Examination of Witnesses (Questions 20-39)
PROFESSOR DR
ELSPETH GUILD,
MR FLORIAN
GEYER, MR
NEIL O'BRIEN
AND MR
PAUL STEPHENSON
21 NOVEMBER 2006
Q20 Ms Buck: How does Professor Guild
respond to that point? Do you see disadvantages in the abolition
of dual criminality and, if so, what are they?
Professor Dr Guild: I start by
saying that there is nothing inimical in the British Government
abolishing the idea of double criminality. We are very strong
supporters of the International Criminal Court. We have created
international crimes which will be adjudicated at the International
Criminal Court in The Hague. We do not see the necessity to harmonise
the elements of those crimes. Within the International Criminal
Court treaty we have the crime of aggression which is not something
on which we are very clear at this point. The question is: how
do we do this? The problem is one of not being too ambitious.
If we see a real need for approximation of crimes we need to go
down that route. I certainly agree with my colleagues Mr O'Brien
and Mr Stephenson that mutual recognition raises an awful lot
of fears and concerns in this area as it plays out in practice.
I do not see how those will be put to bed without limiting the
field within which the principle applies.
Q21 Ms Buck: I think you are choosing
your words carefully. Does that imply that they are unjustified
fears or that they are real problems?
Professor Dr Guild: Both are included.
There are some that are probably unjustified. People may say that
some of my concerns are unjustified; in other cases there seems
to be a much wider acceptance of the justification. The problem
is the principle. It permits both to take place.
Q22 Ms Buck: In the context of the
advantages and disadvantages, how effective do you think the European
arrest warrant has been in practice?
Mr Geyer: We have the figures
in the written evidence. Two sets of figures have been made public
at the meeting of the Home Affairs Council in Brussels in June.
There have been 1,526 people arrested on the basis of European
arrest warrants and 1,295 have been surrendered effectively. That
is the number of warrants issued and those arrested. The time
that is now required to surrender people has reduced from nine
months under the old regime of intergovernmental mutual assistance
in criminal matters to 30-40 days. It is even lower when the person
arrested consents to the surrender, which is often the case. Sometimes
he will be surrendered to his own country or whatever. I think
it has now come down to 13 days. The average time for a consented
surrender is 13 days. Another set of figures has been provided
to illustrate that effectiveness is improving. As of September
2004 653 persons had been arrested and only 104 surrendered. That
was at the very beginning of the system becoming practical. Within
one year it has increased 10 times.
Q23 Chairman: Referring to dual criminality,
it can work both ways, can it not? The age of consent in this
country is 16, so it is against the law for an adult man to sleep
with a female under the age of 16. I believe that in some EU countries
the age of consent is as low as 12. Surely, one of the advantages
of abolishing dual criminality is that if somebody from one of
those Member States comes here and breaks the law we will be able
to extradite that individual to face trial even though the act
would not be a crime in that country. Do you accept that, Mr O'Brien?
Mr O'Brien: This works in an asymmetric
way. The appealing thing about it is that you can change the way
it is implemented in the UK unilaterally without having to consult
other Member States, because as long as it remains under the third
pillar there is no question of the commission challenging the
way we deal with it under national legislation. The idea of having
a negative list of offences for which we would not extradite people
from this country which was discussed in the six months during
2001 when it was being drawn up is the way to go. The fundamental
point is that this rests on the consent of all the other Member
States and if one country says that the UK has abused the process
by having particular provisions other Member States might retaliate.
Q24 Chairman: My fundamental point
is that there is an obvious fear that somebody could be extradited
from this country to another state for a matter which was not
a crime here. The advantage is that we could extradite people
from other countries under precisely the same circumstances; otherwise,
we face the situation of saying that we cannot do anything about
it?
Mr O'Brien: That is the logic
of doing this, but I am saying that the position is not quite
symmetrical.
