Examination of Witnesses (Questions 40-59)
28 APRIL 2004
CAROLINE FLINT
MP, MR RICHARD
BRADLEY AND
MR SIMON
REGIS
Q40 Mr Connarty: But they are going to
abandon it for everything.
Mr Regis: Under this, yes, eventually.
Q41 Angus Robertson: Article 12 of the
proposal provides that a natural person cannot be obliged to produce
evidence "which may result in self-incrimination" but
there is no such protection for a legal person such as a company.
Are you able to explain, Minister, why this should be?
Caroline Flint: Mr Bradley.
Mr Bradley: This is because I
believe the Commission considered that the protection against
self-incrimination was one which attaches itself to natural persons,
to people in the ordinary sense of the term, and that under the
European Convention on Human Rights that protection does not necessarily
apply to a company, so they did not think that the company should
be able to shelter behind that protection. I think this is a point
on which we will have to seek some clarification in the negotiations
to ensure that we understand the reasons for making a distinction
between natural and legal persons and to be sure whether we can
agree with that assumption.
Q42 Angus Robertson: Could I pick up
on that point. A number of times, Minister, expressions have been
used such as "matters are still being discussed" and
"clarification is still being sought". I suspect certain
things are wanting to be tightened up. I think that all Committee
members appreciate that you would never go into chapter and verse
about exactly every item on which you are wanting to seek clarification,
but could you paint a picture of exactly where the major causes
of concern from the UK Government are in regard to this whole
measure and what are the particular areas that you would want
to see improved.
Caroline Flint: Certainly some
of the issues we are concerned about are issues around clarity
on the territory in which an offence took place. We think that
is an area we need to look at. We are also concerned, as I think
we raised earlier, as to whether specific references to obligations
under human rights should be there within the document. We are
also concerned about the issue of retaining the options we currently
have of transmission of requests via a central authority, which
Mr Regis heads up, rather than the direct transmission of these
EWs to a competent executing authority. Part of that is about
the safeguard of systems and making sure we can keep tabs on what
is happening, and that is something which is particular to our
situation which is not necessarily shared by some of the other
Member States. We also talked earlier about thresholds based on
the seriousness of the offence in the use of coercive measures
and also one of the areas we are concerned about is the protection
of sensitive material, which would include information that we
would normally not disclose on the grounds of national security.
So those are particular, if you like, headline areas where we
have concerns, but clearly there are a number of other issues.
As you have just pointed out, there are issues around individuals
as opposed to organisations and companies and where that fits
into it as well. Does that help?
Q43 Angus Robertson: That is very helpful.
Just to follow up on the third point you were highlighting, you
have brought up the transmission of requests through a central
authority. Is the UK Government's position that you would wish
to have one central authority within the UK, or would you wish
to have one point of contact for all the different jurisdictions
within the UK because there are different legal authorities within
the UK?
Caroline Flint: I think it is
both, but I think Mr Regis can give you more detail on that and
particularly how it currently works, because you are interested
in how it affects Scotland and Northern Ireland.
Mr Regis: Currently under the
legislation we have the UK central authority, of which I am head.
The Crown Office in Scotland and the Northern Ireland Office have
also been designated as central authorities. Depending on the
types of international convention we are talking about, a request
may currently be transmitted only to the UK central authority,
and we will forward it on to the relevant central authority, or
it may be transmitted directly to that authority. Because the
issue has not been settled here, it may be the situation that
we say "central authority/authorities" which means it
can be sent either to my office for onward transmission or directly
to the Crown Office or the Northern Ireland Office.
Q44 Angus Robertson: Could the Committee
be informed as to how that progresses please?
Caroline Flint: Yes, that is fine.
Q45 Mr David: Minister, as I understand
it, an issuing authority as defined in the current proposal is
a "judge, investigating magistrate or prosecutor". However,
in a letter to this Committee you did express your concern that
this would exclude Her Majesty's Customs Prosecutors from issuing
such warrants. Is that still your position and still your concern?
Caroline Flint: There are a couple
of issues here. One of the issues for us at the moment is Customs,
as I understand it, are involved in investigations but also prosecutions,
so there are some issues to be resolved there. Members of the
Committee will be aware that we have a White Paper out at the
moment on the Serious Organised Crime Agency which will bring
together parts of Customs & Excise into that organisation.
So we need to be mindful of our current situation, that in some
circumstances Customs & Excise would be a prosecuting authority
but that might be under discussion as the development of SOCA
takes place. The other issue is in relation to other countries.
To give you an example, the Chief of Police in Denmark is also
a qualified lawyer and he has prosecuting status within their
system, and therefore there are some issues there about being
clear about who has the credibility and the status and legality
of position to be defined as a prosecuting authority. So for our
purposes there is a particular issue for us in relation to Customs
& Excise but there are some issues to be sorted out as well
in terms of understanding the language and who it applies to,
but it should be not just a police officer as such, it should
be a judge, investigating magistrate or prosecutor with competence
under national law to issue an EEW request.
