INFORMATION EXTRACTED FROM CRIMINAL RECORDS
(5463/06, 7594/07)
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 25 July 2006[97]
which was considered by Sub-Committee E at its meeting of 25 October
2006.
DATA PROTECTION
Although we agree that the particular use provisions
serve to ensure to a limited degree that the information received
is up to date, we do not consider that they are sufficiently robust
to guarantee the accuracy of information. Information passed to
an Italian authority for sentencing purposes, for example, may
be provided some time before the sentencing hearing. If, between
the date that the information is sent to Italy and the date that
the hearing is held that information is amended, the Italian authority
should be made aware of this. The proposal as currently drafted
does not require such notification.
If you agree in principle that there should
be notification in these circumstances, it would appear relatively
straightforward to make the necessary drafting change to the proposal.
If you do not agree, we would be interested to hear the reasons
behind your position.
CONTENT OF
INFORMATION TRANSFERRED
Thank you for providing a copy of the draft
Manual of Procedure. It has helped our understanding of how the
system might work.
DUAL NATIONALITY
You say that if the system works correctly,
there will be no need to take extra precautions to ensure that
individuals with dual nationality do not abuse the system. We
do not understand there to be any safeguards in the current proposal
to prevent abuse of the system by dual nationals. We would be
grateful if you would point out the provisions you consider to
be relevant here.
DATA CONTROLLER
Thank you for clarifying that the convicting
State is the data controller for the purposes of this Framework
Decision. We have not seen the current draft of the proposal to
which you refer, and it would be helpful if you would provide
a copy.
RECORDING OFFENCES
We remain concerned about how convictions for
acts which are not considered to be offences by the State of nationality
will be dealt with. Your explanation that the matter would be
covered "by adherence to the principles of Data Protection"
and your comments regarding scope of application did not bring
much clarification. What are the principles of data protection
to which you refer and where can they be found?
Your position seems to be that the Framework
Decision will oblige States to transfer the information; it will
be up to the receiving State to decide what to do with information
received. Accordingly, where the receiving State is the State
of nationality, it may choose not to include in the criminal record
of the individual concerned the information transmitted. Does
this accurately reflect the Government's position (and the position
under the current draft of the proposed Framework Decision)?
If this is the case, it would mean, for example,
that the UK would be entitled to refuse to include a conviction
for Holocaust denial imposed by a German court in a British national's
criminal record information. In a subsequent case in Austria,
the Austrian authorities would have to be aware that they may
need to make a direct request for information from other Member
States to find out if the individual has any relevant previous
convictions. As the system envisaged by the proposed Framework
Decision proceeds on the assumption that complete criminal record
information is held by the State of nationality, a loophole like
this could undermine the certainty of the system. Your comments
on this would be most welcome.
We have decided to retain the proposal under
scrutiny.
26 October 2006
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 26 October with
the comments of Sub-Committee E on the above proposed Framework
Decision (FD). I give responses below to the specific issues raised
by the Sub-Committee.
DATA PROTECTION
With respect to the example you give, this appears
to relate to a requesting Member State's use of data that has
changed subsequent to a response being made to their request.
The FD requires Member States to provide a full
criminal records history as available when the request is made.
Where there is a delay in proceedings within the requesting state
it is possible that the original record might be updated without
the requesting state's knowledge. In the event of a delay in the
requesting state's proceedings, the Central Authority of the requesting
state can repeat its request to ensure that its judiciary are
given the most recent facts.
Requesting Member States will not be under an
obligation to store the details of convictions provided to them
in response, as the records would not relate to one of their nationals.
Therefore the provisions of articles 4 and 5 would not apply.
DUAL NATIONALITY
Article 4 (2) imposes a duty on the convicting
Member State to consider the issue of dual nationality. It states
that:
"If it is known that the convicted person
is a national of several Member States, the relevant information
shall be transmitted to each of these Member States".