Q25 Mr Clappison: Professor Guild,
in your view do concerns about different standards in criminal
justice systems and attempts to introduce minimum standards as
the commission proposes stem from evidence of practical problems
within the UK, or is it part of a wider view of the principle?
If it is the former, what are the practical problems?
Professor Dr Guild: We have substantial
problems in having consistent and coherent criminal justice systems
that protect the defence and ensure effective application of prosecution
procedural rules in almost all Member States. We know this because
there is not a single Member State that has not appeared before
the European Court of Human Rights on the Article 6 due process
provisions within the past five years. We know that there are
continuing problems. We have the perennial problem of delay in
Italy; it takes for ever and a day to get a criminal prosecution
to a conclusion. A series of questions has arisen in other Member
States. We have had substantial concerns in both the Netherlands
and Germany about the admissibility in court of evidence provided
by intelligence services.
Q26 Mr Clappison: Can you give us
one example of a practical problem in the United Kingdom?
Professor Dr. Guild: Are you referring
to the criminal justice system in general?
Q27 Mr Clappison: I am asking for
an example that would warrant what has been proposed. What are
the minimum standards? You have mentioned the different practices
in other countries, but what are the problems here?
Professor Dr. Guild: What do I
put forward as a particular problem in the criminal justice system
that would warrant the application here of minimum standards?
The UK is certainly not immune to cases being brought against
it in the European Court of Human Rights under Article 6. I am
just trying to think of a recent example.
Q28 Mr Clappison: For example, in
relation to binding over orders, which are pathetically small
fry in the scale of things, the United Kingdom has been taken
before the European court under the European Convention on Human
Rights. There is an outstanding judgment in that area. This is
all very small stuff and it can be put right in the ECHR anyway.
Professor Dr. Guild: The European
Court of Human Rights has said that it does not want to be a court
of final resort for all cases arising in the Member States. It
has said on a number of occasions that it does not consider itself
to be the equivalent of some kind of supra-constitutional court.
The UK does not come out well in a number of cases involving pre-trial
detention and various aspects along those lines, and certainly
we have more questions about pre-charge detention, which is a
very hard question at the moment, and the extent to which the
length of time of pre-charge detention is taken into account.
Q29 Mr Clappison: The fact is that
all of this is dealt with under the Bail Act, is it not? Very
careful consideration is given by judges as to whether or not
the Bail Act should operate. Do you say that there is a problem
with the Bail Act which has been in force for a good number of
years?
Professor Dr. Guild: I do not
think that this is the inquiry in which one should be looking
at the specifics of the Bail Act.
Mr Clappison: That governs pre-trial
detention of which complaint is made.
Q30 Chairman: This is of interest
to the Committee. We are part of a parliament which has recently
resolved on a 28-day period of pre-charge detention, which this
Committee unanimously supported in a report produced last summer.
We are aware that in other European countries there is an entirely
different procedure which involves people being locked up for
a great deal longer before they ever get to trial. It happens
here but legally the procedure is different. There is perhaps
nervousness about the idea of bringing in common standards. For
example, would it mean that we would not have been able to take
the decision that we took last year on pre-trial detention? What
is on the agenda here in practical terms? If it is all minor stuff
it does not matter; if it goes to the heart of our ability to
take a decision like that then it is very important.
Professor Dr Guild: We can consider
the politically very sensitive case of pre-trial detention which
appears to be coming back on the agenda, if I understand what
the Minister said on the Today programme. Leaving that
aside, as we know there are a number of civil liberties organisations
in the United Kingdom, including Liberty, which are uncertain
as to whether or not the existing legislation on 28 days is compatible
with the European Convention on Human Rights, and undoubtedly
that will be challenged before the European Court of Human Rights.
