Examination of Witnesses (Question Numbers
3 NOVEMBER 2009
Q20 Alun Michael: Presumably, therefore,
you would be able to give some description some way down the line,
but it would be impressionistic.
Emma Gibbons: Maybe when we have
had some experience of implementing the measure.
Q21 Alun Michael: How are judicial
authorities encouraged to make effective use of Eurojust in its
capacity as, I understand it to be, the co-ordinating body?
Lord Bach: Eurojust has become,
for us, an invaluable source of assistance for our authorities
involved in investigating and prosecuting serious crime. You may
well know, the Home Affairs Select Committee of your House concluded
that Eurojust produces an excellent example of what can be done
to build mutual trust.
Q22 Alun Michael: Can you give us
some practical examples of positive outcomes?
Lord Bach: Yes, if I may, I will
give you one called Operation Golf. The UK, in that case, was
involved in a joint investigation team (I think, described as
JIT) with Romania, assisted by Eurojust and Europol. The operation
involved the disappearance of some 1,100 children from a single
town in Romania. The children were being trafficked, often with
the collusion of their parents, to Spain and to the UK for begging,
shoplifting and to exploit (in the UK) our benefits system in
this country. Intercepts have discovered that each child can earn
up to as much as £100,000 per year for the leaders of the
organised crime group. There have been 12 arrests because of Eurojust
getting together, if I can call it that, 12 arrests in our country,
for money laundering and conspiracy to defraud charges, with a
further three suspects being sought, and the team achieved the
first UK conviction involving trafficking of a child and uncovered
and rescued five further victims of child exploitation as well
as evidence of systematic and very widespread benefit fraud. That
is one example I can give you where Eurojust played an important
part. Another at the other end of the scale, an Al Qaeda-related
terrorism case, Eurojust co-ordinated (because that is its skill
really) the simultaneous execution of European arrest warrants
in Italy, France, Romania, Portugal and the UK nearly two years
ago, at the end of 2007. The suspects specialised in forging residence
permits, IT cards and passports and documents were seized, including
manuals for making explosives. Those are two examples of where,
in a really practical way, Eurojust does seem to be able to bring
some bad villains to justice.
Q23 Alun Michael: Thank you; that
is helpful. Obviously the training of our judges, prosecutors
and other legal professionals who are working in the field of
criminal justice is important. To what extent do you feel that
the EU funding that has been provided for networking and training
for such professionals has improved their trust in equivalent
professionals in other Member States?
Lord Bach: I wonder if I could
ask Mr Kilby to answer this. This is part of his expertise.
Edwin Kilby: Chairman, we do think
it has proved effective. Certainly, UK judges and prosecutors
have been participating in exchanges, arranged at European level,
designed to help mutual understanding of each other's legal systems.
My understanding is that these have been working well and have
been well received. The European Judicial Training Network has
a catalogue of courses which is open to European judges, which
means that judges from England and Wales can attend courses run
by other countries, if they so choose, who are members of European
Judicial Training Network. Also the Judicial Studies Board, which
is the England and Wales judicial training college, if you like,
also offers training places to judges from elsewhere in Europe.
In addition to that, there are study programmes which are funded
to allow, as a development opportunity, two weeks for the judiciary
to spend in other EU countries. Similarly, there are conferences
and seminars across the EU arranged for prosecutors.
Q24 Alun Michael: That is helpful.
Can I ask you your assessment of the potential impact of the Prisoner
Transfer Agreement on the number of EU nationals detained in British
prisons when it comes into force in 2011?
Lord Bach: The end of that year,
I think, is the plan.
Q25 Alun Michael: At that point,
what are you expecting to be the impact on numbers?
Lord Bach: We are expecting a
significant reduction over a period of time following the coming
into being of the framework decision. The number of EU nationals
held in British prisons will diminish, will go down. We are a
great believer in this. We actually think, wherever possible,
foreign national prisoners should serve their sentences in their
own country. We think transfer to the home country does allow
for more efficient preparation for the prisoners' release and
resettlement and enables families to keep in closer touch, hopefully,
wherever the prisoner comes from, in order to reduce reoffending
when they eventually leave their prison; but, as you say, it is
the end of 2011 that the framework decision will come into force.
Q26 Alun Michael: Turning to the
question of the e-Justice portal, are there any potential pitfalls
there, how can e-Justice be further developed to benefit UK citizens
and, associated with that, it was described by the UK Government
as an area which often requires considerable financial input.
Can you tell me, what is the estimated cost to the UK of current
and planned e-Justice projects and is the finance provided to
meet the required levels?
