Letter from the Rt Hon Michael Howard, QC, MP, Home
Secretary, to Lord Hoffmann, Chairman of Sub-Committee E
Thank you for your letter of 12 November[13] recording
the comments of Sub-Committee E of the European Communities Committee
on our Explanatory Note on the draft Convention on mutual legal
assistance in criminal matters. You ask what data protection
safeguards exist to cover the exchange of criminal records data
between Member States and whether these would require strengthening
in the light of the proposed Convention on mutual assistance
in criminal matter. My Private Secretary wrote to you on 13 December
explaining that we were making enquiries. I am now able to let
you have a full reply.
Article 4(5) of the proposed Convention does not impose any
obligation to exchange data beyond those already required by
Article 13 of the 1959 Council of Europe Convention on Mutual
Assistance in Criminal Matters (the text of which is attached).
However, whereas such information may at present be transmitted
either directly between the judicial authorities of the requesting
State and the appropriate services of the requested State, or
through the central authorities, Article 4(5) would make direct
transmission mandatory.
In general, requests for the exchange of criminal record
data between the United Kingdom and other Member States are channelled
through the United Kingdom Central Bureau of Interpol. In the
United Kingdom, criminal records data are held on the Police
National Computer (PNC). Interpol London is a registered user
of the PNC, in accordance with the Data Protection Act 1984,
and the Interpol registration makes specific provision to allow
Interpol to disclose criminal records data to other countries
who are Interpol members. However, a requirement of that registration
is that Interpol must also deal with the data in a manner which
is compatible with the data protection principles. These are
set out in Schedule 1 to the 1984 Act and are essentially legally
enforceable code of good data protection practice. Consequently,
before disclosing the data, Interpol will, for example, make
enquiries as to the purpose for which the data is required, and
seek to verify the identity of the individual concerned. Of course,
once the data has been disclosed to an authority in another Member
State it is no longer subject to the protection of domestic legislation.
However, when data is exchanged it is done so on the basis of
a mutual understanding that it is only for the use of police
and judicial authorities.
For these reasons, I do not intend to seek to modify Article
4(5).
7 January 1997
1959 EUROPEAN CONVENTION OF MUTUAL ASSISTANCE IN CRIMINAL
MATTERS
ARTICLE 12
1. A witness or expert, whatever his nationality, appearing
on a summons before the judicial authorities of the requesting
Party shall not be prosecuted or detained or subjected to any
other restriction of his personal liberty in the territory of
that Party in respect of acts or convictions anterior to his departure
from the territory of the requested Party.
2. A person, whatever his nationality, summoned before the
judicial authorities of the requesting Party to answer for acts
forming the subject of proceedings against him, shall not be prosecuted
or detained or subjected to any other restriction of his personal
liberty for acts or convictions anterior to his departure from
the territory of the requested Party and not specified in the
summons.
3. The immunity provided for in this Article shall cease
when the witness or expert or prosecuted person, having had for
a period of 15 consecutive days from the date when his presence
is no longer required by the judicial authorities an opportunity
of leaving, has nevertheless remained in the territory, or having
left it, has returned.
CHAPTER IV
Judicial Records
ARTICLE 13
1. A requested Party shall communicate extracts from and
information relating to judicial records, requested from it by
the judicial authorities of a Contracting Party and needed in
a criminal matter, to the same extent that these may be made
available to its own judicial authorities in like case.
2. In any case other than that provided for in paragraph
1 of this Article the request shall be complied with in accordance
with the conditions provided for by the law, regulations or practice
of the requested party.
CHAPTER V
Procedure
ARTICLE 14
1. Requests for mutual assistance shall indicate as follows:
(a) the authority making the request,
(b) the object of and the reason for the request,
(c) where possible, the identity and the nationality of the
person concerned, and
(d) where necessary, the name and address of the person to
be served
2. Letters rogatory referred to in Articles 3, 4 and 5 shall,
in addition, state the offence and contain a summary of the facts.
ARTICLE 15
1. Letters rogatory referred to in Articles 3, 4 and 5 as
well as the applications referred to in Article 11 shall be addressed
by the Ministry of Justice of the requesting Party to the Ministry
of Justice of the requested Party and shall be returned through
the same channels.
2. In case of urgency, letters rogatory may be addressed
directly by the judicial authorities of the requesting Party
to the judicial authorities of the requested Party. They shall
be returned together with the relevant documents through the
channels stipulated in paragraph 1 of this Article.
3. Requests provided for in paragraph 1 of Article 13 may
be addressed directly by the judicial authorities concerned to
the appropriate authorities of the requested Party, and the replies
may be returned directly by those authorities. Requests provided
for in paragraph 2 of Article 13 shall be addressed by the Ministry
of Justice of the requesting Party to the Ministry of Justice
of the requested Party.
Letter from Lord Hoffman, Chairman of Sub-Committee
E, to the Rt Hon Michael Howard, QC, MP, Home Secretary
Thank you for your letter of 7 January replying to my letter
of 12 November. Your letter, commenting in particular on Article
4(5) of the proposed Convention and the safeguards for the individual
concerned in relation to data exchanges under that provision,
was considered by Sub-Committee E at its meeting on 29 January.
You explained the position under the Data Protection Act
1984 and the practice of Interpol. At the end of the third paragraph
of your letter you say "when data is exchanged it is done
so on the basis of a mutual understanding that it is only for
the use of police and judicial authorities". The Sub-Committee
would be grateful if you could explain to what extent existing
international obligations, including the Council of Europe Convention
on Data Protection, would be relevant in providing protection
for the individual concerned.
26 February 1997
13 See Correspondence with Ministers, 5th Report, Session 1996-97, p. 39. Back
