Documents considered by the Committee on 25 November 2009, including the following recommendations for debate: Security of gas supply Mutual legal assistance in criminal matters between the EU and Japan - European Scrutiny Committee Contents


2  MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE EU AND JAPAN

(31123)

Council Decision on the signing, on behalf of the European Union, of an
Agreement between the European Union and Japan on the mutual legal assistance
in criminal matters


Legal base Article 24 and 38 EU; unanimity
DepartmentHome Office
Basis of consideration EM of 11 November
Previous Committee Report None
To be discussed in Council 30 November
Committee's assessmentLegally and politically important
Committee's decisionFor debate in European Committee B

Background

2.1 The purpose of the Agreement attached to the draft Council Decision is the provision of mutual legal assistance between EU Member States and Japan in connection with criminal proceedings. Mutual legal assistance covers all aspects of investigating and prosecuting crime, including taking witness statements; obtaining evidence, including through execution of search and seizure; serving court documents; assisting with the freezing or seizure and confiscation of proceeds of crime, and "any other assistance permitted under the laws of the requested State and agreed upon between a Member State and Japan" (see Article 3(1)(k) of the Agreement). The Agreement applies to the territories of Japan and EU Member States, and "territories for whose external relations a Member State has responsibility" where agreed upon by an exchange of diplomatic notes by all parties. It does not, however, apply to extradition, transfer of proceedings in criminal matters and enforcement of sentences other than confiscation. The Government will consider in due course whether the Agreement should apply to Gibraltar.

The Document

2.2 The draft Agreement runs to 31 Articles. Articles 4 to 7 concern the designation and responsibilities of the central authorities in the EU. The designated authorities in the UK are the UK Central Authority, HM Revenue and Customs and the Crown Office. In Japan they are the Minister of Justice or the National Public Safety Commission or persons designated by them.

2.3 Article 8 sets out in detail the components of a request for assistance. These include the details of the criminal proceedings and the stage reached; a statement of the relevant law including applicable penalties; and a description of the assistance requested and its relevance. The requested State may ask for further information if it considers the information provided not to be sufficient to meet the requirements of the Agreement. All requests and relevant documents are to be translated into the language of the requested State.

2.4 Under Article 10 the request is to be executed "by using measures that are in accordance with the laws of the requested State" — in other words as prescribed by national law. If the request interferes with an ongoing investigation or poses practical problems it can be postponed in consultation with the central authority in the requesting State, otherwise the obligation on the requested State is to act promptly.

2.5 Under Article 11 a requested State can refuse to provide mutual legal assistance if:

    a)  a request concerns a political offence or an offence connected with a political offence;

    b)  the execution of a request is likely to prejudice its sovereignty, security, ordre publique or other essential interests. For the purpose of this sub-paragraph, the requested State may consider that the execution of a request concerning an offence punishable by death or life imprisonment under the laws of Japan could prejudice essential interests of the requested State;

    c)  there are well-founded reasons to suppose that the request for assistance has been made with a view to prosecuting or punishing a person by reason of race, religion, nationality, ethnic origin, political opinions or sex, or that such person's position may be prejudiced for any of those reasons; or

    d)  the person, who is the subject of the request for assistance, has already been finally convicted or acquitted for the same facts in an EU Member State or Japan (double jeopardy).

2.6 Under paragraph (2) of Article 11, there is no dual criminality test — the criminal offence in Japan also being recognised as an offence under the laws of the EU Member State — to be met before assistance can be provided between the EU and Japan, unless "coercive measures" (see further below) in obtaining the evidence is required. As an exception to this, however, two Member States, Hungary and Austria, will not provide assistance to Japan in cases where the dual criminality rule is violated.

2.7 In all cases where a requested State is considering refusal, it should consult the Central Authority in the requesting State beforehand if it considers that the assistance could be provided subject to certain conditions.

