Criminal Procedure Policy: EUC Report

Lord Beecham Excerpts

Monday 4th February 2013 Grand Committee

[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.