Obnoxio assesses the impact of The EU Council Decision of 20 January 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2008/…/JHA*
* I hope this isn't a spoof or something.
Monday, 26 January 2009
What can possibly go wrong? (2)
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39 comments:
Insult or resistance to a representative of public authority
What, like this ~ Miliband is a piece of shit ~ that sort of thing?
P.S. Have you given up accountancy and gone into the illegal Viagra business, or something? Your comments keep getting stick in my Askimet spam queue!
Ahem.
"What, like this ~ Miliband is a piece of shit ~ that sort of thing?"
No, in this country that category would cover resisting arrest and possibly contempt of court.
Mark,
Original origin of the link is Statewatch - see my blog, or that of Dick Puddlecote.
...both of whom have completely misinterpreted what the legislation says. It's proposing an indexing system so that if you're arrested in France for rape/treason/speeding/denying the Holocaust/washing, the police can check whether you've got a conviction stored on the existing UK criminal records database for anything similar. That's all.
Can't they just phone the U.K. and ask?
John B.
No I haven't 'mis-interpreted' what the legislation says, just extrapolated it. With the EU, one thing leads to another and it has happened time and time again!
In any case, when has anyone given permission for their personal details to be shared?
@AC1: that's what they do now. The plan here is to create a system in which it can be done systematically, and in which requests can be tracked.
@WfW: you clearly have misunderstood what's going on, as shown by your second paragraph: the only 'personal details' being shared are the criminal records of criminals. AIUI even fairly extreme libertarians don't believe that sharing criminal records should be 'opt-in' on the criminal's part...
JB, you have to correlate this with the 'European arrest warrant' and the EU's anti-money laundering legislation.
Under the latter, it is a crime not to report a crime against the laws of the other state, even if that is not a crime in your home country. Under the former, you can be extradited to another EU country for breaching a foreign law (see Trevor Irving, idiot that he may be, and Holocaust denial) that does not exist in the country where the perp happens to be.
So it is only a matter of time before e.g. Spain has to record cases where somebody has sex with a girl aged 13 or above - it's not a crime in Spain but would be a crime in the UK or elsewhere. Or Germany has to record names of people who drive faster than 70 mph on the motorway in case they want to come to the UK, and so on.
As with all these things, the hard-core criminals (like the 15 year old Italian who murdered a head teacher but who couldn't be deported because of his Human Rights) who will end up stuck here and the minor offenders like the litter droppers, the Holocaust deniers will get into all sorts of trouble.
That's the key to authoritarianism - let off a gang of Somalis who rape a girl and pour acid over her with mild sentences of a few years inside without deporting them, but hound others to death, prevent them from ever getting a job again and so on.
The criminal records of criminals, eh? Such as..... Insult or resistance to a representative of public authority?
Statute, please.
"Under the latter, it is a crime not to report a crime against the laws of the other state, even if that is not a crime in your home country."
When I worked for a Big 4 firm I had very detailed, mind-numbing training into the vagaries of AML legislation, and this simply isn't the case. You have to report anything which is a crime *in the country where your official duty arises* (so the UK in my case, because it was a UK partnership - would have been Germany if I'd been employed by the German partnership), whether or not it is a crime in the country where it took place. The issue of whether it is a crime anywhere else in the EU does not arise.
"Under the former, you can be extradited to another EU country for breaching a foreign law (see Trevor Irving, idiot that he may be, and Holocaust denial) that does not exist in the country where the perp happens to be"
But it has to be a crime under the jurisdiction of the place in question: I can't be deported to Germany for denying the holocaust at a rally in the UK. I still disagree with the EAW, but it doesn't have anything like the reach you're suggesting.
"like the 15 year old Italian who murdered a head teacher but who couldn't be deported because of his Human Rights"
Born in Somalia, raised in the UK, didn't speak Italian or Somali or know anyone in Italy or Somalia. And the EU had no bearing on the decision whether or not to deport (it was made based on the ECHR, which was written by British lawyers at the end of WWII in the hope of spreading civilised values to the continent as a codification of the rights we have under common law) - it's another example of people blaming the EU for Stuff They Don't Like, rather than Stuff It Did.
"Let off a gang of Somalis who rape a girl and pour acid over her with mild sentences of a few years inside without deporting them"
a) they were British, so deporting them would've been a bit tricky; b) they were minors, so nine years is hardly a short time.
"The criminal records of criminals, eh? Such as..... Insult or resistance to a representative of public authority?'
That's a *category*, not an offence.
