NEW CRIMINAL PROCEEDINGS: TAKING ACCOUNT
OF CONVICTIONS (7645/05, 10676/06)
Letter from the Chairman to Andy Burnham
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 16 December 2005
enclosing summaries of your consultation exercises in England
and Wales and in Scotland. The Committee was interested to learn
the views of practitioners and others concerned. We note the need
for clarification of a number of aspects of the proposal if it
is to be workable in practice and we are pleased to see that these
are points to which you are giving further consideration.
We are also interested to see that a number
of consultees have suggested that the Framework Decision should
proceed in parallel to the Framework Decision on minimum standards
in criminal proceedings. As you mentioned when you met the Committee
on 18 January this latter Framework Decision has met opposition
from a number of Member States. We trust that the Government will
remain a strong supporter of the Framework Decision on minimum
standards in criminal proceedings and will resist any attempt
to adopt a lowest common demoninator approach to that proposal.
The responses of practitioners in your recent consultation exercise
will, we hope, encourage the Government to argue for a high level
of protection in order to strengthen mutual trust which is essential
to mutual recognition measures such as the present Framework Decision
on taking account of convictions in other Member States.
The Committee decided to retain the proposal
2 February 2006
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under Secretary of State, Home Office
The revised text of this proposal (COPEN 66)
has been considered by Sub-Committee E (Law and Institutions).
As you describe in your Explanatory Memorandum of 10 July, the
proposal has been substantially amended. The scope of application
of the proposal has been reduced and a number of provisions of
the Commission's proposal removed. We are grateful for the explanation
of these changes you have provided. The revised proposal nonetheless
raises a number of concerns.
First, amendments have been made to Articles
1 and 2 so as to restrict the scope of the Framework Decision
to criminal proceedings and previous convictions, one intended
to effect of this being to remove administrative authorities,
offences and proceedings from the Framework Decision. We note
that the Commission retains the view that the Framework Decision
should cover road traffic offences, many of which it considers
to be "covered by administrative decisions". You have
given an "initial view" as to whether the Framework
Decision would apply to fixed penalty notices for road traffic
offences. We would find it helpful if you could provide a detailed
note as to how you see the proposed Framework Decision applying
to road traffic offences more generally.
The text of Article 3(1) has been amended and,
as our sister Committee in the House of Commons has indicated,
raises a question as to whether or not the obligation contained
within the new Article 3(1) impinges upon judicial discretion
in admitting evidence and/or sentencing. We would be grateful
to have clarification of your understanding of the extent of the
obligation contained in Article 3(1).
The deletion of Article 4, which the Government
welcome, reminds us that we are still awaiting the Government's
views on how the proposal addresses the issue of spent convictions.
This is a matter on which your predecessor, Andy Burnham MP, appeared
not to have reached any conclusion (see his Explanatory Memorandum
of 23 May 2005, and letters of 15 November and 16 December 2005).
This is also a point which has been raised by the Commons Scrutiny
Committee. We look forward to receiving your detailed response.
You also welcome the removal of Article 5 describing
it as "an obscurely drafted Article which ... seemed unlikely
to have much practical effect". However obscure, the Article
did purport to deal with the issue of dual criminality on which
the Framework Decision is now silent. Would Article 3 require
an English judge to take account of a foreign conviction for an
offence in respect of conduct which would not be criminal here?
The Commons Committee has raised the question of compatibility
with Article 7 ECHR. Again, we look forward to your detailed response.
Finally, there is the question of the application
of the principle of subsidiarity, an issue which we raised when
we first considered this proposal back in June 2005. You say that
the principle is satisfied because the proposal "will allow
Member States to take convictions recorded in other Member States
into account during new criminal proceedings in their own jurisdictions
in accordance with their national practices". Are Member
States not free to do this now? And insofar as any international
stamp of approval is necessary is this not already given by the
1970 Convention on the International Validity of Criminal Judgments
between Member States? We find your argument unconvincing.
The Committee decided to retain the proposal
25 July 2006
Letter from Joan Ryan MP to the Chairman
I am responding to your letter of 25 July 2006
concerning the latest text of the draft Framework Decision on
taking account of convictions in the Member States of the EU in
the course of new criminal proceedings. I am writing in order
to provide you with further information on the Government's consideration
of the proposal, in particular on the specific issues highlighted
by the Committee. Overall the draft deposited with the Committee
contains many improvements and addresses the concerns the Government
had previously outlined. We are therefore content with the latest
text. The Presidency is hoping to reach a General Approach at
the October Council.
