Examination of Witnesses (Question Numbers
140-159)
JODIE BLACKSTOCK,
JAGO RUSSELL
AND NUALA
MOLE
8 DECEMBER 2009
Q140 Mr Hogg: That is not an argument
for opting out, or staying out, is it?
Nuala Mole: For staying out?
Q141 Mr Hogg: Is it not perhaps an
argument for opting out, or not opting in anyway.
Nuala Mole: In my experience of
30 years of litigating in both these Courts and working with the
judges from both these Courts and for the national jurisdictions,
I think it is so improbable that it would happen, unless it happened
per incuriam, inadvertently. It might happen inadvertently
because somebody in Luxembourg had not got their finger on the
ball of the hundreds of judgments that come out of Strasbourg,
but I think it is so unlikely it is improbable. The probability
is zero that the ECJ would knowingly reduce the level of rights:
because in all the instruments which have been adopted at EU level
the rights protected are higher and more detailed and more comprehensive
than those which are guaranteed under the European Convention
on Human Rights. I cannot think of a single instance. They all
expressly say in their recitals that nothing in these instruments
shall be interpreted in a way which will lower the protection
which is given. The recitals are not actually legally binding,
but they are always taken into account because of looking at the
teleological purpose of the legislation that was adopted. May
I make one other final point about the Court? There has now been
introduced a system of speedy referrals. This is picking up the
points that have been made here in the UK about delays. There
was a case which was referred from Bulgaria about the Returns
Directive, about sending people back when they were rejected for
asylum claims and about the length of time you could keep people
in detention in those cases. The case was referred to the Luxembourg
Court in the second week of September and was decided last week.
So that is as speedy as you might hope to get from any judicial
system.
Q142 Mr Hogg: The Clerk has reminded
me (and it is an important point and I had overlooked it) that
the EU is seeking to become a party to the ECHR. To what extent
would that affect the problem that I have just referred you to?
Nuala Mole: It is not that the
Council of Europe is becoming a party to the EU.
Q143 Mr Hogg: No, the EU is becoming
a party to the ECHR.
Nuala Mole: No, exactly; that
is my point. The Strasbourg institutions cannot be brought before
the Luxembourg Court.
Mr Hogg: No, you are not getting my point.
Q144 Chairman: The implication is
the other way round, the EU acceding to ECHR.
Nuala Mole: Yes, but my point
is that if the EU accedes to the ECHR, it becomes a party to the
ECHR in a similar way to the individual states, which are parties,
and is, therefore, subject to the jurisdiction of the Strasbourg
Court and bound by the outcome of any case in which it is a party
in the same way as any state is.
Q145 Mr Hogg: Does that mean to say
then that a decision in Strasbourg is binding on either the European
Court of Justice or the institutions of the European Union if
they are once party to the ECHR?
Nuala Mole: Nobody knows yet.
We spent a day and a half discussing this in Strasbourg last week.
Q146 Mr Hogg: It seems to me rather
rum for us all to have entered into treaty obligations the consequences
of which are not understood. It is not your fault.
Nuala Mole: To be fair, all that
has happened so far is that the legal gates have been opened to
enable the EU, if it decides that it wants to, to accede to the
European Convention on Human Rights. No accession has yet taken
place, and it will doubtless be the subject of many, many hours
of detailed negotiations.
Chairman: It was clear to us yesterday
in Brussels that it will take quite a long time for this to happen,
if it does. Can we move on to the other issue?
Q147 Alun Michael: Can I ask a supplementary
on that point? On this issue of being binding, if the EU does
accede, it would then require a case against the EU or one of
the EU institutions for that decision to be binding on the EU.
Is that correct?
Nuala Mole: Yes.
Q148 Mr Hogg: I am interested in
the European Public Prosecutor, because I have some difficulty
in understanding exactly what is going to happen. I understand
that the jurisdiction, if invoked, will relate to offences as
against the financial interests of the European Union. So far
as I am aware, that is not the subject of any definition. Question
one: if it applies to the UK, do we then have to define in our
own statute law what those offences are? Secondly, I can conceive
of considerable overlap here. For example, money laundering. Money
laundering could well be an offence against UK law and against
EU interests. What law is going to prevail, how is the charge
going to be drawn, what are the laws of evidence and procedure
to be invoked and who is going to decide whether, within a court
of the United Kingdom, the European Public Prosecutor, or, for
example, the Serious Fraud Office, brings the relevant charges?
I simply do not understand the answer to any of those questions.
Jago Russell: Can I pitch in and
say I do not either. Really, the problem with the proposal for
the European Public Prosecutor is that there is a passing reference
to it in the Treaty and there is very little detail there at all.
I think, before anybody can hazard an answer to any of those questions,
a lot more thinking needs to be done, particularly on these questions
about how the role of the European Public Prosecutor would relate
to the role of prosecutors in EU Member States and which are the
offences of pan-European interest which justify the European Public
Prosecutor taking the case, as opposed to the domestic prosecutor.