Q46 Mr David: I understand the need for
clarification, that is a very helpful response. Do you not think
there is a need to have clarity in all of this, that the issuing
process should be confined to those who have recognisable judicial
functions such as magistrates and judges? Would that not be clearer?
Mr Bradley: That could be seen
as a step backwards compared to the present mutual legal assistance
arrangements, because at present a prosecutor would be able to
issue a legal assistance request, at least in most of the Member
States, so the restriction you propose would stop them from making
use of the new evidence warrant procedure which would slow down
the whole process.
Q47 Nick Harvey: On the issue of slowing
down, how quickly do these things take place at the moment under
the current system? Is time generally of the essence? It does
not seem to me it would be a terrible burden for our own Customs
Prosecutors to have to get a warrant issued by a judicial body,
if the cost of that is to stop people in the other 24 Member States,
who only have to be defined within their own national law, you
told us, as being authorised to issue an EEW. Would it not be
better to sacrifice a bit in time in order to stop people who
we would not think right or fit people to issue these warrants?
Caroline Flint: From what I understand,
if you remove prosecutors that would affect a whole number of
people—CPS, the Serious Fraud Office and others—from
their ability to take part in this. I have asked for a time line
to look at how presently under mutual legal assistance the current
procedures work, and the indications are that they can take a
huge amount of time, sometimes in terms of years, to sort out,
whereas under this procedure, apart from the fact it is trying
to, within safeguards, make it streamlined, it does set some timetables
for execution to take place, which at the moment is not the case.
That means that if you are the issuing authority, say the UK is
the issuing authority, as far as I am aware there is no imperative
on the executing authority to do that within a particular time.
We feel we need to have a reasonable system which works, which
does make sure the system does not grind to a halt, which can
move and can be effective, and that also requests do not just
sit there for years on end which in itself may have implications
for individuals' human rights in terms of how these things are
implemented and executed. So there are a number of things which
are being addressed in the proposals we feel which should help
the process. The time lines under the procedure which is being
presented are, "The warrant to be executed and evidence transferred
immediately to the possession of the executing authority, otherwise
to be executed within 60 days of receipt by the executing authority
to be transferred within 30 days of execution." There are
some other issues about the time line which we have concerns about
which are on appeal which we think need to be explored. There
is one aspect of the proposals which suggests that evidence could
be sent to the issuing state even if there is an appeal pending.
We think it is a bit of a contradiction to suggest you could send
the evidence whilst the appeal was pending. We would say the appeal
should be heard and resolved before that evidence is sent, in
a case where there is an appeal.
Q48 Nick Harvey: That is what I thought,
namely that the whole thing is very slow, it is not exactly done
overnight anyway. When Mr Regis says the CPS or the Serious Fraud
Office and so on would be taken out of it, I am just saying if
they have to get it rubber-stamped by a magistrate or judge that
would not slow things down hugely in the context of what you are
describing, and the advantage might be we would not get all sorts
of tin pot organisations in other states being allowed to issue
these EEWs.
Mr Regis: I take your point but
if we can come back to the question of malicious prosecution,
that would not resolve the problem, because if the warrant has
been issued by an judicial authority, if there is going to be
malicious prosecution, there will be a prosecuting judge in that
state to issue the warrant. So I am not sure we would get over
the situation. The current situation is that the prosecutor in
the UK can issue mutual legal assistance requests, and it is seen
as being more efficient than to have to go to court to make applications.
The Crown Prosecution Service issue in excess of 700 requests
a year, Customs & Excise are on about 650, and that is England
and Wales, I cannot talk about Scotland and the Procurator Fiscal
Service or Northern Ireland. So there would be an issue about
transferring that responsibility to the court and whether the
courts would be able to fit that into their own time schedules.
Q49 Chairman: Article 13 of the proposal
appears to leave it to the issuing authority to decide whether
and when to use "coercive measures". Can it possibly
be right to leave the exercise of police powers in this country
to a foreign authority?
Caroline Flint: As I was mentioning
earlier, we do have some concerns about the language in the text
relating to coercive measures. As you rightly say, the implication
at present is that the issuing authority instructs almost the
executing authority. We would like to see the language better
reflect a request, and that the decision on the measure to be
used—because it is a measure—be left to our own agents
of execution, the police, in line with PACE and their procedures.
We do not think necessarily that the issuing authority is best
placed to decide in what way collection of evidence is carried
out in the executing state. That is definitely something which
we feel we need to explore further and really the Member State
is best placed, we would feel in terms of the UK, to make some
of those decisions about how some of these things are carried
out and done.
Q50 Mr Bacon: When you say that the issuing
authority is not necessarily best placed, are you saying there
are circumstances where the issuing authority could be best placed
or is it always the case that it would be better to leave it to
the UK and the police force here?
Caroline Flint: What I am trying
to say, and what I did not explain clearly, is it would be fair
for the issuing authority to ask for premises to be searched for
evidence as outlined on the form that they would have to fill
in, but the way in which that is carried out should be left to
the Member State in line with their procedures and how their police
are currently regulated in relation to these issues. So there
are two distinct issues here. I am not saying the issuing state
should not request search of the premises for evidence, but the
way in which that is carried out should be left to the authorities
within the Member State.
