Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 206-219)


23 JANUARY 2007

  Q206 Mrs Dean: Good morning. We are very grateful to you both for being able to come along to the Committee this morning. I have apologies from John Denham, the Chairman, who is away, and from several of the members, but it is very good of you to come along. Mr Kennedy, I understand you have arrived from the Hague to come to see us today, so a special welcome. Mr Kennedy, could you explain the role of Eurojust in facilitating judicial cooperation between EU Member States and could you give an example of a case which Eurojust has coordinated across different jurisdictions and the difficulties you faced?

  Mr Kennedy: Eurojust is a European Union organisation made up of 27, now with the accession of Bulgaria and Romania, representatives: judges, prosecutors or even police officers, one representing each Member State and working together on a permanent basis in The Hague. The organisation was established in 2002 and we have been working in The Hague since the very beginning of 2003. The idea essentially is that there is available to investigators and prosecutors across the European Union a centre of expertise so that they can draw on that expertise when they are dealing with cross-border cases and the legal issues and some of the practical issues that arise when they are investigating crime across several jurisdictions. We have of course with the European Union now 27 Member States, that is probably 30 different legal systems, if you include the different system that we have here in England and Wales from the one in Scotland and the one in Northern Ireland. There is an increasing number of problems, particularly as one of the basic principles of the European Union is the freedom of movement, people, goods, services and capital. Increasingly, we are finding that there are cases linked to Member States which are not just adjacent to each other in geographical terms but also linked, possibly through the internet, right across the whole of the European Union, so from the South, perhaps in Malta or Cyprus, through to the Scandinavian countries. Eurojust is an organisation that does not have any operational capacity. We facilitate action taken by investigators and prosecutors in the Member States. We do not have power to order that cases are referred to us and so we have to encourage the Member States and those working on these cases to have close links with each of the individual national members. This can cause problems because often we think the cases that should be referred to us are not referred to us; sometimes we do not even know about them; sometimes we may read about them in the press or elsewhere. Because the systems can be so different, particularly the four common law countries whose systems are similar to that in England and Wales, from those based on the Napoleonic Code or other codes, perhaps the Scandinavian system, there are many rubbing points. This is simply in the systems themselves. There is a cultural difference and of course there are linguistic differences and we need to bridge these gaps and these barriers to be able to deal satisfactorily with cases. We have been given powers to make formal requests—and they are requests not directions—to ask Member States to investigate and to prosecute; to work together with one another and to form joint investigation teams; to coordinate their activity and also to supply us with information that we might need to do our job better. We cannot impose a penalty if these requests are not complied with but we can produce details of the failure to comply with these requests in our annual report. It is a naming and shaming exercise. We have not had to do that very often but we have used the powers on occasion to encourage countries to work together. Perhaps the best known example of this would be The Prestige case, the oil tanker which sank off the coast of Spain in the Bay of Biscay in 2002 causing huge amounts of environmental pollution along the Spanish and French coasts. There were huge investigations in both those countries but of course there were difficulties in deciding who might be responsible ultimately for the prosecution. The case was referred to us with a lot of detailed information and we made a formal decision, asking the Spanish authorities whom we felt were better placed to prosecute and to continue investigations, to do so in cooperation with their French colleagues. You can imagine, perhaps, the sensitivity of this sort of case because it involves thousands, maybe tens of thousands of victims, along the coastlines of France and Spain, and for the French victims to give up their capacity to claim compensation through their own legal system and having to hand that over to the Spanish authorities is quite a step to take. Perhaps I can give you an example of a real facilitation case, one that we refer to in our annual report. It was known as Operation Pachtou and it in fact is linked to Mr Workman, who is sitting beside me, as a judge. This case involved investigation into organised crime gangs that were trafficking people; particularly, initially, across the English Channel from the North of France into the United Kingdom. The French and the UK authorities had gathered a huge amount of information. Some of it, they were satisfied, was well linked to the French authorities but there were also links to Italy, to Greece and to Turkey. The gangs were trafficking people from the far east of Turkey, across Turkey into Greece, then across the Adriatic into Italy, from Italy into France. From France some were being dissipated into other parts of Europe, but a sizeable number were ending up in the Pas de Calais area of Northern France and then being trafficked across the Channel into the United Kingdom. We were asked by the French authorities to bring together counterparts in the United Kingdom but also in Italy, and we made some inquiries in Greece and in Turkey—we have contact points in Turkey, although they are not part of the European Union—and we brought together investigators and prosecutors dealing with that case in each of the Member States. We have quite sophisticated meeting facilities and translation and they were able to provide information to each other about the current state of play of their investigations, and a lot of it was very detailed information about individuals, their actions, their telephone numbers, their bank accounts, transfers of money and so on. It was interesting that, when the French and the English investigators made their presentations of the issues they were raising which they did not have the answers to, the Greek and the Italians did have the answers, and, indeed, vice-versa. The Turks were also interested and they were able to provide some information directly to the countries involved. The UK and French authorities were very keen to make arrests early after this meeting—the meeting took place in October 2005 and the arrest had initially been programmed, possibly, for November—but the Italian authorities, with this additional information, and the Greek authorities too, asked for extra time because they wanted to bring their system and their information levels up to the threshold where it would allow them to make coordinated arrests at the same time. This happened over a day of negotiations and, ultimately, in December 2006, 82 arrests were made right across the European Union. There were two or three in Turkey, three or four in Greece, I forget the numbers exactly for Italy but there were 47 in France and 78 in the United Kingdom. Effectively, this network, although perhaps not totally destroyed, had been disabled quite effectively by this sort of operation. That is the sort of work we do, bringing together people who have the same powers in different legal systems. In the UK it might be a police superintendent working with an instructing judge or a magistrate in France or working with a prosecutor in England. The powers are often not in the hands of the people who have the same names—our systems are extremely different—but we do not worry in our organisation so much about the title of the individual; we are really keen on his or her powers and the fact that they can work practically together. I hope that has given you a synopsis of our work and how we operate.

