Examination of Witnesses (Questions 140-159)
CHIEF CONSTABLE
PAUL KERNAGHAN
CBE QPM, SUPERINTENDENT MIKE
FLYNN, MR
MICHEL QUILLE,
MR BILL
HUGHES AND
MR ROB
WAINWRIGHT
9 JANUARY 2007
Q140 Chairman: That is a UK issue?
Chief Constable Kernaghan: Yes.
Q141 Chairman: Presumably that similar
type of issue arises in many other EU Member States that also
have different patterns of policing; it may not be regional or
county as ours is, but is split between national police forces,
local police forces or whatever?
Chief Constable Kernaghan: Yes,
but with one great exception (and I stand to be corrected because
I am not an expert in every police structure in the EU), they
either have a national force or they have a force designated to
take the national lead. The best example I can give akin to the
United Kingdom is the Netherlands; that has, I believe, 25 territorial
forces, ranging from large to small, but they have one national
police agency which literally deals with any function that a territorial
force neither wishes to or is not resourced to. That is the difference
from us. Our French colleagues obviously have both the Police
Nationale and the Gendarmerie, both of which are national bodies,
and they allocate functions between them. We lack that capability
now. I think we are fairly unique in saying that.
Q142 Gwyn Prosser: I want to ask
you about the European Arrest Warrant. We have heard some case
studies of UK nationals who have been arrested and convicted in
other European states and received not the sort of behaviour,
judicial oversight that we would expect in this country. ACPO
have said that the European Arrest Warrant "minimises the
opportunity for drawn-out legal argument". Are you confident
that the police and judicial systems in other Member States are
sufficiently robust that there is no need to have the facility
to probe and investigate some cases?
Chief Constable Kernaghan: Can
I say, with the greatest respect, that is ultimately a political
question. With Country X is their judiciary, are their police,
up to what we would consider acceptable standards? I would have
to say it is a matter for HMG and the Foreign and Commonwealth
Office. We operate under the treaties. They are fellow Member
States. If we had reservations that would come up through the
particular investigative route and we would report it to the Home
Office, to the Foreign and Commonwealth Office. I have to say,
if Parliament decides that we should be a fellow Member State,
we will operate in good faith with that country. It is not the
role of the police to pass judgment on the judicial process. There
are obviously other bodies that are better placed to pass judgment
in respect of that. My perspective is, someone should go and answer
a charge in a fellow European Member State as quickly as possible
to prove their innocence, if they are innocent; to secure conviction
if they are guilty. As I say, we obviously would not close our
eyes in any way to malpractice, but I do not think it is primarily
the role of the Police Service to pass judgment on other countries'
judicial processes.
Q143 Gwyn Prosser: You have said
if cases come up which cause you concern you will report them
up the line to the Home Office. To what extent do you have to
do that, or have you done that since the Warrant has been in place?
Chief Constable Kernaghan: I am
not aware—and it may be something Bill can supplement—but
we would take it as part of our professional ethical code that
we would never wish to see anyone, whether they are a British
citizen or not, subjected to inappropriate judicial process. If
we became aware of it we would flag it up; but I do stress, ultimately
political judgments are for other people.
Q144 Gwyn Prosser: Mr Hughes, have
you got any views?
Mr Hughes: I was just checking
with Rob whether we had any queries on that at all, and we have
not. The issue you raise is a very pertinent one and I think Paul's
answer is absolutely spot-on. The only thing I would add is that
it would be useful, I think, if across Europe there were some
common standards around procedural matters about something along
the lines of what we expect in this country from the Police and
Criminal Evidence Act, those types of caveats that apply to anybody
held in custody in the United Kingdom. That is a political matter
that needs to be resolved through the EU, and that would probably
be something that would be welcomed by everybody, including law
enforcement. It is not an issue that we would fall out over. I
think the European Arrest Warrant has probably been one of the
most effective changes in terms of speeding up the process. I
think Paul is absolutely right: these long, drawn-out processes
whereby people wait for years to be extradited are in nobody's
best interest—particularly the people waiting of course.
I have an example of where just recently it has worked very well.
