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Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009

Volume 715: debated on Wednesday 9 December 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009.

Relevant Document: First Report from the Joint Committee on Statutory Instruments.

My Lords, the Crime (International Co-operation) Act 2003 provides a streamlined and modernised framework pursuant to which the United Kingdom can both make and execute requests for mutual legal assistance. In an effort to further improve international co-operation we seek to designate Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Israel, Montenegro, Serbia and Switzerland as participating countries for the purpose of various sections of that Act.

The designations that will be made under the order are required to enable the UK to ratify the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters, which the noble Lord, Lord Skelmersdale, and I discussed on Monday evening as part of the debate on an excellent report from one of your Lordships’ Select Committees. The convention is an important instrument in the provision of mutual legal assistance between states and forms the treaty basis for a high proportion of both incoming and outgoing requests for criminal mutual legal assistance. The second additional protocol is aimed at strengthening mutual legal assistance among the parties to the convention and widening the scope of mutual legal assistance which is available. As I said, it is worth noting that the House of Lords Select Committee on the European Union made clear in its recent report on money-laundering and terrorist financing, which was the subject of an excellent debate on Monday, that it is keen that the UK move swiftly towards ratification of the second additional protocol. That is what we are taking forward in this order.

I shall read my brief slowly, because it confuses me when I read it quickly. To ratify the second additional protocol the UK needs, among other things, to be able to deal with requests for mutual legal assistance in accordance with Sections 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the Crime (International Co-operation) Act 2003, and to ensure that UK criminal process is served overseas in line with the provisions of Sections 4 and 4B of the same Act.

Under the scheme of the 2003 Act, for the UK to seek and provide mutual legal assistance to a country in accordance with these provisions, it is stated that it must fall within the definition of a “participating country” in Section 51(2)(b) of the 2003 Act.

A country falls to be regarded as a participating country under Section 51(2)(b) if it was a member state of the European Union on the date on which the relevant provision of the 2003 Act was commenced or if it has been designated as a participating country in an order made by the Secretary of State.

While most of the countries which are parties to the second additional protocol were member states of the EU on the date on which Sections 4, 4B, 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the 2003 Act were commenced, and therefore fall to be regarded as participating countries for the purpose of those provisions, some of the ratifying states were not. Accordingly, this order seeks to designate those states as participating countries for the purpose of those provisions.

The effect of the designations will be as follows. Designating the relevant states as participating countries for the purposes of Section 31 of, and paragraph 15 of Schedule 2 to, the 2003 Act will allow the UK to execute requests for witnesses in this country to give evidence in foreign proceedings by telephone and to ensure that where such evidence is given the process is supervised by a court in the participating country. Designating the relevant states as participating countries for the purposes of Section 47 will allow the temporary transfer of UK prisoners to that participating country to assist with investigations into an offence that may or may not have been committed in the UK. Similarly, designation for the purpose of Section 48 will allow the temporary transfer of prisoners from a participating country to the United Kingdom to assist with investigations into an offence which was, or may have been, committed in that participating country.

Designation as participating countries for the purposes of Sections 4 and 4B of the 2003 Act will mean that service of process, written charges or requisitions from the UK to persons in participating countries must be by post, save where the person’s correct address is unknown, where it has not been possible to serve the process by post, where there are good reasons for thinking that service by post will not be effective or where it is inappropriate. Switzerland is not designated here as it has already been designated as a participating country for the purpose of these sections at an earlier date.

The UK is committed to improving the provision of mutual legal assistance, which is a key tool in ensuring that cross-border crime can be combated and that justice is achieved for British victims of crime. Ratifying the second additional protocol will further these aims. This order, which will allow us to ratify the second additional protocol, will therefore be of great benefit to British victims of crime. I accordingly commend the order to the Committee.

My Lords, I am most grateful to the Minister for explaining this order, which designates a number of countries as participating countries for the purposes of the Crime (International Co-operation) Act 2003. This means that the number of arrangements for mutual legal assistance for criminal matters that the UK can have with other countries and vice versa is increased. That is good. As the Minister also said, this order covers the temporary transfer of prisoners to assist in investigations, allows a witness to provide evidence by telephone for use in proceedings in another participating country and states the procedure by which process must be served on an individual. The countries being designated today are members of the Council of Europe, and many of them are candidate countries for EU membership or are observer states, such as Israel. The Council of Europe has done much to harmonise legal standards between countries. Mutual legal assistance in criminal matters is no exception and is important.