In the UK, criminal offences fitting that category would include resisting arrest, and possibly contempt of court - so if the German police sent a request to the UK asking whether Joe Bloggs, who they've just arrested for assaulting a policeman, has ever done that sort of thing, then it would reveal his prior criminal record for resisting arrest.
If, in Greece, 'cursing a dustman's mother' is a criminal offence, and Stavros Papodopoulous is arrested by the German police alongside Joe Bloggs, and he has a conviction at home for cursing a dustman's mother, this would also show up.
But since cursing a dustman's mother isn't an offence in the UK, whether or not Joe Bloggs has done this is a matter of complete irrelevance.
See, this is something I don't get. You're arrested for... ermmm, say breaking a shop window. What the hell does it matter if you've done the same or similar in another country?
Either the deed is done or it is not. If there's evidence that supports a charge then that's all that counts. Whether you have been flagged up for fly tipping 500 miles away shouldn't have any baring on the matter.
I fear there's more to this than meets the eye.
John B, I have to go on these mind numbing anti-money laundering updates every year - take it from me it gets a bit stricter every year, and in the meantime it is a crime not to report a crime etc, just as I described.
Yes, ECHR is quite different to EU. But the ECHR never caused any bother, it's the Human Rights Act 1998 that did all the damage. And that is a Nulab/EU thing.
"You're arrested for... ermmm, say breaking a shop window. What the hell does it matter if you've done the same or similar in another country?"
It matters exactly as much as whether you've done the same or similar in the same country. Are you suggesting we should stop the (UK) police from accessing the (UK) criminal records database?
"I have to go on these mind numbing anti-money laundering updates every year"
My last one was summer 2008. Have they changed the law since then? Would appreciate a cite if so.
Oh, and "the ECHR never caused any bother, it's the Human Rights Act 1998 that did all the damage. And that is a Nulab/EU thing."
HRA 1998 codifies the ECHR into English and Scottish law. It has nothing to do with the EU, and the only difference between the pre- and post-HRA 1998 situation is that lower courts can incorporate the ECHR into their decisions (whereas previously it could only be taken into account after the decision had been appealed all the way through the UK court system). If the ECHR is right, then HRA 1998 is right; to oppose HRA 1998 *means* opposing the ECHR.
John B,
If I am arrested in France for speeding, what relevance does it have in France if I have committed that offense in England? The original speeding offense was not committed in France and if this is my first speeding offense in France, then in France I had a 'clean sheet', up to that point.
The Decision does not state what information is to be exchanged - it just states information. The Lisbon Treaty gives the EU the power to decide what constitutes a crime and to set minimum and maximum sentences. Why should I be liable for a penalty for a crime, neither of which I have had the chance to decide on with a vote, whether the offense be committed in the UK or France?
"If I am arrested in France for speeding, what relevance does it have in France if I have committed that offense in England? The original speeding offense was not committed in France and if this is my first speeding offense in France, then in France I had a 'clean sheet', up to that point."
Two separate points here:
1) the French could, if they so chose, change French law so that offences committed abroad counted as points against you on your French driving license. This has nothing to do with the EU, it's just a decision the French could make if they so chose.
2) since this isn't currently the case in French law, then that particular example (where the crime is pretty much proved) is indeed largely irrelevant.
However, if you were arrested in France after a drunken fight with a German, there was a dispute over who started it, but ECRIS checks showed that you had no record for violent offences and the German had 15 previous convictions, then the benefits of the system would - I hope - be fairly obvious.
"The Lisbon Treaty gives the EU the power to decide what constitutes a crime and to set minimum and maximum sentences."
No it doesn't.
@ John B, as I said: "Under the [EU anti-money laundering laws], it is a crime not to report a crime against the laws of the other state, even if that is not a crime in your home country."
How about this for a source: The CCAB guidance of December 2007, at para 2.4 (my emphasis)
"2.4 None of these offences are committed if:
...
if the conduct giving rise to the criminal property was reasonably believed to have taken place outside of the UK, and the conduct was in fact lawful under the criminal law of the place where it occurred, and the maximum sentence if the conduct had occurred in the UK would have been less than 12 months ..."
Nowhere in that exemption does it say "Or would not have been a crime had it been committed in the UK"
It would appear that you were paying even less attention than I was.
John B,
I have no intention in entering into a yes it is, no it isn't argument - go read the EU Constitution and the Lisbon Treaty - also read Open Europe's comparison, on their website under research. The EU does have the means under Lisbon to set min and max sentences and also what constitutes a crime.
Also I don't wish to hope the practice of justice will work - I want to know it will work.
