10 Exchanging information on criminal
convictions
| Committee's assessment |
Politically important |
| Committee's decision | (a) Cleared from scrutiny; (b) Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
|
| Document details | (a) Commission report on the implementation of Council Framework Decision 2009/315/JHA on the organisation and content of the exchange of information extracted from the criminal record between Member States
(b) Proposal for a Directive amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA
|
| Legal base | (a) —
(b) Article 82(1)(d) TFEU; ordinary legislative procedure; QMV
|
| Department | Home Office |
| Document Numbers | (a) (37464), 5441/16, COM(16) 6
(b) (37463), 5438/16 + ADDs 1-2, COM(16) 7
|
Summary and Committee's conclusions
10.1 In 2009, the Council agreed to establish a European Criminal
Records Information System (ECRIS) to enable Member States to
exchange information contained in their national criminal records
databases on the criminal convictions of EU citizens. A system
for the automated exchange of information on criminal convictions
reflects the cross-border nature of much criminal activity and
is intended to ensure that criminals cannot escape or conceal
their criminal past by offending in a different Member State.
ECRIS became operational in April 2012. It operates on the principle
that a single Member State — the offender's Member State
of nationality — is the repository for all criminal record
information relating to any of its nationals convicted in another
Member State. A complete record of previous convictions can provide
important background information on criminal suspects, their suitability
for bail, and the appropriate sentence if convicted. ECRIS can
also be used to run criminal record checks against individuals
where required under national law, for example to screen individuals
seeking a firearms licence or applying for a job involving vulnerable
groups, such as children.
10.2 One of the weaknesses of ECRIS is that there
is no single repository for criminal record information concerning
third country nationals. If a Member State wishes to obtain a
full criminal history, it must send a request for information
to all other Member States. Few choose to do so in practice as
the administrative burden of sending blanket requests for limited
returns, as well as the danger of clogging up the ECRIS system,
outweighs the benefits. As a consequence, the Commission estimates
that fewer than 5% of criminal convictions against third country
nationals in 2014 were informed by a full criminal record history
of previous convictions.
10.3 The proposed Directive — document (b)
— seeks to make ECRIS a more effective tool for the exchange
of criminal record information on third country nationals within
the EU, an objective endorsed by EU leaders who called last December
for the "systematic sharing of criminal records data for
people connected to terrorism (and serious and organised crime)
and the extension of ECRIS to third country nationals".[48]
It is accompanied by a Commission report on Member States' implementation
of the current ECRIS system — document (a) — which
highlights the need to ensure more comprehensive coverage of third
country nationals convicted in the EU.
10.4 The UK participates in the current ECRIS system.
The UK's Title V (justice and home affairs) opt-in applies to
the proposed Directive, meaning that the UK will only be bound
by the changes if it decides to opt in. The Immigration Minister
(James Brokenshire) shares the Commission's broadly positive assessment
of ECRIS, notes that the Home Secretary has called for greater
sharing of information on the criminal records of third country
nationals, and welcomes the proposed Directive. He says that the
deadline for notifying the UK's opt-in decision is 25 April and
sets out the factors which the Government will take into account
in reaching a decision.
10.5 We note the importance that the Government
attaches to the "proactive sharing of offender information"
and its support for improving the functionality of ECRIS so that
it becomes a more effective tool for obtaining comprehensive information
on the previous convictions of third country nationals involved
in criminal proceedings in the EU. Whilst the Government
supports the mandatory storage and exchange of fingerprints to
confirm the identity of third country nationals, a number of other
Member States have raised "constitutional concerns"
and identified practical obstacles. We ask the Minister to provide
further details.
