APPENDIX 4 (continued)
NOTE ON THE RELATIONSHIP BETWEEN THE CONVENTION ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE MEMBER STATES OF THE
EUROPEAN UNION AND THE SCHENGEN ACQUIS
1. Chapter 2, Articles 48-53, of the Convention applying
the Schengen Agreement of 14 June 1985 on the gradual abolition
of checks at common borders contains provisions on mutual assistance
in criminal matters. Article 48 states that the provisions of
the chapter are intended to supplement inter alia the 1959
Council of Europe Convention on mutual assistance in criminal
matters.
2. Article 1 of the EU Convention on mutual assistance in
criminal matters makes clear that it supplements the provisions
and facilitates the application between the Member States of inter
alia the Schengen Agreement. A principal purpose of a number
of the Articles in the EU Convention is therefore to improve existing
Schengen provisions. The improved arrangements, with appropriate
modifications, would also apply to the non-Schengen States, including
the UK.
3. Article 2(1) of the EU Convention is almost identical
to Article 49(a) of the Schengen Agreement. Both make clear
that mutual assistance may be afforded in proceedings brought
by administrative authorities in respect of offences punishable
in either or both the requesting and the requested Member State
where the decision may give rise to proceedings before a criminal
court. Article 2(1) has been included in the EU Convention to
put beyond doubt that the 1959 Convention already applies to certain
administrative offences of a criminal nature.
4. Article 11 of the EU Convention and Article
52 of the Schengen Agreement provide for the sending of procedural
documents (principally summonses and judgments) directly by post
to persons abroad. However, the key difference is that whereas
Article 52 of the Schengen Agreement is permissive, Article 11
is mandatory. Consequently, Article 11 also:
- includes more detail than Article 52 on the
circumstances under which it is acceptable to send procedural
documents via a central authority in the requested Member State;
and
- makes provision for the implications of direct service,
for example, by creating an obligation for all procedural documents
to be accompanied by a report giving information on when a recipient
can obtain information on rights and obligations in relation to
the document.
5. There is a similar situation in relation to Article
15 of the EU Convention and Article 53 of the Schengen
Agreement, both of which provide for the direct transmission
of requests for assistance between judicial authorities. Again,
the EU Convention establishes an obligation to use direct transmission,
whilst the Schengen Agreement simply allows for this possibility.
Accordingly, Article 15 goes into more detail than the Schengen
Agreement about the circumstances in which the rule of direct
transmission need not apply. In particular, Article 15 provides
for Member States to declare that, as a result of their legal
system, requests must be sent to their central authorities (in
the UK, the Central Authority is the Home Office). This has been
included to take account of the fact that in the UK (and Ireland)
there is not an equivalent of the examining magistrate found in
most other Member States. It would not generally be appropriate
for magistrates abroad to contact UK judicial authorities direct
as investigations in the UK are more a matter for the enforcement
agencies.
6. In addition, Article 10 of the EU Convention and
Article 73 (in Chapter 6) of the Schengen Agreement both
provide for the use of cross-border controlled deliveries, having
regard to the requirements of national law. However, the EU Convention
provides for controlled deliveries for the purposes of criminal
investigations into extraditable offences, whereas the Schengen
Agreement is restricted to the use of controlled deliveries in
cases involving illicit traffic in narcotic drugs and psychotropic
substances.
Letter from Lord Tordoff, Chairman of The European
Communities' Select Committee to Joyce Quin MP, Minister of State,
Home Office
Thank you for your letters of 12 and 13 January enclosing
copies of the United Kingdom Presidency's proposal on the interception
provisions (new Articles 6 and 7) and your note on the relationship
between the provisions of the draft Convention and Schengen. Sub-Committee
E was able to consider both documents at its meeting yesterday
and were grateful for your having furnished them so promptly.
In relation to your proposal on interception there is one
particular matter on which the Sub-Committee would welcome some
further information. The Sub-Committee noted the two principles
which the Convention, if your proposal is accepted, would establish.
It would be grateful for clarification of the Government's views
as to why it is considered unnecessary in the first and third
scenarios (draft Article 6 (2) (a) and (b)) to apply any safeguards
(other than those applying under the laws of the requesting State
and, in the third scenario, the third State). Why should not the
requested State also have to be satisfied that the request would
be granted if it had been made by one of its own national authorities?