Road Traffic Offences
The Select Committee asks for an explanation
about how the proposed Framework Decision will apply to road traffic
offences. Where a road traffic offence results in a conviction
from a criminal court, it will fall within the scope of this Framework
Decision. Fixed Penalty Notices will not fall within the scope.
Road traffic offences will be treated in the
same way as any other criminal conviction under the Framework
Decision. That is, where a Member State in the course of new criminal
proceedings is aware of a previous conviction from another Member
State for a road traffic offence, it will be taken into account
in the same way and to the same extent as would a national conviction,
both for bad character and sentencing purposes. In the UK, this
will result in the conviction being treated as an aggravating
factor, to which the judge will have the discretion to attach
the appropriate weight in sentencing the offender. It will not
attract penalty points, because the individual will already have
been convicted and punished for this offence in the Member State
of the proceedings, according to the national law of that state.
The Government is grateful to the European Scrutiny
Committee for raising the issue of compatibility with the CJA
2003, and agrees with the Committee that the obligation to give
the sameor equivalentlegal effect to foreign convictions
under Article 3 goes further than the provisions of the CJA which
permit but do not require a court to treat a conviction by a court
outside the UK as an aggravating factor in sentencing. Accordingly,
our latest legal advice suggests that we will indeed have to amend
legislation to comply with this obligation.
The Government does not however accept the Committee's
concern that this removes the court's discretion not to take a
foreign conviction into account. The purpose of the framework
decision is to ensure that foreign convictions be taken into account
to the same extent as domestic convictions. Therefore, the discretion
that the Courts have in determining the relevance of and weight
of a previous conviction in a new criminal proceeding will apply
equally to foreign convictions.
The Select Committee also raises the issue of
spent convictions. Section 4(1) of the Rehabilitation of Offenders
Act 1974 provides that after a certain period of time (determined
by the length of the sentence imposed), a conviction attracting
a sentence of less than 2.5 years imprisonment shall become "spent."
This means the person will be treated in law as a person who has
not been convicted for such an offence. The entry on the criminal
record pertaining to this offence, however, is not automatically
wiped and Section 7(2)(a) of the Act provides that Section 4(1)
of the Act does not apply to evidence given in criminal proceedings.
The Judge therefore has access to the full criminal record, including
spent convictions, and such spent convictions can be taken into
account in sentencing.
The Framework Decision stipulates that previous
convictions be taken into account to the extent previous national
convictions are taken into account, this means that if the conviction
would have expired in the Member State of the new proceedings,
had it been a national conviction, it will be treated as such
by the Court and the appropriate legal consequences attached.
It therefore does not follow that a UK national
whose "spent" convictions become known to the Court
of another Member State in new criminal proceedings will be treated
more unfavourably than if the previous conviction had been a national
The Select Committee also raises the question
of dual criminality. With regard to sentencing, Article 3 will
not require an English judge to take account of a foreign conviction
for an offence in respect of conduct which would not be criminal
here. The Recitals make clear that the framework decision does
not oblige Member States to take into account previous convictions
imposed in other Member States where a national conviction would
not have been possible regarding the act for which the conviction
had been imposed.
However, the Courts are not prevented from taking
such a foreign conviction into account for bad character purposes
if they so wish. Under Section 112 of the Criminal Justice Act
2003, previous relevant "reprehensible behaviour" (which
goes wider than convictions) can be taken into account in the
investigation and prosecution of offences.
Finally, the Select Committee raises the question
of subsidiarity and asks whether Member States are not currently
free to take into account during new criminal proceedings convictions
recorded in other Member States. You cite the 1970 Convention
on the International Validity of Criminal Judgements between Member
States as providing a vehicle for them to do so. However, only
nine of the 25 Member States have ratified this convention and
since many of its provisions have been superseded by EU instruments,
it is unlikely that any more will do so. It is the case that certain
Member States are currently unable to take into account foreign
19 September 2006
169 Correspondence with Ministers, 45th Report of
Session 2005-06, HL Paper 243, p 486. Back