Select Committee on European Communities Fourteenth Report


  18.    The aim of the Convention on Mutual Assistance in Criminal Matters is, as set out in Article 1, to supplement and facilitate the application between the Member States of certain international instruments on mutual assistance in criminal matters, in particular the 1959 Convention[6]. A preliminary examination of the draft Convention revealed a number of matters of potentially major concern. These are listed and described below together with a summary of the relevant provisions of the Convention, the views expressed by witnesses and, where appropriate, the equivalent provisions of Naples II. The description of the Convention is based on the 30 September and 14 November texts (Docs 10985/97 and 12323/97 respectively). Justice and Liberty considered and commented principally on an earlier (May) version (Doc 7945/97). Many of their comments, however, remained pertinent.


  19.    As mentioned, the draft Convention derives from a French initiative aimed at updating, as between EU Member States, the 1959 Convention. The evidence of Justice traced the history of work in the Council of Europe on the revision of the 1959 Convention and the interaction with the present draft Convention. Justice took the view that the Convention was likely to set the model for future work in the Council of Europe and elsewhere. The Council of Europe's own valuable work in this area (particularly in relation to information technology related matters) was being sidelined. Justice believed that the Council of Europe's work could have provided a sounder and more lasting basis for agreement. It advocated that the Government should use its influence, particularly during its EU Presidency, to bring about a better working relationship between the European Union and the Council of Europe on these matters (p 17).

  20.    The Minister acknowledged the value and strength of the Council of Europe. But its wheels turned even more slowly than those of the European Union. The draft Convention did not clash or conflict with the 1959 Convention. The present initiative would supplement and enhance its provisions within the structure of the European Union. The Minister said: "We believe that it makes sense for the European Union Member States to press ahead with this Convention, rather than wait for the slower work which would take place under the Council of Europe" (Q 12).


  21.    Article 2 makes clear that mutual assistance is to be provided in relation to offences which, under the national law of the requesting or requested Member State or both, are punishable by administrative authorities, provided that a right of appeal exists to a court which will apply the principles governing criminal procedure in the requested State. The 1959 Convention extends to administrative offences[7]. The Committee sought to ascertain the precise extent and practical implications of the reference to administrative offences in the present context.

  22.    Both Justice and Liberty expressed concern at the extension of mutual assistance to offences "punishable by administrative authorities". Justice claimed that this represented a departure from the rule of dual criminality: a person could be subject to mutual assistance procedures in respect of conduct that might simply give rise to civil proceedings in the United Kingdom (p 14). Liberty said that there were serious fair trial concerns with respect to the prosecution of and "conviction" for administrative offences in other Member States and referred to the existence of extensive case-law of the European Convention on Human Rights (ECHR) on the subject (p 20).

  23.    The Minister said that Article 2 did not change the position from that under the 1959 Convention in any significant way. It was clear that that Convention was not confined to serious criminal offences. Article 2 was included in the present draft in order to respond to the needs of certain States (for example, Austria) to cover assistance in relation to offences which they would classify as administrative rather than criminal, though they would ultimately be dealt with by the same courts which heard appeals against criminal sentences. Such offences might relate, for example, to the protection of the environment, road traffic and fiscal matters. In English law, they would be subject to ordinary prosecution in the magistrates court and the principle of dual criminality was therefore not infringed. Article 2 was included to give clarification and reassurance that the Convention would apply to these offences and would not represent a shift from the system operated under the 1959 Convention (QQ 5-11).


  24.    Article 4 of the draft Convention is entitled "Searches and seizure". Its text, however, is left blank. Under 1959 Convention (Article 5) a contracting Party may declare that it will only authorise the execution of a letter rogatory for search and seizure where "the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the requested Party". The United Kingdom, like a number of other EU Member States, had entered such a "dual criminality" reservation in relation to providing assistance with search and seizure. Under the 1990 Act the United Kingdom applies the same procedures (containing the safeguards which Parliament has considered necessary over the exercise of search powers) to search and seizure on behalf of another jurisdiction as apply in domestic United Kingdom cases[8].

  25.    Mr Stadlen, for the Home Office, explained that the Action Plan to combat organised crime included a recommendation to look at this issue to see whether Member States might modify or remove their dual criminality requirements[9]. This was a continuing subject of discussion in the negotiations. There was, however, no immediate likelihood of proposals being put forward to remove the dual criminality requirement. If a text of Article 4 cannot be agreed, the position would remain as under the 1959 Convention (QQ 29,30).


  26.    Articles 6-9 would provide a basis for assistance to be given in the interception of terrestrial and satellite telecommunication systems. The 14 November text left these Articles blank-they were to be rewritten in light of the discussion in the negotiations. The United Kingdom Presidency recently tabled a fresh proposal for the articles on interception. The Government supplied Sub-Committee E with a copy (it is reproduced in Appendix ...) and the Sub-Committee was able to consider it and seek certain clarification from the Government. The following description is based on the earlier texts and concentrates on the broad scheme and main substantive provisions identifiable. It avoids detailed textual analysis.

