2 Mutual legal assistance in criminal
proceedings
| (31166)
17691/09
COM(09) 624
| Commission Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its admissibility
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| Legal base | —
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| Document originated |
11 November 2009 |
| Deposited in Parliament
| 23 November 2009 |
| Department | Home Office
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| Basis of consideration |
EM of 2 December 2009 |
| Previous Committee Report
| None |
| To be discussed in Council
| Not known |
| Committee's assessment |
Legally and politically important
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| Committee's decision |
For debate in European Committee B
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Introduction
2.1 This Green Paper from the European Commission seeks the views
of EU Member States and concerned "stakeholders" on
current Mutual Legal Assistance (MLA) instruments. Its purpose
is to consider whether there is a case for replacing the existing
instruments with a new single regime designed to facilitate the
provision of assistance and the admissibility of evidence in criminal
trials. The Green Paper is in two parts, with the first relating
to MLA and obtaining evidence and the second to admissibility
of evidence.
The Document
2.2 In the introduction, the Commission states that "[f]aced
with cross-border crime, the administration of justice must not
be impeded by differences between the Member States' judicial
systems and the lack of mutual recognition of judicial decisions."
Although a number of instruments already exist providing for mechanisms
for member States to seek the collection of admissible evidence
in cross-border crimes, "[c]loser cooperation in this field
is key to the effectiveness of criminal investigations and proceedings
in the EU, and the Commission therefore intends to take further
action to promote such cooperation."
2.3 As background the Commission explains that there
are two types of legal instrument in existence in the field of
cross-border cooperation. On the one hand, there are instruments
based on the principle of mutual assistance. These most notably
include the European Convention on mutual assistance in criminal
matters, supplemented by the Schengen Agreement and the Convention
on mutual assistance in criminal matters and its Protocol. On
the other, there are instruments based on the principle of mutual
recognition, which most notably include the Framework Decision
on the European Evidence Warrant.
2.4 Under the heading of "Obtaining evidence",
the Commission asserts that the different principles underlying
the existing instruments:
"make[] the application of the rules burdensome
and may cause confusion among practitioners. This can also result
in situations where practitioners do not use the most appropriate
instrument for the evidence sought. Ultimately, these factors
may therefore hinder effective cross-border cooperation. Furthermore,
instruments based on mutual assistance, may be regarded as slow
and inefficient given the fact that they do not impose any standard
forms to be used when issuing a request for obtaining evidence
located in another Member State or any fixed deadlines for executing
the request. Instruments based on mutual recognition may also
be regarded as unsatisfactory in that they only cover specific
types of evidence and that they provide for a large number of
grounds for refusal to execute the order."
2.5 According to the Commission,
"the most effective solution to the above mentioned
difficulties would seem to lie in the replacement of the existing
legal regime on obtaining evidence in criminal matters by a single
instrument based on the principle of mutual recognition and covering
all types of evidence. Compared with the scope of application
of the Framework Decision on the European Evidence Warrant, this
new instrument would also cover evidence that — although
directly available — does not already exist, such as statements
from suspects or witnesses or information obtained in real time,
such as interception of communications or monitoring of bank accounts.
It would also include evidence that — although already existing
— is not directly available without further investigation
or examination, such as analyses of existing objects documents
or data or obtaining bodily material, such as DNA samples or fingerprints.
The present consultation is aimed at confirming the validity of
this approach."
2.6 In addition, the Commission will examine:
— whether
specific rules for particular kinds of evidence should be included
in the instrument, such as interception of telecommunications
or hearings by video conference;
— whether the typical characteristics of
mutual recognition instruments (such as the use of orders instead
of requests for assistance, standard forms for issuing the order,
fixed deadlines for executing the order and direct contact between
the competent authorities) should be applied to all types of evidence.
For example, it may not be appropriate to introduce standard forms
for hearing of witnesses or fixed deadlines for setting up a joint
investigation team; and
— whether it would be appropriate to supplement
any existing or future instrument with non-legislative measures.
This could include initiatives aimed at raising awareness of the
instrument(s) among practitioners, such as drafting guidelines
or providing training to practitioners on their application. This
could also include initiatives aimed at ensuring that the instrument
is implemented correctly, such as the setting up of monitoring
and evaluation systems.
2.7 Under the heading of "Admissibility of evidence",
the Commission comments that the existing instruments on obtaining
evidence in criminal matters already contain rules aimed at ensuring
the admissibility of evidence obtained in another Member State,
i.e. to avoid evidence being considered inadmissible or of a reduced
probative value in the criminal proceedings in one Member State
because of the manner in which it has been gathered in another
Member State. "However, these rules only approach the issue
of admissibility of evidence in an indirect manner as they do
not set any common standards for gathering evidence. There is
therefore a risk that the existing rules on obtaining evidence
in criminal matters will only function effectively between Member
States with similar national standards for gathering evidence."
