PROHIBITIONS FROM CONVICTIONS FOR SEXUAL
OFFENCES AGAINST CHILDREN (14207/04, 11434/06, 13524/06)
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 7 August 2006[102]
which was considered by Sub-Committee E at its meeting of 25 October
2006.
We note your commitment to the proposed Framework
Decision on prohibitions arising from sexual offences against
children and look forward to hearing from you as regards the revised
proposal which, in light of your assurances, we trust will be
furnished promptly for scrutiny.
We have decided to retain the Sex Offences proposal
(14207/04 and COPEN 133) under scrutiny.
26 October 2006
Letter from the Chairman to Joan Ryan
MP
The revised proposal was considered by Sub-Committee
E at its meeting of 13 December 2006. The new texts raise a number
of issues.
SCOPE AND
PURPOSE
Neither draft sets out clearly the scope of
the Framework Decision, i.e. that it is to apply to situations
where a criminal record check is being carried out on a person
who has applied to work with children. In our view it would be
helpful to include this in Article 1.
We note that the Government favour the Belgian
"mixed approach" and we agree that a more ambitious
aim is desirable. We consider it unfortunate that negotiations
are underway on two separate proposals based on different principles.
We are concerned that this may prevent proper consideration of
the proposal and may lead to confused drafting and an unsatisfactory
result. When will a decision be made as to which of the two proposals
should form the basis of discussion?
We consider that the inclusion of administrative
and other non-judicial sanctions is important for the UK in light
of changes to the law outlined in your EM. What is the current
position in the Council? What objections have been voiced?
REGISTRATION (RECORDING)
OBLIGATION
We note that some Member States do not include
prohibition information in their criminal records. Why is this
information excluded? Given that prohibition information may be
relevant in considering and assessing convictions, why is its
inclusion so problematic?
OBLIGATION TO
REQUEST CRIMINAL
RECORD INFORMATION
FROM STATE
OF NATIONALITY
It is not clear how the mechanism for requesting
information from Member State of nationality when national criminal
records are consulted would work in practice. The obligation to
consult is drafted in the passive form and while we presume that
this would be the responsibility of the Member States' relevant
authorities, it could, as drafted, be interpreted as the responsibility
of the individual or organisation seeking the criminal record
extract.
While we agree that there is a need to consult
foreign national records in cases involving non-nationals, we
are of the view that a general obligation might be more appropriate
than a sector-specific approach. We would therefore support the
deletion of this article from the current Framework Decision and
the inclusion of a general provision in the Framework Decision
on the organisation and content of the exchange of criminal record
information. What are the Government's views?
RECOGNITION AND
ENFORCEMENT OF
CONVICTIONS AND
PROHIBITIONS
We find the Presidency proposal complicated
and ambiguous. A number of questions arise as to the way in which
the proposed system is intended to work. Member States are to
determine the "legal effects, including prohibitions"
to be attached to convictions. Does this mean that the decision
in the enforcing Member State to impose a prohibition is entirely
separate from any prohibition imposed in the convicting Member
State? If so, what weight (if any) does a prohibition in a convicting
Member State have? How is the enforcing Member State to decide
whether to impose a prohibition (particulary if there is discretion
under its national law as to whether a prohibition should be imposed);
will a court hearing be required?
Similar concerns arise in relation to the Belgian
draft in cases where mutual recognition does not apply.
NON-RECOGNITION
AND NON-ENFORCEMENT
The grounds for non-recognition and non-enforcement
of prohibitions and/or convictions require further consideration
in the Council. Do you agree that there may be cases in which
recognition of a conviction (and not merely a prohibition) should
be limited?
SHARING INFORMATION
AND CHANGES
TO CRIMINAL
RECORD INFORMATION
We agree with the principle implicitly recognised
in the Belgian draft that if the "no criminal record"
status of an individual working with children changes then the
Member State concerned should be informed. We are not convinced,
however, that an obligation on the convicting State to inform
the State where the convicted person lives or works of any conviction
is the best way to ensure this. It is unclear, for example what
the State of residence would be expected to do with this information
where the convicted person does not work with children. In our
view, the general principle that the Member State of nationality
holds complete criminal record information should be adhered to;
other Member States should only have access in cases where they
have an obvious interest in the information conveyed.
