Select Committee on European Scrutiny Thirty-Seventh Report


18 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

Legal baseArticles 31 and 34(2)(b) EU; consultation; unanimity
DepartmentHome Office
Basis of considerationMinister's letter of 19 September 2006
Previous Committee ReportHC 34-xxxv (2005-06), para 6 (12 July 2006) and see (26453) HC 34-ii (2005-06), para 6 (13 July 2005)
To be discussed in CouncilJustice and Home Affairs Council 5-6 October 2006
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

18.1 This proposal seeks to provide for equivalent effects to be given to a conviction in another Member State as are given to domestic convictions. When we considered an earlier version of this proposal on 13 July 2005, we noted that the issue of giving equivalent effects to a foreign conviction was already dealt with by Article 56 of the Convention of 28 May 1970 on the International Validity of Criminal Judgments[40] and therefore doubted whether the proposal met any real practical need.

18.2 When we considered a revised version of the proposal on 12 July we noted that its scope had been restricted so that it applied only to a "conviction" defined as a final decision of a criminal court establishing guilt in respect of a criminal offence and would not apply to administrative penalties.

18.3 We considered that it was 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. Although the taking into account was to be done in accordance with national law, this did not appear to leave any discretion to the national court not to take the foreign conviction into account and accordingly did not appear to be consistent with the practice within the United Kingdom, having regard to such provisions as section 143(5) Criminal Justice Act 2003, which permit, but do not require, a court in England and Wales 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".

18.4 We also noted that Article 3 required the judicial authorities of a Member State to attach to foreign convictions the same legal effects as those which they attach to previous national convictions, and that this obligation was expressed in absolute terms, not qualified by a reference to national law.[41] It therefore seemed to us 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 was unknown to the court in question), it had to be given "the same legal effects" as a previous national conviction. We therefore asked the Minister to explain what was intended by the reference in the new version to the "same legal effects".

18.5 We also asked the Minister to explain 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, since it seemed to us that they provided for the foreign conviction (for conduct which was 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.[42]

18.6 We also asked the Minister how the concerns of the previous Minister relating to the potential for unfairness arising from the treatment in foreign jurisdictions of spent UK convictions had been met in the current version.

The Minister's reply

18.7 In her letter of 19 September 2006 the Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) explains that the Government is content with the latest draft. However, the Minister also agrees with us that the obligation to give the same, or equivalent legal effect to foreign convictions under Article 3 of the proposal goes further than the provisions of the Criminal Justice Act 2003 which "permit but do not require a court to treat a conviction by a court outside the UK as an aggravating factor for sentencing purposes". The Minister adds that "our latest legal advice suggests that we will indeed have to amend legislation in order to comply with this obligation".

18.8 The Minister adds that the Government does not share our concern that the obligation under Article 3 removes the court's discretion not to take a foreign conviction into account. The Minister states that the purpose of the Framework Decision is to "ensure that foreign convictions be taken into account to the same extent as domestic convictions" and that "therefore, the discretion that the Courts have in determining the relevance of and weight of a previous conviction in a new criminal proceeding will apply equally to foreign convictions".

18.9 The Minister also notes our comments on the obligation to attach to foreign convictions "the same legal effects" (and not merely effects which are equivalent), but states that the Government's view is that giving either the same legal effects or equivalent effects "would necessitate a legislative change to ensure that foreign convictions were given equal status as domestic convictions in new criminal proceedings for different facts".

18.10 In relation to our comment that the proposal appeared to impose an unqualified obligation on UK courts to attach to foreign convictions the same legal effects as those which they attach to previous national convictions, the Minister replies that the Government does not share our concern "that the obligation to take into account[43] is absolute regardless of the circumstances of the foreign conviction". The Minister further comments that:

"The obligation is qualified by a reference to national law (and it has been agreed at Working Group level that the Article will be redrafted to clarify this point). This means that a UK court will be free to decide not to take into account a foreign conviction on the grounds that, for example, the trial was conducted in absentia if that would not have been permissible in the UK in similar circumstances."

