5.Letter from Lord Filkin, Parliamentary
Under Secretary of State,
Home Office, to the Chairman
CRIME
(INTERNATIONAL
CO
-OPERATION)
BILL
I am writing to reply to the points raised in the
Committee's report in respect of the Crime (International Co-operation)
Bill.
Customer Information Orders and Account Monitoring
Orders
The Committee considered that there is a need for
additional safeguards in the Bill in order to ensure compatibility
with ECHR Article 8.
It recommended:
There should be an express requirement for the
applicant to disclose to the judge information relevant to the
application, including the information which weakens the case
for the order, except for information about the identity of confidential
sources and information that would endanger lives or national
security.
We could not impose such a requirement. The applicant—a
police or customs officer (or in Scotland a procurator fiscal)—is
acting on behalf of the overseas authority making the request.
The request will include the information required by the Protocol
and the applicant can clearly only disclose such information as
they have in their possession. While the applicant must be able
to satisfy the judge of the matters set out in clauses 33, 36,
38 and 41 they cannot, and should not have to ,go back to the
requesting authority to seek additional information. It would
set an undesirable precedent for mutual legal assistance more
generally, and it would not be in accordance with our obligations
under the Protocol. The Secretary of State is responsible for
ensuring that the request contains sufficient information for
the judge to be satisfied of these matters and for ensuring that
it meets the requirements set out in the Protocol. If he considers
that the request is deficient and is lacking relevant information,
he will ask the requesting authority to provide additional information
before directing a police or customs officer to apply for the
order.
I should clarify that, as these are mutual legal
assistance requests they are made by judicial authorities, not
by police officers. The request will have been through the judicial
process in the requesting state when it arrives here. Police (and
customs) officers here will apply for such orders for consistency
with domestic practice for mutual legal assistance generally and
in line with the Proceeds of Crime Act. Unlike under POCA, the
UK is not the investigator here, we are merely acting on behalf
of another country.
In mutual legal assistance it is well established
that a request is considered purely on the basis of the information
provided in the request, so long as this is sufficient to establish
that the requirements for providing that particular type of assistance
are met. In this case, these are clearly set out in the Protocol.
There is no requirement for the requesting authority to provide
all of the facts of the overseas investigation. It is not required
in relation to requests for search of premises, nor for production
orders to produce bank records (a frequently requested form of
mutual legal assistance already provided by the UK in relation
to information on identified accounts) and we do not consider
it necessary or helpful to make completely different requirements
in relation to requests to trace and monitor bank accounts.
There should be an express requirement for judges
to include among the terms of a customer information order or
an account monitoring order any restrictions which the judge thinks
necessary to ensure that action under the order would be compatible
with ECHR Article 8.2.
The general wording used in clause 32(7) (and clauses
35(6), 37(7), and 40(6)) will not override the rule of construction
that the Human Rights Act, and the ECHR rights, apply. General
words such as these do not have the effect that a court would
have to act incompatibly with ECHR rights under section 6(2)(b)
of the Human Rights Act. This is the same for the relevant provisions
of the Proceeds of Crime Act which these clauses in this Bill
mirror. (In that Act, there is only one express reference to the
HRA, in Section 266(3)(b), and this is because a court is under
an unconditional duty to make an order for civil recovery under
that Part of that Act).
Our position is supported by the House of Lords judgment
in R (on the application of Morgan Grenfell & Co Ltd) v.
Special Commissioner of Income Tax) [2002] 3 All ER 1 that
courts would ordinarily construe general words in a statute as
not having been intended to have some startling or unreasonable
consequence, such as overriding a fundamental human right like,
in this judgment, legal professional privilege. An intention to
override such rights must be expressly stated or appear by necessary
implication. In the judgment, reference was made to safeguards
in the relevant legislation—if, despite such safeguards,
ECHR rights are not displaced, there is an even stronger case
that they will not be displaced where the legislation uses general
words alone, such as in this Bill.
As to the specific recommendation to require judges
to include any restrictions necessary to ensure action taken is
compatible with the ECHR, we consider this unnecessary. A financial
institution is not a public authority, so is not bound to act
compatibly with the Convention rights. However, it is obliged
to act in compliance with the order. The order itself must be
compliant with Convention rights, as it is made by a judge. The
financial institution should only be under the obligations and
requirements imposed by the customer information or account monitoring
order and must act in accordance with it. It should not have to
make an assessment of compatibility with Convention rights, which
is the responsibility of the judge and the Secretary of State.
