20th Report, 2009 (Session 3)

Draft Crime (International Co-operation)
Act 2003 (Designation of Participating Countries)
(Scotland) (No.3) Order 2009

Remit and membership

Remit:

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Bill Aitken (Convener)
Robert Brown
Bill Butler (Deputy Convener)
Angela Constance
Cathie Craigie
Nigel Don
James Kelly
Stewart Maxwell

Committee Clerking Team:

Andrew Mylne
Anne Peat
Andrew Proudfoot
Christine Lambourne

Draft Crime (International Co-operation)
Act 2003 (Designation of Participating Countries)
(Scotland) (No.3) Order 2009

The Committee reports to the Parliament as follows—

Background

1. The Crime (International Co-operation) Act 2003 (c.32) allows the UK to seek and provide various types of mutual assistance to other “participating countries” in relation to the investigation and prosecution of crime. Section 51(2) of the Act provides for all EU member states to be participating countries automatically, while other countries may be designated as such by an order made by the Secretary of State or, in relation to Scotland, by Scottish Ministers.

2. The member states of the Council of Europe agreed in 1959 a European Convention on Mutual Assistance in Criminal Matters¹. A Second Additional Protocol to this Convention was agreed in 2001², which will enter into force in respect of the UK three months after the UK deposits an instrument of ratification.

3. The present draft Order has been prepared in order to fulfil, in relation to Scotland, the UK’s commitment to ratifying the Second Additional Protocol. An equivalent draft Order in respect of England, Wales and Northern Ireland has been prepared by the Home Office and laid before the UK Parliament.³

4. Article 2 of the draft Order designates Albania, Bosnia and Herzegovina, Croatia, Israel, Montenegro, Serbia, Switzerland and the former Yugoslav Republic of Macedonia in relation to sections 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the 2003 Act. These provisions concern powers:

• for the Lord Advocate to facilitate a witness in the UK giving evidence in overseas proceedings by telephone;
• for the Scottish Ministers to facilitate the transfer of a UK prisoner to a participating country to assist in an investigation; and
• for the Scottish Ministers to enable an overseas prisoner to be transferred to the UK in order to assist with an investigation in this country.

5. Article 3 of the draft Order designates all of the above countries – other than Switzerland, which has already been so designated by a previous Order – in relation to section 6 of the 2003 Act. That section limits the circumstances in which the Lord Advocate can arrange for criminal process to be served on a person in a participating country otherwise than by post.

The Committee’s consideration

6. The draft Order was laid on 27 October 2009 and referred to the Justice Committee as lead committee. The Subordinate Legislation Committee considered the instrument on 3 November, but had no points to raise (44th Report, 2009).

7. The Committee first considered the draft Order at its meeting on 17 November. The agenda provided for oral evidence from the Cabinet Secretary for Justice and officials, followed by an opportunity for the Cabinet Secretary to move a motion recommending approval of the instrument.

8. During oral evidence, the Cabinet Secretary was asked whether the new power that Scottish Ministers would gain to facilitate the transfer of UK prisoners to newly-designated participating countries, under section 47 of the 2003 Act, would be discretionary. The Cabinet Secretary said that it was not discretionary, but it became clear after further questioning that Committee members were not satisfied that the explanation given by Mr MacAskill and his officials had clarified matters sufficiently. Accordingly, the Committee agreed to continue consideration to its next meeting, so that an explanatory note by the Scottish Government could be provided in the interim.⁴

9. At the Committee’s meeting on 24 November, the Committee considered a note by the Scottish Government which explained that the section 47 (and indeed section 48) power was in fact discretionary in that, even if all the necessary preconditions for authorising transfer were met (including the consent of the prisoner), Scottish Ministers were entitled to decide whether or not to authorise the transfer on a case-by-case basis.

10. After further questioning, the Cabinet Secretary moved motion S3M-5126—

That the Justice Committee recommends that the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) (No.3) Order 2009 be approved.

11. The motion was agreed to.

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