Examination of Witnesses (Questions 20-39)
28 APRIL 2004
CAROLINE FLINT
MP, MR RICHARD
BRADLEY AND
MR SIMON
REGIS
Q20 Mr David: In a few days more time
we will be looking at a European Union of 25 Member States. To
be perfectly honest, I think it is reasonable to say that not
every country in Europe will have the same standards of law that
we have in this country—and you could argue that that applies
to the existing European Union, let alone an enlarged one. I am
thinking in particular of the situation in Greece. We have all
heard about the scandal, as many of us thought, of the plane-spotters
being incarcerated. Are you able to imagine a situation whereby
if a European Evidence Warrant had been enforced you could have
had the homes of these plane-spotters in Britain being searched
on the basis of what had been decided in Greece?
Caroline Flint: Would you like
to say something on that particular case, Richard.
Mr Bradley: Of course that particular
case was not one where mutual recognition processes were applied
because the people concerned were actually in Greece and were
arrested there. But, to follow up your question about searching
processes here, we would only have to carry out searches if the
person asking for the search, the authority issuing the evidence
warrant, had certified that it was necessary and proportionate,
and then there are various safeguards which are set out in the
European Evidence Warrant proposal, such as giving notification
after a search has been carried out, which are rather similar
to the processes which apply under the Police and Criminal Evidence
Act. So it is not clear that this raises a whole set of new and
difficult questions which we do not already have under our mutual
legal assistance processes.
Q21 Mr David: You say it is not clear,
but is that not slightly worrying? Should it not be very clear
because a lot of people have legitimate concerns about certain
hypothetical scenarios developing but nevertheless ones which
could severely impinge upon people's civil liberties.
Mr Bradley: I say it is not clear
because we are at the beginning of a negotiation process and the
kind of issue you have brought up I am sure will be amongst those
which will be discussed in the negotiations. One of the concerns
we have is the possibility of evidence warrants being issued for
offences which are not of a very serious order. We are looking
at whether there should be some type of threshold, that at least
the offence should be punishable by a certain period of imprisonment
in the country that issued the evidence warrant.
Q22 Mr Bacon: Do you mean even if it
is not an offence here?
Mr Bradley: Yes. That comes back
to the point about dual criminality.
Q23 Mr Bacon: It would be acceptable
to you if it were not an offence here. So long as it were a sufficiently
serious offence to warrant a prison term in the country you are
talking about, then it would still be okay.
Mr Bradley: That is the point
the Minister made earlier: we are looking at whether there should
be a restriction concerning the territoriality of the offences.
If we are talking about offences which were committed in the country
that investigated that offence, then it seems reasonable that
we should cooperate with that country in providing evidence.
Q24 Mr Tynan: This is the first step.
We are at an early stage. This evidence session is really to express
our concerns, so that you are aware, Minister, of the concerns
that exist. The proposal does not allow a state to refuse to execute
a warrant on the grounds that to do so would be inconsistent with
the national law. Do you agree with that?
Caroline Flint: We think we need
to have a system where warrants can be executed. I think we are
looking at a safeguard within this and the procedure that is the
process. This is about a process of gathering evidence rather
than something that is directly a factor of our national law.
In that sense, I think it has been mentioned earlier, the question
of whether a crime is a crime that exists in this country, the
issue of dual criminality, if you like, the fact that we are accepting
within some of the provisos and safeguards the issues about the
territory in which the offence is committed, we can see a situation
in which we would permit the gathering of evidence even if an
offence was not one under national law. I suppose in that situation,
in that scenario, the answer to your question would be yes. We
can see a situation where, even if a situation was not an offence
under our own national law, we would still cooperate with some
evidence. Likewise, if an offence was committed in the United
Kingdom and we felt there was evidence that we wanted to get from
another Member State, we would like a quid pro quo and
have the ability to have involvement in that process. It is the
process, I think, that is important here. I was not underestimating
how important processes were before. I think, as Mr Bacon mentioned,
just because it is a process does not mean we must not look at
these issues, but it is about a process rather than affecting,
if you like, how we implement our own domestic proceedings and
our own law in this country.
Mr Regis: Currently, under mutual
legal assistance, unless it is a request for a search procedure,
dual criminality is not applied in relation to requests that we
currently receive. If they are seeking, for example, evidence
in relation to banking information and telephone records, the
offence does not have to be an offence in the UK for us to provide
the assistance. As long as it satisfies the test set out in the
Crime and International Cooperation Act 2003, which is that if
it is an investigation or criminal prosecution that has come from
a competent authority abroad, we will execute.