The broader point at issue here is that of changes
to criminal record information after a reply to a request for
information has been given. This problem is present in all matters
where criminal record information is being exchanged; it might
therefore be better dealt with in a general manner under the proposed
Framework Decision on the organisation and content of the exchange
of criminal record information (which contains data protection
provisions to prevent misuse of data obtained). One solution might
be to require the Member State of nationality to provide updates
each time the relevant criminal record changes to States which
have previously requested criminal record information. The requesting
Member State would notify the Member State of nationality when
updated information was no longer required (e.g. where the relevant
person no longer works with children, where the trial and sentencing
of the relevant person has been completed etc.). Would the Government
support a more general approach of this nature?
APPEALS
The scope of any appeals system needs careful
consideration; the extent of any appeal will depend on the nature
of the decision to recognise/enforce foreign convictions/prohibitions
taken by the executing State. We would be grateful for clarification
of the Government's position.
We have decided to retain the proposal under
scrutiny and take this opportunity to clear the previous draft
(14207/04) from scrutiny.
14 December 2006
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 14 December in
which you raised a number of questions about the above-mentioned
documents. These documents were discussed by Sub-Committee E at
its meeting on 13 December.
I am very grateful to you and your Committee
colleagues for the detailed consideration that you have clearly
given to these proposals. I regret that I am not currently in
a position to respond to the points that you have raised but will
ensure that your comments are studied carefully and I will reply
as soon as I am able.
16 January 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 14 December 2006
seeking further clarification on issues arising from the deposited
papers 11434/06 and 13524/06.
I will deal with your queries as best I can.
However, I should stress that as the relevant papers are still
very much work in progress, I may not be able to provide you with
definitive answers as much of the detail is still being worked
through in negotiations in the Council. Indeed, since the two
papers were deposited with the Committee, the Presidency has sought
further views from delegations on their understanding of the "principle
of assimilation".
SCOPE AND
PURPOSE
I agree that the scope of the Framework Decision
should be clearly articulated and officials will take up this
point at the next Working Group meeting scheduled for 26 February.
The United Kingdom has been keen to include
administrative and other non-judicial sanctions in the proposed
Framework Decision. However, this has been rejected in the past
because of the legal base of the Treaty on the European Union
which defines the remit of the working group. The Treaty refers
only to "facilitating and accelerating cooperation between
competent ministries and judicial or equivalent authorities of
the Member States, including, where appropriate, cooperation through
Eurojust, in relation to proceedings and the enforcement of decisions".
In addition, as a matter of policy, some Member States are reluctant
to enforce any prohibition imposed by a non-judicial body because
they feel that those bodies would not necessarily have the requisite
authority (and checks and balances) of a court.
REGISTRATION (RECORDING)
OBLIGATION
I understand your concerns but I think the key
issue here is how the United Kingdom gains access to information
on prohibitions imposed in other Member States. The negotiations
in respect of this Framework Decision will ensure that happens.
OBLIGATION TO
REQUEST CRIMINAL
RECORD INFORMATION
FROM STATE
OF NATIONALITY
I agree that the mechanism for requesting information
is not clear and we will raise this at the next meeting.
You raise concerns that the obligation to consult
is drafted in the passive form. We agree this is a valid point
and will draw this to the attention of the Working Group.
In relation to the exchange of information,
our view is that in the context of this Framework Decision, in
the first instance, we should only be focusing on those who are
working with children. Therefore, we would only seek for employers
who employ individuals to work with children to be able to request
information on potential employees.
I note your support for the deletion of the
article on the obligation to request information from this Framework
Decision and the inclusion of a general provision in the Framework
Decision on the exchange of criminal record information. However,
I do not think that adding another provision to that Framework
Decision would be helpful. There is a danger that by doing that,
and effectively restarting negotiations, we will introduce unnecessary
delay. I feel the best way forward is to approve the Framework
Decision on exchange of criminal records at the earliest opportunity
so that we can start to reap the benefits of that as soon as possible.
Of course, this might mean that the Framework Decision on prohibitions
will take longer to be agreed but by trying to combine the two
Framework Decisions, the risk is that we see no benefit on either
initiative for several years.
RECOGNITION AND
ENFORCEMENT OF
CONVICTIONS AND
PROHIBITIONS
My interpretation of the Presidency proposal,
based on the principle of assimilation, is that the decision in
the enforcing Member State to impose a prohibition is entirely
separate from any prohibition imposed in the convicting Member
State. That is because the principle of assimilation requires
enforcing Member States to give the same legal effects (including
prohibitions) to foreign convictions as they do to national convictions,
and thus the prohibitions imposed in the convicting Member State
are irrelevant to this outcome. For example, if a French national
was convicted for a relevant sex offence in France and moved to
the UK, we would treat that individual as if he had been convicted
of an equivalent offence under UK law and then impose prohibitions
as we would have done in the case of a UK national. Thus, whether
France imposed a prohibtion on the individual would not be relevant
to our consideration.
