Select Committee on European Communities Fourteenth Report


PART 2 BACKGROUND

(a) The European Convention on Mutual Assistance in Criminal Matters

  8.    A Council of Europe Convention, the European Convention on Mutual Assistance in Criminal Matters concluded in Strasbourg in 1959 and an Additional Protocol[3] concluded in 1978 (together "the 1959 Convention"), forms the basis for mutual legal assistance in criminal matters in Europe. It speaks of Parties affording each other, in accordance with its provisions, "the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party". The 1959 Convention deals with such matters as letters of request (letters rogatory, commissions rogatoires-i.e. the formal document seeking assistance) for the examination of witnesses or experts, service of official documents, summoning of witnesses, experts or persons in custody and transmission of information from judicial records.

  9.    The United Kingdom ratified the 1959 Convention in 1991, following the entry into force of Part 1 of the Criminal Justice (International Co-operation) Act 1990 (the "1990 Act").

(b) The Criminal Justice (International Co-operation) Act 1990

  10.    The 1990 Act enables the United Kingdom to assist, and seek assistance from, authorities abroad on a range of criminal law matters. It introduced new powers whereby:

(a) service of process may be carried out on behalf of another jurisdiction;

(b) a court in the United Kingdom can take evidence at the investigation as well as at the prosecution stage of proceedings in another jurisdiction;

(c) persons in detention may appear as witnesses or otherwise assist in proceedings abroad;

(d) search and seizure may be undertaken on behalf of another jurisdiction;

(e) evidence may be certified where necessary.

Mutual assistance is in general sought or given through central authorities, as provided in the scheme of the 1959 Convention. In the United Kingdom the UK Central Authority for Mutual Assistance in Criminal Matters (UKCA), which is part of the Judicial Co-operation Unit in the Home Office, acts as the central authority[4]. In most other European countries the role is performed by the Ministry of Justice.

  11.    Letters of request for legal assistance from and to the United Kingdom are channelled through UKCA. Requests received by the UKCA seeking assistance from Scotland or Northern Ireland are forwarded for execution to the Crown Office or, as the case may be, the Northern Ireland Office. Replies are routed through the UKCA to the overseas authority. The 1990 Act does not affect direct police to police and customs to customs co-operation involving assistance of a kind outside the Act.

(c)  History and outline of proposal

  12.    The proposal seeks to facilitate Member States' co-operation in criminal matters by supplementing the provisions of the Council of Europe's 1959 Convention on Mutual Assistance in Criminal Matters (to which all Member States are party), the 1990 Convention applying the Schengen Agreement[5] and the 1962 Benelux Treaty on Extradition and Mutual Assistance in Criminal Matters. The proposal emanates from a seminar held under the French Presidency in 1995 to consider the operation of the 1959 Convention, which concluded that there was a need to update the existing framework for co-operation between the Member States to take account of the growth in transborder and international crime.

  13.    The draft Convention is being taken forward as part of the implementation of the Action Plan to combat organised crime by the High Level Group set up on the initiative of the Dublin European Council of December 1996. The detailed work has been undertaken in the Working Group on Mutual Assistance in Criminal Matters.

  14.    The proposed Convention would:

(a)  make clear that mutual legal assistance covers administrative as well as criminal offences (Article 2);

(b)  enable evidence to be obtained in accordance with the law of the Requesting rather than the Requested State (Article 3);

(c)  provide for the return of property (Article 5);

(d)  enable assistance in intercepting terrestrial and satellite telecommunications (Articles 6-9);

(e)  permit controlled deliveries of suspect consignments (Article 10);

(f)  enable service of summonses and judgements abroad by post direct (Article 11);

(g)  provide for new ways of taking evidence, by video and telephone links (Article 12);

(h)  facilitate the temporary transfer of prisoners abroad to give evidence (Article 13);

(i)  provide for the spontaneous provision of information to competent authorities for use in criminal investigations and procedures (Article 14);

(j)  enable transmission of requests direct between judicial and prosecuting authorities (Article 15).

The draft also contemplates assistance being given by way of search and seizure (Article 4) and covert investigations (Article 15a).

(d) Draft Convention on Mutual Assistance and Co-operation between Customs Administrations (Naples II)

  15.    Naples II is intended to update and develop the 1969 Naples Convention on Customs Co-operation. The aim is to improve cross-border co-operation in the fight against illicit trafficking in drugs and arms and in relation to other customs offences (including tax evasion through illegal cross-border trade in taxable goods). The Convention obliges customs authorities, on request, to give assistance by providing information, carrying out surveillance and undertaking enquiries. It also provides for "spontaneous assistance" (i.e. without prior request) in certain circumstances. But where Naples II makes a substantial change as regards co-operation is in relation to the "Special forms of co-operation" contained in Title IV of the Convention.

  16.    Title IV will allow officers from one Member State to carry out certain activities on the territory of another. The special forms of co-operation would enable customs authorities:

- to engage in "hot pursuit" ( i.e. the ability for officers to cross borders without prior approval in urgent circumstances, to detain suspects, to conduct searches and to carry firearms and to use them in self-defence) (Article 20);

- to continue surveillance of suspects when they have entered another Member State's territory (Article 21);

- to carry out controlled deliveries (i.e. to allow consignments of drugs or other prohibited goods to pass through controls and be kept under surveillance until they reach their destination) (Article 22);

- to conduct covert investigations in the territory of other Member States (Article 23);

- to set up joint special investigation teams (Article 24).

Member States may opt out of Articles 20 and 21. Activities under Articles 22 and 23 require the prior approval of the host State.

  17.    Article 25 contains data protection rules in respect of data transmitted electronically or manually. Individuals are given rights to know what data relating to them has been transmitted and to have erroneous data amended or deleted. The Convention provides a role for the European Court of Justice in relation to its interpretation and application (Article 26).


3   The Protocol extends the Convention to fiscal offences (Chapter I), provides for mutual assistance in matters concerning the enforcement of sentences and similar measures (Chapter II) and enables the communication of information from judicial records (Chapter III). Back

4   The practice is described in International mutual legal assistance in criminal matters: United Kingdom Guidelines. August 1991. Back

5   The Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985 on the Gradual Abolition of Checks at their Common Borders. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998