may be used only for
the purposes of those proceedings. Article 9(2) similarly provides
that personal data provided for purposes other than that of criminal
proceedings may be used only for the purposes of those particular
proceedings. By way of exception to these principles, Article
9(3) provides that personal data may be used by the requesting
Member State "for preventing an immediate and serious threat
to public security". Article 9(4) requires Member States
to ensure that personal data transmitted to a third State under
Article 7(3) are "subject to the same usage restrictions
as those applicable in Member States under Articles 7(1), (2)
and (3)". [27]
Article 9(5) also provides that the above restrictions do not
apply to personal data obtained by a Member State under the Framework
Decision and originating from that Member State.[28]
8.12 Articles 11 to 13 provide for the introduction
and use of a standardised format for the electronic transmission
of criminal record information. The format is to include information
on the convicted person, on the nature of the conviction, on the
facts giving rise to the conviction and on the sentence and other
measures imposed. Article 11(3) provides that the format and "any
other ways of organising and facilitating exchanges of information
on convictions" shall be established and adapted in accordance
with a procedure provided for in Article 13. The "other ways"
referred to include "defining all ways in which understanding
and automatically translating transmitted information may be made
easier", "defining the way in which information may
be exchanged electronically" and alterations to the form
annexed to the Framework Decision.
8.13 Article 12 makes provision for a Committee to
be chaired by the Commission. The Committee may make recommendations
to its members on collection and storage standards for information
contained in national criminal records, and may also adopt measures
under the procedure determined by Article 13.
8.14 Article 13 provides a type of 'comitology'[29]
procedure for the adoption of measures. Under this procedure,
it would be for the Commission to prepare a draft of the measure,
with the Committee required to deliver an opinion within a prescribed
time and adopted by qualified majority.[30]
If the opinion is accordance with the proposed measure, it may
be adopted by the Commission. If not, the proposal would be submitted
to the Council and the European Parliament informed, with the
Council adopting the measure by qualified majority voting within
three months. Where the Council opposes the proposal, the Commission
would be required to re-examine it, and re-submit the proposal
in its original or amended form or make a legislative proposal.
If the Council neither approves nor opposes the proposal within
the period of three months, the proposal would be adopted by the
Commission.
The Government's view
8.15 In his Explanatory Memorandum of 27 March 2006
the Parliamentary Under-Secretary of State at the Home Office
(Andy Burnham) states that the measure is unlikely to have any
significant impact on the law of the UK since it is aimed at improving
practical procedures for exchanging criminal record information,
which the UK can already do under administrative arrangements
between the UK and other Member States. The Minister describes
the general UK position on the exchange of criminal record information
as "positive", but that the major issue for the UK will
be in relation to the number of central authorities involved in
the exchange of information. The Minister notes that there are
differences between English and Scottish law which will have to
addressed at a practical level, and that the Government is considering
the possibility of there being a second central authority. The
Minister adds, however, that at the meeting of the Council working
group on 2 March "there was no support from other Member
States for the provision of more than one central authority".
8.16 The Minister informs us that the Government
is still considering the definition of "convictions"
in particular in relation to administrative decisions in Article
2 and will need to ensure consistency with the draft Framework
Decision on taking account of convictions. The Minister also informs
us that the Commission has appointed Unisys (Belgium) to begin
a feasibility study into the basis for the electronic exchange
of information envisaged under Article 11. The Minister adds that
the Government supports the fixing of a timescale under the Framework
Decision to agree a format for the exchange of information and
for implementation and informs us that members of a technical
team from Unisys will visit the UK at the end of this month.
8.17 The Minister notes that decisions will be needed
on the extent and form of information to be exchanged and stored,
but that the UK will propose the retention of only that information
which would fall within the current or future format of criminal
records information held on the Police National Computer.
Conclusion
8.18 We note that the proposal reflects the views
expressed in the Justice and Home Affairs Council of April 2005
that a system for the electronic exchange of criminal record information
should be devised based on the holding of information by the State
of nationality.
8.19 We have a number of questions of detail.
First, we ask the Minister if he will confirm that the provisions
of Article 9 restricting the transfer of data to third countries
apply only to the re-transmission of data received from another
Member States and do not apply to data which are processed within
only one Member State. Secondly, we ask the Minister to explain
the purpose of Article 9(5), in particular the reference to data
originating in a Member State being obtained by that Member State
under the Framework Decision.
8.20 Thirdly, we note with concern the apparent
resistance of other Member States to the need for the United Kingdom
to have more than one central authority to reflect the fact that,
alone of the Member States, the United Kingdom is not a unitary
state. We ask the Minister if his concerns relate to Northern
Ireland as well as to Scotland and if he will make the UK's participation
in this measure conditional on agreement to a Member State being
permitted the number of central authorities appropriate to its
own circumstances.
8.21 Fourthly, we note with concern the extensive
delegation of power to the Commission to determine the format
and other ways of organising and facilitating the exchange of
information, and ask the Minister if he is content with the scope
and degree of delegation under these provisions, in particular
with the abandonment of requirement for unanimity. We also ask
the Minister for his views on the inclusion of a reference to
qualified majority voting under Article 205(2) EC in a Framework
Decision adopted by unanimity under the EU Treaty.
8.22 Finally, we note that the Minister intends
to consult the Criminal Records Bureau, the Association of Chief
Police Officers, the Scottish Criminal Record Office and the Police
Service of Northern Ireland, but that no mention is made of the
Information Commissioner. We ask if the Minister intends to consult
the Information Commissioner and, if so, if the Minister will
inform us of his views.
8.23 We shall hold the document under scrutiny
pending the Minister's reply.
24 European Treaty Series No.30. Back
25
The Council has now adopted the measure, see Council Decision
2005/876/JHA of 21 November 2005, OJ No L 322 of 9.12.2005, p.33. Back
26
See (26453) HC 34-ii (2005-06), para 6 (13 July 2005). We await
a reply from the Minister on a number of questions on this proposal,
notably as to whether the proposal meets any real practical need
and as to whether it is disproportionate. Back
27
As Article 7(1), (2) and (3) do not contain any usage restrictions,
it seems that the references should instead be to Articles 9(1),
(2) and (3). The restrictions seem only to apply to the case where
the data transmitted from another Member State is further transmitted
to a third State. Back
28
It is not clear how such a case could arise. Back
29
The procedure used under the EC Treaty (under Council Decision
1999/468/EC) when implementing powers are delegated to the Commission
by the Council. The Council Decision does not apply to matters
falling under the EU Treaty, such as the implementation of Framework
Decisions. Back
30
Article 13(1) refers to the majority laid down by Article 205(2)
EC, but without explaining how this provision can be made to apply
to a matter falling under the EU Treaty and outside the scope
of the EC Treaty. Back
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