Select Committee on European Union Fortieth Report


EUROPEAN EVIDENCE WARRANT (14246/05)

Letter from Andy Burnham MP, Parliamentary Under Secretary of State, Home Office to the Chairman

  Thank you for your letter of 19 January 2006[153] detailing the comments and concerns of Sub-Committee E (Law and Institutions) on COPEN 174.

  The Committee highlighted a few outstanding issues in the proposal. I will attempt to address these in turn.

ARTICLE 19—LEGAL REMEDIES

  The Committee urged the Government to include a human rights ground for refusal in any legislation implementing the EEW. I am grateful for the Committee's comments on this and other issues about the implementation of the Framework Decision. The instrument, once adopted, will require primary legislation and this will need to be laid before Parliament in due course for its consideration. I will of course bear in mind the Committee's suggestions when we prepare the legislation.

ARTICLE 21—COMPUTER DATA

  I am sorry if the explanation of "directly accessible" in my previous letter caused the Committee any confusion. My intention was simply to confirm that your letter of 1 December was correct to suggest that the reference to "electronic data lawfully and directly accessible" covered the situation where information is held on a server in a third State. In our view that should not preclude information being retrieved under an EEW provided that it was lawfully and directly accessible in the executing State. Our intention is that evidence obtained in this way would be subject to the same rights and safeguards under the EEW as evidence located in the executing State.

ARTICLE 10(2)—DATA PROTECTION

  I note your comments in respect of the Council considering some form of statement drawing attention to the proposed Framework Decision on the protection of data in the framework of police and judicial co-operation to address the concerns raised earlier by the Committee on this point. I am however satisfied that Article 10 provides adequate safeguards to protect the use of data transmitted via EEWs.

EVIDENCE OBTAINED UNDER TORTURE

  You further raised the possibility of EEWs being received for information which may have been obtained under torture in a third country and which may appear in police files here. You asked what would be the response if the authorities in another Member State, not knowing of the existence of torture, sought the documents from authorities in the UK.

  A and others v the Home Secretary was concerned with the admissibility of evidence possibly obtained under torture in proceedings in the UK and so does not seek to set out rules about the use of evidence in other contexts. It will not always be apparent to an executing State whether or not information provided to it was the result of torture in a third country. Neither will the executing authority necessarily be in a position to know whether an allegation of torture in a third country is proved. The EEW Framework Decision does not address the issue of evidence obtained under torture in Article 15 which sets out the grounds on which a judge, investigating magistrate or prosecutor can refuse to recognise or execute the EEW. I believe it is unnecessary for it to do so because it would be for the courts to rule on the admissibility of evidence in any particular case in which the prosecution sought to rely on disputed evidence.

6 February 2006

Letter from the Chairman to Andy Burnham MP

  Thank you for your letter of 6 February which was considered by Sub-Committee E (Law and Institutions) at its meeting on 15 February. We are grateful for the information you have provided and also for your assurance that you will bear in mind the Committee's suggestions (in particular as regards Articles 2, 12 and 19 of the proposed Framework Decision) when the Government come to prepare implementing legislation. We are, however, disappointed that you are not prepared to take up the Committee's proposal that the Council should make a statement drawing attention to the importance of the proposed Framework Decision on the protection of data.

  As regards evidence obtained under torture in a third country, we are not yet persuaded that the matter should not be addressed in Article 15, which sets out the grounds on which an EEW need not be recognised or executed. We understand, from what you say in your letter, that UK authorities would not use the EEW to acquire evidence obtained under torture but it would be helpful if you could explain more fully the position where the UK is the executing State. You say that the admissibility of evidence under torture would be an issue for the court of the requesting State. You do not say, however, whether UK authorities in handing over the information would indicate their knowledge or suspicion that it had been obtained under torture. Should they not do so even if the Framework Decision is silent on the issue? If not, why not?

  The Committee decided to retain the proposal under scrutiny.

16 February 2006

Letter from Andy Burnham MP to the Chairman

  Thank you for your letter of 16 February with the further comments of Sub-Committee E (Law and Institutions) on the proposed European Evidence Warrant.

  You re-iterated the Committee's concerns regarding evidence obtained under torture in a third country and suggested that UK authorities should indicate their knowledge or suspicion about the circumstances in which information was obtained to any State issuing an EEW for such evidence. I can only confirm that the Framework Decision does not make any such requirement and in our view no obligation would exist to comment on the circumstances in which the information was originally obtained from a third country. It is for the courts to determine questions of admissibility if the information is subsequently produced in evidence, at which stage the full protections afforded to a defendant under ECHR will apply.

7 March 2006

Letter from the Chairman to Andy Burnham MP

  Thank you for your letter of 7 March which was considered by Sub-Committee E (Law and Institutions) at its meeting on 22 March. We have also considered the written statement made by Baroness Ashton of Upholland reporting the outcome of the Justice and Home Affairs Council on 21 February.

