APPENDIX 4
COMMUNICATION BETWEEN THE HOME OFFICE
AND THE CHAIRMAN OF THE EUROPEAN COMMUNITIES SELECT COMMITTEE
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the European Committees Select
Committee
This note is to advise you of developments which have occurred
with respect to Articles 6-9 in the draft Convention (attached
to my letter of 29 July) which deal specifically with the interception
of communications.
Detailed consideration of these Articles continues although
it is likely that the Convention will include provisions
relating to the interception of both terrestrial and satellite
communications and that requests to Member States may also be
made when the target of the intercept is in the State where interception
is requested. This is in addition to the scenario where the target
remains in the requesting State, but his communications are intercepted
in the requested State.
There remains the need for further detailed drafting work,
and the UK's general scrutiny reserve remains. However, the UK's
current negotiating position on the Articles relating to interception
is to accept the provisions in general terms, but to ensure that
they are drafted in such a way to enable the applications of tests
and safeguards equivalent to those which apply in each Member
State's domestic legislation. The Committee will wish to note
this.
I am taking this opportunity to send you the latest draft
of the Convention, dated 30 September. This updates, but does
not substantively change, the version of 6 May which you received
with my previous letter.
28 October 1997
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the European Communities
Select Committee
I wrote to you on 24 July enclosing a Supplementary Explanatory
Note covering the then latest draft of the EU Convention on mutual
legal assistance. I wrote again on 28 October about the Government's
position on the provisions relating to interception of communications
and enclosed the latest version of the Convention, dated 30 September
My attention has now been drawn to the enclosed July-October
issue of Statewatch which includes two articles on the Convention
and, particularly, matters related to interception. I thought
it would be helpful, to avoid possible misunderstandings, if I
commented on references in the articles to an "EU- FBI plan
to create a global system for the surveillance of telecommunications"
and the introduction of this plan in the EU through a Memorandum
of Understanding and the EU Convention. The articles also refer
to "nearly identical instruments on mutual assistance"
being worked on by the Council of Europe.
The Memorandum of Understanding is about the requirements
of national law enforcement agencies in relation to the lawful
interception of communications. The MOU was opened for signature
by the Council of the EU in 1995. It has been signed by the EU
Member States and Norway and been endorsed, but not signed, by
Australia, Canada, Hong Kong and the USA. A copy was placed in
the Libraries of both Houses in response to a PQ by Lord Lester
of Hearn last February. The EU Convention is primarily for the
purposes of improving existing arrangements for co-operation between
judicial authorities in EU Member States under the 1959 Council
of Europe Convention on mutual legal assistance. Such co-operation
is to assist in the investigation and prosecution of crime. It
is not about exchange of information and intelligence for other
purposes. The EU Convention does not incorporate the Memorandum
of Understanding, which serves a different purpose and will remain
entirely separate from the EU Convention. The work in the Council
of Europe is on a Second Additional Protocol to the 1959 Convention.
The committee of experts comprising representatives from all the
Council of European countries has put that work in abeyance pending
developments on the EU Convention. It is therefore too early to
say whether or not the Additional Protocol will include provisions
on interception of communications.
The articles also comment on the details of the EU Convention.
I need not go into these as the Supplementary Explanatory Note
already describes the provisions in the Convention and sets out
the Government's negotiating position. For example, there is no
question of transferring UK prisoners without their consent to
other EU Member States for the purpose of criminal investigations
and proceedings. But if you have any queries about the detail
of the Convention, or the Government's policy on the Convention,
I shall be happy to provide further clarification.
10 November 1997
Letter from Lord Tordoff, Chairman of the European
Communities Select Committee to Joyce Quin MP, Minister of State,
Home Office
Thank you for your letter of 10 November. The draft Convention
is currently under scrutiny by Sub-Committee E (Law and Institutions)
to whom I have passed your letter. I am sure that it will assist
them in their examination and consideration of the proposal. I
am pleased to hear that you will be meeting the Sub-Committee
on 17 December in order to explain further the detail of the Convention
and the Government's policy in regard to it.
