Select Committee on Home Affairs Written Evidence

6.  Memorandum submitted by Fair Trials Abroad


  1.  Fair Trials Abroad (FTA) is an independent, non-party political, registered charity concerned with promoting fair trials and defending the rights of those facing charges in a country other than their own. We do this through individual casework and by conducting research and policy advocacy on a range of criminal justice issues within the UK, EU and beyond.


  2.  FTA welcomes the opportunity to make a submission to this timely and important inquiry. We have a long history of advocacy and policy work in the area of European criminal justice and hope that this brief submission will provide a valuable perspective to the Committee on the issues before it. This submission considers both the legal and policy implications of how criminal justice issues are being dealt with at EU level, illustrated by case studies drawn from our legal practice.

  3.  It should be noted from the outset that we are concerned that the terms of reference as drafted appear to be primarily concerned with the benefits which have accrued or may accrue to those conducting prosecutions within the EU. This submission aims to redress that imbalance by presenting our concerns at what we view as insufficient consideration of the needs and rights of suspects and defendants and their representatives in this inquiry and within any broader EU criminal justice initiatives.

  4.  This submission is therefore less concerned with "building on the successes" of developments in mutual recognition and harmonisation than highlighting where insufficient attention to the rights of suspects and defendants has given rise to extremely worrying instances of those rights having been abused.


A.  The current state of progress in developing practical co-operation between member states in the JHA field, and future options in this area.

(i)   What benefits have accrued so far from practical co-operation between law enforcement and judicial authorities? What are the lessons of practical cooperation for European policy and legislation, and how effective is Eurojust in spreading best practice?

  5.  The overarching issue which must be borne in mind is that for justice to be seen to be done within any European Criminal Justice cooperative initiatives, defence issues must be taken into account in policy, legislation and in setting best practice standards. Unfortunately, it is FTA's experience that current minimum standards applying to the handling and sharing of evidence and treatment of defendants are not being adhered to, let alone best practice standards being put in place.

  6.   Letter of Request/Commission Rogatoire

These are the means by which evidence may be obtained in a jurisdiction for proceedings taking place in another jurisdiction. They are frequently used by law enforcement and prosecuting authorities, often to those agencies' benefit. However, there are two problems with their current use.

  7.   Failure to comply with requests for information

Our casework reveals a number of instances where Letters of Request or Commissions rogatoires are processed by the Home Office, but not subsequently acted upon by the local police station. This can have an extremely detrimental effect on preparation of a defence, as evidence or information which may be supportive to the defence are not made available for assessment during the investigation or at trial.

  8.   Safeguards in provision of information

FTA has seen several instances of information being made available under a Commission rogatoire or Letter of request which is either inaccurate, out of date or is inadmissible in the country from which it is being sought. Such information can have a highly prejudicial effect on the case in question. In our view, there are not sufficient safeguards in place to ensure that information passed between law enforcement and judicial authorities is accurate, admissible and unable to be manipulated to secure unfair trial outcomes.

  9.  We are particularly concerned at instances where UK police have disseminated spent convictions to European investigating magistrates, information which would not be admissible at trial in the UK and which should not be made available to other investigating authorities.

  10  Even more worrying are cases where it appears "convictions" have been fabricated to artificially boost the case against the suspect in question. An example of this conduct is detailed in Case Study 1, below.

  11.   Case study 1: David Stevenson

On 9 November 2002, British lorry driver David Stevenson and his friend BN drove from Britain to Calais on a regular weekly run to deliver a loaded trailer and to collect another loaded trailer for the return journey later that day. David Stevenson was not involved in the loading or unloading of either trailer—he merely hitched and unhitched the trailers to his lorry cab. Following the exchange of trailers in Calais, he then drove to a petrol station on the French/Belgian border to fill up. On returning to Calais, Customs stopped and searched the attached trailer and found 250 kg cannabis in seven pallets.

