(11 years, 10 months ago)
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Lord Bowness
That the Grand Committee takes note of the Report of the European Union Committee on The European Union’s Policy on Criminal Procedure (30th Report, Session 2010-12, HL Paper 288).
Lord Bowness
My Lords, I thank the members of the European Union Select Committee who participated in the inquiry, in whose name the report is issued, but particularly the members of the Sub-Committee on Justice, Institutions and Consumer Protection, which I chair. I thank all members for their assistance and, indeed, our legal advisers and our clerks. Perhaps other members of the committee will forgive me if I particularly mention one of our number who is no longer a member of the committee—namely, the noble and learned Lord, Lord Boyd of Duncansby, whose knowledge of Scottish procedure proved invaluable in our deliberations. We were sad that he left us but delighted that he did so to become a senator—not in terms of Lords reform but as a senator of the Scottish High Court of Justiciary.
I will refer to one other matter before I deal with the report; it is the elephant lurking in the corner of this room—that is, the Government’s current minded opt-out of the pre-Lisbon provisions, a decision which has to be made before May 2014. I should point out that the Justice, Institutions and Consumer Protection Sub-Committee together with the Home Affairs Sub-Committee of the European Union Committee are jointly conducting an inquiry into that decision. Currently, that inquiry is proceeding; written evidence has been received and is on the website; witnesses are still being seen; and we shall be seeing the Lord Chancellor and the Home Secretary next week. When that report is produced it will, I presume, include observations on the merits or otherwise of a decision to opt out of the pre-Lisbon measures. It may well contain some comment about matters which should be, in the opinion of the committee, retained—if, indeed, that is the opinion of the committee—and an opinion on how the matter should proceed and the likelihood of success.
I want to make it abundantly clear, and put it on the record, that nothing I say today should be construed as expressing an opinion on any of those questions while that inquiry is proceeding. This report may well express opinions about particular measures, but they were opinions expressed at the time about the measures, not in the context of whether or not there should be an opt-out or whether or not there are practical alternatives to staying within those measures. It is very important that Sub-Committee E and Sub-Committee F, the two sub-committees involved, are not seen in any way to have pre-judged this issue before the report is prepared and submitted—at some time, I hope, before the end of the Session—to your Lordships’ House, although that, of course, depends upon the Government’s decisions as to when they bring a Motion to the House and the other place regarding the opt-in. At the moment we do not know what their decision is, what measures, if any, they want to retain, or whether we can meet the timescale. I hope that what I say can be taken in that context.
The report before the Committee this afternoon was undertaken by the Justice, Institutions and Consumer Protection Sub-Committee in the light of the changes made in the Lisbon treaty in respect of criminal law. That certainly gave an impetus to EU legislation in this field and an impression, correct or otherwise, that the Commission was anxious to proceed further in this area.
The inquiry also coincided with our normal scrutiny of a proposal for a directive laying down minimum standards for access to a lawyer by a suspect or accused persons. This was used within the report as a case study. Access to lawyers was just one of a package or road map of proposals aimed at providing minimum rights for defendants across Europe. This road map, and a second aimed at providing minimum rights across Europe for the victims of crime, constituted the Commission’s legislative programme in the field of criminal procedure.
In the course of this inquiry, we took evidence from academics, police prosecutors, NGOs, practitioners and Ministers, as well as directly from members of the public, who gave evidence of their experiences—some distressing—as victims of crime in another member state. We are grateful to all our witnesses who assisted us in this way.
People are moving within the European Union in increasing numbers and, inevitably and regrettably, some get involved in the criminal justice systems of other member states either as perpetrators of crime or as victims. They find themselves having to deal with unfamiliar legal systems, probably in an unfamiliar language. Although I do not think we should always assume that everything we do is better than anything anybody else does, British citizens finding themselves in that situation in other member states may frequently find themselves with fewer rights than they could expect in similar circumstances in the United Kingdom. As I said, in any event, even if their rights are there, the procedures and language will be unfamiliar.
The Union’s counter to cross-border crime is to promote mutual recognition of the judicial decisions made in other member states—that is, the decision of a judge in one member state to be given effect in another with the minimum of formality. It is a form of co-operation based on our practice and it seeks to avoid the disruption of having very different criminal systems across Europe, as would happen if they had gone down the road of harmonisation. Perhaps the most well known example of mutual recognition is the European arrest warrant.
It is accepted, and the report accepts, that mutual recognition has its faults and is incomplete, but the evidence given to us for this inquiry suggested that it is largely successful. Mutual recognition requires trust between judges, and so a judge faced with a request for speedy extradition may be reluctant to agree if he or she thinks that this will result in the defendant spending long periods in poor prison conditions awaiting trial or if the trial is likely to be unfair. Equally, a refusal to extradite on such grounds is likely to be viewed in the member state making the request as an unwelcome criticism of its own criminal justice system. The road maps are intended to provide that trust by ensuring that minimum standards for defendants’ and victims’ rights are adhered to across the Union.
