Select Committee on European Union Fortieth Report


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

  Thank you for your letter of 16 December 2005[169] 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 under scrutiny.

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 under scrutiny.

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.

Article 3(1)

  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 same—or equivalent—legal 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.

Spent 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 conviction.

Dual criminality

  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 convictions.

19 September 2006

169   Correspondence with Ministers, 45th Report of Session 2005-06, HL Paper 243, p 486. Back

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