Select Committee on European Scrutiny Twenty-Fifth and Twenty-Sixth Report


DRUG TRAFFICKING


(a)
(22534)
10372/01
COM(01) 259

(b)
(23281)
6249/02


(c)
(23288)
6622/02


(d)
(23346)
7270/02
— 

Draft Council Framework Decision laying down minimum provisions on the
constituent elements of criminal acts and penalties in the field of drug
trafficking.


Draft Council Framework Decision laying down minimum provisions on the
constituent elements of criminal acts and penalties in the field of drug
trafficking.


Draft Council Framework Decision laying down minimum provisions on the
constituent elements of criminal acts and penalties in the field of drug
trafficking.


Draft Framework Decision laying down minimum provisions on the
constituent elements of criminal acts and penalties in the field of drug
trafficking.


Legal base:Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament: (b) 6 March 2002
(c) 6 March 2002
(d) 26 March 2002
Department:Home Office
Basis of consideration: (a) Minister's letter of 8 February 2002
(b) and (c) EM of 25 March 2002
(d) EM of 16 April 2002
Previous Committee Report: (a) HC 152-iv (2001-02), paragraph 3 (7 November 2001) and HC 152-xi (2001-02), paragraph 1 (9 January 2002)
To be discussed in Council: No date fixed
Committee's assessment:Legally and politically important
Committee's decision:(a) Cleared
(b)-(d) Not cleared; further information requested



Background

  4.1  The draft Framework Decision (document (a)), which we considered on 7 November 2001, 9 January and 6 March 2002, defined drug trafficking and related offences, and provided for maximum penalties of not less than five years' imprisonment in serious cases. The draft Framework Decision also provided for a number of aggravating and mitigating circumstances to be taken into account in sentencing, for the liability of legal persons, and for the making of rules on jurisdiction.

  4.2  We raised with the Minister a number of issues of definition where the draft appeared to diverge from the 1988 UN Convention against Illicit Traffic in Narcotic Drugs. We also noted that the rules on jurisdiction in the Framework Decision differed from those in the 1988 UN Convention and asked the Minister if he agreed that these ought to be more closely aligned with those in the UN Convention.[10] In his letter of 8 February 2002, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) addressed the points we raised and indicated that 'constructive discussion' was continuing at working group level and would lead to a revised text.

The revised draft Framework Decision

  4.3  Document (b) is a revised draft Framework Decision reflecting the outcome of discussions within the Council working group and document (c) reflects the deliberations of the Article 36 Committee[11]. Both versions omit Article 4 (penalties) and Article 5 (aggravating circumstances) so as to allow the Presidency to make proposals based on the conclusions of the Justice and Home Affairs Council of February 2002. The Presidency's proposals for these Articles are contained in document (d).

  4.4  Articles 1 and 2 have been amended to correspond more closely to the 1988 UN Convention. Crimes linked to trafficking in drugs and precursors[12] are now defined in Article 2 without reference to any concept of 'profit'[13]. Instead, the definition refers to the manufacture, distribution, sale and supply 'under any circumstances' of drugs within the meaning of Article 1, and thus corresponds to the provision in the 1988 UN Convention which refers to manufacture, production, supply etc. 'on any terms whatsoever'. Article 2 also makes it clear that such acts are to be criminal only when committed 'without right'. Article 2(2) makes it clear that the acts described in Article 2(1) are not within the scope of the Framework Decision if the conduct 'is committed by its perpetrators for their own personal consumption'.

  4.5  The proposals in document (d) amend Article 4 by providing for a maximum penalty of at least one year's imprisonment for the offences under Articles 2 and 3[14]. Whereas the previous text provided for an increase of the penalty in 'serious'[15] cases, Articles 4(2) and (3) now provide for a maximum penalty of at least five years' imprisonment where the offence involves 'supplying those drugs which cause the most harm to health', and a penalty of five years where the offence 'involves large quantities of drugs'[16]. Article 4(4) now provides for a maximum penalty of at least ten years' imprisonment where the offence is committed within the context of a criminal organisation according to the Joint Action 98/733/JAI of 21 December 1998[17].

  4.6  Article 5, dealing with the circumstances which aggravate an offence, has been amended to make clear that the measures taken by Member States should enable, but not require, judges to exercise a discretion to impose a higher sentence where one of the aggravating circumstances is present. These circumstances include, as before, those where the offence involves minors or 'persons unable to exercise their free will'. The earlier version also referred to offences involving a range of persons in the health service and public officials. The present version has a generic reference to the case where the offender 'holds a public office or position of trust and abused his position to commit the offence'. This corresponds more closely to Article 5(e) of the 1988 UN Convention which refers to offences connected with the holding of public office.

  4.7  The provisions of Article 9 (which deal with the making of rules to establish jurisdiction) have been amended to align them with those of the Council Framework Decision on combating terrorism[18]. It requires a Member State to make rules establishing jurisdiction where the offence is committed on board a vessel flying its flag or on an aircraft registered in that State. Article 9 also requires (and does not merely permit) a Member State to make rules establishing jurisdiction where the offender is a national or a resident of that Member State.

The Government's view

  4.8  In his Explanatory Memorandum of 25 March 2002 the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) describes the revisions which have been made to Articles 1 and 2. He explains that the reference in Article 2(1) to 'conduct committed without right' is a compromise which the Government would be prepared to accept in order to ensure that the offences under Article 2 are punishable only where they are committed without authorisation (e.g where supply or possession is authorised for medical purposes).

  4.9  The Minister further explains that there is broad agreement amongst Member States to excluding from the scope of the Framework Decision the possession or supply of drugs solely for the purposes of personal consumption. The Minister further comments as follows:

            "The Government favoured including language to specifically highlight this exclusion from the scope of the Framework Decision and this has been incorporated as Article 2(2). There is no intention to suggest that such behaviour should not be criminalised. Article 2(2) simply makes clear that it is outside the scope of this measure."

