Select Committee on European Union Twelfth Report

Extract from Explanatory Memorandum on the Draft Convention on Mutual Assistance in Criminal Matters between the Member States of the EU submitted by the Home Office 13 December 1999 (13451/99 COPEN 60)


Document 13541/99 COPEN 60 is a new consolidated text of the draft Mutual Legal Assistance Convention.

Article 6 (Transmission of Letters of Request)

  2.  Article 6(1) incorporates the changes introduced in COPEN 54 to allow letters of request to be sent by any means capable of producing a written record. This will cover requests sent by e-mail. COPEN 54 originally proposed that the text should form a new paragraph 4 to Article 4 of the draft Convention; the text in 13541/99 COPEN 60 reflects the changes agreed at the Judicial Co-operation Working Group on 10 November. These move the text from Article 4 to Article 6(1) and the reference to oral letters of request from the main text to the Explanatory Report. The Government supports the substance of the text as well as the positional change.

  3.  Article 6(3) contained an opt-out for the United Kingdom and Ireland providing that requests and communications to them must be submitted via Central Authorities instead of directly between judicial authorities. It was the subject of a now lifted scrutiny reserve from one Member State. The reserve was lifted on the condition that there is a specific reference in the Convention stating that the opt-out can only be used by the United Kingdom and Ireland. The current drafting of Article 6(3) reflects this. This clause is not in the best spirit of the Convention, but, as it refers to forbidding other Member States from using the opt-out, does not in practice cause the United Kingdom any problems.

  4.  The paragraph also has a further clause allowing any Member State to apply the principle of reciprocity to requests from the United Kingdom and Ireland, in other words to require requests sent from the UK and Ireland to be sent from and to Central Authorities. This is not helpful and if implemented may well negate the gains that prosecuting authorities in the United Kingdom would gain from being able to transmit requests directly to the executing authorities in other Member States. However in practice the United Kingdom itself intends to move towards the direct transmission of requests, and has already agreed to the principle of direct transmission in relation to requests sent under the Schengen Convention [the relevant provisions are contained in Article 53(1)]. If we do accept direct transmission of requests we would have no need to use the opt-out in Article 6(3) (and consequently would not suffer under the reciprocity clause). To reflect further the links between the Schengen Convention and the Mutual Assistance Convention the text in 13541/99 COPEN 60 includes a further, and new, amendment to Article 6(3). The Article now reads in full:

    "Notwithstanding paragraph 1, the United Kingdom and Ireland, respectively, may, when giving the notification provided for in Article 23(2), declare that requests and communications to it, as specified in the declaration, must be sent via its central authority. These Member States may at any time by a further declaration limit the scope of such a declaration for the purpose of giving greater effect to paragraph 1. They shall do so when the provisions on mutual assistance of the 1990 Schengen Convention are put into effect for them.

    Any Member State may apply the principle of reciprocity in relation to the declarations referred to above".

  5.  The effect of this new clause is to ensure that when the direct transmission provisions of the Schengen Convention (which have no possibility of opt-out) are brought into force the United Kingdom and Ireland will have to limit the extent of any opt-out under Article 6(3) to ensure a greater effect is given to Article 6(1). We are content to accept the clause with the new text.

  6.  The change to Article 6(5) is a minor technical one adding requests under Article 13 (joint investigation teams) to those which can be sent by or to a police or customs authority. Current United Kingdom practice is for joint teams to be set up by the police and/or customs without the involvement of judicial authorities. The amendment makes sure that the existing practice can continue.

Article 13 Joint investigation teams

  7.  The first change is to paragraph 4. Members of a joint investigation team have a general right to be present unless the leader of the team, in accordance with the law of the Member State where the team operates, decides otherwise. Rights of attendance in the United Kingdom are generally a matter for codes of practice but as these are equivalent to subordinate legislation the Government considers that they would be covered by the term "national law". There will in any case be a reference to "operational reasons" as a way of restricting attendance at specific parts of an investigation in the Explanatory Report to the Convention. In practice we think it most unlikely that a foreign officer will challenge the right of a team leader from the United Kingdom to prohibit his presence from certain parts of the investigation.

  8.  The second change concerns paragraph 9. The new text reflects the strong desire of the United Kingdom and other Member States to ensure that there was no absolute right to use information obtained in one country for detecting, investigating and prosecuting other criminal offences. We were concerned that this absolute right might potentially harm the necessary protection of sensitive sources of information such as informants. It also reflects a proposal, paragraph 13(9)[c], which we can support, to allow information to be used to prevent "an immediate and serious threat to public security" and then with the permission of the state providing the information for it to be used in any subsequent criminal investigation.

  9.  Following the meeting on 10 November the European Scrutiny Committee of the House of Commons asked the Government to confirm that it is content with the revised text of Article 13(6). The Government is content with the new text.

Criminal and Civil Liability (Articles 14a and 14b)

  10.  There have been no textual changes to these articles, though they have been renumbered. Article 14a was previously Article X and Article 14b was previously Article Y. There are however a number of outstanding questions concerning these articles. Lord Tordoff, Chairman of the House of Lords Select Committee on the European Communities has asked why the Government considered that primary legislation would be needed to give effect to Articles 42 and 43 of the Schengen Convention but not to the equivalent provisions of the draft Mutual Assistance Convention. The Government is very grateful to Lord Tordoff for bringing this issue to our attention and has reconsidered the matter. Although one cannot be sure exactly how in practice we will be expected to implement the Schengen Convention and the Mutual Assistance Conventions it is possible, although not certain that primary legislation may be needed to protect a foreign officer acting along with United Kingdom officers, to the same extent that United Kingdom officers are protected.

