Extract from Explanatory Memorandum on
the Draft Convention on Mutual Assistance in Criminal Matters
between the Member States of the EU submitted by the Home Office
13 December 1999 (13451/99 COPEN 60)
Document 13541/99 COPEN 60 is a new consolidated
text of the draft Mutual Legal Assistance Convention.
Article 6 (Transmission of Letters of Request)
2. Article 6(1) incorporates the changes
introduced in COPEN 54 to allow letters of request to be sent
by any means capable of producing a written record. This will
cover requests sent by e-mail. COPEN 54 originally proposed that
the text should form a new paragraph 4 to Article 4 of the draft
Convention; the text in 13541/99 COPEN 60 reflects the changes
agreed at the Judicial Co-operation Working Group on 10 November.
These move the text from Article 4 to Article 6(1) and the reference
to oral letters of request from the main text to the Explanatory
Report. The Government supports the substance of the text as well
as the positional change.
3. Article 6(3) contained an opt-out for
the United Kingdom and Ireland providing that requests and communications
to them must be submitted via Central Authorities instead of directly
between judicial authorities. It was the subject of a now lifted
scrutiny reserve from one Member State. The reserve was lifted
on the condition that there is a specific reference in the Convention
stating that the opt-out can only be used by the United Kingdom
and Ireland. The current drafting of Article 6(3) reflects this.
This clause is not in the best spirit of the Convention, but,
as it refers to forbidding other Member States from using the
opt-out, does not in practice cause the United Kingdom any problems.
4. The paragraph also has a further clause
allowing any Member State to apply the principle of reciprocity
to requests from the United Kingdom and Ireland, in other words
to require requests sent from the UK and Ireland to be sent from
and to Central Authorities. This is not helpful and if implemented
may well negate the gains that prosecuting authorities in the
United Kingdom would gain from being able to transmit requests
directly to the executing authorities in other Member States.
However in practice the United Kingdom itself intends to move
towards the direct transmission of requests, and has already agreed
to the principle of direct transmission in relation to requests
sent under the Schengen Convention [the relevant provisions are
contained in Article 53(1)]. If we do accept direct transmission
of requests we would have no need to use the opt-out in Article
6(3) (and consequently would not suffer under the reciprocity
clause). To reflect further the links between the Schengen Convention
and the Mutual Assistance Convention the text in 13541/99 COPEN
60 includes a further, and new, amendment to Article 6(3). The
Article now reads in full:
"Notwithstanding paragraph 1, the United
Kingdom and Ireland, respectively, may, when giving the notification
provided for in Article 23(2), declare that requests and communications
to it, as specified in the declaration, must be sent via its central
authority. These Member States may at any time by a further declaration
limit the scope of such a declaration for the purpose of giving
greater effect to paragraph 1. They shall do so when the provisions
on mutual assistance of the 1990 Schengen Convention are put into
effect for them.
Any Member State may apply the principle of reciprocity
in relation to the declarations referred to above".
5. The effect of this new clause is to ensure
that when the direct transmission provisions of the Schengen Convention
(which have no possibility of opt-out) are brought into force
the United Kingdom and Ireland will have to limit the extent of
any opt-out under Article 6(3) to ensure a greater effect is given
to Article 6(1). We are content to accept the clause with the
6. The change to Article 6(5) is a minor
technical one adding requests under Article 13 (joint investigation
teams) to those which can be sent by or to a police or customs
authority. Current United Kingdom practice is for joint teams
to be set up by the police and/or customs without the involvement
of judicial authorities. The amendment makes sure that the existing
practice can continue.
Article 13 Joint investigation teams
7. The first change is to paragraph 4. Members
of a joint investigation team have a general right to be present
unless the leader of the team, in accordance with the law of the
Member State where the team operates, decides otherwise. Rights
of attendance in the United Kingdom are generally a matter for
codes of practice but as these are equivalent to subordinate legislation
the Government considers that they would be covered by the term
"national law". There will in any case be a reference
to "operational reasons" as a way of restricting attendance
at specific parts of an investigation in the Explanatory Report
to the Convention. In practice we think it most unlikely that
a foreign officer will challenge the right of a team leader from
the United Kingdom to prohibit his presence from certain parts
of the investigation.
