INFORMATION EXTRACTED FROM CRIMINAL RECORDS
(5463/06)
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.
NUMBER OF
"CENTRAL AUTHORITIES"
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?
DATA PROTECTION
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?
CONTENT OF
INFORMATION TRANSFERRED
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?
EUROPEAN INDEX
OF OFFENDERS
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?
THIRD-COUNTRY
NATIONALS
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.
NUMBER OF
"CENTRAL AUTHORITIES"
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.
DATA PROTECTION
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).
CONTENT OF
INFORMATION TRANSFERRED
The PNC holds a vast amount of information under
a number of general headings including:
|
| Person/Descriptive | Habitual dress
|
| Occupation | Record other details
|
| Alias/name charge | Conviction summary item
|
| Nickname | Organisation |
| Alias/charge date of birth | Address
|
| Local reference number | Place frequented
|
| Police circulation reference | Arrest summons
|
| Police officer with knowledge | Charge
|
| Passport | Impending/disposal
|
| Other references | Other charged with
|
| Internal cross references | Other cautioned/convicted with
|
| Warning signal | Court case
|
| Information marker | Subsequent appearance
|
| Known associate | Remand |
| Marks scars abnormalities | Custody period
|
| Jewellery | Period in institution
|
| Habits and mannerisms | Release
|
| Special skills and knowledge | Photograph location
|
| DNA | Fingerprints |
|
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.
EUROPEAN INDEX
OF OFFENDERS
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.
THIRD-COUNTRY
NATIONALS
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).
NUMBER OF
CENTRAL AUTHORITIES
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.
DATA PROTECTION
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.
CONTENT OF
INFORMATION TRANSFERRED
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.
EUROPEAN INDEX
OF OFFENDERS
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?
THIRD-COUNTRY
NATIONALS
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.
SCOPE OF
APPLICATION
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?
INTERCONNECTION OF
CRIMINAL RECORDS
PILOT PROJECT
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.
DATA PROTECTION
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.
CONTENT OF
INFORMATION TRANSFERRED
I attach a copy of the Manual of Procedure to this letter
for the committee to consider (not printed).
EUROPEAN INDEX
OF OFFENDERS
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.
THIRD-COUNTRY
NATIONALS
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.
SCOPE OF
APPLICATION
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.
INTERCONNECTION OF
CRIMINAL RECORDS
PILOT PROJECT
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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