Within two days of the transmission of a European Arrest Warrant
to Spain, where a man convicted of murder escaped from prison
in the United Kingdom this last year fled and to Spain, within
two days he was apprehended and brought back to the UK. It is
a very fast means of operating—certainly different from
how we all experienced it in the past. I think it is something
we should benefit and profit from and make better, rather than
the worry there might be that people will not use it if the procedural
rights are not guaranteed for offenders in other countries.
Q145 Gwyn Prosser: This might spill
over and be political as well but I would like your view. We understand
the draft framework to provide minimum procedural rights, like
legal advice and interpretation services et cetera, has been stalled
and no decisions have been taken by the European Commission. How
necessary are minimum procedural rights as an accompaniment to
the European Arrest Warrant and European Evidence Warrant, would
you say?
Chief Constable Kernaghan: I would
say, firstly, desirable; but, secondly, if those rights automatically
apply in the United Kingdom, and if someone is brought back to
face a court back in the United Kingdom I have no doubt that the
judiciary would scrutinise the process of their arrest and interview
and any evidence that was going to be tendered in a British court,
and if it did not meet the highest standards of the domestic courts
it would be rejected. I am very clear about that. Bill's point
is very valid—we would always want people to be afforded
full rights. I am very conscious in most of Continental Europe
they have an investigative system, magistrates as opposed to our
own system; but, no, I would want the highest standards. How that
is arrived at, yes, is a matter for European cooperation. I am
very clear, on my professional experience there are courts which
always scrutinise and ensure that people before the British courts
are afforded full rights.
Q146 Gwyn Prosser: Can we take it
that is supported by all of you?
Mr Hughes: Yes.
Q147 Chairman: We have had some evidence
from NGOs about individual cases of British citizens who have
not had the best of treatment, they claim, in other European countries.
It is theoretically possible at least, Mr Kernaghan, that one
of your officers might at some point need to arrest one of my
constituents and send them to another European country in response
to a European Arrest Warrant where they might professionally feel
quite unhappy about the procedure that had been followed in that
other country. The European Arrest Warrant was driven on the back
of a big political impetus to get this in place. Are you confident
that there is sufficient monitoring of what is actually happening
in individual cases across Europe, so that if there were individual
cases of injustice that they would be flagged up very, very quickly
and the politicians, including ourselves, could be forced to address
these issues, rather than just to assume it is working well—which
it is obviously doing in the vast majority of cases?
Chief Constable Kernaghan: The
European Arrest Warrant transmitted to the UK has to be validated
in the UK, I think I am right in saying. If it was for, shall
we say, an offence for showing disrespect to the head of state,
there is a chance there for Britain to say, "We deprecate
disrespect to the head of state but it is not a criminal offence
that we wish to be party to". The person, with legal representation
in the UK, can say, "I shouldn't be extradited". They
have recourse to the courts. Indeed, citizens always have recourse
to the courts if they feel there is an abusive process and abuse
by the police. When they are handed over to a Continental country,
yes, at that stage as I understand it, one, the protection would
primarily become the responsibility of the Foreign and Commonwealth
Office and the consular services. I think I am right in saying
all European countries there is recourse to the media. I am sure
it would not be one of your constituents, but if they did end
up in a European Court, they would have recourse to the media;
they would have recourse to the legal protections of that country;
and I would hope the FCO would have its own views on the legal
processes; plus the NGOs, Justice Abroad et cetera, who
are quite vigilant in ensuring people get a fair crack of the
whip.
Q148 Chairman: Are these issues actively
discussed by operational police officers across Europe?
Chief Constable Kernaghan: I think
the honest answer to that is no. We will ensure that our standards
are adhered to and we work on the basis that our colleagues are
entitled to mutual professional respect unless we find something
to the contrary.
Mr Hughes: It is certainly the
case that European Arrest Warrant cases take longer from the UK
to other countries because there are caveats that people have
to run through, particularly at Bow Street in terms of checking
on the legislation that applies and the procedures that have been
gone through, so they certainly take longer from the UK abroad.
I do not know whether we take more care over it but certainly
there are those procedural caveats in place in the UK at least.