  11.  Article 14b concerns the civil liability of officers taking part in controlled deliveries, joint investigation teams and covert investigations. Because of the specific provisions in this Article governing compensation for damage caused by foreign officers, the Government does not at this stage believe that legislation would be needed to implement this provision. The equivalent provision of the Schengen Convention (Article 43) has broader concerns however and it may be that legislation will be considered necessary to implement those provisions.

  12.  Lord Tordoff also asked for clarification of the practical arrangements by which an individual in the UK would obtain redress from the Member State whose officials caused the damage. Draft Article Y (now Article 14b) envisages a situation in which damage caused to an individual in the UK by a foreign official would be repaired by the authorities in the United Kingdom. It would be up to the UK authorities to claim the money back from the Member State whose officials caused the damage. There would therefore be no need for an individual in the UK suffering damage to a person or property to have to claim off the foreign Member State.

  13.  Finally he asked which rules would govern the status and liability of third country officials taking part in a joint investigation team. Third country officials, and those of international organisations such as Europol would not be considered to be officials of the Member State of Operation when in the United Kingdom. Their status in this country would be that of ordinary members of the public. They would have the same liability as other members of the public.

Interception of Telecommunications (Articles 15-19)

  14.  The interception provisions in 13541/99 COPEN 60 contain no significant changes from the text contained in 11951/99 COPEN 45 and 12322/99 COPEN 48 which has been cleared from scrutiny. The Government's Explanatory Memorandum of 21 July 1999 dealt with text on the service provider solution (Article 11 TER in CATS 8 and Article 17 in 13541/99 COPEN 60). Again there are no substantive differences. The changes are described below.

  15.  Article 18(3)(e) contained in 11951/99 COPEN 45 has been deleted. This paragraph applied to circumstances where a Member State was intercepting a target located on the territory of the notified Member State who was also under investigation by that Member State. It stated that the notified Member State may contact the intercepting Member State with a view to co-ordinating investigations. However, this is a normal part of mutual assistance and does not require a separate provision.

  16.  13541/99 COPEN 60 contains two drafting changes compared to the text in 12322/99 COPEN 48. Firstly, the phrase ". . . and not for other purposes" contained in Article 15 in 12322/99 COPEN 48 has been deleted from the text in 13541/99 COPEN 60. Secondly, the phrase "the obligation to inform under this Article" contained in Article 18(1a) in 12322/99 COPEN 48 has been changed to read "the obligations under this Article apply". Neither amendment affects the substance of the text.

  17.  Article 17(1) of 13541/99 COPEN 60 on the service provider solution requires Member States to ensure that the solution may be made accessible to other Member States for the purpose of intercepting targets located on territory of those Member States. The absence of any obligation on telecommunications operators to provide the solution is consistent with the Government's policy.

  18.  Article 17(2) contains no changes from Article 11 TER in CATS 8.

  19.  Article 17(3) removes unnecessary text contained in Article 11 TER in CATS 8. There is no substantive change.

  20.  Article 17(4) clarifies that Article 16 may also be used as the basis for a requesting Member State to seek assistance from another Member State to intercept a target located on the territory of the requesting Member State (rather than use the service provider solution). As stated in the Government's Explanatory Memorandum of 21 July 1999, the equivalent Article in CATS 8 (Article 11(4) TER) was not clear in this respect.

Entry into Force (Articles 23(3)-23(6))

  21.  12867/99 COPEN 56 contained new paragraphs 23(3), 23(4), 23(5) and 23(6) on entry into force of the MLA Convention. Paragraph 23(3) provides that entry into force is to be under the terms of the Treaty of European Union ie 90 days after half the Member States (8) have ratified the Convention. Paragraph 23(4) states that, for Member States after the first eight, the Convention will come into force, 90 days after they ratify the Convention. Paragraph 23(5) provides for the possibility of anticipated application between two Member States who have both ratified the Convention. Paragraph 23(6) states that the Convention will apply to requests for Mutual Assistance made after the Convention has come into force. All four paragraphs are technical in nature. The Government is content with all of these paragraphs subject to the views of the Council Legal Service which is at the moment unsure whether the entry into force of the Convention under the terms of the Treaty of Amsterdam is compatible with a provision to allow anticipated application of the Convention. We will advise the Committees of the Council Legal Service's final decision.

Mixed Committee Provisions (Article 24a)

  22.  New Article 24a is a technical provision listing the measures building on the Schengen Acquis. It is uncontroversial.

Data Protection

  23.  There have been considerable changes in this area. In return for support from Germany on interception the United Kingdom agreed to support Germany at the JHA Council on the desirability of a separate data protection provision in the Mutual Legal Assistance Convention. The Government was not required to support a specific text, such as that in document 11084/99 COPEN 37 but rather a declaration that reads:

    "The Council declares that provisions relating to the protection of personal data which are communicated pursuant to the application of this Convention are necessary. These provisions will be included in a legal instrument in a way which is in harmony with the results of ongoing horizontal discussions regarding data protection in the third pillar. The Council agrees that the Convention will be finally adopted at the Council in March 2000".

  24.  The United Kingdom has always taken the line that we do not oppose the inclusion of a data protection provision in the Convention, though we would of course wish to ensure that the detail in any proposal is acceptable to us. We can thus be content with the declaration in 13541/99 COPEN 60.

  25.  In his letter of 11 November Lord Tordoff asked a number of questions concerning document 11084/99 COPEN 37, which was a specific text on data protection. As the Scrutiny Committees will note that text is no longer part of the draft Convention. The Government can assure both Scrutiny Committees that it will seek the comments of the Data Protection Registrar as soon as it receives any further substantive texts.

  26.  The draft Convention remains under negotiation and the Government will keep the Committees informed about future developments.

Minister of State, Home Office

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