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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 76-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
JUSTICE AND HOME AFFAIRS ISSUES AT THE EUROPEAN UNION LEVEL
Tuesday 23 January 2007 MR MIKE KENNEDY and MR TIM WORKMAN MR DAVID SMITH, MR LEE TAYLOR, MS HARRIET NOWELL-SMITH and MR PETER THOMPSON Evidence heard in Public Questions 206 - 291
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Tuesday 23 January 2007 Members present Mr Richard Benyon Mrs Ann Cryer Mrs Janet Dean Gwyn Prosser Bob Russell Martin Salter Mr David Winnick
In the absence of the Chairman, Mrs Janet Dean was called to the Chair. ________________
Examination of Witnesses Witnesses: Mr Mike Kennedy, President, Eurojust, and Mr Tim Workman, Senior District Judge and Chief Magistrate (England and Wales), gave evidence. Q206 Mrs Dean: Good morning. We are very grateful to you both for being able to come along to the Committee this morning. I have apologies from John Denham, the Chairman, who is away, and from several of the members, but it is very good of you to come along. Mr Kennedy, I understand you have arrived from the Hague to come to see us today, so a special welcome. Mr Kennedy, could you explain the role of Eurojust in facilitating judicial cooperation between EU Member States and could you give an example of a case which Eurojust has coordinated across different jurisdictions and the difficulties you faced? Mr Kennedy: Eurojust is a European Union organisation made up of 27, now, representatives: judges, prosecutors or even police officers, one representing each Member State and working together on a permanent basis in the Hague. The organisation was established in 2002 and we have been working in the Hague since the very beginning of 2003. The idea essentially is that there is available to investigators and prosecutors across the European Union a centre of expertise so that they can draw on that expertise when they are dealing with cross-border cases and the legal issues and some of the practical issues that arise when they are investigating crime across several jurisdictions. We have of course with the European Union now 27 Member States, that is probably 30 different legal systems, if you include the different system that we have here in England and Wales from the one in Scotland and the one in Northern Ireland. There is an increasing number of problems, particularly as one of the basic principles of the European Union was the freedom of movement, people, goods, services and capital. Increasingly, we are finding that there are cases linked to Member States which are not just adjacent to each other in geographical terms but also linked, possibly through the internet, right across the whole of the European Union, so from the South, perhaps in Malta or Cyprus, through to the Scandinavian countries. Eurojust is an organisation that does not have any operational capacity. We facilitate action taken by investigators and prosecutors in the Member States. We do not have power to order that cases are referred to us and so we have to encourage the Member States and those working on these cases to have close links with each of the individual national members. This can cause problems because often we think the cases that should be referred to us are not referred to us; sometimes we do not even know about them; sometimes we may read about them in the press or elsewhere. Because the systems can be so different, particularly the four common law countries whose systems are similar to that in England and Wales, from those based on the Napoleonic Code or other codes, perhaps the Scandinavian system, there are many rubbing points. This is simply in the systems themselves. There is a cultural difference and of course there are linguistic differences and we need to bridge these gaps and these barriers to be able to deal satisfactorily with cases. We have been given powers to make formal requests - and they are requests not directions - to ask Member States to investigate and to prosecute; to work together with one another and to form joint investigation teams; to coordinate their activity and also to supply us with information that we might need to do our job better. We cannot impose a penalty if these requests are not complied with but we can produce details of the failure to comply with these requests in our annual report. It is a naming and shaming exercise. We have not had to do that very often but we have used the powers on occasion to encourage countries to work together. Perhaps the best known example of this would be The Prestige case, the oil tanker which sank off the coast of Spain in the Bay of Biscay in 2002 causing huge amounts of environmental pollution along the Spanish and French coasts. There were huge investigations in both those countries but of course there were difficulties in deciding who might be responsible ultimately for the prosecution. The case was referred to us with a lot of detailed information and we made a formal decision, asking the Spanish authorities whom we felt were better placed to prosecute and to continue investigations, to do so in cooperation with their French colleagues. You can imagine, perhaps, the sensitivity of this sort of case because it involves thousands, maybe tens of thousands of victims, along the coastlines of France and Spain, and for the French victims to give up their capacity to claim compensation through their own legal system and having to hand that over to the Spanish authorities is quite a step to take. Perhaps I can give you an example of a real facilitation case, one that we refer to in our annual report. It was known as Operation Pashtu and it in fact is linked to Mr Workman, who is sitting beside me, as a judge. This case involved investigation into organised crime gangs that were trafficking people; particularly, initially, across the English Channel from the North of France into the United Kingdom. The French and the UK authorities had gathered a huge amount of information. Some of it, they were satisfied, was well linked to the French authorities but there were also links to Italy, to Greece and to Turkey. The gangs were trafficking people from the far east of Turkey, across Turkey into Greece, then across the Adriatic into Italy, from Italy into France. From France some were being dissipated into other parts of Europe, but a sizeable number were ending up in the Pas de Calais area of Northern France and then being trafficked across the Channel into the United Kingdom. We were asked by the French authorities to bring together counterparts in the United Kingdom but also in Italy, and we made some inquiries in Greece and in Turkey - we have contact points in Turkey, although they are not part of the European Union - and we brought together investigators and prosecutors dealing with that case in each of the Member States. We have quite sophisticated meeting facilities and translation and they were able to provide information to each other about the current state of play of their investigations, and a lot of it was very detailed information about individuals, their actions, their telephone numbers, their bank accounts, transfers of money and so on. It was interesting that, when the French and the English investigators made their presentations of the issues they were raising which they did not have the answers to, the Greek and the Italians did have the answers, and, indeed, vice-versa. The Turks were also interested and they were able to provide some information directly to the countries involved. The UK and French authorities were very keen to make arrests early after this meeting - the meeting took place in October 2005 and the arrest had initially been programmed, possibly, for November - but the Italian authorities, with this additional information, and the Greek authorities too, asked for extra time because they wanted to bring their system and their information levels up to the threshold where it would allow them to make coordinated arrests at the same time. This happened over a day of negotiations and, ultimately, in December 2006, 82 arrests were made right across the European Union. There were two or three in Turkey, three or four in Greece, I forget the numbers exactly for Italy but there were 47 in France and 78 in the United Kingdom. Effectively, this network, although perhaps not totally destroyed, had been disabled quite effectively by this sort of operation. That is the sort of work we do, bringing together people who have the same powers in different legal systems. In the UK it might be a police superintendent working with an instructing judge or a magistrate in France or working with a prosecutor in England. The powers are often not in the hands of the people who have the same names - our systems are extremely different - but we do not worry in our organisation so much about the title of the individual; we are really keen on his or her powers and the fact that they can work practically together. I hope that has given you a synopsis of our work and how we operate. Mrs Dean: That is excellent. Thank you. Q207 Mrs Cryer: Mr Kennedy, thank you very much. It is really interesting to hear about your work. Presumably cooperation with Eurojust by various States is a bit patchy. Who are the culprits who do not cooperate with you? Is there anything more than naming and shaming that can be done to bring them on board? Mr Kennedy: It is difficult to say who the culprits have been. I think all Member States are different and differently structured. Frequently you find that in the criminal justice systems in one country they are not centralised. They can be very regionalised and their independence is built into the constitution and the very framework and fabric of the country itself. For example, the Italian prosecutors, although they have a centralised Direzione Nazionale Antimafia, they have a range of regional prosecutors who are extremely independent from one another. In the United Kingdom we have a centralised prosecution service. We have the new Serious and Organised Crime Agency, and this certainly helps us to link more directly. Whereas my counterpart from Italy might have to arrange meetings with 29 or 30 organisations, from the United Kingdom perspective, with links obviously to Scotland as well, we can do it in a much easier way. Initially we found that countries were reluctant to cooperate with us because they felt that we were an unnecessary link in the chain. They felt that we might be taking over their cases and handling them for them and taking responsibility. As time has gone on and we have been able