Mr Wainwright: What we find from
our experience is a good deal of confidence from dealing with
our European partners. We are dealing with very responsible professional
police organisations around Europe and the standard of policing,
particularly in countering organised crime in Europe, in global
terms is very, very high. From that professional level we have
confidence in our colleagues in the way in which they implement
their work and implement these standards around Europe. We also
have confidence in the stringent tests that are applied through
the EU mechanism before the admission of new EU Member States.
Although I guess the law of averages will dictate that there will
be one or two isolated examples, we have not seen any yet and
they would fall into a very, very small number of cases.
Q149 Mrs Dean: Mr Kernaghan, ACPO
have identified two problems with the UK central authority for
exchange of criminal records, the first one being that information
beyond court results is not available quickly and secondly, that
only basic information on UK nationals convicted elsewhere in
the EU is transmitted to the UK. Is there a real danger that serious
offenders could enter the UK without the UK authorities being
aware of their record? What can be done to tackle that problem?
Chief Constable Kernaghan: If
I can take it sequentially. Until the ACPO criminal records office
was created to support European legislation, and let us use an
emotional but I think it is a very valid example, someone could
go to, let us say, Germany, commit a sexual offence, be convicted
by the German courts, rightly and properly serve his sentence
and that would not be known to any British police officer when
they came back to the UK and it frankly would not be known to
the British courts when they re-offended in Britain and went before
the courts, they would go with a clean record which obviously
affects the sentence. That is a totally unacceptable position
I would say professionally and crucially from a public protection
point of view. Over a period information was supplied to the UK
and frankly sat in box files. It was not entered into the Police
National Computer and there was a gap. That situation is now being
addressed, in actual fact the ACPO criminal records office is
coincidentally located in Hampshire and they are working their
way through in putting serious offences on a risk-assessed base
on the PNC. In respect of people coming into the UK, I would have
to say at this point in time, and I stand to be corrected by the
relevant department of the Home Office, people are not checked
against a criminal record database or a police database, it is
against immigration databases, et cetera, so there is a gap at
this point in time. I hope with the implementation of e-Borders,
and as and when we join up with the Schengen Information System,
more information will be available so that whilst they may well
be allowed into the UK there will be an update as to the fact
that they are now in the UK. At this point in time we do not have
effective border control in that context and I would urge at some
stage that there should be automatic recognition of convictions
throughout the EU. If you commit a burglary—it does not
need to be a paedophile offence—in one Member State that
is relevant to the police in another Member State and crucially
to the courts. That is ultimately where we should be going, that
there is availability and access to relevant criminal information.
Q150 Mrs Dean: Mr Hughes, do you
want to comment?
Mr Hughes: It does not just apply
to records of convictions, there are other databases that create
problems for us at the present time. As you say with the Schengen
Information System, at the present time we are in the situation
where an individual could be refused entry to France by a French
police officer who is based in Kent at the juxtaposed controls
for the Channel tunnel on the grounds that the French officer
is aware that he is a threat to national security from the information
that he has from the Schengen Information System. That French
officer can turn that individual back without us having access
to that same information. We get around that with local procedures,
we would expect that, that is the way that law enforcement operates,
that is a bit of an interesting area where we need to get that
resolved. There is a technical solution that is being proposed
to ensure that the alerts that we put on are not rejected where
they are incompatible with other Member States and I will give
you an example of that. Again, a UK wanted person alert could
be rejected if there is a refusal of entry alert from another
Member State that overrides it because the wanted person alert
will never be actioned because they have already refused entry,
the only way they can deal with a wanted person is by letting
them into the country. It is a little bit catch-22 on that one
so you could end up going around in circles on this. We need some
UK friendly solutions that will help us to overcome that. There
are some issues which we are already flagging up and trying to
bring that to the attention of those individuals who can help
us.
Q151 Mrs Dean: Is the example you
gave about Schengen symptomatic of the UK being denied access
to certain Schengen data systems because it has opted out of the
relevant first pillar agreement?
Mr Hughes: Yes.
Q152 Mrs Dean: How damaging, in general,
do you think it is that the UK has had a tendency of cherry-picking
first pillar participation to its ability to access vital missing
data?
