House of Lords - European Union

Select Committee on European Union Twelfth Report

CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE MEMBER STATES OF THE EUROPEAN UNION - THE FINAL STAGES

Hearings by video conference and telephone

26. The Convention establishes a framework for co-operation between Member States in the taking of evidence by live video link (video-conferencing) or by telephone.

HEARINGS BY VIDEO CONFERENCE

27. The Convention includes provisions requiring a Member State (the requested State) to provide assistance in obtaining evidence from witnesses or experts present in that State for proceedings in another by means of a live video link. Assistance may only be refused if it would be contrary to fundamental principles of law of the requested State. An addition was proposed which would confer on the Member States a discretionary power to assist one another with hearings by video conference involving an 'accused person'. In exercising that power, the Convention specifies that such hearings would require the agreement of the competent judicial authorities of the Member States concerned, would have to comply with relevant international instruments (including the ECHR), and could only be conducted with the consent of the accused person. The Convention also contemplates that the Council may adopt further legally binding rules for the protection of the rights of the accused, but this is not a pre-condition for carrying out the hearings. Member States have the option, when ratifying the Convention, to make a declaration stating that they do not intend to apply the provision permitting hearings of an accused by video conference. This opt-out facility does not extend to hearings of experts or witnesses.

28. The Committee expressed some unease that, unless or until the Council agreed to adopt further safeguards, essentially the same rules as govern hearings of experts and witnesses might apply to an accused person. As the position of an accused person differs significantly from that of a witness or expert, we asked the Government if it considered that the Convention provided adequate protection of the rights of the accused. We also sought to clarify whether there was among Member States a common understanding of the term an 'accused person' and of the circumstances in which such a person might be involved in a hearing by live video link.

29. The Government anticipated that Member States would interpret the term an 'accused person' flexibly, in keeping with the principal purpose of the Convention - to enhance co-operation and remove obstacles to obtaining and providing assistance across borders. The most important safeguard was the requirement for the consent of the accused to a hearing by video link. The UK (if it were to take part in this provision) would judge each such request for a hearing on its individual merits. The Government has since indicated that it intends to opt out of this part of the Convention.

Hearings by video-conference - Article 10
Letter from Lord Tordoff to Kate Hoey, MP	04 March 1999	p.35
Letter from Kate Hoey, MP to Lord Tordoff	22 March 1999	p.38
Letter from Barbara Roche, MP to Lord Tordoff	09 March 2000	p.61

HEARINGS BY TELEPHONE CONFERENCE

30. The Convention also provides that a Member State may (if its national law permits) seek assistance in obtaining evidence by telephone from an expert or witness present in another Member State. A request for assistance may only be refused on the grounds that it would be contrary to fundamental principles of law in the requested State. In addition, the witness or expert to be heard must expressly consent to giving evidence by telephone and a judicial authority must be present at the hearing.

31. The Government stated that it did not intend to admit evidence by telephone directly into proceedings in the UK but would be prepared to assist other Member States with requests for such evidence if the expert or witness present in the UK was genuinely willing to co-operate. The involvement of UK judicial authorities would require the enactment of primary legislation. For this reason, the Government would prefer an administrative procedure whereby a police officer would be present at the hearing.

32. The Committee sought further clarification from the Government of the principles that might, under UK law, be considered as 'fundamental' when deciding whether to assist with requests for evidence by telephone. We also questioned whether a police, rather than a judicial, presence at the hearing would be sufficient to ensure continuing compliance with 'fundamental principles of law'.

33. The Government indicated that a simple request to UK authorities to facilitate the hearing of evidence by telephone would not be contrary to any fundamental principle of domestic law in the absence of any additional countervailing factors. The decision to provide assistance in each case would be taken by or on behalf of the Secretary of State or, for Scotland, the Advocate General. The procedures thereafter would concern practical arrangements for the hearing and would not require attending police officers to deal with questions of law.