If one talks about minimum standards and the ability to take a
decision, do we want to withdraw from the European Convention
on Human Rights? That was a matter raised by the previous government
consistently but the current one has ensured that that is now
incorporated in the mechanisms within which the United Kingdom
works. If the European Court of Human Rights finds that the 28
days are inadequate and requires further safeguards in respect
of bail will we say that those common standards are a bad idea
and have interfered with democratic procedures? This is not a
problem that starts at EU level; it is part of the process of
participating in European structures which infringe on sovereignty.
Q31 Mr Clappison: Do you agree that
harmonisation of the whole of the criminal law would be a huge
undertaking and would mean a big change to our system? What problems
do you believe mutual recognition, as opposed to harmonisation,
poses for the common law system in this country?
Professor Dr Guild: The biggest
problem of mutual recognition is the fact that in the end what
it does is excite distrust, because as my colleagues Mr O'Brien
and Mr Stephenson have mentioned you do not know what underlies
it; you do not have a sense of confidence that if you hand over
one of your citizens you know what will happen to that individual
and can be confident that he will be tried in accordance with
a set of rules which have been commonly agreed for offences which
society here accepts ought to be regarded as offences. Whilst
in the first instance it appears to be a good solution and one
can paper over the issue of mutual recognition, in the end the
problem is that it destroys the mutual trust which is at the heart
of making it work at all.
Q32 Mr Clappison: You have made a
connection between recognition and the problem of mutual trust,
or mutual mistrust as you have put it to us. Can you give practical
examples of problems that might occur in the UK and at EU level
through lack of mutual trust?
Professor Dr Guild: I believe
that the Chairman has already provided a particularly good example:
the age of consent. That is a very sensitive issue that impinges
on the question of what is childhood. Society's tremendous fears
about the concept of paedophilia and incorrect allocation provide
the clearest example of where the problems are likely to arise.
Q33 Mr Clappison: I should like to
turn to Mr O'Brien and Mr Stephenson. In your memorandum you quote
the House of Lords Committee which commented on the EU proposal
to harmonise the rights of suspects in custody, which we have
just been talking about. You say that "if this proposal is
passed it could be impossible to stop the `creeping competence'
of the Commission" and it could lead to the "incremental
unification of criminal procedures throughout the EU". What
is your view on that?
Mr O'Brien: The reason why that
is true and the Government is right to be very cautious about
this is that this has been done without a proper legal base. The
whole supposed legal base for the decision on procedural rights
is a "logical deduction" from the principle of mutual
recognition. The appealing argument that one needs basic standards
if one is to have mutual recognition is being used in a slightly
bogus way. There is no evidence that the commission looked at
the practical problems of mutual recognition before it proposed
this piece of legislation. Quite often in its logic it talks about
better ECHR compliance. The problem is that Member States are
ECHR compliant in different ways. The real world problems with
mutual recognition are things like the extraction of evidence
by the use of torture and so on particularly in high-profile cases
to do with terrorism. I refer to the Ramda case. But the framework
decision on procedural rights does not deal with any of those
cases or questions to do with terrorism and national security.
None of the things in it really addresses the practical problems
that exist; it really uses a sledgehammer to miss a nut in that
sense. There are certainly practical things that can be done.
I would never dismiss the idea that everyone should be able to
have a translator if these matters are being conducted in another
country but that is said in the absence of a firm treaty base
for it.
Q34 Mr Clappison: From your answer
I get the flavour that you see some competence creep in this.
One is trying to remedy a small problem and it is moving by stages
to something bigger and bigger in terms of competence.
Mr O'Brien: If you let the commission
legislate purely off the back of the line under the current treaty
about other necessary measures to increase confidence in the system
it will be able to legislate on more or less anything. I would
be very sceptical about letting it go down that route.
Q35 Mr Clappison: It is a bit of
an adventure for it?
Mr O'Brien: Yes; it is testing
how far it can push it.
Q36 Mr Clappison: I turn to Professor
Guild again. What is your view on competence creep?
Professor Dr Guild: I think the
first thing to bear in mind is that the commission does not legislate;
it is the council that legislates in conjunction with the parliament.
