Select Committee on European Union Twelfth Report

Letter from Barbara Roche MP to Lord Tordoff

  Thank you for your letter of 15 February, enclosing the submission of Statewatch on a number of articles of the draft Convention.

  2.  I have considered the submission of Statewatch, and am replying individually to each of the points made in their report.


  3.  The first issue raised is the scope of the Convention, which has, according to Statewatch changed from being one to improve judicial co-operation to one extending to cross border police co-operation. The comment is also made that the Convention is not limited to serious crimes, but extends to all crimes. Both these facts are true, and are a deliberate reflection of the perceived needs of modern day international co-operation. In the same way that the 1959 Convention was not restricted to serious crimes, so the new Convention is not so limited either. In fact the new draft Convention in Article 2 expressly sets out to cover aspects of co-operation which were excluded from the 1959 Convention, namely administrative offences.

  4.  Statewatch suggests that ratification of the Convention by the UK will be difficult, because of the conflict between concerns about serious crime being outweighed by the needs for scrutiny, accountability and safeguards for the citizen. Since the purposes of the Convention include both improving judicial co-operation in criminal matters, and ensuring that mutual assistance between the Member States is provided in a fast and efficient manner compatible with basic principles of national law, including ECHR considerations, this objection is difficult to understand.


  5.  Statewatch identifies the change in approach in the draft Mutual Legal Assistance Convention as a problem. Under the 1959 Convention, requests are to be executed in the requested state in the manner provided for by its law (Article 3(1)). Under the draft Mutual Legal Assistance Convention in Article 4, Member States shall undertake with the formalities and procedures expressly indicated by the requesting Member State, provided that such formalities and procedures are not contrary to the fundamental principles of law in the requested Member State (my underlining). In those circumstances, I do not see a ground for Statewatch's concerns, since the express right to refuse assistance in the manner requested is provided for.

  6.  Statewatch also proposes inclusion in Article 4 of provisions similar to those in Article 7(2) and (3), which enable an authority providing spontaneous assistance to impose conditions on the use of such assistance. However, there are now to be data protection provisions in the Convention, currently contained in Article X which has been submitted separately for scrutiny. Bearing that in mind, we are not persuaded that the Statewatch proposal is necessary or that it would contribute towards the Convention's stated objective of improving judicial co-operation (second recital).


  7.  Article 6(1) has been expressly drafted to take account of modern electronic means of communication. It allows for the communication of requests by any means "capable of producing a written record". This will enable both requesting and requested states to obtain records appropriate for their legal systems.

  Although written records will in most circumstances be required, at least for the UK legal systems, the Convention has been drafted in such a way as to allow for oral requests to be made, although the consent of both parties to such a procedure would be a prerequisite.

  8.  The provisions of Article 6(3) have been designed as a means for the UK and Ireland to limit the application of the direct transmission principle. 6(3) reflects a recognition that under common law systems, direct transmission may not in all cases be the most effective route, and this clause allows our Central Authority (located in the Home Office) to retain its role as the channel for transmission of requests in at least some cases. However, the Government recognises that the Schengen agreement gives preference to a more decentralised approach, wherein requests are sent direct to executing judicial authorities, bypassing Ministries of Justice, and we have previously made clear that we will in due course adjust the UK's mutual assistance arrangements as necessary in order to comply with the requirements of Schengen membership.


  9.  The criticism here is directed to the extension of the informal exchanges of information from purely police channels to include also judicial channels. Articles 7(2) and (3) allow the authority providing the information to impose conditions on the use of the information provided. We consider that this provision constitutes sufficient safeguard against improper use of the information provided.


  10.  These comments relate to the temporary transfer of persons in custody for the purpose of an investigation in another Member State. The proposal by Statewatch is in similar terms to an amendment proposed in the opinion of the European Parliament, which will be considered by the Judicial Co-operation Working Group. It is possible that discussions on this point could lead to an amendment to the text of the draft Convention. We can support such a proposal.

  11.  A further amendment proposed by the opinion of the European Parliament, to the effect that the transfer should not affect the rights of the person concerned, would cover the second point raised by Statewatch in relation to this Article, and we can support it in principle.


  12.  The general point raised at the beginning in relation to the rights of accused persons overlooks the fact that Article 10(9) requires video hearings of accused persons to be in accordance with national law and the ECHR, provides for the Council to adopt such rules as may prove necessary.

