23. Second supplementary memorandum
submitted by the Home Office
During my appearance before the Home Affairs
Committee on 20 February I undertook to write with some additional
information on a number of queries raised by the Committee in
the context of its inquiry into JHA in the EU.
The possibility of a central UK police body to
deal with EU functions and issues
The Government is aware that this issue was
raised by members of the Association of Chief Police Officers
(ACPO) and the serious Organised Crime Agency (SOCA) when they
gave evidence to your Committee on 9 January. There is already
good co-operation between UK police forces and counterparts in
the EU, in part facilitated by ACPO, liaison officer networks
and Europol, but it is true that the structures in place at EU
level tend to concentrate on supporting co-operation in tackling
organised crime because this has been identified as the EU level
priority. However, the Government takes seriously the views expressed
by ACPO and SOCA and is committed to improving police co-operation
with other Member States, whether it is serious or not. We will
therefore consider jointly with ACPO and SOCA what improvements
could be made to current arrangements, including at a planned
Law Enforcement Forum in April.
Would the Government financially support a British
citizen in challenging another EU State to establish their human
rights?
The Government has a clear policy in respect
of allegations of torture or ill-treatment made by British nationals
detained overseas. We take all such allegations seriously and
will, if appropriate, raise our concerns with the governments
concerned. We may also request that a prompt impartial investigation
be carried out into the allegations and that we are informed of
the result of that investigation.
Practical assistance in cases of alleged mistreatment
will be determined on a case by case basis. If a British national
makes allegations of abuse or mistreatment, and they are still
detained they will usually receive a consular visit. Our main
consular function in relation to British nationals detained overseas
is in relation to their welfare. As part of that, if the person
concerned has not received the appropriate medical care for any
injuries, we may ask the relevant authorities (police or prison)
to ensure that they receive the appropriate healthcare. We can
also pass information on to family and friends in the UK and put
them in contact with organisations such as Prisoners Abroad and
Fair Trials Abroad. In addition, the assistance that we provide
to British nationals overseas is detailed in the Consular Guide
which can be found at: http://www.fco.gov.uk/Files/kfile/consularfullguide.pdf.
http://www.fco.gov.uk/Files/kfile/In Prison Abroad
FINAL layout1.pdf
If the British national concerned wished to
take action against the relevant authorities, we would advise
them to appoint a local lawyer and provide them with a copy of
our local lawyers list. We would not provide any financial support
for their case but we could appoint a lawyer from our pro bono
lawyers panel to assist them with their case free of charge and
refer them to organisations that may be able to assist them.
There are also two systems in operation which
enable UK citizens to apply for legal aid abroad:
— the European Legal Aid Directive,
which applies to civil and commercial disputes. Its aim is to
improve access to justice by facilitating the transfer of legal
aid applications where an applicant who is resident in one member
state needs to apply for legal aid in a different member state.
— the European Agreement for the Transmission
of Applications for Legal Aid (also known as the Strasbourg Agreement).
Legal aid is available to assist in completing
an application form for legal aid abroad, including obtaining
any necessary translations, under both the Directive and the Strasbourg
Agreement. For further information on the legal aid system adopted
in each of the ratifying countries, see the Europa website at
www.europa.eu. It should be noted however that legal aid systems
in many other countries are less comprehensive than in the UK.
Applications may be sent to the Legal Services
Commission to be forwarded to the relevant foreign authority.
The LSC will monitor and keep applicants informed of any developments.
Why internationally is the ECHR (European Convention
on Human Rights) considered adequate but nationally we require
parliamentary legislation and the ECHR to protect our rights?
We expect all States to comply with their international
obligations, including in respect of the treatment of British
nationals in their territory. This includes human rights conventions
such as the ECHR or ICCPR (International Covenant on Civil and
Political Rights) to which they are party. It is up to each State
to decide how they wish to give effect to these international
obligations through their domestic law.