  27.    The Convention would provide that a request for an interception of a public telecommunications system shall be based on an order from "the competent authority" under the laws of the requesting Member State. The request must contain information (including identification and technical data), to facilitate the measures necessary for the interception.

  28.    Telecommunications may be carried out using fixed or mobile equipment and terrestrial or satellite infrastructure. The draft Convention contemplates three basic scenarios:

(i) where the subject of the investigation is located in another Member State and is using the fixed or mobile terrestrial telecommunications infrastructure there;

(ii) where the subject is located in the requesting Member State and is using satellite telecommunications infrastructure there but his correspondence can be intercepted only in another Member State;

(iii) where the subject is located in another Member State and is using satellite telecommunications infrastructure there but his correspondence can be intercepted only in a third Member State.

In the earlier versions of the Convention a separate article was allotted to each (Articles 7-9 respectively), though the text of Article 9 was blank. The threefold classification arises (at least in part) from the fact that "correspondence" (the term is taken from the European Convention on Human Rights (ECHR)) using satellite infrastructure may be intercepted only via a ground-station. Not every Member State needs or has a ground-station. The drafts also contemplated assistance being given in real time (i.e where the signal is routed back to the requesting Member State) and ex post (i.e. where the requested Member State records and transcribes the interception product on behalf of the requesting Member State).

A preliminary point-the FBI plan

  29.    Both Justice and Statewatch queried the reason for the inclusion of provisions on interception of telecommunications in the Convention. They saw a link between the insertion of special provisions in the Convention to deal with the interception of telecommunications and an unpublished Memorandum of Understanding (MOU) between the European Union and third countries on the lawful interception of telecommunications[10]. According to Statewatch, there was an EU-FBI plan to create a global system for the surveillance of telecommunications. That plan was being implemented in the European Union through the Council Resolution on the lawful interception of telecommunications[11], the MOU and the present Convention. The 1996 draft of the Convention had contained no mention of interception of telecommunications. In April 1997 the EU Presidency had, in implementation of the High Level Group's Action Plan on organised crime, reported to the K4 Committee the need to provide a legal base for co-operation between Member States on the interception of telecommunications and the real time monitoring of satellite telecommunications (pp 13-14). Justice said that a group of 20 States (the Members of the European Union, Australia, Canada, New Zealand, Norway and the United States of America) coordinated by the FBI had been working towards a harmonisation of national laws to remove any obstacles to the interception of all forms of telecommunication by law enforcement agencies. In Justice's view there was a serious risk that the Convention, combined with the international agreements mentioned above, would open the way to extensive and increasing surveillance of individuals both inside and outside the jurisdiction of the Member States (p 14).

  30.    In a letter dated 10 November 1997 the Minister sought to dispel any misunderstandings. The MOU was about the requirements of national law enforcement agencies in relation to the lawful interception of communications. It had been signed by all EU Member States and Norway and had been endorsed, but not signed, by Australia, Canada, Hong Kong and the USA. The draft Convention was primarily for the purposes of improving existing arrangements under the 1959 Convention for co-operation between judicial authorities in EU Member States to assist in the investigation and prosecution of crime. It was not about exchange of information and intelligence for other purposes. The EU Convention did not incorporate the MOU "which serves a different purpose and will remain entirely separate from the EU Convention". When asked specifically about the existence of an elaborate plan organised by the FBI, the Minister replied: "I certainly have not been able to find evidence of the elaborate plan you referred to". She did not see anything wrong with more countries being able to help each other in the fight against crime provided that co-operation was negotiated and agreed openly (QQ 11-12).

Surveillance-specific safeguards

  31.    The earlier drafts of the Convention provided the possibility of the requested State refusing assistance and for the imposition of conditions/safeguards by a requested State. Under the 6 May 1997 text, a requested Member State must refuse to execute the request if the investigation were, under the law of that Member State, inadmissible in view of the nature or non-seriousness of the offence or the personal status of the subject of investigation, or unjustified given the circumstances of the case[12]. The requested Member State might make execution of the request dependent upon one or more conditions: that material which was irrelevant to the pursuit of the criminal investigation be destroyed; that the subject of the interception was notified afterwards that the investigation of telecommunications had been carried out; and, that evidence contained in intercepted, recorded and transcribed correspondence could not be used for any purposes other than that forming the basis of the request for assistance.

