Scrutiny of EU Proposals.

I welcome the officials from the Department of Justice, Equality and Law Reform to discuss COM (2006) 690, a proposal for a Council framework decision on the organisation and content of the exchange of information extracted from criminal records between member states. I welcome Mr. Brian Lucas, principal officer, and Mr. Ben Ryan, assistant principal, and invite them to make a brief presentation.

Mr. Brian Lucas

This proposal arises from the need to improve the quality of information exchanged on criminal convictions, which has been prioritised by the European Council and reiterated in the Hague programme. This objective is reflected in the Commission and Council action plan to implement the programme.

The current system for exchange of information on convictions is that system set up through the 1959 European Convention on Mutual Assistance in Criminal Matters. In November 2005, the Council of the European Union adopted a decision on the exchange of information extracted from criminal records which is designed to improve the systems of the 1959 convention in the short term, mainly by speeding up transmission times.

The aim of the current proposal for a Council framework decision is to thoroughly reform the systems for the exchange of information extracted from criminal records with a view to ensuring that the member state of a person's nationality is able to respond fully to the requests made to it. The main provisions of the proposal are as follows. Each member state is to designate a central authority for transmission and storing of information on criminal convictions; each member state is to take the necessary measures to record the nationality of convicted persons; the central authority of a convicting member state is to inform, as soon as possible, the central authority of the member state of a person's nationality of details of the conviction; the central authority of the member state of the person's nationality is to record this transmitted information in its own criminal records; a central authority, or the individual concerned via its central authority, may request information on criminal convictions from another central authority, in particular from the central authority of the member state of the person's nationality. The response to such a request from a central authority will be made within ten working days and will, in the context of criminal proceedings, include information on national convictions, convictions in other member states and in third countries. Member states will implement systems for the electronic exchange of information on criminal convictions using a standardised format, within three years from the date of adoption of this format and the ways in which information on convictions may be exchanged electronically. A committee composed of representatives of the member states and chaired by a representative of the Commission, will be established to consider the format for facilitating electronic exchanges of information.

The main differences between the Council decision on the exchange of information extracted from the criminal record adopted in November 2005 and the current proposal for a Council framework decision are: the framework decision would replace Article 22 of the 1959 Convention on Mutual Assistance in Criminal Matters in relations between member states; the framework decision provides that any alteration or deletion of information in a convicting member state would entail identical alteration or deletion by the member state of the person's nationality regarding information obtained under Article 4; the framework decision lays down specific rules applying where the member state of the person's nationality forwards information transmitted to it by the convicting member state, making a distinction between requests involving criminal proceedings and other requests; the framework decision sets down a framework for a computerised conviction information exchange system between member states to be built and developed.

If adopted, the framework decision would repeal the Council decision of November 2005. The proposal for a Council framework decision was presented by the Commission to the Council and received by the Council on 22 December 2005. The text of the proposal was examined by the Council's working party on co-operation in criminal matters on 2 March 2006. No further meetings on the proposal have taken place within the Council to date.

The proposal, if adopted, could have major implications for Ireland. There will be an obligation to give effect to it in national law and this will probably entail the setting up and development of a centralised system for recording convictions, including details of nationality of convicted persons, handed down in the courts. A decision will have to be made on which body or bodies will be responsible for collecting, recording and exchanging this information and responding to specific requests for information. Ireland will also have to reconsider its reservation on Article 22 of the 1959 convention.

This is a brief summary of the proposal. I am happy to answer questions from the members of the committee.

I ask Mr. Lucas to explain the significance of Ireland's possible need to reconsider its reservation on Article 22 of the 1959 convention. This ties in with many other measures being dealt with. Problems have arisen in the Dáil with Bills such as the Europol Bill which was discussed with regard to the current national internal systems. I am not at all sure that our systems even give us the type of adequate information we need about all criminal convictions within the State. How will it be possible to pass this information to a European system when we are lacking the proper technology and expertise within the Garda Síochána? We lack the proper IT systems and language skills. There is a doubt whether these proposals will function properly within a national context, let alone within a European context. The ideas are sound and should be pursued but putting them into practical effect will be a long process.

