PART 4 OPINION
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.
RECOMMENDATION
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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