Human rights conventions such as the ECHR only
lay down minimum standards. Many States, including the UK, provide
a greater degree of protection under their domestic law. In addition
to international standards, we expect British nationals overseas
to be treated in accordance with the domestic law of the State
concerned.
The ECHR provides a full enforceable set of
rights for all EU citizens and underpins procedural rights throughout
(and beyond) the EU. It does not include a right to legal aid
for persons who wish to purse civil actions, but it's Articles
5 and 6 provide rights for persons detained and charged (respectively).
Any person whose Convention rights are infringed has a right to
an effective remedy before a national authority under Article
13.
It is a matter for each national government
to determine how to give effect to the ECHR. In some jurisdictions
it has direct applicability. That is not the case in the UK, where
the rights of suspects are set out in the Police and Criminal
Evidence Act (which applies in England and Wales) and in broadly
equivalent legislation in Northern Ireland and Scotland.
We are keen to enhance compliance with ECHR
standards throughout Europe, but in our view that is not best
achieved by establishing a new EU legal framework for procedural
rights. Rather, we need to focus on practical measures, and that
is the purpose of the Resolution we have put forward, with five
other States. It refers in particular to the tape-recording of
police interrogations, which provides a very effective safeguard
against abuse, both for the citizen and the police. Nevertheless,
even the best-regulated police forces face allegations of improper
conduct at times and we believe each country needs a system to
ensure that allegations can be independently investigated, as
they are in this country by the Independent Police Complaints
Commission.
How many operations in the last year or investigations
took place through Eurojust in which the UK participated? How
many and what type of investigations have gone through Eurojust?
The Government attaches considerable importance
to the work carried out by Eurojust in supporting and facilitating
cross-border co-operation in relation to national investigations
and prosecutions. Its annual report for 2005 (the latest figures
available for the information sought by the Committee) demonstrates
the progress it has made in developing a significant role in assisting
Member States to tackle cross-border crime.
In 2005 Eurojust registered 588 cases, of which
39 involved requests from the UK and 82 involved requests to the
UK. These concerned the following offences:
— Swindling and Fraud—120
— Crime against property/public good
(including fraud)—92
— Crime against life, limb or personal
freedom—45
— Participation in a Criminal Organisation—35
— Forgery of Administrative Documents—26
In the Annex attached to this letter we also
provide some examples of specific cases demonstrating in particular
how Eurojust has assisted the UK in successfully prosecuting serious
and organised crime.
When do the Home Office expect to make the results
of the European Arrest Warrant review available, and can the Committee
have advance sighting of them?
The report on the UK's implementation and operation
of the European Arrest Warrant is currently being drafted by the
evaluation team who visited the UK at the end of 2006. We hope
to receive an informal draft of that report in the coming weeks,
on which we will be invited to offer comments and in particular
correct any factual inaccuracies. It will then be presented formally
to an expert meeting in Brussels for discussion by delegations
from all Member States before a final version is submitted to
Ministers in the JHA Council. We will submit the first formal
version of the report to your Committee as soon as it is published
and at the same time that it is deposited in the usual way for
parliamentary scrutiny.
The Committee asked about the Government's position
on the conclusions of the European Parliament report last week
on the use by the US of European air flight facilities to transport
prisoners or terror suspects from one country to another
The position of the UK Government on rendition
is clear. We have not approved and will not approve a policy of
facilitating the transfer of individuals through the UK to places
where there are substantial grounds to believe they would face
a real risk of torture. If we were requested to assist another
State in a rendition operation, and our assistance would be lawful,
we would decide whether or not to assist taking into account all
the circumstances. We would not assist in any case if to do so
would put us in breach of UK law or our international obligations,
including under the UN Convention Against Torture.
We have found no evidence of detainees being
rendered through the UK or Overseas Territories since 1997 where
there were substantial grounds to believe there was a real risk
of torture. The then Foreign Secretary, Jack Straw, set out in
his Written Ministerial Statement of 20 January 2006 the results
of the extensive review of official records back to May 1997.