  Mrs Dean: That is excellent. Thank you.

  Q207  Mrs Cryer: Mr Kennedy, thank you very much. It is really interesting to hear about your work. Presumably cooperation with Eurojust by various States is a bit patchy. Who are the culprits who do not cooperate with you? Is there anything more than naming and shaming that can be done to bring them on board?

  Mr Kennedy: It is difficult to say who the culprits have been. I think all Member States are different and differently structured. Frequently you find that in the criminal justice systems in one country they are not centralised. They can be very regionalised and their independence is built into the constitution and the very framework and fabric of the country itself. For example, the Italian prosecutors, although they have a centralised Direzione Nazionale Antimafia, they have a range of regional prosecutors who are extremely independent from one another. In the United Kingdom we have a centralised prosecution service. We have the new Serious and Organised Crime Agency, and this certainly helps us to link more directly. Whereas my counterpart from Italy might have to arrange meetings with 29 or 30 organisations, from the United Kingdom perspective, with links obviously to Scotland as well, we can do it in a much easier way. Initially we found that countries were reluctant to cooperate with us because they felt that we were an unnecessary link in the chain. They felt that we might be taking over their cases and handling them for them and taking responsibility. As time has gone on and we have been able to demonstrate the added value we can bring by bringing people together, by using, if necessary, our powers, it has meant that we have been able to build trust and confidence amongst the various specialist investigators particularly. We had a programme in the first three or four years of identifying particular types of cross-border crime and bringing together the specialist investigators and prosecutors dealing with that sort of crime from each of the Member States. At the very outset, we had a meeting on terrorism. This was when we were a provisional unit, in the summer of 2001, before the tragic events of 9/11. On that occasion, we brought together investigators and prosecutors, including people from the anti-terrorism branch of Scotland Yard and the Crown Prosecution Service, to meet with their counterparts from Belgium, from Spain, from Italy, from Germany and from France. This was the first time we had seen instructing magistrates or investigating magistrates working with prosecutors, working with police officers across the same table, in a room very similar to this, but with translation, of course. There was a lot of information exchanged about current investigations. These people had not met before. After the meeting, they exchanged details of various cases that they were dealing with. Two weeks later, although not linked at all to the UK, there were arrests that would not have taken place in Italy and Spain that took place as a result of this exchange of information.

  Q208  Mrs Cryer: Your role seems to be developing with time.

