Documents considered by the Committee on 21 October 2009, including the following recommendations for debate: International climate finance, EU aid effectiveness - European Scrutiny Committee Contents


8  TRANSFER OF CRIMINAL PROCEEDINGS

(a)
(30729)
11119/09

+ ADD 1


(b)
(30935)


Draft Council Framework Decision on transfer of proceedings in Criminal
Matters

Draft Framework Decision on transfer of proceedings in Criminal Matters
— Explanatory report


Draft Council Framework Decision on transfer of proceedings in Criminal
Matters


Legal baseArticles 31(1)(a) and 34(2)(b) TEU; consultation; unanimity
Deposited in Parliament(a) 2 July 2009;
(b) 24 September 2009
DepartmentJustice
Basis of considerationEM of 6 October; Minister's letter of 8 October
Previous Committee ReportHC 19-xxv (2008-09), chapter 8 (21 July 2009)
To be discussed in Council 30 November 2009
Committee's assessmentLegally important
Committee's decision(a) Cleared; (b) Not cleared; further information requested

Background

8.1 The draft Framework Decision is an initiative of 15 Member States[39] to establish a common set of rules within the EU for the transfer of criminal proceedings between Member States. The Presidency aims to reach political agreement on it at the JHA Council on 30 November.

8.2 We first reported on it in July,[40] and had the following reservations. We were not aware of any evidence for the necessity for this legislation; we considered that it overlapped confusingly with the recently adopted Framework Decision on conflicts of jurisdiction in criminal proceedings; we raised an alarm over the proposed transfer of jurisdiction between Member States to prosecute an offence in circumstances where the offence was not recognised as criminal under the law of the receiving State (as set out in Article 5); and we regretted the lack of emphasis in the draft on defence rights.

The Minister's letter of 8 October

8.3 The Parliamentary Under-Secretary of State at the Ministry of Justice (Lord Bach) writes in response to our concerns. (A revised version of the draft instrument was produced by the Council on 21 September and has been deposited in Parliament. The relevant Explanatory Memorandum is considered further below.)

NEED FOR LEGISLATION

8.4 We asked to be provided with details of the assessments undertaken by Member States demonstrating that the status quo on the transfer of criminal proceedings was unsatisfactory and that EU legislation was necessary. The Minister reports that on 11 March 2009 the General Secretariat distributed a questionnaire drawn up by the then incoming Swedish Presidency on the practice and experience of national authorities when dealing with transfer of criminal proceedings. Responses to the questionnaire revealed the different mechanisms currently used by Member States including the European Convention on Mutual Assistance in Criminal Matters 1959, the Convention on Mutual Assistance in Criminal Matters between the member States of the European Union (2000 EU MLA convention), the European Convention on the Transfer of Proceedings in Criminal Matters 1972 and bi-lateral agreements. The most common problems with current procedures cited in response to the questionnaire related to lack of communication between Member States prior to a transfer, lack of information on the results of the transfer, difficulty receiving an answer from the transferring authority and the delay that surrounded many replies. These problems persuade the Minister that there is potential utility in an appropriately framed Transfer of Proceedings Framework Decision that focuses on overcoming problems surrounding transfer.

Overlap with the Framework Decision on Conflicts of Jurisdiction in Criminal Proceedings

8.5 We asked for clarification of the distinction between the proposed legislation and the recently adopted Framework Decision on conflicts of jurisdiction. We were concerned that both legislate for transfer of proceedings in cases of double jeopardy. This, the Minister says, is not strictly the case. Whilst both instruments look to promote co-operation between Member States, which will help to prevent occurrences of double jeopardy, there are important distinctions. The Framework Decision on Conflicts of Jurisdiction is very focused in its scope. It deals with instances where there are ongoing parallel proceedings in relation to the same facts involving the same person. The aim of the Framework Decision on conflicts of jurisdiction is wider: to ensure that a Member State shares information with another Member State if it believes that the latter is conducting parallel proceedings. The intention is to avoid adverse consequences arising from the existence of such proceedings.

8.6 The Minister addresses the point made by the Committee at paragraph 8.34 of its previous Report on problems caused by having different consultation procedures under each Framework Directive. He informs us that negotiations are still on-going and the method of consultation is under discussion. He will ask officials to give thought to the Committee's concerns on consultation.