  12.  During detention, David signed a document in French for which no translation was provided, in which he agreed to a fast-track trial. No advice was provided on the implications of this nor was he given access to a lawyer. Nevertheless, he felt confident that the tachograph evidence would exonerate him by showing he would not have had any time to load anything onto the trailer while in Belgium or France.

  13.  Three days later, on 12 November, he was taken to court under French fast-track procedures. Half an hour later, he had been sentenced to two years' custody and a €381,400 fine. No investigation had been undertaken into whether anyone else could have been responsible for the drug smuggling (such as the consignor, consignee, distributor or tractor driver who delivered the loaded trailer to Calais). No defence evidence was presented and the verdict was reached on prosecution evidence alone.

  14.  A crucial item of evidence concerned David's previous criminal record. The prosecution claimed David and BN had 10 convictions between them. No proof of these was adduced. In fact, David Stevenson had one spent conviction—for shoplifting in 1981. This had not prevented him from satisfying the good character and clear criminal record test to obtain his operator's licence in the UK but was now deemed sufficiently relevant to be provided with lightning speed to the prosecution in order to convict him in France.

(ii)   In which areas does the UK government want to advance more practical cooperation measures? What benefits does the government see from practical cooperation over legislative solutions?

  15.  Clearly, rebalancing practical cooperation to ensure suspects and defendants are accorded adequate protection is a high priority in determining where further practical cooperation could be undertaken. Where other practical cooperation is contemplated or undertaken, proper adherence to existing protections and incorporation of appropriate additional protective measures are essential.

  16.  FTA is concerned that the current approach appears to place efficiency in undertaking investigation into crimes and their subsequent prosecution, above respect for the defendant's fundamental rights. While we agree with the need for appropriate support to be provided for the investigation of crimes across the EU, this must not be at the expense of such fundamental protections as the presumption of innocence and the consistent application of measures designed to safeguard the integrity and admissibility of evidence.

(iii)   What should be the role of Europol, Interpol and Eurojust in facilitating practical cooperation?

  17.  This raises two issues: the nature of practical cooperation that these agencies should facilitate and whether they have adequate resources to do so effectively.

  18.  FTA supports closer working between enforcement and judicial agencies as a means of improving the efficiency of investigative and legal processes and particularly, to reduce duplication and confusion between overlapping jurisidictions. It is in the interests of investigators, prosecuting agencies and defendants that matters are conducted expeditiously. One of the greatest complaints among defendants are the extreme delays many face while awaiting trial.

  19.  However, these agencies are almost exclusively focussed on providing support and assistance in the investigation and prosecution of crimes. Again, there is insufficient consideration given to the rights and needs of the defence, an imbalance which FTA believes needs to be redressed as a priority.

  20.  In particular, we support the creation of an agency dedicated to supporting defendants in multi-jurisdiction cases, to ensure parity of arms at the agency level and to provide practical support to parity of arms at the investigative and trial levels.

  21.  This agency would comprise representatives from each Member State and would operate to facilitate cooperation between defence lawyers working across jurisdictions on common cases.

  22.  As a minimum, it should:

    —  Provide information on Legal Aid for defence lawyers across different jurisdictions;

    —  Provide information on accredited interpretation and translation services, especially for cases where specialist skills are required;

    —  Advise on the different rules of practice and evidence applicable in different jurisdictions;

    —  Monitor relevant legislative and judicial developments across Member States and notify defence practitioners of pertinent changes; and

    —  Identify systemic abuses of defendant rights (such as abuse of commissions rogatoires) and ensure these are reported to the appropriate authority.

B.  The current state of progress in mutual recognition, including the development of minimum standards, across the EU, and whether further steps in this direction are desirable.

  23.  The principle of mutual recognition cannot readily be effected until all jurisdictions can trust and have confidence in each other. In our view, this will only be realised upon the introduction of a mechanism protecting the fundamental rights of the defendant.