In relation to how an enforcing Member State
will decide whether to impose a prohibition on a foreign national
where there is discretion under national law, we envisage that
the same procedures and rules would apply as with a United Kingdom
national.
NON-RECOGNITION
AND NON-ENFORCEMENT
Apart from the three grounds for non-recognition
stipulated in the drafts, we do not believe that there would be
any instances in which we would want recognition of a conviction
to be limited. We would endeavour to give foreign convictions
the same effect as national convictions and therefore the same
rules would apply.
SHARING INFORMATION
AND CHANGES
TO CRIMINAL
RECORD INFORMATION
Where the "no criminal record" status
of an individual working with children changes, then I agree that
the Member State of nationality should hold the complete criminal
record and that other Member States should only have access in
cases when an obvious interest arises.
In respect of overseas nationals, the Criminal
Records Bureau (CRB) is currently limited to giving details (via
its website) of authorities within other countries where employers
can make requests for information on prospective employees. However
that list is not comprehensive and those authorities may not be
able to give the employers the details that they want. The Council
Decision on the exchange of information extracted from a criminal
record (adopted in November 2005) does in principle allow for
information to be requested for employment vetting purposes but
only where national law permits it. Currently, the CRB are consulting
with individual EU Member States on the feasibility of exchanging
information for employment vetting purposes.
Other than that, information may become available
to police forces within the United Kingdom via Interpol (or similar).
If the police deem that information to be sufficiently serious
they could use their common law powers to inform an employer,
in the interests of crime prevention.
In relation to changes to an individual's criminal
record, we share your concerns and are exploring a number of avenues
to ensure that update to criminal records are shared between Member
States.
Of course the new Safeguarding Vulnerable Groups
Act 2006 will allow for continuous update for those subject to
an existing record on the Police National Computer (PNC), whereby
future convictions will be advised to the last known employer.
This will in future include provision for overseas nationals as
well. But where no PNC record exists, there is no mechanism for
updating this information between different Member States.
APPEALS
As you state, the extent of any appeal will
depend on the nature of the decision to recognise/enforce foreign
convictions/prohibitions taken by the enforcing Member State.
As these details are still to be agreed, it is not possible at
this stage to comment on what the appeals framework will comprise.
I welcome your contributions and we will reflect
your comments when negotiating the draft Framework Decision at
the next meeting in February. The UK is very keen to progress
this work. The Home Secretary yesterday spoke with the German
Justice Minister, Brigitte Zypries, to voice our support for the
initiative and to request that the German Presidency give it the
high priority that it deserves.
18 January 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 18 January 2007
which was considered by Sub-Committee E at its meeting of 31 January
2007. We are pleased to see that a number of our concerns are
being pursued in the Working Group.
SCOPE AND
PURPOSE
We note that the Presidency has sought views
from Member States as to their understanding of the principle
of assimilation and again would be grateful if you would let us
know the outcome of that exercise.
You outline the objections to the inclusion
of non-judicial and administrative penalties in the proposed Framework
Decision. The need for administrative or non-judicial penalties
to be covered will vary depending on the nature of the scheme
to be adopted: if the final scheme includes mutual recognition
of prohibitions (either fully or to the more limited degree proposed
by the Belgian re-draft) a solution will have to be found. You
said in your EM that the Government support the Belgian mixed
approach: how will this system work in relation to UK-imposed
prohibitions if they cannot be recognised and enforced abroad?
REGISTRATION (RECORDING)
OBLIGATION
If the final scheme is based on assimilation,
the issue of inclusion of prohibitions in the criminal record
is less important. Do you agree that the matter will require some
attention if the final system is to incorporate an element of
mutual recognition of prohibitions?
OBLIGATION TO
REQUEST CRIMINAL
RECORD INFORMATION
FROM STATE
OF NATIONALITY
We are disappointed, although not surprised
given recent events, that you are unwilling to consider the inclusion
of a general article on consultation of foreign criminal records
in the proposed Framework Decision on the organisation and content
of the exchange of criminal record information. There are clear
benefits to be had in agreeing a comprehensive general rule around
which sector-specific provisions can be based. Do you agree that
where the extent of the obligation to request foreign criminal
record information varies depending on the Framework Decision
under which the matter falls, there is a risk that errors may
occur?