If the Committee are concerned that persons
may deliberately conceal dual nationality at the time of arrest
or conviction, then it is correct that this FD does not cover
that eventuality, as you will see that the article states "if
it is known". Member States will need to consider their own
national legislation and procedures to address this point. Since
the Committee has helpfully brought this to my attention, I will
ensure that the Overseas Crimes Task Force—recently established
within the Home Office to consider the range and quality of overseas
criminal information—is made aware.
RECORDING OFFENCES
There does remain the possibility of offences
advised to the UK made against UK nationals not being offences
within the UK. The most practical solution is to ensure that a
"full UK master record" is held (i.e. these offences
are recorded on PNC) and transmitted when another Member State
makes a request.
However, before committing on this point my
officials will seek legal and technical advice on the issue.
7 February 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 7 February 2007
which was considered by Sub-Committee E at its meeting of 7 March
2007.
DATA PROTECTION
We note what you say as regards updating criminal
record information. We remain of the view, however, that any changes
to a criminal record within a period of, for example, 14 days
after a reply has been sent to a request for criminal record information
might usefully be notified to the requesting State.
DUAL NATIONALITY
You say that Member States will need to consider
their own national legislation and procedures to address the potential
abuse of this system by dual nationals. We welcome your undertaking
to raise this matter with the Overseas Crimes Task Force and would
be interested to hear in due course what measures they propose
to minimise abuse.
RECORDING OFFENCES
We are pleased to see that you agree in principle
that a full UK master record ought to be held, which would include
convictions for offences overseas which are not offences under
UK law. We note that your officials will seek legal and technical
advice on this issue and look forward to hearing from you on this
point.
Given that this issue is not restricted to the
UK, have the Government sought the views of other Member States?
What is their position?
GENERAL OBLIGATION
TO CONSULT
In the context of our correspondence with you
on the related proposal for a Framework Decision on sex offences
against children (Documents 11434/06 and 13524/06) we raised the
possibility of including in the present Framework Decision a general
obligation to consult the criminal records of the Member State
of nationality each time the national criminal records of a non-national
are consulted. Your view was that the inclusion of such a provision
might lead to a delay in agreeing this Framework Decision as you
suggest that negotiations would effectively have to be restarted.
Have you sought the views of other Member States on this matter?
The possibility of agreeing a general obligation was raised by
the Finnish Presidency on the sex offences matter and we would
be interested to know the reactions of other Member States to
that suggestion.
In our previous letter, we asked to see a copy
of the most recent version of the Framework Decision. We would
be grateful if you could provide us with a copy as soon as possible.
We have decided to retain the proposal under
scrutiny. We understand that the Government strongly supports
the adoption of this proposal as soon as possible and would be
grateful if you would keep us up to date with any developments.
8 March 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 8 March. I am writing
to provide you with further information on the specific issues
highlighted by the Committee.
UPDATING CRIMINAL
RECORD INFORMATION
The first point you raise concerns updating
criminal record information exchanged under the Council Decision.
The Government agrees that it is vital that the information on
previous convictions that is relied upon in the course of new
criminal proceedings is accurate. The best way to achieve this
is by ensuring the completeness of the criminal record as held
by the State(s) of nationality. The Government is satisfied that
the obligation on Member States established under Article 4(4)
to inform the State of nationality of any alteration or deletion
of information contained in criminal records and the obligation
on the State of nationality established by Article 5(2) to use
such information to update the criminal record will achieve this.
The Framework Decision rightly places the onus
on the requesting state to verify that the information it is using
is up to date. The requesting state will always have the option
of making a new request if there has been a significant delay
in using the data.
The Committee suggests that changes to the criminal
record within a certain period of a response to a request for
criminal record information might usefully be notified to the
requesting state. However, this would have significant resource
implications since it would entail each state keeping a live-register
of requests even after they had been fulfilled. Furthermore, the
State of nationality will not be in a position to ascertain whether
the information supplied in response to a request had already
been used. Such an amendment could lead to States of conviction
updating requesting States where the latter had already used the
information supplied and which was correct at the time it was
used.
