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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