This report concludes that such legislation laying down minimum rights is in principle beneficial, and we supported the proposals. Why, we are sometimes asked, did we not consider the European Convention on Human Rights or other international legal instruments to be sufficient? Quite simply, as the Government acknowledge, the European Union legislation generally brings greater clarity and is usually capable of better enforcement, which is lacking in the case of these international instruments. Members of the Committee will recall, because it was mentioned on many occasions, that the backlog of cases in the European Court of Human Rights at the time of writing was more than 150,000, and it is still more than 100,000. Non-legislative measures such as better judicial training and better co-operation have a contribution to make but, in our view, they do not replace the need for legislation. We believe that the United Kingdom has little to fear or gain from legislation in this area because, as I said earlier, our standards are generally recognised as being among the better ones among the countries of Europe.
We have obviously had the opportunity to shape much of this legislation, which has enabled British citizens travelling abroad to benefit from improved standards in other states. We recognise, however, that this remains a sensitive area for European Union activity because of the very different legal traditions in the different member states. The case study on the proposal for access to a lawyer demonstrates how the proposal—or, I should say, a proposal—can be too ambitious. That led to a situation in which we were not able to support the idea that the United Kingdom should opt in; indeed, we supported the Government in their opt-out. I understand that we were not alone in our concerns. The matter has currently been taken to the European Parliament, which has submitted some 80 amendments to the general approach that was agreed in the Council. I understand that those 80 amendments take us back to square one, if not back further than that, so the negotiations are still continuing. Although we accept the motive behind this particular proposal, we hope that further negotiations will ultimately allow the UK to come to a decision, if this is still relevant at the time, to opt into that legislation.
Overall, the report sees the area of criminal procedure as one that has made slow but careful and steady progress. We would like the present measures in the road maps adopted and experience gained as to how they work before we go further. We are wary of road-map measures that might affect the admissibility of evidence. In practice, we support the Government’s positive approach to the road-map proposals, even in cases where they have not opted in but stayed involved with the negotiations. We welcome the fact that the Government have opted into the road-map measures, with the exception of this access to lawyers.
The opt-out from pre-Lisbon criminal measures is the subject of a further report. It does not apply to the road maps, and I re-emphasise that this report does not pre-empt the opt-out decision and the separate debate that the House will have in the light of the subsequent inquiry. Clearly the opt-in/opt-out uncertainty creates certain problems. There is a framework decision which we have already opted into and which was intended to allow the supervision order that is intended to allow those who are awaiting trial to spend time on remand in their own country. We participated in its adoption but we have not implemented it. Many people have commented in evidence published on the website that this will go some way to ameliorating the acknowledged problems that exist with the European arrest warrant.
However, these are matters that no doubt will be resolved by Her Majesty’s Government when they bring forward proposals and it is not appropriate for me to comment further. I beg to move.
Lord Hodgson of Astley Abbotts
My Lords, I was not a member of the sub-committee when this inquiry took place, so I am slightly surprised to find myself at the top of the speakers list. I was expecting to skulk along as tail-end Charlie. I have since joined the committee and, notwithstanding my non-presence during these proceedings, I very much welcome this report with its focus on victims’ and defendants’ rights. I congratulate my noble friend Lord Bowness and the other members of the committee on the report. I also congratulate the staff of the sub-committee whose judgment, acumen and skill I have come to recognise since I joined their number.
My noble friend referred to both sections of the road-map proposals. The report endorses the proposals, which seem to me to pose three sets of challenges. The first is what I call the challenge of national amour proper—members states asking, “Who are you to tell us how to organise our internal criminal justice systems?”. I would like to turn to that in a minute. Secondly, there is a series of practical, technical challenges—again, I would like to come back to that. Thirdly, and for me the greatest challenge, is how to move further along this road map, building on the achievements of mutual recognition to date while continuing to encompass the two entirely different legal traditions, to which my noble friend also referred. The UK, Ireland, Malta and Cyprus have adopted an adversarial, common-law, precedent-driven system while the other EU states have adopted—to a greater or lesser degree—an inquisitorial, judge-led approach.
It is not just the inevitable practical difficulties, such as the lengthy pre-trial detention, although these can be considerable. I declare here an interest as a trustee of Fair Trials International. I do not speak for that organisation this afternoon but it has given me some background information on some of the practical issues here. One of the cases currently causing Fair Trials concern is that of Corinna Reid. She was extradited to Tenerife, which is Spanish territory, in 2009; her daughter was six months old then and being breastfed. Corinna’s trial is not expected to start until April 2013. After her extradition Corinna was kept in jail for about a year and then given bail on the basis that there was hardly sufficient evidence against her. However, she has not been allowed to leave Tenerife, has struggled to support herself and has now been separated from her daughter for more than three years. While adoption of the European supervision order may have helped in this case, this and other cases show how the different approaches lead to very different outcomes and illustrate the way trials are conducted.
As I said, however, it is not just the practical issues—it is also the impression left with the general public. Moving away from the familiar UK-EU issue and tensions, I want to remind the committee of the case of Amanda Knox, a US citizen, and Meredith Kercher, a UK citizen, in Perugia, Italy. It was a messy murder involving two students and perhaps drugs as well. The US follows the adversarial system that we have here. If you had looked at the US newspapers you would have been astonished to see the scale of incomprehension regarding the role and effectiveness of the Italian judicial system. In my view the vast majority of the UK population would suffer from the same incomprehension; and no doubt the reverse is true with the general public on the continent being unfamiliar with our legal proceedings.