All the commission does is put forward a proposal.
Mr Streeter: That is like saying that
the Civil Service is the only body that can make a decision.
Q37 Mr Clappison: Lord knows it actually
does!
Professor Dr Guild: If one has
given powers of delegated legislation as widely as has been done
in this country it is not surprising that in some quarters there
are complaints about the Civil Service actually legislating. We
do not have that degree of legislative power being given to the
commission in the context of the European domain.
Mr Geyer: In a way, this leads
immediately to the problem. First, the commission does not legislate;
it is the council and parliament that legislate. On the other
hand, Member States are reluctant to move. The problem with the
third pillar is that it is more in the hands of the council and
the parliament is only consulted and left outside. One of our
concerns, which is shared by all others involved in this, is that
if we want to proceed police co-operation must come out of the
third pillar of the EU treaty and be moved to a structure with
institutional safeguards that allow for more participation by
the parliament.
Q38 Gwyn Prosser: Continuing with
the problems of third pillar decision-making, do you want to spell
it out a little further? What are your main concerns about what
you would consider to be deficiencies of pillar decision-making
in terms of home affairs and justice?
Mr Geyer: One of the biggest problems
in the whole field is that decision-makers are not clear as to
where they want to go. Therefore, there is a big concern about
giving too much power to Brussels and the commission. This results
in leaving it in the third pillar structure where we have unanimity
so that in the end it is for Member States to decide whether or
not they want it and, if they agree, they have to implement it.
On the other hand, it falls mainly within the decision-making
framework of the council, which means that governments decide.
The European Court of Justice is left out but that is also because
Member States want it to be out. The European Parliament is left
out because governments want it to be left out. At the same time,
we complain that governments make the decisions. That leads me
back to something I said at the beginning. If we are sure where
and how we want to go we should find the proper tools to do it.
The passerelle clause which was discussed in the council some
weeks ago would be one of the solutions to try to move some aspects
of the EU governmental structure—it does not have to be
all of them—into the first pillar, which is the community
structure that allows for proper European Parliament participation
and for a higher standard of judicial control by the European
Court of Justice. Again, that was stopped by some Member States,
mainly Germany which said that it would hamper its constitutional
aims during its presidency, but we do not know if that was really
the issue for Germany.
Mr Stephenson: In terms of increasing
parliamentary control rather than increasing the power of the
European Parliament over these issues, perhaps it would be better
for Member States to reform their processes within national parliaments
to give them more ability to scrutinise this sort of legislation.
Another easy way to increase transparency is that at the moment
in JHA meetings there are no cameras; they are conducted behind
closed doors. That would be one beneficial step. The commission
argues that at the moment the main problem is that proposals are
being blocked and there is a need to move to QMV to push through
these measures. But it does not acknowledge that the problem is
not necessarily the system but the proposals being put forward:
they are too ambitious and some of the measures cause constitutional
problems for certain Member States, Germany being an example.
I believe that if the will is there and the measure appears to
be appropriate it will get through. The European arrest warrant
was agreed in a little over six months, so it can be done. The
problem is not necessarily the system but that the proposals go
too far.
Q39 Gwyn Prosser: The argument advanced
by the Home Office is that the problems of third pillar decisions
are more to do with the content of the decisions being sought
rather than the process and autonomy. Do you argue against that?
Professor Dr Guild: The Home Office
has been a great supporter of the third pillar; it is something
in which we have invested quite heavily. It may be a tool whose
time has come to an end. One cannot expect to have binding—perhaps
less but better quality—legislation which has effect and
is acceptable within Member States if one wants it to be done
on the basis of a gentlemen's agreement in an intergovernmental
setting. That will not lead to the kind of results that one wants.
On the one hand, the Home Office wants results; on the other,
it does not want the mechanism by which to get them. There comes
a point at which one has to say that one wants fewer but better
quality results.
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