  24.  The capacity of the European Court of Human Rights to fulfil this function is severely constrained by two key factors:

    —  Delay: It is so overburdened with cases that only a small percentage of applicants are declared admissable and that even for that minority, the review can take years.[83]

    —  Enforceability: Even when a decision is forthcoming a lack of enforceability means it may provide the beneficiary with little redress.

  25.   Framework Decision on Procedural Safeguards

The proposed Framework Decision on Procedural Safeguards, originally conceived in 2004, may now take a further 2 years to become operational. This does not bode well for progress of mutual recognition of judicial decisions in criminal justice.

  26.  The European Commission has justified the proposal for procedural safeguards as necessary to build trust and promote mutual confidence across the EU. In its explanatory memorandum it states:

    17.  "Mutual recognition can only operate effectively in a spirit of confidence whereby not only the judicial authorities, but all actors in the criminal process see decisions of the judicial authorities of other Member States as equivalent to their own and do not call in question their judicial capacity and respect for fair trial rights. This is important so as to enhance a general perception of mutual recognition which is positive, and that involves not only trust in the adequacy of one's partner's rules, but also trust that these rules are correctly applied"[84]

  27.  We were extremely disappointed at the protest made by the United Kingdom in October 2006 calling for this recital to be made less explicit and for greater attention to the restrictions limiting the rights of the defence.[85] Such actions are clearly aimed at further undermining the basic safeguards that all defendants should be entitled to rely upon.

  28.  These safeguards are already under considerable threat. For example, the British government has vigorously sought to overturn the long-standing prohibition on the admissibility of evidence obtained by torture, efforts which have thus far thankfully been rebuffed.[86] Any further weakening would expose defendants to high risk of abuse of their fundamental rights.

  29.  A recent case highlights another insidious effect of mutual recognition without adequate safeguards in place to secure a defendant's rights. See Case Study 2.

  30.   Case Study 2:  Iona Collins

Iona Collins, an orthopaedic surgeon from Oxford was arrested in Spain after she approached police who she believed were mistreating a woman on a main thoroughfare. They turned on her and she was violently assaulted, then thrown, semi-conscious into a police cell, whereupon her clothes were removed and she was held without food or water for 24 hours. No interpreter or lawyer was present. Upon her return to the UK, expert photographic evidence showed serious bruising.

  31.  Sadly, her case is not unusual. FTA is aware of many cases of similar police treatment in Spain, in part exacerbated by court practice which does not allow examination of police evidence. In this case, no questions were put to the police regarding her evidence of mistreatment and their evidence against her was not subject to any cross-examination.

  32.  For Ms Collins, the consequences go beyond the judgement of the Spanish court (a plea-bargain of resisting arrest). Because of mutual recognition of the judgement, her medical career is very much under threat, with the General Medical Council currently reviewing her practising credentials in light of the foreign conviction. This is despite the much lower standard of proof applicable in the Spanish court and the effective absence of a presumption of innocence.

(i)   In which areas is mutual recognition currently employed (for example recognition of judicial judgements in other member states)?

  33.  In addition to judgements, the most common forms of Mutual Recognitions are the European Arrest Warrant (EAW) and proposed European Evidence Warrant (EEW). Current patterns of use of both of these suggest varying levels of confidence in them across Member States.

  34.   European Arrest Warrant

With regard to the EAW, figures issued by the European Council in ay 2006 show that Member States, and the UK in particular, carry out most of the extradition orders requested of them. This is strongly suggestive of a lack of confidence in the mechanism and its use by prosecuting authorities.[87]

  35.  However, for those who are subject to extradition from the UK under the EAW, FTA has grave concerns as to how it is implemented and the problems arising out of the wide variation in adherence to basic human rights and fair trials standards across the EU.

  36.  The EAW has been incorporated into British law in such as way as to render it an almost wholly administrative process. There is scant capacity for the courts to examine the evidence on which prosecuting authorities base their application, nor to take such factors as lengthy delay or mistreatment into account. FTA is currently representing a young man facing almost certain mistreatment if his extradition under an EAW to Greece is upheld. Please refer to Case Study 3 for further details of his case.