As we agreed in Monday’s debate on the EU committee’s report, crime is increasingly cross-border. The problem is that differences between national procedures can mean that information gathered in one country cannot be used in another because the way that the information was obtained does not fit with the national procedural requirements. This was the rationale for the 1959 European Convention on Mutual Assistance in Criminal Matters, which provides that a requesting state can ask another state to comply with some formalities or procedural requirements essential under the former’s national legislation. However, the backdrop of our consideration of this order must be how far we have confidence in the judicial and police systems of other countries that will be parties to the reciprocal agreements. Can the Minister therefore say how the adherence of participating countries to agreements on mutual legal assistance, including standards of treatment in criminal matters, is monitored and ensured?

This is particularly important in the context of Chapter 5. I am dealing with this a little more broadly than the Minister did with his specific references to sections of and schedules to the Act. These provisions deal with the transfer of UK prisoners to a participating country to assist with a criminal investigation into an offence which was, or may have been, committed in the United Kingdom. Corresponding provisions allow for the transfer of prisoners to this country.

The noble Lord will know that people in prison, either on remand or as convicted prisoners, are potentially vulnerable to pressure to consent to transfer orders. Can he therefore, on behalf of the Government, give your Lordships’ Grand Committee a clear assurance that any such prisoner being transferred to any of the countries listed in the order will receive appropriate legal advice and say what that appropriate legal advice will be; and can he assure us that they will not be placed under implied or actual pressure to give their consent? This is important because—it should be noted—this consent cannot be withdrawn once given. This has an added importance, given that the provisions also do not exclude the transfer of particularly vulnerable prisoners, such as those under the age of 18, albeit that provision is made for an appropriate adult to give consent in certain circumstances on behalf of a youthful or physically or mentally disadvantaged person. Can the Minister assure us that a transferred prisoner’s return to the United Kingdom from the countries listed in this order, which include the Balkans and Israel, will be guaranteed and that steps will be taken to ensure their safety while in these countries’ custody? Can the Minister clearly state what steps will be taken to ensure their safety?

Finally, the Government have said that they expect the power to transfer prisoners to be used rarely. How many prisoners have been transferred to other countries to date under the current arrangements, particularly to assist in the investigation of crimes that are alleged to have taken place here in the United Kingdom? Can the Minister give your Lordships’ Committee a clear assurance that the Government will not permit transfers, either from or to the United Kingdom, within the EU, the Balkans and Israel, which offend this country’s understanding and sense of proportionality and fairness?

I turn now to a related matter. In extending the number of states designated as participating countries, this order is required before the United Kingdom can ratify the second additional protocol to the European convention, of which we heard quite a lot on Monday. We know that it is the Government’s intention to ratify the protocol. The European Union Select Committee was critical that it had taken the Government since 2001—eight years—to reach this point. In evidence to the committee, a Home Office official said that this was because of,

“one or two policy issues … around mutual recognition in areas like control, delivery, covert surveillance”,

and “joint intelligence teams”. Can the Minister please expand on what these issues are and how the Government have addressed and are addressing them? Earlier this year the Government estimated that the UK would ratify the protocol by the autumn. Clearly this is no longer the case, so when do the Government now expect to do so? Also, how are the Government encouraging other countries to ratify the protocol? I will not repeat the obvious question that I asked on Monday because I am awaiting the Minister’s missive on that and other subjects.

As I said, mutual legal assistance is important, but the Government must be careful about how it is used. On the basis that the Minister can give your Lordships’ Committee the appropriate assurances that I have asked for, we can support the order.

My Lords, a number of my questions were very similar to those of the noble Lord, Lord Skelmersdale, so I will not take the time of the Committee by repeating them. I thank the Minister for his presentation of the order and assure him that we support what the Government propose and that my comments will be easier than those on the last order.

When I saw the order, I asked my noble friend Lord Wallace whether he had any comments, leading as he does on foreign affairs. Almost inevitably, he pointed to the juxtaposition of Albania, Bosnia-Herzegovina and Switzerland, and asked whether the Government had previously considered the quality of the Swiss police and prosecuting authorities to be on the same level as those of the states of the western Balkans, and co-operation with them to have been comparably difficult. I take his point that Switzerland is not now being designated, as it already has been. I do not know whether it is fully participating or will be when this is passed, if that is the right way to put it. Perhaps more sloppily, are all aspects now covered as regards Switzerland?