Hearings by telephone conference - Article 11
Letter from Lord Tordoff to Kate Hoey, MP	04 March 1999	p.35
Letter from Kate Hoey, MP to Lord Tordoff	22 March 1999	p.38
Letter from Lord Tordoff to Kate Hoey, MP	06 May 1999	p.39
Letter from Kate Hoey, MP to Lord Tordoff	17 May 1999	p.41

Jurisdiction of the Court of Justice

34. The Government has been reluctant to accept the recommendation in the Committee's 1998 Report that the Court of Justice should have full jurisdiction to ensure consistent interpretation and application of the Convention throughout the European Union. Our impression, at least initially, was that a decision on jurisdiction was in abeyance pending the outcome of negotiations, particularly with regard to interception.

35. As a consequence of the entry into force of the Treaty of Amsterdam, in May 1999, the Court has a limited jurisdiction in matters falling within Title VI of the Treaty on European Union on police and judicial co-operation in criminal matters. The extent of its jurisdiction is set out in Article 35 TEU. That Article precludes the possibility of accepting a preliminary ruling jurisdiction only in relation to the Convention. Member States must either accept such a jurisdiction for all Third Pillar (Title VI) instruments or none[12]. The Government has indicated that it foresees significant difficulties of practice and principle in making a 'once and for all' declaration accepting the Court's preliminary ruling jurisdiction.

36. The Committee has consistently urged the Government to adopt a more positive stance on the role of the Court of Justice in relation to police and judicial co-operation in criminal matters, not least as a means of ensuring effective and uniform judicial supervision of Union activity[13]. We continue to do so.

Jurisdiction of the Court of Justice
Letter from Lord Tordoff to Kate Hoey, MP	04 March 1999	p.35
Letter from Kate Hoey, MP to Lord Tordoff	22 March 1999	p.38
Letter from Kate Hoey, MP to Jimmy Hood, MP	17 May 1999	p.42

Joint Investigation Teams

37. The inclusion of a legal basis for the creation of joint investigation teams to carry out criminal investigations is one of the later additions to the Convention. The purpose of joint teams is to establish operational links between Member States to ensure co-ordinated and concerted action in investigating criminal offences. Leadership of a joint team will be entrusted to a representative of the Member State in which the team operates, but officials from other Member States may be seconded to it. The Convention establishes the general conditions applicable to members of the joint team. It envisages that seconded members may take "certain investigative measures", subject to the approval of the Member State of operation and the seconding Member State. Officials from Europol or from other international organisations and bodies or third countries may also take part in joint teams but will not automatically be bound by the general conditions (or enjoy the rights) set out in the Convention. Their participation is subject to an agreement between the Member States involved in setting up a joint team.

38. There are similar provisions in the "Naples II" Convention on Mutual Assistance and Co-operation between Customs Administrations[14]. Under the Naples arrangements, membership of a joint team "shall not bestow on officers any powers of intervention in the territory of another Member State".

39. The Committee noted the apparent disparity in the powers of intervention available to seconded customs officials participating in a joint team set up under the Naples II Convention and one based on the Mutual Assistance Convention. We asked the Government if such disparity was intended and what the implications would be for joint teams operating in the UK. We also sought further clarification of the Government's policy on Europol involvement in joint teams.

40. The Government confirmed that the Convention went further than Naples II in conferring a potential power of intervention on officers seconded to a joint team operating in another Member State. Seconded officers would only be able to exercise executive powers with the consent of the Member State of operation. The Government did not intend to confer any such powers in the UK.

41. The Government also re-iterated the longstanding UK position that Europol staff should not have operational powers and that any involvement in criminal investigations by joint teams should take the form of analytical and expert support. The provisions on joint teams in the Mutual Assistance Convention would not, in themselves, allow Europol to assume an operational role[15].

