4 Mutual legal assistance in criminal
matters between the EU and Japan
| (a)
(31239)
17708/09
COM(09) 706
(b)
(31258)
15921/09
—
(c)
(31257)
15915/09
—
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Draft Council Decision on the conclusion of the Agreement between the European Union and Japan on the mutual legal assistance in criminal matters
Council Decision on the signing, on behalf of the European Union, of the Agreement between the European Union and Japan on the mutual legal assistance in criminal matters
Agreement between the European Union and Japan on the mutual legal assistance in criminal matters
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| Legal base | Article 82(1)(d) and 218(6)(a) TFEU; QMV; consent
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| Department | Home Office
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| Basis of consideration | EM of 19 January 2010
|
| Previous Committee Report | None; but see (31123) — HC 5-ii (2009-10), chapter 2 (25 November 2009)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) For debate in European Committee B (rescinding decision reported on 25 November relating to (31123))
(b) and (c) cleared
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Background
4.1 The purpose of the Agreement 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 Documents
4.2 The Council Decision to sign the Agreement is document
31258; the signed Agreement document 31257. The Council authorised
the signing of the Agreement on 30 November 2009. We reported
on the draft Agreement in detail on 25 November.[11]
In the unnumbered EM that was submitted on the draft Agreement,
the Minister of State at the Home Office (Mr. Phil Woolas) explained
that certain changes were going to be made at the request of the
UK. These have been made and are minor: they do not affect the
Committee's view of the political or legal importance of the document.
The proposal for a Council Decision to conclude the Agreement
is document 31239.
Legal base
4.3 With the entry into force of the Lisbon Treaty on 1 December
2009, the procedures to be followed for conclusion of the Agreement
are governed by Article 218 TFEU. Article 218(6)(a) TFEU states
that in the case of agreements covering fields to which the ordinary
legislative procedure applies, the Council shall adopt a decision
concluding the agreement, after obtaining the consent of the European
Parliament. Article 82(1)(d) TFEU allows the Council and the European
Parliament to adopt, by means of the ordinary legislative procedure
(formerly "co-decision"), measures to "facilitate
cooperation between judicial or equivalent authroities of the
member States in relation to proceedings in criminal matters and
the enforcement of decisions". Once the Agreement is concluded,
the Government will have to decide whether to opt into it.
Previous consideration
4.4 In our previous Report we concluded as follows:
"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.
"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.
"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.
"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."
The Government's view
4.5 The Minister has submitted a new Explanatory
Memorandum on the proposal for a Council Decision to conclude
the Agreement, dated 19 January 2010.
IMPACT ON UNITED KINGDOM LAW
4.6 The Minister explains that compliance with
the obligations arising under the Agreement will not require any
changes to UK primary legislation, but 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 Co-operation) Act 2003 prior to the
Agreement coming into force. Designation for these purposes would
be by affirmative order. Section 32 in England, Wales and Northern
Ireland and section 37 in relation to Scotland enables the UK
to provide information about UK bank accounts relating to a person
who is the subject of an investigation in a participating country.
Section 43 provides for the UK to make such requests to a participating
country. Section 35 provides for a specified bank account in England,
Wales or Northern Ireland to be monitored during a specified period
of time upon request by a participating country. Section 40 makes
similar provision in relation Scotland. Section 44 provides for
such requests to be made by the UK to a participating country.
Section 45 provides that all outgoing requests falling under sections
43 and 44 must be transmitted via the Secretary of State (or the
Lord Advocate in Scotland). The Home Office and Scottish Executive
will be the departments responsible for making these legislative
changes.
4.7 The UK is fully compliant with all other
provisions found in the Agreement.
FUNDAMENTAL RIGHTS ANALYSIS
4.8 The Minister is satisfied that compliance
with the EU-Japan Agreement will not give rise to any breach of
fundamental rights. While the EU-Japan Agreement provides a framework
for the provision of criminal mutual legal assistance between
the EU and Japan he stresses that when providing MLA the UK is
always bound (by virtue of section 6 of the Human Rights
Act 1998 (the HRA 1998)) to ensure that any such decision is consistent
with rights accruing under the European Convention on Human Rights
(ECHR). Article 10(2) of the agreement itself also makes it clear
that a request for MLA can only be executed using measures that
are in accordance with the laws of the requested state. The HRA
1998 makes it clear that public authorities in the UK must act
in accordance with the ECHR.
4.9 The Minister repeats the points he made in
his earlier Explanatory Memorandum on coercive measures and giving
of evidence, including transferral of detained persons to Japan.
We reported on these in November.
4.10 In relation to bank records and asset freezing/confiscation
he states as follows. Article 18 of the Agreement enables one
party to request the other to ascertain whether banks within their
territory possess information on whether a suspect is the holder
of an account and to produce records of any such accounts or transactions.
To the extent that these powers interfere with the Article 8 ECHR
right to private and family life he is of the view that any such
interference would be proportionate having regard to the legitimate
interest in combating crime. Article 25 allows one party to the
Agreement to assist another in the freezing, seizure and confiscation
of the proceeds or instrumentalities of crime. While such action
would plainly touch upon fundamental rights, Article 25 is clear
that such assistance may only be provided in accordance with the
law of the requested state. The UK would, therefore, only be allowed
to provide this assistance where compatible with the ECHR.
4.11 In answer to the concerns we raised about
the application of the death penalty in Japan, the Minister states
as follows:
"In considering the compatibility of the Agreement
with fundamental rights, it is also important to note that Article
11 of the Agreement allows assistance to be refused where there
are grounds for concluding that the request for assistance has
been made for the purpose of persecuting or punishing a person
by reason of race, religion, nationality, ethnic origin, political
opinions or sex, or where there are grounds for concluding that
their position might otherwise be prejudiced for one of those
reasons. Furthermore, while Japan continues to impose the death
penalty in certain cases, Article 11(1)(b) makes it clear that
a request for assistance could be refused in a case where
the death penalty may be imposed."
4.12 The Explanatory Memorandum does not address
the absence of a dual criminality test.
Conclusion
4.13 We thank the Minister for the additional
Explanatory Memorandum, but note that it does not address in any
detail the points we raised in our Report of 25 November, when
we recommended the Agreement for debate in European Committee
B. That debate is to take place on 2 February.
4.14 Since we last reported, the signed Agreement
has been deposited. This, rather than the draft Agreement, should
be the document debated. We therefore rescind our decision of
25 November to refer for debate the Council Decision on the signing
of the Agreement, which incorporated the draft Agreement in an
annex. In its place, we refer the signed Agreement (31239) for
debate in European Committee B.
4.15 Finally, we ask the Minister to confirm
whether the Government will opt into the Agreement once concluded.
11 See headnote. Back
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