EXTENDING THE SCOPE OF CROSS-BORDER SURVEILLANCE
Presidency proposal concerning the extension of cross-border
surveillance (Article 40 of the Schengen Convention).
Presidency proposal relating to the amendment of Article 40 of the
Schengen Convention concerning the right of cross-border
German note concerning the initiative of the French Presidency on
extending the scope of cross-border surveillance pursuant to Article
40 of the Schengen Convention.
||(a) 25 July 2000
(b) and (c) 4 October 2000
|Deposited in Parliament:
||(a) 25 July 2000|
(b) and (c) 4 October 2000
|Basis of consideration:
||(a) EM of 15 September 2000
(b) and (c) EM of 18 October 2000
|Previous Committee Report:
|To be discussed in Council:
||No date set|
11.1 Article 40 of the Schengen Convention
sets out the provisions under which officers from a Schengen state
may apply to the competent authority in another Schengen state
for permission to enter its territory in order to continue surveillance
of a suspect. The French Presidency is proposing that these provisions
be amended in order to widen the circumstances in which cross-border
surveillance may take place.
Documents (a) and (b)
11.2 Document (a) is the first version of
the Presidency proposal; document (b) is a more developed version,
which includes specific drafting amendments in the two areas where
extension of the provisions is sought.
11.3 The first area concerns the category
of people involved. Currently, the application of cross-border
surveillance is limited to people presumed to have been involved
in an extraditable criminal offence. The proposal is to widen
this to include "any person the surveillance of whom is necessary
for the investigation". The intention is that this wording
should encompass associates and family of the suspect, as well
11.4 The second area concerns the offences
for which applications for emergency surveillance (surveillance
in which permission to proceed may be sought after the
crossing of a national border) may be made. The proposal is to
add the following to the existing list in Article 40 (7): counterfeiting
of means of payment; laundering of monies obtained from the offences
in the list; organised fraud; aggravated assault.
11.5 Document (c) is a note from the German
delegation to the Police Co-operation Working Party, supporting
the French proposal and supplying a number of examples in which
the extension of Article 40 would have assisted an investigation.
In one instance, German police wanted to continue the surveillance
of a courier believed to be carrying the proceeds of extortion
when he crossed into France. The application was refused, as the
courier was not suspected of the extraditable offence.
The Government's view
11.6 In her Explanatory Memorandum of 15
September, the Minister of State at the Home Office (Mrs Barbara
Roche) explained that, as the UK had no actual experience of Schengen
police co-operation requests, it had asked the Presidency to provide
examples of the difficulties encountered with Article 40. It had
also requested a draft of the proposed amendments. (Documents
(b) and (c) appear to meet these requests.)
11.7 In her second Explanatory Memorandum,
the Minister says:
"The Government has
accepted the principle of cross border surveillance as part of
its application to participate in the Schengen acquis and
will bring forward any changes in law or practice necessary as
part of the Schengen implementation process. The French proposal
is thus receiving detailed consideration. Any further changes,
which may be required in the light of any measure to emerge, will
receive detailed consideration and the Parliamentary Committees
will be kept informed accordingly."
11.8 The Minister tells us that the Government
will need to consider the compatibility of the proposed amendments
with the UK's new Regulation of Investigatory Powers Act. She
also says that there will be a resource implication for police
forces generally, but that no assessment is possible at this stage.
11.9 The Minister points out that none of
the current documents are proposals for legislation. If a measure
were to be developed, the legal basis would be Articles 32 and
11.10 The extension of cross-border surveillance
to people not directly implicated in criminal activity clearly
raises human rights issues, and will need careful consideration.
In addition, the new offences to be included in Article 40 (7)
will need to be defined more precisely in any measure to emerge
from these proposals.
11.11 Given that these documents are
not proposals for legislation, we are content to clear them. However,
we shall subject any draft measure to close scrutiny in relation
to the points raised above.