There is therefore much to be done in terms of public impression. I particularly support the comments of Professor Spencer in paragraph 19. The report states that he,
“regarded the issue of mutual trust as being wider: ‘What is done in trans-border cases has to be acceptable to public opinion, not just prosecutors and people who work the system’”.
I turn now to the issue of national amour propre. The report contains several flattering references to the United Kingdom’s approach to justice and civil liberties and to the role that this country can play in raising standards across the EU. We need to be careful about what we can achieve in this regard. Our lawyers and judges are of course pleased to be regarded as representing the shining city upon the hill—flattery is always attractive. However, perhaps I might give an extreme example to illustrate the dangers of trying to be too accepting of this.
I happened to be in Rio the day that the unlucky Mr de Menezes was shot dead in the Tube by armed British policemen. The Rio newspapers were outraged; there were acres of newsprint on the scandal and an inquiry was requested. Yet my host, a senior and experienced Brazilian businessman, said to me, “This is because we expect those standards of the UK, but I estimate that the Rio police probably shoot about 1,000 people a year—and there is no fuss or commotion whatever”. He went on to say that they would go on shooting them and, despite what had been written about the incident in London, there would still be no fuss or commotion. My point is that we should not overestimate what can be achieved by example, especially in an area as sensitive as a country’s internal judicial system.
Finally, I want to underline some of the practical and technical challenges to the road-map proposals, in particular those concerned with the European arrest warrant. There can be no doubt that the European arrest warrant has played an important role in tackling cross-border crime over the past eight years. However, it is also widely recognised, including by the Joint Committee on Human Rights, that there have been problems with the operation of the warrant and that some concrete reforms are needed to protect against overuse and abuse of the system. The problem most commonly highlighted is the use of the arrest warrant for minor crimes—that is, the issue of proportionality. The warrant was meant to be used to tackle serious crime and terrorism but thousands are being issued every year now and often for the most minor crimes; there are about 1,000 a year from the UK alone. This has a disproportionate effect on the people concerned and wastes vast amounts of time for the already overstretched police and courts.
Perhaps I may cite a recent FTI case. Last year Poland requested the extradition of 23 year-old Natalia Gorczowska to serve a nine-month sentence for possession of a small quantity of drugs for personal use. The sentence was received when she was only 17. It was only a suspended sentence, but the sentence was reactivated because Natalia came to the UK and forgot to tell her probation officer. The sentence therefore became one of imprisonment. Since the incident six years ago, Natalia has ceased to use drugs and has found a job. She now has a home and a baby. Her extradition has been ordered, which has resulted in her losing all this and in her son now being taken into care by the UK authorities.
There are other problems with the arrest warrant that need to be addressed. They include: first, the power for the courts to refuse extradition or seek further information where they have sound reason to think that the person will be subject to mistreatment, arbitrary detention or an unfair trial in the country that they are sent to; secondly, a power to delay extradition where the case is not trial-ready to stop people being extradited long before any decision has been made even to prosecute, as where such decisions are made people are then held in prison for months under extremely difficult conditions awaiting trial; and, thirdly, a power to refuse extradition where the court believes that it would be more appropriate for the case to be heard in the UK—the so-called forum bar. Those kinds of changes could prevent the misuse of what is otherwise a valuable crime-fighting tool, and I hope that the Government are successful in their current efforts to persuade other member states to agree to these sensible reforms.
I end as I began by saying that this is a valuable report. As my noble friend said, this is, in a sense, an hors d’oeuvre for the bigger debate about opting in or out. However, the debate is none the less useful because it points the way ahead and underlines how much still needs to be done to give full effect to agreements already reached. The Euroagnostic among us, of whom I am one, have a concern that the EU’s legislative and theoretical bandwagon will roll on irrespective of what is happening practically on the ground. As such a disconnect can undermine the credibility of the institutions involved, I would conclude by endorsing strongly the recommendation in paragraph 107 of the report:
“We agree that no new proposal for mutual recognition should be brought forward until the current proposals for legislation under the two Roadmaps have been put in place and have had time to make an impact”.
Lord Maclennan of Rogart
My Lords, it was a privilege to serve on the committee under the chairmanship of my noble friend Lord Bowness. His approach was careful, balanced and forward-looking. We heard from a wide range of witnesses, who gave not always complementary recommendations, but, under his chairmanship, the committee has distilled an approach to criminal procedure which not only ought in itself to be endorsed but is a model as to how we should approach changes in the law in the European Union—balanced, careful, studying it case by case. That has been cited by the Government as being their approach to criminal procedure, based on the coalition agreement.
It is not appropriate to have European Union-wide harmonised criminal procedural law. Our traditions are extraordinarily different, and it could create structural confusion and embarrassment if we were to attempt to move in that direction too quickly or other than step by step. It is clear that even within the United Kingdom, the criminal procedure laws are to some extent different. As our chairman pointed out, the noble and learned Lord, Lord Boyd of Duncansby, was helpful in drawing attention to some of those differences. It is certainly right that we should ensure that the European Union provides minimum rights for defendants and victims travelling or located in other countries. That is a common phenomenon because of greater mobility—perhaps too common. I read in the press the other day that London is the seventh largest French city. A very large number of British citizens live and, in many cases, work, not only in Spain, as is well known, but in France and a number of other countries.
