Select Committee on European Communities Fourteenth Report


APPENDIX 4 (continued)

NOTE ON THE RELATIONSHIP BETWEEN THE CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE MEMBER STATES OF THE EUROPEAN UNION AND THE SCHENGEN ACQUIS

  1. Chapter 2, Articles 48-53, of the Convention applying the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders contains provisions on mutual assistance in criminal matters. Article 48 states that the provisions of the chapter are intended to supplement inter alia the 1959 Council of Europe Convention on mutual assistance in criminal matters.

  2. Article 1 of the EU Convention on mutual assistance in criminal matters makes clear that it supplements the provisions and facilitates the application between the Member States of inter alia the Schengen Agreement. A principal purpose of a number of the Articles in the EU Convention is therefore to improve existing Schengen provisions. The improved arrangements, with appropriate modifications, would also apply to the non-Schengen States, including the UK.

  3. Article 2(1) of the EU Convention is almost identical to Article 49(a) of the Schengen Agreement. Both make clear that mutual assistance may be afforded in proceedings brought by administrative authorities in respect of offences punishable in either or both the requesting and the requested Member State where the decision may give rise to proceedings before a criminal court. Article 2(1) has been included in the EU Convention to put beyond doubt that the 1959 Convention already applies to certain administrative offences of a criminal nature.

  4. Article 11 of the EU Convention and Article 52 of the Schengen Agreement provide for the sending of procedural documents (principally summonses and judgments) directly by post to persons abroad. However, the key difference is that whereas Article 52 of the Schengen Agreement is permissive, Article 11 is mandatory. Consequently, Article 11 also:

       -    includes more detail than Article 52 on the circumstances under which it is acceptable to send procedural documents via a central authority in the requested Member State; and

       -    makes provision for the implications of direct service, for example, by creating an obligation for all procedural documents to be accompanied by a report giving information on when a recipient can obtain information on rights and obligations in relation to the document.

  5. There is a similar situation in relation to Article 15 of the EU Convention and Article 53 of the Schengen Agreement, both of which provide for the direct transmission of requests for assistance between judicial authorities. Again, the EU Convention establishes an obligation to use direct transmission, whilst the Schengen Agreement simply allows for this possibility. Accordingly, Article 15 goes into more detail than the Schengen Agreement about the circumstances in which the rule of direct transmission need not apply. In particular, Article 15 provides for Member States to declare that, as a result of their legal system, requests must be sent to their central authorities (in the UK, the Central Authority is the Home Office). This has been included to take account of the fact that in the UK (and Ireland) there is not an equivalent of the examining magistrate found in most other Member States. It would not generally be appropriate for magistrates abroad to contact UK judicial authorities direct as investigations in the UK are more a matter for the enforcement agencies.

  6. In addition, Article 10 of the EU Convention and Article 73 (in Chapter 6) of the Schengen Agreement both provide for the use of cross-border controlled deliveries, having regard to the requirements of national law. However, the EU Convention provides for controlled deliveries for the purposes of criminal investigations into extraditable offences, whereas the Schengen Agreement is restricted to the use of controlled deliveries in cases involving illicit traffic in narcotic drugs and psychotropic substances.

Letter from Lord Tordoff, Chairman of The European Communities' Select Committee to Joyce Quin MP, Minister of State, Home Office

  Thank you for your letters of 12 and 13 January enclosing copies of the United Kingdom Presidency's proposal on the interception provisions (new Articles 6 and 7) and your note on the relationship between the provisions of the draft Convention and Schengen. Sub-Committee E was able to consider both documents at its meeting yesterday and were grateful for your having furnished them so promptly.

  In relation to your proposal on interception there is one particular matter on which the Sub-Committee would welcome some further information. The Sub-Committee noted the two principles which the Convention, if your proposal is accepted, would establish. It would be grateful for clarification of the Government's views as to why it is considered unnecessary in the first and third scenarios (draft Article 6 (2) (a) and (b)) to apply any safeguards (other than those applying under the laws of the requesting State and, in the third scenario, the third State). Why should not the requested State also have to be satisfied that the request would be granted if it had been made by one of its own national authorities? Putting the question another way, why is the second principle limited to cases where the subject is in its territory? It would be helpful to the Sub-Committee if you could explain the position, identifying any practical disadvantages there might be were the requested State, in the first and third scenarios, also to have to satisfy that its domestic standards should be met.

