Select Committee on European Communities Fourteenth Report


The role of the European Union

  50.    The purpose of the draft Convention is "to supplement the provisions and facilitate the application between the Member States of the European Union" of, principally, the 1959 Convention[18]. It would have the effect, through its detailed provisions on obtaining and provision of evidence, service of process, co-operation through the interception of communications, controlled deliveries and covert investigations, of modifying and updating the 1959 Convention.

  51.    The argument was made that amendment of the 1959 Convention might better be left to the Council of Europe. That, because of the number of parties it would involve, would inevitably be slower. The EU has identified a need to act swiftly-the conclusion of the Convention is one target in the Action plan to combat organised crime. A tight timetable has been set for the negotiators. While ideally the revision of the 1959 Convention should be a matter for the Council of Europe and some work has been done there, the Committee agrees and supports the need for something to be done more urgently within the EU.

Improving co-operation, not harmonisation, the principal objective

  52.    The Convention is concerned with improving co-operation across borders in the investigation and enforcement by national authorities of their criminal law. It is not aimed at harmonising national criminal laws and procedures. Nor is the Convention aimed at harmonising the rules and procedures giving effect to human rights in the Member States. Having said this, in its practical application the Convention may impinge upon the civil liberties of the individual-assistance given by the interception of communications is perhaps the most obvious case-and therefore it is necessary, in the opinion of the Committee, to make sure that existing safeguards would not be prejudiced by the operation of the Convention and would give adequate protection for the individuals concerned. As we shall explain below, in some circumstances special rules may need to be set out in the Convention.

Administrative offences

  53.    A preliminary point relates to the scope of the Convention. Witnesses expressed concern that Article 2 would extend mutual assistance to offences punishable by administrative authorities and this would be a departure from the rule of dual criminality. In the Committee's opinion Article 2 would not materially extend the scope of mutual assistance. The 1959 Convention already extends to administrative offences and Article 2 of the present Convention makes clear that it also will do so. The practical effect of Article 2 is to prevent a Member State from refusing assistance in relation to an offence on the grounds that in the requesting State it is an administrative offence. The Article is particularly important for States such as Austria and Germany, which characterise certain offences as "administrative" which would be treated as "criminal" under United Kingdom laws. It does not displace dual criminality where that principle applies.

Search and seizure

  54.    Article 4 of the Convention has been left blank but it had been proposed that it contain a provision on search and seizure. It now seems likely that this will be the subject of a separate Protocol to be negotiated and agreed later. In the United Kingdom search and seizure can only be carried out on behalf of another State subject to the special safeguards laid down in sections 7 and 8 of the 1990 Act[19]. The principle of dual criminality applies. During the discussions of the draft Convention no examples have been given of co-operation not proving possible on account of dual criminality requirements and the Government sees no need for Member States to abandon requirements of dual criminality for search and seizure purposes. The Committee agrees and takes the view that dual criminality should remain a precondition for co-operation by way of search and seizure under the Convention or any Protocol to it.

Interception of telecommunications

  55.    It is intended that the Convention should provide a basis for assistance in the interception of terrestrial and satellite telecommunications systems. This is not a matter which is dealt with expressly in the 1959 Convention. In 1985, however, the Committee of Ministers of the Council of Europe, recognising that it might be necessary to resort to the interception of telecommunications in the fight against international crime, adopted a Recommendation concerning the practical application of the 1959 Convention in respect of letters rogatory for the interception of telecommunications. The Recommendation set out certain rules, including as to when a requested State could refuse assistance, what information should be contained in the request for assistance, and what conditions (in particular relating to the retention, use and destruction of the records obtained, and the notification of interested persons that interception has taken place) could be imposed by the requested State. In its recitals, the Recommendation stressed the need to protect the individual against unjustified interceptions.

  56.    Articles 6-9 of the earlier (6 May 1997) version of the Convention sought to address the question of interception of telecommunications by identifying three basic scenarios (described by reference to the situation of the user of telephone or other equipment and of the State where interception could, having regard to the relevant technology, be intercepted) and prescribing, along the lines of the Council of Europe Recommendation described above, what information the requesting State should give and when and subject to what conditions the requested State would respond. No agreement could be reached and the text of these Articles was withdrawn.