There were four cases in 1998 where the US requested
permission to render one or more detainees through the UK or Overseas
Territories. In two of these cases, records show the Government
granted the US request, and refused two others. We have no evidence
that the US Government has rendered any detainee through UK territory
or airspace (including Overseas Territories) during the present
US Administration, ie since January 2001.
We have addressed the issue of rendition with
the US government. As part of our close co-operation with them
we have made clear to them:
— that we expect them to seek permission
to render detainees via UK territory and airspace (including Overseas
Territories),
— that we will grant permission only
if we are satisfied that the rendition would accord with UK law
and our international obligations, and
— how we understand our obligations
under the UN Convention Against Torture and the European Convention
on Human Rights.
The European Parliament report on the alleged
use of European countries by the CIA for the transportation and
illegal detention of prisoners provides no new evidence in respect
of the UK.
The Committee asked what discussions there had
been with the German Presidency on plans to resurrect the Constitutional
Treaty (and therefore move JHA to QMV)
During my appearance I indicated that there
had been no discussion of this topic in Ministerial meetings of
the JHA Council. As I explained the debate in the Council on the
use of the passerelle clause in Article 42 TEU was concluded at
the end of 2005. However, Government Ministers meet regularly
with their EU counterparts, including the German Presidency, not
least in the various formations of the Council of Ministers. Senior
officials also meet their EU counterparts on a regular basis.
Their discussions cover the whole range of EU issues, including
climate change, energy security, economic reform and the future
of Europe. The Presidency will present a report to the European
Council in June on the future of Europe, based on extensive consultations
with the Member States.
Joan Ryan MP
Parliamentary Under-Secretary of State, Home Office
27 February 2007
Annex
EUROJUST CASE STUDIES (ALL INVOLVING UK)
Trafficking in Human Beings—Three Jurisdictions
Considerable value and undoubted benefit were
added to a series of cases involving trafficking in human beings
referred to Eurojust by the UK. It is significant to note that
these cases, although they emanated from different parts of the
UK, namely London, South Yorkshire and Scotland, were clearly
linked to one another in that they centred on investigations into
the trafficking activities of a network of Albanian organised
crime groups. The UK and Lithuanian desks at Eurojust, in dealing
with these cases, were involved in all aspects of the services
offered to national authorities by Eurojust, the facilitation
of UK and Lithuanian mutual legal assistance (MLA) requests, the
initiation and subsequent co-ordination of linked investigations
and prosecutions and the planning and arranging for the execution
of an urgent European Arrest Warrant within a short space of time
and under complicated circumstances.
The cases concerned the trafficking of women
and girls, some as young as 14, from Lithuania to the UK. On arrival
in the UK, the women were sold to Albanian organised crime groups
for the purpose of prostitution. The initial reason for the referral
to Eurojust was to facilitate MLA requests for evidence to be
used in forthcoming trials of the Albanian defendants in England.
On a review of the cases at Eurojust it became apparent that there
was a need to initiate investigations in Lithuania against the
organisers, who were engaged in recruiting the victims and transporting
them to the UK. Both of these objectives were achieved at a successful
co-ordination meeting held at Eurojust in January 2005. Information
and intelligence were shared with the Lithuanian prosecutors and
police, who thereafter agreed to commence investigations. This
resulted in arrests in Lithuania and the commencement of investigations,
the merger of existing investigations and co-ordination of UK
and Lithuanian investigations. Europol also participated in this
meeting, providing an insight into intelligence collected on the
activities of Albanian organised crime groups.
At the same time, in the UK, further arrests
were also made, in particular in the Sussex area, when one of
the alleged Lithuanian couriers arrived at Gatwick Airport. Due
to problems in establishing jurisdiction in England and Wales,
no prosecution resulted. After further discussions conducted through
Eurojust, the Lithuanian authorities confirmed that they were
able to establish jurisdiction and could prosecute and, in furtherance
of this, agreed to issue a European Arrest Warrant. The preparation,
issuance and execution of this warrant were co-ordinated through
Eurojust. The entire process, which included re-issue of the EAW,
due to the requirement by the UK authorities of additional essential
information, took only four days to complete and resulted in the
Lithuanian suspect being transferred to Lithuania for trial.
