Select Committee on European Scrutiny Thirty-Fifth Report


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

Legal baseArticles 31 and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament(b) 26 June 2006
DepartmentHome Office
Basis of consideration(b) EM of 10 July 2006
Previous Committee Report(a) HC 34-ii (2005-06), para 6 (13 July 2005)

(b) None

To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decision(a) Cleared

(b) Not cleared; further information requested

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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