Examination of Witnesses (Questions 220-239)
MR MIKE
KENNEDY AND
MR TIM
WORKMAN
23 JANUARY 2007
Q220 Bob Russell: So Switzerland
is okay for this.
Mr Kennedy: Switzerland is in
the 1959 Convention. It is not a member of the European Union.
Q221 Bob Russell: I recognise that.
I was wondering whether that was a complication or not.
Mr Kennedy: Of course it would
be easier if everyone in the world was a member of the convention—it
would make life much easier—but they are not. Somalia I
cannot tell you about because I simply do not know. I am fairly
confident there will not be a mutual legal assistance arrangement
between the European Union and Somalia. There is one with the
United States. We have a special agreement with the United States,
as we do with Norway, and we had with Romania before they joined
the European Union. As a result of those agreements, we not only
have 27 representatives, we have a prosecutor from the Department
of Justice in the United States based with us and we also have
a Norwegian prosecutor based with us. They both felt it would
be good value for them to be involved in our organisation and
to take part in the sort of coordinated activity I described.
Q222 Mr Benyon: Mr Workman, could
I ask you about the workings of the European Arrest Warrant. Could
you explain the passage of the arrest warrant, from its issue
by a judicial authority in the requesting state, right through
to its authorisation or refusal?
Mr Workman: The issuing authority
would transmit the warrant. One of the great benefits of the system
at the moment is that there is now a standard form of warrant
across the EU, so they would transmit the warrant through the
Serious Organised Crime Agency to this country, that agency would
then advise the police of it, they would do the necessary translations
and the police would then make the arrest. The person would then
be brought to the City of Westminster Magistrates' Court—sadly,
Bow Street is no longer with us, so the City of Westminster manages
these matters for England and Wales. On arrival, there would be
an initial hearing. The defendant should arrive within 24 hours,
but certainly as soon as practicable, and some of them are dealt
with on the same day as an initial hearing. At the initial hearing
we have to deal with the issue as to identity—to establish
hopefully that the person is the person being sought; we need
to ask and give details about the possibility of consenting to
return to the country that is requesting them; we need to fix
a date for hearing within 21 days for the full hearing; and we
need to deal with bail or custody. Those issues are all dealt
with at the first hearing. As to the issue on consent, I do not
think numerically we are getting as many people consenting to
leave this country for the requesting state as some states in
Europe. I think this is partly a cultural matter, because for
somebody who commits an offence in the Netherlands but lives in
Belgium only a few miles away the extradition is perhaps not quite
as significant as sending someone from here to Lithuania. Initially,
we do not get many consents. In the last year, the calculation
I made last night was that we had 38 consenting at some point,
not necessarily at the first hearing but soon after. The date
needs to be fixed within the 21-day period from the date of arrest
and that is a full hearing. Many of those do go ahead on the second
hearing date, but some do not because some of them inevitably
need other inquiries to be made. Where the full hearing is heard,
we need to deal first with the validity of the warrant, which
is an issue which is sometimes raised; we need to establish that
the offences are extradition offences; and then we move to what
the statute describes as the "bars to extradition" which
are for the defence to raise. If any of those bars are raised,
then we have to consider that and make a ruling upon it. We then
move to human rights, which is the issue which perhaps is creating
a number of difficulties for us which I think are now being resolved
by decisions of the High Court. Once we have reached the end of
those proceedings, if an order is then made, the order is that
the defendant would be removed within ten days of that order.
If he consents on the first day, he will go within ten days, but
if he consents or is found at the full hearing to be the subject
of extradition he will go within 22 days or something of that
sort. The defendant then has seven days in which to appeal. He
can appeal on both fact and law to the administrative court, and
that, I am afraid, is outside my control.
Q223 Mr Benyon: Where is that heard?
Mr Workman: At the High Court.
Q224 Mr Benyon: How does this process
vary compared with the old extradition arrangements before the
warrant?
Mr Workman: It is much faster.
Q225 Mr Benyon: By a degree of—
Mr Workman: Months. The difficulty
with all of these cases is that it is almost impossible to establish
a real average because there is really no norm. A case can go
through by consent immediately, which of course is new; the case
could find itself going all the way to the House of Lords, which
inevitably makes it very protracted. The Act itself has created
a number of issues which the High Court is gradually resolving,
but it has meant that quite a few cases have had to go to the
High Court for issues to be decided and one or two to the House
of Lords. To get a picture of how long a case takes is actually
quite difficult. There is another aspect to delay which obscures
the statistics and that is if there are domestic proceedings in
hand. If somebody has been arrested for an offence in this country,
we cannot proceed until those domestic proceedings have been concluded.