I thank the witnesses for the briefing. I was listening to "Morning Ireland" which reported the plethora of speeding offences which are not high on the scale of criminal offences. However, even these offences had not been properly processed by the Garda. Our system must be brought into line with modern technology but I am not certain we have the capacity to do so.

We should be aware of what we can learn from the experience of other jurisdictions as opposed to what we can offer to those jurisdictions. For example, it would be important for us to know if a person convicted of a serious crime in another jurisdiction within Europe intended to come to this country. Even if this information is passed on to us, what happens to it at that point? We are inclined to compare ourselves to other states and wonder how we measure up. I would prefer us to wonder how we will measure up when we receive the information from other states and how we will deal with the situation and pass the information down the line within this jurisdiction. This is what people in Ireland would worry about. I see nothing wrong with this proposal but I worry that it has taken so long to get to this stage. I would like to know what are Ireland's reservations about Article 22. Is it the case that money is the only thing stopping us from doing this or is it a case of capacity? The money is a problem that can be solved but capacity is a different argument. What systems will be put in place within the country for disseminating information? What will be done when the information arrives? It is our duty to protect our citizens and what other states do to protect their citizens is their problem. I am thankful the horror stories only arise infrequently, but they arise.

I share the concerns expressed with regard to current data being retained. I was surprised recently when I made an inquiry of the Department about the current regime on sentencing for serious crimes. It seems the Department does not have any information on this matter. I would regard this information as being elementary for the Department to know when making decisions about bringing forward legislation in various areas. If this information is absent, then well informed decisions are not being made and this is not desirable. What specific details will be collated? I ask the delegation to list the type of details. I presume the nationality of a person will be one of the details as it is inherent in the framework decision. What is the current thinking within the Department as to which body or organisation would be the central authority? Is the Courts Service being considered or will it be the Garda Síochána that will supply the information? We should compile as much data as possible on criminal convictions and sentencing in a central body and this should be accessible for a range of purposes.

How far advanced are the Irish plans to establish this central authority, the databank and all the information necessary? Did Mr. Lucas attend the meeting in March 2006? Who attended it? What was the reaction of other states? Is priority being given to this matter? What is the timeframe for completion of negotiations? What are the legal or constitutional implications for data protection and privacy as a result of the proposal? What will be the cost to Ireland as a result? Will it be a significant cost?

Mr. Lucas stated that a central authority requests information on criminal convictions from another central authority. Deputy Lynch spoke about getting information about people moving here. On what basis can one central authority request information from another? Mr. Lucas stated that the response from a central authority would include "information on national convictions, convictions in other member states and third countries". How will that be ensured? How complete will such information be

Mr. Lucas

I will answer the question on the 1959 convention. It is a Council of Europe convention. While I will mention Article 22, I would also like to refer to Article 13, which is also relevant to this area. Article 13 states:

A requested Party shall communicate extracts from and information relating to judicial records, requested from it by the judicial authorities of a Contracting Party and needed in a criminal matter.

Article 22 states:

Each Contracting Party shall inform any other Party of all criminal convictions and subsequent measures in respect of nationals of the latter Party, entered in the judicial records ... at least once a year.

For example, Ireland would be required to inform any other party of all criminal convictions in respect of nationals of that party, including UK, Latvia, USA, etc. Article 22 is similar to Article 4 of the framework decision.

Regarding the Article 22 requirement to notify of criminal convictions or subsequent measures, Ireland's reservation is in so far as the organisation of its judicial records allows for so doing. Perhaps it would be useful to give some explanation of how the current system works. At present convictions are recorded in each individual court in respect of each individual conviction for a criminal offence. These records are not centralised within the Courts Service. However, if the Garda is represented in court when a decision to convict is handed down, it will record the conviction, which is then entered into the PULSE system.

