TAKING ACCOUNT OF CONVICTIONS IN NEW CRIMINAL
PROCEEDINGS (7645/05, 10676/06, 13568/06)
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 19 September 2006[109]
which was considered by Sub-Committee E at its meeting on 25 October.
We are grateful for the detailed explanations you have provided.
There remain only two outstanding matters.
First, as our sister Committee in the House
of Commons has indicated, there remains some uncertainty as to
the precise scope of the obligation in Article 3 and we share
the concern that the Framework Decision might more clearly state,
in the body of the text, that the courts in one Member State would
not be obliged to take into account a previous foreign conviction
for conduct which does not constitute a crime in that Member State.
Second, as regards the application of the principle
of subsidiarity, you say that it is unlikely that those Member
States who are not party to the 1970 Convention will become such
a party. You add: "It is the case that certain Member States
are currently unable to take into account foreign convictions."
What rule prevents them from doing so? Why is a Framework Decision
the only way to remove that Disability?
Thee Committee decided to retain the proposal
under scrutiny.
30 October 2006
Letter from Joan Ryan MP to the Chairman
I am responding to the issues raised by the
Committee in its letter of 30 October concerning the above draft
Framework Decision. The Government is at this stage content with
the draft Framework Decision. Outstanding issues have been addressed
and the Finnish Presidency is aiming to secure its adoption at
the December Council.
I also enclose the latest text of the draft
framework decision of 18 October 2006.
In its recent letter, the Committee states that
there remains some uncertainty as to the precise scope of the
obligation in Article 3 and indicates that it shares the concern
that the Framework Decision might more clearly state, in the body
of the text, that the courts in one Member State would not be
obliged to take into account a previous foreign conviction for
conduct which does not constitute a crime in that Member State.
The Government is satisfied that the Framework
Decision does not limit the application of dual criminality. This
is made explicit in the recitals which state that there is no
obligation to take into account previous convictions in cases
where a national conviction would not have been possible regarding
the act for which the previous conviction had been imposed. It
is not, from our point of view, vital that the operative part
of the Framework Decision states that the application of dual
criminality is not limited, since the Framework Decision itself
has no direct legal effect. Since the recitals unambiguously state
that dual criminality applies, we will ensure that we implement
the Framework Decision in a way which reflects this.
Regarding the concerns of the Committee on the
scope of Article 3, the latest draft of the Framework Decision
states that previous foreign convictions should be "taken
into account to the extent previous national convictions are taken
into account and equivalent legal effects attached to them as
to previous national convictions, in accordance with national
law." We are satisfied that this makes clear the extent of
the obligation established by the Framework Decision. As is the
case with domestic convictions, the courts will be free to determine
whether a previous foreign conviction is relevant in the context
of current criminal proceedings and, if so, how much weight to
attach to it.
The Committee also raises again the issue of
subsidiarity. In its letter of 25 July 2006, the Committee asked
whether Member States are not currently free to take into account
convictions recorded in other Member States now. I confirmed in
my last letter that it was the case that certain Member States
could not currently take into account foreign convictions. There
is no rule that prevents them from doing so other than the limitations
of their own domestic law. However, there is a precedent in the
1970 Convention on the International Validity of Criminal Judgements
between Member States to deal with this issue at European level.
We believe that an EU instrument on the subject is an appropriate
means of ensuring that all EU Member States are able to take into
account the convictions of other Member States on the basis of
a consistent approach.
The Committee will also note that 3 new paragraphs
have been added to Article 3. These provisions ensure that the
application of national rules shall not have any impact on the
previous judgements of other Member States. They address situations
that could occur in Member States that have systems of accumulated
penalties and therefore do not apply in the UK.
Article 3(4) provides an exception to the general
obligation to take into account previous foreign convictions where
a court would be obliged by national law to modify or subsume
a previous foreign conviction when taking a previous conviction
into account in the course of new criminal proceedings.
The fifth paragraph applies where a Member State
has a system of accumulated penalties which provides for a statutory
maximum joint punishment. They ensure that where the sentence
for the previous foreign conviction is equal to or more than the
maximum joint punishment for the previous and new offences in
the Member State of new proceedings, the judge will not be prevented
from imposing a sentence in the new proceedings.
7 November 2006
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 7 November which
was considered by Sub-Committee E at its meeting on 29 November.
We are grateful for your keeping the Committee informed of developments
and in particular for the information given in relation to Article
3. The Committee decided to clear the proposal from scrutiny.
In doing so, we are pleased to note that when implementing the
Framework Decision the Government will make clear that dual criminality
will apply.
30 November 2006
109 Correspondence with Ministers, 40th Report of Session
2006-07, HL Paper 187, pp 382-383. Back
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