2.8 As set out in the Communication An area of
freedom, security and justice serving the citizen, "the
best solution to this problem would seem to lie in the adoption
of common standards for gathering evidence in criminal matters.
The present consultation is also aimed at confirming the validity
of this approach." This would include consideration of whether
it would be best to adopt general standards applying to all types
of evidence or to adopt more specific standards accommodated to
the different types of evidence. Given the characteristics of
the different types of evidence, the former approach would be
limited to agreeing on general principles while the latter approach
would allow for more specific approximation rules.
2.9 Finally, under the heading of "Questions
to Member States and all concerned stakeholders", the Commission
sets out the following questions to be answered by 22 January
2010:
"Obtaining evidence
1. Would you in principle welcome a replacement of
the existing legal regime on obtaining evidence in criminal matters
by a single instrument based on the principle of mutual recognition
covering all types of evidence, including evidence that does not
already exist or is not directly available without further investigation
or examination? Why?
2. In your opinion, would it be necessary to include
specific rules for some types of evidence in the instrument? If
so, which? Why?
3. In your opinion, would it be inappropriate to
apply the characteristics of mutual recognition instruments to
all types of evidence, including evidence that does not already
exist or is not directly available without further investigation
or examination? If so, which types of evidence would deserve a
specific treatment? Why?
4. In your opinion, would it be useful to supplement
the instrument with non-legislative measures? If so, which? Why?
5. In your opinion, are there any other issues which
should be addressed? If so, which? Why?
Admissibility of evidence
6. Would you in principle welcome the introduction
of common standards for gathering evidence? Why?
7. Would you prefer to adopt general standards applying
to all types of evidence or to adopt more specific standards accommodated
to the different types of evidence? Why?
8. If common standards should be adopted, which would
you envisage? Why?
9. In your opinion, are there any other issues which
should be addressed? If so, which? Why?"
The Government's view
2.10 In a brief Explanatory Memorandum of 2 December,
the Parliamentary Under-Secretary of State at the Home Office
(Lord West) states that he is cautious about the case for introducing
common standards for the collection of evidence because of the
difference between the common and civil law systems in the EU.
But all the proposals will be carefully considered, and the UK's
response will be shared with Parliament.
2.11 He also states that it is unclear what the policy
implications of the issue of the Green Paper will be at this stage.
A consequence of the consultation could be that the Commission
brings forward legislation for a new MLA instrument, in which
case the Government believes it would be inclined to do so early
next year. If so, the instrument would be one of the first instruments
to be negotiated under the new procedures introduced by the Lisbon
Treaty. This would require a decision on the UK opt-in. If the
UK does wish to opt-in to the measure the Minister thinks that
the Government has a better chance of achieving a satisfactory
outcome should it be involved in negotiations.
2.12 The Minister states that the Home Office has
invited responses to the Green Paper from the following organisations:
Foreign and Commonwealth Office, Scottish Executive, the Crown
Office, Crown Prosecution Service, Ministry of Justice, Her Majesty's
Revenue and Customs, Revenue and Customs Prosecution Office, Serious
Fraud Office, Public Prosecution Service Northern Ireland, the
Northern Ireland Office, the Government of Gibraltar, law enforcement
agencies, relevant law societies, Justice, Liberty, the Criminal
Bar Association and any other relevant organisations.
Our assessment
2.13 The proposals in the Green Paper are premised
on assertions that cooperation between Member States in MLA under
the existing instruments is not working well; not on evidence.
Hence the language used is couched throughout in tentative terms.
It is far from clear, for example, why the coexistence of the
principles of mutual legal assistance and mutual recognition "may
hinder effective cross-border cooperation", or why the current
procedures for the admissibility of evidence obtained through
MLA can be described as "indirect" because they do not
set common standards for gathering evidence". Under current
procedures, evidence obtained by MLA is directly admissible if
lawfully obtained in the assisting EU country, and this includes
evidence of telephone intercepts.
2.14 The Commission's proposals, if implemented,
will reach far into the practices and procedures of domestic criminal
law — at the least they should be accompanied by the evidence
we are often told is an inherent part of "better regulation"
in the EU.
Conclusion
2.15 We thank the Minister for his Explanatory
Memorandum and look forward to receiving the UK's response to
the Green Paper at the earliest opportunity. We are particularly
interested in knowing how the enforcement agencies involved in
MLA requests respond to the questions listed above.
2.16 The proposals touch on areas of national
criminal procedure of such importance that we recommend that the
Green Paper be debated in European Committee, once the Government's
response has been submitted and made available to the House. We
suggest the debate focus on:
— whether
there is evidence justifying the Commission's proposed reforms;
— the response of the enforcement agencies;
and
— what effect the Government think the
proposed reforms would have on national criminal procedures.
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