Putting the question another way, why is the second principle
limited to cases where the subject is in its territory? It would
be helpful to the Sub-Committee if you could explain the position,
identifying any practical disadvantages there might be were the
requested State, in the first and third scenarios, also to have
to satisfy that its domestic standards should be met.
I understand that conclusion of the Convention is high on
the list of Presidency objectives. The Sub-Committee proposes
to return to its consideration of the draft Convention at its
next meeting. I would be pleased to have your reply to this letter
as soon as possible.
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 15 January which asks for further
information on the draft Articles on interception.
As you are aware, the UK Presidency text is intended to ensure
that an individual's right to privacy is protected by the national
laws of both the Member State which requests an interception (and
which would subsequently receive and act on the intercept product)
and the Member State in which the person is present. The purpose
is to have a "double-lock" system of safeguards in circumstances
where the requesting Member State asks for the interception of
a telephone being used by a person in the requested Member State.
These principles focus on the circumstances of the individual
rather than the type of telecommunications equipment being used.
Your specific questions relate to scenarios in which a member
State is requested to "flick a switch" in order to facilitate
the interception of a satellite telephone but where the subject
of the interception is not in that Member State. The requested
Member State would be expected to provide assistance once it has
been provided with certain basic information (including the nature
of the investigation). As you recognise, the specific requirements
of the domestic law of the requested Member State would not need
to be satisfied in these circumstances.
Our thinking on this issue has been influenced by the following
considerations:
(a) the subject of the investigation will always be protected
by the domestic laws of both the requesting Member State and the
Member State in which he is present;
(b) the requesting Member State and the Member State
in which the person is present are always going to be best placed
to make a judgment about the circumstances of an individual case.
The primary responsibility for complying with the ECHR will therefore
rest with these Member States. The Member State whose only involvement
is to "flick a switch" at a base station is unlikely
to be in a position to second-guess them but it will have a duty
to ensure that the request complies with the Convention;
(c) the involvement of the requested Member State is
necessary only because of technological developments in the field
of satellite communications. The purpose of Article 6.2(a) is
to maintain, not extend, a Member State's existing capability
to intercept calls made by a person on its own territory. It is
important that the speed of a law enforcement agency's response
to an operational situation on its own territory is not hampered
by unnecessarily cumbersome procedures simply because a person
has switched from a mobile phone to a satellite phone;
(d) the requested Member State has minimal involvement
in the interception. The intercept product is piped straight back,
in real-time, to the requesting Member State. The requested Member
State will not need to comply with safeguards about handling the
intercept product since it will not be transcribed or recorded
there.
You also asked me to identify the practical disadvantages
if it were necessary for the domestic law of the requested Member
State to be satisfied in the above circumstances.
Most importantly, as described above, it would prevent a
quick response to a fast-moving operational situation. At present,
it is possible to obtain a warrant under the Interception of Communications
Act 1985 reasonably quickly (this is particularly important where
lives may be at risk). The purpose of seeking co-operation on
intercepting satellite phones used in the UK is to maintain, not
extend, this capability. A bureaucratic mutual assistance procedure
would slow this process down considerably.
Secondly, a Member State which has a satellite base station
would find itself the focus of a significant number of requests
for assistance (we understand the first satellite base station
will become operational in Italy in September 1998). It is possible
that the Member State receiving such requests would not welcome
the administrative burden of an unnecessarily bureaucratic procedure.
Moreover, it is likely to find it difficult to reach a balanced
judgment on the full circumstances of the case since the person
would not be present on its territory.
Finally, we have to look to the future in negotiating this
Convention. The global telecommunications infrastructure is developing
rapidly. We will increasingly need to rely on the co-operation
of other Member States in order to maintain our existing capabilities
to intercept telecommunications between persons in the United
Kingdom. Indeed, the complexities of trans-national telecommunications
networks may require the co-operation of more than one Member
State in order to facilitate the interception of calls made in
the United Kingdom. We may therefore find it too restrictive in
future if the Convention is seen to establish the principle that
every Member State involved in an interception should be satisfied
that it meets the requirements of its domestic law in addition
to the strong safeguards in the Convention. This might prove to
be unworkable in practice.
27 January 1998
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