Travellers who are unfortunately involved in criminal procedures need to be considered very carefully. They should enjoy the possibility of comprehending what is being done in court, so translation, interpretation and explanation of their rights on arrest clearly ought to be observed.
My noble friend Lord Bowness has carefully expanded the committee’s recommendations, and I suppose that there is some risk of my merely repeating what he said because I so fully agreed with the committee’s recommendations. In particular, he spoke about mutual recognition. It is important to build trust throughout the European Union through mutual recognition of decisions and judgments made in other member states, against the background provision for minimum standards in other European Union member states. The case-by-case approach of the coalition Government is certainly right. We must recognise the different individual criminal justice systems.
To my mind, it was right that the United Kingdom did not opt into the proposed directive providing for access to a lawyer at an early stage of a criminal investigation. We took a lot of evidence on this point, and it was made abundantly clear that investigations into criminal offences would not necessarily be successful if lawyers were provided in this country. I agree with the conclusion that the committee drew; it would be too disruptive and would defeat the purposes of the criminal law in our country.
We also emphasised the commitment to considering the compliance of the proposed European Union legislation with the principle of subsidiarity. That has been the hallmark of the European Union Select Committee and its sub-committees. It is exceedingly important, as we move step by step in these areas to remove injustices and to ensure that human rights are observed, to reflect on whether the particular proposals are adding value and whether European legislation would add value in those respects. The European legislation can do that where it is evident that minimum standards conformable with fundamental rights need to be provided.
European Union legislation can undoubtedly add value to our own legislation by providing greater specificity than is provided by the European Convention on Human Rights and by the general application of those principles. It also enables affected individuals to test what is being done in the national courts, and that enhances the speed with which these matters can be determined and the certainty of the outcome.
I am glad that the Government are investigating, with other European Union member states, ways in which we could collectively ensure that the general rubrics of the European Convention on Human Rights are observed in investigating and prosecuting crime. That is permitted explicitly in our protocol on the Treaty on the Functioning of the European Union, allowing us to opt into such proposals. That seems to be the proper approach that we should be taking, on a wider canvas, to the criminal justice system.
Although I wholly understood why my noble friend Lord Bowness was careful in his opening remarks not to prejudge the outcome of the consideration being given by his committee, and another sub-committee of the European Union Select Committee, to the pre-Lisbon justice and home affairs legislation, it is perhaps worth pointing out that when we considered the issue as an adjunct to the central questions that the committee was considering, we stated in paragraph 115 of our report that opting out of the pre-Lisbon treaty justice and home affairs legislation would have significant repercussions on United Kingdom criminal enforcement:
“We share the scepticism that it will be possible for the UK to ‘pick and mix’ by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only”.
That debate will have to be considered at greater length and in the context of the Government’s determinations, but it is right to recognise that the membership of this committee and the Select Committee took our preliminary view, which suggests that the proposal to opt out would go far too far to secure justice in this country.
Baroness O'Loan
My Lords, I have the honour to serve as a member of European Union Sub-Committee E under the noble Lord, Lord Bowness.
The questions coming before the House in relation to the European Union and our ongoing membership are many and varied. There can be no doubt that in any field of European law, as in any field of law, there will be many measures which could be improved, there will be measures which are redundant, and there will be measures which are critical to the functioning of particular parts of our national systems. It is therefore interesting to note that this 30th report of the EU Committee does not find any major stumbling blocks in the path of criminal justice in the UK consequential upon the activities of the European Union and its legislative process. Indeed, the report states:
“We find that there is significant benefit to be gained from EU legislation setting minimum rights for defendants and victims, particularly for British citizens travelling within the EU who, on the whole, enjoy a high standard of rights at home. However, those minimum rights must be firmly grounded in international law norms, such as the European Convention on Human Rights, to minimise the risk of disrupting the UK criminal law systems”.
The committee also states in paragraph 55 in relation to its scrutiny functions, to which noble Lords have already referred, that,
“we have not yet found it necessary to raise a subsidiarity objection”.
Of course, we have stated our ongoing commitment to scrutiny.
The case-by-case approach to opt in has resulted in the Government opting into all the proposals for criminal procedure legislation, with the exception of the proposal for access to a defence lawyer. That is not yet so formed that it would be viable and would not interfere with the operation of the criminal justice systems. It is just not clear enough. However, in other cases, my noble colleagues have indicated the range of protections available to United Kingdom citizens who find themselves, for whatever reason, as either victims of or witnesses to a crime, or indeed as perpetrators of a crime, in countries outside the United Kingdom. The overall tenor of this report therefore is that there are no significant problems and that the Government should take a positive approach in principle to exercising the UK opt-in in relation to road map legislation.