Caroline Flint: May I mention
one thing in terms of coercive measures, because I think this
is an issue that is of concern to the Committee and of concern
to us in negotiation. When we talk about the coercive measures,
which are search and seizure, we only mean the measures such as
that which are already available under the domestic law of the
executing state. We would not expect them to ask us to carry out
something that would not be in line with PACE, for example, and
in some way, if you like, undermine the procedures and measures
we would take to enforce the law in this country. That is one
of the issues where we are looking to influence the wording, because
we do think within that area requests could be made but how it
is carried out should be left to the individual Member State in
line with their procedures.
Q25 Mr Tynan: What about the case where
the execution of the warrant could be contrary to the Human Rights
Act 1998?
Caroline Flint: I do not think
we would expect it to be. We would want to make sure that the
conventions that apply to other areas of mutual recognition should
be applied in this area. I think there is an issue in negotiation
about looking at where, within this, aspects like that should
be on the face of the proposal. I think that is something we should
take up in negotiation.
Q26 Mr Tynan: You are saying a state
cannot or should not under the present terms of the proposal refuse
to execute a warrant on the grounds that to do so would be inconsistent
with the national law. You have said yes to that. We are then
in a situation where you are saying that, as regards the execution
of a warrant, it would be contrary to the Human Rights Act 1998
and that should not happen. That seems a slight contradiction.
Could you clarify that, please.
Mr Bradley: I think there is a
difference here because the Human Rights Act is based on the European
Convention on Human Rights, as you know, and all measures taken
by the European Union have to be in conformity with the European
Convention on Human Rights under Article 6 of the Treaty on the
European Union. Therefore, we do not believe that the Framework
Decision could have the effect of requiring us to take action
contrary to the European Convention on Human Rights, but we would
see some advantage in spelling that out on the face of the Framework
Decision as it was also in the European Arrest Warrant.
Q27 Mr Tynan: Obviously clarification
is important. Would you seek a derogation from the European Convention
on Human Rights for the European Evidence Warrant?
Mr Bradley: Certainly not a derogation
from the European Convention on Human Rights but also not a derogation
from this Framework Decision. We would not be looking for a special
opt out. We would be looking for a clarification that the Framework
Decision does not affect the principles of the European Convention
on Human Rights. That would mean in our own law, in implementing
the Framework Decision, that we would be able to make clear that
the court could apply the Human Rights Act and could if necessary
refuse to enforce the European Evidence Warrant if doing so would
be contrary to the European Convention on Human Rights.
Q28 Mr Tynan: Would you not accept there
is a contradiction in what you have said in your responses to
the questions I have asked?
Mr Bradley: No, I do not believe
there is a contradiction, because in one case we are talking about
consistency with national law and we are saying that in line with
the mutual recognition principle it would be unhelpful to have
a general clause saying that you do not have to enforce a warrant
if doing so would be inconsistent with your national law, and
in the other case we are talking about international law and the
European Convention on Human Rights would apply across the board
to this instrument.
Q29 Mr Tynan: Would you give an undertaking
that in no circumstances will an authority in this country be
obliged to execute a warrant when to do so would be contrary to
the Human Rights Act?
Caroline Flint: Yes, I think so.
Yes.
Q30 Angus Robertson: I wanted to give
an example to illustrate the point. In a previous life I worked
as a journalist and I handled a number of court cases in Vienna
where people with very extreme views were facing charges of wiederbetätigung,
which is, roughly translated, national socialist agitation. Under
Austrian and also German law freedom of expression and association
is suspended if somebody holds such views, because of the particular
history and experiences of those countries. Under the circumstances
of going ahead with these measures, will procedures be pursued
in cases such as this because of somebody's political views, however
heinous we may think they are, which are illegal in other countries
but not here?
Caroline Flint: The short answer
is if it is an offence in that country and the offence took place
in that country, then, yes. Given the other issues we have said
earlier about human rights and ECHR, it would be appropriate for
the issuing state or authority to seek our support to gather evidence.
I think that would be the case. As I have said before, we have
some concerns about issues around where offences took place which
we are seeking to look at, but if the offence took place, for
example, in Germany, and they were seeking our support through
this, then we would I think cooperate in those circumstances.
Q31 Mr Cash: I am sure you will appreciate,
Minister, that what you have just said may be convenient for the
purposes of the state in question, but, actually, in so far as
it affects the kind of legal framework that we are used to in
this country, there would be journalists, and for that matter
politicians, who have very strong views which are an exercise
of their freedom of speech but which, as my colleague has said,
may be inconvenient or even thought to be undesirable and criminal
in another state. That, as far as this country is concerned, is
in fact something which can be done properly, even though it may
be open to criticism. Surely you are really saying that somebody
like Hans-Martin Tillack, the Brussels correspondent of Stern
magazine, who has been detained for ten hours on the allegation
that he corrupted a public official and so on, is a serious kind
of example and in respect of which, quite frankly, we would not
regard the circumstances to warrant the degree of aggression that
was shown in his case. Do you have any comment on that?