19 November 1997
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the European Communities
Select Committee
Thank you for your letter of 19 November. I look forward
to meeting Sub-Committee E on 17 December at 4.30pm to discuss
the draft EU Convention on mutual assistance in criminal matters.
My officials have recently received the English language
version of the latest text of the draft Convention, dated 14 November.
I enclose a copy which I hope will be in time for the Committee's
meeting on 3 December. There are a number of differences between
this text and the versions which I sent to you on 24 July and
28 October. I thought therefore that you would find it helpful
to have the attached brief commentary on each of the Articles,
as an up-date to the Supplementary Explanatory Note accompanying
the 24 July version. In particular, the commentary explains that
the provisions on interception (Articles 6-9 of the Convention)
are being redrafted, which is why there is no text in the 14 November
version. I shall of course submit the revised text as soon as
it becomes available.
The EU Working Group which is drafting the Convention may
shortly be considering whether to include in the Convention provisions
on other matters, in particular data protection and the Court
of Justice. If further provisions are included, I shall of course
submit these for scrutiny as well.
1 December 1997
DRAFT CONVENTION TEXT OF 14 NOVEMBER
1997
Article 1: This Article explains that the Convention
enhances inter alia the 1959 European Convention on Mutual
Assistance in Criminal Matters, to which the UK and the other
EU Member States are Contracting Parties.
Article 2: The purpose of this Article is to make
clear that the Convention applies to criminal matters including
administrative offences of a criminal nature. The Explanatory
Report to the 1959 Convention explains that that Convention already
applies to administrative offences. The Report explains that an
administrative offence "is an offence which, while not classified
as a criminal offence, is punishable by a fine imposed by an administrative
authority; the accused has, however, a right of appeal to the
ordinary courts". Paragraph 1 of Article 2 provides inter
alia that the administrative decision may give rise to proceedings
before a criminal court. This makes clear that the Article does
not apply to civil matters.
Article 3: The Explanatory Report to this Convention
will make clear that the requirement to provide assistance in
accordance with the formalities and procedures of the requesting
Member State is without prejudice to declarations which Member
States have made in relation to Article 5 of the 1959 Convention,
i.e., on search and seizure. The UK will therefore be able to
continue to make execution of requests for search and seizure
dependent on dual criminality and other requirements of law in
the UK, in particular the access conditions in section 8 of, and
Schedule 1 to, the Police and Criminal Evidence Act 1984 and section
7(2) of the Criminal Justice (International Co-operation) Act
1990, attached. (Where dual criminality is required, the criminal
conduct in the requesting Member State must, if it occurred in
the requested Member State, constitute an offence under that Member
State's law).
Paragraphs 1 and 2 refer to deadlines for executing requests.
These provisions are in line with present practice in the UK Central
Authority in the Home Office, which is to prioritise requests
according to urgency and to consult the requesting authorities
abroad to resole any difficulties in providing the requested assistance
in the form, and by the time, requested.
Article 4: There is still no text for this Article.
The Government's negotiating position continues to be that there
appears to be no need for Member States to abandon requirements
of dual criminality for search and seizure purposes. A principal
purpose of the Convention is to overcome obstacles to co-operation.
The EU Working Group which is drafting the Convention has not
been informed of any instances where co-operation has not proved
possible on account of dual criminality requirements.
Article 5: This Article provides for return of property
where there is no dispute that the rightful owner is in the requesting
Member State.
Articles 6 to 9: There is now no text for these Articles.
This is because the EU Working Group which is drafting the Convention
is rewriting the provision. The Government's negotiating position
continues to be as in the letter of 28 October to Lord Tordoff,
attached. Briefly, the Government is content for the Convention
to include provisions on interception which relate to terrestrial
and satellite communications and that requests to Member States
may be made where the target of the intercept is in the Member
State where interception is requested. This is in addition to
the scenario where the target remains in the requesting Member
State, but the target's communications can only be intercepted
in the requested Member State. The Government is also negotiating
to ensure that where the target is located in the requested Member
State, then the Convention should ensure the application of tests
and safeguards equivalent to those which apply in that Member
State's domestic legislation.
