Select Committee on European Union Fortieth Report


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

  Sub-Committee E (Law and Institutions) considered this proposal at its meeting of 26 April 2006. We have a number of comments on the proposal which we outline below.


  The principal tasks of the single "Central Authority" designated under Article 3 seem to be to (1) receive and store information on non-UK convictions transmitted to the UK (as the Member State of nationality) from other Member States; (2) respond, in respect of non-UK convictions, to requests from other Member States for criminal record information (3) relay requests from other Member States for criminal record information to the appropriate UK authority in respect of UK convictions; and (4) make requests for criminal records information from other Member States. Do you agree that, as the proposal stands, the Central Authority's tasks are those outlined above? If this is the case, the existence of multiple authorities holding criminal record information in respect of UK convictions appears not to be affected by the proposal: these authorities would be permitted to transmit details of UK convictions to the Member State of nationality under Article 4 and would seem to be able to reply directly to the requests of the Central Authorities of other Member States. What difficulties do you therefore see arising as a result of the proposal?

  The main disadvantage we see in creating a body to perform the role envisaged in the proposal is the dispersal of criminal record information on UK nationals across a range of bodies depending on where the conviction was imposed. To what extent does such a dispersal already arise (ie through Scottish convictions being recorded in Scotland and English convictions being recorded in England)? What are the potential problems arising from the creation of a single authority? Would it not be preferable to take the opportunity of bringing together this information under one body?


  Recital 10 refers to the proposal for a Framework Decision on data protection in the third pillar. We consider it important to have a structure in place to ensure that all measures in the third pillar which affect personal data are subject to protections against abuse. Although Article 9 places some conditions on the use of data provided under the present proposal, we do not consider it desirable to deal with data protection issues on an ad hoc basis. We are strongly in favour of the agreement of an overarching data protection Framework Decision and urge the Government to make the agreement of future data exchange measures, including this one, conditional upon the conclusion of a robust Framework Decision on data protection.

  Article 9(4) requires Member States to take the necessary measures to ensure that personal data transmitted to a third country "are subject to the same usage restrictions as those applicable in Member States under Article 7(1), (2) and (3)". There do not appear to be usage restrictions in Articles 7(l), (2) and (3); usage restrictions appear in Articles 9(1), (2) and (3) and we would be grateful if you would confirm whether this is merely a typing error.

  Article 5(2) obliges the convicting Member State to notify the Member State of nationality of any alterations or deletions to criminal record information. The proposal does not appear to include a provision to ensure that a Member State which has received criminal record information from the Member State of nationality prior to its alteration or deletion is notified of the amendments. Do you agree that a provision of this nature is necessary?


  The Commission has also adopted a separate proposal for a Framework Decision on the taking into account of convictions in the Member States, which would require Member States to give a conviction handed down in another Member State equivalent effect to a national conviction. In these circumstances, it is important that the criminal record information retained and transferred between Member States is accurate and comprehensive. We note that you propose retention of "only that information which would fall within the current or future format of criminal records information held on PNC". What information is currently held on PNC? Is this information, in your view, sufficient to ensure that the operation of this Framework Decision will not lead to unfair or unjust results when combined with the Framework Decision on the taking into account of convictions in the Member States?


  The White Paper on exchanges of information on convictions and the effect of such convictions in the European Union envisaged a European Index of Offenders. This would be a central database, containing the names of all those with convictions imposed in the EU, and would direct Member States to the Member State(s) involved for further information on the nature of the conviction. This was changed to the model set out in the current proposal following a pilot project carried out by four Member States.

  While we are in principle content with the approach outlined in the proposal, we are concerned that the absence of a list of "EU" offenders might result in criminal record information being less comprehensive than it could be. The proposal seems to be based on the implied presumption that the nationality of offenders will be easily ascertainable, presumably through the production of a passport or other identity document. However, individuals with two or more nationalities might "declare" only one nationality (and provide only one passport) leaving the convicting State in the dark as to his other nationalities. One could therefore envisage a situation where different criminal record information on an individual is held by several Member States, as the "Member State of nationality", each unaware that the individual in question has more than one nationality. Do you agree that this anomaly leaves the proposed system open to potential abuse in this manner? What might be done to prevent such abuse?


  The proposal deals only with convictions of individuals holding the nationality of a Member State. The Commission's Explanatory Memorandum explains that Member States, at the Council meeting of 14 April 2005, were in favour of creating an index of persons convicted within the EU who are third-country nationals. Has the Commission been invited to present proposals on this? If not, how will the criminal record information of third-country nationals be stored, managed and transferred?

  We have decided to hold the proposal under scrutiny.

