Coroners and Justice Bill

Clause 128 : Treatment of convictions in other member States etc Debate on whether Clause 128 should stand part of the Bill. Schedule 15 to the Bill amends domestic legislation pertaining to the consideration of criminal convictions pre-trial, or bail, during trial, which is to say related to character, and post-conviction—the sentencing function of the court—by imposing a mandatory requirement on a tribunal to include convictions from other member states in this consideration. The purpose of the amendments is to transpose into UK law the Council framework decision of 24 July 2008 on taking account of convictions in the member states of the European Union in the course of new criminal proceedings. The proposal for the framework decision explained that currently there is no consensus between member states as to how convictions from other member states are considered, which is contrary to the mutual recognition principle and puts the citizens of Europe on an unequal footing. The proposal for the framework decision follows a White Paper that sets out that the current system, under Articles 13 and 22 of the 1959 European Convention on Mutual Assistance in Criminal Matters, has three problem areas: the difficulty in rapidly identifying the member states in which individuals have already been convicted; the difficulty in obtaining information quickly and by a simple procedure; and the difficulty in understanding the information provided. I can tell your Lordships that I was in exactly that difficulty earlier this year in dealing with a case involving a person of French nationality who was convicted in Belgium. It was necessary to have documents translated to find out whether he had been convicted in the correct jurisdiction and so on. To this end, two stages were proposed, the first in which recognition of convictions is established and the second where the means by which the convictions can be obtained is created. Both have resulted in framework decisions setting out the principles to be incorporated into domestic law. A Council framework decision on taking account of convictions must be implemented by 15 August 2010. A Council framework decision on the organisation and content of the exchange of information extracted from the criminal record between member states was adopted in the Justice and Home Affairs Council on 26 February this year. It must be implemented by 26 February 2012. Article 1 of that decision defined the purpose of the second framework decision as being: first, to define the ways in which a member state in which a conviction is handed down against a national of another member state—the convicting member state—transmits the information on such a conviction to the member state of the convicted person’s nationality; secondly, to define storage obligations for the member state of the person’s nationality and to specify the methods to be followed when replying to a request for information extracted from criminal records; thirdly, to lay down a framework for a computerised system of exchange of information on convictions between member states to be built and developed on the basis of this framework decision and the subsequent decision referred to in Article 11.4. As the Explanatory Notes to the Bill state, the amendments may not change the existing provisions but simply extend the ambit of a court’s consideration to include foreign convictions, but without a comprehensive and regulated system in place there is no way of effectively recognising convictions from other member states. A second framework decision attempts to achieve this by producing a pro forma by which to understand the non-domestic conviction, but that is not incorporated into the Bill, so the second aim—that people understand the conviction that is recorded against someone in a foreign country—is not incorporated into the Bill. There are practical problems. First, new Section 73(2)(c) provides that a certificate, signed by the proper officer of the court where the conviction was brought and giving details of the offence, conviction and sentence, will be proof of conviction. This presumes that the type of offence, conviction and sentence are equivalent to that of the United Kingdom, but this will not be the case across 27 countries with different cultural and historical premises on which their punitive systems are based. There is no equivalence across 27 countries that a conviction for a specific offence, for example in the Czech Republic, will have the same effect as or can be married to an offence in this country. Secondly, where a particular type of offence or repeat offending resulted in a particular sentence under United Kingdom law, the non-United Kingdom conviction would have a significant bearing on the outcome. Thirdly, there is no mechanism in the Bill to indicate how a tribunal might take account of the information received to take a decision on bail, character or sentence. The point is that these foreign convictions can affect the judge’s decision to grant bail before the trial, to bring in evidence of bad character during the trial and to influence the length and severity of the sentence that is imposed at the end. Fourthly, there are no provisions by which the tribunal may request explanatory information on the penal or sentencing systems in the other member states on which an attempt to equate the convictions with the UK counterpart can be made. There is no procedure in the Bill to deal with obtaining those foreign convictions should adjournments be granted where full convictions are not to hand or are not understood, thereby extending the period during which a defendant is remanded in custody. No mechanism is proposed to consider the trial procedure that gave rise to the convictions and whether that should have an effect on its application. For example, how is the tribunal to know whether the conviction was rendered in absentia, which happens in foreign jurisdictions, and whether that complies with United Kingdom law? Irrespective of whether the defendant was present at the trial, was evidence accepted that would be excluded in a United Kingdom case? Did the trial comply with UK standards with respect to representation and/or interpretation? All that the schedule is doing is to take this conviction and say to judges in this country, "You have got to take this into account in the decisions that you make", even though there is no mechanism for understanding its base, what it means or what particular procedures have been used for that decision. The framework decision requires the provision of details of convictions rendered in the United Kingdom to other member states, but there is no proposal to deal with how this would be affected. Spent convictions are not protected in the framework decision. It is a longstanding policy in this country that after a particular amount of time a person should have the conviction recorded against him, depending on the seriousness of the offence, regarded as spent. The Select Committee on European Scrutiny in its second report of 2005, while considering the framework decision, raised this issue. The then parliamentary Under-Secretary of State at the Home Office, Andrew Burnham, now translated into another sphere, in his explanatory memorandum of 23 May 2005 explained that, while acting within the atmosphere of mutual recognition, a spent conviction was a not a concept commonly found in other member states. We on these Benches wish to ensure that UK nationals do not receive unfair treatment on account of spent convictions. It may be that we would seek to include a reference to spent convictions