6 Taking previous convictions into account
in new criminal proceedings
| (a)
(26453)
7645/05
COM(05) 91
(b)
(27615)
10676/06
—
|
Draft Council Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings
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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| Deposited in Parliament | (b) 26 June 2006
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| Department | Home Office |
| Basis of consideration | (b) EM of 10 July 2006
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| Previous Committee Report | (a) HC 34-ii (2005-06), para 6 (13 July 2005)
(b) None
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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 | (a) Cleared
(b) Not cleared; further information requested
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Background
6.1 In its explanatory memorandum to the original proposal (document
(a)) the Commission suggested that little account was in fact
taken of criminal convictions in other Member States and argued
that "equivalent effects cannot be attached to a decision
taken in another Member State" and that there was a need
for legislative action at EU level.
6.2 When we considered the original proposal on 13
July 2005, we noted that the Commission had not explained the
basis for its assertion that equivalent effects could not be attached
to foreign convictions, and did not explain that this question
was already dealt with by Article 56 of the Convention of 28 May
1970 on the International Validity of Criminal Judgments.[18]
We therefore asked the then Minister if the proposal met any real
practical need which could not be dealt with by a provision similar
to the one made in Article 56 of the 1970 Council of Europe Convention.
It seemed to us that in seeking to exact equivalence in all circumstances
between "convictions" in the Member States, the proposal
was disproportionate and likely to work unfairly.
6.3 In this regard, we drew attention to the wide
definition of "conviction" used in the proposal, noting
that it would include spent convictions and we asked the then
Minister if the definition would include fixed penalty notices,
a conditional discharge or binding over or their equivalents in
other Member States. We also noted that a foreign conviction could
not be disregarded on the grounds that the same conduct did not
constitute an offence under domestic law, and that this rule would
apply to a list of types of conduct substantially the same as
that which appears in Article 2(2) of the European Arrest Warrant.[19]
Accordingly, a foreign conviction for "computer-related crime",
"racism and xenophobia", "swindling", "sabotage",
"conduct which infringes road traffic regulations",
"smuggling of goods" and infringement of intellectual
property rights would be included. We asked the then Minister
to confirm that, by reason of the proposal, such a foreign conviction
for a road traffic offence (which appeared to us to include on-the-spot
fines) must attract penalty points and ultimate disqualification
from driving in this country.
6.4 We noted that Article 5(2) permitted a Member
State to disregard a conviction where the consequence of being
convicted in another Member State in new criminal proceedings
on different facts would be that the person concerned would be
"treated more unfavourably than if the conviction had been
handed down by a national court". Although this provision
was described by the Commission as a "safety net", we
noted that it was not mandatory and was in any event too narrow
to deal with the case of a spent conviction being taken into account
in a foreign jurisdiction to increase a penalty, when it would
not have been taken into account within the United Kingdom. We
considered that the then Minister was right to be concerned about
the potential for unfairness for UK nationals arising from the
treatment in foreign jurisdictions of spent convictions and asked
for an account of how this problem was to be addressed.
The revised draft Framework Decision
6.5 The revised draft Framework Decision (document
(b)) is a Presidency text reflecting the discussion of the proposal
in the Council working group on co-operation in criminal matters.
It is apparent that the original proposal has been substantially
amended.
6.6 Article 1 (subject matter) has not been significantly
amended. As before, it provides that the purpose of the measure
is to determine the conditions under which a Member State takes
account of a criminal conviction in another Member State in the
course of criminal proceedings against the same person but in
respect of different facts.
6.7 The definition of "conviction" in Article
2 has been considerably restricted, so that only a final decision
of a criminal court establishing guilt in respect of a criminal
offence is within the scope of the measure. It appears that a
large number of Member States objected to the inclusion of decisions
by administrative authorities, but that the Commission still considers
it desirable to cover administrative decisions in respect of road
traffic offences.
6.8 As before, Article 3 sets out the obligation
on Member States to take account of foreign convictions, but there
have been a number of amendments. The new Article 3(1) requires
Member States to "ensure that their national judicial authorities
… take into account previous convictions handed down against
the same person for different facts". (The previous version
did not refer specifically to judicial authorities). Such taking
into account is to be done in accordance with national law, but
the judicial authorities are to be required to attach to such
foreign convictions "the same legal effects to [sic]
as those which they attach to previous national convictions".
(The previous version provided only for equivalent legal effects
to be given, and this in accordance with rules determined by the
Member States). Article 3(2) (which provided for such effects
to be given at the pre-trial stage, at trial and in relation to
sentencing) has remained unchanged.
6.9 Articles 4 and 5, which provided for mandatory
and discretionary grounds for not taking a foreign conviction
into account, have been deleted. Article 6 (which made provision
for the recording of foreign convictions in the national register)
has also been deleted.
