Documents considered by the Committee on 8 June 2016 Contents

6Exchanging information on criminal convictions

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee

Document details

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

Article 82(1)(d) TFEU; ordinary legislative procedure; QMV

Department

Home Office

Document Numbers

(37463), 5438/16 + ADDs 1–2, COM(16) 7

Summary and Committee’s conclusions

6.1Maintaining a complete record of previous convictions can make an important contribution to public safety by providing valuable background information on criminal suspects, their suitability for bail, and the appropriate sentence if convicted. 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 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.

6.2One 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.

6.3The proposed Directive 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”.34 It would establish a new “index filter” containing anonymised information on convicted third country nationals, making it possible to identify Member States holding relevant criminal record information.

6.4The UK participates in the current ECRIS system. The proposed Directive is subject to the UK’s Title V (justice and home affairs) opt-in, meaning that the UK will only be bound by the changes if it decides to opt in. In his latest update, the Immigration Minister (James Brokenshire) informs us that the Government has decided to opt into the proposal. He also responds to questions we raised about the mandatory storage and exchange of the fingerprints of convicted third country nationals and the costs of implementing the changes proposed by the Commission.

6.5We note the Government’s decision to opt into the proposed Directive. We remind the Minister that we did not express a view on the merits of opting in and cannot therefore be said to have “supported” the Government’s decision.

6.6In his Explanatory Memorandum on the proposal, the Minister indicated that the Dutch Presidency was keen to secure a General Approach at the June Justice and Home Affairs Council. Given the difficulties alluded to in his latest update, we assume that this is an unrealistic timetable. We ask the Minister to provide regular progress reports on the negotiations and to explain how the concerns identified in his Explanatory Memorandum, for example on the handling of “spent” convictions, the mandatory storage of the fingerprints of convicted third country nationals, the mechanism for exchanging fingerprints, and the treatment of dual nationals are being addressed. Once negotiations are further advanced, we ask him to provide an advance copy of the text which is expected to form the basis for the Council’s General Approach. Meanwhile, the proposed Directive remains under scrutiny. We draw the latest developments to the attention of the Home Affairs Committee.

Full details of the documents

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

6.7Our earlier Report (listed at the end of this chapter) provides a detailed overview of the proposed Directive and the Government’s position.

6.8We noted the Government’s support for the “proactive sharing of offender information”, including through the mandatory storage and exchange of fingerprints to confirm the identity of third country nationals. As the Minister indicated that a number of other Member States had raised “constitutional concerns” and identified practical obstacles in relation to these provisions, we asked him to provide further details.

6.9The Commission’s Impact Assessment accompanying the proposed Directive categorised the UK as a Member State “with a low level of automation” in managing the exchange of criminal record information.35 We asked the Minister whether it was 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. As the Commission expects most of the costs to be met from the EU Justice programme (in which the UK does not participate), we also asked the Minister to confirm that implementation costs in the UK would have to be met by the Government, without any EU subsidy.

6.10In the event that the Government decided not to opt into the proposed Directive, we asked the Minister to confirm that the UK would remain bound by the existing ECRIS system and related measures. As the Minister now confirms that the Government has opted in, this question no longer arises.

The Minister’s letter of 16 May 2016

6.11The Minister notifies us that the Government has decided to opt into the proposed Directive on the grounds that UK participation is “in the national interest” and “notes” the Committee’s support.

6.12He explains why some Member States have raised concerns about the mandatory storage and exchange of the fingerprints of third country nationals:

“First, Member States have raised a question over whether it is discriminatory to require a third country national to be treated differently from an EU national within the same Directive. For example, at present, the legal text of the proposed Directive requires Member States to collect, store and exchange fingerprints for third country nationals. However, whilst the draft legislation does allow for fingerprints to be exchanged in respect of EU nationals, it does not require this. Some Member States questioned whether this is contrary to the Charter of Fundamental Rights. We anticipate that this issue will be resolved in Council in favour of keeping this in the text.

“Secondly, Member States have raised concerns over the definition of ‘dual national’ in the draft legal text; in particular whether it will mean that conviction information for persons who are citizens of at least one EU Member State and a third country would be stored in the index filter. The concern raised is that it would be contrary to the fundamental rights of a person holding EU citizenship to treat them as a third country national for the purposes of this proposal. A number of Member States, including the UK, have argued that a failure to include dual nationals’ data in the index filter would allow offending histories to be hidden. For example, take a joint UK-third country national who has committed a serious offence and has a criminal record in the UK. Whilst visiting Spain he is arrested for a similar offence but he produces identity documents showing he is a national from the third country, not the UK, and that country does not have a functioning criminal record system. Spain would not know to ask the UK about his offending history. Discussions continue on how drafting can accommodate this policy intent.

“Thirdly, some Member States have raised concerns that they would be required to collect, store and exchange fingerprints for third country nationals, in circumstances where they would not currently take fingerprints during criminal proceedings under their national law. Different Member States have different practices and legal frameworks for taking fingerprints in criminal proceedings. In the UK, fingerprints can be taken for all recordable offences, i.e. any offence punishable by imprisonment within the meaning of paragraph 3 of the National Police Records (Recordable Offences) Regulations 2000 (or an offence specified by the relevant schedule). As it is generally only recordable offences that are kept on our criminal record and exchanged under ECRIS, we are able to obtain fingerprints for all the relevant offences. Discussions continue on whether and, if so where, a threshold might be set to exclude minor offending from the fingerprinting obligation, in the interests of proportionality.

“Fourthly, there has been widespread concern amongst Member States that the mechanism for exchanging fingerprints has not been made explicit on the face of the legislation, meaning the technical elements of fingerprint exchange have been left for implementing acts. Recent technical discussions have underlined that there is further work to do on the various options. However, the Government considers that the mandatory fingerprinting requirement in this measure is a significant step forward for public protection and we are working with the institutions to suggest suitable exchange mechanisms.”

6.13Turning to implementation costs, the Minister cites the initial estimates provided by the Commission whilst acknowledging that they may need to be updated once the precise mechanism for exchanging fingerprint data has been agreed.

“The Commission estimates the initial start-up cost to the UK, excluding the cost of exchanging fingerprints, to be £26,915. This is lower than eight other Member States (Austria, Belgium, Denmark, France, Germany, Luxembourg, Netherlands and Sweden) and equivalent to one (Italy).

“The estimated yearly maintenance cost to the UK, again, excluding the cost of exchanging fingerprints, is £7,915. This cost is estimated by the Commission to be lower than ten other Member States (Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Netherlands and Sweden) and equivalent to one (Italy).

“Initial examination of the implementation costs of the index filter proposal have shown that it is likely that these will be met through existing budgets. We will not be able to accurately estimate the set up and running costs of the fingerprint solution until the mechanism for exchanging fingerprints has been identified.”

Previous Committee Reports

Twenty-fourth Report HC 342-xxiii (2015–16), chapter 10 (24 February 2016).


34 See the Conclusions agreed by the European Council on 17/18 December 2015.

35 See p.35 of the Commission Staff Working Document (ADD 1).




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13 June 2016