Select Committee on European Scrutiny Minutes of Evidence


Examination of Witnesses (Questions 120-139)

WEDNESDAY 26 MARCH 2003

PROFESSOR STEVE PEERS AND MR STEPHEN JAKOBI

Mr Tynan

  120. I understand you both appear to support the principle of the European Court of Justice having the jurisdiction to hear requests for preliminary hearings or rulings in criminal matters. Problems with references are taking something like 22 months. How would you view the position if someone was a defendant, say held in custody while a preliminary reference was taking place, bearing in mind the time span at the present time?
  (Mr Jakobi) That is what goes on now in some national systems. I took a case to the European Court of Justice against Spain, Scott, a number of years ago in which a British citizen was held in custody for four years and then acquitted. I do not know any real method of getting cases on quicker before the European Court of Justice except that it does have some fast track procedures, the equivalent of injunctive proceedings, which the European Court of Human Rights lacks. If 22 months from start to finish is what European Court of Justice does, you should see what happens in the European Court of Human Rights. The other thing is that, as the Working Party rightly said, this is a matter of resources. They need more judges and perhaps getting sub-divisions of the European Court of Justice to look at things urgently. It is a logistical problem; it is not a procedural problem, I think. That was the conclusion of the Working Party. I cheered that section of the Working Party.

  121. Bearing in mind your concerns for the rights of defendants, you would find it acceptable for someone to be held in custody for 22 months?
  (Mr Jakobi) I do not hold it at all acceptable for people to be held in custody for more than four or five days without reason, and that is what human rights law says in countries that do not have habeas corpus as well as countries that do. Having said that, if there are reasonable grounds for holding them, we next come to the problem of bail, the problem of trial. What the European Court of Human Rights said in Scott is: you have an unanswerable right to bail after a certain amount of time, depending on the case, even murder, if you are not tried quickly. I think one has got to put this principle right through the system as soon as possible. It is not acceptable to hold people for 22 months but there are practical and logistical problems, and that is really what I said.
  (Professor Peers) I think there are ways within the existing judicial architecture of the Court of Justice whereby it could clear some of its backlog, as it were, and its current obligations to answer questions so that there would be a possibility to answer any criminal questions, perhaps asylum questions. Depending on the questions, you would also get quickly an enormous interest in answers to human rights. There is the possibility, after Nice, to shift significant amounts of the existing preliminary rulings jurisdiction to the Court of First Instance and the Court of First Instance could in turn have a significant amount of its case law shifted to judicial panels. If you were to set up staff tribunals and panels dealing with competition and intellectual property, that takes away over half of the Court of First Instance jurisdiction. In return, you could, give that court references on competition, VAT and state aids law. Where there is an established jurisprudence in the Court of Justice, there is not so much of a problem in transferring that issue to the Court of First Instance. That leaves you with a much lighter case load for the Court of Justice, within which it could focus, having had the time and resources on setting priorities such as specifically some of the cases coming out of this title. You could perhaps leave aside cases where we are talking about fines or where someone does have bail or something like that, but especially cases with a person in custody or where they are explicitly dealing with child custody or where someone is facing expulsion proceedings, it is important to resolve that quickly as well.

  122. You see additional action being taken in order to reduce the time it take at present for a reference?
  (Mr Jakobi) The Working Party recommended more resources for the European Court of Justice. It is a logistical problem. If you have more judges and more sub-divisions, then of course all these things happen much more quickly.

  123. Basically, you say the only way it can work is through the European Court of Justice having additional resources to take on board additional work ?
  (Mr Jakobi) Yes.

  124. Therefore you are saying that the 22 month period would not be acceptable?
  (Mr Jakobi) In principle it is not acceptable but one has to accept the logistical limitations. I am hoping that resources will be found in Europe to have an efficient, European level justice system that works. We have not got one in the European Court of Human Rights, I am afraid. As somebody who works at ground level on case work, we realise the real limitations of the work of the European Court of Human Rights, the worst one of which is that if they take a decision as the court of last resort, the decision is not obeyed in all the nation states of Europe. In the landmark interpretation case, some 15 years old now, Kamasinski in Austria, about three countries actually made the effort to get the standard of interpretation and translation right, including, I am glad to say, the United Kingdom. As for the rest, nobody is anywhere near it. It is no good having a court of last resort that supposedly is setting standards for the whole of Europe if nobody listens to it.