Joint investigation teams - Article 13
Letter from Lord Tordoff to Kate Hoey, MP	06 May 1999	p.39
Letter from Kate Hoey, MP to Lord Tordoff	17 May 1999	p.41
Letter from Lord Tordoff to Kate Hoey, MP	01 July 1999	p.45
Letter from Lord Tordoff to Barbara Roche, MP	11 November 1999	p.45
Extract from Explanatory Memorandum to COPEN 60	13 December 1999	p.49
Letter from Lord Tordoff to Barbara Roche, MP	20 January 2000	p.52
Letter from Barbara Roche, MP to Lord Tordoff	24 February 2000	p.57
Letter from Barbara Roche, MP to Lord Tordoff	09 March 2000	p.61

Rules on the status and liability of foreign officials

42. The Convention includes provisions on the criminal and civil liability of officials involved in cross-border operations as members of a joint investigation team or when assisting in a controlled delivery or a covert investigation. Similar provisions, defining the status and liability of officers engaged in cross-border surveillance and "hot pursuit" (involving the crossing of land borders) are in the Schengen Implementing Convention 1990[16]. The wording is not identical in both Conventions. Under the Schengen system, officers entitled to carry out cross-border surveillance or hot pursuit are specified in the Convention itself. There is no such limitation under the Mutual Assistance Convention as regards joint investigation teams. As mentioned above, the composition of the team is subject to an agreement between the Member States involved in its creation. Members of the team may include, in addition to officials from the Member States concerned, officials from Europol or other international organisations or bodies. By contrast, the rules on liability are limited in their application to officials from one Member State operating in another.

43. The Committee asked the Government to clarify the status and liability of officials representing an international organisation or body, or from a non-EU country, who were participating in a joint investigation team. Our particular concern was to ascertain precisely what effect the Protocol on the Privileges and Immunities of Europol[17] would have on the application of the liability rules to Europol officials. We also asked for an explanation of the practical implications of the rules on liability for UK citizens in terms of obtaining redress for damage to person or property caused by a foreign official.

44. The Government described the arrangements whereby individuals would obtain redress from the national authorities of the Member State of operation. UK citizens would not, as a result, have to pursue a claim in a foreign court. The rules on status and liability would not, however, apply to third country (non-EU) officials operating on the territory of a Member State or to officials of international organisations such as Europol. Europol officers, when exercising their official functions, would enjoy "immunity from the legal process of any kind in respect of words spoken or written, and acts performed by them". But the Government emphasised that the extent to which the exercise of their official functions would necessitate the physical presence of Europol officers in the UK remained unclear. If, for example, Europol officers were to participate in a joint investigation team involving the UK, their role would be "the traditional one of analysis" and this would not require them to be present on UK territory. The Committee has urged the Government, with regard to officials from Europol and other international organisations or third countries operating on the territory of a Member State, to clarify in the Explanatory Report the nature of their involvement and the extent of their liability. We welcome the Government's undertaking to do so.

Status and liability of foreign officials - Articles 15 and 16
Letter from Lord Tordoff to Barbara Roche, MP	11 November 1999	p.45
Extracts from Explanatory Memorandum to COPEN 60	13 December 1999	p.49
Letter from Lord Tordoff to Barbara Roche, MP	20 January 2000	p.52
Letter from Barbara Roche, MP to Lord Tordoff	24 February 2000	p.57
Extracts from Explanatory Memorandum to COPEN 18	15 March 2000	p.64
Letter from Lord Tordoff to Barbara Roche, MP	25 May 2000	p.74
Letter from Barbara Roche, MP to Lord Tordoff	28 June 2000	p.75

Data protection

45. The Committee, in its 1998 Report, strongly encouraged the Government to promote the inclusion of specific data protection safeguards in the Convention and suggested that the formula used in the Naples II Convention might serve as a useful precedent[18]. Unfortunately, little effort seems to have been made to draw up data protection provisions. The belated appearance of a draft text has given the impression that data protection has not been regarded as a high priority in the negotiation of the Convention[19]. Moreover, it has made it difficult to obtain the expert guidance necessary to ascertain the specific data protection requirements for this type of Convention and the adequacy of the proposed safeguards.