  57.    The United Kingdom Presidency has put forward a revised text in the hope of reaching early agreement[20]. Its proposal offers two Articles (6 and 7) in place of the four originally proposed. The Convention would only deal with requests for immediate (real-time) transmission of intercepted communications. Ex post transmission of intercepted communications would be dealt with, bilaterally or multilaterally, outside the Convention. The three scenarios would remain. In each case the requesting Member State must satisfy itself that the requirements of its domestic law have been met and must provide certain specified information to the requested Member State. Two principles would govern the response. Where the subject is not in its territory, the requested Member State undertakes to comply with a request on being provided with the specified information. Where the subject is in its territory, the requested Member State undertakes to comply with a request where it would be granted if it had been made by one of its own national authorities.

  58.    Under the Presidency proposal any "safeguards" would be derived from and dependent on the applicable domestic law or laws. It is intended that in all cases the subject should have the protection against unjustified invasion of privacy given by the law of the requesting State. If that State was the United Kingdom, a warrant would have to be obtained from the Secretary of State under the Interception of Communications Act 1985[21] (the 1985 Act). The Act also lays down a number of conditions regarding the use and retention of intercept material. In addition, where the subject is situated in the requested Member State or a third Member State, the requested Member State would only be obliged to accede to the request where it would be granted if it would have been made by a national authority of that State or, as the case may be, the requesting Member State has obtained a statement of consent to the interception from a competent authority in the third Member State. Thus, as the Presidency's paper explains, where the subject is in the requested Member State, that State could take into account such matters as the seriousness of the crime under investigation and the personal status involved.

  59.    The Government was asked to explain why the requested Member State should not have to be satisfied in all cases that the request would be granted if it had been made by one of its national authorities. The Minister replied that the subject of the investigation would always be protected by the domestic laws of the requesting Member State and the Member State in which he or she was present. Those States were best placed to make a judgement about the circumstances of the case and had primary responsibility for complying with the ECHR. The involvement of the requested Member State was minimal and necessary only because of technological developments in the field of satellite communications. The requested Member State was being asked to "flick a switch" in order to facilitate the interception and would not need to comply with safeguards about handling the intercept material since it would not be transcribed or recorded there. Requiring the requested Member State to be satisfied that the interception met the requirements of its domestic law could slow down the assistance process considerably and impose a possibly unwelcome administrative burden on that State. It would be an unsatisfactory precedent for mutual assistance in the future.

  60.    The key question is whether the Presidency proposal would strike the right balance between the promotion of mutual legal assistance by Member States, particularly in the fight against serious crime, and the protection of the individual's privacy from unwarranted infringement. A further consideration is the need for openness. The citizen is unlikely to have confidence in any procedure shrouded in secrecy. Though the detail of its application in practice may, for justifiable operational reasons, have to be kept secret during the period of investigation, the existence and framework of international mutual assistance involving interception of telecommunications or any similarly sensitive matter should be clear and transparent to all.

  61.    With one reservation the Committee considers that the Presidency proposal is acceptable. It would place a substantial but reasonable burden on the requesting Member State to justify the need for such an exceptional measure of enquiry and assistance. The interests of the requested Member State and of those situated in it should be protected by the requirement that the requested Member State can refuse assistance if interception would not have been granted on request of its own national authority. Except in the case where the subject is situated in the requesting Member State the subject should have the cumulative protection afforded by the "double barrier" described above. For the reasons given by the Government the Committee accepts that the compliance with any pre-conditions of the laws of the requested Member State need not be applicable in the case where the subject is not situated in that State. This would not remove the need for the authorities (and ground stations) in the requested State to act lawfully in the execution of the request.

