Select Committee on European Union Thirty-Second Report

Scope of criminal liability/exclusions (Article 8(1))

12.  Article 8(1) provides four means by which a Member State can limit the scope of criminal liability under Article 1 of the Framework Decision. These provisions are important for the UK. The Minister explained how the UK would take fullest advantage of Article 8(1) so that the Framework Decision would not require any substantial amendment of UK law. For example, the Government could accept the amendment made to Article 1 in order to include incitement to discrimination (see paragraph 7 above) because it would be able to rely on Article 8(1)(b) and (d) to limit the offence of incitement to discrimination to conduct which was likely to stir up hatred or violence and was threatening, abusive or insulting (ie to the case where the conduct would fall within the scope of our current domestic law on incitement to racial hatred) (Q 19). The Minister made clear the Government's intention to rely on all the derogations given by Article 8(1) and that the Government would not agree to any amendment of the Treaty (for example, to permit the Framework Decision to be changed by qualified majority voting) which might jeopardise that position (QQ 21, 27).

Scope of criminal liability/mutual assistance (Article 8(3))

13.  Article 8(3) has taken on a particular importance in the negotiations. It enables Member States to refuse mutual legal assistance on the basis of the requirement of double criminality (ie on the grounds that the conduct, though illegal in the State requesting assistance, is not illegal in the requested State). Refusal of assistance would be possible only where at least a significant part of the offence had been committed in the requested State or where the offence had been committed outside the territory of the requesting State and the law of the requested State did not allow prosecution for the same offences when committed outside its territory. The obligation to provide assistance remains, in the view of the Government, too wide—it would require UK authorities to search for and seize material that is not illegal in the UK (Explanatory Memorandum of 25 March).

Relationship with the European Arrest Warrant

14.  Racism and xenophobia belong to the list of offences for which the requirement of dual criminality[12] is removed for the purpose of the execution of the European Arrest Warrant (EAW).[13] We suggested to the Government that the Framework Decision should provide a definition of racism and xenophobia for the purposes of the EAW. In this way some of the difficulty and criticism surrounding the inclusion of racism and xenophobia in the listed offences[14] in the EAW might be overcome. The Government, however, was not prepared to discuss any such limitation on the definition of offences under the Framework Decision (letter of 10 January). This is regrettable. In our view, an important opportunity to provide an element of legal certainty in a particularly sensitive area of the criminal law is being missed. However, consistent with the approach being taken in relation to mutual legal assistance (described in paragraph 13 above) the Government gave the Committee an assurance that no one who has acted in a lawful manner in this country would be extradited under an EAW to another Member State for a racism and xenophobia offence where the whole or a part of the conduct occurred in the UK. An amendment to the Extradition Bill would be brought forward to address the issue (QQ 39, 44).[15]

12   The requirement that the conduct in question if committed in the requested State would be criminal there. Back

13   Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States [2002] OJ L 190/1. Back

14   Article 2(2) of the EAW lists 32 offences. The effect of being listed is that the principle of dual criminality (that the conduct must be criminal in both the requesting and requested States) does not apply if the offence is punishable in the States issuing the warrant by a custodial sentence of a maximum of at least 3 years. Back

15   To this end the Government has tabled amendments (Nos 112 and 126) to clauses 63 and 64 of the Bill presently before the House. The amendments were agreed to: see Official Report of the Grand Committee on the Extradition Bill (Sixth Day) (HL Debs 1/7/03, at GC 202-208 and GC 230). Back

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