RECOGNITION AND
ENFORCEMENT OF
CONVICTIONS AND
PROHIBITIONS
We are grateful to you for setting out how assimilation
would work in practice in the UK. Given that the offences to which
this Framework Decision relates are set out in EU legislation,
it should in principle be possible for Member States to equate
foreign offences to their own. In the absence of a reporting role
for the Commission, are any steps needed to ensure that Member
States' transposition of the offences listed in Articles 2, 3
and 4 of the Framework Decision on combating the sexual exploitation
of children and child pornography allow easy identification of
comparable offences across the Member States?
You say that in the UK the same rules and procedures
will apply to the decision to impose a prohibition in the cases
of nationals and non-nationals. It would appear, therefore, that
when deciding to impose a prohibition on a non-national convicted
abroad, the UK Courts will have regard to the age of the offender
and the length of his sentence. In each case, the Court is also
asked to make a judgment as to the risk of reoffending. Are the
Government satisfied that the length of the sentence imposed by
the convicting (non-UK) court is an appropriate ground on which
to base any decision as to whether to impose a prohibition? Are
sentence lengths for comparable offences broadly similar across
the EU? Further, how is the Court's discretion to be exercised:
will it routinely request reports/psychiatric analysis/court transcripts
and pleadings from the convicting court?
NON-RECOGNITION
AND NON-ENFORCEMENT
You appear to be in favour of some grounds for
non-recognition of convictions. The current draft Framework Decisions
only contain provisions for non-recognition of prohibitions. We
trust you will press for full consideration in the Council of
appropriate grounds for non-recognition of convictions should
the Framework Decision be based on the principle of assimilation.
SHARING INFORMATION
AND CHANGES
TO CRIMINAL
RECORD INFORMATION
We are grateful for your outline of the current
UK system for ensuring criminal record information is up to date
and note your intention to explore this area with the Member States.
You say that where no PNC record exists, there
will be no mechanism for updating criminal record information
among Member States. Does this mean that a person who has been
vetted and found to have no criminal convictions will slip out
of the system? Should a record of all vetted individuals who do
not have a PNC record be kept, to ensure that if they are subsequently
convicted of an offence the relevant Member States can be notified?
APPEALS
We note what you say regarding the appeals framework
and look forward to hearing from you on this point in due course.
We have decided to retain the proposal under
scrutiny.
2 February 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 2 February 2007
in response to my letter of 18 January 2007. I will answer the
substantive points you raise in turn. Please note, however, that
due to continuing negotiations, it is not possible to answer some
of these questions with complete certainty.
SCOPE AND
PURPOSE
In relation to how the Belgian mixed approach
will work in relation to UK-imposed prohibitions being recognised
and enforced abroad, this has not yet been resolved and will be
considered as part of the ongoing negotiations.
REGISTRATION (RECORDING)
OBLIGATION
We agree that whether prohibitions need to be
included in the criminal record will certainly depend upon the
system which is agreed upon. In the context of mutual recognition,
this information would be essential.
OBLIGATION TO
REQUEST CRIMINAL
RECORD INFORMATION
In relation to the obligation to request foreign
criminal record information, I recognise that if there is no generic
article in the framework on the exchange of criminal records,
there is a risk that errors may occur given possible inconsistencies
in approach between other Framework Decisions. However, on balance,
I think that this risk is outweighed by the real benefits of agreeing
the framework on the exchange of criminal records as soon as practical.
RECOGNITION AND
ENFORCEMENT OF
CONVICTIONS AND
PROHIBITIONS
In my previous letter, I stated that the Presidency
sought the views from delegations on their understanding of the
principle of assimilation. As part of that exercise, delegations
were also asked what information would be needed from the country
of nationality to assimilate the conviction. In our response,
we stated that we would wish to see the details of the offence
and conviction recorded in a way that was comprehensible to someone
outside of that particular jurisdiction. We also suggested that
stating that an offence was a sexual assault on a child aged x
years or an adult would be preferable to simply referring to a
conviction as a particular section of the Criminal Code.