Chief Constable Kernaghan: I do
not think we are being denied, but in respect of Article 96 which
is information held on aliens, in essence, it is to do with the
UK's policy that we will retain our own border control. As Bill
had said, the Schengen system is a very straight forward system,
there is one record for one person. It could be if we were trying
to put information on, the system would say there is already a
record and if it was Article 96 we would be denied access because
it is policy that we should retain our own border control. At
this point in time Europe is saying if you are not contributing
to that particular pool of information you should not have access
to it. I believe the Home Office are seeking, as Bill has suggested,
a legal workaround. Professionally, I have to be very clear, I
want as much information to protect the public as I can get my
hands on and it does worry me that there will be information available
which I will not have access to. I have to say, as a police chief—and
there will always be a cause celebre—it could be
if there is a notorious case it will transpire, the media will
be able to say, "Did you know under Article 96 in the following
country they knew this person was a mad axe man" or whatever,
and in actual fact the police chief in Britain will be stood looking
at the cameras saying, "No, I was not aware of that".
That is not a failing on the police part, it is a matter of policy.
We would like access to Article 96 but at this point in time we
have not got it. It has got to be a matter of political judgment
what areas of co-operation we contribute to or not, obviously
subject to political direction I would like to co-operate as much
as possible because it is about public protection, that is my
raison d'etre, and I think harm minimisation is SOCA's charter.
Mr Hughes: Absolutely.
Q153 Mr Streeter: On that very point,
one of the reasons why politicians like myself are very concerned
about Schengen and are seeking more control of our national borders
and so on is about public protection, national security, issues
of sovereignty and so on. We seem to be getting the message this
morning from you as experienced practitioners that public protection
and national security issues might be enhanced paradoxically,
I would say in brackets, if we were fully part of Schengen rather
than our distinct halfway house arrangements. I am not asking
you to give a political response but as a practitioner are you
saying to me, "Look, we would be better off if we were fully
part of this even including public protection, the flow of crime
and criminals and so on"?
Chief Constable Kernaghan: I have
to say yes, I want more information to enable me to discharge
my responsibilities in a more comprehensive manner.
Mr Hughes: It is the law of unintended
consequences. We understand the issues around sovereignty and
the matters that relate to that, the unintended consequence of
that is we are denied access to intelligence that is the key to
providing effective public support in ways. The better intelligence
for us in SOCA, the better intelligence for policing as Paul has
already referred to, those are the unintended consequences that
we do not get the access to that we require. Yes, there are workarounds,
we can do that but really should we be looking at workarounds
rather than finding proper solutions to do with that. I know it
is a difficult question politically but you asked the question
of us practitioners and that is the answer.
Q154 Chairman: We will pursue that
so we do not misinterpret you. Are you saying that if we abandoned
our border controls, which would enable us to participate fully
in Schengen, you would be able to do a better job of protecting
the British public because you have to seek access to information
or if you were forced to choose, would you rather hang on to the
border controls and get away with the workarounds? You smile,
but that is a dilemma which many British ministers have had to
face of all political parties and it is still on the agenda, that
is the choice.
Chief Constable Kernaghan: I think
it is a false choice. I do not think there is a golden load of
Article 96 information that if Bill and I could access it would
transform British society, far from it. Equally, I would have
to say, as low key as I can, are we satisfied that our domestic
border security is superior at this point in time to alternative
options, I simply make that point. If we are saying there is a
British gold standard and then there are these other people who
perhaps are not just as good, that might be a valid choice. I
would simply say and I am sure this Committee has heard evidence
in the past which maybe says it is not such a stark choice.
Q155 Mrs Dean: Lastly, we have discussed
the UK's opt out of Schengen. How much of a problem do other Member
States' national vetoes pose for the UK?
Mr Hughes: Again, that is a political
issue. I do not think it has created major problems for us.
Chief Constable Kernaghan: I think
at this point in time we are not operational members of the Schengen
Information System. I rather suspect when colleagues from SOCA
and Mike go to meetings in Europe perhaps our voice is not as
strong as those who can say. We have a functioning system, that
is the nature of any club or collective. I look forward to the
day when we do have a functioning system.