to demonstrate the added value we can bring by bringing people together, by using, if necessary, our powers, it has meant that we have been able to build trust and confidence amongst the various specialist investigators particularly. We had a programme in the first three or four years of identifying particular types of cross-border crime and bringing together the specialist investigators and prosecutors dealing with that sort of crime from each of the Member States. At the very outset, we had a meeting on terrorism. This was when we were a provisional unit, in the summer of 2001, before the tragic events of 9/11. On that occasion, we brought together investigators and prosecutors, including people from the anti-terrorism branch of Scotland Yard and the Crown Prosecution Service, to meet with their counterparts from Belgium, from Spain, from Italy, from Germany and from France. This was the first time we had seen instructing magistrates or investigating magistrates working with prosecutors, working with police officers across the same table, in a room very similar to this, but with translation, of course. There was a lot of information exchanged about current investigations. These people had not met before. After the meeting, they exchanged details of various cases that they were dealing with. Two weeks later, although not linked at all to the UK, there were arrests that would not have taken place in Italy and Spain that took place as a result of this exchange of information. Q208 Mrs Cryer: Your role seems to be developing with time. Mr Kennedy: It is. Q209 Mrs Cryer: Could I just dig a little bit deeper into it. Eurojust has formal powers to request states to act. In your annual report of 2005, you said that you wanted to use these more in 2006. Were you able to do this? Is it appropriate that you should be able to instruct Member State judicial authorities to act in one way or another? Mr Kennedy: First, we did not use the powers more in 2006. The investigators and prosecutors in the Member States know that we have these powers and if we suggest that we might use them then they tend to react and act, as we think, appropriately. In fact, to be honest, we have not had to use these powers, often because the cases that are referred to us are quite high profile, quite important and significant cases that people are enthusiastic and keen to deal with and to be seen to be dealing with in their own countries: human trafficking, terrorism, high profile drug trafficking and so on. We have found a difficulty and a sensitivity in the area of fraud cases. It is the same in almost every legal system with which I have had dealings: people do not like dealing with fraud cases, particularly large and complex fraud cases. This is of course because the law is difficult, the inquiry is lengthy, it takes up a huge amount of resource, it is complex in the investigation, it is also complex in the prosecution and in the chances of securing a conviction, and at the end of the day the penalty is often minimal. There is a balance. It is in these sorts of cases where we have had to use the powers in the past. Q210 Mrs Cryer: There are other EU structures, such as Europol and the European Judicial Network. Could you comment on cooperation levels between yourselves and those other two organisations and any others? Mr Kennedy: The Eurojust was sent to work located in the Hague because Europol was already there. It is clear to everyone that we should be dealing with Europol on a regular basis. One of the first things we did when we went there was that a team of our colleagues began negotiations with Europol and we had a formal cooperation agreement with them. I would like to see it intensified in future because a key part of our work is working closely with Europol. In fact, I recently made suggestions to the Dutch authorities that they should look in the future to co-locate both of our organisations, with the respective independence that is needed but so that we can be closer and work closer together. Europol's function is to deal with and analyse information, particularly from police sources, and to provide strategic advice to senior officers so that they can act appropriately and direct their resources to where the threats are. They make an annual Organised Crime Threat Assessment, to which we contribute during the experience we have with our cases each year, to the European Union. For instance, we had what we call a "boiler room fraud case" referred by the Swedish authorities of the day, and we will link with Europol on that case. We have also had a very large VAT Carousel fraud referred to us recently by the UK authorities and we are working in partnership with Europol on that. Individually, within our organisation, the national representatives from each Member State have close personal links with the national desks at Europol. I also meet almost every week with the director of Europol - who may have been here earlier, I think - to discuss approaches and business cooperation. At the European Judicial Network is an informal network, a list of contact points nominated in each Member State as people who deal with mutual legal assistance and extradition issues in cross-border crime. This organisation is completely informal, it does not have a legal personality. It sends representatives to meetings two or three times a year. The secretariat for that organisation is within the administration of Eurojust, so it is a sister organisation. As president of the organisation I have a responsibility for overseeing what they do and how they do it and how effective they are, although I do not really have a great deal of control over exactly how they operate, but we can encourage and diplomatically assist them to make progress. Mrs Cryer: Thank you very much. Q211 Bob Russell: I wonder if I could ask some questions with reference to the Convention on Mutual Assistance in Criminal Matters. Since May 2000, in your experience, how much use has been made of the provisions of that convention? Is there any measure of the impact of mutual assistance on volume crime across the European Union? Mr Workman: In terms of the volume of work in mutual assistance, it has gone up considerably. Over the last few years we have increased it both in terms of the numbers and also the complexity of the inquiries. We are now effectively dealing with something in the region of eight cases a week, which are formal requests for documents and that sort of thing, and we also have one or two rather more lengthy cases which are the subject of various issues. They obviously take longer but we are now allowing considerably greater time than we were two years ago. Q212 Bob Russell: Is this a two-way request for mutual assistance? Mr Workman: At the City of Westminster Court we would really only see the requests from abroad coming to us to take evidence. The increase is quite considerable. Q213 Bob Russell: Mr Kennedy, has the convention been of benefit to the United Kingdom? Mr Kennedy: I think it has been of considerable benefit. One of the things to remember is that, although the convention was signed in 2000 - it is known as the 2000 Convention - it has only come into force quite recently, because Member States are rather slow in ratifying it and a certain number of Member States needs to be achieved on ratification before it does come into force and is effective. Generally there has been a huge increase in mutual legal assistance requests, both sent and received. I think it is because people now are beginning to appreciate that there can be effective requests made for mutual legal assistance from other jurisdictions and that they can get the evidence they want and they can deal with it in their cases here. In the past, before the convention and perhaps even earlier, it was always felt that if there was evidence in another jurisdiction, banking evidence perhaps in France or in Germany or even in some of the so-called tax haven banking areas, this could not be obtained, but things have changed dramatically and a lot of this evidence is available. To answer your question about volume crime, I cannot really say. We only have cases referred to us where there are problems. If things are working well and fine and there is no difficulty, then I would not expect our organisation would be contacted. It is where there is a problem or a difficulty in perhaps drafting a letter of request, or Commission obligatoire that we would be contacted. We may arrange for the specialist in both countries or in three or four countries to meet together to draft the request so that the request would meet the requirement in other jurisdictions. Q214 Bob Russell: Are you describing how the process works between Member States? Could you give us an example of how a request would be made. What then happens? Mr Kennedy: If it is a straightforward request, then a judicial authority within the United Kingdom will have to make that request. If it was within the European Union, the request would be written and signed by probably a Crown prosecutor, a member of the Serious Fraud Office or a member of Her Majesty's Customs & Excise prosecution office. They would sign the letter. The letter would detail the offences that are being investigated. It would detail a summary of the facts and it would outline the evidence that is required in that other jurisdiction. It may be the obtaining of banking evidence; it may be the interviewing of a witness; it may be the seizure of some materials. This letter would then be sent to the other country and the other country would then act upon it, one would hope quickly, and then return the evidence. If there is a problem or a difficulty, if the case is complex, then we might be called in. I can give an example of a case a couple of years ago. The Serious Fraud Office wanted to make inquiries in Germany. It was a particularly sensitive and quite difficult investigation that had been running in the Serious Fraud Office for some time. They knew they had to make difficult investigations in Germany and so we called together the representatives of the German Prosecution Office with the Serious Fraud Office representatives. They came, they had a two-day meeting in our building, with translation facilities, and effectively drafted the letter of request that was to be sent by the Serious Fraud Office to the German authorities. The Germans made sure that everything they required to execute this request was contained in the letter, rather than it being sent off on perhaps a whim and a prayer in a complex case, hoping that it would do the trick. Rather than doing that, they arranged to have