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Taking Account of Convictions (EU Exit) (Amendment) Regulations 2020

Volume 807: debated on Thursday 29 October 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Taking Account of Convictions (EU Exit) (Amendment) Regulations 2020.

My Lords, this instrument will implement the separation provision in the EU withdrawal agreement on taking account of convictions. In accordance with the separation provision, it will ensure that previous convictions in EU member states will continue to be taken into account in cases where criminal proceedings have begun before the end of the transition period. That separation provision partially preserves the application of a framework decision that established that previous convictions in EU member states are to be treated in the same way as domestic convictions during criminal proceedings.

To implement the separation provision, this instrument amends two pieces of legislation. First, it amends the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019, which were intended to address deficiencies in retained EU law in the event that the UK left the EU without an agreement. Now that we have left the EU with an agreement, this instrument modifies the 2019 regulations to give effect to the terms of the withdrawal agreement.

Secondly, this instrument amends the Sentencing Act 2020, which consolidates sentencing procedural law into a sentencing code, as a consolidation exercise. The code has been drafted on the basis of the current law. Therefore, this instrument amends the 2020 Act to also give effect to the terms of the withdrawal agreement. Therefore, the amendments made by this instrument ensure that the separation provision on taking account of convictions will be given full effect in domestic law. I beg to move.

My Lords, I am grateful to the Library and other noble Lords who helped me in my research. I decided to take part in this debate because I thought the regulations might impact on civil liberties and the evaluation of settled status. I need not have feared. I can see what the Government wish to achieve, and it fits nicely into the consideration given by the Joint Committee on Statutory Instruments.

The principle was well described in the introduction to the Commission’s report to the European Parliament and Council on the implementation by the member states of the framework decision back on 24 July 2008. I quote this because the relevance of these aspirations seems to me to be far-reaching:

“In a genuine area of justice based on mutual trust, the European Union has taken action”,

as the Minister has told us,

“to ensure that citizens are protected against crime across the European Union, while also ensuring that citizens’ fundamental rights are respected when they find themselves involved in criminal proceedings, whether as a victim or a defendant. In the European Union, where people can”—

perhaps we should say could—

“move and settle freely, this objective of maintaining and developing a genuine European area of justice requires that convictions against persons sentenced in one Member State are taken into account in another Member State in order to prevent future crimes. Equally, if new crimes are committed by the same offender, subject to preserving fairness of the proceedings, this behavioural factor should be taken into account in the framework of new criminal proceedings.”

Clearly this is a description of a desirable legal world that, whatever our Brexit beliefs, we should all want to live in. It is so desirable that it begs the question of what will happen to EU convictions in future and why we would not wish for a continuation of this level of protection for our citizens. Do these amendment regulations not in fact fix a problem that we might then have to break?

My Lords, I thank the Minister for her explanation of these modest proposals. I come to them as one who was a sentencer for many years. When I was a sentencer, I would have had even greater interest in them. I first sat as a sentencer in 1973 in Cardiff and continued to do so until I became a law officer in 1997. Sentencing is not an easy process. At the end of a week’s sitting, you may have half a dozen cases to sentence, and each one has to be considered carefully and—for lack of a better word—judiciously. The basic requirement has remained unchanged over the years: that the sentencer should have full knowledge of the track record of the person to be sentenced if justice is to be done. That is the paramount consideration.

The Minister has explained that what we are doing here is filling a gap, or at least a potential gap. We are dealing with criminal proceedings instituted but not concluded before the end of the transition period, which are the subject matter of these regulations. It is important that there is no gap in the knowledge available about a person to be sentenced. The requirement is that the circumstances are known to the sentencer, so far as they are required by national law. The Minister used the words “domestic law”. My question is simple. These regulations obviously apply to the law of England and Wales and Northern Ireland, but do they apply equally to Scotland, given that the Minister used the words “domestic law”? With these few words, I very much welcome these regulations.

My Lords, I was disappointed to discover that there is no accompanying draft memorandum to explain this statutory instrument displayed on the House of Lords Papers app. For those of us who are locked down in Wales, that app is a lifeline. Did the Ministry of Justice think that this SI is so insignificant as not to require an Explanatory Memorandum and that the few lines below the text of the instrument are sufficient?

The sad thing is that this is not an insignificant statutory instrument. As the noble Lord, Lord Berkeley, said, in 2014, the European Commission reported to the European Parliament on the workings of the framework decision of 2008, with which this statutory instrument is concerned. He quoted at length to your Lordships the inspiring introduction which sets out the purpose of the report and of the framework decision itself. It is indeed in the interests of effective criminal justice, including the protection of victims of crime within the European Union, that all member states should have rules in place to take into account at all stages of criminal proceedings whether a person is a first offender or has already been sentenced in another member state.

We have just thrown all this protection away. This miserable little statutory instrument merely preserves the regime of co-operation in respect of proceedings which were pending but not completed at the end of the transition period. It says nothing about co-operation in the future. Can the Minister tell us whether there are any negotiations in being to bring about similar co-operative and reciprocal mechanisms which must be in the interests of the UK, whether in the EU or not?

