Letter from Barbara Roche MP to Lord Tordoff
I am writing to inform you that the Finnish
Presidency intends to seek agreement to the interception articles
in the draft EU Convention on Mutual Legal Assistance in Criminal
Matters at the Justice and Home Affairs Council on 2/3 December,
and to reply to your questions on interception in your letter
of 11 November. I will provide a response to the non-interception
issues raised in your letter shortly.
The latest consolidated text of the Convention
is contained in COPEN 56 (12867/99), deposited on 16 November.
You will receive an explanatory memorandum on the consolidated
text shortly.
In respect of the interception articles, there
are three areas where there is not yet consensus at Ministerial
level on the text:
— the scope of the interception provisions.
COPEN 56 adopts the approach set out in COPEN 48. The Government's
position on this is set out in the explanatory memorandum of 16
November (copy attached). Subject to minor drafting changes currently
under discussion in COREPER, we expect the JHA Council on 2/3
December to be asked to approve the text on the scope of the Convention.
We will ensure that you are provided with the final text put to
Council once it is available (though we do not anticipate any
substantive changes).
— the service provider solution to
satellite interception. COPEN 56 adopts the language in CATS 8
(9191/99). The Government's position on this article is set out
in the explanatory memorandum of 21 July (copy attached). Again,
subject to any minor drafting changes currently under discussion
in COREPER, we expect the JHA Council on 2/3 December to be asked
to approve the text of this article.
— Article 18(3) of the Convention which
deals with the procedures for notifying another Member State that
interception is taking place of subjects on its territory. COPEN
56 adopts the text of COPEN 45 (11951/99). The Government's position
on Article 18(3) is set out in explanatory memoranda of 16 November
and 18 October (copies enclosed). We do not anticipate any changes
to the text of this article.
Your letter of 11 November asked two questions
about Article 18(3) of the Convention. The questions relate to
the situation where a Member State has been notified that a subject
on its territory is being intercepted, and that Member State requests
that any intercept material obtained while the subject was on
its territory should be prohibited from use as evidence in criminal
proceedings.
The questions were:
(a) whether, despite the prohibition on the
use of such material as evidence in criminal proceedings, the
material can nevertheless be used to support an application for
the exercise of coercive powers such as forcible entry; and
(b) whether the prohibition on the use of
such material as evidence in criminal proceedings can be overridden
if necessary to protect the rights of an accused person. An earlier
text contained such an exception, but this has now been deleted
at the request of other Member States.
On (a), the legislation and procedures in the
intercepting Member State would govern the potential use of intercept
material obtained in such circumstances. However, there is nothing
in the Convention to stop the notified Member State from requesting
a prohibition on the use of the intercept material in this way
(though the Convention would not impose an obligation on the intercepting
Member State to comply with such a request).
On (b), the Interception of Communications Act
1985 does not allow intercept product to be adduced as evidence
in UK courts under any circumstances. This means that it may not
be used by the prosecution or the defence, thus providing an equality
of arms between both sides. The same approach would be adopted
in respect of intercept material which is prevented from disclosure
under Article 18(3). Nevertheless, prosecutors are under a clear
duty in domestic law to review any extant intercept material in
order to decide whether the prosecution can properly proceed in
the light of material tending to exculpate a defendant.
The Government's consultation document on the
Interception of Communications in the United Kingdom (CM 4368)
proposes that the new interception legislation should be underpinned
by a Code of Practice. The Government intends to hold a separate
consultation exercise on the Code of Practice. If the Convention
is agreed in advance of this exercise, and given the complexity
of these issues, the Code of Practice could include guidance on
the procedural matters associated with the interception provisions
in the Convention.
I hope that this letter helps to resolve any
outstanding concerns you may have about the interception provisions
in the draft Convention. While I recognise that the Committee
wishes to hold the whole Convention under scrutiny, it would be
most helpful to know whether you are content for the Government
to reach agreement on the substance of the interception provisions
at the Council.
26 November 1999
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