I am afraid I do not have an answer to that and, I suspect, until
more work is done on it, it would be very difficult to provide
an answer about how it would work in practice if, indeed, it ever
materialises.
Nuala Mole: I think it was primarily
a twinkle in Commissioner Frattini's eye and I do not think that
it has actually got very much further than that. It is certainly
not, as far as I am aware, gestating at present. I would agree
with what Jago and Jodie, who are nodding, have said, but I also
think that there is far more fundamental work that has got to
be done in getting the existing mechanisms for cross-border criminal
justice working more efficiently and effectively, and with a more
rounded approach than is happening at present, before we start
getting into any more new institutions like public prosecutors.
I do not think any of us at this table are worrying about the
public prosecutor yet.
Q149 Chairman: The evidence which
we took yesterday, some of which will be published with our report,
informed a similar impression. There was not much excitement about
the idea. Would I be right in thinking that the likeliest course,
if such a person were to come into existence at all, would be
that he would be created by a smaller number of states using the
more voluntary co-operation procedure, which they can do if the
Council declines to go along this road?
Nuala Mole: It is Article 69E
of the Treaty of Lisbon that gives the possibility to set up the
Office of the Public Prosecutor, but it does not mandate the setting
up; it merely, as with many other provisions of Lisbon, opens
the gates towards doing something if and when everybody gets round
to doing it. It is not like, "There shall be a Court of Justice."
For example, the Treaty also foresees the possibility of having
specialised lower courts, if you like, very similar to the Court
of First Instance, which could deal with some of the more specialised
areas of EU law, but that does not mean to say they are setting
them up; it is just opening the possibility for them to be set
up without having to have a whole new Treaty revision again.
Q150 Chairman: A lot of these Christmas
presents may be left on the tree!
Nuala Mole: Absolutely.
Q151 Dr Palmer: The House of Lords
Committee observed that under the present system, without a European
Public Prosecutor, there is a lack of vigour in the pursuit of
offences which only affect the finances of the European Union
because no national body particularly cares, and yet we are all
concerned and all affected by offences which reduce the income
of the European Union because we end up having to pay more. Is
that not a problem?
Nuala Mole: I think most of the
offences that you are talking about and the Lords Committee was
talking about are the kind of offences which come up before the
Court of Auditors at present, and they are mostly to do with the
misspending or fraudulent obtaining of EU funds. If people are
found by the Court of Auditors to have misspent or fraudulently
obtained EU funds, then the Court and the Commission do have the
powers to recoup those funds—and they can get them back,
not exactly in the way that a public prosecutor would—and,
of course, they have the ultimate sanction, which is the individuals
concerned can never get a penny or a euro of EU money ever again.
Q152 Dr Palmer: So you do not agree
there is a problem. You think the Committee is wrong when they
say that the national bodies are lacklustre on that?
Nuala Mole: I do not think that
they are wrong. I just think that the Court of Auditors could
be encouraged to conduct its work with more vigilance and diligence
and the Commission could respond to the Court of Auditors' findings.
It is probably the most efficient and expert body within the EU
institutions.
Q153 Alun Michael: I would like to
ask about the impact of the current development on the issue of
data sharing. Again, referring to the evidence we heard during
our day in Brussels yesterday, we heard quite a bit about data
protection, we had references made to the concept of privacy by
design, we heard from Peter Hustinx, and he referred to moves
towards an information management model. Can I ask whether the
three of you have views about the impact on the law and practice
in respect of data sharing?
Jago Russell: My general comments
would be that there does seem to be a hole in respect of data
protection legislation covering data held in relation to criminal
proceedings, and that is something that we have been concerned
about for a long time. There have been a lot of moves in terms
of sharing evidence and information held by police amongst different
EU Member States, and one of the very practical concerns we have
about that is the accuracy of the data that is being held. Of
course, you cannot always know, and it would not be appropriate
for suspects always to know when information about them is being
shared by criminal justice agencies across Europe, but there are
real concerns about how we then make sure that information that
is held is accurate.
Q154 Alun Michael: I understand the
generalised concerns, but what I am trying to get to is the implications
of the changes in the Stockholm Programme, and so on, for the
way in which issues of data sharing are dealt with within Europe.
Jago Russell: I would have to
go away and look at those in more detail, I am afraid. As a fair
trials organisation concerned with fair trial rights, the kind
of issues that we come across are the general points that I have
made in terms of the accuracy of criminal record information,
but in terms of specific proposals—
Q155 Alun Michael: I understand where
the concerns lie and, of course, the question of accuracy and
the question of citizens being able to identify what is held on
them, and all the rest of it, is important. The problem is that
a lot of the time there is tension between the importance of data
being shared because of the importance of that sharing to the
citizen, or citizens in general, and there are issues of judgments
to be made. I am concerned to be clear about what the implications
are for the process and for balanced judgments to be made about
where it is appropriate to share data and where it is not.