  4.10  In relation to the rules of jurisdiction under Article 9, the Minister explains that these have been aligned with the provisions of the Framework Decision on combating terrorism and that it would be made mandatory for Member States to establish jurisdiction over their residents. The Minister comments on this as follows:

            "The United Kingdom would find this problematic as the United Kingdom's jurisdiction is usually based on territory. The tradition of hearing oral evidence in our courts makes it more difficult to exercise extra territorial jurisdiction.

            Most Member States have made a reservation on the revised text of Article 9. The United Kingdom would prefer to align this Article with the Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography which provides for optional rather than mandatory jurisdiction in respect of the nationals of each Member State."

  4.11  In his Explanatory Memorandum of 16 April the Minister describes the proposals which have been made for the amendment of Articles 4 and 5 in the light of discussion at the Justice and Home Affairs Council in February 2002. The Minister explains that the Government supports the general approach of Article 4, and in particular the proposal for a maximum penalty of ten years' imprisonment for the most serious drug trafficking offences. However, the Minister is concerned that this penalty would apply only to offences committed within the context of a criminal organisation[19] and considers that a penalty of ten years ought to apply in respect of large-scale trafficking whether or not it takes place in the context of an organised gang.

  4.12  The Minister is also concerned that trafficking in precursors is not covered by the new Article 4(3), leaving the maximum penalty for trafficking in such chemicals at only one year. The Minister points out that precursor chemicals are essential for the production of drugs such as heroin and cocaine, and that a reduction in precursor trafficking was a key target agreed by EU Ministers in the Action Plan on Drug Trafficking 2000-2004.

  4.13  On the other hand, the Minister considers that the ten year maximum proposed in Article 4(4) is too high for organised trafficking in medicinal drugs, such as tranquillisers (Class C drugs). The Minister comments as follows:

            "Although we support the 10 year maximum penalty proposed in Article 4(4), the Government considers that this is too high for organised trafficking in medicinal drugs, such tranquillisers (Class C drugs). The maximum penalty in UK law for this offence is currently 5 years, which reflects the difference between trafficking in these types of substances and trafficking in other drugs that cause more harm to health, such as heroin, cocaine, ecstasy and amphetamines. We consider that the problem of diversion of Class C drugs from lawful use is best addressed at national level by use of regulatory controls, rather than by applying penalties of the same severity as for trafficking in "hard" drugs."

  4.14  In relation to Article 5 (aggravating circumstances), the Minister explains that the Government supports the principle of this Article, but that it would be seeking a revised wording to ensure that the provision does not limit judicial discretion in sentencing. In the Government's view, the purpose of the Article should be to ensure that factors such as those listed can be taken into account, but not to oblige judges to impose a higher penalty whenever one of the factors occurs.

Conclusion

  4.15  We are grateful to the Minister for his explanation of the revised versions of this Framework Decision. The amendments which have been made, notably in relation to the definition of 'illicit drug trafficking' and the circumstances which are to be regarded as aggravating an offence, largely meet the concerns we have expressed. We also take into account the Minister's statement that the proposed offences already exist in the law of the United Kingdom.

  4.16  We agree with the Minister that Member States should not be required to establish jurisdiction over offences committed outside the national territory merely because the offender is a national of, or resident in, that State. An inflexible rule of this nature is likely to lead to difficulties where oral evidence is required, and we consider that these offences are best tried in the Member State in which they are committed. We trust that the Minister will therefore press for these provisions to allow Member States an appropriate flexibility.

  4.17  In relation to the provisions of Articles 4 and 5, we are surprised that there should remain so many areas of difficulty following the discussion at the Justice and Home Affairs Council in February. Given the wide definition of 'criminal organisation' in Article 4(4), we doubt if there is any real problem in relation to large-scale trafficking by individuals, but we support the points made by the Minister in relation to trafficking in precursors and the diversion of Class C drugs, and we look forward to an account of how these points have been taken into account.

  4.18  We also agree that judicial discretion in sentencing should not be limited by the provisions of Article 5 on aggravating circumstances. We ask the Minister to inform us of any revised wording which would put this principle beyond question.

  4.19  We are content to clear document (a) on the grounds that it has been superseded, but we shall hold documents (b), (c) and (d) under scrutiny pending the Minister's reply.


10  Article 4.1(b)(i) of the 1988 UN Convention requires each Party to take such measures as may be necessary to establish jurisdiction over offences covered by Article 3.1(e.g. possession, manufacture etc. with a view to supply to others) where the offence is committed by a national of that party or a person who has his habitual residence in that Party's territory. Back

11  A committee of senior official from the Member States appointed under Article 36EU to give advice to the Council. Back

12  i.e. chemicals needed to manufacture or refine illicit drugs. Back

13  A point we raised with the Minister on 7 November 2001. Back

14  Article 3 deals with offences of incitement, aiding and abetting and attempt.  Back

15  The absence of any definition of 'serious' was a matter we raised on 7 November 2001. Back

16  What is meant by 'large' is not explained. The definition also excludes precursor chemicals, since these are not 'drugs' within Article 1(1). Back

17  OJ No L 351, 29.12.98 p.1. Article 1 of the Joint Action defines a 'criminal organisation' as 'a structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences...'. Back

18  (22925) 12647/01; see HC 152-ix (2001-02), paragraph 11 (5 December 2001), HC152-x (2001-02), paragraph 4 (12 December 2001). Back

19  i.e.as defined by Joint Action 98/733/JAI of 21 December 1998. Back


 
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