Select Committee on European Communities Fourteenth Report



  36.    Article 10 would provide for controlled deliveries to be carried out at the request of a Member State in relation to criminal investigations into extraditable offences. The controlled deliveries would be conducted by the requested Member State having regard to its national law and in accordance with its national procedures. The text has not been changed from the previous versions and is virtually identical to Article 22 of the Naples II Convention where, as already mentioned, it forms part of the "Special forms of co-operation".

  37.    Liberty said that Article 10 went well beyond the scope of the 1959 Convention and the relevant provisions of the Schengen Agreement. The provision would extend the use of controlled deliveries to any goods subject only to the requirement that the offence in question be an extraditable one (p 21). Justice also noted the fact that Article 10 introduced a new topic which like the interception of telecommunications provisions was investigative in nature. While there was a need for some judicial involvement in the form of an authorisation of the procedure, Article 10 did not presuppose any imminent proceedings (p 12). Justice drew attention to the possible overlap with the Convention applying the Schengen Agreement. That Convention already provided for controlled deliveries and although it was not a party to Schengen the effect of Article 10 would be that the United Kingdom would in effect be participating in it. It was therefore important, in Justice's view, that the operation in practice of the relevant provisions of Schengen be reviewed   (p 12).

  38.    The Minister did not think that the Convention would change the law in practice in the United Kingdom. However, as in the case of Naples II, the inclusion of express provisions on controlled deliveries in the Convention might focus other States' efforts and encourage them to work together more than had been done in the past (QQ 37,38). Mr Wells said that Customs and Excise had, in the past six months, offered far more controlled deliveries (78) to other Member States than had been offered in return (7) (Q 39). The Minister explained that drugs were not the only subject of controlled deliveries. They might, for example, concern obscene materials, toxic and nuclear waste, works of art, money and even human beings (Q 40).


  39.    Article 13 provides that a Member State requesting assistance in a criminal investigation may temporarily transfer a person in custody in its own territory to the Member State from which the assistance is requested to participate there in the investigation. The transfer would require the agreement of the competent authorities of the Member States concerned. Member States could declare that before such an agreement was reached, the consent of the prisoner to the transfer would be required. The period of detention in the territory of the requested Member State was to be deducted from the period of detention which the prisoner would serve in the requesting Member State. The prisoner could not be prosecuted or detained in the territory of the requested Member State in respect of acts or convictions prior to departure from the territory of the requesting Member State.

  40.    Liberty noted that certain safeguards provided by the 1959 Convention had not been made mandatory, in particular the refusal of a transfer where the individual concerned did not consent to be transferred. Member States were given the option to make the consent of the individual a pre-condition for any agreement to transfer. The United Kingdom should exercise this option (p 21). Justice said that the transfer of an individual without his or her consent should be subject to judicial control. Following the 1959 Convention, a transfer might be refused if it was liable to prolong the prisoner's detention or if there were other overriding grounds (p 15).

  41.    The Minister explained that what was being put forward in Article 13 respected the different positions in the Member States. The United Kingdom did not intend to change its policy, which required a prisoner's consent before transfer, whether to or from the United Kingdom[14]. Some Member States, however, wanted to retain the option to be able to transfer prisoners without their consent, even though a prisoner might not be very forthcoming if transferred without consent. The Minister said that different national laws and practices had to be respected: "it is mutual assistance but there is also mutual recognition of the legal situation obtaining in each of the different countries" (QQ 41-43).


  42.    The 14 November text of the Convention contains a new Article 15a, entitled "Covert investigations". It follows almost verbatim the text of Article 23 of Naples II. As mentioned above, covert investigations are one of the "special forms of assistance" provided for in that Convention. Under these provisions officers from the requesting Member State would be permitted to operate, for a limited duration and with the co-operation and support of, but subject to any conditions laid by, the authorities of the requested Member State, under cover of a false identity in the territory of the requested Member State. Covert investigations differ from surveillance, the former involving some contact with the suspect. When adopting the Convention, a Member State may declare that it is not bound by any or all of the provisions relating to covert investigations.

  43.    The Government said that it was considering whether there was a need for such a provision in the Convention (Expl.Note p 4). The Minister said: "What is again being put forward here is really to find a formula that satisfies countries and, as a whole, takes into account different ways of dealing with these issues while, at the same time, not allowing these differences to undermine the goal of co-operation and mounting joint activities in providing mutual assistance, when both parties agree that it is necessary" (Q 45).


  44.    Liberty considered data protection to be a matter of particular concern because the processing of personal data concerning "activities of the State in areas of criminal law" was one of the matters excluded from the EC Data Protection Directive[15]. Liberty drew attention to the fact that in areas covered by European Community law, such as customs co-operation, the Directive applied and was expressly included in the relevant legislation (p 22). Justice also expressed concern that the Convention made no mention of rules on data protection. It added that whilst reference had been made by the previous Government to the Council of Europe Convention on data protection, that instrument permitted derogations from a number of its key provisions for purposes which included "the suppression of criminal offences" and that the United Kingdom (like many other States) had included corresponding exceptions in its laws (p 16).

