Select Committee on Home Affairs Minutes of Evidence


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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