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Explanatory Notes to Crime (International Co-Operation) Act
2003 Chapter 32 |
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These notes refer to the Crime (International Co-operation) Act 2003 (c.32) which received Royal Assent on 30 October 2003 CRIME (INTERNATIONAL CO-OPERATION) ACTEXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Crime (International Co-operation) Act 2003 which received Royal Assent on 30 October 2003. They have been prepared by the Home Office and the Department for Transport in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. These notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section does not seem to require any explanation or comment, none is given. SUMMARY 3. The Act extends to the whole of the UK, with the following exceptions:
4. The Act is in five Parts, and contains six Schedules. Part 1: Mutual Assistance in Criminal Matters 5. Part 1 largely replaces the UK's mutual legal assistance legislation, contained in Part 1 of the Criminal Justice (International Co-operation) Act 1990, which enabled the UK to request and provide assistance to all countries. It implements the mutual legal assistance provisions of the Schengen Implementing Convention of 14th June 1985 (the "Schengen Convention"), the Convention on Mutual Assistance in Criminal Matters 2000 (the "MLAC"), and the evidence-freezing provisions of the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003 (the "2003 Framework Decision"). Chapter 4 of Part 1 implements the 2001 Protocol to the Convention on Mutual Assistance in Criminal Matters (the "2001 Protocol") which creates obligations for participating countries to respond to requests for assistance with locating banking accounts and to provide banking information relating to criminal investigations. Part 2: Terrorist Acts and Threats: Jurisdiction 6. Part 2 implements the Framework Decision of 13th June 2002 on combating terrorism (the "2002 Framework Decision"), insofar as it requires the UK to take extra-territorial jurisdiction over a range of terrorist offences. Part 3: Road Traffic 7. Part 3 implements the Convention on Driving Disqualification of 17th June 1998 drawn up on the basis of Article K.3 of the Treaty on European Union (the "Convention") which introduces the mutual recognition of driving disqualifications. Part 3 also introduces new measures to prevent drivers banned from driving in Northern Ireland from obtaining a British driving licence or vice versa. Part 4: Miscellaneous 8. Part 4 implements additional measures set out in the Schengen Convention in the area of police co-operation, extradition and data protection. Part 4 also contains provisions which are necessary to enable the UK to implement the Framework Decision of 28th May 2001 on combating fraud and counterfeiting of non-cash means of payment (the "2001 Framework Decision"), and implements, in relation to terrorist property, the 2003 Framework Decision. Part 5: Final Provisions 9. Part 5 contains amendments and repeals, and other miscellaneous provisions. Schedules 1 to 6 10. A brief explanation of the Schedules follows in these explanatory notes in the Commentary on Sections. BACKGROUND 11. The Crime (International Co-operation) Act 2003 implements several outstanding European Union ("EU") commitments in the area of police and judicial co-operation. 12. The Act includes the legislation necessary to enable the UK's partial participation in the Schengen Convention. The Schengen Convention was designed to facilitate the free movement of persons by removing internal border controls. A series of measures to enhance police and judicial co-operation was then agreed to compensate for the lifting of controls. The Schengen Convention was formally integrated into the EU treaty structure by the 1997 Treaty of Amsterdam. 13. In May 1999, the UK formally applied to participate in the provisions on police and judicial co-operation, and the Schengen Information System, a database storing criminal information from all participating countries. The UK's implementation of the Schengen Convention will be formally evaluated by the other Schengen states before its participation can be approved by the Justice and Home Affairs Ministerial Council. Legislation is required to implement some of the mutual legal assistance measures, the extradition provisions and some of the measures on police co-operation. 14. Furthermore, the Act implements several Framework Decisions of the EU in the field of Justice and Home Affairs policy. Framework Decisions were introduced by the 1997 Treaty of Amsterdam and have:
15. The UK government has agreed to the Framework Decisions contained in the Act. Part 1: Mutual Assistance in Criminal Matters 16. Part 1 of the Act deals with mutual legal assistance and the evidence aspects of the 2003 Framework Decision. It implements both the mutual legal assistance provisions of the Schengen Convention that are not repealed and replaced by the MLAC and those of the MLAC itself. The primary aim of the MLAC is to improve judicial co-operation by developing and modernising the existing provisions governing mutual assistance, mainly by extending the range of circumstances in which mutual assistance may be requested, and by facilitating assistance so that it is quicker, more flexible, and therefore more effective. Part 1 re-enacts and updates the provisions in Part 1 of the Criminal Justice (International Co-operation) Act 1990 to widen the scope of cases in which the UK is able to request and offer assistance, and to introduce the direct transmission of legal process and requests for assistance where possible. Part 1 also implements the 2001 Protocol which extends mutual legal assistance to enable provision of a wider range of banking information than at present, including tracing any bank accounts and monitoring identified accounts held by an individual or company. 17. Part 1 of the Act also introduces the mutual recognition of freezing orders on evidence as introduced by the 2003 Framework Decision. The Tampere Council held in October 1999 - a special meeting of the European Council focusing specifically on Justice and Home Affairs matters - agreed that the mutual recognition of judicial decisions should be the "cornerstone" of the future development of judicial co-operation within the EU, rather than harmonisation of legal systems. The Justice and Home Affairs Ministerial Council held in December 2000 adopted a programme of work to implement the principle of mutual recognition. The 2003 Framework Decision, and the Framework Decision of 13th June 2002 on the European Arrest Warrant to be implemented through the Extradition Bill, are the first results of that work programme. 18. The mutual legal assistance provisions in Part 1 apply to all other countries, in line with existing legislation, except for certain new provisions which are specifically restricted to "participating countries". For the purposes of those provisions, all EU Member States will be "participating countries" (subject to their participation in the relevant instruments). Some arrangements may also be extended to other countries by order if appropriate. In such cases, countries will be designated by an order that will be laid before and approved by both Houses of Parliament, or, in relation to Scotland, the Scottish Parliament. Part 2: Terrorist Acts and Threats: Jurisdiction 19. The 2002 Framework Decision was drafted in response to the attacks of 11 September 2001, with the purpose of ensuring that all EU Member States had effective terrorist legislation in place. The 2002 Framework Decision defines a range of terrorist offences and requires Member States to introduce "effective, proportionate and dissuasive" criminal penalties for these offences. Much of the substance of the 2002 Framework Decision is already given effect to in existing UK legislation. However, Article 9 which deals with extra-territorial jurisdiction for certain terrorist offences is not for the most part covered. Part 2 of this Act will therefore give effect to Article 9 of the 2002 Framework Decision by allowing the UK to take extra-territorial jurisdiction both over terrorist offences committed by UK residents and nationals anywhere in the world and over attacks on UK residents, nationals and diplomatic premises wherever they occur. Part 3: Road Traffic 20. Part 3 provides for the implementation of the Convention. Under the Convention, drivers normally resident in one Member State of the EU who are disqualified from driving in another Member State will also be disqualified in their state of residence. The duties placed on the Secretary of State for Transport under this Part will be administered by the Driver and Vehicle Licensing Agency. The Convention will come into effect when it has been ratified by all the Member States but there is also provision for the Convention to be implemented on a bilateral basis between participating Member States. Part 3 also introduces new measures to prevent drivers banned from driving in Northern Ireland from obtaining a British driving licence or vice versa. Part 4: Miscellaneous 21. Part 4 makes various miscellaneous provisions. Section 80 provides for the disclosure of information by the Serious Fraud Office in the context of criminal investigations or proceedings. This Part also covers four different areas of the Schengen Convention. Firstly, section 81 permits the Information Commissioner to inspect any of the three European information systems which are or will be used by the UK. Section 82 provides for driver licensing information to be disclosed for the purposes of the Schengen Information System. In the realm of police co-operation, sections 83 to 85 implement the requirement of the Schengen Convention for officers from one Member State to conduct unaccompanied surveillance in another Schengen state for up to five hours in exceptional circumstances. The extradition provisions in sections 86 and 87 would allow the UK to apply the Schengen-building provisions of the 1996 Extradition Convention to non-EU Member States such as Iceland and Norway; and to apply the 1995 and 1996 Extradition Conventions to Italy and France. 