Article 10: The purpose of this Article is to provide
a basis for co-operation between Member States on controlled deliveries
in circumstances where the request for assistance must be channelled
through a judicial authority or central authority in the requesting
Member State and/or the requested Member State. This is made clear
in Article 15, paragraph 3.
The Explanatory Report will refer to certain procedural matters
including those in the former Article 10(4), now deleted. Article
10(4) provided that: "Illicit consignments whose controlled
delivery is agreed to may, with the consent of the Member States
concerned, be intercepted and allowed to continue with the initial
contents intact or removed or replaced in whole or in part".
Article 11: The purpose of this Article is that procedural
documents should in general be served directly by post on the
addressee. This would be more efficient than present arrangements
which generally involve service through judicial or central authorities.
But judicial or central authorities could still be used in the
circumstances described in paragraph 2 of the Article. The Article
provides that the procedural documents should be accompanied by
a report explaining to the addressee that information about rights
and obligations concerning the document may be obtained from the
relevant authorities in the Member State where it was issued.
The important parts of the procedural document and the report
must where appropriate be translated into one of the languages
of the Member State where the addressee is staying.
Article 12: Parts of this Article have still not been
discussed by the EU Working Group which is drafting the Convention.
The Government's negotiating position continues to be that evidence
may be given by live television link (or voluntarily by telephone)
into proceedings in the requesting Member State subject to safeguards
for witnesses who would be summonsed by the judicial authorities
of the requested Member State to give the evidence. The costs
of the live link should be met by the requesting authorities.
Article 13: This Article is in line with the Government's
position that prisoners may be temporarily transferred with their
consent from the Member State where they are held to assist the
authorities of that Member State in obtaining evidence in another
Member State for the purposes of criminal investigations or proceedings.
The Government intends making a declaration in relation to paragraph
6 of the Article that the UK's agreement to the transfer of a
prisoner under this Article will require the prisoner's consent.
Present practice in the Home Office is that agreement to the temporary
transfer of a prisoner under Article 11 of the 1959 Convention
would not be given if the transfer would be liable to prolong
the time spent in custody. This practice would also apply in relation
to Article 13.
Article 14: This Article provides that information
gathered during an investigation in one Member State may spontaneously
be forwarded to another Member State for possible use there in
investigating and prosecuting crime, subject to appropriate conditions
on the use of the information.
Article 15: Paragraph 3 of this Article meets the
need in the UK for requests to be channelled through the UK Central
Authority in the Home Office or the UK National Central Bureau
of Interpol in the National Criminal Intelligence Service, as
at present under the 1959 Convention. The Government intends making
a declaration to this effect in relation to this paragraph. This
is principally because there is no equivalent in the UK of the
examining magistrate found in most other Member States.
Article 15a: This Article has not yet been discussed
by the EU Working Group which is drafting the Convention. The
Article is similar to Article 23 in the draft Convention on Mutual
Assistance and Co-operation between Customs Administrations (Naples
II), but the Government is still considering whether there is
a need for the corresponding Article 15a.
Article 16: The competent authorities for the purposes
of operating the Convention will in general be judicial and prosecuting
authorities. The Government intends making a Statement in relation
to this Article to the effect that the competent authority in
the UK for the purposes of making and receiving requests for interception
of telecommunications will be the Secretary of State.
Article 17: This Article provides that Member States
may not make reservations to this Convention, but this would not
affect the UK's right to make a declaration in relation to paragraph
3 of Article 15, see above.
Article 18: Paragraph 4 of this Article provides that Member
States which have adopted the Convention may, if they so wish,
apply the Convention among themselves prior to the entry into
force of the Convention, i.e., prior to adoption of the Convention
by all the Member States.
Articles 19 and 20: These deal with accession and
the depository.
1 December 1997
| 