  Mr Kennedy: It is.

  Q209  Mrs Cryer: Could I just dig a little bit deeper into it. Eurojust has formal powers to request states to act. In your annual report of 2005, you said that you wanted to use these more in 2006. Were you able to do this? Is it appropriate that you should be able to instruct Member State judicial authorities to act in one way or another?

  Mr Kennedy: First, we did not use the powers more in 2006. The investigators and prosecutors in the Member States know that we have these powers and if we suggest that we might use them then they tend to react and act, as we think, appropriately. In fact, to be honest, we have not had to use these powers, often because the cases that are referred to us are quite high profile, quite important and significant cases that people are enthusiastic and keen to deal with and to be seen to be dealing with in their own countries: human trafficking, terrorism, high profile drug trafficking and so on. We have found a difficulty and a sensitivity in the area of fraud cases. It is the same in almost every legal system with which I have had dealings: people do not like dealing with fraud cases, particularly large and complex fraud cases. This is of course because the law is difficult, the inquiry is lengthy, it takes up a huge amount of resource, it is complex in the investigation, it is also complex in the prosecution and in the chances of securing a conviction, and at the end of the day the penalty is often minimal. There is a balance. It is in these sorts of cases where we have had to use the powers in the past.

  Q210  Mrs Cryer: There are other EU structures, such as Europol and the European Judicial Network. Could you comment on cooperation levels between yourselves and those other two organisations and any others?

  Mr Kennedy: Eurojust was sent to work in The Hague because Europol was already there. It is clear to everyone that we should be dealing with Europol on a regular basis. One of the first things we did when we went there was that a team of our colleagues began negotiations with Europol and we had a formal cooperation agreement with them. I would like to see it intensified in future because a key part of our work is working closely with Europol. In fact, I recently made suggestions to the Dutch authorities that they should look in the future to co-locate both of our organisations, with the respective independence that is needed but so that we can be closer and work closer together. Europol's function is to deal with and analyse information, particularly from police sources, and to provide strategic advice to senior officers so that they can act appropriately and direct their resources to where the threats are. They make an annual Organised Crime Threat Assessment, to which we contribute during the experience we have with our cases each year, to the European Union. For instance, we had what we call a "boiler room fraud case" referred by the Swedish authorities the other day, and we will link with Europol on that case. We have also had a very large VAT Carousel fraud case referred to us recently by the UK authorities and we are working in partnership with Europol on that. Individually, within our organisation, the national representatives from each Member State have close personal links with the national desks at Europol. I also meet almost every week with the director of Europol—who may have been here earlier, I think—to discuss approaches and business cooperation. The European Judicial Network is an informal network, composed of contact points nominated in each Member State who deal with mutual legal assistance and extradition issues in cross-border crime. This organisation is completely informal, it does not have a legal personality. It sends representatives to meetings two or three times a year. The secretariat for that organisation is within the administration of Eurojust, so it is a sister organisation. As president of the organisation I have a responsibility for overseeing what they do and how they do it and how effective they are, although I do not really have a great deal of control over exactly how they operate, but we can encourage and diplomatically assist them to make progress.

  Mrs Cryer: Thank you very much.

  Q211  Bob Russell: I wonder if I could ask some questions with reference to the Convention on Mutual Assistance in Criminal Matters. Since May 2000, in your experience, how much use has been made of the provisions of that convention? Is there any measure of the impact of mutual assistance on volume crime across the European Union?

  Mr Workman: In terms of the volume of work in mutual assistance, it has gone up considerably. Over the last few years we have increased it both in terms of the numbers and also the complexity of the inquiries. We are now effectively dealing with something in the region of eight cases a week, which are formal requests for documents and that sort of thing, and we also have one or two rather more lengthy cases which are the subject of various issues. They obviously take longer but we are now allowing considerably greater time than we were two years ago.

  Q212  Bob Russell: Is this a two-way request for mutual assistance?

  Mr Workman: At the City of Westminster Court we would really only see the requests from abroad coming to us to take evidence. The increase is quite considerable.

  Q213  Bob Russell: Mr Kennedy, has the convention been of benefit to the United Kingdom?