Mark, you've missed 6.15, which is the crucial one (my boldening):
"Criminal conduct is that which constitutes an offence in any part of the UK or would do if it was committed in the UK. However, businesses and individuals should note that under the provisions of the overseas conduct exception (s330(7)(A) POCA) there are limited
exceptions to the requirement to report conduct occurring overseas – see sections 2.4 and 2.5."
W4W: I have read Lisbon, although I'll recheck since I sure as hell don't remember anything about minimum sentences.
...so on AML:
1)if you report everything and only that which is a crime in the UK, then you're safe
2) knowledge of whether something is a crime abroad is only relevant if you fail to report something that's a crime in the UK (*and* the maximum sentence in the UK for said crime would be under 12 months)
3) whether or not the foreign country where the crime/not-crime took place is in the EU is of no relevance at all.
John B, I cannot track down s330(7)(A) POCA 2002 (as amended) online, but there is a clear contradiction between para 2.4 and para 6.15.
You quote this from para 6.15: "businesses and individuals should note that under the provisions of the overseas conduct exception (s330(7)(A) POCA) there are limited exceptions to the requirement to report conduct occurring overseas – see sections 2.4 and 2.5."
From the context (and having flipped back and forth between 2.4 and 6.15), I accept the received wisdom that this means: "there are ONLY limited exceptions to the requirement to report conduct occurring overseas"
You seem to think that this means: "there are FURTHER limited exceptions to the requirement to report conduct occurring overseas".
If you are right, then why the word 'limited'?
As to your point 3) what does that have to do with anything? Just because other countries have stupid laws doesn't exonerate the EU, does it?
(scratching my head here)
I'm quite certain I was born, educated and currently live in the UK. So when did I suddenly become an EU citizen, subject to their laws?
I fail completely to grasp why the German police should have a copy of my entry on Santa's Naughty List unless I've committed a crime within their borders. Its absurd; it makes as much sense as some New Zealand police computer recording my lifetime tally of speeding tickets in Preston (one if you must know).
Fine, if I or you were to commit a serious crime then by all means use the existing Interpol or inter-police avenues to check for 'previous' in another relevant state. But for crying out loud, don't just hand over a bloody big list of our sins to Johnny Foreigner.
I'm entirely confused both by what you think I'm saying, and by why you think there's a contradiction.
6.15 says
* you have to report anything that's a crime in the UK
* if it isn't a crime in the UK, you don't have to report it
* there are a few limited exceptions listed in 2.4 and 2.5 where even if it is a crime in the UK you may not have to report it
2.4 says that if you fail to report something that is a crime in the UK, then there are a few limited exceptions where this is allowed and then lists them.
2.5 reminds you that these are indeed few.
This is pretty simple, comprehensible and consistent - and all of it confirms my original contention, as confirmed to me by the legal and RM departments of a Big 4 accounting firm, that the only law you need to know for making AML declarations in the UK is UK law - local law is *only* relevant for possible exemption if you fail to declare something that's illegal under UK law.
And hence that your statement "it is a crime not to report a crime against the laws of the other state, even if that is not a crime in your home country" is the complete opposite of the truth: actually, it is a crime not to report a crime against the laws of your home country, even if that is not a crime in the other state (except for the exceptions in 2.4), but this absolutely doesn't work the other way round.
"I fail completely to grasp why the German police should have a copy of my entry on Santa's Naughty List unless I've committed a crime within their border"
And that's precisely the proposal. German police will be able to access the UK police's records if you're busted in Germany. They won't have their own copy of the records.
John B.
On the first three cases we are agreed:
IF it's neither a crime here nor a crime there, there is no obligation to report (obviously)
IF it's a crime here and a crime there, you have to report (obviously)
IF it's a crime here and a not a crime there, there are limited exceptions (that much is clear)
Where we differ is:
IF it's not a crime here but IT IS a crime overseas.
You think that 2.4 means "there are FURTHER limited exceptions", which would exclude the obligation to report stuff that's a crime here (or one punishable with less than 12 months in prison) but not a crime over there...
... whereas I and everybody else assume (rightly or wrongly) that this means "there are ONLY limited exceptions" which would give a reporting obligation to everything that would either be a crime here or would be a crime over there.
2.4 says "and" and "and". To get off the hook you have to satisfy each hurdle. So if you can't show that it was legal overseas (and you knew that it was legal) you are fucked.
I'll check at work.
What you're missing is that 2.4 refers solely to "the conduct giving rise to the criminal property". And according to POCA 2002 (s340):
(2) Criminal conduct is conduct which—
(a) constitutes an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part of the United Kingdom if it occurred there.
(3) Property is criminal property if—
(a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.