10.6 In its Impact Assessment accompanying the
proposed Directive, the Commission categorises the UK as a Member
State "with a low level of automation" in managing the
exchange of criminal record information.[49]
We ask the Minister whether it is likely to be more
costly for the UK to implement the changes proposed than for Member
States with highly automated processes, and to provide a clear
indication of the likely cost. The Commission expects most of
the costs to be met from the EU Justice programme. As the UK does
not participate in this EU funding programme, we ask the Minister
to confirm that implementation costs in the UK will have to be
met by the Government, without any EU subsidy.
10.7 We are grateful to the Minister for setting
out the factors which will inform the Government's opt-in decision.
We ask him to notify us promptly of the Government's decision
and to explain how significant each of the factors was in reaching
a decision. We also ask him to confirm that the UK will remain
bound by the existing ECRIS system and related measures if the
Government decides not to opt into the proposed amending Directive.
10.8 Pending further information from the Minister,
document (b) — the proposed Directive — remains under
scrutiny and we draw it to the attention of the Home Affairs Committee.
We ask the Minister to provide regular progress reports on the
negotiations and to explain how the concerns he has identified,
for example on the handling of "spent" convictions,
are addressed. We are content to clear document (a) — the
Commission report — from scrutiny.
Full details of
the documents: (a)
Commission report on the implementation of Council Framework
Decision 2009/315/JHA of 26 February 2009 on the organisation
and content of the exchange of information extracted from the
criminal record between Member States: (37464), 5441/16, COM(16)
6; (b) Proposal for a Directive amending Council Framework Decision
2009/315/JHA, as regards the exchange of information on third
country nationals and as regards the European Criminal Records
Information System (ECRIS), and replacing Council Decision 2009/316/JHA:
(37463), 5438/16 + ADDs 1-2, COM(16) 7.
Background
10.9 In 2008, the Council agreed a Framework Decision
requiring Member States to take into account (and give equivalent
legal effects to) previous convictions handed down in criminal
proceedings in another Member State in the same way as they would
previous national convictions. Member States had to comply with
the Framework Decision by 15 August 2010.[50]
10.10 A further Council Framework Decision agreed
in 2009 established a mechanism and a common format for the exchange
of criminal record information.[51]
It requires the convicting Member State to record in its criminal
records database the offender's nationality (but only if the offender
is a national of an EU Member State) and to send details of the
conviction and related information to the offender's Member State
of nationality. The information may include the offender's fingerprints.
The Member State of nationality is required to store all of the
information sent to it so that it is able to provide a comprehensive
response to requests from other Member States for details of all
previous convictions against its own nationals. A Council Decision
also agreed in 2009 established a European Criminal Records Information
System (ECRIS) to enable Member States to exchange (by automated
means) information held in their national criminal records databases.[52]
ECRIS does not give Member States direct online access to each
other's databases or create a centralised EU criminal records
database. Member States were required to comply with the Council
Decision by 7 April 2012 and with the Framework Decision on the
exchange of criminal record information by 27 April 2012.
10.11 The two Framework Decisions and the Council
Decision were all adopted (with UK participation) before the Lisbon
Treaty took effect on 1 December 2009 and were subject to the
UK's "block opt-out" of pre-Lisbon EU police and criminal
justice measures. In its first Command Paper (8671) on these measures,
the previous Coalition Government noted that "the principle
of taking into account overseas convictions in the same way as
domestic ones exists in UK domestic law" but that opting
out of the 2008 Framework Decision would release other Member
States from the obligation to take into account previous convictions
given by UK courts. It noted also that the 2009 Framework Decision
and related Council Decision "had allowed much more information
to be obtained on EU offenders in the UK and UK nationals convicted
elsewhere in the EU", adding:
"This has allowed the police to build a
fuller picture of offending by UK nationals and allowed the courts
to be aware of the previous offending of EU nationals being prosecuted.
The previous conviction information can be used for bail, bad
character and sentencing as well as by the prison and probation
service when dealing with the offender once sentenced."
10.12 Moreover:
"The Irish authorities have reported that
approximately 12,000 criminal offences are committed in Ireland
by UK nationals each year, some of which are serious offences.