2.8 The presumption in Article 12 is that the requested State shall bear the costs of executing the request, unless otherwise agreed between the parties, particularly in cases where the execution of a request would impose "costs of an extraordinary nature" (Article 12(3)). However, under Article 12(2) the following costs will be borne by the requesting State: the fees of an expert witness; the costs of translation, interpretation and transcription; the costs of establishing a video link in the requested State; and the travel costs incurred in serving documents and transferring a convicted prisoner to give evidence in the requesting State.

2.9 Article 13 concerns limitations on the use of the requested evidence. As is standard in any request for mutual legal assistance, the requesting State is only entitled to use the requested evidence for the purpose described in the request. Should it wish to use it for a different purpose, it would have to obtain the prior consent of the requested State. The requested State can also apply conditions to the use of the evidence, for example that it remains confidential.

2.10 Under Article 15 the requested State may be obliged to take witness statements and, if justified and necessary, to employ "coercive measures" in doing so. The requested State shall do its best to allow the presence of a representative of the requesting State during the taking of a statement, and to allow him or her to question the person from whom the statement is sought. Where direct questioning is not permitted, such persons shall be allowed to submit questions to be asked. Under Articles 17 and 19 the requested State may be obliged to obtain evidence and search premises and, if justified and necessary, to employ "coercive measures", including "search and seizure" in order to do so.

2.11 Article 16 allows a witness or expert witness in the requested State to give evidence in proceedings in the requesting State by means of videoconference. The hearing is conducted under the laws applicable in the requested State. This would include the right not to testify if recognised by the requesting State and the requested State.

2.12 Article 18 requires the requested State to provide banking records for a specified individual.

2.13 Pursuant to Article 23, "safe conduct", a person who is summonsed to appear before the relevant authority in the requesting State shall not:

    (a) be subject to detention or any restriction of personal liberty in that State by reason of any conduct or conviction that precedes the departure of the person from the requested State; or

    (b) be obliged to give evidence or to assist in any investigation, prosecution or other proceeding, including judicial proceeding, other than the proceeding specified in the request.

If the requesting State cannot provide safe conduct, this should be stated in the request so that the person subject to the summons can decide whether to attend or not.

2.14 Under Article 24, a person in custody in the requested State can be requested to give evidence or provide other evidentiary assistance in the requesting State, but he or she must consent to doing so.

2.15 Under Article 25, the requested State shall assist, to the extent permitted by its laws, in proceedings related to freezing or seizure and confiscation of the proceeds of crime. A request for confiscation shall be accompanied by a decision of a court or other judicial authority in the State imposing the confiscation. The requested State that has custody over requested proceeds may transfer some or all of them to the requesting State, to the extent permitted by the laws of the requested State and upon such conditions as it deems appropriate.

The Government's view

2.16 The Minister of State at the Home Office (Mr. Phil Woolas) submitted an Explanatory Memorandum on the draft Agreement, dated 11 November.

IMPACT ON UNITED KINGDOM LAW

2.17 The Minister informs us that compliance with the obligations arising under the Agreement will not require any changes to UK primary legislation, although in order to provide assistance in accordance with Article 18 (bank accounts) of the Agreement it will be necessary to designate Japan as a participating country for the purposes of sections 31, 32, 35, 37, 40, 43, 44 and 45 of the Crime (International Cooperation) Act 2003 prior to the Agreement coming into force. Designation for these purposes will be by affirmative order. The UK is fully compliant with all other provisions found in the Agreement.

FUNDAMENTAL RIGHTS ANALYSIS

2.18 The Minister is satisfied that the Agreement will not give rise to any breach of fundamental rights. In support he states that the Government is bound by section 6 of the Human Rights Act (HRA) 1998 to ensure that any decision to assist or be assisted by Japan under this Agreement is consistent with the European Convention on Human Rights (ECHR). Article 10(2) of the Agreement makes this clear by providing that a request for assistance can only be executed using measures that are in accordance with the laws of the requested State, which includes the HRA.

