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European Evidence Warrant

1st December 2005

First, I congratulate the European Scrutiny Committee on its work in relation to the framework decision and on drawing attention to some serious concerns throughout its several comprehensive reports.

First, I congratulate the European Scrutiny Committee on its work in relation to the framework decision and on drawing attention to some serious concerns throughout its several comprehensive reports.

The proposal seeks to replace the traditional arrangements for mutual legal assistance in the gathering of evidence with the European evidence warrant, whereby member states would recognise and enforce, without any further internal review, orders such as search warrants issued in other member states. Currently, under mutual legal assistance agreements, such evidence would be obtained on the basis of a request by a state which is party to an international agreement and it would be executed in the other party state using its own national law.

Although the Opposition do not support the European evidence warrant, we certainly understand the spirit of elements of the proposal and support efforts to combat transnational crime effectively and to ensure greater international co-operation in that regard. Removing obstacles to successful prosecution is both necessary and desirable. However, removing the safeguards that protect the rights of individuals is neither of those things. The right balance must be achieved but, as the draft framework decision stands, we believe that it is weighted too far towards mutual recognition and international co-operation and too little towards the rights of the individual not to be subjected to investigations ordered by foreign authorities when such investigations are not appropriate. We believe that the principle of double criminality should apply in all circumstances.

Despite our lack of support for the concept of the warrant, I shall nevertheless address the issues based on the fact that the proposal will be implemented. I want to draw attention to three key areas: mutual recognition and double criminality, the definition of the issuing authority, and the provision of legal remedies.

While we broadly support the general principle of mutual recognition in relation to the EU, in some instances it may be appropriate only where sufficient safeguards are incorporated. The European evidence warrant is one such example. If we examine, for example, the sale of goods, the principle of mutual recognition means the acceptance by one member state of goods that conform with an equivalent standard of another member state without modification, testing, certification, renaming, or undergoing any other duplicative conformity-assessment procedure. Problems arise, however, when attempting to apply that principle to criminal legal systems. We are not talking about widgets, but the criminality and liberty of an individual.

The key problem is how it is possible to adhere to a form of mutual recognition that apparently supports the judicial traditions of each member state, without the operation of separate regimes. Ultimately, as things stand with this proposal, that would be impossible without harmonisation. In its ninth report, published on 9 November this year, the European Scrutiny Committee welcomed some of the limits to the scope of the proposal, but added:

"We continue to have grave doubts about applying the principle of mutual recognition to orders which are made without the person affected being given an opportunity to be heard in his defence."

We agree with that position. However, if we are going to see the European evidence warrant operating in Great Britain, the Government must ensure that sufficient safeguards are in place to prevent the unnecessary infringement of civil liberties and the miscarriage of justice. The condition of double criminality means that, at the time of the issue of an evidence warrant, the offence to which the warrant relates must still be an offence in the issuing state and must also be an offence in the executing state. The principle gives protection to British citizens against being investigated in Britain for something that it is not a crime in this country. That is a very important safeguard. The original proposal in article 16 was to remove the condition of double criminality altogether in five years. That was clearly unacceptable and we are pleased to see that progress has been made.

The condition of double criminality may now be applied regarding a search or seizure order for a crime that does not attract a custodial sentence of three years or more and that does not fall within one of the categories set out in article 16(2). That is certainly an improvement on the previous position, but we remain convinced that the condition of double criminality should apply in all circumstances. The end result of the current proposals will be that the warrant could be used, for example, for search and seizure against a person accused of committing an offence in another EU country, even when no British law has been broken. That seems unacceptable to us.

Nevertheless, as the proposal stands, I have two specific concerns in relation to article 16(2). First, it is for the issuing state to determine whether an offence falls within the list of crimes. That is not satisfactory. Perhaps the Minister could examine that and consider whether it should be changed to refer to the executing state. Secondly, the list of crimes in article 16(2) is, at times, vague. If an issuing state decides whether an offence is included in the list, that could be problematic. Many unanticipated crimes could easily be deemed to fall within the listed categories and, therefore, deemed beyond the protection of the condition of double criminality. Not only are some of the categories vague and ambiguous, but definitions could be contrived to make the crime fit. For example, member states have different interpretations of corruption. They also have very different approaches to racism and xenophobia, particularly with regard to freedom of speech. Computer-related crime seems to be an extremely broad category. Could it cover hitting someone over the head with a computer? Another consideration is that sentence lengths could be fairly easily altered to make the offence fall either within or outside the scope of article 16(2).

I could go on, but the potential problems with this article are plain for all to see. We believe that those could be avoided and the rights of British citizens better safeguarded by simply retaining the condition of double criminality. The European Scrutiny Committee also stated in its report:

"We found it disturbing that a person's home might be entered and searched at the request of a foreign authority for the purpose of obtaining evidence to prosecute conduct which is not criminal in this country."

On a related matter, we also note that there have been deliberations and differences of opinion among member states on the extent to which the territoriality principle should apply as a ground for refusing an evidence warrant. Under that principle, a member state may refuse to execute a warrant if the offence was committed wholly or partly on its own territory. That would provide a useful safeguard and should not be restricted to cases in which the offence has been committed entirely, or for an essential part, in the territory of the executing state. However, we do not want the Government to use it as an excuse for denying the protection afforded by the condition of double criminality. Will the Minister assure us that that will not be the case?