  37.   Case Study 3:  Michael Tonge

Michael Tonge and Lee Yarrow were arrested whilst on holiday in Crete in 1999, after being attacked by a group of local youths. During the attack, Mr Tonge was stabbed in the hand and thigh. He attempted to defend himself with the aid of Mr Yarrow and caused a cut to the neck of one of his assailants. Both men were arrested and charged with attempted murder. Mr Yarrow was released after four days, however Mr Tonge was held on remand for four months. During this time he suffered ill-treatment at the hands of the Greek police and prison authorities. He was beaten, kicked, flogged with rope and being denied food and medical treatment. Mr Tonge contacted Amnesty International at the time and they sought a "prompt, thorough and impartial investigation" into the mistreatment. It appears that no such investigation took place.

  38.  Upon release, Mr Tonge returned to the UK as permitted. The Greek authorities were informed of his contact and residence details. By a warrant dated 22.01.01, both defendants were summonsed to stand trial in Greece on 18.09.01. However they received a letter from the Home Office dated 14.06.01, stating that they were not obliged under UK law to comply with the warrant. They sought legal advice in relation to this and decided not to return to Greece. Mr Tonge was fearful that upon return, he would be subjected to further ill treatment and not be afforded a fair trial. An arrest warrant was issued in 2002 and both men were warned that if they entered Greece again, they would be arrested to stand trial.

  39.  The Greek government then sought their extradition and an EAW was issued on the 21.06.05. No reason was given for the delay. The matter was heard at City of Westminster Magistrates' Court on 04.10.06 and on the 30.10.06, the decision was passed down by a District Judge that Mr Tonge and Mr Farrow were to be extradited. They have both submitted an appeal to the High Court. Under the Extradition Act 2003 s14, refusal to extradite on the grounds of passage of time has to be based on "injustice" or "oppression". The District Judge took the view that this case did not fall into either category.

  40.  This is in contrast to the other Member States, which have reserved a discretion for their courts to refuse extradition under an EAW. For example in the Netherlands, article 11 of the Surrender Act 2004 provides that extradition "shall not be allowed in cases in which, in the opinion of the court, there is justified suspicion, based on facts and circumstances, that granting the request would lead to flagrant breach of the fundamental rights of the person concerned, as guaranteed by the ECHR."

  41.  Indeed the Amsterdam District Court, in its decision of 1 July 2005, LJN AT 8580, refused to extradite a Dutch national to Spain on the basis that the length of time that had passed since the original offence constituted a flagrant breach of the ECHR article 6. The original offence dated back to 1997 and the EAW was issued in 2005. Also relevant was the fact that the Spanish authorities had been aware of the address of the requested person and did not give an explanation for the time that had passed. The Court also held that since the requested person would be held in provisional detention after his surrender, his only remedy of claiming that there had been a violation of human rights would be ineffective since it would result in the continuation of the violation of his rights. By implication the court held that in this case there was a flagrant violation of s1 ECHR.

  42.  Clearly there is disparity in the way individual Member States have incorporated the Framework Decision on the EAW into domestic legislation the Framework Decision on the European Arrest Warrant, leading to differences in the level of protection available to defendants in different Member States.

  43.   European Evidence Warrant

Opt-outs by various member-states of aspects of the proposed EEW also suggest uncertainty as to its reliability. Recent agreement among EU ministers to enable justice officials to transfer data, documents and objects was strongly qualified by Member State opt-outs. Germany reserved the right to double-check evidence requests for six types of crime, including terrorism and race-related crimes and refused to forward evidence where the charges would not attract criminal sanctions in Germany. The Netherlands will refuse to transfer evidence in cases where the crime is not alleged to have been committed on its own territory.