  Mr Kennedy: I think it has been of considerable benefit. One of the things to remember is that, although the convention was signed in 2000—it is known as the 2000 Convention—it has only come into force quite recently, because Member States are rather slow in ratifying it and a certain number of Member States needs to be achieved on ratification before it does come into force and is effective. Generally there has been a huge increase in mutual legal assistance requests, both sent and received. I think it is because people now are beginning to appreciate that there can be effective requests made for mutual legal assistance from other jurisdictions and that they can get the evidence they want and they can deal with it in their cases here. In the past, before the convention and perhaps even earlier, it was always felt that if there was evidence in another jurisdiction, banking evidence perhaps in France or in Germany or even in some of the so-called tax haven banking areas, this could not be obtained, but things have changed dramatically and a lot of this evidence is available. To answer your question about volume crime, I cannot really say. We only have cases referred to us where there are problems. If things are working well and fine and there is no difficulty, then I would not expect our organisation would be contacted. It is where there is a problem or a difficulty in perhaps drafting a letter of request, or commission rogatoire that we would be contacted. We may arrange for the specialist in both countries or in three or four countries to meet together to draft the request so that the request would meet the requirement in other jurisdictions.

  Q214  Bob Russell: Are you describing how the process works between Member States? Could you give us an example of how a request would be made. What then happens?

  Mr Kennedy: If it is a straightforward request, then a judicial authority within the United Kingdom will have to make that request. If it was within the European Union, the request would be written and signed by probably a Crown prosecutor, a member of the Serious Fraud Office or a member of Her Majesty's Customs & Excise prosecution office. They would sign the letter. The letter would detail the offences that are being investigated, it would detail a summary of the facts and it would outline the evidence that is required in that other jurisdiction. It may be the obtaining of banking evidence; it may be the interviewing of a witness; it may be the seizure of some materials. This letter would then be sent to the other country and the other country would then act upon it, one would hope quickly, and then return the evidence. If there is a problem or a difficulty, if the case is complex, then we might be called in. I can give an example of a case a couple of years ago. The Serious Fraud Office wanted to make inquiries in Germany. It was a particularly sensitive and quite difficult investigation that had been running in the Serious Fraud Office for some time. They knew they had to make difficult investigations in Germany and so we called together the representatives of the German Prosecution Office with the Serious Fraud Office representatives. They came, they had a two-day meeting in our building, with translation facilities, and effectively drafted the letter of request that was to be sent by the Serious Fraud Office to the German authorities. The Germans made sure that everything they required to execute this request was contained in the letter, rather than it being sent off on perhaps a whim and a prayer in a complex case, hoping that it would do the trick. Rather than doing that, they arranged to have everything prepared beforehand so that the letter itself only needed to be sent once.

  Q215  Bob Russell: Earlier I got the impression this was a fantastic, seamless organisation that was working brilliantly. The response to my question indicates it was a very complicated and complex operation. Which of the two is it?

  Mr Kennedy: Madam Chairman asked for an example.

  Q216  Bob Russell: If that is an example, are they all like that?

  Mr Kennedy: I wish they were all like that. We do have cases where it does not work as smoothly as that, there are cases where it does not work at all, but we are there to make things happen and to try to resolve the problems.

  Q217  Bob Russell: So it is better than it was but it is not perfect.

  Mr Kennedy: Nothing is perfect. You can imagine the situation, with 30 different legal systems and different ways of gathering evidence. From the commission of the crime through to investigation, arrest, evidence, prosecution, trial, conviction, sentence the process and timeline is similar in every country, but of course the routes getting to those various milestones are completely different.

  Q218  Bob Russell: Is the UK the only member country in the EU that does not have a single system? You have said there are 30 different systems.

  Mr Kennedy: The United Kingdom is a country with three different legal systems. Yes, as far as I know, it is.

  Q219  Bob Russell: Does the EU have mutual assistance agreements between the EU and third states?—and perhaps I could give you three third states: Switzerland, Somalia and the United States. What provisions do such agreements make for "quality controlling" the judicial systems of the third state in deciding whether or not to cooperate? Shall we start with Switzerland.

  Mr Kennedy: Switzerland is a member of the 1959 Convention, which is not a European Union convention, it is a Council of Europe convention, but it has in fact been the bedrock of cooperation over the past few years.

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