Select Committee on European Communities Fourteenth Report

APPENDIX 5 (continued)


1. How do you see the two[27] Conventions working together in practice? What opportunities will be given for co-operation between law enforcement agencies and customs authorities which do not exist at present?

  Article 3 of the draft Naples II Convention states that where a criminal investigation is carried out by or under the direction of a judicial authority, that authority shall determine whether requests for mutual assistance or co-operation in that connection shall be submitted on the basis of the provisions applicable concerning mutual assistance in criminal matters or on the basis of Naples II.

  The choice of Convention would depend on the type of assistance required and the type of offence involved in any given case. The Naples II Convention is designed for mutual assistance and co-operation between Customs administrations and other law enforcement agencies responsible for enforcing the law in relation to Customs "infringements" as defined by the Convention (drugs trafficking etc). The MLA Convention covers wider matters of judicial co-operation in relation to offences generally. However, other than in Article 20 (Hot pursuit) which allows officers in limited circumstances to apprehend, carry out a security search on, and handcuff a pursued person, Naples II contains no provisions for using coercive powers, so for most co-operation in which coercive powers would need to be invoked, the appropriate route of co-operation would normally be the MLA Convention. The UK has made it clear that it will not apply the hot pursuit provisions of Naples II.

  It is important to note that the two Conventions have grown up separately and were intended to address separately-identified needs. The idea of updating the 1967 Naples Convention in light of the changes for Customs law enforcement which would be brought about by the introduction of the Single Market pre-dates the creation of the third pillar and negotiations on the Naples II Convention have been going on for some 5 years. Naples II is specifically a Customs Convention, while the MLA addresses needs in the judicial co-operation area. For most of the time negotiations of the two Conventions proceeded in separate arenas. When it became clear that similar provisions had been included in both draft Conventions work took place to try to ensure consistency between the two Conventions. The Luxembourg Presidency held several joint meetings of the CCWG and the Working Group on Judicial Co-operation in Criminal Matters on this subject.

  These two Conventions do not confer new powers on Customs administrations. The Naples II Convention as it is to be applied will not provide for law enforcement activities which cannot currently take place in the UK under the usual rules of criminal procedure. However, in providing an explicit basis for cross-border co-operation, HM Customs and Excise hope that the ease with which such co-operation can be carried out with certain other Member States will be facilitated. In ratifying the Naples II Convention, Member States will be making a public commitment to participating in these key forms of co-operation to tackle drug trafficking and other Customs crime.

2. To what extent do the provisions of Naples II overlap with obligations in the Schengen acquis? It would be helpful if you could identify and describe all relevant provisions.

  Article 39 of the Schengen Convention provides for law enforcement authorities (specified elsewhere in the Schengen Convention) to assist each other for the purposes of preventing and detecting criminal offences. Articles 8-14 of Naples II set out provisions for Customs authorities to provide assistance on request to one another. These two sets of provisions provide for what is known as "administrative" mutual assistance. The Naples II provisions are much more detailed than those in the Schengen Convention and derive from the original 1967 Naples Convention. The Naples II provisions set out strict procedures to be followed, for example in relation to the service of documents; they provide that oral requests are acceptable; they allow for a special watch to be kept and that officers from the requesting Member State may visit the Member State to discuss details of their request. Naples II also provides for wider use as evidence of the material and information gained as a result of administrative assistance than Schengen.

  Article 40 of Schengen and Article 21 of Naples II both provide for cross-border surveillance. The provisions are similar, both provide for cross-border surveillance with prior approval and without prior approval in cases of urgent need. The key differences are:

       -    the Schengen provision is mandatory while signatories to Naples II can opt out of all or part of the cross-border surveillance provision;

       -    The Schengen provision relates to all extraditable offences for surveillance with prior approval, and a wide range of serious crime for surveillance without prior approval, while the Naples II provision relates only to Customs infringements as defined in Article 19(2) and Article 1(3) of Naples II;

       -    the Schengen provision allows service weapons to be carried except where specifically otherwise decided by the requested party, while the Naples II provision allows each Member State to make a general declaration that weapons may never be carried into its territory or to decide in a specific case that weapons may not be carried.