When deciding to impose a prohibition on a non-national
convicted abroad, in due course, this will fall to the Independent
Barring Board (IBB) as provided for by the Safeguarding Vulnerable
Groups Act 2006. In Scotland, these decisions will be made by
the Central Barring Unit (CBU) proposed under the Protection of
Vulnerable Groups (Scotland) Bill currently progressing through
the Scottish Parliamentary process. The courts will have no role
to play in this decision. It will be at the discretion of the
IBB and CBU whether someone will be disqualified from working
with children based on consideration of a wide range of factors
other than convictions alone.
NON-RECOGNITION
AND NON-ENFORCEMENT
In relation to grounds for non-recognition of
prohibitions, the paper recognises that if assimilation is the
agreed option, then Article 7 would become obsolete. We will consider
what is appropriate in relation to the non-recognition of prohibitions
and convictions following a decision on whether assimilation of
the mixed approach will be adopted.
SHARED INFORMATION
AND CHANGES
TO CRIMINAL
RECORD INFORMATION
I recognise that there is a gap in relation
to updating criminal record information among Member States and
we are considering ways in which we may be able to address this.
Once again, I thank you for your considered
comments. The next working group meeting on this Framework Decision
will be held in Brussels on 26 February and I will keep you informed
of progress on this important piece of work.
26 February 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 26 February 2007
which was considered by Sub-Committee E at its meeting of 21 March
2007.
We note that a number of issues we raised in
our letter of 2 February 2007 have not yet been resolved and we
look forward to hearing from you further on these matters in due
course. It seems that progress on these is being delayed by the
fact that a decision has not yet been taken as to whether the
Framework Decision should be based on the Belgian mixed approach
or the principle of assimilation. What is the current thinking
of the Working Group? When is a final decision expected to be
made? Is there now a general understanding as to what is meant
by "assimilation"?
We are grateful to you for setting out how recognition
and enforcement of convictions would be undertaken in the UK.
In our letter, we asked about comparability of offences and sentence
lengths across the EU and we would be interested to hear your
views on this.
It is disappointing that while you recognise
the benefits of a general obligation to consult foreign criminal
records and the risks of failing to provide for such a general
obligation, you do not support its inclusion in the Framework
Decision on exchange of criminal record information. Was this
discussed in the Working Group?
The proposal is retained under scrutiny.
26 March 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 26 March in response
to mine of 26 February.
In previous correspondence, you suggested the
inclusion of a general obligation in the Framework Decision on
criminal records to consult the criminal records of the Member
State of nationality in order to ensure that an individual's criminal
record is complete and up-to-date. Since I last wrote, there have
been some developments on the Framework Decision to recognise
prohibitions which relate to this issue.
As you will be aware, due to the difficulties
in reaching consensus on the Framework Decision on prohibitions,
the Presidency issued a paper to canvass delegations' understanding
of assimilation and how it would work in practice.
Having received feedback from the delegations,
the Presidency (together with Belgium) formed the view that neither
mutual recognition nor assimilation would provide the solution.
Instead, the Presidency proposed that one way of addressing certain
elements of the original initiative would be to focus on the efficient
exchange of information on convictions, including those resulting
in professional disqualification, and that the appropriate vehicle
to take forward this aspect would be the draft Framework Decision
on the organisation and exchange of criminal records.
This approach was considered by the Article
36 Committee in March. At that meeting, it was agreed to incorporate
a provision into the Framework Decision on criminal records to
ensure that, whenever a person asks for information on their own
criminal record from the central authority of a Member State other
than the state of the person's nationality, the central authority
of the Member State where the request is made must always request
the person's criminal record from the state of nationality. The
state of nationality is similarly obliged to respond. This obligation
will not come into force until the electronic transfer of information
is possible. Also, it was agreed that, where professional disqualifications
are entered into criminal records, there should also be an obligation
on Member States to share that information. The wording of the
amendment to the Framework Decision to cover this point has not
yet been agreed at working group level. And it should also be
borne in mind that this provision will only cover disqualifications
arising from criminal convictions entered on the criminal record;
other disqualifications (such as administrative prohibitions)
will not be covered by the Framework Decision. The Government
will, of course, strongly support any continuation of this work.
Unfortunately, it is not clear whether work
on the Framework Decision on prohibitions will continue in its
own right, given the amendments to the draft Framework Decision
on criminal records. We are waiting to hear from the Presidency
on the next steps and will update you in due course.
19 April 2007
102 Refer to 7162/06 Disqualifications arising from
criminal convictions in the EU. Back
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