If a sentence is passed on a person, the Garda provides details of previous criminal convictions. Records of criminal convictions held by the Garda are only an indication that there are such convictions. A conviction may only be proved by a certified copy of the court record. Within the Courts Service, results of District Court cases are entered into the criminal cases tracking system, which is a computer system. However, there is no computer system for the Circuit Court and the results of cases must be recorded manually. There is a pilot project in four District Courts, whereby District Court verification reports are provided for the Garda and the results are entered on the PULSE system from these reports.

A major project is in development called the criminal justice interoperability pilot project. The aim of this project is to allow the Garda to transfer all data needed for the District Court electronically to the District Court and to allow outcomes of cases to be transferred electronically from the District Court to the Garda. We are moving in the right direction. This system is at the development stage. To move from that type of system to participating in a European system is only the next step. At this stage I do not have the cost of such a system. The cost might not be that much greater than the computer systems we are already putting in place in our courts.

I will mention the current practice in the courts regarding taking into account previous convictions. I will then speak about taking into account foreign convictions, etc. Reference to a person's criminal record usually arises when the question of sentence is being determined following conviction. The person's previous criminal record is only one aspect of the information on character and circumstances which the court will consider before deciding on a sentence. Evidence of previous convictions is usually provided by the garda in the court. Foreign convictions can be brought to the attention of the court.

In practice, under the 1959 convention or under police co-operation, if the Garda wanted to find out about the conviction of a foreign national before the courts here, it could do so on a police-to-police basis. It could either request information, usually via Interpol, from the police in another member state or it could go through the Department as the central authority for mutual assistance and ask us to obtain the information, as has happened occasionally. It could be done through the 1959 convention via the Department as the central authority or on a police-to-police basis by the Garda.

There are a number of options as to what might be the central authority. It could be the Department, which is already the central authority for mutual assistance and extradition. A problem would be that we do not have the records, which are kept in the first place in the courts. The other two options would be the Garda, which has the records in the PULSE system, or the Courts Service.

On the negotiations held in March, Ireland was represented at the meeting by a representative of the Department's information technology area. At that meeting we entered a parliamentary scrutiny reservation on the text of the proposal. Many of the other delegations also entered reservations on the text, but most of them were quite favourably disposed to the proposal. Some had concerns about taking into account only final convictions imposed by a court. They did not favour the inclusion of convictions handed down by administrative authorities. A number of them referred to the link between the current proposal and another proposal under discussion regarding taking account of previous convictions in member states. Some countries had concerns about the transfer of information to third countries and about consulting the convicting member states in certain incidences.

On the data protection issues, I have sent copies of the text of this proposal to the Office of the Attorney General and the Office of the Data Protection Commissioner. I have asked those offices for their views on the constitutional, legal and data protection issues, but I have not yet received responses from them.

The timeframe for the completion is somewhat unclear. A meeting was held in March but no meetings have been held on this proposal since then. The actual timeframe for completion is unclear to me. It will depend on how fast the incoming presidency wants to move forward with this proposal.

The Chairman asked about information from third states. Under Article 7 of this proposal, the member state of which one is a national — Ireland, for example — will transmit a certain amount of information to the central authority of the requesting member state in cases of criminal proceedings. If we received a request from the UK authorities for information about criminal convictions, we would send them information on national convictions; that is, convictions handed down in the Irish courts. We would also pass on information about convictions handed down in courts in other member states. If we had received information from the French authorities that an Irish national had been convicted there, we would pass it on. We would also pass on information on convictions handed down in third countries and subsequently passed on to Ireland. If the United States, for example, passed on to us under the 1959 convention information about an Irish national who had been convicted in that jurisdiction, we would then be in a position to pass that information on to the UK authorities, if requested to do so. This proposal is still under discussion and it may change. There may be concerns about passing on third country information.