[Framework Decision] 2009/315/JHA requires the Irish authorities
to inform us of these offences and they will be exchanged electronically
under the arrangements of [Council Decision] 2009/316/JHA. Under
the arrangements of the 1959 Council of Europe Convention we were
not notified of such convictions."[53]
10.13 A further assessment in Command Paper 8897
confirmed the utility of ECRIS and related measures "for
public protection purposes", consistent sentencing of UK
and other EU nationals prosecuted in the UK, and "legal certainty
that foreign convictions will be used in UK courts and that UK
convictions are taken into account in foreign proceedings".
The Coalition Government recommended rejoining all three measures.[54]
Decisions confirming UK participation in these measures (and 32
others) were adopted and took effect on 1 December 2014.[55]
10.14 In a Communication published last May, The
European Agenda on Security, the Commission recognised that
there were gaps in the coverage of ECRIS and indicated that it
would "accelerate the work already under way to improve ECRIS
for non-EU nationals".[56]
This work was given renewed impetus in the aftermath of the terrorist
attacks in Paris last November. Ministers responsible for counter-terrorism
urged Member States to "use ECRIS to its full potential"
and called for "an ambitious proposal for the extension of
ECRIS to cover third country nationals",[57]
a call echoed by EU leaders at their December summit.
The Commission report on Member States' implementation
of the ECRIS system — document (a)
10.15 The ECRIS system has been operational since
April 2012 but three Member States — Malta, Portugal and
Slovenia — are not yet in a position to participate in automated
exchanges of criminal records data. The Commission report evaluates
implementation of ECRIS in the remaining Member States. It notes
that, on average, more than 24,000 requests are made each month,
with over 30% leading to a positive hit (a response detailing
one or more convictions). The Commission identifies areas in which
implementation of the ECRIS system is incomplete and signals its
intention to take enforcement action if Member States fail to
take appropriate action themselves. It notes that the use of ECRIS
to send blanket requests for information on the criminal convictions
of third country nationals "produces a huge administrative
burden" which it will seek to address in the accompanying
proposed Directive. The Commission concludes that ECRIS has led
to "significant progress in improving the exchange of criminal
records information within the Union" and has proved to be
"an indispensable tool used on a daily basis" which
has "real added-value" for judicial authorities.[58]
The proposed Directive — document (b)
10.16 The proposed Directive would amend the 2009
Framework Decision on the exchange of criminal record information
to include a mechanism to identify Member States holding details
of the previous convictions of third country nationals. Rather
than using ECRIS to send blanket requests to all Member States,
a new index filter would make it possible only to target those
Member States which hold relevant criminal record information.
10.17 Under the proposed changes, each Member State
would be required to include in its criminal records database
the nationality and fingerprints of third country national offenders
convicted by its courts and to establish a national index filter
containing anonymised information on third country national offenders
which would be shared with all other Member States. These index
filters could be searched to identify Member States holding criminal
record information on a particular third country national —
there would be no exchange of personal data at this stage. Following
a "hit" or match, ECRIS would be used to request further
details only from Member States holding relevant criminal record
information. This includes details of all previous convictions
held in the criminal records database of each requested Member
State, even if handed down in a third country.
10.18 The obligation to store the fingerprints of
convicted third country nationals goes beyond existing requirements
for convicted EU nationals — the 2009 Framework Decision
imposes no obligation on the convicting Member State to store
the fingerprints of EU nationals but, if it does so (as a matter
of national law or practice), then it must send the fingerprints
and other information relevant to the conviction to the offender's
Member State of nationality.[59]
The Commission considers that the difference of treatment is justified
by the need to secure reliable identification of third country
national offenders (TCN):
"Establishing the identity of TCN is often
particularly difficult if not impossible, for example because
reliable identity documents do not exist or are missing, or because
of widely used common surnames."[60]
10.19 Whilst the Commission views the mandatory inclusion
of fingerprints in ECRIS as a priority, it acknowledges that some
Member States have expressed "constitutional concerns",
questioned the "double standards" applicable to EU and
third country nationals, and highlighted practical difficulties.
