Criminal Justice Committee

Meeting date: Wednesday, March 8, 2023

Official Report 718KB pdf

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Subordinate Legislation

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Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023 [Draft]

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. I also welcome Vivienne McColl, policy manager, international justice co-operation unit and—joining us remotely—Ruth Swanson, legal directorate, Scottish Government.

I refer members to paper 1 and invite the cabinet secretary to make a statement.

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.

Thank you very much indeed, cabinet secretary. We will move to questions from members.

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 welcome what you have said about the UK and Scotland not recognising Russia in the provisions for assistance.

From the paperwork, I am trying to ascertain what level of crime the order would cover. Would it cover all crime? From what you are saying about the Lord Advocate being involved in certain proceedings, I assume that we are talking about more serious crime. Given the provisions in relation to bank account information, is this all about dealing with serious and organised crime? I just want to understand the parameters of the powers given under the instrument.

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 accounts and information—and rightly so—which is obviously to do with the financial aspects of a potential crime. However, that sort of thing will rely on the witnesses’ co-operation. As I have said, though, I am not aware that the order precludes any crimes being looked at—and I see that Vivienne McColl has confirmed that.

Theoretically, then, it could cover, say, shoplifting.

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 answer is yes—any level of crime is possible.

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 policy note states:

“Scottish Ministers will be able to facilitate the transfer of prisoners to and from these countries for assisting with the investigation of offences.”

That seems like quite a benign statement. First, does that agreement already exist and, if so, are you simply adding those countries to it?

Secondly, if such an agreement does not currently exist for those countries but will do after this change, I have some questions about what that will mean. At the moment, we are hosting a large number of Ukrainian refugees who have fled the war in their home country, and there have been media reports of some of them already looking to instigate proceedings with regard to crimes of war, against either Russia as a state or individuals. If any of those complainants were to make a complaint in Scotland, would this provision be required, for example, to move prisoners from Ukraine to Scotland for trial—or, indeed, vice versa, if someone had come here as a refugee but was found to be needed back home for an investigation? Would there be that kind of two-way conversation? Would it also include people held as prisoners of war? As a specific example, I am thinking about a Russian soldier in Ukraine who has been accused of a crime by someone currently in Scotland. Would this provision enable or facilitate their removal to Scotland? How would that happen?

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 mentioned. It is possible just now for us to ask each of those countries—or, indeed, any country—for that assistance, or for another country to ask us, without their being designated countries. We can co-operate on that basis already, but the order gives added weight to that, because all the countries that we have mentioned are now part of the rules-based international order. They are now involved in the protocols that we have, and the order gives more force to that.

I have not been involved in such cases—which, obviously, would go to the Lord Advocate—but, in effect, there would have to be quite good reasons for countries not to co-operate. I suppose that, without being added to the list of designated countries with reciprocal arrangements, a country could more easily dismiss such a request and not go along with that co-operation. Therefore, the order gives added weight to the protocols. Moreover, having just told Pauline McNeill that any level of crime might be covered, I should say that I think that there would have to be a different process in relation to international war crimes.

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As for Ukrainian people who live here going back to Ukraine or Ukrainians coming here, we must bear in mind that, under the order, the arrangement between countries must be consensual. I am not aware of whether the domestic law in Ukraine is operating as normal—for obvious reasons—and I think that, in relation to war crimes, there would be a different process, which would be started internationally. That is my understanding, but officials might want to add to that.

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 looking for evidence, rather than people.

The reason that I asked the question is that the policy note states specifically that the provision will

“facilitate the transfer of prisoners”—

not necessarily evidence—

“to and from these countries”.

Section 31 of the 2003 act talks about evidence being given digitally or via video or telephone, which might make it easier for someone to participate in legal proceedings in another country—I understand that—but then the policy note goes on to talk about the removal of people.

Just to give evidence. It is a temporary removal.

I see.

And the prisoner would have to consent to it, too.

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 other way around?

It is a two-way process.

So, who would give the authorisation?

That would be the Crown.

It would be the Crown, not ministers. Okay—thank you.

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 and this one? Are there any?

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 am aware of no tangible differences between our instrument and the one for the rest of the UK.

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 evidence via telephone to a court in any of these countries.”

Would that sort of thing still be done by telephone?

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 specifies that evidence would be given by telephone, so that is where it will have an effect.

As there are no further questions, I invite the cabinet secretary to move motion S6M-07936.

Motion moved,

That the Criminal Justice Committee recommends that the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2023 [draft] be approved.—[Keith Brown]

Motion agreed to.

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.  

10:03 On resuming—  

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Sexual Offences Act 2003 (Prescribed Police Stations) (Scotland) Amendment Regulations 2023 (SSI 2023/39)

Our next item is the consideration of a negative instrument. I refer members to paper 2.

If members have no questions, are we content not to make any recommendations to Parliament on the instrument?

Members indicated agreement.

We will have a brief suspension to allow the room to be set up for our next agenda item.

10:04 Meeting suspended.  

10:06 On resuming—