I'm quite happy to stake my liberty on those definitions not encompassing acts that are illegal abroad but legal in the UK; and at least one of the UK's largest accounting firms (and also one of its leading law firms, I've just checked with my sister) is happy to stake its continued existence on the same view. I don't know who 'everybody else' is in this context, but they're fairly obviously wrong.
Oh, meant to add: POCA 2002 didn't have the exemptions that now apply as mentioned in 2.4 of the accountants' guidance - it mandated the reporting of everything that was illegal in the UK, no matter how trivial (so technically, a company that paid its Chinese workers less than the UK minimum wage could have been covered).
The exemptions were introduced as amendments to POCA 2002 in SOCPA 2005 (section 102) - and they consist solely of the insertion of additional defences.
If your firm is telling you otherwise, then its RM procedures are flawed. They're flawed in the right way here (in that you need to be more onerous than the law applies), but I'd be deeply nervous about taking advice on other matters from people who'd got this one so badly wrong.
(balls, just realised my first para above is ambiguous. shld be "a company that paid its Chinese workers *in China* less than the UK minimum wage")
John B - Thank you for speaking sense here. This is simply an information sharing protocol, nothing more. It may suit others though to misinterpret it, that is their choice.
economicvoicedotcom
The discussion between MW and JB is fascinating and from it I infer that the law is so complicated and opaque that ordinary intelligent citizens can't gain any understanding (by themselves - or with the aid of experts apparently) of what the law is. This is contrary to my (possibly naive) understanding of the rule of law. Furthermore, JB (and Anonymous 10:39) can plead that this is just an innocent - even enlightened - information swapping measure but if I were making an authoritarian salami sandwich this is exactly where I would start.
To reinforce what Umbongo intimates with his last point - see the following link http://www.europarl.europa.eu/meetdocs/2004_2009/documents/ad/730/730865/730865en.pdf
which speaks of 'aiming towards a future European criminal law'. Are we in the uk no longer have the ability to decide by democratic vote the laws under which we choose to live?
"The discussion between MW and JB is fascinating and from it I infer that the law is so complicated and opaque that ordinary intelligent citizens can't gain any understanding (by themselves - or with the aid of experts apparently) of what the law is"
Luckily, the law we're discussing only applies to accountants, lawyers and similar non-ordinary persons, acting in their professional capacity - so ordinary citizens don't really need to know what it says.
(also, the actual *laws* - POCA and SOCPA - are pretty clear. The CCAB guidance isn't, but that's what happens when you get accountants to write stuff. Best they stick to the numbers...)
John B "... ordinary citizens don't really need to know what [the law] says."
Now, where have I heard that before?
John B "... ordinary citizens don't really need to know what [the law] says."
Oh yes - we can rely on our rulers on this. After all, they've done so much to earn our trust, like never misapplying the law - unless Icelandic bankers actually are terrorists.
There's an enormous difference between those two cases: the text of CSA 2001 made no reference at all towards terrorists or terrorism, whereas the text of POCA 2002 clearly delineates the groups of specialists to which it applies in Schedule 9 Part 1.
(CSA 2001 was *not* misapplied in the Icelandic banks case: David Blunkett may have lied at the time it was passed, but the letter of the law - which is what matters in England unless the text is ambiguous, which it wasn't here - clearly applied exactly to the situation where it was used.)
JB
"the letter of the law . . clearly applied exactly to the situation where it was used."
AFAIAA this act was not passed to apply in the circumstances in which it was used although, as you correctly claim, the wording of the act encompassed the instant circumstances. That's alright then - stuff the intention of the law. In reality the powers granted to the Treasury under the A-TC&SA 2001 are so wide that as long as the alleged perpetrator (ie the one with the assets) is a foreign national it can do anything it likes. Of course there's a "reasonability test": the English courts might decide a few years down the line that this use of the Treasury's powers were unreasonable but that's not much help to the Icelanders so - tough!
S44 of the Terrorism Act 2000 is apparently applied in the whole of London and anybody can be stopped and searched without reasonable grounds. That's OK too I suppose, after all it's the "letter of the law". SOCPA makes all offences arrestable: so it's unreasonable use (try to prove that the "reasonability test" in the act has been applied and passed) is OK because the letter of the law says so.
The present government has a nasty habit of drawing up widely drawn, draconian legislation slightly ameliorated by what is, in effect, a spurious "reasonability test". If the authorities could always be relied upon to be "reasonable" such a test might be acceptable. Clearly in many circumstances the authorities are not minded to be reasonable, so the "letter of the law" does not help the law's victims.
I'd tend to agree with that in general, but the anti-money-laundering provisions in POCA and SOCPA are not examples of this being the case.
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