I have warned the Minister of these questions. Are there any remaining European countries which are not participating? With regard to the service of process to be undertaken by the post, how reliable are the postal services in the countries in question? How is service achieved now, before the order comes into effect? I ask that question from my background as a solicitor. I no longer practise but the scars of failing, or being aware of other people failing, to serve something stay painfully deep with one. I should say that my firm was never in that position. It was from observing others.

I would imagine that any expenses attached to the new arrangements for travel, telephone and so on would be de minimis, but the Minister might like to comment on that. The noble Lord, Lord Skelmersdale, has asked about the protection of prisoners going to certain other countries. Will the Minister comment on custody conditions in the countries concerned? We will all have read about the luxurious accommodation in Gstaad made available to one person who is being held in Switzerland, but I hardly think that that is typical. The more serious question is with regard to some of the countries whose facilities are perhaps not as developed as those in western Europe.

My Lords, I thank noble Lords who have participated. Their questions are rightly raised in terms of not only our willingness to work with colleagues abroad but to ensure that anyone who is subject to the transfers is treated as he would be, and no worse than, in the United Kingdom. To deal with the questions more or less in the order that they were raised, the noble Lord, Lord Skelmersdale, asked about the adherence of participating countries.

Parts of the 1959 convention undertake to give the widest measure of mutual assistance possible within domestic law. The MLA process relies on good faith, mutual trust and a common interest in fighting crime. MLA arrangements between the UK and countries designated in this order have been good and ratification of the second additional protocol should only strengthen those relations. If any problem arises in relation to the MLA, the aim will be to deal with these problems at official level and to escalate them to a ministerial level if necessary. If that does not prove to be successful were there to be a problem, there is a provision in the second additional protocol, Article 29, to support the friendly settlement of any problem arising out of the application of the convention and its protocols through the European Committee on Crime Problems of the Council of Europe.

On ratification and entry into force, the Government are bringing forward another piece of necessary secondary legislation to ratify the protocol. This statutory instrument is in relation to civil and criminal liability of officers in international joint investigation teams. It will be subject to a negative resolution. Once this is laid before Parliament, and if this secondary legislation is passed by the House, the UK Government will be in a position to prepare instruments of ratification with the second additional protocol. It would then enter into force on the first day of the month following the expiry of three months after the date on which the UK deposits the instrument of ratification with the Secretary-General of the Council of Europe. The aim is to complete that process as quickly as possible.

Ratification of the second additional protocol is necessary for the UK to be able to access the full range of mutual legal assistance available under it. It provides a framework for a broad range of mutual legal assistance and is specifically available to states that have ratified it. This includes assistance in relation to joint investigation teams, covert investigations and controlled deliveries. The protocol also provides a number of operational benefits. By requiring process to be sent directly to individuals and by allowing direct transmission of mutual legal assistance requests by prosecutors, bureaucracy is reduced and the entire mutual legal assistance process expedited. It is important for the UK to show its commitment to MLA internationally and the importance that it attaches to it as a tool in the fight against international crime. We hope that this move will encourage other countries which have not signed or ratified the protocol to go through the same process, perhaps without the great expanse of time between signing and ratification which was a criticism of the committee of the noble Lord, Lord Jopling, which I found hard to argue against.

On legal assistance, it is entirely a matter for the prisoner concerned whether they wish to consent to any temporary transfer. No pressure would be applied, and there would be no adverse consequences for them if they chose not to consent. They would need to seek legal advice if necessary, but it would be their responsibility and not that of the state.

I was asked how many requests have been received under Sections 47 and 48. The answer is very simple: to date, the UK has neither made nor received any such requests. Consequently, no prisoner has been transferred to or from the United Kingdom under these powers. It is not envisaged that the designation of these countries will lead to a large number of such exchange requests.

The noble Lord, Lord Skelmersdale, was rightly concerned that the transfer of prisoners should be proportionate. In considering the proportionality of any temporary transfer to assist in criminal investigations, three important points are to be kept in mind. First, the transfer should be for only a short period and as long as was necessary to assist in the investigation in question. That point would be made at the time of request from the MLA transfer country. Secondly, the transfer should be carried out only with the consent of the relevant prisoner. Thirdly, the purpose of the transfer should be to assist with a criminal investigation. I am sure that most noble Lords would find that aim easy to understand and recognise its importance.

