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 requestsand they are requests not
directionsto 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 Turkeywe have contact points in Turkey, although
they are not part of the European Unionand 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 meetingthe
meeting took place in October 2005 and the arrest had initially
been programmed, possibly, for Novemberbut 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 namesour systems are extremely
differentbut 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
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
Europolwho may have been here earlier, I thinkto
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
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
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 2000it is known as
the 2000 Conventionit 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
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
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.