Select Committee on European Communities Eleventh Report


59. PROPOSAL FOR A JOINT ACTION ON MAKING IT A CRIMINAL OFFENCE TO PARTICIPATE IN A CRIMINAL ORGANISATION (DOC (P)10407/97)

Letter from Lord Tordoff, Chairman of the Committee, to Joyce Quin MP, Minister of State, Home Office

  Sub-Committee E considered the draft Joint Action at its meeting on 12 November. In its view, the proposal raises three main issues:

      -   the definition of the scope of criminality (Articles 1 and 2);

      -   the extent to which the United Kingdom's laws on conspiracy would be adequate implementation (Article 2); and

      -   the need for dual criminality, both in relation to any prosecution in the United Kingdom and in relation to the provision of legal assistance to the Member States (Articles 2 and 4).

  The Sub-Committee was concerned at the width of the prohibition contained in Article 2 and questions whether the crime of conspiracy would provide an adequate basis for implementation of the Joint Action. If not, the Sub-Committee would have considerable reservations about any legislation which might be needed.

  You comment on these matters in your Explanatory Note of 9 October and indicate that further consideration is being given to them by the Government. The Sub-Committee would be grateful if you could provide it with clarification of the present position on each of the three issues listed above in the light of developments in the negotiations in the Multi-disciplinary Group on Organised Crime and the Government's views on them, in particular having regard to the reactions of the Sub-Committee.

  I understand that it remains the intention of the Luxembourg Presidency to have the Joint Action adopted by Council by the end of the year. It would therefore be helpful if you could let the Committee have your response as soon as possible. In the meantime the document remains under scrutiny.

19 November 1997

Letter from Joyce Quin MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 19 November. The text of the draft Joint Action has since evolved and I attached the latest version (only available in French). As usual, we have removed references in the footnotes to the positions of individual Member States to avoid disclosing these.

  The Joint Action is due to be discussed at the Justice and Home Affairs Council on 4-5 December. It could well be adopted then, although that is not certain. The Government's Position is that we could accept the text in the form enclosed with this letter.

  I deal in turn with the three points in your letter.

(i)  The definition of the scope of criminality (Articles 1 and 2)

  There has been prolonged debate in the negotiations about this issue. In the revised text Article 1 defines a criminal organisation in terms of the characteristics of the organisation and its criminal purpose. On the former point (characteristics) Article 1 refers to a lasting and structured association of more than two people acting in concert with a view to committing certain crimes. This reflects the wish of those Member States which want the Joint Action to focus on particular forms of organised crime. The United Kingdom has argued, so far unsuccessfully, that the definition is unnecessarily limiting and rigid; that it fails to address the more sophisticated and flexible way in which much of modern organised crime increasingly operates, where alliances form and re-form for different criminal enterprises; and that a criminal offence defined in terms of Article 1 would impede prosecution because of the difficulty of establishing each of the elements required (the organisation has to be structured and lasting, it has to have one of the criminal purposes listed, on which see below, and the defendant has to participate knowingly in its activities).

  Provided the UK is permitted by the Joint Action to rely instead on the concept of conspiracy, and provided we choose to implement the Joint Action by way of such a reliance, there will be no obligation to import the concept in Article 1 into UK criminal law. The conspiracy point is discussed below.

  As regards the criminal purpose of the organisation, the latest text of Article 1 refers to the intention to commit crimes of offences punishable by deprivation of liberty or a detention order of a maximum of at least 4 years through the use in particular of intimidation, threats, violence, fraudulent measures or corruption. The text goes on to say that the crimes and offences referred to above include those mentioned in the Europol convention (Article 2 and the Annex to the Convention) provided they fall above the 4 year penalty threshold. I attach the relevant extracts from the Europol Convention so that you can see the list of offences [not printed].

  Member States have expressed a range of views on:

    -   the penalty threshold. The UK has tended to the view that 4 years is unnecessarily high;

    -   whether a list of crimes is needed, whether it should be definitive or illustrative and what crimes should be listed. The UK has argued that a list is unnecessary and risks omitting some forms of criminality which may be important or may become important. The UK has argued that it should suffice to rely on the penalty threshold. Nevertheless we believe that the present text, although not ideal, would be acceptable.