  Article 41 of Schengen and Article 20 of Naples II both provide for hot pursuit. The provisions are similar to each other. The key differences are:

       -    the Schengen provision is mandatory while signatories to Naples II can opt out of all or part of the Article;

       -    The Schengen provision allows each Contracting Party to choose whether to allow hot pursuit into its territory in relation to all extraditable offences or in relation to a list of serious crimes, while the Naples II provision relates only to Customs infringements as defined in Article 19(2) and 4(3) of Naples II;

       -    the Schengen provision relates to land borders only, while the Naples II provision relates to air, sea and land borders;

       -    the Schengen provision allows service weapons to be carried without exception, while the Naples II provision allows each Member State to make a general declaration that weapons may never be carried into its territory or to decide in a specific case that weapons may not be carried.

  Article 42 of Schengen states that officers operating on the territory of another Contracting Party in respect to Articles 40 and 41 shall be regarded as officers of that Party with respect to offences committed against them or by them. Article 19(8) of Naples II is similar.

  Article 43 of Schengen and Articles 19(5) and 19(6) of Naples II set out who should make good damage caused by officers operating in the territory of another state. Under Schengen it is the Contracting Party which sends an officer into another Contracting Party's territory which shall make good any damage caused by that officer, while under Naples II it is the Member State in which the officer is operating when the damage occurs which shall make good the damage.

  Article 46 of Schengen provides for Contracting Parties to provide spontaneous information which may be of interest in helping to prevent future crime and offences against or threats to public policy or security. Articles 15-18 of Naples II provide for spontaneous information to be provided subject to any limitations imposed by national law. The Naples II provisions relate only to "Customs infringements" as defined in the draft Convention.

  Article 47 of Schengen and Article 6 of Naples II are very similar provisions allowing for the exchange of liaison officers.

  Article 50 of Schengen provides for mutual assistance in relation to excise duties, VAT and customs duties. Much of this mutual assistance relates to first pillar matters, and is not therefore relevant to Naples II. When the assistance relates to law enforcement, it becomes a third pillar matter and would be covered by Naples II Articles 8-14 on administrative mutual assistance.

  Article 73 of Schengen and Article 22 of Naples II both provide for controlled deliveries. The two provisions are similar. The key differences are that Naples II contains an obligation to keep the controlled delivery under surveillance and allows consignments to be intercepted and allowed to continue with their original contents intact, removed or replaced, while Schengen makes no mention of these issues.

  Copies of the relevant Articles of the Schengen Convention are attached. It should be noted, however, that English is not an official Schengen language and translations of the Convention can and do vary.

3. How will existing procedures for controlled deliveries be enhanced by the provisions of Article 22?

  Article 11 of the 1988 UN Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention) encourages the principles of international controlled deliveries. All signatories to the Convention are expected to uphold and participate in this method of enforcement action. The UK ratified the Vienna Convention in 1991.

  Controlled delivery is a valuable law enforcement technique which allows Customs officers (and other law enforcement officers with responsibilities for tackling drug trafficking) to identify and prosecute responsible organisations for drug trafficking, rather than just seizing drugs. Article 22 of Naples II does not confer any new powers on Customs administrations or other law enforcement agencies, it simply provides an agreed framework for co-operation in relation to controlled deliveries.

  There is no direct statutory base in the UK for the controlled deliveries in which HM Customs and Excise participate because there is no need for one. The decision in any particular case whether to allow a controlled delivery is an operational one. Controlled deliveries through the post are subject to the consent and assistance of the Post Office because of the statutory inviolability of the mail. Customs officers may possess drugs in the course of their duties under regulation 6(7)(d) of the Misuse of Drugs Regulations 1985 S.I. No. 2066. In addition, the actions of Customs officers when involved in all types of cross-border investigation are conditioned by the usual rules of criminal procedure, abuse of process, disclosure and use of evidence.

  HM Customs and Excise hope that ratifying Naples II will increase the pressure on other Member States to participate in controlled deliveries. By providing a clear framework for co-operation in relation to controlled deliveries within Europe, Naples II should increase the frequency with which controlled deliveries are used. In the last six months HM Customs and Excise have offered 134 controlled deliveries, 78 of which were to other Member States. In return, the UK was offered only 15 controlled deliveries, 7 of which were from other Member States. Most Member States other than the UK require specific judicial authorisation before allowing a controlled delivery which is a slow and bureaucratic process. This is a particular problem in relation to airport-to-airport controlled deliveries where rapid decision-making is required. While Naples II will not change Member States' requirements for judicial approval, it is hoped that it may help speed up this process.

4. How important is Article 23 likely to be? What conditions does/would the United Kingdom impose on foreign authorities conducting covert investigations here?