8. The second change concerns paragraph
9. The new text reflects the strong desire of the United Kingdom
and other Member States to ensure that there was no absolute
right to use information obtained in one country for detecting,
investigating and prosecuting other criminal offences. We were
concerned that this absolute right might potentially harm the
necessary protection of sensitive sources of information such
as informants. It also reflects a proposal, paragraph 13(9)[c],
which we can support, to allow information to be used to prevent
"an immediate and serious threat to public security"
and then with the permission of the state providing the information
for it to be used in any subsequent criminal investigation.
9. Following the meeting on 10 November
the European Scrutiny Committee of the House of Commons asked
the Government to confirm that it is content with the revised
text of Article 13(6). The Government is content with the new
Criminal and Civil Liability (Articles 14a and
10. There have been no textual changes to
these articles, though they have been renumbered. Article 14a
was previously Article X and Article 14b was previously Article
Y. There are however a number of outstanding questions concerning
these articles. Lord Tordoff, Chairman of the House of Lords Select
Committee on the European Communities has asked why the Government
considered that primary legislation would be needed to give effect
to Articles 42 and 43 of the Schengen Convention but not to the
equivalent provisions of the draft Mutual Assistance Convention.
The Government is very grateful to Lord Tordoff for bringing this
issue to our attention and has reconsidered the matter. Although
one cannot be sure exactly how in practice we will be expected
to implement the Schengen Convention and the Mutual Assistance
Conventions it is possible, although not certain that primary
legislation may be needed to protect a foreign officer acting
along with United Kingdom officers, to the same extent that United
Kingdom officers are protected.
11. Article 14b concerns the civil liability
of officers taking part in controlled deliveries, joint investigation
teams and covert investigations. Because of the specific provisions
in this Article governing compensation for damage caused by foreign
officers, the Government does not at this stage believe that legislation
would be needed to implement this provision. The equivalent provision
of the Schengen Convention (Article 43) has broader concerns however
and it may be that legislation will be considered necessary to
implement those provisions.
12. Lord Tordoff also asked for clarification
of the practical arrangements by which an individual in the UK
would obtain redress from the Member State whose officials caused
the damage. Draft Article Y (now Article 14b) envisages a situation
in which damage caused to an individual in the UK by a foreign
official would be repaired by the authorities in the United Kingdom.
It would be up to the UK authorities to claim the money back from
the Member State whose officials caused the damage. There would
therefore be no need for an individual in the UK suffering damage
to a person or property to have to claim off the foreign Member
13. Finally he asked which rules would govern
the status and liability of third country officials taking part
in a joint investigation team. Third country officials, and those
of international organisations such as Europol would not be considered
to be officials of the Member State of Operation when in the United
Kingdom. Their status in this country would be that of ordinary
members of the public. They would have the same liability as other
members of the public.
Interception of Telecommunications (Articles 15-19)
14. The interception provisions in 13541/99
COPEN 60 contain no significant changes from the text contained
in 11951/99 COPEN 45 and 12322/99 COPEN 48 which has been cleared
from scrutiny. The Government's Explanatory Memorandum of 21 July
1999 dealt with text on the service provider solution (Article
11 TER in CATS 8 and Article 17 in 13541/99 COPEN 60). Again there
are no substantive differences. The changes are described below.
15. Article 18(3)(e) contained in 11951/99
COPEN 45 has been deleted. This paragraph applied to circumstances
where a Member State was intercepting a target located on the
territory of the notified Member State who was also under investigation
by that Member State. It stated that the notified Member State
may contact the intercepting Member State with a view to co-ordinating
investigations. However, this is a normal part of mutual assistance
and does not require a separate provision.
