Select Committee on European Union Twelfth Report

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 a declaration.

    (v)  finally, it is proposed that the explanatory report should explain the background to negotiations on these provisions.

  This approach is broadly acceptable to the UK. The final details remain under negotiation in Coreper.

Minister of State, Home Office

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