  In co-operation with law enforcement agencies in other Member States, HM Customs and Excise assist in 25 to 30 covert investigations per year. HM Customs and Excise receive approximately 10 requests per year from the police in other EU Member States to have carried out covert investigations in the UK. In response to these requests HM Customs and Excise carry out the covert operation on behalf of the other Member State, and sometimes allow foreign law enforcement officers to be present on a covert basis in the UK. There is no direct statutory legal base for covert investigations in the UK, which is a technique used for investigating offences and is conditioned by the usual rules of criminal procedure.

  Article 23 of Naples II will be positively advantageous in putting in place a formal structure for the management of covert investigations. Article 23 places strict limitations on covert investigations: there must be a formal request and authorisation; conditions may be set by the requested authority; covert investigations must be of limited duration and must be planned, supervised and carried out in close co-operation between the relevant authorities; the activities which the covert investigator may carry out are limited to collecting information and making contact with suspects. Foreign law enforcement officers will have no law enforcement powers in the UK under this Article and they will only be able to collect information which is freely available. The precise conditions which would be imposed on foreign law enforcement officers would be determined on a case by case basis.

5. As regards Article 25 (Data Protection) you say in your Supplementary Explanatory Note that amendments have been proposed in order to avoid the need for legislative change in the United Kingdom which process would delay ratification. The Committee would be grateful if in addition to a detailed explanation of the amendments made you would describe their legal and practical implications for the citizen and also to what extent, given the Government's commitment to introduce a Data Protection Bill this Parliamentary session (Data Protection: The Government's Proposals, C.M. 3725), there would be an unacceptable delay, if any, if primary legislation were needed to give effect to data protection safeguards provided by the Convention.

  Originally it was intended that the Naples II Convention should provide a new basis for the automated exchange of data between customs administrations and the creation of an EU-wide customs database. However, these provisions were taken out of the draft Naples II Convention at an early stage and advanced separately in the Customs Information System (CIS) Convention. The CIS Convention was signed on 26 July 1995 and has since been ratified by the UK. An Explanatory Note was submitted to Parliament in March 1994 with a supplementary EN in November 1996. The data exchanged using the CIS will be protected by the detailed provisions of the CIS Convention. HM Customs and Excise have entered into an agreement with the Data Protection Registrar on the application and supervision of these automated data protection provisions. The data protection provisions of Naples II therefore relate to residual data exchanges outside the Customs Information System, particularly non-automated (manual) exchanges of data.

  The draft Naples II Convention does not in essence contain any provision for new data exchanges between customs administrations. The Naples Convention of 1967, which the UK signed in 1974 provides for the manual exchange of data and Naples II incorporates these existing provisions. Therefore the type of manual data exchange which Naples II allows has been exchanged under Naples I in conformity with existing UK legislation since 1974 and this data exchange will continue until Naples II is ratified. The key difference is that Naples II gives clearer and more detailed protection for manual data which has been exchanged for a long time.

  The 1967 Naples I Convention contains only the following very limited data protection provision: "Requests, information, reports of experts and other communications in the possession of the Customs authorities of a Contracting State pursuant to this Convention shall be accorded the same protection as is afforded under the national law of that State to documents and information of like nature".

  Sub-paragraph (e) of paragraph 2 of Article 25 of Naples II relates to the rights of individuals to request details of any data concerning them which may have been exchanged. The earlier draft of Naples II stipulated that in all circumstances this right would have to be determined in national legislation. Existing UK data protection legislation provided for this right in relation to automated data exchanges but does not cover the area of manual data exchange to which both Naples I and II primarily relate.

  It is in the area of manual data exchange that HM Customs and Excise were concerned that the requirement in all circumstances for the right of access to be determined by legislation would create a requirement for new legislation. As the DPR has acknowledged in her evidence, existing UK legislation does not fully cover the area of manual data exchange. This is why the Explanatory Note submitted on 12 November stated that this provision, if unamended, would create a need for new legislation. At present UK citizens' rights in relation to manual data are provided by a patchwork of law, regulation and administrative procedure, for example the Code of Practice for Open Government which will be superseded by the Freedom of Information Act when it comes into force next year, the right of appeal to an independent Adjudicator or to the Parliamentary Commissioner for Administration (Ombudsman) about maladministration, and the common laws of confidentiality.