everything prepared beforehand so that the letter itself only needed to be sent once. Q215 Bob Russell: Earlier I got the impression this was a fantastic, seamless organisation that was working brilliantly. The response to my question indicates it was a very complicated and complex operation. Which of the two is it? Mr Kennedy: Madam Chairman asked for an example. Q216 Bob Russell: If that is an example, are they all like that? Mr Kennedy: I wish they were all like that. We do have cases where it does not work as smoothly as that, there are cases where it does not work at all, but we are there to make things happen and to try to resolve the problems. Q217 Bob Russell: So it is better than it was but it is not perfect. Mr Kennedy: Nothing is perfect. You can imagine the situation, with 30 different legal systems and different ways of gathering evidence. From the commission of the crime through to investigation, arrest, evidence, prosecution, trial, conviction, sentence is similar in every country, but of course the routes getting to those various milestones are completely different. Q218 Bob Russell: Is the UK the only member country in the EU that does not have a single system? You have said there are 30 different systems. Mr Kennedy: The United Kingdom is a country with three different legal systems. Yes, as far as I know, it is. Q219 Bob Russell: Does the EU have mutual assistance agreements between the EU and third states? - and perhaps I could give you three third states: Switzerland, Somalia and the United States. What provisions do such agreements make for "quality controlling" the judicial systems of the third state in deciding whether or not to cooperate? Shall we start with Switzerland. Mr Kennedy: Switzerland is a member of the 1959 Convention, which is not a European Union convention, it is a Council of Europe convention, but it has in fact been the bedrock of cooperation over the past few years. 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 between the United States. We have a special agreement with the United States, as we do with Norway, and we had with Rumania 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 at 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 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. Q240 David Winnick: Mr Kennedy, Eurojust, as we know, is the European body which deals with investigation and prosecution of serious organised crime and no crime is more serious than murder. In the last two days there have been the most serious allegations that the Northern Ireland police force at the time was in collusion with loyalist murder gangs and some 16 murders - obviously part of the United Kingdom and part of the European Union. Would your organisation have any role to play, any competence in looking into these allegations? Mr Kennedy: Eurojust is not an organisation that has any operational capacity to investigate or prosecute. We are in existence to support and help the national investigating and prosecuting authorities to be more effective when they are dealing with cross-border cases. I do not know if there is an investigation going on. If there is an investigation going on in Northern Ireland that needs to have some assistance from another European Union country, then we would be available to facilitate that. We do not have an investigative or prosecution power. Q241 David Winnick: The Northern Ireland Police Ombudsman has published her report and very serious allegations are contained in that report. It is obviously up to the British Government to decide now what to do. My question was whether your organisation would have any role to play. Presumably, if the British Government, unlikely as it may be, were to ask Eurojust to play a role, you would do so. Mr Kennedy: If there is a role for us to play, certainly, yes, and we would not be approached by the British Government but rather by the police or the prosecuting authority. Q242 David Winnick: For you to become involved, you would need the invitation of the British Government. Mr Kennedy: No, the investigating or prosecuting authorities. Q243 Mrs Dean: Mr Kennedy, Eurojust seem to support the harmonisation of criminal law across the EU. Could you give a specific example of why you think harmonisation is vital and what are the constitutional implications for the UK of criminal law making at EU not national level? Mr Kennedy: If the laws were harmonised in all the Member States of the European Union it would make it much easier for the European Union investigators and prosecutors to cooperate with one another. Q244 Mr Benyon: Do not hold your breath. Mr Kennedy: No, but it would make it easier than it is now. That is the point I would like to make. The point is that in an investigation there is usually a case of witnesses to be seen, statements to be taken, and taken in a particular format. If you take that as an example, that is not done in other non common law systems in the same way; that is, a police officer visiting a witness, taking a statement as to what he or she saw at the scene of a crime or what he or she did linked into the crime. In other countries, a statement perhaps would be taken by a police officer or investigating judge, which would be simply the details of what this person said. There would not be a declaration. If everybody across the European Union had to make what we call section 9 statements, it would make life a lot easier for all the prosecutors in the common law countries. It is not like that and it will not be like that for some time, so I shall not hold my breath, but, if you ask what could be done where there are problems, this is one area, but there are many other areas that could be expanded on. The more we can bring our system and their system and make changes in both to bring them closer to one another, that is inevitably going to help. But, even if they do not become harmonised, it is possible to cooperate. It is possible in all the systems to develop and to work together and to deal with the particular vagaries that one might find within any of the systems that are working together. Q245 Mrs Dean: Following on from improving systems, I wonder, Mr Kennedy, whether you have any comments on the Home Secretary's suggestion of splitting the Home Office. Mr Kennedy: I heard about it in general terms but I think it is perhaps something that needs to be considered at some length and in detail. I do not know what the proposal is, as to what would be put where, so it is very difficult and perhaps inappropriate for me to comment. Mrs Dean: Could I thank you both very much for coming along this morning. Your evidence has been very useful to the Committee. Thank you.
Examination of Witnesses Witnesses: Mr David Smith, Deputy Information Commissioner, Mr Lee Taylor, Guidance and Promotion Manager, Office of the Information Commissioner, Professor Steve Peers, Independent Academic Expert in EU Justice and Home Affairs, Ms Belinda Lewis, Ms Harriet Nowell-Smith and Mr Peter Thompson, Department for Constitutional Affairs, gave evidence. Q246 Mrs Dean: Good morning everyone. I am Janet Dean. In the absence of the Chairman, I have been asked to chair this morning's session. I am very grateful to you all for coming along. I wonder if we could start by asking you to introduce yourselves. Perhaps one person from each organisation would be appropriate. Mr Smith: I am David Smith, Deputy Information Commissioner. In introducing myself, may I apologise on behalf of Mr Thomas, the Commissioner, that he cannot be here himself. I am accompanied by a colleague, Lee Taylor. Q247 Mrs Dean: Professor Peers. Professor Peers: I am Professor Steve Peers. I work at the University of Essex Human Rights Centre and I have an interest in data protection law in general and in EU justice and home affairs law in general as well. Q248 Mrs Dean: Belinda Lewis. Ms Lewis: If you do not mind, Chairman, could I defer to my colleague Peter Thompson to introduce us, please. Mr Thompson: My name is Peter Thompson. I am head of the Department of Constitutional Affairs' EU and International Division. We are responsible for the strategic coordination of all of the department's EU business. We were very mindful, in thinking how we approached this Committee, that you would ask to speak to officials who have been directly involved in the negotiations on the Data Protection Framework Decision and so with me are two of my colleagues, Belinda Lewis from the Information Rights Division, who has been heading up the policy aspects of that negotiation, and Harriet Nowell-Smith, our legal adviser on that matter. Without taking up too much of your time, I wonder if it might be helpful if I said something about the relationship between the Home Office and the DCA on the kind of third pillar instruments you are talking about. Given the general thrust of your committee, I think that might be helpful. Q249 Mrs Dean: That would be very helpful. Mr Thompson: DCA has the lead on data protection policy issues and that is why we lead for the Government in the negotiations in the EU on the Data Protection Framework Decision and the Home Office work closely with us, but the Home Office have the lead on many operational aspects and of course are the department with responsibility for the police and the like. On many of those other instruments, you will find the Home Office in the lead and the DCA providing input on the data protection policy aspects. I hope we can be as helpful as we can today but there may be times when you start to ask what, in effect, becomes an operational question and there will be a limit to how much we can say there that is useful. Q250 Mrs Dean: Thank you very much. Could I turn to Professor Peers. In your view, is crime going unchallenged because of a failure to share information effectively at an EU level? Professor Peers: Of course police officers might be the best people to answer that question and staff members of your Europol and so on. My assumption, based on the number of measures which are already in force, is that there cannot be very many cases, if there were any, where that already is the case. We already have Europol established and Eurojust and we have fairly developed system of mutual assistance and operational request for sending information between the police authorities, so I very much doubt whether there is a gigantic number of cases which would call for a really radical change in the system of exchanging personal data between police forces. Q251 Mrs Dean: Are problems with data sharing between EU Member States technical, for example, making national systems interoperable, or political, in that there