  In her statement Baroness Ashton refers to a Presidency compromise whereby the EEW would use the same list of (32) offences as in the EAW for which double criminality would not be needed. It appears that the Austrian Presidency is proposing that there be an explanation, in a non-binding Council declaration, of some of the offences. As you will recall from your meeting with Sub-Committee E on 18 January the fact that there are divergent views as to what some of the terms used in the list set out in the EAW are intended to cover it is not surprising that the replication of the EAW list in the EEW has given rise to discussion in the Council. We would therefore be grateful if you could provide us with further information as to which offences have caused difficulty. We fully appreciate that you will not be able to divulge the identity of the Member States concerned. This should not prevent the disclosure of any potential problems to Parliament. We would also be grateful for sight of the non-binding Council declaration proposed by the Presidency. Given the potential importance of that document we would not expect to be able to clear the Framework Decision from scrutiny without having the opportunity to see and consider the declaration being proposed to accompany it.

  Finally, on the subject of our most recent correspondence, namely evidence obtained under torture, you will not be surprised to learn that we are disappointed with the reply given in your recent letter. We note that you say, in a handwritten postscript, that you are satisfied with the explanations you have had. Unfortunately we have not had the same explanations or briefing from your officials. It remains a matter of concern to the Committee that authorities in the United Kingdom, knowing that evidence has been obtained under torture, would pass that evidence without comment to the requesting Member State. It would seem to us that there are good arguments relating to the efficiency of the prosecution system in that State and also to the fairness of the accused that such information should be provided even if there is no express obligation to do so in the EEW Regulation. Are you sure that the Government's policy would not render the United Kingdom complicit in any breach of the ECHR relating to the obtaining or use of the evidence in question?

  The Committee decided to retain the proposal under scrutiny.

23 March 2006

Letter from Andy Burnham MP to the Chairman

  Thank you for your letter of 23 March with the further comments of Sub-Committee E (Law and Institutions) on the proposed European Evidence Warrant.

  You referred to the proposal from the Presidency at the Justice and Home Affairs Council on 21 February to resolve concerns about the scope of some of the offences for which dual criminality would not be required in Article 16(2). No agreement was reached at the Council but the majority of Member States supported the Presidency's proposal for a Council Statement to guide the interpretation of the offences rather than to define the offences in the Framework Decision itself. The offences in Article 16(2) are generic rather than specific and, consistent with mutual recognition principles, it is the definition in the issuing state that should apply. The Presidency did not provide a draft text at the Council but the attached draft to accompany the Framework Decision has now been proposed and is currently under discussion. The UK continues to oppose creating binding definitions of offences in the Framework Decision.

  You raised again the Committee's concern about UK authorities executing EEWs for information obtained under torture in a third country. I recognise that the UK should inform an overseas issuing authority where it is known that the evidence requested was obtained under torture. As I indicated in my earlier letter, it will not always be apparent to the executing authority whether or not information provided to it by a third country is the result of interrogation under torture. I do not accept that there should be an obligation on the executing authority to comment on the circumstances in which the information was obtained in a third country. If the information is subsequently produced in evidence, the trial court in the issuing State may make any enquiries it considers appropriate with the third country to determine the admissibility of the evidence and to ensure that the defendant's rights are safeguarded.

20 April 2006

Annex A

PRESIDENCY PROPOSAL CONCERNING THE LIST OF OFFENCES IN ARTICLE 16(2)

  1.  The text of the Framework Decision is accompanied by the following Annex II:

    "The Council notes that the offences of terrorism, computer related crime, racism and xenophobia, sabotage, racketeering and extortion and swindling, listed in Article 16(2), are subject to different levels of approximation at EU level. While fully acknowledging that the issuing authority in a concrete case bears the sole responsibility for determining whether an offence under its law is a listed offence, the Council recommends Member States to respect the following minimum core criteria:

    Terrorism as defined in the Council Framework Decision of 13 June 2002 on Combating Terrorism.

    Computer related crime as defined in the Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems.

    Racism and xenophobia as defined in the Joint Action of 15 July 1996 (96/443/JAI).

    Sabotage: Any person who unlawfully and intentionally causes large-scale damage to a government installation, another public installation, a public transport system or other infrastructure which entails or is likely to entail considerable economic loss.

    Racketeering and extortion: Demanding by threats, use of force or by any other form of intimidation goods, promises, receipts or the signing of any document containing or resulting in an obligation, alienation or discharge.

    Swindling: The concept of swindling referred to in Article 16(2) encompasses the following constituent elements inter alia: using false names or claiming a false position or using fraudulent means to abuse people's confidence or credulity with the aim of appropriating something belonging to another person.

  2.  The text set out under point 1 will be published without footnotes in the Official Journal as Annex II to the Framework Decision.

Letter from the Chairman to Andy Burnham MP

  Thank you for your letter of 20 April which was considered by Sub-Committee E (Law and Institutions) at its meeting on 3 May.

  We are grateful for sight of the draft Annex II to accompany the Framework Decision. Are you content with the text and in particular with the definition of the offences relating to sabotage, racketeering and swindling? The Committee considers that the definition of these offences could be improved in order to make them more intelligible to lawyers in the United Kingdom. For example, in relation to racketeering and extortion, what is meant by the term "receipts" and what is a "document containing or resulting in an obligation, alienation or discharge"? The drafting of the definition of "swindling" might also benefit from critical examination by experts. Although you say that the Government oppose creating binding definitions the text of the Annex will command some authority and we hope you will agree that more attention needs to be given to the detail.