Q51 Mr Cash: Are you satisfied that ACPO,
or whoever it is you deal with in this context, are rigorous enough
in restraining a misuse of this power? It is not impossible, as
one who is extremely keen on rigorous law and order but nonetheless,
that given powers sometimes the police are inclined to over-use
them, and if there is too much power given under these arrangements,
are you in discussion with ACPO to be sure we do actually get
the right result? Is it not your job and your advisers' job to
ensure that there is a proper degree of restraint in the accumulation
of police powers?
Caroline Flint: I think Mr Bradley
can help out on that issue in relation to our own police.
Q52 Chairman: Please help Mr Cash out.
Mr Bradley: I will try. We are
considering whether it should be necessary when executing a European
Evidence Warrant for our police to go to the court, as they would
for a domestic warrant, and to seek the authority from the court
to carry out a search of the premises. It seems that would be
the proper way, consistent with our domestic legislation to execute
the evidence warrant, even though it would slow down the process
slightly.
Q53 Chairman: Are you saying then if
the issuing authority applies to our police force, our police
force would have to go to our own domestic courts to get that
authority before it would carry out any search or whatever?
Mr Bradley: Yes, in the case of
coercive measures.
Mr Cash: I am talking more generally.
That is the worst scenario. What I am concerned about is—
Chairman: We are talking about coercive
measures.
Mr Cash: Yes, but the issue applies across
the board, surely, Chairman? We are interested in a whole range
of offences.
Chairman: We were across the board earlier
in the evidence session.
Q54 Mr Connarty: I am sure it would be
helpful, because hopefully some of the public will have an interest
in this, if the Minister gave us two assurances. One is on the
general discussion group she has mentioned. Is the Government
position to have it written into these agreements that these coercive
measures will be constrained in the way she has said? She has
told us what she thinks is nice and what may be necessary, but
is it something the Government will in fact stand up for?
Caroline Flint: Yes.
Q55 Mr Connarty: Given that the Government
started off saying it would not abandon a number of other things
in the European Arrest Warrant and then did, will the Government
safeguard the people of the UK from coercive measures being instructed
by a foreign jurisdiction?
Caroline Flint: Yes, we will stand
up for any attempt to tell—and this is the important thing—our
police how to carry out a search of premises. That is the issue.
They may request us to do that, to search premises, but on how
that is done we will be strongly standing up for the fact it should
be left to us as the Member State to decide how that is carried
out.
Q56 Mr Connarty: It may seem unimaginable,
but can the Minister give us an assurance that no foreign police
will ever come to the UK to actually carry out any of this evidence
gathering, and it will be done in fact by the authorities of this
country?
Caroline Flint: If I am right,
and obviously officials can correct me, there is a situation at
the moment where we have a number of joint operations with foreign
police officers, but some of the key issues are who actually enacts
and takes the measures out. So there could be a situation where
a foreign police officer was present but not actually carrying
out and enacting the measures themselves. I wanted to draw that
distinction, because we obviously have our police officers who
go overseas and co-operate as well. As far as I understand it,
that would be the premise on which foreign police officers would
be here. We had a huge discussion under the European Arrest Warrant
about issues about stopping, intervening, what exactly could be
done in those situations, and we would suggest that would apply
in this area as well.
Q57 Mr Cash: Surely, Minister, the problem
is that one is standing there and that the formality is conducted,
as you would hope, by the British police officer in this context
but actually in practice the legal basis on which the action is
taken is being driven by what is being determined by the foreign
police officer. So for practical purposes, surely our police officer
is a bit of a nodding donkey.
Caroline Flint: Perhaps I could
ask Mr Regis to—
Q58 Chairman: I thought I got the answer
to that question earlier on, and I did not perceive the answer
to be that of a nodding donkey.
Mr Regis: In relation to what
happens now, we have cases where search warrants are executed,
the foreign officers as well as attending the actual search warrant
application to assist the magistrate with information are named
on the warrant and are present at the premises, normally for complex
cases where their assistance or presence is necessary to ensure
the correct evidence is uplifted by the police officer. So, yes,
they will say to the police officer, "You need to look in
that filing cabinet, search through those files for a particular
document." The reason for that is the UK office does not
know as much about the case as the foreign officer and, obviously,
the converse applies when our officers travel abroad, they are
the ones who know about the case and they are the ones who will
be able to say to the foreign officer, "You need to lift
this type of material" and as the officer goes through them
he says, "Yes, we need that document, no, we do not need
that document." That goes to the efficacy of executing the
warrant and ensuring there are situations where evidence that
is not required should not be uplifted.
Mr Cash: I think there could be problems.
Q59 Chairman: Minister, I hope you and
your colleagues have enjoyed your first attendance at a European
Scrutiny Committee. I am sure I am speaking for my colleagues,
we have found it useful, and we look forward to some future evidence
sessions with you and your colleagues again.
Caroline Flint: Thank you very
much, Mr Hood.
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