has not been enough will to share information? Professor Peers: I think a combination of both. There are some reasons traditionally why states would not share information and also some difficulties in perhaps being able to find the information in a national system. It is not simply a question of making systems interoperable but in having a national system which can easily be accessed via the person who is being contacted. She might then have to contact several other people or find who to contact in order to find that information, so that might lead to a lengthy process. I suppose, if you want to speed things up, it is also necessary to have a more coherent system at a national level. Q252 Mrs Dean: Does anyone else wish to comment on the issue of data sharing in that way? Mr Smith: There clearly are some technical problems. There may be political problems as well. The UK is not yet a member of the Schengen information system. That has been on the cards for a number of years now and my understanding is that it is essentially technical problems that have stood in the way of that. They are not necessarily only technical problems in the UK; they are technical problems in the central system and enabling it to expand further. I wonder if I might also comment briefly on the question of whether more information sharing be helpful. I am not sure it is for me to argue the case but one of my tasks at the moment is that I am Chairman of the Data Protection Supervisory Body of Europol. We do carry out inspections at Europol and I know if you ask the analysts of Europol they would say very clearly that they do not receive enough data from Member States. Some Member States are very much better contributors than others. This is not, if you like, the tracking down of particular crimes and particular criminals; this is the gathering together of intelligence, to analyse the intelligence, to look for patterns. I think, if you asked them, they would say that they could do a better job if they had more information available to them. Q253 Bob Russell: Professor Peers, what difference will the principle of availability make to the data the UK can request and give out? Will the principle make it harder to protect sensitive data? Professor Peers: I think the answer depends on the way in which the principle of availability is implemented. If it is implemented according to the Commission's proposal it would apply to additional categories of types of data but if it is implemented, as I suspect it will be, in accordance with the Treaty of Prüm being applied to all Member States - but that seems already to have been agreed and in fact there are legislative proposals on the table this week already for the Article 36 committee of Council - then we will be starting just with the DNA, fingerprints and vehicle registration information. That really is a profound change because then you have automatic and uncontrolled access by the police forces of each Member State to the databases of each other Member State as regards, at least, DNA, fingerprint and vehicle access information. The idea is to extend that to other categories like civil registry information as well. You have, in a sense, a fishing expedition, of police forces being able to take an entire database of information in a way which they cannot now because they are essentially currently restricted to sending specific requests in specific cases to other countries. You would certainly hope that every police force in the European Union would restrict itself to only searching for very important information where it has legitimate reasons to search. But I suspect there is a risk that in some cases some uncontrolled fishing expeditions will take place. That is the risk from the data protection point of view. Of course there will probably be some advantages from a law enforcement point of view on the other hand. Q254 Bob Russell: I presume you have been following the fallout of our hearing from a week or two back. Do you think, as a result of last week's investigations into conviction records, the implementation of the principle of availability and faster exchange of data on convictions will be an increased priority for the Home Office? Professor Peers: From the EU point of view, technically, the question of exchange of information on criminal convictions is dealt with by a separate proposal. It is not technically covered by the principle of availability. The idea will be to have slightly different processes, giving each Member State's law enforcement authorities access to criminal conviction databases of all the others, but it seems that both issues were already a priority for the German Presidency even before what happened in the Home Office and I would expect what will happen in the Home Office is that they will respond to this latest scandal by trying to deal with things more efficiently until they are diverted perhaps by the next scandal or by the splitting up of the Home Office - which will doubtless take lots of time and resources to deal with as well. That is the answer, that these things are technically separate but proceeding quite quickly in parallel. Q255 Bob Russell: Is the UK pushing ahead with aspects of the principle of availability to your knowledge? I have in mind, for example, making DNA or fingerprinting available without the accompanying data protection measures. Professor Peers: Last year what is called the G6 states, the five biggest Member States, had what I have described in my written evidence as one of their "secret" meetings and they discussed the idea of pushing ahead with the principle of availability without the framework decision on data protection. I think, as they have now taken a different course, we are going to have, instead, the Treaty of Prüm turned into EU law, perhaps without the Data Protection Framework Decision, but that remains to be seen. At least the Treaty of Prüm does have some data protection provisions of its own. I think they are insufficient as compared to the Data Protection Framework Decision - at least the Commission's original proposal, which of course might be watered down anyway. In any event, the problem is that they are in some respects insufficient. If I may name the areas: particularly the powers of supervisory authorities are dealt with in the Data Protection Framework Decision and not in the Treaty of Prüm; the issue of further processing of data is dealt with in the framework decision but very weakly in the Treaty of Prüm; equally, the transfer of data to non EU states is dealt with quite strongly in the original proposal for a framework decision and quite weakly in the Treaty of Prüm - although it looks like it will emerge in the framework decision to have a quite weak provision on that issue as well. There are several other issues, like the right to information, which are more properly dealt with in the framework decision but not quite dealt with as fully in the Treaty of Prüm - although, again that might be watered down during discussions in the framework decision. The framework decision is a moving target, so it is difficult to say whether it would set sufficiently high standards, but at least it has the potential to if you went back closer to the Commission's original proposal. Q256 Bob Russell: From your point of view, can the moving target still be hit, or can the shortcomings you have identified not be resolved to your satisfaction? Is there still a chance they can be? Professor Peers: I am sure it is technically possible that the framework decision could set a higher level of protection than the worst-case scenario, but I think something close to the worst-case scenario is more likely than something close to the best-case scenario. Q257 Bob Russell: Thank you. Mr Thompson, what are the implications for data protection of an increased drive for information sharing with EU colleagues, in particular biometrics? Mr Thompson: Do you mind if I defer that question to my colleague Belinda Lewis? Q258 Bob Russell: However you want to play it. Ms Lewis: With regard to biometrics, biometric data is essentially another form of personal data, so the current data protection provisions would apply. In the UK that is the Data Protection Act. We would generally regard biometric data to be sensitive personal data, so the highest standards of data protection under the Data Protection Act would apply. If we were looking to exchange that biometric data with other EU Member States at the moment Convention 108, the Council of Europe convention, would apply, but, once it is agreed, the Data Protection Framework Decision would apply. The Data Protection Framework Decision also has special provisions in order to protect more efficiently sensitive personal data which we would regard biometric data to be. Q259 Bob Russell: That would be iris, fingerprints, DNA. Ms Lewis: Yes, that is right. Q260 David Winnick: Professor Peers, could I draw you a little on the question put to you by Mr Russell regarding the Home Office. As part of your work, you study EU justice and home affairs. Is the British Home Office under successive governments - and I emphasise "under successive governments" - unique amongst EU countries in having the sort of difficulties, to put it mildly, that we have been experiencing more recently, as we have in the past? Professor Peers: There have certainly been scandals in other countries. There was quite a large scandal in Germany in the last two years about visas which were given to Ukranians and so on without proper scrutiny, for instance, so there have certainly been certain types of problems not always identical to our problems. It is difficult to know, looking at the issue at EU level, exactly what scandals are going on in different Member States because of course the interior ministers or the justice ministers are not too anxious to be showing their dirty laundry to everyone else at EU level and the British media does not always pick up the national scandals going on in other Member States, but certainly there have been scandals of a comparable nature to the Home Office. I am not sure if there have been quite as many high profile scandals as we have had in the UK. Another thing to keep in mind is that I am fairly sure we are unique in having a single Home Office rather than the separate ministries of the ministry of the interior and the ministry of justice. Certainly Canada and the United States and other countries based on the common law have split up their departments as well into several different parts. I do not think they ever had anything that would compare to the Home Office. Q261 David Winnick: Some may say it is part