6. Memorandum submitted by Fair Trials
Abroad
ABOUT 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.
EXECUTIVE SUMMARY
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.
TERMS OF
REFERENCE
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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