  Finally, as regards the question of evidence obtained under torture, we note that you repeat the view that the Government do not accept that there should be an obligation on the executing authority to comment on the circumstances in which information has been obtained, even if it is known to have been obtained by torture (the case set out in our earlier letter). We asked whether you were sure that the Government's policy would not render the United Kingdom complicit in any breach of the ECHR relating to the obtaining or use of the evidence in question. We would be grateful for a clear and direct response to that question.

  The Committee decided to retain the proposal under scrutiny.

4 May 2006

Letter from Joan Ryan MP, Parliamentary Under Secretary of State, Home Office to the Chairman

  Thank you for your letter of 4 May to Andy Burnham with the comments of Sub-Committee E (Law and Institutions) on the European Evidence Warrant.

  First, as you will be aware, on 1 June the JHA Council reached a general approach on the text of the Framework Decision after much intensive negotiation led by the Austrian Presidency to resolve the outstanding issues. I regret that this meant that I was unable to respond to the points raised in your letter in advance of the Council and consequently that the Committee had not completed its consideration beforehand. The agreement was on the basis of a general approach rather than political agreement. The Government did not believe that it was right to block a general approach as we are content with the instrument but I am sorry for any constraint the Committee may feel as a result.

  The two main items discussed at the Council were the definitions of offences listed in Article 16(2) and the ground for refusal based on territoriality. Proposals to include definitions of the certain offences listed in Article 16(2) in the Framework Decision itself or in an accompanying annex remained unacceptable to most Member States. The Presidency, having explored a numer of alternatives, concluded that agreement at Council was only possible with the inclusion of an opt out for the one Member State which remained concerned about the scope of the offences. The Council therefore agreed that Germany may make a declaration at the adoption of the Framework Decision. This will allow Germany to reserve the right to make the execution of the EEW subject to verification of dual criminality in cases referred to in Article 16(2) relating to terrorism, computer related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling, unless the issuing authority has declared that the offence concerned falls within the scope of the criteria indicated by Germany in its declaration. This provision will be reviewed within five years of the EEW coming into force. The Council has also agreed to examine the scope of the categories of offences with a view to adopting a horizontal approach on the issue by the end of 2007. We are content with this compromise solution as we believe that, in practice, very few if any EEW requests relating to serious crime would be affected.

  On territoriality, the Council agreed the ground for refusal under the first indent of Article 15(2)(c) with the amendment of "wholly or for a major or essential part" in place of "wholly or partly". It also added a requirement that any decision under the first indent of Article 15(2)(c) shall be taken by the competent authorities "in exceptional circumstances and on a case by case basis" and after consulting Eurojust. This provision will also be reviewed within five years of the EEW coming into force.

  Your letter of 4 May also repeated your concern about EEWs issued for information that may have been obtained under torture in a third country and asked whether the Government's position would render the UK complicit in any breach of ECHR. We accept that in certain circumstances it would be proper for authorities responding to an EEW to inform the issuing state about the possibility that information might have been obtained through torture. We see this however as a matter of public policy rather than a legal obligation arising from the ECHR. In our view it would be totally impracticable to include prescriptive rules for handling such cases in the Framework Decision. Article 1(3) ensures that the authorities concerned will be required to act in accordance with the ECHR, as now.

  The Government is very pleased that it has been possible to reach a general approach on the text of the Framework Decision and that it now addresses many of the concerns raised by the Committees and the Government with the original Commission proposal. The next stage will be to negotiate the EEW form and the recitals to the Framework Decision. We are most grateful for your constructive contributions during the course of the lengthy negotiation and look forward to this continuing throughout the remainder of the negotiation.

13 June 2006

Letter from the Chairman to Joan Ryan MP

  Thank you for your letter of 13 June which has now been considered by Sub-Committee E (Law and Institutions). We note the circumstances in which the Government supported the general approach adopted by the Justice and Home Affairs Council on 1 June. You say that: "The agreement was on the basis of a general approach rather than political agreement." As you may know, the Committee takes the view that such an agreement is nonetheless an agreement for the purposes of the scrutiny reserve resolution and hence the Government have overridden scrutiny.

  Thank you for the explanation of the arrangements which have had to be made in order to accommodate the difficulties of certain Member States with the list of offences for which dual criminality is not required and also for dealing with the so-called "territoriality" clause in Article 15(2)(c). We note that both these provisions are to be the subject of reviews and we would be grateful to be kept informed of developments.

  Finally, we are pleased to note that the Government now accept that there may be circumstances where it would be proper for authorities responding to an EEW to inform the issuing State about the possibility that information might have been obtained through torture. You say that it is a matter of public policy rather than a legal obligation arising from the ECHR. We are grateful for this clarification of the Government's position.

  The Committee decided to clear the proposal from scrutiny.

29 June 2006



153   Correspondence with Ministers, 45th Report of Session 2005-06, HL Paper 243, pp 405-406. Back


 
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