of the British way of life to have the Home Office scandals coming out from time to time. To pursue again what Mr Russell said, if it is true - and we have not had any official confirmation, as I understand it - that the recommendation from the Home Secretary to the Prime Minister and the Cabinet is that there should be a split along the lines which have been widely reported, do you really have much confidence that such a split would deal with some of the problems that Mr Reid and his predecessors over a number of years have faced? It is not going to be some sort of panacea is it, by any means? Professor Peers: No, a split will certainly not abolish the possibility of serious scandals in what is now the Home Office. I am not absolutely certain that it will reduce it. I think it might. It has the capacity to reduce it. At least each of these two individual departments would be more manageable than the one large department but you still have a risk where the two individual departments should be cooperating. If you go back to one of last year's scandals, which was the failure to keep track of people who should be deported from prisons, that was a failure to keep track of information within one large department. Under the Home Secretary's proposals, we would have one department dealing with prisons and the other dealing with immigration, so what might happen then is that you would get the information lost between the two departments. It might be lost under either model. But at least you would hope that each of the two departments within themselves would be more coherent than they are as part of one gigantic, single department. Q262 David Winnick: It is sometimes said that because home secretaries change so often - again under successive governments: they, perhaps, on average, last two years or less - is that the same for interior or justice ministers in other European Union countries? In other words, no one stays as a political head long enough to get a real grip on the situation in the leadership of the Home Office. Professor Peers: The answer is that home secretaries or their equivalents, ministers of the interior and justice, as far as I am aware do tend to stay for a little bit longer. That is perhaps because you have a number of coalition governments in the other Member States in which the particular hosts are negotiated between parties. Germany is a particular example where you always have a coalition government and a crucial factor is the negotiation of which parties get which posts and then senior people from those parties tend to hold the posts and you do not have the ease that we have here of the Prime Minister removing people from post and shuffling them around and so on because that would violate the coalition agreement and the coalition government would collapse. If only for that reason, home secretaries and their equivalents tend, as far as I am aware, to stay in office for a longer period. That is due more to the political system of those states, perhaps, than due to the nature of scandals and so on. Q263 Mr Benyon: Could I return us to the remit of this inquiry and ask about the pilot project that has been set up between the countries France, Germany, Spain and Belgium. It was mentioned by the Prime Minister last week that the Government here is looking very carefully at how this pilot project is working. Could I ask you first, Professor Peers, what your assessment of the pilot project on the interconnection of criminal records is and whether you detect that there are any plans to roll out the project to other Member States? If so, should the UK be part of that? Professor Peers: I am not familiar with the details of the implementation of that project. I suspect that if the perception is that it is successful, this is something that perhaps the form of the EU proposal on criminal records will now start to take. It might be restructured and rethought to take the form that, rather than follow the Commission's proposal, we are now going to extend this pilot project to other Member States if it turns out to be correct that this is working efficiently and effectively from the point of view of the law enforcement services. But, of course, we should also consider whether it is working effectively from a civil liberties perspective; whether or not, for instance, rules on rehabilitation of offenders are still being observed within a cross-border context, for instance, and how often the wrong person with the same name, for instance, is being identified as having committed a criminal offence in another Member State. You still have to be aware of that perspective, whether it is working well from that point of view. Q264 Mr Benyon: Great emphasis has been placed on the interoperability of diverse EU databases. There seems to be a problem within the pilot project of this scheme whereby a crime may not be a crime in an individual's own state. If, for example, an individual commits a crime in France which is not a crime back where he comes from in Germany, the Germans will not enter than on its database, and there may be further manifestations of that, if, for example, we were to enter it. We may have a different approach to that particular crime and the reporting system could be an almost impossible one to create such a database. What happens if a number of systems become inoperable? What rules would apply? Are there adequate safeguards within that? Mr Thompson: On the broad point about the pilot project - and this takes me back to my opening remarks - these are operational matters which are the responsibility of the Home Office. It would just not be appropriate for me to comment on them. Ms Lewis: I could say a few words, if it would be helpful, about the data protection rules that would seem to be relevant when we are looking at EU data systems becoming interoperable. As Peter said, we are not familiar with that particular pilot project at the moment but, in general, the sorts of complications that we would expect in those circumstances would be if the systems being brought together or the information that was being pooled originally had different bespoke data protection rules attached to it. This might give rise to technical issues. For example, if you had information originally from database A coming into this interoperable system that would normally be deleted after just three years and then you had information coming from database B that could be retained for, say, six years, there would need to be some way of rationalising those differences. Generally, it would seem sensible to go with the highest standard of data protection but that would need to be looked at on a case-by-case basis. Mr Smith: There is a framework decision under discussion within the European Union on the exchange of criminal records. Our understanding is that that is making rather slow progress. It may be that is linked in some way with the Data Protection Framework Decision. The idea of having a framework decision on data protection is that you put in, if you like, data protection measures across the board under which all these other information sharing initiatives can operate, including criminal records, without having to re-address the data protection questions each time a new initiative is developed. That is why we are very supportive of the framework decision. The DCA representatives are quite right, there are some real difficulties in bringing together information from different sources together in a common database. As a general rule, where you are talking about sharing, and sharing of criminal records here, we would prefer linkages between systems rather than the setting up of a new central database, if that makes sense. Setting up a new database brings real problems as to how you interpret the information to common standards. If you are interrogating a French database, you know it is French information, they are French categories of crime and so on. There are some difficult areas. In the earlier evidence session, Chairman, reference was made to murder and that murder is always a terrible crime. What is murder in the UK may not be murder in some countries which allow euthanasia. It is illustrative of how easy it is to try to compare things which are not the same. The interoperability comparison of DNA gives us particular difficulties because I think there are very different approaches in Member States to this issue. As you probably know, the DNA are retained in the UK of anybody not only who has been convicted but of anybody who has been arrested for a possible offence; whereas in Germany, for example, DNA are only taken where serious crimes are involved. The use that is made of DNA is very different. I do not know whether you are familiar with the concept of familial searching, where if the police find a DNA sample at a scene of crime and they try to match it against the DNA database and they do not find an exact match, they can look for close matches because those close matches might be members of the blood line of the criminal. I am not familiar with German law, but when I talk to my data protection colleagues they say that sort of approach is unthinkable in Germany. It would be too much of an invasion of the privacy of the family members who are not themselves suspects. That is not the view we have taken in the UK. We have taken what we would consider a more measured view, of saying, "This is appropriate but only for serious crime and only where you can reasonably narrow down the number of suspects." To say, if you like, that German information on DNA is then available in the UK and could be used for familial searching I think raises all sorts of difficulties. Some of these things sound very encouraging in theory but there are a lot of practical problems of trying to get these different approaches to work across borders. Q265 Mrs Dean: I understand the issue about operational matters, but, if the UK might be getting involved in the pilot project, are DCA going to be consulted on possible data protection issues? Mr Thompson: Certainly. We have a very close working relationship with the Home Office and that broad schema I set out roughly divides how the department might lead on an issue and another may support. The important point is that we have this very close working relationship and the Home Office will discuss with us any particular data protection policy issues. Q266 Mrs Dean: Have you been consulted up to now? Mr Thompson: I am not aware. Ms Lewis: I am not aware of any approach but I am not sure where the Home Office is in terms of looking at and proposing that the UK signs up to this sort of database. Q267 Mr Benyon: I would like to turn to the European Index of Offenders. Professor Peers, in the light of information that was revealed to this Committee a week or so ago, the Home Secretary has announced a review of databases carrying details of criminal convictions as well as the way in which information is shared and exchanged between the EU countries and non EU states. Do you see added value in a European database of offenders? Professor Peers: If you have a single database it would probably be much easier to search that individual database than searching the national databases of all the individual Member States. Even if that were permissible, it would be difficult to do. You would probably have to do it by a series of separate searches and it would be technically difficult, perhaps, to have a single search of them. Setting up the single database would be easier but then you have some serious problems with that, not only the problems I identified before of potential confusion of identity for people with similar names and so on but also the question as to whether or not we should be taking into account a criminal conviction for something in another country which either would not be criminal in the UK or would be considered as spent in the UK by now if it had happened here or for which we would perhaps have acquitted even if it were a criminal offence. Similarly, the same questions arise in regard to all the other Member States. That fundamentally is the problem: the purpose for which that data is going to be used and the complications that arise from the inevitable differences in criminal justice systems of the Member State as well as the data protection concerns. Q268 Mr Benyon: Mr Smith and DCA, you may feel you have already answered this, but the possibility of an index would seem a good idea in the light of the systematic failings that were exposed last week. Are there any other data protection issues you feel it raises and under what conditions would you feel that an index would be worth supporting? Mr Smith: I think I have covered some of the points, Chairman. I am not entirely sure what is meant here. An index suggests, if you like, that it may simply be a name identifying information which is held centrally. Q269 Mr Benyon: Our understanding is that it is simply a name and that if further information is required there is an agreement that they can then go to the nation state and get full details of the criminal record held in that country. That is my understanding. Mr Smith: I do not see any intrinsic data protection problems in going down that route. That is a preferable route from a data protection point of view to a central database which contains all the conviction information. I am not sure if I can add greatly to what Professor Peers has said about the difficulties of ensuring identities are correct. There are challenges there. But, no, it is not an insuperable problem. Ms Lewis: I think we would agree with the comments made by ICO. It would certainly seem to be safer to have that index of names, rather than having a whole host of information, including some personal data that sits behind it. The issues we would be interested to consider from a data protection point of view would be those that would be attached to any large electronic database. There would be issues such as access? How could you control access to that database? How could you restrict the use to which the information in it was put? Obviously that is less of a concern if it is just somebody's name, but there are also things like: How long would you keep the data? How long would you keep the names that were entered into the database for? How could you make sure it was deleted after the proper amount of time? In line with comments people have already made, it would seem to be a useful step forward if it would promote better, more effective, safer data sharing and improve law enforcement cooperation between EU Member States. Mr Smith: In practical terms, Chairman, it may make sense to limit it, at least to start with, to some category of serious offence. That very much limits the number and the scope that is taken on and is really the crux of the problem. We really do have difficulty with things like shoplifting convictions which were incurred 30 years ago being available. We have problems with them being available in the UK, if you like, let alone being available throughout Europe. Q270 Gwyn Prosser: There will always be a tension between the law enforcers who want to have increased data sharing and the guardians of data protection who want restrictions. Has there ever been a balanced impact study comparing the advantages of one with the risks of the other? Ms Lewis: It is a very important question. Perhaps I might relate my answer to the Data Protection Framework Decision, which is the area that was the core part of my work. We held a comprehensive stakeholder consultation process where we contacted all of our stakeholders: the people it would have a direct impact on, such as the police, the agencies, the prosecutors, the customs authorities. We sat down with those people over a series of days for several hours and worked through the proposal line by line, article by article, looking at the implications on their business and the kind of data sharing they needed to be able to carry out in order to fulfil their statutory functions. As part of that consultation process we also involved the ICO, which is one of our very important stakeholders, in order to represent the views of the data subject. We also contacted academics and we contacted rights agencies, such as Justice and Liberty, and sought views from those people as well, to try to achieve the balanced view that you have mentioned about the operational side, where people need to be able to share data to fulfil their functions properly and effectively but also to make sure that the views of the data subject are represented and to make sure that we balanced the needs of the end-users with effective data protection. Q271 Gwyn Prosser: Do you think we have the balance right in present legislation with regards to the subject we are discussing this morning? Ms Lewis: In terms of the Data Protection Act, which is the UK national legislation, I think the balance is right. In terms of the Data Protection Framework Decision it is much harder to answer that, because, as has already been mentioned, it is essentially a moving target. The UK would negotiate to make sure the final version of that text had appropriate data protection safeguards in it, but what we have at the moment is problem not what we would end up with, so it is harder for me to answer that. Q272 Gwyn Prosser: Given that many third pillar information systems have their own data protection regimes, do you think there is a need to have a more general data protection measure built into the third pillar? Ms Lewis: I think there is. In the third pillar this would be the Data Protection Framework Decision. That sets an overarching minimum standard of data protection. I think we still need to have the flexibility to add in extra bespoke, specific data protection measures in other instruments. For example, if instruments deal with very specialised types of data or if they are for a very precise and narrow purpose, it would seem sensible to build those extra provisions into the individual instruments instead of trying to have an enormous minimum standard that tried to cover every single eventuality. We would expect the Data Protection Framework Decision to add value by avoiding working groups from reinventing the wheel every time data protection was discussed. If we have a sensible, more detailed minimum standard to which people can refer, then we would not need to start negotiating more basic data protection provisions in third pillar dossiers. I think the freedom needs to be there for those extra, more precise data protection safeguards to be built in if they are needed. If you do not mind, I will ask Harriet if there is anything she would like to add. Ms Nowell-Smith: I suppose we could just note for the Committee that there are some minim standards already throughout the EU in the form of European Convention on Human Rights and also the Council of Europe Convention 108 which has provided some protection in this area since 1981. We do understand from the European Commission that all Member States have in fact implemented the Data Protection Directive outside the first pillar. That is something that we did in the UK. We only had a duty as a matter of European law to implement the directive in the first pillar areas of life; we chose to implement across the piece and to cover police information handling as well, as a policy matter, and we have learned that all of the other Member States have done something similar. We do not know exactly what provisions they have, though, in the third pillar, and, as Belinda said, the Data Protection Framework Decision would harmonise provisions in this area. Mr Smith: I wonder if I might add something on that point. The Data Protection Framework Decision and the data protection measures in the other areas like Europe and Eurojust are essentially forms of regulation. We are the UK regulator. I think we are very keen to keep in mind the purpose of the regulation. It is a form of regulation and it is regulation to protect the rights of individuals. We are keen that the regulation is, as far as possible, clear, simple and consistent, so that police forces and others who have to follow it know what they have to do, so that individuals who want to exercise their rights, whether it is access to data or to get data corrected, can do it simply and easily. When you have a proliferation of different measures -different ones applying to Europe, different ones to Eurojust, a framework decision, a first pillar instrument - it becomes extremely complicated. That is one of the reasons why we favour a framework decision for the third pillar, to give one overall standard which is hopefully clear, simple and easy to follow. It is also why we favour, as far as possible, that framework decision of the first pillar being comparable to the Data Protection Directive which already exists in the first pillar. One of our concerns is that, as negotiations are going on on the framework decision, in some areas it is drifting further away and there is a risk we will lose that harmony. Q273 Gwyn Prosser: For my part - and it is no criticism of the witnesses - I do not find the discussion we have had this morning at all easy to follow, but I will have a look at the transcript later on. We have had this quite long discussion about the