In particular, many Member States do not store fingerprints in
their national criminal records databases or registers and these
are often not connected to their national automated fingerprint
identification systems.[61]
The Commission considers that the use of "state of the art
data minimisation technology", as well as effective tools
to anonymise data and reduce the risk of false matches, should
prevent any disproportionate interference with fundamental rights.
It says that its first review of the updated ECRIS system, which
should be completed within two years of the proposed Directive
taking effect, will pay "particular attention to the necessity
and proportionality of the use of fingerprints, other biometric
data and identification data" and include an evaluation of
the impact of the changes on the fundamental rights of third country
national offenders as compared to convicted EU nationals.[62]
10.20 As well as amending the 2009 Framework Decision,
the proposed Directive also incorporates the main provisions of
the 2009 Council Decision establishing ECRIS and will replace
it (except for Denmark, as it cannot participate in the proposed
Directive, or potentially for Ireland and/or the UK if either
decides not to opt in).[63]
The Commission expects the changes to ECRIS to take effect 12
months from the date on which the proposed Directive is adopted.
If implemented fully, it anticipates that each set of criminal
proceedings against a third country national would trigger a search
for previous convictions, but only those Member States holding
relevant information would receive a formal request through ECRIS.
10.21 The Commission considers that the changes it
has proposed will increase the exchange of criminal record information,
ensure equal coverage and treatment of EU and third country nationals,
make ECRIS more efficient, and reduce costs and bureaucracy by
filtering out unnecessary requests for information. It expects
the upgrade of ECRIS to cost around €10.7 million during
the period 2017-20 and to be funded from the EU Justice Programme.
The Minister's Explanatory Memorandum of 3 February
and his Supplementary Explanatory Memorandum of 11 February 2016
10.22 The Minister agrees with the Commission's broadly
positive assessment of the operation of the existing ECRIS system:
"International exchange of criminal records
is vital to ensure offenders cannot evade justice by travelling
from country to country. The UK is one of the biggest users of
ECRIS and, since 2010, checks on foreign nationals going through
the UK criminal justice system have increased by 1,650 per cent,
helping ensure more criminals are taken off our streets and making
our communities safer."[64]
10.23 He also agrees that further action is needed
to improve the criminal justice response to offending by third
country nationals:
"Establishing an offending history from
across the EU ensures that effective criminal justice decisions
are taken and that relevant public protection measures are considered
when third country nationals are arrested in the UK."[65]
10.24 The Minister welcomes the proposed Directive
and says that the Government would support "speedy implementation
of an effective proposal":
"The UK Government has been a leader in
Europe, and across the world, on efforts to improve the proactive
sharing of offender information between countries. The Home Secretary
has called for ECRIS to be developed and used more effectively,
and for there to be greater information sharing on non-EU nationals.
This is because when a non-EU national is arrested an ECRIS check
is often not conducted, although a check in his home country is
likely to be. In many non-EU countries there is no functioning
central criminal record system that allows for a reply to be obtained.