  44.  It remains to be seen how the courts will deal with the EEW. Some guidance is provided in a recent dissent by Lord Hope. The case concerned the issue of an arrest warrant by German authorities for the arrest of a German national residing in the UK. His Honour concluded that a UK police officer could not rely on common law search and seize powers and would therefore have to rely on German information as to what should be seized. In His Honour's opinion, the level of interference in a respondent's ECHR rights this would incur was not proportionate.[88]

C.  The current state of progress in and appetite for harmonising criminal justice systems across the EU, and whether further steps in this direction are desirable.

  45.  Harmonising justice across the EU is an enormous undertaking, covering the wide variance in law and procedure across member states. It is important to recognise that these differences often reflect the particular cultural, political and historic influences on law and practice and the values thereby embedded in legislation and legal systems may prove extremely difficult to reconcile with one another.

  46.  A possible unifying factor is the benefits to the citizen—and in particular, the capacity of harmonisation to increase access to rights and protection under the law. However, the emphasis on strengthening the hand of investigating and prosecuting agencies is undermining this capacity. Efforts to realise benefits to citizens have been further weakened by the collapse of the proposed Constitution and accompanying democratic support for hamonisation. Rebalancing the relationship between the citizen and the State to shore up individual rights and justice must be a starting point for any further efforts towards harmonisation. Without it, those efforts will struggle to find democratic support and legitimacy.

  47.  At a practical level, it has become evident from our experience that there are many deficiencies in individual Member State legal processes which rule out harmonisation, for example, fast-track trials in France and Spain. To proceed with harmonisation while such deficiencies persist in the judicial processes of individual States means progress will at the very least be extremely slow. Pressure for compromise to accommodate such variance also presents the strong risk that harmonisation will become a mechanism for downgrading protection across the EU.

D.  The process of decision-making on JHA issues at EU level: in particular, the extent to which current difficulties in reaching agreement derive from "third pillar" voting procedure and might be remedied by implementation of the passerelle clauses in previous treaties.

(i)   What implications might use of the passerelle have for the UK's legal and judicial systems? What alternative action might improve decision-making? How can transparency and accountability at European level best be extended?

  48.  Given our concerns at the threat to legitimacy of moves towards harmonisation and the risk of an EU-wide downgrading of fundamental rights and safeguards it presents, we would be extremely wary of the use of the passerelle as opposed to allowing individual member state veto.

  49.  The measures being considered in relation to harmonisation will have far-reaching effects on British and other EU citizens. FTA has also seen the potential for grave abuse of fundamental protections through the current application of the EAW. We would be very concerned if other measures, such as the proposed EEW, were introduced despite the severe misgivings of individual member states.

  50.  Moreover, we are concerned that use of the passerelle in relation to measures which will have a direct bearing on citizens' rights and freedoms will further undermine the democratic legitimacy of moves towards greater cooperation within the EU. Given the almost exclusive focus on strengthening the powers of the State at the expense of the individual's protections, EU citizens and those who would represent them are right to be wary.

Catherine Wolthuizen

Chief Executive

22 November 2006

83   More than 41,000 applications had been lodged in the the Strasbourg Court in the first 10 months of 2006, an increase of 10% on 2005. Back

84   Council Doc12353/05. Back

85   Council Doc14400/06, November 2006. Back

86   A and others v Secretary of State for the Home Department [2005] UKHL 71, para 52 per Lord Bingham. Back

87   Council Doc9005/06, May 2006: Only 12 out of the 25 EU member states provided figures. The 12 issued 2.428 EAWs: 1,448 by Poland, 373 by Netherlands, 131 by UK and 121 by Italy, however, only 112 were surrendered from the Polish list, 30 for the Netherlands, 43 for UK and 57 for Italy. The most marked finding is that the UK tops the list of the countries to whom EAWs were issued with 5,986 received (434 Netherlands, 218 Poland and 69 Italy)-but the numbers for the people arrested in response to an EAW was: UK only 154, Netherlands 164, Poland 100 and Italy: no answer. Back

88   Archbold: R v Commissioner of Police for the Metropolis ex p Rottman[2002]UKHL 20 16/05/02. Back

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