Mr Connarty

  125. We have had a lot of illumination on that point. I put a question to Professor Peers. If I quote your submission to the Working Group X on borders and external frontiers, you made a rather controversial statement. I believe you said: "The crossing of the EU external frontier is not a criminal activity but an exercise of rights . . ." Given that view, are you content with the provisions for border controls contained in Article 10?
  (Professor Peers) The paragraph before that talks about it being for most people an exercise of rights. Obviously there are some people who do not have a right to cross the border because they are not EU citizens or people under an international treaty, like the GATS who have the right to provide services here, and so on. The problem with the provisions on border controls is that they leave aside the question and it is a bit ambiguous as to whether a European border right could be set up. What we suggested was that that would be such a major change because it would transfer coercive powers to an EU institution, an EU agency, or some kind of EU body and it could only happen if you only have a unanimous vote of Member States in the Council plus full ratification by national parliaments like the election procedure for the EP or a Treaty of Accession and so on. There is nothing here to mention the European border guard at all, so it is not clear whether they are going to fit in within this concept of integrated European border management or whether it would be simply ruled out without further Treaty amendment. I think that would be our main concern on border controls, that you would have to have an approach somehow defining where the European border guard fits in and create stringent rules if it is going to be created, otherwise you might get it by stealth as part of this integrated border management system. That already happens; there are all sorts of informal bodies already being set up as part of the current move towards such a system. That would be our principal concern.

John Robertson

  126. May I ask about the memorandum, and this is a question to Mr Jakobi, where you state: "Mutual recognition rests on mutual respect for the fairness of trial leading to . . . judgements." You go on to say that such respect must be earned. Does this mean that, in your view, the principle of mutual recognition must be based on common minimum procedural standards?
  (Mr Jakobi) Yes. At the back of everyone's mind today is Iraq, and if it is not, I would be very surprised. There is a battle for hearts and minds whichever side of the public debate you are on. There has been no battle for hearts and minds in the principle of mutual recognition. This is a principle proposed by governments to governments. If you ever took an opinion poll on "Do you think you would like to go and present yourself to Greek justice and do you think you would get a fair trial" and you took it to any country in the rest of Europe, I would be surprised if you got 5% in favour. It needs the selling job if you are going to be a democratic society in Europe. The only way you can sell it is to make people satisfied that in whichever court you end up, throughout the European Union, never mind that the procedure is unfamiliar, you will get a fair judge, an adequate lawyer and a good interpreter so that you can defend yourself on equal terms. If the public realise that there are people doing that, you can sell it; if they cannot, it is just going to fall into total disrepute and the whole mechanism of law enforcement at the European level will fall into disrepute.

  127. As a follow-up to that, could I ask you whether the court before which recognition is sought should be entitled to re-open the question of the fairness of the trial?
  (Mr Jakobi) Yes. I think it is essential. I give you an example of the sort of problem I am getting. Yesterday I was consulted on a case, and I can summarise it very quickly. It was a lorry driver case. We get a lot of lorry driver cases but this one was in Greece, which we hardly ever get. What happened to this poor guy was that a bundle of immigrants had slipped into his lorry one way or another; he was hauled before a court within 24 hours with a lawyer who could not understand a word of what he was saying and who was state-appointed. The lorry driver was sentenced to a large number of years and nobody ever looked at the lorry or looked at any aspect of his defence at all. When you have problems like this in any part of Europe, there is an uphill job to do. You have got to be able to re-open cases and re-try them. It is important that is done at the first available opportunity if there is going to be any public confidence.

Miss McIntosh

  128. Welcome, Mr Jakobi, to the Committee. May I say how much I admire the work that you do. When I was an MEP, we did work together on one or two lorry driver cases.
  (Mr Jakobi) Of course we did.

  129. With the extension of the provisions to the criminal law, in view of what you have just said in reply to a question two questions ago, can you actually persuade us why we should have preliminary rulings applying to the criminal law. Can you see a compelling reason for that? Personally, I am pro-European but, as a Scottish advocate, I have severe reservations about extending European treaties to criminal law, and I have always argued that. Can you give us some compelling reason why there should be preliminary rulings in criminal cases?
  (Mr Jakobi) I think it is terribly important that when you have problems like bail, there is no way of sorting it out except very quickly. The lack of a European level of bail and sensible provisions for foreigners in the country to go home and wait for their trial really thwarts justice in a way that is quite horrific. I have had people who have been remanded in custody with crazy cases against them. I gave a very good example of that. It ruins families; it ruins their economies to have somebody in prison for even a relatively short period of time. Getting preliminary rulings at the Europan level early on is an obvious case, for the time being anyway. Later on, we hope everybody will catch up but it is going to take a number of years for the courts to catch up with a European level standard. To begin with, junior judges are xenophobic in many countries, to a large extent. It is no good waiting for appeals until there have been some firm preliminary rulings. It will not take many. The national governments concerned will take the lesson and I think we will get a big drop in traffic. By the way, we are about to form a Scottish branch of Fair Trials Abroad. We realise that there is a totally different jurisdiction there. We have a very well known Scottish lawyer who is about to take it all on in Scotland.