2.19 For these reasons, the Minister says, the Government is satisfied that the provisions of the Agreement could never give rise to a breach of fundamental rights. For the sake of completeness, however, he sets out a list of the provisions of the Agreement which potentially engage fundamental rights:

  • Articles 15, 17 and 19 of the Agreement provide that "coercive measures" may be used to obtain witness evidence, obtain evidence, or search premises. This could on its face engage the right to privacy under Article 8 ECHR and to peaceful enjoyment of possessions under Article 1, Protocol 1 ECHR; however, the Agreement makes it clear that such measures could only be used where justified under the laws of the requested State. In any case in which the UK was requested to use such powers, the powers would have to be exercised in accordance with Part 1 of the Crime (International Co-operation) Act 2003, whose provisions all respect fundamental rights, as well as the HRA.
  • Article 16 allows witnesses in the UK to give evidence in Japan, and vice versa, by way of videoconference. In view of the fact that Article 16(2)(e) makes it clear that witnesses giving evidence in this way can rely on the privilege against self incrimination, the Government is satisfied that this provision would not give rise to any breach of Article 6 ECHR. Article 16(2)(c) also requires that where a witness in the UK is giving evidence by videoconference, a representative of the relevant UK authority must be present so as to ensure that the proceedings observe the "fundamental principles of the law" which apply in the UK.
  • Article 24 allows a person in custody in the territory of an EU Member State to be transferred to Japan for the purpose of giving evidence there. Insofar as it might be argued that the transfer of someone in custody to give evidence in foreign proceedings might give rise to a breach of Article 5 of the ECHR, the Government is satisfied that detention for these purposes would be pursuant to a sentence imposed following conviction and would therefore be for a purpose permitted by Article 5. It is also of note that these powers could not be used without the consent of the prisoner in question and that Article 24 requires time spent in custody overseas to be deducted from the UK sentence.

POLICY IMPLICATIONS

2.20 The Minister reports that there are currently no bilateral mutual legal assistance treaties between Japan and EU Member States. Consequently, the Minister considers it right that the EU should have led this initiative to ensure that negotiations were cost effective and that an agreement would enhance judicial co-operation by the EU as a whole. Although the Minister recognises that the Agreement could have been negotiated bilaterally by the UK, the text of the Agreement represents substantial progress with Japan in this field and he adds that it is unlikely that bilateral negotiations would have achieved a better outcome.

2.21 The text of the Agreement is largely based on the 1959 European Convention on Mutual Assistance in Criminal Matters and the 2000 Convention, established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union and its Protocol. The UK has signed and ratified each of these.

2.22 Importantly for the UK, provision for evidence to be given via videoconferencing facilities has been included in the Agreement and should help to resolve complications that the UK has previously experienced in this regard. This should also reduce the need for witnesses to travel to Japan for the purpose of giving evidence. The Agreement also contains provisions for freezing, seizure or confiscation of the proceeds or instrumentalities of crime. These, the Minister says, should help to ensure that criminals do not ultimately benefit from their criminality.

2.23 The Minister then reiterates the scope of the grounds for refusing a request for assistance under Article 11.

TIMETABLE

2.24 The Presidency intends to adopt a Council Decision on the Agreement on 30 November 2009 at the final Justice and Home Affairs Council prior to the entry into force of the Lisbon Treaty. The Draft Council Decision formally authorises signature by the Presidency, on behalf of the European Union, of the Agreement. However, any decision to conclude the Agreement will need to be taken in line with the new procedures introduced by the Lisbon Treaty. This will require the consent of the European Parliament and the UK making a decision as to whether to opt-in to the Agreement or not. Consequently the Agreement is unlikely to enter into force before the end of March 2010 at the very earliest.

Our assessment

2.25 The UK does not require a treaty in order to provide mutual legal assistance; it does not require reciprocity. It can and does give a full range of mutual legal assistance without a treaty base. This contrasts with other countries where mutual legal assistance cannot be given (or at least a full range of assistance cannot be given) without a treaty. However, under Japanese domestic law only a limited amount of assistance is able to be given on the basis of international comity — the majority of assistance requires reciprocity. It is therefore clear that this Agreement will significantly extend the scope for cooperation in the investigation and prosecution of crime both in the UK and Japan.