27 April 2006

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

  Thank you for your letter of 27 April with the comments of sub-committee E (law and institutions) on the above proposed Framework Decision. I give below responses to the issues on which the sub-committee raised.


  To clarify the roles of the UK Central Authority under Article 3 are as follows:

    (1)  To receive and store information on non-UK convictions transmitted to the UK (as member state of nationality) from other Member States.

    (2)  To transmit information on UK convictions made against a national of another Member State to that Member State.

    (3)  To receive requests from other Member States for criminal record information in respect of UK convictions.

    (4)  To request criminal record information from other Member States.

  It is true that under the current proposal role 2 can be undertaken by more than one CA, as can responses to requests made under role 3.

  The current Council Decision (CD) also sets the roles of CA's as above. To implement the CD, officials from ACPO, PSNI and SCRO have reached agreement on how the UK will be best placed to undertake these roles, ensuring that responses and advices to other Member States reflect the whole UK position. These agreements ensure that all communications are done by or with the knowledge of the UKCA so that other Member States avoid confusion on whom they are dealing with. The agreements will also ensure that quality and timeliness standards are set and maintained.

  There is currently a dispersal of criminal record information within the UK. In England and Wales the police enter details of all convictions for recordable (and in specific circumstances non-recordable) offences onto the Police National Computer (PNC). In Scotland all convictions are recorded in the Criminal History System (CHS). The vast majority of those records are also sent electronically to create PNC records, but a percentage is recorded only on CHS. In Northern Ireland the PSNI record and maintain all Northern Ireland criminal convictions. At present PSNI only record serious sexual offences on PNC.

  The potential problems that this dispersal would create to a single UKCA, are managed through the agreements I referred to earlier.

  With regard to the bringing together of this information under one body, ACPO would support the view that all UK conviction records should be recorded on the PNC. The view of the Scottish Executive would not be to support such a move unless it preserved the current arrangements which include additional functionality and capability that the CHS system has over and above being a criminal record.


  Your comments relating to an overarching data protection Framework Decision are noted. During further negotiations, more details will be sought and the Committee advised on progress.

  The restrictions contained in Article 9 are the conditions for the use of data under Article 7, and therefore where Article 9(4) refers to usage restrictions under Article 7(1), (2) and (3) the conditions of Article 9 will apply.

  With respect of Article 5(2), the provision that you seek is contained within Article 4(4).


  The PNC holds a vast amount of information under a number of general headings including:

Person/DescriptiveHabitual dress
OccupationRecord other details
Alias/name chargeConviction summary item
Alias/charge date of birthAddress
Local reference numberPlace frequented
Police circulation referenceArrest summons
Police officer with knowledgeCharge
Other referencesOther charged with
Internal cross referencesOther cautioned/convicted with
Warning signalCourt case
Information markerSubsequent appearance
Known associateRemand
Marks scars abnormalitiesCustody period
JewelleryPeriod in institution
Habits and mannerismsRelease
Special skills and knowledgePhotograph location

  Of that information only a limited amount of information would be passed between Member States based upon what is required by the Member State according to their entry in the Manual of Procedure.

  It will be important to ensure that the information exchanged is consistent throughout the EU and exchanged in the same format. During the negotiations for this FD and the FD on taking into account convictions in Member States, we will consider how best to achieve this.


  It is of course difficult to prevent a person from giving different nationality details when they come to the attention of the authorities. Whilst Identity cards and passports assist they are by no means foolproof and the determined criminal will try to find ways of beating the system. Within the UK the use of fingerprints as an identification means is more widespread than it is in the EU. We believe that this subject needs to be explored further in the future.


  Convictions are already being exchanged between non EU countries and the UK (and probably other EU Member States) on a limited basis. Where they are received in the UK it is possible that the detail will be entered onto PNC.

15 June 2006

Letter from the Chairman to Joan Ryan MP

  Thank you for your letter of 15 June 2006 which was considered by Sub-Committee E (Law and Institutions).


  We are grateful for the clarifications you provide regarding the co-operation of existing UK authorities. While it seems regrettable that all UK criminal record information is not currently (and may not in the near future be) stored by a central authority, we welcome the agreement reached by the three different UK authorities as a step in the right direction.


  You say that provision for Member States who requested criminal record information prior to it being amended to be notified of the changes is "contained within Article 4(4)". But Article 4(4) only seems to require the convicting State to advise the Member State of nationality of the change; it does not appear to impose an obligation on the Member State of nationality to advise States which have previously requested information in respect of the individual concerned of the changes. Is this obligation contained elsewhere in the proposal? Should Article 4(5) be read to encompass this obligation? If so, it might be made clearer.

  We note that in his recently published opinion on this proposal, the EDPS was, like this Committee, keen to see the proposal linked to the data protection Framework Decision.