22. The 2001 Framework Decision, one aspect of which is implemented in Part 4 of the Act, is intended to support the fight against fraud and counterfeiting across the EU. The measure forms part of the Commission's Fraud Prevention Action Plan. It requires Member States to criminalise different types of conduct in relation to non-cash means of payment - for example, the obtaining and possession of false or counterfeit monetary instruments for fraudulent purposes. With the exception of part of one article, the provisions of the 2001 Framework Decision are already covered within UK law. TERRITORIAL APPLICATION: WALES 23. There is no effect on the National Assembly for Wales, and the Act's effect in Wales is no different from its effect in England. COMMENTARY ON SECTIONS Part 1: Mutual Assistance in Criminal Matters Chapter 1: Mutual Service of Process etc. Section 1: Service of overseas process in the UK 24. This section replaces and expands upon sections 1(1) and (2) of the Criminal Justice (International Co-operation) Act 1990 (the "1990 Act"), which established the procedure for service of overseas procedural legal documents in the UK. The Schengen Convention and the MLAC introduce different procedures, enabling most procedural documents to be sent directly by post from the issuing authority to persons in the UK. Other countries may also send documents directly to recipients in the UK, if so enabled by their domestic law. 25. This section regulates those cases where direct service is not used. 26. The Schengen Convention and the MLAC extend the scope of mutual legal assistance to a much broader range of proceedings, and the process to be served under section 1 will encompass documents relating to the extended categories of proceedings specified in section 1(2). Neither instrument defines the term "procedural documents", so the section is broadly drafted. The types of administrative and criminal proceedings to which this section applies are defined in section 51(1). 27. Subsection (3) replaces section 1(2) of the 1990 Act, giving the Secretary of State, (or, in Scotland, the Lord Advocate), discretion as to how to serve the document - it may be served by post, or the chief officer of police in the relevant area may be directed to serve it personally where this is required. Section 2: Service of overseas process: supplementary 28. This section replaces subsections (3) to (6) of section 1 of the 1990 Act, and there are no material changes. Where the process served requires a person to appear as a party or witness, the process must be accompanied by a notice stating that no obligation under UK law to comply with the process is imposed, but that the person may wish to take advice on failure to comply under the laws of the overseas country, and that the person may not be accorded the same rights and privileges as he would be in the UK. Where a chief officer of police causes process to be served under section 1, that officer must inform the Secretary of State (or the Lord Advocate) when and how it was served and (if possible) provide a signed receipt: where the process cannot be served, the officer must inform the Secretary of State (or the Lord Advocate) of the reason for this. Section 3: General requirements for service of process 29. This section, with section 4, replaces and expands on section 2 of the 1990 Act, which governs the service of UK legal process to persons in other countries. The section extends that provision to enable service of all documents issued or made for the purposes of criminal proceedings, making it consistent with the broad interpretation of "procedural documents" envisaged in the MLAC and the Schengen Convention. It does not provide for the service of documents relating to administrative proceedings, as the UK does not have proceedings of this nature. 30. Subsection (3) creates an obligation on the person at whose request the process is issued to provide a translation where he is aware that the recipient does not understand English. 31. Subsections (4) to (7) replace section 2(3) and (4) of the 1990 Act. The serving of process does not impose an obligation under UK law to comply with that process, with the result that failure to comply does not constitute contempt of court. However, if the process is later served on the person when they are in the UK, the usual consequences for non-compliance will apply. This does not represent any change from existing practice. Section 4: Service of process otherwise than by post 32. Although most process from the UK will be served by post, this section retains the option of serving process issued in England and Wales or Northern Ireland in accordance with arrangements made by the Secretary of State. Where the person on whom it is to be served is in a participating country, this option is available only if one of the conditions in subsection (3) is met. (The meaning of "participating country" is explained in paragraph 18 of these explanatory notes.) 