I think I have covered most of the questions I was asked. If I have missed anything, I will be quite happy to return to it.

People who come to Ireland from foreign countries may decide to change their names by deed poll for all sorts of reasons, such as convenience. Is there a system whereby fingerprints are included in the information that is passed on?

Mr. Lucas

Yes. An annex to the proposal, which sets out the type of information that should be supplied, makes it clear that fingerprints should be supplied if they are available. Information can be sorted by number in a national register, such as a social security number. Those organising such information will not just rely on names; they will also be able to use other information to help to identify people.

If a person who has a conviction in Latvia comes to Ireland, having changed his or her name in Ireland or somewhere else along the line, is there any way of transferring information on that person's convictions from Latvia to Ireland?

Mr. Lucas

If we knew the name the person was using in Ireland, because he or she had changed his or her name in Ireland, we could contact the Latvian authorities to say that a person who is now known as "Brian Lucas", for example, was previously known as "Ben Ryan", for example.

The Irish authorities would have to know that.

Presumably the person would have changed his or her name so that we would not find out what the other name was.

Mr. Lucas

Yes, but the police intelligence services are sometimes able to find out things like that. We can then contact the other authorities to check the details with them.

If there has not been a meeting on this matter since March — it is clear that not much progress has been made since — why is the matter before the joint committee now?

Mr. Lucas

I was invited to come to this meeting. I responded to the invitation I was given. I mentioned that there have not been any discussions on this proposal since March. That may have an advantage from the point of view of the Oireachtas and this committee. If the members of the committee would like me to feed any particular points into the discussions, I would be quite happy to consider doing so. It is not as if this proposal is just about to be adopted. If the committee would like me to take anything on board, I will be quite happy to do so.

At the meeting of 6 March last, the representatives suggested that there would be parliamentary scrutiny, or that it might be requested. This meeting is a follow-up to that proposal.

The Minister has indicated that a system might be put in place to expunge from the Irish records any relatively minor criminal offences that might have been committed by people at a young age. How do systems of that nature affect the exchange of information?

Mr. Lucas

It works quite well. It is dealt with in an article in the proposal that I mentioned in my presentation. I always find it difficult to locate the relevant articles when I am looking for them. Under this proposal, convicting member states will be obliged to send information on a person's convictions to the member state of the person's nationality. If the criminal record of a convicting member state is changed — there could be an alteration or a deletion, for example — the member state in question is obliged to pass on the amended information to the member state of the person's nationality, which in turn is obliged to change its record. This proposal will ensure that details of changes or alterations in the criminal records of member states will be passed on to other member states so they can change their records.

If the French authorities ask the Irish authorities for information about an Irish citizen who once committed a crime, all details of which have been deleted from our records, will the information transferred to the French authorities contain any indication that a crime was deleted from the record?

Mr. Lucas

Two points need to be made in that regard. There may be legal issues pertaining to the passing on of information that has been deleted from the criminal record. It is something that will have to be discussed by the European Council. The Deputy has made a good and interesting point. Should this proposal cover the deletion of a person's conviction from the criminal record in Ireland? My reading of the proposal, as it stands, is that it does not directly cover cases of that nature. It is a point that needs to be raised. It is possible that we need to cater for it in the proposal.

The intention of the Minister and the people who discussed the matter, including the Opposition parties, was that if it was felt that a criminal record should be deleted, it should be deleted totally. Any insinuation that there once was a record could affect the future career prospects of the individual involved. This matter should be dealt with clearly.

Mr. Lucas

Fine.

If information is being sought by another country at the point of sentencing, and the little blackguard has remained a little blackguard and not changed his spots——

I do not want to talk for the Minister, but I think the example he used was of a young lad who said in an application form 25 years ago that he had never been convicted of a crime, even though he had been convicted of a minor crime.

Such a person could spend 25 years thinking he will lose his job some day, when somebody finds out about it. We do not need to go to those extremes.

