Criminal Procedure Policy: EUC Report

Lord Hodgson of Astley Abbotts Excerpts

Monday 4th February 2013 Grand Committee

[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”.