As my noble friends have said, the report concludes by drawing attention to the decision to be made next May in relation to whether the United Kingdom opts out of the pre-Lisbon EU legislation, including the European arrest warrant. We are conducting a separate inquiry into that matter. I make no statement as to whether the United Kingdom should or should not opt out of the pre-Lisbon measures. As the noble Lord, Lord Bowness, said, we are still hearing evidence. However, I should like to revert for a moment to the report—the subject of this debate—and I draw your Lordships’ attention to the comment by Professor Spencer in paragraph 113 that an “unthinkable mess” would ensue were we to opt out of the EAW.
The EAW of course is not a stand-alone measure. It has coherence with a number of other vital measures, and my question for the Government is whether they are now in a position to enlighten us as to their strategy for dealing with these matters. In June last, the Government responded that they were examining the issue. As noble Lords have said, mutual recognition has proved to be profoundly important for that trust, which is essential to the international fight against crime and terrorism.
However, the reality is that such is the nature of the world in which we live that crime, which has always had its international dimensions, is now in its cross-border dimensions—a major problem for Governments and for the protection of national interests, including national security, and of the public good. Over almost 10 years a series of measures has been agreed by the member states of the EU which has as its purpose the effective and efficient delivery of a coherent response to the threats of international crime and terrorism within and without EU borders. Those measures have included the EAW, a process through which member states may seek the co-operation of other member states in securing the arrest of individuals suspected of crime who are resident in that other state. The UK makes regular use of the EAW, and indeed, in its published evidence, ACPO recently stated that the EAW was the most important of all the measures.
Much is made by some of the fact that the UK receives a very significant number of requests for extradition of individuals to other member states and of the cost of the extradition process. The reality is important. Our ability to extradite rapidly persons who are a threat to public order and safety in the UK provides a protection for people in the United Kingdom. It is simply neither possible nor proportionate to screen every EU citizen coming across borders, yet ACPO statistics show that in 2011-12 the Metropolitan Police Service received 50 European arrest warrants for homicide, 20 for rape and 90 for robbery. The evidence is also available to demonstrate that criminals who take refuge in the UK do not invariably begin to live lives as model citizens. They may well reoffend. The EAW, or possibly a similar process, enables processes through which other states can secure their return, maybe before further crime has been committed in the UK. There is a significant public safety benefit to the existence of such mutual co-operation that is considered in this report—something that the United Kingdom has consistently supported.
The UK made 221 requests to other states in 2011-12 and 93 people were surrendered to us through that process, the existence of which has worked to our benefit. Looking back we know that an Algerian national, Ramda, was arrested in the UK in 1995 in relation to a terrorist attack on the Paris Metro. France sought extradition—a process that took 10 years. Mr Ramda spent those 10 years in custody in the United Kingdom at massive cost to the United Kingdom. When Osman was identified as a suspect in a failed bomb attack on Shepherd’s Bush Tube station in July 2005, his extradition under the new mutual co-operation processes saw him surrendered within three months. He was sentenced to 40 years’ imprisonment for conspiracy to murder. There is a stark contrast between the 10 years and the few months that mutual co-operation has enabled. The capacity for mutual co-operation is a very strong crime prevention measure that has the ancillary benefit of significant financial savings when one takes into account the average cost of keeping a prisoner for a year, which is estimated by the Ministry of Justice to be in the region of £40,000.
Under analogous measures we can seek: orders freezing property or evidence; confiscation orders; and evidence warrants to obtain objects, documents and data for use in criminal proceedings. We can transfer prisoners to serve their sentences in their home country, which brings benefits not only to the prisoners themselves, who are being restrained in a language and culture they understand, but also to their families who can visit them more easily. Non-custodial sentences can be carried out in the home country, again reducing the cost to the UK taxpayer of such criminal sanctions. None of these measures is perfect, but the report shows that there have been significant improvements.
Many other relevant systems have been created over the years, including Eurojust and Europol. They include the Schengen information systems and the potential for joint investigations across Europe. Even if we take into account the effectiveness of a European arrest warrant, surrender can occur only when the home country knows that the suspects are in a particular host country. If the home country does not know where the suspects are it cannot seek them. The host country does not know that it has a potentially dangerous criminal on its territory. The system for the exchange of criminal records, which includes provisions enabling a court in this country to be informed about and to take into account similar crimes in respect of which the accused has been convicted in other member states, is useful. The provisions provide protection for public safety in respect of people who are identified for one crime here because, following an exchange of criminal records, decisions which need to be made about bail et cetera will be informed by the individual’s previous records, thus enabling individuals who are a serious threat to public safety to be detained. Sometimes people question the value of the co-operation and the European criminal procedure processes, but the report demonstrates that it is advantageous to the United Kingdom that we are engaged as we are.
The 30th report does, however, state:
“Opting out of this legislation would have significant repercussions on UK criminal enforcement”.
The former Lord Chancellor stated his scepticism, which noble Lords can find in paragraph 114 of the report. The 30th report also states—the noble Lord, Lord Maclennan, referred to this—that:
“We share the scepticism that it will be possible for the UK to ‘pick and mix’ by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only”.