When systems are put in place to facilitate the transfer of information, I am always worried about the danger that the information will be used for some purpose other than that for which it is intended. One could have concerns about insurance companies demanding DNA tests, for example. I am always worried that if a check is done on a person who is about to get a job, the job could be put in jeopardy when something very minor that happened a long time ago is uncovered.

I think this is a good idea, but I am worried about such aspects of arrangements of this nature.

If a country wants to do some security vetting on somebody, will it be able to access the information on the central authority of another country?

Mr. Lucas

It depends. The main focus of this proposal is on making information available for criminal proceedings, which is different to making information available for vetting. If information is requested for other purposes, the state will respond in accordance with its national law for national convictions and for convictions handed down in third countries and subsequently transmitted to it. The proposal contains a clear distinction between criminal and other proceedings. For example, if Ireland were to receive a request from France relating to proceedings other than criminal proceedings, the matter would have to be dealth with in accordance with Irish law.

How does the sex offenders register of information link in with the proposal? Is the information on the register separate from the information which would be reported to another country?

Mr. Lucas

I am not familiar with the sex offenders register. If, for example, a person convicted of sexual offences here subsequently appeared before a court in Estonia, the proposal would cover circumstances in which the Estonian courts requested information on the person from Ireland. Provided the person in question had been convicted of an offence here, the Irish authorities would be able to pass on the type of information requested by the Estonians.

It is distinct from the sex offenders register.

Mr. Lucas

Yes, but the same information could be available.

I asked about the precise details which would be retained on computer files. Obviously, details such as name, address, conviction would be kept. Would additional information such as the sentence handed down or fingerprints be retained? It may not be necessary to pass on all the information we require for our records and databases. We need to ensure the system installed has the capacity to deal with any information we may require in this regard.

Mr. Lucas referred to installing computer systems in some of the courts. Has anyone satisfied himself or herself that these systems will be able to accommodate and process the type of information sought under the framework decision? The State's record on computer equipment is chequered. Joined up thinking is required to ensure we do not have to install new computer systems in the courts once the framework decision is implemented. Is this the responsibility of an IT section in the Department or a centralised IT unit?

Mr. Lucas

On the first point, it would be a good idea to give an indication of what information is generally held in the courts as this links into the contents of the annexe to the framework decision. Normally, a criminal record held by the Courts Service will feature the name and venue of the court, date of the order, name and address of the convicted person, terms of the court order, including the offences committed, and penalty handed down by the courts. The information currently held in the courts, whether manually or on computer, goes a long way towards covering the information that would be required under the framework decision, including that to be used for national purposes.

It is a question of building on progress made to date. The framework decision has been slow to develop, which is not the fault of Ireland. Meetings were not arranged to discuss the proposal and this is the prerogative of the Presidency. The Department must examine, in consultation with the Office of the Attorney General and the Office of the Data Protection Commission, the legal issues involved and work with the Garda Síochána, departmental officials and officials in the Courts Service to identify what we will need in the new system, who will be the central authority, what type of information will be put on computer and so forth.

The European Commission has awarded a contract to a company to study how this decision might work and identify the practical and technical issues involved. I understand employees of the company have visited all 25 member states, as well as Bulgaria and Romania. We discussed this matter recently and, as far as the Department is aware, the company's report has not yet been made available to the Commission. Not only are measures being taken at national level on the framework decision but the matter is being studied at European level to determine what technical and other issues arise.

That concludes our discussion on this framework proposal. Is it agreed to report back to the Sub-Committee on European Scrutiny that this committee has considered the proposal and it does not require further scrutiny at this stage? Agreed. The committee has requested the Department to keep it informed of the progress of negotiations and the position of Ireland with regard to the reservations under Article 22 of the 1959 convention and the proposal in general. I thank Mr. Ryan and Mr. Lucas for attending.

The joint committee adjourned at 10.25 a.m. sine die.