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

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 Community 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, Lichtenstein, 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.