This report paints a picture of a process of co-operation in the European Union’s policy on criminal procedures which is generally positive and is operating according to the required standards in terms of compliance with the requirements of human rights law. In such circumstances the publication of the Government’s proposals for the protocol 36 arrangements should inform the debate which is now required on whether or not we should opt in. I would emphasise that there is no guarantee, as I understand it, that we would be able to opt back in: we can apply to opt back in. This has to be one of the more important decisions facing us at this time. It will rightfully be informed by the debate and the vote in both Houses and, indeed, by the report by the two sub-committees currently working on the issue. Mutual recognition and the trust which is consequential to it has proved, however, to be a significant protection for the people of the United Kingdom from both crime and terrorism.
Lord Beecham
My Lords, it is a particular pleasure for me to be engaged in a debate again with the noble Lord, Lord Bowness. We spent some happy years as leaders of our political groups in the Association of Metropolitan Authorities in doing that, and I even recall an occasion some 25 years ago when he and I were in Donegal at a conference of the Irish Republic’s local government association at which we were describing the delights of the poll tax to an enthralled if somewhat bemused Irish audience.
I confess to a minimal acquaintance with the EU criminal procedure in my 44 years as a solicitor, so I approach today’s debate with an open and somewhat ill-stocked mind. I am equally unfamiliar with the works of the European Union Committee—arguably a less pardonable admission—but it does strike me as odd that the committee’s report was published in April 2012, the Government’s essentially anodyne response in June 2012, and yet this debate comes to us some seven months later.
One preliminary question relates to the stress of the documents on the fact that British citizens travelling abroad would benefit from a common EU policy guaranteeing fair and due process in relation to criminal charges. That of course is right, but is there an implication that British citizens resident abroad would not be included in that category? I assume not, but would be grateful for confirmation.
The report dissents from the Commission’s proposal for suspects and accused persons to have access to a lawyer effectively “as soon as possible” in all cases—a recommendation going beyond the Council’s road map of 2009 which referred to this right “at the earliest stage of proceedings”, which is of course a very different position. Unsurprisingly the Government, along with several other nations’ Governments, share that view, and the committee subscribes to it, and indeed I endorse that reservation. The Government’s response welcomes the approach taken by the Justice and Home Affairs Council last June. Has this been agreed by the European Parliament in a form acceptable to the Government, and if so what is the position in relation to an opt-in?
Similarly, what progress has been made in relation to the draft victims directive, which should align the position of British citizens who become the victims of crime in the EU with the rights accorded here?
Of course, the major issue identified in the committee’s report is the question of opt-out decisions, now highlighted by the Prime Minister’s recent speech and the five-year process it has initiated. The noble Lord, Lord Maclennan, rightly referred to the committee voicing scepticism as to whether,
“it will be possible for the UK to ‘pick and mix’ by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only”.
The report goes on to say that opting out,
“would have significant repercussions on UK criminal enforcement”.
The government response refers to 133 potential opt-out measures which were being analysed and to their “careful” examination of the implications of all the options. Has that process concluded, at least in relation to the matters subject to this debate, and if so, with what result?
There is one particularly important issue to which, following others, I now turn. Appropriately enough in reports and a debate dealing with crime, we have another example of the Sherlock Holmes syndrome—once again the mystery is that of the dog barking at midnight, when, it will be recalled, the mystery was that the dog did not bark. In this case, the silent canine goes by the name of the European arrest warrant, which is barely mentioned in the committee’s report and is totally ignored in the government response, although noble Lords have referred to it in this afternoon’s debate.
This has become a live issue in recent months as the Government have threatened to withdraw from the system despite strong support from a wide range of organisations for a procedure which has proved to be of significant value in combating international crime, including terrorism and other serious offences, as mentioned by the noble Baroness, Lady O’Loan. European arrest warrants are supported by the police, as one might expect, but also by organisations such as Fair Trials International and Justice Across Borders, with the former acknowledging that there may be problems but arguing for reform rather than abandonment of the system. It supported the approach of the Scott Baker report on extradition as a basis for reform. What are the Government doing to promote those recommendations?
In 2010-11, EU member states applied for 5,382 European arrest warrants in the UK, of which 1,149—somewhat under 20%—were granted. Significantly, however, only 7% of those affected British citizens; the vast majority were for citizens of other European countries. For our part, as the noble Baroness pointed out, we have sought 211 warrants and obtained 93.
In any event, it is as well to look at some of the cases. In addition to the Osman case, to which the noble Baroness referred, it is instructive to consider the case of Robbie Hughes, who suffered a life-threatening brain injury in a violent criminal assault. His attackers were eventually arrested, tried in Greece, convicted and sentenced to four years’ imprisonment. Without the European arrest warrant, it is quite possible that they would have escaped justice altogether. Mr Hughes’ campaigning mother, Maggie, points out that the interests of victims are in danger of being lost by the Government’s approach. She noted in an interview in the Observer recently that whereas at one time she met Mr Cameron at his request, now, at this critical juncture in relation to policy on the European arrest warrants, she has been unable to do so. She said that,
“he seemed sincere. But he appears to have no idea, and I’m sorry to say that”.
So what is the Government’s rationale for the policy that they appear to be adopting, so markedly in contrast to the Lord Chancellor’s tub-thumping—not to mention child-smacking—approach to criminal justice and penal policy? Why are the Government threatening to relinquish a powerful tool to bring to justice suspected perpetrators of serious crime, some of it inherently cross-border in nature? Are they more concerned to throw a bone to the ravening Eurosceptics on their Back-Benches at the expense of the victims of crime, whether British or citizens of other EU countries?