If then a sentence of imprisonment is imposed, there are certain
arrangements we can deal with but we are in some difficulty in
ordering his return immediately because he is serving a sentence.
All those factors rather skew the statistics but I think the overall
picture is one of matters proceeding much faster than they used
to.
Q226 Mr Benyon: The grounds for refusal
to execute a warrant are contained in the bars to extradition
that you described earlier.
Mr Workman: Principally. The first
issue is the warrant itself and that is raised as to whether the
warrant is valid. Because it is now a standard warrant and everybody
is getting better at filling it in, those issues are really going
away. I think we have had none recently that we could have challenged
or that could have been challenged. Occasionally there is a defect
in the warrant and that is usually detected and put right before
we receive it. I am not sure how many warrants are intercepted
by the Serious Organised Crime Agency and returned. We only get
the ones which are being processed through that.
Q227 Mr Benyon: Could you give me
a rough percentage of the warrants that are refused for whatever
reason?
Mr Workman: Extremely small. In
terms of a defect in the warrant itself?
Q228 Mr Benyon: Yes, including the
numbers that are incomplete or wrong.
Mr Workman: Now, I should think
it is two or three.
Q229 Mr Benyon: It is as low as that.
Mr Workman: Very few. As I say,
there is this caveat that I am not sure how many the Serious Organised
Crime Agency would have seen and said, "They have failed
to fill in a particular part of the warrant. We will send it back
and get that completed."
Q230 Mr Benyon: So there is a filtering
process down the line.
Mr Workman: There is, yes.
Q231 Mr Benyon: Are there any practical
problems that cause you difficulties when deciding whether or
not to authorise a warrant?
Mr Workman: There are a number
of difficult areas. In the last year we refused 20.
Q232 Mr Benyon: That was out of .
. .? I think we have the figure here: 2,603 warrants.
Mr Workman: No, I think that is
pan-Europe. Last year, in terms of extradition requests, that
is right across the globe, we received a total of 327 requests.
Of those, 261 were from what are now Part 1 countries. Of that
261, some of them have not yet been processed so I cannot say
it is an exact figure. Last year there were 20 refusals. Of those,
five were accounted for because the conduct did not amount to
an extradition offence, and six were because of passage of time—they
were very old cases.
Q233 Mr Benyon: There is a statute
of limitations, is there?
Mr Workman: No, there is a bar,
though, of passage of time. It is one of the bars in the Act itself
which requires not only a period of time to have elapsed but also
that it would need to be oppressive or unjust to return somebody.
They need to satisfy the court that there has been a length of
time, generally speaking which is not of their making. So if somebody
flees the country knowing that there are proceedings and then
takes steps to disguise himself and to prevent people from finding
him, that would not count as part of the time, but for somebody
who was unaware of any proceedings, who travels for perhaps perfectly
understandable reasons, makes his home, settles down and is there
for 15 or 20 years, many courts would find that would be unjust.
Oppressive is a little more difficult. They need to satisfy both
the passage of time and the unjust and oppressive side.
Q234 Gwyn Prosser: Mr Kennedy, in
your answers to Mrs Cryer earlier this morning you talked about
building trust and confidence between the various authorities
in order to get smooth organisations in place and good results.
Do you think there is sufficient trust between the authorities
and the police in the Member States to allow the European Arrest
Warrant to work efficiently?
Mr Kennedy: I do not think there
can ever be enough trust. It is a difficult measure to make: 100%
trust or 80% trust or 70% trust?
Q235 Gwyn Prosser: How far are we
along that scale?
Mr Kennedy: I would say it varies
between different countries. Some countries work extremely closely
together, their systems are developed from very similar roots
and they have not strayed so far from the basic principle, say,
of the Napoleonic Code. If the language and the legal system is
very similar, then the level of trust is likely to be much higher.
We started from a fairly low baseline but things have improved
dramatically, and not just because of the establishment of my
organisation but, by bringing people together and getting them
to work together on individual cases, this level of trust and
confidence is undoubtedly improved and is continuing to improve.