46. We asked the Data Protection Commissioner to comment on the level of personal data protection proposed in the Convention. Her criticisms were two-fold. First, the provisions did not go far enough in specifying the purpose for which information communicated under the Convention might be used. It follows that, "If purpose specification is not precise, then the rules about data being used only for compatible purposes and being adequate, relevant and not excessive for their purpose are rendered nugatory". Secondly, the Convention did not include a specific reference to the standards of protection required by the 1981 Council of Europe Data Protection Convention[20]. Such a reference is necessary because EU Member States, although each individually bound by the Council of Europe Convention, would not necessarily have comprehensive data protection legislation in place applying to all matters covered by the Mutual Assistance Convention. The Data Protection Commissioner drew attention to drafting precedents in the Conventions establishing Europol, Schengen, and the Customs Information System.

47. The Government has sought to distinguish the communication of data under the Mutual Assistance Convention from other systems such as Schengen in which information is "specifically sorted on specially set up databases". We do not find this distinction compelling. We do not accept the implicit assumption that the degree of protection afforded by the 1981 Council of Europe Convention should vary according to whether information is stored on a database such as the Schengen Information System or processed in any other way. Nor, for the reasons mentioned above, do we share the Government's view that a specific reference to the 1981 Convention is unnecessary since it forms part of the European Union acquis and has been ratified by all Member States.

48. The Committee considers that there is much force in the observations made by the Data Protection Commissioner. The possibility of national derogation from the 1981 Convention on such grounds as "State security, public safety, the monetary interests of the State or the suppression of criminal offences"[21] means that a gap might well exist between the safeguards available under national data protection legislation and the areas covered by the Mutual Assistance Convention. The Government argues that the restrictions on the communication of information under the Convention represent an attempt to control unauthorised and inappropriate use which, at present, may not, be controlled at all. In our view, the possibility that such controls are currently lacking demonstrates the inadequacy of relying on national implementation of the 1981 Convention to secure adequate safeguards. We have some difficulty in understanding why the inclusion of data protection provisions similar to those found in other Third Pillar Conventions should meet such a degree of resistance among Member States. We understand that the Government is unable to comment on the negotiating positions of individual Member States. But the fact that a number have objected to the inclusion of any data protection provisions at all falls far short of an adequate explanation of the basis for their objections. We are not convinced that the compromise reached reflects the importance which should, in our view, attach to the protection of a fundamental right, namely respect for private and family life. We can only conclude that the political will to achieve more favourable provisions is weaker than the political imperative to bring to a close four years of complex and difficult negotiations on the Mutual Assistance Convention.

Data protection - Articles 13(10) and 23
Letter from Lord Tordoff to Kate Hoey, MP	27 May 1999	p.43
Letter from Kate Hoey, MP to Lord Tordoff	15 June 1999	p.43
Letter from Lord Tordoff to Kate Hoey, MP	01 July 1999	p.45
Letter from Lord Tordoff to Barbara Roche, MP	11 November 1999	p.45
Extract from Explanatory Memorandum to COPEN 60	13 December 1999	p.49
Letter from Lord Tordoff to Barbara Roche, MP	20 January 2000	p.52
Letter from Barbara Roche, MP to Lord Tordoff	24 February 2000	p.57
Letter from Data Protection Commissioner	06 March 2000	p.60
Extract from Explanatory Memorandum to COPEN 18	15 March 2000	p.64
Letter from Deputy Data Protection Commissioner	17 March 2000	p.70
Letter to the Legal Adviser from the Home Office	22 March 2000	p.71
Letter from Lord Tordoff to Barbara Roche, MP	23 March 2000	p.72
Letter from Barbara Roche, MP to Lord Tordoff	20 April 2000	p.73
Letter from Lord Tordoff to Barbara Roche, MP	25 May 2000	p.74
Letter from Barbara Roche, MP to Lord Tordoff	28 June 2000	p.75