  130. I am delighted to hear that. If we all accept that bail is a human right, how are you persuaded that we can impose bail where it does not exist in other Member States purely by a referral for a preliminary ruling?
  (Mr Jakobi) Bail is a human right enshrined in the European Convention of Human Rights. It is not a brilliant invention of the British. It may have been actually, which is why it appears in a rather convoluted form and one gets rulings from the European Court of Human Rights that you have got to bring people in front of a court to begin with within four or five days, whether it is habeas corpus or under the European Convention. Secondly, if things are taking too long to get to trial, bail is an immediate right. There is a number of rules, depending on the sort of case it is. I will not weary you with those. That is clearly established. In the case I ran, it was very clearly established. It is the home country's duty to get on with it and try people. Provisional liberty is recognised by everybody; it is not called bail. One of the things that the Commission is engaged in, and I wish them joy in their activities, is to look at some form of harmonisation of conditions for bail so that a French magistrate can be confident that if he imposes reporting to the police, it will be done in the UK. We would welcome that to get people bail, but every country bar Scandinavia has some sort of bail system. As I said, I think we have to get provisional liberty incorporated into the European Union. We are establishing our own sets of rules accordingly. The Commission has a Green paper out and there will be supplementary papers looking at practical things like bail and evidence. They are undertaking a huge exercise at the moment. They have got as far as a Green Paper. It was not even alluded to in its Working Party. I could not understand why not.

Mr Connarty

  131. I am sure you can have long-term contacts with Mr Jakobi if you want to discuss some of these things outside. We do not want to get into that particular dialogue. I wonder whether Mr Jakobi is aware of the words he used. You did actually say, "Junior judges are xenophobic in many countries". That is a very challenging statement. I must give you an opportunity either to justify that or row back from it if you wish.
  (Mr Jakobi) Court remarks have been reported to me from France and Spain, and I have come across it continuously in trial. For example, from France comes the statement: "The Dutch used to be known for their tulips; they are now known for their drug smuggling activities." That came from a French court and was reported to me by one of my French correspondents. Only a few decades ago those of us who started in the law about 40 or 50 years ago came across racist and xenophobic remarks by judges as a matter of course and very little was done. We have moved on in the United Kingdom, and so have many other countries, but there is a problem of xenophobia and it comes out in all sorts of ways such as: if you get a character reference from a foreigner, it does not count as much as if you get a character reference from somebody who is a native. We have many instances. In practice, case work that comes across my desk that makes me form that opinion. There is an enormous training job to be done on judges, and some countries select their judges and pay them so little that the most peculiar characters become judges.

  Mr Connarty: I do not want to pursue it too far, Mr Jakobi, if you do not mind. I just wanted to give you a chance to clarify that. As someone who was trained as a justice of the peace in Scotland over a year, I found some peculiar practices at that level as well.

Mr Bacon

  132. I am tempted to ask you more about these peculiar characters! Can you say what your position is on the provisions in Article 16 for common rules on specific elements of criminal procedure? Are common rules needed in the EU when we do not have such common rules for England and Wales, Scotland and Northern Ireland? Is Article 16 consistent with the principle of respect for different European legal traditions?
  (Mr Jakobi) We are talking about common minimal procedure.

  133. We are talking about two things. We are talking about common minimum standards, which are referred to in Article 16, and common rules on specific elements of criminal procedure.
  (Mr Jakobi) I think that ties together. I am not at all sure, and I was not on the Working Party, whether it does or not, but to my mind what is coming through is that through having some common elements, we can ensure that the human rights elements of procedures are applied throughout Europe. My problem is that a Europe that contains the Netherlands and Greece is a Europe that might as well contain Morocco and the Netherlands from the point of view of the foreign defendant. This is coming up time and time again. The procedures, I would have hoped, are to raise the minority where we have serious problems to the standards of the majority who have very different criminal procedures. The Dutch procedure is very different from ours. The German procedure is very different from ours and the Danish procedure is rather like the German procedure, as is the Austrian one, and yet they all maintain a very high standard of defendants' rights. Once interpretation and translation have reached the right standards throughout all these countries, I would be as confident of being tried in one of those countries as I would be here, and that is procedurally.

