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 |
Department | Home Office
|
Basis of consideration |
EM of 11 November |
Previous Committee Report |
None |
To be discussed in Council
| 30 November |
Committee's assessment | Legally and politically important
|
Committee's decision | For 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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