  The Data Protection Bill, which will come into force soon, will give effect to the EC Data Protection Directive. As required by the Directive, the Bill will extend the Data Protection Act 1984, which only applies to computerised records, to cover also certain manual records. It will apply to those non-automated records which are structured by reference to individuals or criteria relating to individuals and which allow easy access to the personal data they contain. This approach will cover card indexes, microfiches and similar collections for which personal data are capable of being readily extracted. It will also include files about named individuals in which each item has an internal structure conforming to some common system, for example a file with the subject's name on the cover. Files about named individuals whose contents are not structured by reference to information about those individuals (i.e., those with the subjects name on the cover and containing a variety of papers in date order with no simple systematic means of readily identifying specific personal data) will not be caught. Most of the manual data exchanged by Customs authorities will be covered by the Bill, but a small proportion of it may not be.

  During the negotiation of Naples II it has been unclear how fully the Data Protection Bill would cover the area of manual data protection. Given our wish to conclude and ratify Naples II as soon as possible, HM Customs and Excise have been concerned to avoid implementation of the whole Convention becoming stymied because of a small technicality on manual data exchange. If the Data Protection Bill were to fully cover the position that would avoid delay, however that is not the case, as the Bill does not cover all manual data. Accordingly by amending Article 25.2(e) to read "the right of the person concerned to receive information about the personal data communicated shall be determined in accordance with the national laws, regulations and procedures" rather than just "laws", this potential obstacle is avoided by ensuring all manual data rather than that which may be included in the Data Protection Bill is covered.

  Moreover, it is important to note that Naples II does not provide for any new type of data exchange whereas the data protection provisions for individuals have been made more explicit than in the original Naples Convention. Accordingly, had UK ratification been delayed simply by the need to give effect to Article 25.2(e) then one of the things able to continue in the meantime under Naples I would have been exactly this type of manual data exchange.

  The amendment to include a specific reference to the 1981 Council of Europe Convention on the Protection of Individuals with Regard to Automatic Processing of Personal Data in the first paragraph of Article 25 was made at the request of various Member States who were keen to underline the data protection safeguards that would operate in relation to data exchanges. In legal and practical terms, however, the explicit reference is unnecessary. There are two reasons for this. First, the UK is already a signatory to the 1981 Council of Europe Convention and its provisions therefore apply to the automatic processing of all personal data in the UK. Second, automated data exchanges between customs administrations will normally take place under the CIS Convention rather than the Naples II Convention. The CIS Convention also contains a reference to the Council of Europe Convention.

6. Further on the question of data protection, I enclose a copy of evidence received from the Data Protection Registrar. It would be helpful to have your comments on the points she makes, in particular those concerning the CIS convention. Finally, can you confirm that the protection given by Article 25 applies to personal data transmitted under Title III (spontaneous assistance)?

  First of all, HM Customs and Excise welcome the Data Protection Registrar's (DPR) comment that she would expect to perform the role of controlling compliance with the data protection provisions of Naples II. Article 25.2(i) states that this role may be assigned to the body designated at Article 17 of the CIS Convention.

  The DPR points out that Article 25.2(c) might have a wider definition than section 28(3) of the Data Protection Act which allows data to be withheld where it would be likely to prejudice the prevention of detection of crime, the apprehension or prosecution of offenders or the assessment or collection of any tax or duty. The second sentence of 25.2(e) of Naples II is a general expression of the public interest restriction on disclosure expressed at Article 9(2) of the 1981 Strasbourg Convention. While the UK's national legislation is very specific on the grounds under which data may be withheld, the underlying international Convention is not so specific. This is the reason for the wider language used in Naples II. It is important to note that the second sentence of Article 25.2(e) says that "there is no obligation" to provide information when the public interest condition applies; it does not say that the Member State is obliged not to provide information in those circumstances. It should also be noted that the second sentence of Article 25.2(e) is conditioned by the third sentence of that Article which shows that the person's rights to receive information about personal data communicated are determined by national laws, regulations and procedures. In other words, existing UK legislation and Naples II are not inconsistent because the Convention does not prevent the UK applying its own tighter data protection provision in this respect.

  The basis for the comments in HM Customs and Excise's Explanatory Note of 12 November that the wording of Article 25.2(e) at that time would have required new legislation in the UK before the Convention could be ratified, was indeed in relation to manual records. As mentioned above, there is no existing UK legislation covering non-automated exchanges of data. A full explanation of this point has been given in answer to the previous question.

  It can be confirmed that the protection given by Article 25 applies to personal data transmitted under Title III (Spontaneous assistance). Article 25.2 states that the data protection provisions "shall apply to personal data which are communicated pursuant to this Convention". This definition includes data communicated spontaneously under Title III.

27   i.e., Naples II and the Mutual Legal Assistance Convention. Back

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