Select Committee on European Union Twelfth Report

Letter from Barbara Roche MP to Lord Tordoff

  I am writing to inform you that the Finnish Presidency intends to seek agreement to the interception articles in the draft EU Convention on Mutual Legal Assistance in Criminal Matters at the Justice and Home Affairs Council on 2/3 December, and to reply to your questions on interception in your letter of 11 November. I will provide a response to the non-interception issues raised in your letter shortly.

  The latest consolidated text of the Convention is contained in COPEN 56 (12867/99), deposited on 16 November. You will receive an explanatory memorandum on the consolidated text shortly.

  In respect of the interception articles, there are three areas where there is not yet consensus at Ministerial level on the text:

    —  the scope of the interception provisions. COPEN 56 adopts the approach set out in COPEN 48. The Government's position on this is set out in the explanatory memorandum of 16 November (copy attached). Subject to minor drafting changes currently under discussion in COREPER, we expect the JHA Council on 2/3 December to be asked to approve the text on the scope of the Convention. We will ensure that you are provided with the final text put to Council once it is available (though we do not anticipate any substantive changes).

    —  the service provider solution to satellite interception. COPEN 56 adopts the language in CATS 8 (9191/99). The Government's position on this article is set out in the explanatory memorandum of 21 July (copy attached). Again, subject to any minor drafting changes currently under discussion in COREPER, we expect the JHA Council on 2/3 December to be asked to approve the text of this article.

    —  Article 18(3) of the Convention which deals with the procedures for notifying another Member State that interception is taking place of subjects on its territory. COPEN 56 adopts the text of COPEN 45 (11951/99). The Government's position on Article 18(3) is set out in explanatory memoranda of 16 November and 18 October (copies enclosed). We do not anticipate any changes to the text of this article.

  Your letter of 11 November asked two questions about Article 18(3) of the Convention. The questions relate to the situation where a Member State has been notified that a subject on its territory is being intercepted, and that Member State requests that any intercept material obtained while the subject was on its territory should be prohibited from use as evidence in criminal proceedings.

  The questions were:

    (a)  whether, despite the prohibition on the use of such material as evidence in criminal proceedings, the material can nevertheless be used to support an application for the exercise of coercive powers such as forcible entry; and

    (b)  whether the prohibition on the use of such material as evidence in criminal proceedings can be overridden if necessary to protect the rights of an accused person. An earlier text contained such an exception, but this has now been deleted at the request of other Member States.

  On (a), the legislation and procedures in the intercepting Member State would govern the potential use of intercept material obtained in such circumstances. However, there is nothing in the Convention to stop the notified Member State from requesting a prohibition on the use of the intercept material in this way (though the Convention would not impose an obligation on the intercepting Member State to comply with such a request).

  On (b), the Interception of Communications Act 1985 does not allow intercept product to be adduced as evidence in UK courts under any circumstances. This means that it may not be used by the prosecution or the defence, thus providing an equality of arms between both sides. The same approach would be adopted in respect of intercept material which is prevented from disclosure under Article 18(3). Nevertheless, prosecutors are under a clear duty in domestic law to review any extant intercept material in order to decide whether the prosecution can properly proceed in the light of material tending to exculpate a defendant.

  The Government's consultation document on the Interception of Communications in the United Kingdom (CM 4368) proposes that the new interception legislation should be underpinned by a Code of Practice. The Government intends to hold a separate consultation exercise on the Code of Practice. If the Convention is agreed in advance of this exercise, and given the complexity of these issues, the Code of Practice could include guidance on the procedural matters associated with the interception provisions in the Convention.

  I hope that this letter helps to resolve any outstanding concerns you may have about the interception provisions in the draft Convention. While I recognise that the Committee wishes to hold the whole Convention under scrutiny, it would be most helpful to know whether you are content for the Government to reach agreement on the substance of the interception provisions at the Council.

26 November 1999

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