DUAL NATIONALITY
On dual nationality, the Framework Decision
establishes an obligation on Member States to take the necessary
measures to ensure that information on the nationality or nationalities
of the convicted person are recorded in the criminal record. We
will have to consider when implementing this Framework Decision
whether there are any amendments to legislation or to practice
that we will need to take in order to comply fully with this obligation.
The Framework Decision further obliges Member States to transmit
information of a conviction against an individual to all Member
States of which that individual is a national. Where the individual
is a national of the Member State of conviction, but holds nationality
of another Member State, the State of conviction is obliged to
inform the other State or States of nationality. This goes further
than the obligation established under Article 22 of the Council
of Europe Mutual Legal Assistance Convention of 1959 which only
obliges the State of conviction to transmit information on a conviction
against an individual with dual nationality to the States of nationality
when that individual is not a national of the State of conviction.
RECORDING OFFENCES
Regarding the transmission of information on
convictions imposed against UK nationals for offences in other
Member States which are not offences under UK law; I can confirm
that we can record such information on the PNC. As stated above,
the Government agrees with the Committee that a central premise
of the Framework Decision is to guarantee the completeness of
the information held by the State of nationality.
GENERAL OBLIGATION
TO CONSULT
Since my letter of 26 February, this issue has
moved on. At the Working Group meeting held also on 26 February,
it was agreed that the best way to achieve the goal of the original
"Belgian Initiative" (i.e. to recognise prohibitions
imposed by other Member States) was to focus on the mechanisms
for exchanging information since neither mutual recognition nor
assimilation appeared to provide effective solutions. The Presidency
has now put together a paper to be considered by the Article 36
Committee (at their next meeting on 22-23 March) on a way forward.
The proposal relates to amending the Framework Decision on criminal
records to impose obligations on the central authorities of Member
States to always consult with the Member State of nationality
where a request for a criminal record extract is made, and for
the central authority of that State to respond. The UK will broadly
support this proposal subject to seeing the draft text. At this
stage, it is not clear what the direction of this work will take
but I will keep you updated.
In response to the Committee's request, I enclose
a copy of the most recent version of the Framework Decision 7594/07
COPEN 38.
26 March 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 26 March 2007 which
was considered by Sub-Committee E at its meeting of 25 April 2007.
DATA PROTECTION
We accept that an obligation on the Member State
of nationality to update Member States which have previously requested
information is likely to have resource implications. In the circumstances
your assurance that every effort will be made to ensure information
is accurate and up-to-date is most welcome. In this context we
note that the Data Protection Framework Decision has not yet been
agreed and hope the Government will urge Member States to conclude
an effective and comprehensive instrument as soon as possible
to ensure that the necessary data protection safeguards are in
place.
DUAL NATIONALITY
We note what you say regarding dual nationals.
However, in our view the key words are contained in Article 4(2):
"If it is known that the convicted person is a national of
several Member States". Knowledge of nationality appears
to us to be in the possession of the convicted person who may
not have an interest in disclosing all nationalities in all cases.
Is this something which you have asked the Overseas Crime Task
Force to consider? If not, what action do you propose to avoid
this potential problem?
RECORDING OFFENCES
We are pleased that convictions for overseas
offences that are not offences in the UK can and will be recorded
on the PNC. Will other Member States take a similar approach?
GENERAL OBLIGATION
TO CONSULT
The developments regarding a general obligation
to consult are interesting. We look forward to hearing more from
you on this matter shortly in light of the March (and any subsequent)
meeting. As you know, we have previously suggested the inclusion
of such an obligation and consider that this would be a positive
addition to the Framework Decision.
The proposal is retained under scrutiny.
26 April 2007
97 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, pp 364-365. Back
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