Furthermore, we do not know what restrictions the
Committee had in mind to ensure disclosure is "necessary
in a democratic society". Customer information is defined
by reference to the Proceeds of Crime Act; account monitoring
orders are defined in this Bill. Ultimately, if, even following
a direction from the Secretary of State, the judge decides that
disclosure of that information would not be in accordance with
ECHR, he will not make the order at all.
Clause 82: Cross border surveillance
Paragraphs 16-24 of the Committee's Report deal with
cross border surveillance by police officers from other jurisdictions.
These provisions are to be inserted into the Regulation of Investigatory
Powers Act 2000 by clause 82 of the Bill. It will provide for
automatic authorisation of urgent cross border surveillance of
up to five hours. One of the preconditions that the new section
76A requires to be satisfied is that the surveillance is lawful
in the State from which it comes. In earlier correspondence I
stated that:
'As all Schengen States are signatures to the ECHR,
surveillance, in order to be lawful in any of those States, would
have to be proportionate under the ECHR".
The Committee concludes in paragraph 22 of its Report
that it does not accept this analysis. Its reasons are set out
in paragraphs 18-21. In paragraph 18 the Committee states that
my earlier comment assumes that in all the Schengen States the
ECHR is incorporated into national law. The Committee suggests
that this is incorrect and gives the Republic of Ireland as an
example of a State that has not incorporated the ECHR. I should
clarify that Ireland is not signed up to Article 40 of the Schengen
provisions. It is our understanding that each of the States, which
will be taking part in Article 40, has incorporated the ECHR into
their domestic law.
The Joint Committee then goes on to state in paragraphs
19 and 20 that even if a State has incorporated the ECHR into
domestic law that does not necessarily mean that the lawfulness
of police conduct in those States will depend on it being compatible
with Convention rights. I can see the force of this argument in
theory; however I would make two further observations. First,
it is the Government's view that when considering matters of this
nature we are entitled to assume that our European partners do
in practice act in accordance with their international obligations
including the ECHR. As part of that we consider it fair to assume
that the domestic law in these States does deliver human rights
compliance by their law enforcement bodies. Second, whilst we
note the point the Committee makes about derogations, what is
being considered here is surveillance of a person who has been
suspected of a limited range of serious criminal offences, that
will not involve entering into private homes or place inaccessible
to the public. As evidenced by its cross border nature, this form
of surveillance is mainly going to involve following the suspect
along public highways or on public transport. I think it extremely
unlikely that any Schengen State would make specific provision
to derogate from the ECHR in respect of such cases. Accordingly,
in practice I remain of the view that a pre condition of lawfulness
abroad will mean that this type of surveillance will be proportionate
under the ECHR.
Paragraph 21 of the Report goes on to say that States
do not have responsibility under the ECHR for the extra-territorial
action of their officials. However, as the nature of the surveillance
to be undertaken in the United Kingdom will be substantially the
same as that which is undertaken in the state from which it originates,
it seems to us that if the surveillance was proportionate in the
originating state, it should continue to be proportionate after
entering the UK. Furthermore, as the Report sets out, the foreign
officers will be required to contact the UK authorities when they
enter the UK and at any time those authorities will be able to
order the surveillance to cease. I should add that in our view
once foreign officers are undertaking surveillance in the United
Kingdom under the authorisation found in new section 76A they
will be public authorities under the Human Rights Act 1998. Accordingly,
any member of the public who is concerned about such surveillance
could challenge it if he so wished.
We note the conclusions found at the end of paragraph
24 about whether it is possible to place any of these safeguards
on the face of the Bill. Having considered the points you raised,
and the points raised by the Lords in Grand Committee, we propose
making two amendments on Report. The first will place on the face
of the Bill a requirement that the foreign officers must contact
a UK officer immediately on arrival in the UK. Second we propose
putting on the face of the Bill a provision making the lawfulness
of the surveillance conditional on the foreign officers not entering
private homes and places inaccessible to the public. We hope this
goes someway to meeting the concerns you have raised.
I hope that the Committee finds this further explanation
of our position in respect of these two key areas of the Bill
helpful. I should like to take this opportunity to thank the Committee
for their helpful comments in respect of the provisions to allow
for the mutual recognition of terrorist assets.
18 February 2003
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