Extract from Explanatory Memorandum on
the Draft Convention on Mutual Assistance in Criminal Matters
between Member States of the European Union submitted by the Home
Office 16 November 1999
COPEN 48 concerns the scope of the interception articles
in the draft Convention. As set out in previous explanatory memoranda,
the Government is keen to ensure that the Convention applies to
the UK in a similar way as it will apply to other Member States.
Member States agree that the Convention should not cover background
intelligence-gathering, particularly where this concerns national
security. Recent negotiations have focused on ways of achieving
this level playing field.
Following discussions with the Presidency and
other Member States, the Government has accepted that the Convention
could apply to the Security Service when it is acting in support
of a criminal investigation conducted by the police or Customs
and Excise in accordance with its remit under the Security Service
Act 1996. The Government accepts that this is broadly equivalent
to activity carried out under judicial supervision in most other
Member States and which is covered by the Convention.
COPEN 48 reflects the outcome of discussions
in Coreper for consideration by the Justice and Home Affairs Council
on 29 October.
The main elements of COPEN 48 are:
(i) a new Recital is added to the preamble
in order to avoid any possibility that the failure of the Convention
to regulate all interception activity could be interpreted as
meaning that it gives Member States a right under international
law to intercept targets on other Member States' territory.
(ii) amended text for Article 15 defining
competent bodies for the purposes of the interception provisions
in the Convention.
(iii) a new Article 18(1) which, for the
purpose of this article, has the effect of defining a criminal
investigation as one which presents the following characteristics:
"an investigation following the commission of a specific
criminal offence, including attempts as far as they are criminalized
under national law, in order to arrest, charge, prosecute or deliver
judgment on those responsible". This language is based on
earlier attempts to define what other Member States' understand
to constitute a "criminal investigation".
(iv) a possible UK declaration (produced
by the Presidency following discussions with the UK) to be annexed
to the Convention. Although the final text remains under discussion,
this would confirm that the UK is prepared to apply the Convention
to the Security Service where it is acting in support of a police
or Customs and Excise investigation into criminal offences (in
accordance with its remit under the Security Service Act 1996).
The declaration, as drafted, applies only to Article 18. The Government
would prefer that the declaration applies to all the interception
articles. A legally binding UK Declaration annexed to the Convention
is necessary to take account of the fundamental differences between
the UK's criminal justice system and interception legislation,
and those of other Member States. Other Member States are clear
about the scope of the Convention, and hence do not need to make
(v) finally, it is proposed that the explanatory
report should explain the background to negotiations on these
This approach is broadly acceptable to the UK.
The final details remain under negotiation in Coreper.
Minister of State, Home Office