Given the limited circumstances in which a transfer of a prisoner could therefore take place and the fact that they were being transferred quite voluntarily, together with the important public interest that such transfers could serve, I can see no argument for their being deemed disproportionate. If it were, the transfer would have to be shown to be compatible with the ECHR. If the transfer were considered to be disproportionate when measured against that, it could not take place.

The noble Baroness, Lady Hamwee, asked a number of related questions, one of which was about Switzerland. Having spent considerable time during the past 12 or 15 years in Switzerland, I have views about its democracy and the way in which it applies locally, but I do not believe that anyone could accuse the Swiss police authorities or police force of being other than of the highest standard. It is a consequence of Switzerland not being in the EU that it does not fall automatically to be considered a participating country. Therefore, there must be an international agreement to which both the UK and Switzerland are party, and it would need to be designated as a participating country for it to be fully involved. For example, it has already been designated for service of process under the previous EU-Switzerland agreement, but the problem with that was that it dealt with fraud but did not go any wider. However, Switzerland has ratified the second additional protocol, and we intend to do likewise. Therefore, it is necessary and appropriate that we designate it as a member state in our participating country list.

The question was asked, “Who is, who isn’t?”. All current EU member states are participating countries for the purpose of the Crime (International Co-operation) Act 2003, which means that all EU member states can benefit from the provisions of that Act, which is relevant only to participating countries. The Council of Europe countries, EU and non-EU, which have not yet ratified or signed the second additional protocol are as follows. Those that have signed but not ratified are Armenia, Cyprus, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Slovenia, Sweden, Ukraine and the United Kingdom—but we have now declared our intent and are legislating so to do. The 12 that have neither signed nor ratified the protocol, in contrast to those that have signed but not yet ratified, are Andorra, Austria, Azerbaijan, Georgia, Italy, Liechtenstein, Moldova, Monaco, Russia, San Marino, Spain and Turkey.

The noble Baroness and the noble Lord were concerned about the custody conditions into which prisoners might be transferred, however temporarily. As we said, the consent of the person in custody in the first instance is required, otherwise it will not take place. Additionally, we are bound by the Human Rights Act to act in accordance with convention rights, and it would not be appropriate to send a person into custody in a country where custody conditions could give rise to a breach of the ECHR. For the purposes of this order, a person in custody in the UK would be only temporarily transferred on the rare occasion when they were assisting with a UK investigation abroad.

The noble Baroness raised the question of expenses. With the exception of costs related to TV/video link evidence and to the temporary transfer of a prisoner into and out of the UK, it is standard practice with mutual legal assistance that the requested country meets the cost of providing assistance and that the cost of providing telephone connections and so on would be de minimis.

What difficulties have we seen with the process? How reliable are the postal services in other countries and how do we achieve this? There is no difficulty in serving the process in the vast majority of cases. Currently the service of process in these countries can be effected by post or by sending a relevant document to a country’s central authority and requesting the use of postal services. But most often it is effected by using private companies such as FedEx, UPS or whatever, so the quality of the postal service within the country is not necessarily a matter of real concern. At the moment, services can still be sent by post, but the order makes it an obligation that it should be sent by post, save in the limited circumstances to which I referred. That will minimise bureaucracy and ensure that documents are served as quickly as possible.

I think that that deals with most of the questions. When we ratify depends on the second SI, but we are determined to move forward as quickly as we can. I hope, with noble Lords’ support, we can ensure that this order goes on its way and that we are one step closer to the overdue ratification.

I may have missed it, but the noble Lord spoke about a second order, which will be a negative instrument. Has he any idea when this might be brought forward?

We are in the Christmas season, but we hope that it will be a matter of weeks—and fewer weeks rather than more weeks. The festive season is getting in the way, but it will certainly be a matter of weeks rather than months.

The Minister referred, rightly, to the consent of the prisoner being required for a transfer. I assume that it is implicit that the consent can be withdrawn at any time so that the prisoner could require to be returned. Will he confirm whether that is the case? If he cannot do so now, perhaps he could come back to us on that.

I presume that that is the case. I shall look bemused and hope that somebody nods at me—and, yes, they have done. To me, that is natural justice. If consent is required, consent for retaining the person is also required. I am pleased to say that the answer is positive.

Motion agreed.