If there are concerns about aspects of the EAW system—and indeed there are—why have the Government failed to implement the European supervision order allowing defendants to be bailed to their home country pending trial, thereby avoiding long periods in custody abroad of the kind referred to by the noble Lord, Lord Hodgson, before they are dealt with? Admittedly, that has been a serious problem in some cases. In an age of mass travel and ever faster-developing internet communications, crime is becoming ever more international. It is in everyone’s interest that criminals be brought to justice, whether their crimes are economic, violent or take any other form.
Of course, within the different systems—adversarial or inquisitorial, based on common law or Roman law principles—basic human rights to a fair trial must be a pre-eminent feature of criminal procedure and the criminal justice system. The UK should be leading the way to achieve that, not sulking on the sidelines. I agree with the noble Lord, Lord Hodgson, that this cannot be achieved simply by example. That is all the more reason to work with others in the EU to improve the system on the lines adumbrated by the committee, to a degree by the Government, and by the organisations to which I referred.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, clearly the noble Lord, Lord Beecham, had got his Monday morning grumpy hat on in his final tirade against the Government. I will come back to the points that he made in a minute.
I know a little about the House’s European Union Committee and I pay tribute to it. This report is in the great tradition of a committee at this end of the building which has always produced evidence-based reports in a considered way. This inquiry has been helpful in that
I concede one point to the noble Lord, Lord Beecham: the response and debate timetable seems to be leisurely, to put it mildly. I am not sure who takes the blame for that. Nevertheless, we have had the benefit of a good report.
I make no complaint that a number of references have been made to the Government’s decision to adopt an opt-out/opt-in approach to the 2014 decision. I shall take up the invitation of the noble Lord, Lord Bowness, not to pre-empt that debate. I am aware that Sub-Committees E and F of the European Union Committee are looking at this matter and I look forward to the report. I suspect that it will be in the great tradition of the European Union Committee in terms of an evidence-based analysis and wise recommendations. I shall not pre-empt that debate today.
It was interesting that the contributions to the debate endorsed the findings of the report that co-operation in this area is not the great danger to our beloved criminal justice system that might be suggested. The noble Baroness, Lady O’Loan, made the point that, in practice, it has worked extremely well and to the benefit of British citizens to have a policy of co-operation and of trying to set minimum standards. I understand the point of the noble Lord, Lord Hodgson, about national amour propre. I always find in our papers there is always scepticism that any country could have a justice system as fair as ours and that foreigners are not to be trusted with such matters. However, the more serious reality is that we have different forms of systems and that that sometimes makes it difficult to get complete cohesion. However, I take the point of the noble Lord, Lord Hodgson, that it is important that we carry public opinion and understanding with us on these matters.
A number of references have been made to the European arrest warrant. Again it is a matter of balance. The noble Baroness, Lady O’Loan, made a number of telling points about the effectiveness of the European arrest warrant and the fact that it is an important weapon in the armoury against organised crime, cross-border crime and other matters in what the noble Lord, Lord Maclennan, referred to as an increasingly mobile continent.
However, I do not think that it is fair to say that we have taken a negative view on that. We have pointed out, and a number of contributors have raised the fact, that there are issues about proportionality, dual-criminality and pre-trail detention that we wanted to discuss to try to get the arrest warrant improved. That has been our approach. The Home Secretary has responsibility for the European arrest warrant and it has been considered as part of the Scott Baker review. The Government’s response to that review is to take the opportunity of the 2014 opt-out decision to work with the European Commission and other member states to reform the European arrest warrant and to improve its operation.
The noble Lord, Lord Maclennan, warned and underlined that, in these areas, we cannot have complete harmonisation and that the case-by-case approach that the Government have taken has been right but that EU legislation adds value. My experience in the Ministry of Justice over the past two and a half years, as the report itself reflects, is that we have taken a very pragmatic and positive view in decisions in this area. The idea that somehow we were sitting out European co-operation in this area simply is not true.
The noble Lord, Lord Hodgson, asked whether we felt that existing limitations are sufficient to protect the criminal justice systems of member states. We believe that they are. There are a number of safeguards in the treaty to protect the criminal justice system of member states, including the existence of the emergency brake. The UK and Ireland have the additional safeguard of the opt-in. We agree that it is a difficult issue; that is why we scrutinise any new proposals to ensure the appropriate balance. Again, I take on board the noble Lord's argument that we must make sure that EU theory and its practice on the ground match up.
On the question of the directive on access to lawyers, it is too early to say what our final decision will be. We would want to consult Parliament were we minded to opt in and a series of further trialogue meetings is scheduled to take place in the next few months. However, we are participating in the negotiations. If the Government are satisfied that the final text represents an appropriate balance between the rights of defendants and the wider interests of justice, we will give serious consideration to applying an opt-in to it. We will consult Parliament about that before any decision is made.
The noble Lord, Lord Beecham, asked whether there was an assumption that UK citizens resident abroad could not benefit from these measures. The right should be afforded to all EU citizens resident in the relevant member state. He also asked what progress has been made on the victim directive. The directive was adopted on 4 October 2012 and is due to be implemented in 2015. The directive is aligned with the aims and objectives of our domestic criminal justice policies to ensure that the needs of the victim are put first.