18.11 The Minister refers 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 states that "there is no limitation on the application of dual criminality[44] in this Framework Decision". The Minister adds that the recitals to the proposal "make clear" that it "does not oblige Member States to take into account previous convictions imposed in other Member States where a national conviction would not have been possible regarding the act for which the conviction had been imposed". The Minister states that the courts in the UK will be "free to decide not to take into account a previous conviction that does not constitute a criminal offence in the relevant UK jurisdiction". However, the Minister also adds that the courts are not prevented from taking such a foreign conviction into account for the purposes of establishing under section 112 of the Criminal Justice Act 2003 if the defendant is of "bad character", since "reprehensible conduct" is a wider concept than previous conviction and can be taken into account in the course of a trial in England and Wales.

18.12 On the question of spent convictions, the Minister explains that, notwithstanding the provisions of section 4(1) of the Rehabilitation of Offenders Act 1974, an entry on a criminal record remains for the purpose of sentencing, so that the court may take a spent conviction into account in sentencing. The Minister recalls that the proposal stipulates that previous convictions be taken into account to the extent that previous national convictions are taken into account and that "this means that if the conviction would have expired in the Member State of the new proceedings, had it been a national conviction, it will be treated as such by the court and the appropriate legal consequences attached". The Minister adds that "it does not follow that a UK national whose 'spent' convictions become known to the court of another Member State in new criminal proceedings will be treated more unfavourably than if the conviction had been a national conviction".

Conclusion

18.13 We are grateful to the Minister for her detailed reply to the points we raised in our most recent report. We welcome the statement by the Minister that the proposal is not intended to affect judicial discretion in determining the relevance and weight to be attached to a previous foreign conviction, and that it does 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.

18.14 We consider both points to be important principles, but we do not find them expressed sufficiently clearly in the text which has been deposited. In our view, it is one thing to say that a foreign conviction should not be disregarded solely on the grounds that it was recorded by a court outside the United Kingdom, but quite another that a foreign conviction must be given the same effects as a national conviction.

18.15 In this regard, we recall the provisions of Article 3 which require each Member State to "ensure" that their judicial authorities "take into account previous convictions handed down against the same person for different facts in other Member States in accordance with national law and attach to them the same legal effects as those which they attach to previous national convictions". We note that the Minister agrees with us that the provisions of section 143(5) Criminal Justice Act 2003 (which permit but do not require a court in England and Wales to treat a conviction by a court outside the UK as an aggravating factor for sentencing purposes) would have to be amended to give effect to the obligations under Article 3. In these circumstances it seems to us to be important to make it clear in the operative part of the Framework Decision that it does not affect judicial discretion not to take a foreign conviction into account and that the principle of dual criminality is still to be applied. In our view, it is not safe to rely on inferences to be drawn from the recitals. We consider it equally unsafe to rely on the formula "in accordance with national law", since this could be taken to refer only to questions of procedure rather than substance.

18.16 The Minister refers to the fact that Article 3 will be redrafted to make clear that the obligations imposed are qualified by a reference to national law. In our view, it is essential that the new draft should be unambiguous and should make it entirely clear that it does not affect judicial discretion in deciding the weight to be given to the foreign conviction and that it does not oblige a court in the United Kingdom to take into account a previous conviction for conduct which does not constitute a crime here.

18.17 We shall look forward to further information from the Minister on the re-drafting of the proposal, and we shall hold the document under scrutiny in the meantime.





40   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

41   It also marked a change from the previous version, which only required the conviction to be given "legal effects that are equivalent". Back

42   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

43   Our comment related to the obligation to attach legal consequences, rather than to the obligation to take into account, which we saw as a separate obligation.  Back

44   Dual criminality is the principle which requires conduct to be criminal under the laws of both countries concerned. Back


 
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