  

(ii)  The extent to which the United Kingdom's laws on conspiracy would be adequate implementation (Article 2)

  In the revised text Article 2 focuses on defining what is meant by participation. The Article states that Member States must criminalise either the conduct described in paragraph 1, which consists of taking part in the criminal organisation's activities referred to in Article 1 or in other activities of a criminal organisation, or the conduct described in paragraph 2, or both. I consider that the offence of conspiracy adequately covers the conduct described in paragraph 2, which was drafted specifically in order to meet the United Kingdom's intention to rely on conspiracy; and that consequently the crime of conspiracy will provide an adequate basis for implementation of the Joint Action. It remains our negotiating objective to protect that position.

  

(iii) The need for dual criminality, both in relation to any prosecution in the United Kingdom and in relation to the provision of legal assistance to the Member States (Articles 2 and 4)

  Article 4 would make it necessary to extend our law on conspiracy, so that it would be an offence for a person in the UK to conspire with one or more others to commit crimes in another Member State. The Home Secretary and I believe that such an extension would be desirable in any event and indeed we believe it should include conspiracies affecting any other country, whether or not it be a Member State of the European Union. We intend that an offence will only have been committed if the crime in whose commission abroad the defendant has conspired would be a crime if committed in the UK I believe that answers the first part of the Committee's question. Such an extension of the conspiracy laws would require primary legislation.

  The second part of your question relates to legal assistance. The current text does not require Member States to set aside any dual criminality conditions they attach to the provision of mutual legal assistance. At present such a condition has to be met before a court here can grant a warrant for search and seizure of evidence requested by another country (Section 7 of the Criminal Justice (International Co-operation) Act 1990).

  Some Member States would like to insert a provision requiring Member States to provide mutual legal assistance regardless of dual criminality. This is partly motivated by concern that countries, such as the UK which decide not to criminalise participation in a criminal organisation as defined in Article 2.1, but to rely instead on conspiracy, may be prevented by the dual criminality condition from assisting prosecutions in other Member States. The UK's position has been that such concern is misplaced, at least as regards the UK's ability to provide assistance to our partners. we do not insist on dual criminality as a condition for providing most forms of legal assistance in criminal cases. Even where the condition applies, ie in relation to powers of search and seizure, it is very rare for assistance to be prevented. This is because the dual criminality condition turns on the facts of the case not on how the requesting state defines its offences. In other words, what matters is whether the conduct being investigated or prosecuted would amount to a serious arrestable offence if committed here. We have argued that that test would be met in the great majority of cases covered by the Joint Action.

  A proposal may yet be made to insert a provision requiring Member States to disapply dual criminality in cases covered by the Joint Action. Bearing in mind the context, ie that the issue here is the obtaining of evidence requested by one of our EU partners rather than the mounting of prosecutions in the UK, and the importance of this Joint Action as part of more effective judicial co-operation across the European Union against organised crime, my intention is to listen to the arguments and form a view in the light of them on whether the UK could accept and flexibility on this point. However, a number by of our partners have made clear that they could not accepted an obligation in the near future to dispense straightaway with the dual criminality requirement.

  A possible compromise may be an undertaking by the Council to review after a period whether dual criminality is impeding effective implementation of the Joint Action.

27 November 1997

Letter from Joyce Quin MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  In my letter to you of 27 November, I said that the draft Joint Action was due to be discussed at the Justice and Home Affairs Council on 4-5 December, and that it could well be adopted then. In the event, the text was not agreed. The Presidency will make another attempt to secure agreement on 18 December. If this succeeds, the Presidency intends to put the text to a Fisheries Council the same day as a A" point, for adoption.

  I understand that Sub-Committee E was not able, at its meeting on 3 December, to discuss my response to the points you had raised with me in your letter of 19 November. You may find it helpful to have the latest text (in English) which arrived earlier this week (CRIMORG 32) and I enclose a copy [not printed]. The text is in substance the same as the one you saw earlier. I believe your intention is to take this in Sub-committee E on 17 December. As I indicated in my earlier letter, we could have accepted the earlier text, and it would have been our intention, had the text been finalised at Council last week, to signify our agreement to it. That remains our position and if Coreper is able to put the text in its present form to the Fisheries Council on Thursday, we plan to support its adoption.

12 December 1997

Letter from Lord Tordoff, Chairman of the Committee, to Joyce Quin MP, Minister of State, Home Office

  Thank you for your recent letter of 12 December enclosing a copy of the latest English text of the Joint Action. At its meeting yesterday, Sub-Committee E considered the proposal and decided to clear it from scrutiny.

18 December 1997


 
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