APPENDIX 5 (continued)
CONSIDERATION OF DRAFT CONVENTION ON MUTUAL ASSISTANCE
AND CO-OPERATION BETWEEN CUSTOMS AUTHORITIES (NAPLES II)
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.
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i.e., Naples II and the Mutual Legal Assistance Convention. Back
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