  13.  There is no suggestion in Article 10(3) that the witness or expert would not be available for cross examination by the defence, or that the witness or expert would in any other way be in any different position from a witness or expert giving evidence while actually present in court. Article 10(5)(b) means that considerations relating to witness protection will apply in the same way to evidence given by video link as to evidence given live in court, and will be the subject of separate negotiation between the two Member States concerned.

  14.  The opinion of the European Parliament proposes an amendment on access to legal advice, similar to that proposed by Statewatch. It is true that Article 10(5) does not provide in terms for legal advice to be available to the witness or expert who is being heard. However, this is not excluded by the text and we consider that the provisions of the Article read together provide adequate safeguards.

  15.  The proposal that the witness or expert should be able to request an interpreter is contained in the European Parliament's opinion, and will be considered by the Judicial Co-operation Subgroup.

  16.  Statewatch next proposes that specific rules on disclosure should apply to the document recording the proceedings. It is not thought that such rules are necessary, since the proceedings will have taken place in the sight of both parties to the proceedings. Further, since the proceedings will have been highly visible, the defence will be able to apply to the court for access to the minute of the proceedings. There is no question of such proceedings taking place without the knowledge of the defence.

  17.  The next comment relates to the provision allowing the extension of this Article to defendants. This provision has been included particularly at the insistence of the Italian delegation, for whom this is an important matter. In a number of Mafia related cases, where there have been many defendants in one case, security issues have necessitated holding the defendants in secure prison accommodation and relaying the court proceedings against them by live television link from a court. This is allowed for in Italian law. The UK law is clear that in general it is unacceptable for any part of a criminal trial to take place in camera in the absence of the defendant. The UK does not intend to apply Article 10 to hearings involving the accused person.

  18.  In general, the Government takes the view that insofar as other Member States decide to make use of video hearings of accused persons, adequate safeguards are provided by the requirements in 10(9) to secure the accused's consent and the agreement of the competent judicial authorities and for the procedure to be agreed by the Member States involved in accordance both with their national law and the ECHR. We believe it to be sufficiently clear in the existing text that accused persons would not be deprived of their rights because video conferencing was being used. Having said that, we will not oppose the insertion of additional appropriate safeguards provided this can be done without threatening the timely conclusion of the negotiations.


  19.  The items which may be the subject of controlled deliveries are not defined in the Convention. Such a definition could unduly restrict its effectiveness. What is contraband today may well prove not to be in 10 years time, and the Article is drafted flexibly enough to cover developments in criminal activity.


  20.  The provisions on Joint investigation teams will be the subject of further discussion following the submission of the Council Legal Service's opinion on the drafting of the document. The observations of Statewatch on the possibility of confusion of terminology will be borne in mind in considering the final text.

  21.  Statewatch objects to the removal of conditions on the use of information formerly contained in Article 13(8). The specific conditions are now contained in Article 13(9), and Statewatch finds these conditions objectionable. However, Statewatch's concern is based on the Convention's apparent disregard of data protection legislation: since the time that Statewatch considered the matter, the draft of an Article X on data protection has been prepared, and submitted separately for scrutiny.

  22.  Statewatch is concerned that the provisions of Article 13(11) would enable Europol to assume an operational role. We do not consider that the provision would have this effect, since Europol's participation in joint investigative teams would be subject to its governing term of reference.


  23.  In relation to Article 14, Statewatch argues that covert investigations should be regarded as an aspect of police co-operation, rather than judicial co-operation. As has been noted above, the extension of the scope of the draft Convention has been considered to be necessary to combat international criminal activity.

  24.  Statewatch welcomes Articles 14a and 14b on liability but calls for the insertion of provisions on accountability similar to those in Articles 40(3)(h) and 41(5)(g) of the Schengen Convention. However, Article 14(2) provides that matters such as the status of the officers involved, and the detailed conditions, are to be agreed by the Member States involved with due regard to their national law and procedures. We consider this to provide a sufficient safeguard on these matters.


  25.  Statewatch is unhappy with the philosophy of the interception provisions. These were, as Statewatch notes, some of the most difficult provisions of the Convention to negotiate, and the current position, as agreed during the December JHA Council, has cleared Parliamentary scrutiny. We note that Statewatch proposes a number of amendments to the interception provisions. However, we do not consider that unpicking text which has been agreed in these Articles at this stage is either necessary or prudent.


  26.  We hope that this Convention may be agreed at the March JHA Council, subject to its having cleared scrutiny by then, and are urgently attempting to ensure that advice on remaining issues is provided to you in time for that to happen.

  I am copying this letter to Jimmy Hood, the Chairman of the European Scrutiny Committee in the House of Commons.

9 March 2000

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