Caroline Flint: It is hard for
me to comment on that individual case because I do not know the
ins and outs of it for a start. All I feel I can say, which is
trying to give a clear answer to the question, is that on the
basis on which we are discussing the issuing and the executing
of a European Evidence Warrant, it would stand that if an offence
took place in the issuing state and they wanted to enact the procedures
in this regard then the fact that that is not necessarily an offence
here would not be a bar to us executing the evidence warrants.
At the end of the day, the other issue is that their own systems
in terms of their trial would have to take place. Similarly, for
us, if an offence takes place in the United Kingdom for which
there is not an equivalent elsewhere, we would seek potentially
to be the issuing state, to seek evidence to pursue in a case
which we are trying to bring to trial in this country. That is,
as I have said before, within our safeguards in relation to the
European Convention on Human Rights. Richard can give an example
of that, if that is helpful to the Committee.
Q32 Mr Cash: My concern is that it is
open to the Belgian authorities to accuse Mr Tillack of corruption—and
you know the circumstances in which he is being given a hard time—but
the problem is that on this basis the home and offices of Stern
journalists in this country could be searched. This is the point
which certainly I am concerned about: not only the question of
whether or not in Belgium Mr Tillack can be accused of corruption
but the consequences of bringing this system into operation would
mean that journalists who lived in this country would have their
homes and offices searched in those circumstances. You see how
sensitive this can become.
Caroline Flint: If it is an offence
of corruption, we recognise the offence of corruption, so, without
knowing too much about this case, it would be—
Q33 Mr Bacon: It is not an offence in
this country for journalists to give members of the public money
for information.
Caroline Flint: As I say, I do
not know the details of this case, so it is very hard for me to
answer. I have tried to answer in a broader outline but Mr Bradley
has an example which might be helpful to the Committee.
Mr Bradley: I wanted to give one
example of where the UK might want to issue an evidence warrant,
and at present we would also issue a mutual legal assistance request,
and the dual criminality rule might be a problem for us, and that
is the offence of conspiracy. Conspiracy, of course, is a common
law offence, not necessarily recognised in the same way in all
the Member States. The fact that we would not have to satisfy
the dual criminality requirement could be useful to us in pursuing
allegations of conspiracy.
Q34 Mr Bacon: Chairman, may I pursue
this point a little further? Mr Bradley has given an example of
the UK wanting to issue a warrant and I understood Mr Cash was
talking about instances where foreign authorities want to issue
warrants here. Could the Minister confirm, because I think this
is the implication of what you were saying earlier, that circumstances
would or could arise under the European Evidence Warrant whereby
a home of a person in this country could be forcibly entered at
the request of a foreign authority to gather evidence for something
that was not a crime here? That is correct, is it not?
Caroline Flint: That is correct,
but one of the issues I would like to add is that we are looking
at and would like to negotiate on what threshold might be used
for those search powers to be used.
Q35 Mr Bacon: Do you expect that the
offices of journalists and law firms should be included in that
or should they be exempt?
Caroline Flint: I think we need
to define better what we understand by premises. I think in relation
to that it would not be a bar, would it?
Mr Bradley: I think I would like
to invite my colleague Simon Regis to comment on questions of
legal privilege which might arise in executing a warrant.
Mr Regis: In terms of warrants
being issued against solicitors' firms, yes, the warrant could
be executed but not against legally privileged material. That
is something which is contained within the draft Framework Decision,
Article 15: "If there is an immunity of privilege under the
law of the executing state which makes it impossible to execute
the European Evidence Warrant . . ." We would say legally
privileged material falls under that category.
Q36 Mr Bacon: Do you mean by that they
could stomp around inside a solicitor's office but if somebody
pointed to a pile of papers and said, "I'm sorry, you can't
touch that, that is legally privileged," that is how it would
be sorted out?
Mr Bradley: We have processes
in the UK for dealing with privileged matters. Those processes
would be exactly the same. This sets the outline. How we execute
will be the way we currently do things. It is not a situation
of a foreign officer coming in and saying, "We want to get
this," and somebody saying, "That is legally privileged."
We employ the same processes that we do for domestic situations.