During the same period, the International Co-operation
Unit at Crown Office in Scotland also referred a trafficking case
to Eurojust. This case was referred for facilitation of mutual
legal assistance and involved very similar circumstances—the
trafficking of women and girls from Lithuania to the UK, the sale
on arrival in the UK to Albanians and the women thereafter being
put to work in the UK's sex trade. An assessment of the Scottish
investigation at Eurojust revealed common factors and links to
both the ongoing English cases and the investigations in Lithuania.
The Lithuanian National Member at Eurojust advised his domestic
authorities of these links and the Lithuanian side of the investigations
was combined and would be dealt with as one case. It is hoped
that this will strengthen the Lithuanian case and when this ultimately
proceeds to trial, it will incorporate the trafficking to both
Scotland and England.
The cases, referred to Eurojust by the Crown
Prosecution Service in South Yorkshire, have now been brought
to trial and have resulted, not only in convictions, but also
in lengthy custodial sentences, including 18 and 21 years' imprisonment.
Co-operation between both Scottish and English authorities and
their Lithuanian counterparts is ongoing to progress and prepare
for the Lithuanian prosecutions. Eurojust continues to play a
significant part in this collaboration. These cases both individually
and cumulatively are excellent examples of how Eurojust can make
a difference as it facilitates and co-ordinates necessary actions
between individual national authorities and agencies.
Serious Fraud—Urgent Multilateral Assistance
On 8 and 15 April and 3 May 2005 the General
Prosecution Office of the Slovak Republic asked for mutual legal
assistance from the competent authorities of the UK, Germany and
Austria in the investigation and prosecution of a serious fraud
case. This crime was alleged to have been committed by persons
acting as representatives of a joint stock company. Each of these
persons had issued and signed four insurance guarantee bonds,
each with the value of US$ 5 million, in total amounting to US$
20 million, without meeting the legal requirements prescribed
by the special Act on Bonds. All of the bonds were due and payable
on 30 September 2006. These bonds went into circulation through
certain persons with the view to obtaining financial benefit from
the sale for the perpetrators or for others in the amount of US$
20 million.
The Slovak authorities asked for the hearing
of witnesses and submission of the securities. The requests for
MLA were fully met and executed by the UK and Austrian authorities
in August and September 2005 and the German authorities, who could
not meet the request fully due to a procedural obstacle, also
replied in August 2005. This case is proof of very quick and effective
assistance by Eurojust and the competent authorities in certain
Member States. The results helped the competent authorities in
the Slovak Republic to make a quick decision to charge the suspects.
The investigation is still ongoing.
Illegal Immigration Crime
Eurojust made a significant contribution to
an illegal immigration crime case referred by the UK. It involved
Turkish organised crime groups allegedly engaged in the smuggling
of large numbers of Turkish Kurds into the UK. This group was
under investigation by the Metropolitan Police in London.
The UK operation had links to a number of other
countries, primarily Belgium, but also Italy, France and Denmark.
The UK had made a large number of MLA requests for evidence from
these countries and the swift execution and facilitation of these
was one of the reasons for the referral of the case to Eurojust.
Moreover, as the UK operation was moving towards an enforcement
phase, the UK investigators and prosecutors were keen to ensure
that any arrests they carried out in the UK were co-ordinated
with the arrests of the suspects in the other involved countries,
not only to maximise the effect but also in an effort to dismantle
the entire organised people-smuggling network across all the countries
in which it existed and operated. After arrest, exchange of information
and evidence would be required in preparation for prosecution
and, therefore, for all of these reasons, the case was referred
to Eurojust.