33. In these cases, process may be sent via the Secretary of State to the central authority of the other country, which will transmit the process to the recipient. (The "UK central authority" is the authority for mutual legal assistance located in the Home Office, and references in these explanatory notes to overseas central authorities are to the equivalent bodies overseas.) Section 5: General requirements for effecting Scottish citation etc. 34. This section is the Scottish equivalent to section 3. It reflects the provisions of section 3 but refers to the Scottish term "citation" rather than "process". In criminal proceedings in Scotland "citation" is the term used for the procedure whereby someone is called to court to answer an action or give evidence as a witness. Section 6: Effecting Scottish citation etc. otherwise than by post 35. This section is the Scottish equivalent to section 4. It reflects the provisions of section 4 but provides that the Lord Advocate, rather than the Secretary of State, is to make arrangements for service of a citation or document otherwise than by post. Chapter 2: Mutual Provision of Evidence Section 7: Requests for assistance in obtaining evidence abroad 36. Sections 7 to 9 deal with requests to obtain evidence from abroad in relation to a prosecution or investigation taking place in the UK. These provisions develop and expand on section 3 of the 1990 Act, which they replace. 37. Section 7 sets out the authorities which may make requests for assistance, in which circumstances, and the form in which requests may be made. The judicial authorities which may request assistance under this section, (provided it appears that an offence has been committed or there are reasonable grounds for suspecting this, and proceedings or an investigation are underway), are any judge, and a justice of the peace (in England and Wales), a sheriff (in Scotland) and a resident magistrate (in Northern Ireland). A prosecuting authority which has been designated by an order made by the Secretary of State - (or, in Scotland, the Lord Advocate or a procurator fiscal) - may also request assistance if the conditions set out in subsection (5) are satisfied. This arrangement is not new: designated prosecuting authorities were able to issue requests under the 1990 Act. The assistance which may be requested is to obtain evidence located outside the UK for use in a domestic criminal proceeding or investigation. 38. Subsection (7) requires that any outgoing requests for information about banking transactions made to participating countries under Article 2 of the 2001 Protocol must clearly state the relevance of the evidence to the investigation. This is in line with the conditions set out in the 2001 Protocol. Section 8: Sending requests for assistance 39. This section makes provision for the transmission of UK requests to overseas authorities. It enables requests made under section 7 to be sent directly from the requesting authority in the UK to the relevant overseas authority, rather than via the central authorities of the two countries. This is a new arrangement. Under existing powers, direct transmission is possible only in cases of urgency. Direct transmission is a key tenet of the MLAC, which these provisions implement and, in general, where a request is destined for the EU it will in future be sent directly to the appropriate overseas authority from the UK authority making the request. 40. As there will be situations where direct transmission is not possible, for example where the particular executing authority is not known, where direct transmission is not permitted under the MLAC, or where the requested state is outside the EU, subsection (2) retains the option of indirect transmission via the Secretary of State (or the Lord Advocate in Scotland). 41. Subsection (3) implements Article 6(4) of the MLAC, and permits urgent requests to be submitted via Interpol or any other body able to receive it under any provisions adopted under the Treaty on European Union. This will permit, for example, EU Member States to make a request to their national member of Eurojust, a body established by Council Decision under Part VI of the Treaty on European Union with a view to reinforcing the fight in Member States against serious crime. Section 9: Use of evidence obtained 42. This section ensures that evidence obtained from an overseas authority may be used only for the purposes for which it was requested (unless the consent of the requested overseas authority has been obtained), and is subject to the same provisions on the admissibility of evidence as evidence obtained under normal domestic arrangements. This section replicates sections 3(7) to 3(9) of the 1990 Act. Section 10: Domestic freezing orders 43. This section provides for