complexities and even the niceties of data protection versus enforcement versus data sharing. Given the massive increase in the risk of terrorist attack and the incidents we have seen in the United States and more recently in London, have we got the liberty and the luxury to discuss these matters in such detail? Should we not just be concentrating on bringing the criminals and the terrorists to book? Mr Smith: In simple terms, no, but I understand the point you are making. We are protecting a whole range of different rights. There is the right to the protection of your life but there is also, under the Convention of Human Rights, the right to the protection of your private life. There is no doubt that, in some areas, in the interests of preventing terrorism we have to give up some aspects of protection of our private life and our privacy. We see that all the time. I saw it coming into the building today when I was searched. That is understandable but we do not have to give it up completely. There is a balance to be struck. I understand your comment that this is a very complex area - and I am sorry. I find it complex as well. Q274 David Winnick: He is being the devil's advocate. He does not really believe that. Mr Smith: Maybe I could start with where we were in the first pillar and why we introduced the Data Protection Directive in the first pillar. The Data Protection Directive in the first pillar was not just introduced to protect privacy; it was introduced as part of developing the single market in the European Union to enable the flow of personal information, if you like, without borders around the European Union by saying, "We have common data protection standards, so no one can put up data protection barriers to the flow of information." Essentially, it is the same thing we are trying to do in the third pillar, saying, "Yes, you are absolutely right, we need to exchange more information to prevent terrorism and other criminal activities." Data protection does not stop that but it does ensure that that is done in a way which respects individuals' rights. If I have a right of access to my data, that does not stop the prevention of terrorism but it is important that I preserve that right. Gwyn Prosser: I agree. Thank you. Q275 Martin Salter: I would like to follow up with some questions on the Data Protection Framework Decision. David, you referred to the problem of the definition of a crime in one country or another. For example, Austria does not recognise Holocaust denial. Mr Smith: Yes. Q276 Martin Salter: Euthanasia, as you have said, has different interpretations. Mr Smith: Tax as well. Some things are taxation matters and not criminal. Q277 Martin Salter: That is right. In parts of America, as I understand it, tax is seen as a crime in itself! Does the Data Protection Framework Decision make any provision for offences which are not crimes in both states? Ms Lewis: I do not believe it does. The Data Protection Framework Decision is about data that is used in conjunction with prevention, investigation, detection or prosecution of criminal offences. In the UK, if something was not a criminal offence I am not sure that the Data Protection Framework Decision would apply. Ms Nowell-Smith: That is correct. There is not yet an EU definition of crime. You can look to the jurisprudence of the Strasbourg Court under the European Convention of Human Rights and that has some guidelines about what areas of life one should expect certain kinds of trials and certain kinds of legal proceedings to follow, but there is no EU definition of crime. Q278 Martin Salter: Why does the EU need to define crime? Surely crime is defined by what is a crime as determined by the parliament in the sovereign state. Ms Nowell-Smith: That is the basis on which the framework decision operates. It does not attempt to define crime. Q279 Martin Salter: Why does it need to define crime? Surely one could establish a framework whereby, for crime A, which might not be a crime in France, the data could still be shared because it would be of use to people wishing to monitor potential criminal activity in another Member State. There does not need to be an EU definition of crime, does there, beyond what is determined as a crime in individual countries? Ms Lewis: I think that is right. I think we would agree with that. As Harriet mentioned, the Data Protection Framework Decision is not driving at trying to have a definition or list of things that are commonly recognised criminal offences. If we were in a situation where perhaps the UK was asked for personal data which related to a criminal offence in another EU Member State which was not recognised as a criminal offence in the UK, that would seem to fall outside of the school of the Data Protection Framework Decision and I think it would be judged on a case-by-case basis. Whether it was the UK police or UK customers or whoever in the UK was approached about that, they would need to consider, given the circumstances of the request, whether or not it would seem appropriate for the UK to cooperate. As far as I am aware, there is not any obligation on the UK to cooperate with requests like that. Q280 Martin Salter: Should there be? Ms Lewis: It is an enormous question and to answer that we would need to look at the knock-on effects for the UK for data sharing in the UK and also for the UK justice system. Q281 Martin Salter: Professor Peers, what is your view on this? Professor Peers: The dual criminality issue is very important to the issue of mutual recognition in criminal matters but, for the reasons just set out, it is not relevant to data protection. If one of your constituents decided to deny the Holocaust and they found themselves the next day subject to house search, ordered by the Austrian police (as they could be under the European Evidence Warrant) and subsequently a European Arrest Warrant was issued for their arrest, their assets were frozen and so on - all of which is possible under EU measures which are already adopted or agreed - then you would say, "Hold on, this was not a crime in the UK. Why should they be penalised for making this statement in the UK simply because Austria believes it to be illegal?" There is a whole series of examples like that, like euthanasia and so on. Why should we hand over someone to Ireland, for instance, to be prosecuted for performing abortion services in the UK which are legal here? If that prosecution took place or arrest warrants were issued and so on and assets were frozen because of that, I think there would be a lot of objections to that taking place and a lot of objections to mutual recognition on criminal matters taking place with a lack of harmonisation of criminal law. But, as was said, it is not exactly a data protection issue. Q282 Martin Salter: What are the grounds for refusing to cooperate and to send data? Ms Lewis: Under the Data Protection Framework Decision there is no obligation to comply with a request for information. You can refuse to cooperate because there is no obligation on you to do so. Q283 Martin Salter: What purpose does it have, if you can just opt out of it? Ms Lewis: It is more about how than what. It sets out the rules governing how you would protect it, how you would exchange data and how you could use it once you had made the decision to share that data, but it does not tell you what you can and cannot decide to share. Professor Peers: Other measures do. There are mutual assistance measures, mutual recognition measures, police cooperation measures already adopted or being agreed and negotiated which do set out obligations to share the information on request. The Data Protection Framework Decision would say that because we have harmonised to a sufficiently acceptable standard, you cannot refuse the request on data protection grounds. It is the same sort of logic that applies in the first bit of the Data Protection Directive for private companies mostly. You cannot prevent data crossing borders because the directive sets a sufficiently high standard. The idea is that you harmonise the national law in order to facilitate the free movement of the data. Q284 Martin Salter: If the treaty is incorporated into an EU framework, will the Data Protection Framework Decision replace it or will they run side by side? Mr Thompson: I was at the Dresden discussion at the informal where the German Presidency did indeed suggest that the Prüm Treaty be extended into EU law. There was some support amongst Member States for that, but, as it is an informal council (to use the jargon) they do not make proper decisions. The Presidency have said they will come up with more formal proposals which they will put to the next Justice and Home Affairs Council which is in February, but they did not suggest at all that this meant that they were then thinking of either dispensing with the Data Protection Framework Decision or moving it to the slow lane or anything like that, so we have heard nothing from the German Presidency to suggest that, although they are clearly keen to make progress on Prüm, they are going to sideline the Data Protection Framework Decision. This is a sort of apples and oranges comparison in a way. The Prüm Treaty is designed to encourage the sharing of DNA, fingerprint and vehicle registration data, with the aim of intensifying cross-border police cooperation, particularly the fight against terrorism, cross-border crime, illegal migration. As Belinda and others have said today, the Data Protection Framework Decision is very different kind of instrument. It is designed to put in place broad minimum standards across the piece in the third pillar, so having one does not necessarily undermine the other. They are trying to do different things. Q285 Martin Salter: Could I ask a question which off the Data Protection Framework Decision. There is a piece in today's Times about concerns of NHS regulators and NHS managers about NHS staff recruiting from outside of the EU, put in positions obviously, particularly if they were clinical staff, where they would be dealing with vulnerable people and sick people who may not have undergone the same rigorous checks that we would expect of people in those positions coming from EU countries. Is there anything in that framework at all that can ensure the validity of someone coming from a third world country, for argument's sake, and having been convicted of offences against vulnerable people who therefore in the normal course of events would not be eligible or allowed to be working with patients who are working in the medical sphere? Is there anything that can be done or is done to check that the information