16. 13541/99 COPEN 60 contains two drafting
changes compared to the text in 12322/99 COPEN 48. Firstly, the
phrase ". . . and not for other purposes" contained
in Article 15 in 12322/99 COPEN 48 has been deleted from the text
in 13541/99 COPEN 60. Secondly, the phrase "the obligation
to inform under this Article" contained in Article 18(1a)
in 12322/99 COPEN 48 has been changed to read "the obligations
under this Article apply". Neither amendment affects the
substance of the text.
17. Article 17(1) of 13541/99 COPEN 60 on
the service provider solution requires Member States to ensure
that the solution may be made accessible to other Member States
for the purpose of intercepting targets located on territory of
those Member States. The absence of any obligation on telecommunications
operators to provide the solution is consistent with the Government's
18. Article 17(2) contains no changes from
Article 11 TER in CATS 8.
19. Article 17(3) removes unnecessary text
contained in Article 11 TER in CATS 8. There is no substantive
20. Article 17(4) clarifies that Article
16 may also be used as the basis for a requesting Member State
to seek assistance from another Member State to intercept a target
located on the territory of the requesting Member State (rather
than use the service provider solution). As stated in the Government's
Explanatory Memorandum of 21 July 1999, the equivalent Article
in CATS 8 (Article 11(4) TER) was not clear in this respect.
Entry into Force (Articles 23(3)-23(6))
21. 12867/99 COPEN 56 contained new paragraphs
23(3), 23(4), 23(5) and 23(6) on entry into force of the MLA Convention.
Paragraph 23(3) provides that entry into force is to be under
the terms of the Treaty of European Union ie 90 days after half
the Member States (8) have ratified the Convention. Paragraph
23(4) states that, for Member States after the first eight, the
Convention will come into force, 90 days after they ratify the
Convention. Paragraph 23(5) provides for the possibility of anticipated
application between two Member States who have both ratified the
Convention. Paragraph 23(6) states that the Convention will apply
to requests for Mutual Assistance made after the Convention has
come into force. All four paragraphs are technical in nature.
The Government is content with all of these paragraphs subject
to the views of the Council Legal Service which is at the moment
unsure whether the entry into force of the Convention under the
terms of the Treaty of Amsterdam is compatible with a provision
to allow anticipated application of the Convention. We will advise
the Committees of the Council Legal Service's final decision.
Mixed Committee Provisions (Article 24a)
22. New Article 24a is a technical provision
listing the measures building on the Schengen Acquis. It is uncontroversial.
23. There have been considerable changes
in this area. In return for support from Germany on interception
the United Kingdom agreed to support Germany at the JHA Council
on the desirability of a separate data protection provision in
the Mutual Legal Assistance Convention. The Government was not
required to support a specific text, such as that in document
11084/99 COPEN 37 but rather a declaration that reads:
"The Council declares that provisions relating
to the protection of personal data which are communicated pursuant
to the application of this Convention are necessary. These provisions
will be included in a legal instrument in a way which is in harmony
with the results of ongoing horizontal discussions regarding data
protection in the third pillar. The Council agrees that the Convention
will be finally adopted at the Council in March 2000".
24. The United Kingdom has always taken
the line that we do not oppose the inclusion of a data protection
provision in the Convention, though we would of course wish to
ensure that the detail in any proposal is acceptable to us. We
can thus be content with the declaration in 13541/99 COPEN 60.
25. In his letter of 11 November Lord Tordoff
asked a number of questions concerning document 11084/99 COPEN
37, which was a specific text on data protection. As the Scrutiny
Committees will note that text is no longer part of the draft
Convention. The Government can assure both Scrutiny Committees
that it will seek the comments of the Data Protection Registrar
as soon as it receives any further substantive texts.
26. The draft Convention remains under negotiation
and the Government will keep the Committees informed about future
Minister of State, Home Office