A co-ordination meeting was held at Eurojust
in May 2005. The UK, Belgium, France, Germany, Italy, The Netherlands
and Europol were represented. Amongst other things, a common enforcement
date for arrests was discussed and agreed in principle. Ancillary
issues, such as liaison with the Turkish authorities and a media
strategy following the arrests, were also explored.
A follow-up meeting was held at Eurojust in
September 2005, essentially to plan and co-ordinate the joint
arrests due to take place at the beginning of October. A total
of 26 arrests were made, 19 in the UK and seven in Belgium, during
the joint action which ensued in both countries on 11 and 13 October.
Clearly, this success is partially a product of the co-ordinated
approach to crossborder cases brokered at Eurojust. Eurojust continues
to be involved in this case. A further meeting at Eurojust is
proposed for early 2006 both for debriefing purposes and also
to discuss the gathering of evidence in preparation for trials.
Large-Scale Investment Fraud
In this case, a number of Member States were
involved: Austria, Belgium, France, Luxembourg, Spain, the UK
and a third country, Switzerland.
A Luxembourg investigating magistrate dealing
with a complex cross-border case of large-scale investment fraud,
with hundreds of victims and huge financial losses of between
€30 million and €50 million, requested Eurojust to facilitate
the execution of urgent MLA requests and to help co-ordinate further
judicial action in this case.
The principal suspect was in pre-trial custody
in Luxembourg. The MLA requests were aimed mainly at freezing
bank accounts and recovering criminal assets. A co-ordination
meeting between Luxembourg, Belgium, France and Spain was organised
by Eurojust in November 2005. The authorities involved found practical
solutions to problems encountered in the execution of various
MLA requests. Some new areas for further investigations were also
identified. Moreover, it was confirmed that Luxembourg and France
were conducting parallel investigations of the same case.
The two countries had powerful reasons to take
on the entire case:
— for France, due to the overwhelming
number of French victims, the need to ensure full protection of
these victims' rights; and
— for Luxembourg, the equally important
need to counter the damage done by such criminal activities to
its financial institutions.
Following fruitful discussions, under Eurojust's
guidance, the participants reached an agreement that the proceedings
might be transferred from Luxembourg to France, in order to avoid
any overlapping of investigations.
At a later stage, this arrangement was confirmed
by the prosecuting authorities of both countries, who decided
that the French judiciary should take over the entire file. Thanks
to the intervention of Eurojust, a possible conflict of jurisdiction
was thus avoided. This case clearly illustrates the benefit of
co-ordination arranged by Eurojust at an early stage, notably
when the execution of urgent MLA requests appears to be particularly
difficult and there are on-going parallel investigations in different
countries.
Illegal Immigration—Pachtou
Operation Pachtou was a case which brought together
a series of investigations involving four EU Member States and
Turkey. Investigations in France and the UK showed that a sophisticated
network was moving people from the Kurdish areas of Turkey through
Greece into Italy and from there to France and the UK. Eurojust
made enquiries which revealed that separate investigations into
the same network, which were not so far advanced, were also taking
place in Italy, Greece and Turkey. Eurojust arranged a co-ordination
meeting in October which was attended by police, investigators,
judges and prosecutors from each of the five states involved.
A good deal of information was exchanged and the links between
the different parts of the network become much clearer. The French
and UK representatives were keen to act quickly and make a series
of arrests in their countries. However after discussions and agreement
to provide further information to the Italian, Greek and Turkish
authorities it was agreed that the French and UK agencies would
delay any action so that a series of arrests and house and other
searches could take place on the same day in all five countries
in December. On 14 December the network was dismantled when 82
arrests took place across Europe: in Turkey (3), in Greece (2),
in Italy (21), in France (49), and in the UK (7).
This case illustrates benefits that a multinational
multi-functional approach through Eurojust can offer. It also
demonstrates the point that a case which was initially a bilateral
matter introduced by France and the UK can be effectively expanded
at Eurojust to involve several other Member States and ensure
work is done together to produce a very successful outcome.
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