  You say that while the PNC holds a vast deal of information, only a limited amount would be passed between Member States based on "what is required by the Member State according to their entry in the Manual of Procedure". We note the references to Manual of Procedures in the Annex to the proposal and would be grateful if you could provide a copy for the Committee. We are interested to ascertain its scope and purpose.


  We welcome your suggestion that further attention be given to the matter of identification. We consider that fingerprinting would be a helpful means of establishing the identity of individuals, although ambiguity over their States of citizenship may remain. The provision requiring the Member State of nationality to transfer details of a conviction passed down on its territory to other States of nationality goes some way to addressing this problem. Should there be an obligation on States of nationality regularly to compare records relating to their citizens holding dual nationality with another Member State with the other State of nationality? Might not such an obligation assist in ensuring that records in all States of nationality are comprehensive and up to date?


  Do you expect the Commission to produce proposals for an index of convicted persons to cover third-country nationals only? While we note that some details of convictions of third-country nationals may be entered on the PNC in the UK, it seems to us that a more organised system is to be preferred.


  The EDPS, in his opinion, called for the proposal to be limited to more serious criminal offences. He suggested that the current wide scope of application might exceed the limits set by the principle of proportionality. Have there been discussions in the Working Group on this matter? Would the Government support a restriction to serious crimes? What disadvantages or difficulties might there be if the proposal was so limited?


  You are no doubt familiar with the pilot project currently being undertaken by France, Germany, Spain and Belgium. This projects operates along similar lines to the proposed Framework Decision, identifying the Member State of nationality as the State responsible for storing criminal record information. While the participants seem to consider the pilot a success, they highlight some of the problems yet to be resolved.

  One of the most significant differences of opinion between Member States relates to the amendment of the criminal record in the convicting State. We understand that, under the pilot scheme, Germany will not remove a French conviction from the criminal record of a German national where under French law the conviction has expired. The conviction will only be removed where this is provided for under German law. While it is clear that the State of nationality is the "holder" of the information under the proposal, it is less apparent which State is or ought to be the "owner" of the information, having the right to amend or erase it. What view do the Government take on this issue?

  Similarly an offence committed by a German national in France, which is punishable in France by not in Germany, is not recorded in the criminal record information by Germany. This undermines the comprehensive nature of the file held by the German authorities: while the offence may not be punishable in Germany, it may be punishable in Italy and Italian authorities seeking criminal record information from Germany would wish to be apprised of the previous French conviction. How does the system envisaged under the proposal intend to deal with this contentious matter?

  More generally, we are concerned that the lack of similar procedures, and possible substantial divergences in practice, in prosecuting offences and recording criminal record information across the EU may have implications for the position of the individuals concerned and strain the very principle of mutual recognition on which this proposal is based. Do you consider that this is likely to be a problem?

  We have decided to retain the proposal under scrutiny.

29 June 2006

Letter from Joan Ryan MP to the Chairman

  Thank you for your letter of 29 June with the comments of Sub-committee E (Law and Institutions) on the above proposed Framework Decision. I give below responses to the issues on which the Sub-committee raised.


  With respect to your first paragraph, the requirements of Article 9 placed upon convicting Member States and Member States of nationality ensure the currency of information. All other Member States who request and receive information can only use it for the purpose requested, so information can only be used in the current context.

  The EDPS attended a working group on the Framework Decision on 28 June. He made it clear that as long as Data Protection principles were maintained, this FD need not be dependent upon the Data Protection Framework Decision. Rather, he suggests that the development of the Data Protection FD is considered to avoid the necessity for amendments to align the two FD's.


  I attach a copy of the Manual of Procedure to this letter for the committee to consider (not printed).


  With regard to the suggestion of Member States meeting regularly to compare the records of individuals with dual nationality, that may prove to be time consuming and impractical. If the system works correctly such a scheme should not be necessary.


  Since your letter, the Commission have issued a working document on the feasibility of an index of third country nationals convicted in the European Union.


  At the working party meeting of 28 June discussions supported the concept of full exchange to ensure accuracy and relevance. The purpose of the FD is to make full criminal conviction information available to other member states in criminal proceedings. The working party felt that this met with principal of proportionality as recidivism and relevance were a matter for the authorities in receipt of the information.


  With regard to your second paragraph, the current draft of the FD supported by discussions at the working party defines the Data Controller as the convicting Member State, and that the data would be amended or deleted according to their rules.

  With regard to your third paragraph, whilst the FD does not directly deal with the contentious matter, the matter is covered by adherence to the principles of Data Protection and my comments above under "scope of application". The type of scenario that you outline was also discussed at the working party and further underlines the need not to impose the EDPS's view of restricting the type of offence covered.

25 July 2006

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