  32.    Witnesses expressed major concerns. The earlier drafts of the Convention were, it appeared, prepared on the basis that Member States had domestic legislation regulating the interception of telecommunications meeting the requirements of Article 8 of the ECHR and that therefore minimum standards of protection of the individual's rights of privacy did not need to be set out in the Convention. Both Justice and Liberty queried the assumption of compatibility of Member States' laws with Article 8. Justice considered that the inclusion of these provisions in the Convention should be reconsidered. Their retention could create an undesirable precedent for future legislation in the context of the Council of Europe or elsewhere (p 14).

  33.    If the Convention contained provisions on the interception of communications certain safeguards should be incorporated to protect the individual. The Data Protection Registrar said that it was important that the order from the requesting State should be properly formulated within the legal rules operating in that State and that no ambiguity should exist (p 10). As regards the response of the requested State, when it could refuse to assist and the conditions it might impose in relation to any assistance given, both the Data Protection Registrar and Liberty spoke positively about the possible conditions on the use of material intercepted set out in the (earlier) texts of Articles 7(3) and 8(5) (described in paragraph 31 above). The Registrar noted that they were not exhaustive. There were, for example, no provisions restricting the use of information relating to unassociated third parties. The Registrar also noted that the proposed safeguards were discretionary. She considered that there should be a formal requirement at least to consider whether it would be appropriate to put in place such conditions before responding to the request (p 10). Liberty went further and said that they would be a good starting point for universally applicable, compulsory minimum standards (p 21). Justice referred to the safeguards contained in the Council of Europe's Recommendation R(85)10[13] (p 14).

  34.    The Law Society of Scotland expressed concern that the obligation of confidentiality and legal professional privilege attaching to lawyer-client communications should not be prejudiced. The 6 May 1997 text provided that where conversation was privileged under the law of the requesting State the interception would have to be destroyed. The Society doubted whether the draft provided adequate protection. It noted the absence of harmonisation of the laws relating to the obligation of confidentiality and legal professional privilege in the jurisdictions in the European Community and urged a full investigation of the issue (p 19).

  35.    The Minister explained that the purpose of including provisions on interception of telecommunications was to try and bring assistance in this area up to date, in particular on account of developments in satellite communication technology. Effective interception depended not on where the users of the mobile satellite telephones were present but on where ground stations were situated. The question of the appropriate safeguards for the citizen was still under discussion. But where, for example, it was proposed to intercept conversations between parties both resident in the United Kingdom and the ground station was in Germany, there might not be a need for the same safeguards in Germany as there would be if one of the parties were resident there. The German authorities would have to be satisfied that the request was a reasonable one, but could otherwise rely on the fact that the United Kingdom's requirements for interception had been met (QQ 21-26).

6   The draft Convention would be without prejudice to the application of more favourable provisions in force between Member States. Back

7   The commentary to the 1959 Convention suggests that the reference to administrative offences in that Convention was intended to enable assistance to be given in connection with proceedings in respect of an Ordnungswidrigkeit under German law, that is an offence which, while not classified as a criminal offence, is punishable by a fine imposed by an administrative authority, the accused person having a right of appeal to the ordinary courts. Back

8   As regards England and Wales, section 7(1) of the 1990 Act extends the powers contained in Part II of the Police and Criminal Evidence Act 1984 (PACE) so as to enable search and seizure of evidence to be carried out on behalf of another jurisdiction in respect of either an investigation or a prosecution in circumstances where conduct in the other jurisdiction would have constituted a "serious arrestable offence" here. Section 7(2) also establishes a search power in respect of actions which would constitute simply an arrestable offence, subject to certain conditions being satisfied. In Scotland, section 8(1) of the 1990 Act enables the Sheriff Court to grant warrants authorising entry search and seizure on the same basis as it can at common law in respect of offences punishable at common law in Scotland. In practice, the Sheriff will require to be satisfied that there are reasonable grounds for believing that an offence has been committed which would constitute an offence punishable by imprisonment in Scotland and that there are reasonable grounds for believing that evidence relating to that offence is to be found on any premises to be searched. Back

9   Recommendation 16, sub.para (a). Back

10   A copy of which was deposited in the Libraries of both Houses of Parliament in February 1997 in response to a Parliamentary Question by Lord Lester of Herne Hill. Back

11   [1996] O.J. C 329/1. The resolution was adopted by the Council on 17 January 1995 but not published until 4 November 1996. Back

12   In relation to the second scenario (where the subject of the investigation is located in the requesting Member State but is employing satellite telecommunications which can be intercepted only in another Member State) the earlier texts drew a distinction between cases where interception and direct transmission was sought and those where the correspondence was intercepted, recorded and transcribed by the requesting State. In the first case, a Member State should refuse a request if there was no or insufficient evidence of the existence of an order to the appropriate effect from the competent authority of the requesting State. Back

13   Recommendation R(85)10 of the Committee of Ministers concerning the practical application of the European Convention on Mutual Assistance in Criminal Matters in respect of letters rogatory for the interception of telecommunications (1986). 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