  134. Does it concern you that the Working Party, although it consulted institutions like Europol and Eurojust and a raft of academics, did not consult either legal practitioners or anyone from a common law jurisdiction?
  (Mr Jakobi) I noticed that myself. I was a little surprised that we were not consulted on the criminal justice aspects since we are the only organisation in the world that is concerned about foreigners as such and their rights to justice—we are a European Union organisation well recognised by the various elements that float around—but we were not. It is an extraordinary document. Once I had plodded my way through it, I was still puzzled as to how you can give equal weight, and perhaps someone can assist me, to the elements of freedom, security and justice. Trying to bundle them as the same quality beggars belief really to anybody with an elementary knowledge of law, legal systems, jurisprudence or anything else. I still cannot understand that principle. I pointed that out in the paper.
  (Professor Peers) On this particular point, I think it would better if Article 16 made clear that, if this is to be developed, they must both have respect for national traditions and not change the fundamental procedural structure of Member States, plus also they would not in any way result in a lowering of standards that are applicable in Member States but rather are designed at least to maintain them or strengthen them, as compared to the way they are now. If I could indirectly answer Anne McIntosh's question, I think one of the most important things in this context would be that if these are to be directly effective measures as Directives are now, then there is a great deal of importance in the Court of Justice because then you have a type of external supervision, which you have now of course in the area of the internal market. We can ask ourselves whether free movement of persons, goods and so on really would have been ensured, if we are talking about foreign judges giving effect to those freedoms against national industries or foreigners whom they suspect, national capital moving in and taking over their own companies. Would national courts really have given full effect to that if it were not for the combination or direct effect of the Treaty, the legislation and the possibility and obligation of the top courts to refer to the Court of Justice? I think there would be a significant difference in enforcement of the internal market and if you ask the same question as regards foreign criminal suspects, you have your answer, I think.

  135. May I ask one more quick question about Greece and the plane spotters? Was not the fundamental problem that they broke Greek law?
  (Mr Jakobi) No.

  136. They did not break Greek law?
  (Mr Jakobi) No, and it was held that they did not on appeal. They never broke Greek law. One myth which has spread very quickly and was actually the leader in The Times was that they took photographs of air bases. It was established at trial that the arresting officer found no cameras on the people arrested whatsoever. So they cannot have that one. There is a lot of myth. They broke no Greek law. They were totally vindicated on appeal but it took the combined might of the British and Dutch Governments and a lot of pushing at prime ministerial level to get that acquittal.

Miss McIntosh

  137. Could I thank Professor Peers for that clarification. I ask you both this question. My understanding is that in civil proceedings the common rules are limited to purely cross-border cases. Does it not concern you that there is no such limitation here? Mr Jakobi, you referred to the commonality or common procedures for rules of legal procedure, but how far would you follow that logic through? You mentioned the example of Denmark. I have studied in Denmark but I am not particularly conversant with Danish law. My understanding is that if a man is convicted for rape, he normally only gets a conviction and a year and a half imprisonment. That is very different, for example, to the sentence that would be granted by a UK court. How far would you follow the logic through to sentencing people?
  (Mr Jakobi) We are Fair Trials, not Fair Sentences. It is quite outside my mission. I am really not qualified unless there is discrimination. We have come across discrimination but not within the context of the European Union—in Morocco for example. We will support a case on appeal if a foreigner gets double because, of course, as an EU citizens' organisation, we defend the rights of fair trial and fair treatment. If everybody is going to get life imprisonment for spitting on the pavement in certain countries, it is none of our business.
  (Professor Peers) To answer the first part of that question, I think it probably would be more convincing and easier to persuade the public if Article 16 were limited to cross-border situations in more or less the same way. We would not have to be linking it with the internal market; that would be odd. Whenever someone is a foreign defendant or where there is an extra-territorial jurisdiction of some sort or some element of the evidence moving, even if the crimes all take place in the same country—because there is a foreign witness or the witness has moved abroad, something like that—then I think it would be useful to restrict the Union rules to adapt to that. That is probably the most obvious case for intervention by the European Union. In that case, if you did have such a restriction, I think it would be easier to justify qualified majority voting and co-decision by far.