given to hospitals or the primary care trusts is accurate? Or do they have to take it on trust? Mr Smith: In simple terms, the Data Protection Framework Decision does not make any difference to that. If a third country (outside Europe) is willing to provide that information to the UK, there is no data protection reason why it should not be taken by the UK and put on our systems here if it is necessary for protecting people in the UK. I think very often the problems are, if you like, logistical and practical ones rather than legal ones. Q286 Martin Salter: There is nothing obliging a non EU country to provide that information at all. Mr Smith: No. Q287 Martin Salter: There is no real cast-iron way of insisting on it or checking on it. Mr Smith: No. You do raise an interesting point and this applies in a number of these areas. We are talking very much about EU issues here but very often we are addressing global problems. Sometimes we need global solutions and it is hard to see where those come from. Professor Peers: The Council of Europe's Mutual Assistance Convention does deal with criminal records, so if you are talking about other European countries there is a mechanism to check the criminal records of other European countries, but, of course, for Africa, Asia and so on there is not. Q288 Mr Benyon: Leading on from what Martin was talking about, do you think there is a need for an index of third country nationals who are convicted in the EU, so that at least we can catch that group of people if they come and try to work with vulnerable people in this country? Professor Peers: That is an important question. The Commission did release a paper on this last year and they seemed to be addressing that issue separately from the issue of criminal records of EU citizens. I think there is a legal reason for that, because the Council of Europe Convention on Mutual Assistance which I just mentioned functions by means of exchanging information on the criminal records of citizens of the contracting parties, so we get information on our own citizens who commit crimes abroad - of course, we might then lose it in a pile of 27,000 records, but as a principle that is how it works. The idea within the EU is to try to deal with that more efficiently as between the Member States, but we do not then have that information on non contracting parties to that convention and the development of the inefficiency only applies to citizens of EU Member States. In the interests of protecting the public, therefore, I think it is useful to be able to know what information exists/is relevant on third country nationals who live within the European Union, subject, of course, to data protection safeguards that no one is wrongly identified as a child molester or whatever. A system should be put in place. In fact, that is a big gap, because the Council of Europe Convention does not deal with it, it only deals with citizens of the contracting parties. At least there will be some information on Russians and Turkish people and so on but none, as I said, for non Europeans. I think it is important to think about how to deal with that issue, particularly because you have the facilitation of the movement of third country nationals within the Schengen area more than to the UK, but inevitably many of them visit the UK or they have the right to come here if they are family members of EU citizens, for instance, or they can come here quite easily if they are not subject to a visa. Therefore, it is quite useful to develop a system that we can have in the near future. Q289 Mr Benyon: Belinda Lewis, you will be aware of the issue on Passenger Name Records relating to the US request and how, through the European Court of Justice, it has now been declared a third pillar rather than a first pillar issue. To which information does and does not the agreement with the US provide access? Do we accept a lower data protection standard in third countries than in EU Member States? Is this acceptable? Ms Lewis: To take the first part of your question first, about the information to which the US has access, I have brought with me copies of the PNR agreement and also a list of the data fields that the US is allowed to access and also a copy of the undertakings which sets out the data protection provisions. I passed those to the clerk. In a moment of short-sightedness, I am afraid I did not keep a copy for myself, so I will not be able to read through the 34 data fields but you have them with you. In terms of the data protection standards and whether we are accepting lower data standards when we transfer to third countries, just to take the case of the transfers under the PNR agreement to the USA, the data protection safeguards, which are set out in the undertakings annexed to the agreement, set out very clearly the provisions. It sets out what the USA is allowed to use the PNR data for, who they can share it with, how long they are allowed to retain it for and so on, and all the Member States and the Commission agreed at the end of the negotiations, at the point where we had the final draft of the PNR agreement, that that provided an adequate standard of data protection. So, for the purpose of those PNR exchanges, the USA is considered to provide adequate data protection, although across the board it is not considered by the EU to provide universally adequate data protection. You asked also about third countries and whether we accept lower standards of data protection there. In short, we do. Really we have to in order to maintain the proper flow of business. We share data with countries who would not be considered to provide adequate data protection for purposes such as extradition, also deportation, also to aid things like murder inquiries of UK citizens who are murdered in third countries and it is necessary to transfer personal data in order to continue that kind of business. It is more a question for the Home Office, in terms of the mechanics of how they pass on that data, but I can say that when we share data with a third country under those sorts of circumstances (for example, to aid a murder inquiry of a UK citizen), the data would not be shared with the whole country or indeed the whole government or even necessarily the whole police force. The UK police or whoever was relevant would share, usually with a particular named individual contact or a particular team within a particular police force or a certain division within a particular department, and we would also impose restrictions on how that data could be used. I am not aware of any reason we have to believe that those restrictions are not generally respected. Q290 Mr Benyon: Professor Peers, in the light of the SWIFT case - and you will be more aware of than I am: I have just read a short brief about it - how far should we cooperate in data exchange with third countries, especially the United States, if there are suspicions that such cooperation would be contrary to our own data protection standards? Professor Peers: I think there should be a full overview of this issue in the third pillar and in terms of law enforcement access to financial data or passenger data in general. It is not just about the United States but about other countries as well. We should really be re-thinking to the extent that they are willing to do it. The PNR agreement, if you look at it, gives a number of important data protection safeguards, except there are doubts about how well it is implemented, for instance, and also there is one area where it is weak and it does not set much restriction on the further transfer of the data to other countries or to other agencies within the United States. I think we should be stricter on saying, at the very least, that it is a model which should be applied to other agreements but tightening up those points and insisting on some more effective supervision and reporting on whether the agreement has been complied with and on further restrictions on the additional exchange of that data. We really should be digging our heels in and setting a reasonable standard as to what we considered adequate data protection with other countries. There are very good reasons to share criminal data with other countries but there are also very good reasons to say, "What are the rights for the data subject?" if someone has been misidentified and someone ends up being wrongly prosecuted, detained or wrongly refused entry. We have to consider those issues as well. It cannot be purely about giving as much information as possible without any remedies or rights for the data subject. We have to think of wrong identification and all sorts of other issues that might arise, so we have to have a balance in these agreements. Mr Smith: It is interesting you should mention SWIFT because we are going to see SWIFT this afternoon about these very issues. SWIFT is another example of what is, if you like, an international problem. Q291 Mr Benyon: Could you give us a 30-second paraphrase of what the SWIFT case was all about. Mr Smith: Two problems with SWIFT. They are a European organisation. They were transferring information to the United States as part of their processing operations without ensuring adequate protection. They were not looking properly at the data protection measures in the States. Then, when the data are going through the States, the US authorities put subpoenas on SWIFT to make data on European citizens/European transactions available to the US authorities - and large scale amounts of data. So there are two strings to it: the need to ensure adequate data protection and the question of whether the US access is proportionate; that is, whether they wanted far too much information about people who have no connection with the United States. There clearly is an international issue about monitoring financial transactions to look for terrorism and other areas, just as there is with airline traffic. It is not just people flying to the States; it is all over the world. We really do need some international solutions to these problems and the problems are where we get bit-by-bit solutions. Why do the US require 34 data items, and Canada 23 and Australia 18 and Europe setting up its own arrangement with probably a different number of data items? It is not for me to make a plea for the airlines and, in SWIFT, the financial institutions, but they are faced with a minefield. We need some international harmonisation. If I could leave you with that plea, I would be happy to do so. Mrs Dean: Thank you all very much. It has been a very interesting session. The Committee is very grateful to you all for the input you have had into our inquiry. |