This country has, over the centuries, developed its own way of practising and administering law. What is considered a serious crime in one member state may not be in another. National priorities and sentiments are different and change all the time. An example is drink-driving. This country has seen a huge shift of opinion on the seriousness of that crime in as little as 10 years. Why should the power to determine which British citizen's properties are searched be shared with anyone other than Britain? What if the overriding belief of the people of this country was so strong that there was a wave of opinion against the investigation of an offence that was not a crime here? The power to determine what is a crime should never be removed from Westminster. Only by retaining control over our system will the British public feel secure about the fact that justice is obtainable and adaptable to the demands of the day.

On the problems relating to the definition of an issuing authority, we share the European Scrutiny Committee's opinion, expressed in its 11th report, that the entire range of authorities that are currently regarded as competent to make requests for mutual legal assistance should not be able to issue evidence warrants. A request for mutual assistance is an entirely different matter from requiring the near-automatic enforcement of an order made by a foreign authority.

We are not against an integrated approach in every circumstance. I can understand such an approach for the crime of forging European banknotes, for example. Of course we are in favour of countries working together to combat crime, especially crimes with a transnational dimension. However, the European evidence warrant would clearly not be limited to cross-border crime, but would apply to crime in general. There are not sufficient safeguards in place to protect our criminal legal system from being subject to the decisions of an issuing authority.

In the report, the Committee suggests that the principle of mutual recognition in judicial matters should be confined to orders made by judges and courts or other bodies with recognisably judicial functions. Just because it is for the requesting member state to define the authorities that are to be competent to make a request under existing arrangements for mutual legal assistance does not mean that that should necessarily be the case in relation to the evidence warrant. The Government should ensure that British citizens are not at risk from investigations pursued by foreign authorities, the judgments of which we would not respect in this country.

It is encouraging that the definition of "issuing authority" in article 2(c) has been revised and now does not include the police, customs or frontier authorities. I am pleased that that is the case and note that there has been progress, but there is still more to do. An issuing authority is defined as

"a judge, a court, an investigating magistrate, a public prosecutor, or any other judicial authority as defined by the issuing State and, in the specific case, acting in their capacity as an investigating authority in criminal proceedings with competence to order the obtaining of evidence in cross-border cases in accordance with national law".

That seems a vague and circular definition that could be open to interpretation and abuse. What exactly is "any other judicial authority"?

The definition also includes

"judicial authorities from whom such competences have been delegated",

which we believe is unacceptable. Why is that additional part of the definition necessary? We understand that other member states have different views on the matter, but it is extremely important that there be certainty on the type of authority that may be allowed to issue a warrant.

Under paragraph 2 of article 11, an executing member state may decide that no search or seizure is to take place if the issuing authority is not a judge, a court, an investigating magistrate or a public prosecutor and the evidence warrant has not been validated in the issuing state by such an authority. Although the validation procedure goes some way towards dealing with our concerns, I still have doubts about that apparent safeguard. Is it, in the Minister's view, sufficient to protect British citizens? We think not. Nevertheless, it could still be unnecessarily burdensome on the executing state that queries the warrant. Before deciding that no search or seizure will take place, the executing authority is under an obligation to consult the issuing state's competent authority. I asked earlier whether such consultation would be required when using the general declaration under article 11(3).

We also share the European Scrutiny Committee's concern that the validation procedure is to be carried out in the issuing state. The more obvious and direct safeguard would have been to require judicial validation in the state in which enforcement is sought. With those concerns in mind, it makes sense that a new ground for postponement has been added at article 18(1)(b) which deals with the need for validation.

Article 19 on legal remedies has been revised to encompass a challenge against the recognition and execution of any evidence warrant, although a member state retains discretion to restrict that challenge to warrants that involve coercive measures. An issuing state is now required to make available the legal remedies that would apply in a comparable domestic case. Nevertheless, I share the concern raised in the 11th report. The decision to recognise and execute a warrant is to be challenged in the executing state, but a challenge to the substantive reasons for issuing a warrant may only be brought in the issuing state. Does not the Minister feel that the text should provide for an effective legal remedy in the executing state against the decision to issue a warrant so that that state may protect its citizens?

I also raised a concern about the practical operation of an issuing state being required to make available the legal remedies that would apply in a comparable domestic case. I asked the Minister how he envisaged that working in practice. I am not entirely sure that he answered my question, so I would be grateful if he would do so in his response. Problems could arise if there is no comparable domestic case, or if the comparable domestic case is contrived in order to deny the desired legal remedy.

The issues that we have raised are of significant national interest. The debate represents just one way in which the Government are attempting to sidestep a referendum on the things that would have made up the now defunct European constitution. They are slowly introducing laws that erode our cornerstone principles of European participation. We have been beaten back on the constitution—thanks to our European neighbours, perhaps—so the European Union now appears to be looking to admit the constitution's content and the harmonisation of laws by the back door. That must be resisted.

Despite the welcome progress that has been made, the framework decision is not in a ready state to be accepted. We agree entirely with the European Scrutiny Committee that the proposal places too high a value on the merits of mutual recognition and too little on the rights of persons in this country not to be subjected to investigations—ordered by foreign authorities—into conduct that is not criminal in this country. The effect of the proposal as it stands, willingly or unwillingly, is creeping harmonisation.

The prospect of increased co-operation between law enforcement agencies, particularly in the fight against crime, is to be welcomed, but we must not lose sight of cornerstone principles and the interests of British justice and the British people. That is why I shall recommend to my colleagues that they vote against the motion.

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