  Mr Cash: We have the benefit of Anthony Trollope QC's evidence on behalf of the Criminal Bar Association. I just think it is useful perhaps to refer to that because he is not here today. I just mention that he does say that with respect to the adoption of minimum rules on the constituent elements of certain offences and in respect of criminal procedure, he has, as does the Criminal Bar Association, serious reservations about the degree of uniformity which is incompatible with national systems. He goes on with respect to criminal procedure to say that there may be valid concerns that the rights and protections enjoyed by this group before national courts will be adversely affected. So the Criminal Bar Association is very concerned, quite clearly, about this assimilation within the European Court and the procedures which have been imposed along the lines that I mentioned about seeking to get consistent procedures. You said earlier that you can make it work. That is the big question, is it not? You certainly seem to have some evidence, do you not, that there are many instances, and the Greek one is a good example, and I guess that there are many others that come to your mind, where getting them to work depends on the attitudes of the people who are implementing the laws, which to some extent is about national parliaments as well.

  Mr Connarty: Mr Cash, if you were in court, I think you would be leading the witness at this point.

Mr Cash

  138. I am doing my best.
  (Mr Jakobi) I hope I may be forgiven, Chairman, but as one solicitor to another, I recognise when I am being led in evidence! I gave evidence to a House of Lords inquiry a number of years ago on the corpus juris system. I think it had a lot going for it and a lot of rubbish within it. Let me say immediately that there were some ridiculous propositions and it was not very practical. Having said that, what worried me so much was that here we were discussing a European system and I believe that we were the only organisation that took a European view on matters and everybody else took a view, including civil liberty organisations: we do not want that filthy foreign rubbish here. This worries me. As I said earlier, we have a European legal system. We were not really consulted about it and our governments decided we would push mutual recognition as the basis of a system. To my mind, the fundamental characteristic of a legal system is that if one court makes a judgment, it is recognised everywhere else in the legal system We got it; it is de facto; it is here. The next question is: what can we do about fundamental rights of defendants within the totality of the system to protect all our citizens, wherever they are, against unfairness and discrimination? How far one wants to go along the Criminal Bar route or not must be tempered with that idea. I do not think I can take it further.

John Robertson

  139. Moving on to Article 17, and we have already touched on cross-border dimensions in other Articles, could you tell me: are you content with the provisions for the approximation of certain areas of criminal law within Article 17?
  (Mr Jakobi) It is not my business actually because, as I said, this is a matter of substantial criminal law. The business about life imprisonment for spitting on the sidewalk is not my business.
  (Professor Peers) In our submissions we suggested that the idea of harmonising substantial criminal law should be viewed with caution as to whether there really was a need for it. Under the current system, we have agreements within the Council which are essentially negotiated by the executive, whereas of course the tradition in developing criminal law there is that there is quite a fierce and important significant debate in parliament and the extension or reduction of criminal liability is controversial. There is a proper parliamentary debate. The current system really is not satisfactory from that point of view. It is not necessarily clear that we need to have quite so much substantive criminal harmonisation, including the issue of penalties, which is included in Article 17. Anne McIntosh has mentioned that we already have a number of measures that do impose minimum penalties. The Halliday Report in the UK suggested that the level of penalties does not seem to have an effect on the level of criminal activity. If that is the case in the UK, then it is entirely likely it is the case within the rest of the European Union. You would question the need to have common minimum penalties as well. The second indent of Article 17 is a far stronger case for qualified majority voting and co-decision wherever the first pillar already contains the provisions for harmonising a policy; for example, fisheries where it might potentially be useful to have more detailed rules on criminal penalties for those who breach quotas, an idea which is subject to a unanimous vote at the moment. You can obviously draw a link between Community policy there and, similarly, things like counterfeiting the euro and waste or environmental issues. It would be useful to clarify that point. It is a very difficult legal argument at the moment between institutions in the EU and Member States, but there should be a simplified way of adopting rules in that area. After all, Community legislation on the environment, or for example fisheries, sets out a prohibition and it is only a small step from there to going into the precise detail of exactly how to define the offences in question. They have more or less all been half defined in Community legislation already, so that is less of a problem, I think, than in other areas. In other areas I think there is a serious question of principle as to whether or not national parliaments should be effectively removed from the debate by moving to qualified majority voting because normally it is they who have the fundamental roles. Within the national political system, the system in which lies the contract between citizens and the states, the question of what is going to be criminalised, it is traditionally the national parliament where that debate takes place and there may be big differences between Member States on some of these issues as to exactly where to draw the line in particular cases. Even if we all agree that child pornography is bad, we may have fundamental differences over exactly what age of child we are talking about, so I have a great deal of misgivings about the first rather more than the second.


 
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