TRANSFER OF COMPETENCE TO PROSECUTE

8.7 We asked the Minister why the UK did not ratify the 1972 Council of Europe Convention on the Transfer of Criminal Proceedings, as the mechanism for the transfer of competence in Article 5 of the draft Framework Decision was said to be based on this Convention. The Minister replies that officials have attempted to find background papers relating to the UK's position on the 1972 Convention but unfortunately have not been able to find discussion of why the UK did not ratify. He can, however, surmise that the chief obstacle would have been the same as today; that the provision on competence runs contrary to the general position taken by the UK, (and indeed other common law countries) that territory should be the foundation of our jurisdictional rules.

8.8 We also asked whether the provision on competence was consistent, firstly, with national criminal law and, secondly, with the requirement for double criminality in Article 11. The Minister replies that, as currently drafted, the Government does not believe Article 5 is consistent with national criminal law, and new legislation would certainly be required to implement it.

8.9 In relation to double criminality, the Minster explains that officials are continuing to explore Article 11 and its relationship with Article 5 during the working groups as these two Articles need to be read together.

8.10 We stated that we could not conceive of situations in which transferring jurisdiction under Article 5 of the Framework Decision would improve the efficient and proper administration of justice. The Minister responds that Eurojust has cited examples where there have been British holiday makers in Greece or Spain who have attacked another British holiday maker, all the witnesses are British and have since returned to the UK. In these cases there may well be utility in being able to prosecute in the UK, although the exact circumstances would need to be examined carefully.

DEFENCE RIGHTS

8.11 In Article 8 we thought it should be obligatory for the national authority to inform a suspect that a request for transfer of proceedings has been made. The Minister says that the Government is happy with the current wording that states "where appropriate" a suspect will be informed. The reason the Government thinks it is important to look at whether informing the suspect at that stage is appropriate, rather than making it obligatory in all cases, is because the Framework Decision might apply from investigative stages onwards. In the early stages it could be the suspect is not aware of ongoing investigations and informing the suspect could jeopardise the relevant operation. The risk of absconding would also increase in some cases. It is important therefore that discretion is built into the provision. This discretion must, however, be applied responsibly.

8.12 We also felt that the Defendant's rights should be set out more fully. The Government considers the Article strikes the right balance in which matters of detail and the particular domestic procedures are left to Member States to take forward.

8.13 We were unclear about what was meant by "if the suspected person presents an opinion". The Minister replies that it is anticipated that if the wording of this Article remains the same then where the defendant is informed of a request for transfer any comment they choose to make would then be relayed from the transferring State to the receiving State.

DEPOSIT OF EU DOCUMENTS

8.14 We asked the Minister to explain why the Council Explanatory Report, which originated on the 3 July, was only deposited on the 20 July. He replies that the Explanatory Report was unusually not published at the same time as the Framework Decision and was received after the Government had deposited the draft Framework Decision in Parliament. It was then an unfortunate oversight that this second document was not deposited. He offers his apologies for this oversight.

The Minister's Explanatory Memorandum of 6 October

RECITALS

8.15 Recital 9bis explains that transfer may take place at various stages of proceedings, pre-trial and trial stage. The operative text has been amended to reflect this as well by amending wording in Articles 7 and 8 to refer to the suspected or accused person (it had previously just referred to the suspected person.) The Government considers this clarification in the text, supported by 9bis, is helpful in articulating the scope of the Framework Decision.

Recital 13bis and 13ter deal with victims. 13bis flags up an existing Framework Decision (2001/220/JHA on the standing of victims in criminal proceedings) and 13ter confirms that the Framework Decision should not be interpreted as preventing Member States from granting more extensive rights under national law. As this does not purport to create new rights, and merely explains the purpose of the instrument is not to restrict Member States in that respect, the Government is content.

CHAPTER 1: GENERAL PROVISIONS

8.16 Article 5 deals with competence. The purpose of this Article is to ensure the Member State receiving the transfer has jurisdiction (competence under the Framework Decision) to prosecute under its national law any offence which another Member State has competence to prosecute. The Article is also now tied to the circumstances set out in Article 7.2 and encompassed within one provision. The Government continues to have strong reservations about this Article as it would run contrary to the UK's normal approach to jurisdiction.

