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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