Quite where one would put it on a scale is difficult to establish
and it would be different between different countries, but I think
now we are seeing, particularly between the United Kingdom and
different parts of the United Kingdom and these sorts of international
investigation and prosecution problems, that there is much closer
cooperation. In fact I have heard frequently that people who have
met at coordination meetings to organise arrests or deal with
prosecutions in The Hague in our premises, keep in touch with
each other. This might be true, let us say, for the Chief Crown
Prosecutor of Kent, who is now closely linked to her equivalent
counterpart in Northern France. This sort of linkage, which did
not exist three or four years ago, is now helping to provide dividends.
Q236 Gwyn Prosser: Are you confident
that the police and judicial systems in other Member States are
sufficiently robust, that there is no need to probe and question
decisions?
Mr Kennedy: The systems are very
different. I could not possibly give you an assessment of the
effectiveness of each of the individual police authorities, particularly
judicial authorities, in the other Member States of the European
Union. All I can say is that we can work together; that there
are problems and we can overcome some if not all of them.
Q237 Gwyn Prosser: I want to talk
a little bit about the 60-day time limit. We have been told that
of the 44 reported breaches of time limit on European Arrest Warrants
for which reasons have been provided, 31 are of the United Kingdom
and the majority of Member States have none reported. Is this
symptomatic of the UK being slow or irregular with its processes
or is it that the UK tends to report more efficiently?
Mr Kennedy: I think it may be
a mixture of both actually. It is true that the UK has reported
more numbers of cases that have not met the time deadlines than
many other Member States. I have the statistics for 2006 here
and I can give you those if you like. Eurojust has a responsibility
to receive information about the failures to meet these deadlines
from the Member States when the failures occur and I am sure that
the statistics we are provided with are not the whole picture.
I am sure, however, that the data I have been given from the United
Kingdom is all the data that is available and is accurate, again,
because the warranties, as you have heard from Mr Workman, are
centralised in the City of Westminster Court and dealing with
things in that way makes it much easier than dealing with it in
the way that it is dealt with in other Member States—which
is in a disparate way, locally, by warrants issued by judges or
magistrates in a particular centre of one country and the information
is not always centralised. There are efforts to do that and some
of the data is quite interesting but I do not think we are being
told on each occasion when there is a breach of the deadlines.
But I am sure that we are from the United Kingdom. Just to reinforce
what Mr Workman has told you, although we do not get data from
the Member States on the warrant generally, on the numbers issued
and the numbers of people surrendered and on the time it has taken,
the European Commission—representatives of which you may
have seen earlier—gathered data. For example over 6,800
warrants were issued in 2005 and this has led to over 1,700 people
being arrested and more than 1,400 of those were effectively surrendered
during 2005. This is a surrender procedure; effectively a backing
of warrants procedure, although it is referred to in the Extradition
Act in the UK. This is much quicker than the time that was taken
under the old procedure, under the convention, when extradition
procedures took much, much longer. The average for 2004 was a
return time of 43 days compared to over nine months as the average
before the warrant came into effect. That is a remarkable reduction.
Q238 Gwyn Prosser: Mr Workman, can
you cast some light on the reason why the UK misses the 60-day
deadline? Is this due to the process in this country or something
else?
Mr Workman: It is largely process.
The Extradition Act with its bars goes rather further than the
framework decision in terms of the protection that it provides
to the defendant. Some would describe these as obstacles that
the prosecution have to get over; others would see these as safeguards.
Inevitably, if somebody wishes to raise, for example, the passage
of time, there will need to be an inquiry as to what is unjust
or oppressive about it and that requires evidence to be obtained
from the requesting state and that inevitability takes time. It
certainly is very seldom done within the 21 days. There is inevitably
an extension of the time where issues are being raised that require
evidence to be produced. That is one issue. The other issue which
I think is significant is the fact that we cannot proceed when
there are offences pending investigation or prosecution in this
country. Very often defendants come to light as a result of an
arrest for a domestic matter and we then have to wait until those
matters are concluded. I am afraid that domestic cases take some
time and to conclude a case which has to go to the Crown Court
within nine months is actually quite difficult to do. Built into
those sorts of cases is a nine-month delay before we can really
get started.
Q239 Gwyn Prosser: Should not all
those safeguards or barriers attain to all the other Member States?
Mr Workman: No, because we go
rather further than the framework. Most of the Member States have
adopted the framework in their legislation and we have devised
our own safeguards and built the framework into the statute. Our
safeguards are probably at a higher level than those of many other
countries.
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