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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