CHAPTER 2 TRANSFER OF PROCEEDINGS

8.17 Article 7 has been amended to split the criteria for requesting transfer between instances when a State would already have competence to take the case and cases when competence is based on Article 5. Article 7.1 sets out the conditions for requesting transfer when the receiving Member State already has jurisdiction. The transferring State would need to be satisfied the proceedings would improve an efficient and proper administration of justice. Conditions (a)-(h) set out examples of situations that might lead to an improvement in the efficient and proper administration of justice. These are illustrative and as existing competence is required this would not be a concern.

8.18 Article 7.2 sets out the conditions for requesting a transfer when competence is based on Article 5. The conditions are that transfer would improve the efficient and proper administration of justice and one or more specific criteria are fulfilled. As currently drafted the Government believes that the specific criteria given under 7.2 are too wide and so would support the narrowing of these criteria. The Government believes that it is important that strong reasons for requesting a transfer are demonstrated.

8.19 In the current draft Article 11 has changed from just dealing with double criminality and is now headed "conditions for acceptance of transfer". 11.1 deals with double criminality, as before, and states that a request for transfer shall not be accepted if the act underlying the request for transfer does not constitute an offence under the law of the receiving state. 11.2 goes on to add that transfer will not be accepted if criminal proceedings cannot be brought against the suspect or accused person under the national law of the receiving Member State. These are important qualifications but need to be read in conjunction with Article 5. Article 12 is different from the previous version in that it sets out a single, but general ground for refusing a transfer; transfer can be refused if it is not considered to improve the efficient and proper administration of justice. The Government welcomes this change as it gives Member States a wider degree of control over refusing cases that will not improve the efficient and proper administration of justice. Under Article 15 Member States may call on the assistance of Eurojust or the European Judicial Network when determining what constitutes efficient and proper administration of justice.

CHAPTER 4 FINAL PROVISIONS[41]

8.20 Article 22bis amends the previous draft to insert a provision on review of the application of the Framework Decision in Member States. The Government is content with this insertion

Conclusion

8.21 We thank the Minister very much for his letter and Explanatory Memorandum.

8.22 Evidence of necessity is fundamental to the subsidiarity test the Committee applies in assessing EU proposals. (For future reference, we would be grateful if evidence which justifies the need for legislation could be fully set out in the initial Explanatory Memorandum on a proposal.) We take note of the evidence to which the Minister refers in his letter, and also his comments that it is practical, rather then legal, obstacles to transfer that should be addressed.

8.23 In the revised draft there is greater clarity between the operation of this Framework Decision and that on conflicts of jurisdiction, but we remain concerned that different consultation procedures will apply. We also suggest a reference to the Framework Decision on conflicts of jurisdiction be incorporated into Article 11(2)(a).

8.24 Like the Government, we remain deeply concerned by Article 5, and its effect on the common law presumption of territorial jurisdiction. We also fail to see how Articles 5 and 11 co-exist, as one appears to negate the other. Given that the legislative intent is to overcome practical obstacles to transfer by encouraging better cooperation between Member States, we question whether Article 5 is necessary.

8.25 We also remain deeply concerned that the proposal contains no provisions which effectively safeguard the rights of the person subject to transfer, in particular in all cases to be informed of the decision and to have the right to appeal to a judge against the transfer decision. We would like to see such a provision inserted and do not think that it would inevitably jeopardise an investigation if at some stage the suspect had to be told of the decision to transfer. If the Minister continues to think otherwise, we would be grateful for an explanation, beyond that contained in his letter, of how he sees these defence rights being protected under the Framework Decision.

8.26 Given the potential impact of this proposal on prosecution authorities, we ask the Minister to confirm whether the Attorney General's Office has been consulted, and if so, for its views to be sent to the Committee. If there has been no consultation, we ask the Minister to consult the Attorney General's Office for its views as soon as possible. We would be grateful to be informed of its response.

8.27 In the meantime, we clear the first draft of the Framework Decision, document (a), from scrutiny but retain the revised draft, document (b), under scrutiny.



39   Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Greece, Spain, France, Lithuania, Latvia, Hungary, Netherlands, Romania, Slovenia, Slovakia. Back

40   See headnote.  Back

41   In the current draft there is no Chapter 3. This is a drafting error which will be resolved in future drafts. Back


 
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