  I understand that conclusion of the Convention is high on the list of Presidency objectives. The Sub-Committee proposes to return to its consideration of the draft Convention at its next meeting. I would be pleased to have your reply to this letter as soon as possible.

Letter from Joyce Quin MP, Minister of State, Home Office to Lord Tordoff, Chairman of the European Communities Select Committee

  Thank you for your letter of 15 January which asks for further information on the draft Articles on interception.

  As you are aware, the UK Presidency text is intended to ensure that an individual's right to privacy is protected by the national laws of both the Member State which requests an interception (and which would subsequently receive and act on the intercept product) and the Member State in which the person is present. The purpose is to have a "double-lock" system of safeguards in circumstances where the requesting Member State asks for the interception of a telephone being used by a person in the requested Member State. These principles focus on the circumstances of the individual rather than the type of telecommunications equipment being used.

  Your specific questions relate to scenarios in which a member State is requested to "flick a switch" in order to facilitate the interception of a satellite telephone but where the subject of the interception is not in that Member State. The requested Member State would be expected to provide assistance once it has been provided with certain basic information (including the nature of the investigation). As you recognise, the specific requirements of the domestic law of the requested Member State would not need to be satisfied in these circumstances.

  Our thinking on this issue has been influenced by the following considerations:

    (a)   the subject of the investigation will always be protected by the domestic laws of both the requesting Member State and the Member State in which he is present;

    (b)   the requesting Member State and the Member State in which the person is present are always going to be best placed to make a judgment about the circumstances of an individual case. The primary responsibility for complying with the ECHR will therefore rest with these Member States. The Member State whose only involvement is to "flick a switch" at a base station is unlikely to be in a position to second-guess them but it will have a duty to ensure that the request complies with the Convention;

    (c)   the involvement of the requested Member State is necessary only because of technological developments in the field of satellite communications. The purpose of Article 6.2(a) is to maintain, not extend, a Member State's existing capability to intercept calls made by a person on its own territory. It is important that the speed of a law enforcement agency's response to an operational situation on its own territory is not hampered by unnecessarily cumbersome procedures simply because a person has switched from a mobile phone to a satellite phone;

    (d)   the requested Member State has minimal involvement in the interception. The intercept product is piped straight back, in real-time, to the requesting Member State. The requested Member State will not need to comply with safeguards about handling the intercept product since it will not be transcribed or recorded there.

  You also asked me to identify the practical disadvantages if it were necessary for the domestic law of the requested Member State to be satisfied in the above circumstances.

  Most importantly, as described above, it would prevent a quick response to a fast-moving operational situation. At present, it is possible to obtain a warrant under the Interception of Communications Act 1985 reasonably quickly (this is particularly important where lives may be at risk). The purpose of seeking co-operation on intercepting satellite phones used in the UK is to maintain, not extend, this capability. A bureaucratic mutual assistance procedure would slow this process down considerably.

  Secondly, a Member State which has a satellite base station would find itself the focus of a significant number of requests for assistance (we understand the first satellite base station will become operational in Italy in September 1998). It is possible that the Member State receiving such requests would not welcome the administrative burden of an unnecessarily bureaucratic procedure. Moreover, it is likely to find it difficult to reach a balanced judgment on the full circumstances of the case since the person would not be present on its territory.

  Finally, we have to look to the future in negotiating this Convention. The global telecommunications infrastructure is developing rapidly. We will increasingly need to rely on the co-operation of other Member States in order to maintain our existing capabilities to intercept telecommunications between persons in the United Kingdom. Indeed, the complexities of trans-national telecommunications networks may require the co-operation of more than one Member State in order to facilitate the interception of calls made in the United Kingdom. We may therefore find it too restrictive in future if the Convention is seen to establish the principle that every Member State involved in an interception should be satisfied that it meets the requirements of its domestic law in addition to the strong safeguards in the Convention. This might prove to be unworkable in practice.

27 January 1998


 
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