Lord Bach: Let me try and start,
and then I will pass on to Mr Kilby, with your permission. We
do support the work that is ongoing on European e-Justice because,
again, it is the argument that it can deliver practical benefits
to EU citizens. There are 2.2 million British citizens across
the 26 other EU states at the moment, which is a very large number
indeed, many of them living their lives there or working there
temporarily or studying, and, of course, their knowledge of that
country's laws, that country's institutions, the way people live
in that country through the web can be very much improved and
increased; so we are a supporter of e-Justice. Of course, the
portal is the main project at the present time, a website that
at its start will function as a point of access to a range of
information on justice matters across the whole EU, and, in time,
further other functions, we hope, will be added. The portal was
due for launch in December, but we are told it is now likely to
be launched in the New Year. We see a lot of potential benefits.
I have mentioned one or two of them. As far as the pitfalls are
concernedI think, Mr Michael, that is the question you
askedI will ask Mr Kilby to set them out.
Q27 Alun Michael: Is he sharing out
the good news and the bad news?
Lord Bach: I imagine the bad news.
Edwin Kilby: I am delighted to
be the bearer of bad news! If we are talking about potential pitfalls
of the e-Justice system, if I may say so, I think they are all
matters which can be managed with appropriate care, but, obviously,
it is only useful to have a portal designed to provide information
to the general public if that information is accurate and up-to-date.
So, clearly, there needs to be a certain discipline in making
sure that Member States do keep that information up-to-date and
provide timely amendments when they are needed. Other issues which
have occurred to us are the need to ensure proper authentication
processes, to ensure that information which is not meant to be
in the public domain does only get provided to the people for
whom it is intendedfor example, information about criminal
recordsand, linked to that, clearly, it is important that
we ensure security of the information transfer and the protection
of our systems from the possibility of cyber attack.
Q28 Chairman: You tell us about all
these management problems you are going to have, but this is the
department which, according to the Public Accounts Committee,
has wasted £41 million with cost over-runs and delays in
the NOMIS computer project. Are the people running this project
better than the people you have got in the department who were
doing it at the time, and, even at the UK end, can the department
meet its commitment to this project?
Lord Bach: We believe we can.
Of course, we read the contents of the C-NOMIS report and I need
hardly tell you, Chairman, that we will duly respond in full in
due course to it, but as far as the e-Justice programme is concerned
and the emergence of the portal, hopefully next year, early next
year, yes, I think we are confident that that project is moving
Q29 Chairman: It is a genuine question.
I am not trying to throw bad news back at you. Have the European
institutions involved and has the department actually got the
technical skills in place to manage a big project of this kind?
Edwin Kilby: We are confident
that we can and would point to some of the successes that we have
already seen, one of which is the Money Claims Online process,
which handles about 500 cases a day.
Q30 Chairman: How many a day?
Edwin Kilby: 500 cases a day,
Money Claims Online, and there are other things as well. There
is a portal for secure access to criminal cases which has been
piloted in some court areas. We also make use of video conferencing,
which also ought to be seen as part of e-Justice. This works well:
it saves time and money in the transfer of prisoners between courts
and prisons for short hearings. Perhaps I ought to just take the
opportunity to point out that as far as the e-Justice portal is
concerned, that is something that will be managed by the European
Commission. It will not be directly managed by anybody here.
Lord Bach: I do not know whether
you consider that good news or bad news.
Q31 Chairman: I did pose the question:
have we got confidence that they have got the management skills
available as well.
Edwin Kilby: We understand that
technical experts are responsible for this, and we have no reason
to believe that they are taking on more than they can chew.
Q32 Chairman: Can you just repeat
that? You do not believe that they are taking
Edwin Kilby: Forgive me. We have
every confidence that they are not biting off more than they can
Chairman: A phrase you could possibly
live to regret, but let us move on.
Q33 Mrs Riordan: The UK's position
on legal aid is seen as generous in comparison with other EU Member
States, but, of course, there are significant differences in the
legal systems in question. Is it not the case that the adversarial
nature of the criminal courts in England and Wales dictates the
level and nature of the criminal legal aid system to a large extent?
Lord Bach: Yes, it certainly has
an effect. Indeed, as you may well know, there is a report that
we have got on our website, an international comparative study
that came out last week from the Centre for Criminal Justice,
Economics and Psychology at the University of York, which had
some interesting, if tentative, findings about this; but there
is no doubt that the fact that our system is adversarial, as opposed
to most continental systems that are not, does mean that their
judge and court costs seem to be much higher, while our legal
aid costs expenditure is much higher. It becomes more interesting
when you compare our legal aid expenditure to that of other common
law countries, such as Commonwealth countries. There still we
seem to be very generous in terms of legal aid. As far as Europe
is concerned, of course, legal aid is one of the measures arising
out of the roadmap. We have to be concerned that we do not raise
our legal aid expenditure as a consequence of this particular
measure. We already spend, as you know, £2.1 billion per
year on it, which is so much higher than all our European partners.