not being taken into account by an overseas court if that spent conviction would not be taken into account by a United Kingdom court. This was not achieved and the result is that each member state is to take account of convictions in accordance with their national law. It follows therefore that where a conviction is spent for the purposes of criminal proceedings in the UK and would not be relied on in this country, the conviction may still be used in another member state to impose more onerous conditions on a defendant’s treatment. Article 11 of the second framework decision states that a standardised format should be adopted for the transmission of convictions. To this end a proposal for a Council decision on the establishment of the European criminal records information system in application of Article 11 of the framework decision 2009 envisages the creation of a system based on decentralised information technology where criminal records data will be stored solely in databases operated by the member states and are transferable. A uniform format for transmission is proposed, which adopts a numerical code to identify each crime and method of involvement. A committee is envisaged to oversee the technical developments of the programme. Pilot projects are currently being undertaken. While we acknowledge that there is an obligation to implement the framework decision within a finite period, passing that obligation on to the criminal justice system by means of amendments proposed in Schedule 15 to an already heavily burdened Bill is an inappropriate means of giving effect to the instruments and tensions and of affording sufficient time to its consideration. Furthermore, now that the second framework decision has been adopted, it is incumbent on Parliament to consider both decisions together in order to give proper scrutiny to implementation measures. We consider that the wide-ranging effects of Schedule 15 should not be taken forward until the mechanisms for mutual recognition are included. There is no benefit in imposing a mandatory obligation on the United Kingdom criminal courts and on practitioners to take into consideration convictions from other member states when the implementing system by which to do so has not been provided. We therefore oppose the schedule in its entirety and propose that it should be redrafted so as to give a prominent position to this important change to criminal procedure and to the mechanism through which the principle of mutual recognition can be achieved in practice. As a minimum, an assurance from the Minister that these provisions will not be brought into force until the mechanisms contained in the second framework decision are fully transposed must be forthcoming. It would be a piecemeal approach, but it would allow scrutiny through Parliament of those mechanisms before the courts are obliged to grapple with these provisions. I hope noble Lords will forgive me for a long exposition of my opposition to the clause and the schedule in question. I have done my best to explain what this is all about. Grouped with the Clause 128 stand part debate is my Amendment 191AAA. It seeks to insert a new sub-paragraph into Schedule 15(1) stating: ""This section does not apply if the defendant can show that his or her conviction imposed outside England and Wales resulted from a trial that would have, if the trial had taken place in England and Wales, breached Article 6 of the Convention rights within the meaning of the Human Rights Act 1998"." The amendment looks at whether we should take into account in the courts of this country a trial, or the result of a trial, in a foreign jurisdiction which may have been unfair not only by our own standards, but by those of the European convention. It suggests that it would be possible for a person to challenge the conviction in a foreign country if he can show that it was in breach of Article 6. Clause 128 and Schedule 15 amend various Acts. The amendments would ensure that such convictions can be taken into account as evidence of the bad character of the defendant, to impose a presumption against bail, to consider whether a person should be tried summarily on indictment, and in sentencing. But we are concerned about treating convictions obtained in other countries the same as those imposed in United Kingdom courts. The government amendments presume that all European countries have fair and equal trials so that a conviction imposed by a court in an EU member state will have been imposed after a fair trial. But the presumption is seriously open to question, as the number of cases before the European Court of Human Rights for breaches of Article 6 covering the right to a fair trial demonstrate. Serious injustices often occur in the trial process of many European countries. Not only that, we are not necessarily confident about the fairness of trials in all 27 countries. United Kingdom courts should not automatically be required to assume that a conviction imposed in another country is the same as one imposed in a UK court. Not only is the requirement for convictions imposed by an EU country of concern, but hidden away in the detail of Schedule 15 are amendments that relate to convictions imposed in any country, not just those of the EU, but those imposed by any other country. Paragraph 1 of Schedule 15 allows for a conviction in any country to be considered when ascertaining whether a defendant has a propensity to commit the offence with which he or she is now charged. Additionally, paragraph 6(3) provides that a previous conviction by a court either in or outside a member state can be treated by the court as an aggravating factor. The policy of this Government has been to introduce evidence of bad character into criminal trials. That is completely contrary to the common law where people are tried on the evidence of the offence in front of them. Provisions have now been introduced, most specifically by the Criminal Justice Act 2003, to alter that position. But by these provisions a conviction in any country, even one with the most shocking human rights record, can be used as an aggravating factor or as demonstrating a propensity on the part of the defendant facing trial in this country to commit that particular offence. So it is critical, when it comes to evidence of bad character, that the prosecution should not be allowed to grasp a conviction from any country, regardless of its human rights record and trial processes, and use it. There are many countries in which a fair trial cannot be guaranteed and convictions imposed in such countries should not be automatically applied in United Kingdom courts as evidence of bad character or as an aggravating circumstance. We are also concerned about the proposed amendment to paragraph 3 of Schedule 15 that on the basis of such a conviction there will be a presumption against bail, a presumption that seriously affects a person’s right to liberty. In addition, paragraph 10 raises similar concerns as a presumption against imposing a custodial sentence or service detention under the Armed Forces Act 2006 if a person has been convicted in any member state. I appreciate that people travel much more than they used to and that convictions in other states may have an important impact on what happens in this country. But buried in this enormous Bill and the diverse subjects it covers is an important breach of principle that these convictions, imposed in any country and certainly in any EU country, can be used to affect the liberty of UK citizens who are fighting a prosecution in our own courts. I apologise for the length of my exposition. I beg to move.