This means that an individual who offends in another EU Member
State and is subsequently arrested in the UK may not have his
offending history revealed. It would not be practical or sensible
to send a speculative ECRIS request to all EU Member States as
such an approach would overload the system. The proposed Directive
would solve this problem through the creation of an index, to
be searched on a hit/no-hit basis, which would allow any ECRIS
check to be targeted to the relevant Member State(s)."[66]
10.25 The Minister also supports the mandatory storage
and exchange of fingerprints to confirm the identity of third
country nationals, adding:
"It is well known that criminals frequently
attempt to hide their identities and steps to make that more difficult
are to be welcomed."[67]
10.26 The Minister is content with the legal base
proposed by the Commission — Article 82(1)(d) of the Treaty
on the Functioning of the European Union (TFEU) — which
provides for the adoption of criminal law measures to "facilitate
cooperation between judicial or equivalent authorities of the
Member States in relation to proceedings in criminal matters and
the enforcement of decisions". He considers that an EU-wide
system for the "standardised, rapid, coordinated and efficient"
exchange of information on the criminal record of third country
nationals is likely to be "the most effective remedy",
adding:
"The functionality of the software being
proposed provides a search mechanism which allows for anonymity
in searching and which would not be cost effective or easy to
replicate bilaterally."[68]
10.27 As well as supporting the use of criminal record
information during criminal proceedings, the Government is also
keen to promote its use "in a wider context, including safeguarding
and immigration", and intends to pursue this during negotiations.
The Government will also seek further information and clarification
on:
· The
impact that the different times at which convictions become 'spent'
in different Member States will have on the proposal and what
that will mean for searching against the index;
· How
the proposed changes will be applied to dual nationals (for example,
an individual who is a national of the UK and a non-EU State);
and
· Whether
the one year period envisaged for implementation of the changes
is realistic given the technical challenge of building the index
filter.
10.28 The Minister notes that the proposed Directive
is subject to the UK's Title V (justice and home affairs) opt-in
and sets out the factors which the Government will take into account
in reaching an opt-in decision:
· a)
the UK's role in leading efforts to improve the proactive sharing
of criminal conviction information between Member States, with
particular attention given to the Home Secretary's calls for the
expansion of ECRIS;
· b) how
far the proposed Directive builds upon measures already in place
to improve the safety of UK citizens, and provides a more effective
mechanism to exchange and retain criminal conviction information
on third country national offenders than Framework Decision 2009/315
currently provides;
· c) to
what degree the proposed Directive to share fingerprints would
allow the UK to more effectively and efficiently verify the identities
of third country nationals through the exchange of fingerprint
information with other Member States;
· d) the
implications of accepting CJEU [Court of Justice of the European
Union] jurisdiction in relation to the proposed Directive beyond
that already accepted by our participation in Framework Decision
2009/315 and Council Decision 2009/316.[69]
10.29 He informs us that the deadline for notifying
the UK's opt-in decision expires on 25 April. If the UK were to
opt into the proposed Directive, the Minister does not expect
there to be "any significant substantive impact on UK law":
"Criminal records are maintained in all
parts of the UK of all persons convicted of whatever nationality.
In England and Wales, for example, central records are kept on
the Police National Computer, which is accessible to all police
forces and law enforcement agencies, approved organisations and
government departments for specific purposes. A legislative regime
makes provision for access and appropriate safeguards (relevant
legislation includes the Rehabilitation of Offenders Act 1974,
the Police Act 1997, the Immigration and Asylum Act 1999, the
Safeguarding of Vulnerable Groups Act 2006 and the Protection
of Freedoms Act 2012). Police and prosecutors are able to request
criminal records data of TCNs from other States under ECRIS, police-to-police
cooperation and mutual legal assistance arrangements, and to process
that data in accordance with national law. Similarly, police and
prosecutors from other Member States are able to request criminal
records data of third country nationals from UK competent authorities.
The Data Protection Act 1998 already applies to these records.
"The proposed Directive will have to be
transposed into UK law to ensure that the relevant UK competent
authorities are obliged to create, transmit to other Member States,
and update an index filter of conviction data to permit other
Member States to conduct hit/no hit searches. Framework Decision
2009/315 was transposed, and Council Decision 2009/316 was implemented,
into UK law by Regulations 62-74 of the Criminal Justice and Data
Protection (Protocol no. 36) Regulations 2014 (SI 2014/3141, as
amended by SI 2014/3191."[70]
10.30 The Minister is satisfied that the proposed
Directive complies with fundamental rights, notably the protection
of personal data:
"The proposal continues to provide suitable
protection for personal data, by means of the integrity of the
ECRIS system which is balanced against the need to give competent
authorities access to criminal records data in order to prevent,
detect and investigate crime, and to impose appropriate criminal
sanctions. By requiring the provision of fingerprint data, it
is more likely that accurate data will be retained and exchanged.