the issuing of domestic freezing orders, in accordance with the 2003 Framework Decision. The section deals with orders to freeze evidence only. Schedule 4 to the Act deals with orders to freeze terrorist assets, but orders to freeze property are not otherwise covered by this Act. A domestic freezing order is defined for the purposes of this section as an order for protecting evidence which is in a participating country (explained in paragraph 18) pending the transfer of the evidence to the UK. 44. The section specifies the circumstances in which a judicial authority (as defined in subsection (5)) may make a freezing order. For a domestic freezing order to be made, it should appear to the judicial authority that proceedings in respect of an offence covered by the 2003 Framework Decision have been instituted or such an offence is being investigated, that there are reasonable grounds to believe there is evidence in a participating country which satisfies the requirements of this section (including, for example, that the evidence is likely to be of substantial value to criminal proceedings or an investigation in the UK), and that a request has been (or will be) made to the authority for the evidence to be sent to the UK. Section 11: Sending freezing orders 45. This section provides that freezing orders must be sent via the Secretary of State (or, in Scotland, the Lord Advocate). This is in contrast to the general direct transmission provision in section 8. 46. This is necessary because freezing orders based on the concept of mutual recognition under the 2003 Framework Decision are completely new, and will be unfamiliar to those issuing and receiving them in terms of format, conditions and procedural requirements. Transmission via the central authority will enable the orders to be checked and monitored, to ensure that they comply with the requirements of the 2003 Framework Decision, and to ensure that they are responded to by the overseas authority in the appropriate manner. Under the terms of the 2003 Framework Decision the UK is allowed to require transmission via the central authority. 47. The section provides that freezing orders must be accompanied by a certificate, and lists requirements relating to the certificate. This is in accordance with Article 9 of the 2003 Framework Decision. Subsection (3) requires the judicial authority to send the order to the Secretary of State within 14 days of it being made. Whilst we expect that such orders will be transmitted without delay, the time limit has been included to ensure that they are not held up for lengthy periods. Section 12: Variation or revocation of freezing orders 48. This section provides that a judicial authority which makes a freezing order under section 10 may vary or revoke it on application by the persons mentioned in this section. Section 13: Requests for assistance from overseas authorities 49. This section deals with handling incoming requests for assistance with obtaining evidence located in the UK. 50. Subsection (1) provides that, if the conditions set out in section 14 are satisfied, arrangements may be made for evidence to be obtained, or for an application for a warrant to be made in response to a request for assistance. 51. Subsection (2) sets out the authorities competent to make requests for mutual legal assistance. These are courts, prosecuting authorities and other authorities which have the function of making such requests - (examining magistrates, for example). Subsection (3) also provides for requests to be received from Interpol and from bodies or persons competent to make requests pursuant to agreements adopted under the Treaty on European Union. Eurojust is an example of such a body. 52. The section makes provision for requests to be received by "territorial authorities". These are defined in section 28(9). This enables transmission to the Secretary of State, or (for Scotland) the Lord Advocate. 53. Article 6 of the MLAC envisages direct transmission of most requests, but direct transmission is difficult to apply in our domestic system where jurisdiction is based largely on function rather than geography, and where the same authorities are not necessarily competent to both issue and execute letters of request. Misdirection of requests sent directly to the wrong authority would create delays, defeating the purpose of direct transmission which is to speed up the process. The UK therefore has a special provision in the MLAC enabling it to opt out of the direct transmission requirement. 54. Section 27 of the Act enables the Treasury by order to provide for certain functions conferred on the Secretary of State or on a constable to be exercisable by HM Customs and Excise, and for the Secretary of State by order to provide for certain functions conferred on him or on a constable to be exercisable by other persons prescribed by order. This will facilitate more extensive direct transmission in the future. | |
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