In civil legal aid there is a directive that seems to, I think,
work pretty well. Legal aid can be granted for access to pre-litigation
advice, legal assistance and representation in court and exemption
from, or assistance with, the cost of proceedings, including the
cross-border nature of some case costs. There must be a means
test, and the decision is taken by the relevant authority in the
Member Statehere by the Legal Services Commission. Criminal
legal aid: different matters apply because of Article 6, of course.
The right to a fair trial provides that everyone charged with
a criminal offence has the right to defend himself in person or
through legal assistance, and this applies across the EU, but
there should be a more even system for legal aid for defendants
across Europe and is certainly something the measure will have
to look at very carefully. I do think, and I probably say it because
I am, for my sins, the legal aid minister, that we are not only
generous but the way in which we pay legal aid for criminal offences
in this country is pretty good.
Q34 Mrs Riordan: But surely if we
have got that adversarial nature, then that legal aid needs to
be granted and perhaps needs to be higher than other EU states
if their courts are different.
Lord Bach: I would accept that.
I would accept that that will always be so. Making these comparisons
is very difficult actually, as the academics found in both this
report and previous ones, and I know the Committee will have looked
at this. It is very difficult to draw great conclusions from it,
but, undoubtedly, other countries in Europe spend more on their
judges because their judges are playing a much earlier and more
prominent part in proceedings.
Q35 Mrs Riordan: To what extent are
negotiations going on through the EU about fundamental rights,
with the practical issues of how those rights are going to be
implemented and, finally, who should pay the bill?
Lord Bach: Legal aid is not yet
on the agenda, as far as negotiations are concerned, for a measure.
Its turn will come, and, indeed, on October 23 at the Luxembourg
JHA it was referred to and I made the point that, as much as we
like the roadmap and the measure that hopefully will follow, we
ourselves are not going to be in a position to pay more legal
aid than we do already. I think it will be a question of what
some other countries do, even under their different legal system.
Q36 Mrs Riordan: What are the prospects
for the introduction of procedures for enforcement of cross-border
cases as one of the Stockholm programme priority areas?
Lord Bach: I will ask Mr Kilby
to answer this.
Edwin Kilby: As far as civil cases
are concerned, that is one of the things that we have sought to
interest other Member States in. I think there is some recognition
in that area that, although we have good rules for mutual recognition
of judgments, the rules, as yet, do not allow any European mechanism
to come into play when it comes to actually enforcing the judgment.
I hope that answers your question.
Q37 Mrs Riordan: Thank you. To what
extent is it the UK Government's responsibility to ensure that
UK citizens have a better understanding of the relevant laws and
penalties in other Member States, with particular reference to
Lord Bach: The Government does
not have a responsibility to ensure that UK citizens resident
in other Member States are aware of laws in those Member States.
We do not have a responsibility for that. British embassies, though,
do provide general information, of course, to people working or
travelling abroad and, importantly, going back to the e-Justice
portal now (and I made this point, I think), information on national
procedures will, hopefully, soon be available on that portal.
The Foreign and Commonwealth Office's website provides travel
advice and also further advice, more than travel. It contains
information about what to do and assistance that is available.
The European Commission, apparently, also administers a website
giving information about civil and family law in all the EU Member
States, and that has been useful to practitioners as well as to
members of the public on both national laws and practices and
relevant Community law. That website receives, apparently, several
hundred thousand hits each month and will be available in due
course through the new e-Justice portal itself. So whilst strictly
we do not have a responsibility, it is obviously something we
take an interest in.
Q38 Mrs Riordan: What can the EU
do to strengthen the enforcement of these measures, in particular
the driving offences, across the borders?
Edwin Kilby: We think that the
framework decision on mutual recognition of financial penalties
will help. That does allow for a criminal penalty imposed in one
Member State to be transferred to and enforced in another, and
that covers things like fines, fixed penalty notices, penalty
notices for things like disorder, compensation and court costs.
The only qualification is that there is a threshold of 70 euros.
Q39 Chairman: What about driving
Emma Gibbons: There is a convention
on the mutual recognition of driving disqualifications, which
was agreed in 1998, I believe. It has not entered into force,
for a number of reasons, mainly because the procedures for implementing
conventions are just lengthy. There has been talk about resurrecting
that. I am sure it will be discussed in the context of the Stockholm
work programme. At the moment there is no mechanism for recognition
of disqualifications in force between Member States.