Q156 Chairman: Can we move on briefly
to the principle of availability, which I think you have all endorsed,
which as we understand it is the ability to access very easily
information held by other law enforcement agencies across the
European Union. Are you confident that the information that you
share from here with other Member States would be treated at least
as well, in terms of confidentiality and so on, as it would be
in the UK?
Chief Constable Kernaghan: I think
my gut reaction to that is when I first studied the Data Protection
Act I was told we had to bring it in because it was a building
block so that we could exchange information with other countries.
They have their own data protection legislation. I have confidence
in their professionalism and I would imagine the data protection
regimes are fairly similar throughout the European Union.
Q157 Chairman: In practical terms
dealing with organised crime there has been criticism from the
European Community, even running up to 1 January, about the two
newest accession states and their law enforcement systems and
issues of corruption in their judicial system in a broader sense.
Do you have concerns about extending the principle of availability
to some of the newer members of the European Union who have not
got the comparable traditions of the founder members of the European
Union?
Mr Hughes: In the case of the
two Member States which you referred to we have been working with
them for some considerable period of time with our liaison officers
abroad and that has been the case before SOCA was created, the
precursor organisations were working there, and we have had very
effective links with them. In the case of Romania, you will know
that we did a lot of work with them on Reflex on organised immigration
crime because they are both a source and a transit country so
we are working with them. Part of the process of working with
them is to establish with those countries better ways of working
to try to demonstrate how the EU Member States work in a much
more professional way and that has certainly been taken up by
Romania, with Bulgaria again our officers there are working very
closely. As with all areas of law enforcement in whatever country
in the world you work you need to take risk assessments of everything
that you are doing in terms of sharing data and, of course, the
source from which that data originates. We are doing that at every
opportunity. The risk, we have not seen so far the risk that people
described or ascribed to those Member States but it is something
that we are looking for. If it occurs, then part of our UK threat
assessment that we produce is to take account of the fact that
there are changes in Member States to the EU and to notify and
see what changes that brings in terms of the threat to the United
Kingdom from organised crime. As I say, that is a general policy
that we follow with all the Member States. One of the things that
translates to in practice is we tend to work, again I spoke right
back at the beginning about intergovernmental co-operation, bilaterals
and some multi-laterals with other countries. Particularly we
have been working with the French, the Spanish, the Germans and
the Italians in dealing with the security issues in the Western
Balkans where we have a joint interest in doing that. Part of
that is to operate because we have a very clear interest to do
that and we have some expertise we can bring from those Member
States. We also then feed back through the European police chiefs,
through police co-operation and through other EU institutions
to make sure that other countries see the ways of working that
we are demonstrating. Without being arrogant or conceited, the
more mature institutions can demonstrate better working procedures
and I think it is a right of all professional law enforcement
officers to do that.
Q158 Chairman: That describes a process
of spreading best practice and building confidence between different
countries, building confidence between different agencies. The
European Union seems to be set on a course where at some point
in the not too distant future the principle of availability will
become enshrined as a right for Member States and at that point,
as a law enforcement officer, you lose the control over the process
that you have just described because the principle becomes established.
Are you confident that the timescale that the European Union is
working on, on the principle of availability, is not going too
fast so that you get to a point of mandatory data sharing before
you would have the confidence you are looking for?
Mr Hughes: The timetable is one
thing, what I would like to see are the checks and balances and
the pre-checks that Rob referred to just now, when we talked about
this, to make sure that the practices and procedures in those
countries are acceptable before they are granted accession status.
Q159 Chairman: Let us talk about
countries that are already in. The principle will become a principle
from 1 January 2008 of availability and I am not sure that means
the legislation is all in place by then but we are moving on quite
a fast timescale. I am asking whether you are confident that we
will not end up with a situation where you and Mr Kernaghan are
required to share information across the European Union before
you are confident in the integrity of the systems for handling
that data?
Mr Hughes: I think my confidence
could be increased when I see the evaluation process, as we go
through evaluation checks in the UK I want to see the results
of those as well. That is a matter again which I think is a political
issue to make sure that is reinforced. Yes, I would want to see
checks and balances in place.
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