In addition, by ensuring that the data of TCNs and EU citizens
are available for exchange between Member States, the principle
of equality before the law will be further protected."[71]
10.31 The Minister provides a detailed breakdown
of the financial implications of the proposal:
"The Commission estimate an initial, one-off
set-up cost to the Commission of approximately £828,100 and
to each Member State of approximately £20,800 (a total of
approximately £584,000 across 28 Member States.) There would
then be an ongoing running cost, estimated by the Commission to
begin in the first year of operation at approximately £508,000
for the Commission and £143,675 for each Member State (a
total of approximately £4,023,000 across 28 Member States).
The running cost to the Member States is then projected to rise
over three years to approximately £346,838 per Member State
(a total of approximately £10,245,000 across 28 Member States.)
In addition, the prospective cost of fingerprint software is estimated
to be an initial set-up of £3,802,000 for the Commission
and between £1,521,000 and £2,283,000 per Member State."[72]
10.32 He notes that the Dutch Presidency is eager
to secure agreement to a General Approach at the Justice and Home
Affairs Council in June.
Previous Committee Reports
None.
48 See the Conclusions agreed by the European Council
on 17/18 December 2015. Back
49
See p.35 of the Commission Staff Working Document (ADD 1). Back
50
See Council Framework Decision 2008/675/JHA on taking account
of convictions in the Member States of the EU in the course of
new criminal proceedings. Back
51
See Council Framework Decision 2009/315/JHA on the organisation
and content of the exchange of information extracted from the
criminal record between Member States. Back
52
Council Decision 2009/316/JHA on the establishment of ECRIS. Back
53
See Comma Paper 8671, pp.112-4 and 129-30, published in July 2013. Back
54
See Command Paper 8897, pp.122-44, published July 2014. Back
55
See Commission Decision 2014/858/EU for 29 non-Schengen measures
and Council Decision 2014/857/EU for the remaining six Schengen
measures. Back
56
See our Twenty-third Report HC 342-xxii (2015-16), chapter 2 (10
February 2016) and our First Report HC 342-I (2015-16), chapter 6
(21 July 2015). Back
57
See the Conclusions on Counter-Terrorism agreed on 20 November
2015. Back
58
See p.13 of the Commission report. Back
59
The UK includes fingerprints in its criminal records and is one
of only eight Member States to exchange fingerprints through ECRIS
(see ADD1 -Commission Staff Working Document). Back
60
See p.5 of the Commission's explanatory memorandum accompanying
the proposed Directive. Back
61
See pp.6-7 of Commission's explanatory memorandum accompanying
the proposed Directive. Back
62
See p.11 of the Commission's explanatory memorandum accompanying
the proposed Directive. Back
63
Under Protocol No.22 on the Position of Denmark annexed to the
EU Treaties, Denmark does not participate in EU justice and home
affairs measures adopted after the Lisbon Treaty took effect on
1 December 2009, but remains bound by earlier measures. Back
64
See para 19 of the Minister's Explanatory Memorandum. Back
65
See para 2 of the Minister's Explanatory Memorandum. Back
66
See paras 20 and 23 of the Minister's Explanatory Memorandum. Back
67
See para 21 of the Minister's Explanatory Memorandum. Back
68
See para 18 of the Minister's Explanatory Memorandum. Back
69
See the Minister's Supplementary Explanatory Memorandum. Back
70
See paras 13-14 of the Minister's Explanatory Memorandum. Back
71
See para 16 of the Minister's Explanatory Memorandum. Back
72
See para 29 of the Minister's Explanatory Memorandum. Back
| 