2.26 As the Minister states in his Explanatory Memorandum, many of the provisions of the draft Agreement are based upon those found in the 1959 European Convention on Mutual Assistance in Criminal Matters and the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the EU. As such many of the principles they contain are well recognised.

2.27 However, the Fundamental Rights Analysis of the Explanatory Memorandum does not consider the impact of requests for assistance from Japan for the offences which attract the death penalty. These include murder. Similarly, the Explanatory Memorandum does not address the absence of a dual criminality test in the Agreement, with the exception of assistance provided by two EU Member States.

2.28 In subsequent correspondence with us, the Home Office has confirmed that its policy on assisting countries in the investigation of serious crime where the death penalty is in force mirrors that of the Foreign and Commonwealth Office. Where there is a risk of the death penalty being imposed for the crime under investigation, before it agrees to provide assistance the Home Office will seek assurances that anyone found guilty will not face the death penalty. Where no assurances are forthcoming — for example when the requesting government is unable to provide assurances due to the separation of powers between the executive and the legislature, or where there are strong reasons for the UK not to seek such assurances — Ministers will always be consulted to determine whether, given the special circumstances of the case, the Home Office should nevertheless provide assistance.

2.29 In the context of mutual legal assistance, the Home Office reports that it would be extremely rare for the Home Office to provide assistance without an assurance, because, unlike the provision of assistance overseas where it may be imperative that action is taken quickly to protect life, in terrorism or kidnap cases for example, mutual legal assistance tends to take place in slower time. So it is thought extremely unlikely that an agreement with the requesting country would be unable to be reached and some form of assistance provided. Ministers would also be consulted where a decision was being taken to refuse assistance on this ground.

2.30 In terms of previous examples, the Home Office has required the US to provide death penalty assurances and they have done so. So far as Japan is concerned the Home Office understands that although it is a matter for the court to impose a sentence, it does so at the request of the prosecutor (who is responsible for making mutual legal assistance requests). It would therefore be possible for the chief prosecutor to give instructions to prosecutors not to seek the death penalty in cases where mutual legal assistance was given.

2.31 The absence of a dual criminality test, and the impact of the application of the death penalty in Japan, are of concern to us, and should be examined in further detail with the Government.

Conclusion

2.32 We recognise the benefit of this draft Agreement is that it will extend the scope for cooperation in the investigation and prosecution of crime both in the UK, throughout the EU, and Japan, in circumstances where current cooperation with Japan is limited.

2.33 Whilst many of the provisions of the Agreement are standard terms derived from previous mutual legal assistance conventions, we are concerned that the "Fundamental Rights Analysis" in the Minister's Explanatory Memorandum did not address the Government's policy on assistance provided to Japan for criminal offences which attract the death penalty. This is mentioned in Article 11 of the Agreement as a possible ground for refusing to provide assistance, but the Minister is silent on his approach to this Article. Similarly, the Explanatory Memorandum should in our view have addressed the absence of a dual criminality test in the Agreement. Whatever the explanation such an oversight is concerning, particularly with regard to the question of the death penalty.

2.34 The rushed timetabling for the signature of this Agreement has left the Committee with only one meeting in which to scrutinise it. The timing may not be of the Home Office's doing, but the UK is influential in the EU and we would be grateful if a message from the Minister were relayed back to Brussels that more time should be allowed for parliamentary scrutiny of important international agreements such as this.

2.35 In our view the draft Agreement raises important political and legal questions about the context in which the UK should provide assistance to countries in the investigation of serious crime. We therefore recommend it be debated in European Committee B, until which time it be held under scrutiny. The debate should centre on the two aspects of concern identified in this Report: the absence of a dual criminality test and assistance given for offences which attract the death penalty in Japan. The debate should take place before the Council decision to conclude the Agreement under Article 82 TFEU and before the Government decides whether to opt in or not.

2.36 However, whilst retaining the draft Agreement under scrutiny, under paragraph (3)(b) of the Scrutiny Reserve Resolution we consent to the Minister giving his agreement to the Council Decision on the signature of the draft Agreement by the Presidency in the JHA Council on 30 November.




 
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