Committee
Criminal Justice Committee 08 March 2023
08 Mar 2023 · S6 · Criminal Justice Committee
Item of business
Subordinate Legislation
Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023 [Draft]
Thank you for the invitation to give evidence on the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023. I will make a brief statement about the order and the issue of mutual legal assistance. The order mirrors the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022, which, in this area of law, allows collaboration across the United Kingdom jurisdictions to support cross-border operations and co-operation. In an increasingly interconnected world, where crime operates without borders, it has never been more important to ensure robust international co-operation to promote justice and to help maintain public safety. The order will enhance our international judicial co-operation framework specifically in relation to mutual legal assistance. Before I explain its contents, it might be helpful for me to outline the context in which the order has been made. Mutual legal assistance is the formal name for how states request and obtain assistance in other jurisdictions to investigate or prosecute criminal offences. The UK as a whole is a party to the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, which form an essential part of our fight against crime and our co-operation with other contracting parties in relation to criminal proceedings. MLA, as it is known, is an important tool in domestic criminal proceedings and against transnational and international crime. The second additional protocol to the 1959 convention broadens the scope of available mutual legal assistance among contracting parties and includes specific provisions on requests for hearings by video or telephone conference, joint investigation teams and the temporary transfer of prisoners. As the member of the Council of Europe, the UK ratified that additional protocol in 2010. In our domestic framework, mutual legal assistance is governed by the Crime (International Co-operation) Act 2003, which states that, for us to request and facilitate certain types of mutual legal assistance, the country must be designated as a “participating country”, as defined by section 51(2). The purpose of the draft order is to designate as participating countries Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland, Turkey, Armenia, Chile and Ukraine. All those countries have ratified the second additional protocol to the 1959 convention, and their designation will allow us to co-operate with them in relation to specific types of mutual legal assistance. I should say that the order only establishes the ability to provide certain types of assistance to or seek them from the referenced countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from a designated participating country are reviewed by the Crown Office in line with existing practices, including a human rights assessment provided by the Foreign, Commonwealth and Development Office. I will now detail the specific effect of the provisions for which those countries are to be designated. First, designation for the purposes of section 31 and paragraph 15 of schedule 2 to the 2003 act enables us to assist in requests for a person within Scotland to give evidence by telephone in criminal proceedings before a court in a participating country, in circumstances where that witness gives their consent. Designation for the purposes of sections 37 and 40 of the 2003 act enables the Crown Office, on request from a participating country, to obtain customer and account information to assist an investigation in the participating country. Designation for the purposes of sections 43 and 44 is a reciprocal provision that enables Scottish authorities to make requests for similar information to a participating country. Additionally, designation under section 45 provides that requests for assistance under sections 43 and 44 must be sent to the Lord Advocate for transmission, unless the request is urgent. Finally, sections 47 and 48 make reciprocal provisions for the temporary transfer of prisoners to or from a participating country to assist with an investigation, provided that the prisoner has given their assent to the transfer. The draft order will help strengthen our own ability to investigate and prosecute criminality at home and abroad, as mutual legal assistance is a key tool in combating cross-border crime and ensuring justice for Scottish victims of crime. It is important that Scotland, as a good global citizen, plays its part in facilitating international justice co-operation to combat criminality. Being a good global citizen also entails standing with our friends to defend the rules-based order. In that vein, I emphasise that the draft order deliberately does not designate Russia. Following the invasion of Ukraine, the Council of Europe expelled Russia, a decision unprecedented in the council’s 73-year history. Although Russia ratified the second additional protocol in 2019, the Russian President, Vladimir Putin, announced on 18 January that he had begun the legislative process of terminating Russia’s participation in 21 international agreements associated with the Council of Europe, with retrospective effect from 16 March 2022, the date of Russia’s formal exclusion from membership of the council. We understand that, as yet, nothing has been lodged formally and my officials are awaiting formal confirmation, but Russia’s unprovoked, premeditated and barbaric attack against Ukraine, a sovereign democratic state, removes any basis for the mutual trust and respect for international law that are essential for international judicial co-operation. We are therefore not seeking to designate Russia at present. We remain committed to improving the provision of mutual legal assistance across borders, and the order will enhance the level of co-operation that we can offer to—and seek from—other countries. I hope that these remarks will be helpful to the committee and I am happy to try to answer any questions.
In the same item of business
The Convener
SNP
Our next item is consideration of evidence on an affirmative instrument, and I welcome to the meeting Keith Brown, Cabinet Secretary for Justice and Veterans...
The Cabinet Secretary for Justice and Veterans (Keith Brown)
SNP
Thank you for the invitation to give evidence on the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Or...
The Convener
SNP
Thank you very much indeed, cabinet secretary. We will move to questions from members.
Pauline McNeill (Glasgow) (Lab)
Lab
Good morning, cabinet secretary, and thank you for the summary of the instrument in front of us. I do not have any particular issues with supporting it and I...
Keith Brown
SNP
I will ask officials to come in, but I am not aware of any area of crime that is not covered by the order. You, too, have highlighted the issue of customer a...
Pauline McNeill
Lab
Theoretically, then, it could cover, say, shoplifting.
Keith Brown
SNP
We cannot tell other countries what crimes they might want to come to us about and ask for the help of the Lord Advocate and witnesses on. In that case, the ...
Jamie Greene (West Scotland) (Con)
Con
Good morning, cabinet secretary. I have some questions about sections 47 and 48 of the 2003 act, which I believe the instrument amends or relates to. The po...
Keith Brown
SNP
I will respond first, and then officials will give you the correct answer. The purpose of the order is to designate the additional countries that I have men...
Vivienne McColl (Scottish Government)
I think that what you are referring to, Mr Greene, is perhaps more to do with extradition. That is separate from mutual legal assistance, which involves look...
Jamie Greene
Con
The reason that I asked the question is that the policy note states specifically that the provision will “facilitate the transfer of prisoners”— not necess...
Vivienne McColl
Just to give evidence. It is a temporary removal.
Jamie Greene
Con
I see.
Keith Brown
SNP
And the prisoner would have to consent to it, too.
Jamie Greene
Con
So, it is nothing to do with extradition. That is fine. In that scenario, then, would there be a request by ministers to the Lord Advocate or would it be the...
Vivienne McColl
It is a two-way process.
Jamie Greene
Con
So, who would give the authorisation?
Vivienne McColl
That would be the Crown.
Jamie Greene
Con
It would be the Crown, not ministers. Okay—thank you.
Russell Findlay (West Scotland) (Con)
Con
The policy note says that an instrument in similar terms has been made for the rest of the United Kingdom. What are the differences between that instrument a...
Keith Brown
SNP
The list of countries is exactly the same. Russia has been precluded by the UK Government, too. The issue is simply that we have a different jurisdiction. I ...
Russell Findlay
Con
My next question is simply on something that I am curious about. The policy note says that section 31 of the 2003 act “will allow persons in the UK to give ...
Keith Brown
SNP
That is what is specified in the order. Of course, it is quite possible for evidence to be given in other ways—via videoconference and so on—but the order sp...
The Convener
SNP
As there are no further questions, I invite the cabinet secretary to move motion S6M-07936. Motion moved, That the Criminal Justice Committee recommends th...
The Convener
SNP
I thank the cabinet secretary and his officials for their time this morning. We will have a brief suspension to allow them to leave. 10:03 Meeting suspended...