Q37 Mr Bacon: I understand that. But
it is at whose behest it is, is it not? As Mr David made the point,
25 countries now are coming into the EU and they do not all have
the same standards. Mr Connarty raised this question of potentially
malicious grandstanding by small jurisdictions. Is that not a
worry?
Caroline Flint: I think one of
the reasons we are having the discussion about this document—and,
as I said, it will take time—is to get the reassurances—which
I think is fair enough—about who will be the issuing authorities
in countries; what are the safeguards there that apply to us all;
what will be the process where the issuing is not being handled
correctly or the evidence once it is provided is not being dealt
with appropriately; what are the safeguards to tackle individual
Member States if they abuse this framework. I suppose that goes
for a whole number of other issues which we currently attend to,
let alone the issue of the European Arrest Warrant—and,
as you will be aware, a number of countries are still having to
go through the processes of making sure their systems are up to
meeting the demands and the safeguards of that particular piece
of mutual recognition.
Q38 Mr Cash: When you referred to the
question of whether or not an individual Member State abuses the
system, that is not really the problem, if I may suggest, Minister.
The real problem is there is no definition of the offences. For
example, I mentioned the case relating to corruption and it is
because the offence of corruption is defined in Belgium in a particular
way that the problem arises. If you take things like environmental
corruption, sabotage, swindling, and I have mentioned racism and
xenophobia, the problem is that in relation to the mens rea,
the question of whether or not the person had a guilty mind in
relation to a criminal act and the pile of papers to which Mr
Bacon referred, these are police officers who go in there and
they cannot possibly cope with this situation where they have
to work out whether or not a particular criminal offence has been
committed. Furthermore, the question of whether or not it is right
that the question should be left wholly to the law of the issuing
state to characterise those acts as criminal. The real problem
therefore is a much, much deeper one: it is actually about what
is criminal and what is not as well as the problems and failings
in the procedures. The more I hear, the more concerned I get.
Finally, we are told that the United Kingdom would be obliged
to abandon the safeguard of dual criminality in all cases after
five years. Do you not think, in the background to all this, that
this is just a manoeuvre, a stepping stone? This is what is really
going on and, actually, despite any attempts you may make, the
bottom line is that sooner or later we are going to find we are
absorbed and wrapped up in this, and that is the real problem,
and that, frankly, to go back to my earlier point, this should
be red-lined and vetoed and we should not even need to discuss
it now.
Chairman: Everybody wants red lines.
Q39 Mr Connarty: Could I put on the record
my thanks to Mr Regis for properly explaining to the public of
the UK something they probably do not know, when he said that
at this moment things are going on under the present arrangements
which allow things to happen—although people do not know
they are happening—in getting evidence collected. The question
is what are the supposed criminal accusations that allow this
to happen? No one here is against anything that would stop international
crime in the pure sense, but if it is used in other ways that
means citizens' rights are being breached because of these mutual
arrangements between police forces and jurisdictions, I think
we would be greatly concerned. Dual criminality seems to have
been another factor in the example which I thought people might
have known from your office, the example which I mentioned earlier
of Formula 1. There was a malicious prosecution against a senior
executive of Formula 1 which was seen to be grandstanding by a
minor jurisdiction, and the way it was struck down was because
dual criminality did not apply. The worry of UK companies about
the European Arrest Warrant is that that would not protect them
and their whole operation could grind to a halt through this kind
of grandstanding. On dual criminality for evidence gathering,
similarly, unless the public have some confidence that their human
rights and their basic rights are not going to be breached because
people are searching for evidence for criminal acts that they
think may have taken place that are offences in one of the 25
EU countries, then people will feel that they have been abandoned
by the Government to the whims of 25 jurisdictions and minor jurisdictions
in those 25 countries. What is the Government going to do to protect
people? It does seem from the statements that we have in the explanatory
memorandum that the Government is supporting abandoning dual criminality
in relation to the gathering of evidence just on the basis, as
Mr Regis said, that it is going on anyway. I do not know if the
public know it is going on, or if there is any sense that the
authorities even in this country are accountable at this moment.
Are we going to abandon it willy-nilly without having any safeguards
for the public?
Caroline Flint: Could Mr Regis
just clarify.
Mr Regis: On the point of what
takes place now, we do require dual criminality for the execution
of search warrants and for fiscal offences where proceedings have
commenced. However, all other offences, with all other types of
request for evidence, do not require dual criminality. I just
want to stress that, in relation to search warrants in fiscal
offences where proceedings have not commenced, we will require
dual criminality, but for all other types of evidence now we do
not require dual criminality. That has been the case since 1990,
when Parliament passed the first Crime International Cooperation
Act.
| 
