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.
SCOPE OF
THE CONVENTION
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.
ARTICLE 4(3)—MANNER
OF EXECUTING
REQUESTS
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).
ARTICLE 6
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.
ARTICLE 7 (SPONTANEOUS
EXCHANGE OF
INFORMATION)
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.
ARTICLE 9
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.
ARTICLE 10 (HEARING
BY VIDEO
CONFERENCE)
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.
ARTICLE 12 (CONTROLLED
DELIVERIES)
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.
ARTICLE 13 (JOINT
INVESTIGATION TEAMS)
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.
ARTICLE 14 (COVERT
INVESTIGATIONS)
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.
ARTICLES 16, 17 AND
18 (REQUEST FOR
INTERCEPTION OF
TELECOMMUNICATIONS)
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.
CONCLUSION
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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