Lord Beecham
Can the noble Lord enlighten me and other noble Lords as to why such a long time has elapsed between adopting the directive and implementing it? There may be a good reason for it but it would be interesting to hear what it is.
Lord McNally
No, I cannot give an explanation, but I will write to the noble Lord about that.
On the implementation of the European supervision order, we take our international obligations seriously and have implemented the vast majority of the measures, subject to the 2014 decision. Any further implementation of these measures will be considered on a case-by-case basis as part of the wider 2014 decision. In practice, the European supervision order is unlikely to help to avoid lengthy pre-trial custody in cases where an EAW has been used to secure the return of the suspect. That is for the simple reason that, the EAW having been needed to secure the return, the suspect has shown himself to be a flight risk, having already resisted voluntary return. In those circumstances, it is difficult to see the same suspect persuading the court to allow him to return home again.
The Government welcome the report. As I said, it shows the committee’s practice of employing detailed scrutiny and careful analysis. Criminal procedural rights reflect long traditions which have been developed carefully and with close consideration by both courts and Parliament, and now the devolved Assemblies. They reflect matters of considerable public policy concern, ensuring that offences can be properly and effectively investigated and prosecuted and that criminal proceedings are fair.
A number of safeguards are built into the treaty to ensure that the differing legal traditions of member states are respected. In addition, the UK opt-in applies in this area. We think that, in principle, minimum rules concerning the rights of individuals in certain areas of criminal procedure and the rights of victims of crime can help to facilitate judicial co-operation and mutual recognition—a point made by my noble friend Lord Maclennan. These measures are intended to build greater trust among the competent authorities of the EU member states which are charged with acting on decisions made in other member states by giving them greater confidence that the decisions were made against a background of minimum standards.
In order to ensure that all legislation in this area is appropriate and effective, we think that it is important that EU legislation is brought forward only in accordance with the treaties; where there is a convincing evidence-base for the need for such legislation; and where it is a proportionate response to an identified problem. This is an area in which there has been progress within the EU in recent years. The criminal procedural rights road map was agreed at the end of 2009 and subsequent legislative proposals have been brought forward by the European Commission. Furthermore, the Budapest road map, agreed in June last year, focuses on strengthening the rights and protection of victims of crime. So far, the Commission has brought forward six legislative proposals in this area and four directives have been adopted. We expect up to three further instruments to be proposed this year.
As the committee notes in its report, the UK already has a high standard of criminal procedural rights. This has been noted by the Commission, which has taken inspiration from our systems and procedures. The directive on the right to information clearly draws upon the PACE notice of rights and entitlements provided to suspects in England, Wales and Northern Ireland. The directive on the rights of victims of crime was also inspired by our practice. We have found that we can participate in most proposals in this area without having to make substantial changes to UK law and practices. The changes that we need to make to implement the victims directive are largely aligned to our domestic reform objectives—that the needs of victims are put first across the criminal justice system. We welcome the committee’s consideration of the potential added value of EU legislation in this area. The committee notes that in certain areas the EU legislation can be of real practical benefit to UK nationals travelling abroad if they become subject to the criminal justice systems of other member states, either as victims or as suspects. My noble friend Lord Maclennan and the noble Baroness, Lady O’Loan, made that point.
We also welcome the committee’s examination of the potential disadvantages of measures in this area: namely, the disruption to diverse and sensitive national criminal law systems. The Government have set out our approach to proposals for further EU legislation in the justice and home affairs area, including criminal procedural law, in the coalition agreement. The Government approach proposals on a case-by-case basis with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. This approach has been applied in respect of all criminal justice measures that have been brought forward since 2010 and we have opted in to all the criminal instruments in this area.
As I said at the very beginning, this has been an extremely useful debate on the basis of a very helpful report. Despite the rather intemperate rant of the noble Lord, Lord Beecham, at the end of his remarks, I think that the way in which we have gone about these areas has been pragmatic and analysis-based—where the Government have been more in keeping with the traditions of your Lordships’ European Union Committee than the noble Lord suggested. We have a good practical record. Where we have questioned, looked for amendments or waited before making a final decision, those actions have been based on good policy grounds, not on any kind of ideological motivation or hostility to the process. In that respect, I look forward to further work with the European Union Committee.
Lord Bowness
My Lords, I thank all noble Lords who have taken part in this debate upon the report. I have to say that if the noble Lord, Lord Beecham, was thought to rant against the Government, I did not feel that he ranted against the committee, and for that I am grateful. However, although the European arrest warrant may not have attracted a great deal of attention within the report, we were trying to take stock of the road map proposals and look at their potential benefit, both in respect of victims of crime and in dealing with its perpetrators, and at how the principles of mutual recognition and trust are working—and are capable of working. We took the issue of access to lawyers in more detail only because we used it as a case study.
As I say, I am grateful to all noble Lords for their contributions and to the Minister for his reply. I apologise for failing to do what I am always instructed to do, although it is on the register and in the report—namely, to declare what may be deemed an interest as a solicitor and a notary.