The Government's view
6.10 In her Explanatory Memorandum of 10 July 2006
the Parliamentary Under-Secretary of State at the Home Office
(Joan Ryan) explains that the purpose of the proposal is to ensure
that Member States are able to take convictions recorded in other
Member States into account during new criminal proceedings in
their own jurisdictions. The Minister states that that "this
broadly reflects current provisions in all UK jurisdictions which
allow courts the discretion to take into account foreign convictions".
6.11 The Minister further explains that there have
been a number of developments to the proposal resulting from recent
negotiations and which address the concerns the Government had
previously outlined. The Minister notes that the reference to
administrative offences in Article 2 has now been deleted and
comments that the Government's initial view is that the new definition
would exclude fixed penalty notices for road traffic offences
from the scope of the Framework Decision.
6.12 On Article 4, the Minister comments that the
chief priority for the Government was the deletion of this provision
"which would have impinged upon the courts' discretion to
take foreign conviction into account by providing mandatory grounds
for not taking convictions into account". The Minister adds
that the deletion of Article 4 means that there will be no need
to amend existing legislation.
6.13 The Minister points out that Article 5 has also
been deleted, referring to this as "an obscurely drafted
article" which provided permissive grounds for not taking
foreign convictions into account, and which "seemed unlikely
to have much practical effect". The Minister also explains
that Article 6 has been deleted, because its subject matter (the
recording of convictions originating in other Member States) will
be addressed in the proposed Framework Decision on the organisation
and content of the exchange of information extracted from criminal
records.[20]
6.14 The Minister explains that the Government is
content that the proposal complies with the principle of subsidiarity
because it "will allow Member States to take convictions
recorded in other Member States into account during new criminal
proceedings in their own jurisdictions in accordance with their
national practices".
Conclusion
6.15 We welcome the fact that the proposal will
no longer apply to administrative offences and that it will be
limited to final decisions of a criminal court establishing guilt
in respect of an offence.
6.16 We also welcome the deletion of Articles
4 and 5, with their prescription of mandatory and permissive grounds
for not taking a foreign conviction into account, and agree with
the Minister that these provisions would have impinged on the
discretion of the courts.
6.17 Nevertheless, it is far from clear to us
that the proposal, as it is now drafted, leaves it to the discretion
of the national court to take a foreign conviction into account,
or that it "broadly corresponds" to the current provisions
in the jurisdictions of the UK. In this regard, we note first
that the new version of Article 3 requires (and does not merely
permit) Member States to ensure that their judicial authorities
take into account previous convictions in other Member States.
The only qualification is that the taking into account is to be
done in accordance with national law. This appears to us to leave
no discretion to the court not to take a foreign conviction into
account. We ask the Minister if she agrees that Article 3 is not
consistent with the provisions of section 143(5) Criminal Justice
Act 2003 which permit, but do not require, a court to treat a
conviction by a court outside the United Kingdom as an aggravating
factor "in any case where the court considers it appropriate
to do so".
6.18 Secondly, the provision requires the judicial
authorities to attach to such foreign convictions the same legal
effects as those which they attach to previous national convictions.
This obligation is expressed in absolute terms and is not qualified
by a reference to national law. It therefore seems that, whatever
the circumstances of the foreign conviction (e.g. whether it was
given in the absence of the defendant, or for a crime which is
unknown to the court in question), it must be given 'the same
legal effects' as a previous national conviction. The previous
version required only equivalent legal effects to be given, and
we ask the Minister to explain what is intended by the reference
in the new version to the 'same legal effects'.
6.19 We also ask the Minister how the provisions
of Article 3 are intended to operate in a case where the foreign
conviction relates to conduct which is not criminal in a relevant
part of the United Kingdom. In such a case, it is not clear to
us what is meant by "previous national convictions"
in Article 3(1). On its face, the provision seems to provide for
the foreign conviction (for conduct which is lawful here) to be
used to increase the penalty to be imposed in this country for
a subsequent conviction in respect of some other conduct. This
would seem to lead to a heavier punishment being imposed because
of previous lawful conduct. We ask the Minister to explain whether
such a provision would be consistent with Article 7 of the ECHR.
6.20 The previous Minister was concerned about
the potential for unfairness for UK nationals arising from the
treatment in foreign jurisdictions of spent convictions. We ask
the Minister to explain if this problem has been resolved in the
new version and, if so, how this has been achieved.
6.21 We clear document (a) on the grounds that
it has been superseded, but we shall hold the current version
(document (b)) under scrutiny pending the Minister's reply.
18 European Treaty Series No.70. The Convention has
been ratified by Austria, Cyprus, Estonia, Latvia, Lithuania,
the Netherlands, Spain and Sweden. Article 56 provides "Each
Contracting State shall legislate as it deems appropriate to enable
its courts when rendering a judgment to take into consideration
any previous European criminal judgment rendered for another offence
after a hearing of the accused with a view to attaching to this
judgment all or some of the effect which its law attaches to judgments
rendered in its territory. It shall determine the conditions in
which this judgment is taken into consideration." Back
19
OJ No. L 190, 18.07.2002, p.1. Back
20
(27195): See HC 34-xxxiii (2005-06), para 4 (28 June 2006). Back
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