  45.    As mentioned, the Naples II Convention contains an express provision on data protection. This supports and complements obligations under the Convention concerning the Use of Information Technology for Customs Purposes[16] (the CIS Convention) which provides for, and includes safeguards in relation to, the transfer of automated data between customs authorities. Article 25 of Naples II requires customs administrations to take into account in each specific case requirements for the protection of personal data. It also contains rules relating to the use of information, its accuracy and correction where necessary, and the recording, safe-keeping and retention of data exchanged. The right of an individual concerned to receive information about personal data communicated under the Convention is governed by "the laws, regulations and procedures" of the Member State in whose territory the information is requested. There is, however, no obligation to provide the information where "the importance to the public of the information being withheld outweighs the importance to the person concerned receiving it". Member States are liable in accordance with their laws, regulations and procedures for injury caused by the communication of inaccurate data or by communication in violation of the Convention. Member States must also ensure effective control at national level of compliance with the data protection regime provided by Article 25[17]. In response to the Committee, the Government confirmed that, in so far as there was not statutory protection for the data subject under present or proposed data protection laws (it appeared that a category of manual data would not be covered), that gap would be plugged by the proposed Freedom of Information Act (Q 55).

  46.    The Minister said that the Government did not have a difficulty, in principle, with inclusion of a provision relating to data protection in the Convention on Mutual Assistance in Criminal Matters. But the working party had still to discuss the matter substantively and to consider to what extent such a provision was necessary (QQ 31, 50). Data protection was already the subject of a number of instruments and, Mr Stadlen said, some Member States took the view that there was nothing to be gained by repeating their provisions in the present Convention. The Minister added that there certainly would be further discussion of this matter (Q 53).


  47.    Both Justice and Liberty expressed regret that the Convention did not give the European Court of Justice jurisdiction over questions of interpretation of the Convention or settlement of disputes between Member States and/or their courts in its application. Liberty considered it most important that the Court should have jurisdiction in order to provide an effective safeguard for the rights of the individual. It also pointed to the need for consistency in interpretation of the Convention with other instruments such as Council Regulation 515/97 on mutual assistance between the administrative authorities of the Member States in the application of the law on customs and agricultural matters.

  48.    The Naples II Convention provides a role for the Court of Justice. It follows that envisaged for the Court in relation to Third Pillar conventions under the Treaty of Amsterdam. Article 26 gives the Court jurisdiction to rule on any dispute between Member States or between Member States and the Commission which has proved impossible to settle through negotiation. The Court would also be able to give preliminary rulings on questions referred by national courts but only in respect of those Member States which opt to accept this jurisdiction.

  49.    As regards the Convention on Mutual Assistance in Criminal Matters, the Government appeared prepared to accept a similar provision. The Minister said: "The position is the same as for other Conventions in terms of not wanting automatic preliminary reference jurisdiction, but at the same time the way that various Conventions have been worked recently has been to allow those Member States who want to have that preliminary reference to be able to do so, and that is an approach we are happy with" (Q 58).

14   The current practice in the United Kingdom in relation to giving assistance by the provision of persons in detention as witnesses requires the Central Authority to be satisfied that the prisoner has given his or her consent to the transfer and that the arrangements for the custody of such persons and their return are satisfactory. The request for assistance should contain sufficient details (for example, as to collection, type of escort and secure accommodation) to satisfy the United Kingdom authorities that arrangements will be made to ensure the prisoner's secure custody. The request for assistance should indicate whether he or she will be accorded immunity in respect of previous offences. International mutual legal assistance in criminal matters: United Kingdom Guidelines. Para 16(n). Back

15   Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. [1995] O.J. L.281/31. Back

16   The Convention sets up the Customs Information System (CIS) with the aim of assisting the prevention, investigation and prosecution of serious contraventions of national laws (concerning illicit drug trafficking and prohibitions on imports, exports or goods in transit) by increasing the effectiveness of co-operation and control procedures of customs authorities through rapid dissemination of information. The CIS will consist of a central data base accessible via terminals in each Member State. The Convention lays down a regime for the protection of data contained in or used under the CIS, including supervision at the national level and, by a Joint Supervisory Authority, of the operation of the CIS itself. The Convention has been ratified by the United Kingdom but has not yet entered into force. Back

17   This task may be performed by the same body as has the task of ensuring compliance of the CIS Convention. HM Customs and Excise has entered into an agreement with the Data Protection Registrar on the application and supervision of the CIS automated data protection provisions in the United Kingdom. Back

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