  62.    The Committee's reservation is this. The earlier (May and September 1997) drafts set out clearly the position as regards restrictions which the requested Member State might be entitled to impose, in particular relating to destruction of material having no relevance to the investigation, notification of the interception to the subject, and restrictions on the use of the intercept material. It is unclear to the Committee whether under the Presidency proposal the requested Member States could impose such conditions and the extent to which the requesting Member State would be bound by them. The Committee recommends that the position be made explicit in the Convention. The requested Member State should be able to impose conditions relating to the use and destruction of intercept material and to the notification of the interception to the subject. The Convention should also make clear that the requesting Member State and its authorities will be bound to comply with any such conditions imposed by the requested Member State.

Controlled deliveries

  63.    Article 10, which is modelled on Article 22 of the Naples II Convention, provides a basis for co-operation between Member States on controlled deliveries. It is restricted to serious (that is, extraditable) offences and the assistance would be given in accordance with the national law and procedures of the requested Member States. As was explained, controlled deliveries take place at the moment. The Government believes that the inclusion of an express provision on controlled deliveries might encourage Member States to work more closely together in such exercises than at present. The Committee was impressed by the statistics supplied by Customs and Excise. It seems clear that Article 10 may benefit the investigation and prosecution by United Kingdom authorities of serious crime by providing a clear legal base for assistance of this kind. We support its inclusion in the Convention.

Transfer of prisoners

  64.    Article 13 provides for the temporary transfer of a person in custody in the Member State requesting assistance to the requested Member State in order to participate there in the investigation. Certain safeguards for the person concerned are laid down and the Convention provides that Member States may declare that the consent of the prisoner to the transfer will be required. The practice in the United Kingdom has been to make such consent a precondition for any transfer. The prisoner's prior consent is also an express requirement in the United Kingdom/United States Agreement on Mutual Assistance and in the Commonwealth Scheme on Mutual Assistance. The Committee takes the view that consent before transfer should be a mandatory requirement in the proposed Convention. We do not believe that there would in practice be any substantial disadvantage in imposing this safeguard. In the absence of consent the prisoner may not be particularly co-operative or helpful.

Covert investigations

  65.    Article 15a is similar to Article 10 (Controlled Deliveries) in that it involves, using the terminology of the Naples II Convention, a special form of assistance. Officers from the requesting Member State will be able to operate under cover of a false identity in the territory of the requested Member State. As the Convention makes clear such activity would only be permitted for a specified period of time and subject to any conditions laid down by the requested Member State. The Minister confirmed that covert investigations would be subject to the national law of the place where they take place. The Committee supports the inclusion in the Convention of a provision on covert investigations as a means of promoting and facilitating practical co-operation in the fight against crime.

Data protection

  66.    There is at present no provision in the Convention dealing expressly with data protection. Witnesses drew attention to the implications for the citizen and the Minister said that the Government did not have a difficulty, in principle, with the inclusion of a provision on data protection in the Convention. In the absence of any provision national laws would apply. Witnesses pointed to the fact that both international and national provisions commonly do not extend protection in relation to criminal matters. The EC Directive, for example, does not apply to "the activities of the State in areas of criminal law"[22].

  67.    As the Committee has acknowledged in the past[23], any extension of data protection principles to policy and security matters may require wide exemptions from transparency obligations, but there are aspects, including the need for accuracy, which should apply generally. Restrictions on use should not be based simply on mutual understanding as would appear to be the case at present[24]. The Committee welcomes the Government's positive response on this matter and strongly encourages it, especially with the opportunities offered by its Presidency, to promote the inclusion of specific data protection safeguards for the citizen in the Convention. Article 25 of the Naples II Convention, which all Member States have signed, provides a helpful precedent. It restricts the use of personal data and gives the citizen rights of access and to have data corrected or removed. We recommend that the Convention should include a provision on data protection giving the citizen similar rights.

European Court of Justice

  68.    The Treaty on European Union provides that the European Court of Justice may be given jurisdiction over conventions drawn up under the Third Pillar. We recognise that in each case it must be considered whether it is necessary or desirable to confer jurisdiction on the Court. We also note that under the Amsterdam Treaty the position would change. While provisions on police and judicial co-operation would remain in the Third Pillar the Court would automatically have jurisdiction to rule on disputes between Member States if the dispute were not settled in the Council within six months. The Court would also acquire the power to give preliminary rulings on questions referred by national courts, in respect of national courts in Member States which opt either at the time of signing the new Treaty, or subsequently, to accept this form of jurisdiction.