Obviously, such discussions cannot be part of the trade negotiations, which are stuttering along on their last legs at the moment. What happens if new proceedings are commenced against an offender on 1 January next, after the transition period, and result in a conviction? How will judges and magistrates in this country be warned and informed whenever an EU national with a string of convictions appears in a British dock? Will it be possible at all for our police forces or prosecutors to obtain information of past convictions from EU countries?

Similarly, what arrangements are proposed for co-operation with EU countries in providing the records of individuals convicted in this country? Come to think of it, where are we with the European arrest warrant or any mechanism to replace it? Is it not ironic that we can negotiate a trade agreement with Japan, a country on the other side of the world and ring the parish church bells, but are incapable of having in place after 1 January an agreement that will protect, and is designed to protect, the citizens of this country from criminals arriving from our European neighbours?

This statutory instrument is important simply because it stands as a symbol of the wreckage of a great idea: the binding together of European states wracked by war into a community for common security and prosperity. I look forward to the Minister’s reply.

My Lords, the purpose of this instrument is to make transitional provision so that when the EU exit transition period ends the current regime for taking account of previous criminal convictions in relation to convictions in the EU will continue where criminal proceedings in the UK begin before the end of the transition period but conclude after it ends. Proceedings beginning after the end of the transition period will be dealt with under a new regime. When the UK ratified the withdrawal agreement, we agreed the framework for taking into account criminal convictions in the EU. It is right that it be extended to court proceedings that start in the transition period but conclude after it ends.

I remind the House that I sit as a magistrate in central London. I regularly deal with foreign nationals, both EU nationals and non-EU nationals, who are brought before the court for whatever reason. Very occasionally I see a record of their offences in their home country or another country. It is welcome when that information is available but, in my experience, it is rare to get it. In addition, I have never been told that a check has been done on a foreign country with a negative result. Usually we do not know whether that check has been done. I sit in the lowest court, the magistrates’ court, and it may be that these checks are more usually done for more serious matters, such as those in Crown Courts, but my experience is that I rarely see the information when I am making sentencing decisions.

Speaking on behalf of the Opposition, we support this statutory instrument. However, I agree with the sentiments expressed by the noble Lord, Lord Thomas, that it is a testament to a very limited ambition, and I would be interested to hear what the Minister has to say about what she expects to be in place when we get past 31 December.

I conclude by saying to the Minister that, whatever the future arrangements are, the current arrangements leave a lot to be desired. Although they were theoretically in place, from my experience they certainly were not acted on in courts in London. Therefore, I hope that she will be able to reassure us that the Government have an ambition to improve the information available to courts, as has been the case under the current arrangements.

I thank noble Lords for taking part in this very short debate. The fact that it is a short debate is very welcome on a Thursday evening.

The noble Lords, Lord Berkeley and Lord Ponsonby, brought up a similar issue. Now that we have left the EU, there is absolutely no reason to treat EU member state convictions differently from those imposed in the rest of the world. However, the loss of taking account of convictions capability after the transition period does not affect the fact that, as we heard from the noble Lord, Lord Ponsonby, the courts will retain the discretion to treat previous convictions in EU member states as an aggravating factor during sentencing, as they can already do with convictions imposed elsewhere. I will take back the view expressed by the noble Lord, Lord Ponsonby, that, from his experience in London courts, he is not getting as much information as he should.

The noble and learned Lord, Lord Morris, asked about the extent of these regulations. They extend to the UK, subject to the exceptions set out in paragraphs (2) and (3) of Regulation 2. Paragraph (2) provides that the amendments of the Sentencing Act 2020 made in Part 2 of the regulations

“have the same extent within the United Kingdom as the provisions to which they relate.”

Paragraph (3) provides that the amendments of the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 made in Part 3 of the regulations

“extend to England and Wales and Northern Ireland.”

I hope that that clears up that query for the noble and learned Lord, Lord Morris.

The noble Lord, Lord Thomas of Gresford, said that he could not find the draft memorandum. I am extremely sorry that it was not on the Lords website, but it has certainly been published on the legislation.gov.uk website if he wants to see it.

The noble Lord asked how the courts would obtain information about overseas convictions when we end the transition period. Our criminal justice system is well versed in obtaining such information. The process of obtaining it is a combination of law enforcement co-operation between police forces in the UK and other countries and the wider mutual legal assistance framework, or MLA, which will continue to apply between the UK and EU member states after 31 December 2020. At that point, it will be based largely on Council of Europe treaties, in particular the European Convention on Mutual Assistance in Criminal Matters and its protocols. The MLA is a method of co-operation between states for obtaining assistance in the investigation or prosecution of criminal offences. Such assistance is usually requested by courts or prosecutors and is referred to also as “judicial co-operation”. There will therefore continue to be co-operation, as I have explained.

To reiterate, the purpose of this instrument is to give effect in domestic law to the separation provision in the EU withdrawal agreement on taking account of convictions. To that end, I commend it to the Committee.

Motion agreed.

That completes the business before the Grand Committee. I remind Members to sanitise their desks and chairs before leaving the Room. The Committee stands adjourned.

Committee adjourned at 6.50 pm.