  69.    As to the present Convention, the Committee considers it important that the Convention should be applied on a uniform basis in all the States and Member States' compliance with its obligations made subject to its supervision. We believe that this can best be achieved by giving the Court full jurisdiction over the Convention to ensure consistent interpretation and application by the Member States. We note that the Naples II Convention adopted a formula similar to that which will be the norm under the Amsterdam Treaty. That, in our view, is the minimum that would be acceptable. It is, however, inherently unsatisfactory because it leaves the Court with potentially uneven jurisdiction in regard to the Member States.

A review mechanism

  70.    The United Kingdom Presidency has also brought forward a draft Joint Action on Good Practice in Mutual Legal Assistance in Criminal Matters. This would require Member States to deposit Statements of good practice in executing and making international requests for legal assistance in criminal matters[25]. Member States would also be required to deposit annual reports on monitoring compliance with undertakings given in the Statements[26]. The aim of the Joint Action is to reduce delays (of which the Presidency says there is considerable anecdotal evidence) and ensure that there is confidence in the ways that the Conventions on mutual legal assistance are operated.

  71.    The Committee supports the objective of the proposed Joint Action and draws attention to its relationship with the draft Convention which is the subject of the present Report. The Convention itself contains no review mechanism or system for monitoring performance under it. Information should, we believe, be systematically made available on its implementation and application, whether pursuant to the proposed Joint Action or some more specific commitment given by Member States in the context of the Convention. This is important not just to ensure that co-operation between Member States is carried out promptly and effectively but also that safeguards under the Convention and national laws for individuals concerned are being respected.


  72.    The Committee considers that the proposed Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union raises important questions to which the attention of the House should be drawn, and makes this report to the House for debate.

18   The Convention would also, for those Member States party to the Schengen Agreement, supplement and facilitate the provisions of that Agreement. The United Kingdom is not a party to the Schengen Agreement. The Home Office provided a brief note on the relevant provisions of the Agreement. That Note is reproduced in Appendix 4. Back

19   These are described in footnote 8 above. Back

20   A copy of the Presidency proposal was supplied to the Committee under cover of a letter from the Minister dated 12 January 1998. It is reproduced in Appendix 4. Back

21   For the purposes of the enquiry, the Home Office supplied an explanatory note on the interception of communications in the United Kingdom. This is reproduced in Appendix 4. Back

22   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. Article 3 (2). Back

23   Protection of Personal Data, 20th Report, Session 1992-93, para 117. Back

24   See letter of 7 January 1997 from the Rt Hon Michael Howard, QC, MP, Home Secretary, to Lord Hoffmann, Chairman of Sub-Committee E. Correspondence with Ministers, 12th Report, Session 1996-97, p.32. Back

25   The Joint Action would require Member States to include in their Statements undertakings to:

- acknowledge on receipt all requests from abroad for assistance in obtaining evidence;

- provide the requesting authorities with full contact details of the person having responsibilities for executing the request;

- give priority to urgent requests and to treat all requests no less favourably than comparable enquiries being made on behalf of the requested Member State's own authorities;

- give the requesting authorities periodic progress reports on how the request is being executed and, if the request cannot be executed, consult with the requesting authorities on whether the request can be modified so that assistance may be provided;

- send its own requests for assistance to other Member States as soon as the need for assistance is known and, if the request is urgent, to give reasons for the urgency. Back

26   The Joint Action requires Member States to monitor compliance with the above undertakings and the times taken to execute requests, and to establish targets for improving compliance and reducing the times taken. Member States would also be required to publish, through the General Secretariat of the Council, Annual Reports on compliance and times taken and on progress towards meeting the targets. The Statements and Annual Reports would be made available to the contact points on the European Judicial Network, who have responsibilities under the Joint Action creating the Network to facilitate judicial co-operation between the Member States. Back

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