Nuala Mole: I think this is one
area where the concerns that have already been expressed about
the interface between the European Convention on Human Rights
and EU law come to help us: because under Article 8 of the European
Convention on Human Rights the collection, retention and dissemination
of private data about an individual constitutes an interference
with the right to respect for private life, and every interference—so
every incident of collection, retention or dissemination—has
to be justified under the second paragraph of Article 8. That
means that the state, or the collectivity of states (and I will
come back to that in a moment) has to show that each separate
collection, retention and dissemination is justified for the purpose
for which it was collected and not for any other purpose; and
the Strasbourg Court has been very clear and robust in saying
that states cannot hide behind the fact that there is an EU system
in place to justify them violating their prior obligations under
the European Convention on Human Rights, and I cannot imagine
that they would take a different approach to this issue from the
approach they have taken to others.
Q156 Alun Michael: I do understand
that and I appreciate the importance of those protections. However,
there is a tendency in practice, as we have found on a variety
of occasions, for people to go to the default mechanisms, saying,
essentially, "If in doubt, do not share data", which
is actually the wrong conclusion. The conclusion ought to be to
properly ask the questions and determine whether it is appropriate
to be shared or not, particularly for the purposes of crime prevention,
for example. What I am trying to tease out is what the current
set of changes is likely to do in terms of that. We do hear from
the Council of Europe rather a lot of the one side of the equation
but not of how you get a proper judgment.
Nuala Mole: I think Eurojust has
had a very, very positive experience of using shared information
in order to investigate and pursue, prosecute and convict criminals
in situations where it would not otherwise have been. I think,
as with Jago, the concerns on this side of the table are (1) about
the accuracy of the information that is stored and (2) about how
do you get information which is inaccurate undone? We all have
experience, I think, of having had clients who were inadvertently
put on the Schengen List, after their passports had been stolen
by somebody who then committed a criminal offence in their identities,
and it taking literally years to get their names off the Schengen
List.
Q157 Alun Michael: I understand all
that. Clearly you continue to have those concerns, but my question
was do you see anything in the changes in the Stockholm Programme,
in any of the new arrangements that we are coming into, that is
likely to either improve or lead to a deterioration in regard
to those issues?
Nuala Mole: Like Jago, I would
have to say I do not think I have looked into that as thoroughly
as I would want to in order to give you a proper and accurate
answer.
Q158 Alun Michael: I would be very
interested in any supplementary comments on those issues then.
Nuala Mole: Indeed.
Jodie Blackstock: I think the
only thing that I have picked up on in relation to the Stockholm
Programme on data is the benefit of trying to create one data
protection system. We had, in November last year, a Framework
Decision on the impact for criminal justice, co-operation in criminal
matters, in relation to data protection, entirely outside the
other data protection instruments such that, in criminal matters,
you were supposed to follow this route; whereas what do you do
with all the other instruments that have been created? In none
of these instruments has there been the option for the person
affected by these instruments to have a role. There is more of
that seen in the criminal justice instrument, but it is still
very much piecemeal and optional as to whether that person can
make representations, and that is the real issue that we see from
a practitioner perspective: because once you are on a list it
is very difficult to get off it and even to know that you are
on it in the first place. That may not be an issue, necessarily,
for data protection instruments from the outset; it is an issue
for the instruments by which you become listed in the first place.
For example, the Convention which establishes the Schengen information
system and the contracting parties to that Convention does allow
for people who are subjected to the flagging alerts on that system—so
if you are wanted for arrest, for example, you would fall under
that system—to take their case to any contracting party
and argue for the amendment or removal from that list. From the
UK perspective, we opt in to the process, we do not allow the
representations—which, again, is a frustration like the
ECJ opt-out that we have heard about. From my perspective, what
might be beneficial, as this issue evolves, is to see more in
the data protection instruments to afford the person affected
to have a greater role in terms of making representations. The
only observations we made, as, again, a criminal focused briefing
on the Stockholm Programme, was a disappointment that there was
not a reference to the European Data Protection Supervisor and
to Peter Hustinx having an involvement in the dialogue; and it
seems a frustration from his perspective, from the reports that
I have read of his in the past, that it seems to be a sort of
last resort to consult him on any of this process and it really
should be an issue that that agency has a role in. The supervisor
really should be consulted.
Chairman: I appreciate that these are
complex and important issues which require quite a bit of explanation,
but I am also very conscious that there are a number of other
issues which it would be wrong for us not to give you the opportunity
of commenting on. I am, therefore, going to switch to Linda Riordan
and to a couple of other colleagues who have quite different issues
which I know are within your area.
Q159 Mrs Riordan: What steps should
be taken to ensure that the e-Justice portal improves fundamental
rights?
Jodie Blackstock: I attended a
meeting in February about the e-Justice portal at the Justice
Forum in Brussels and at that meeting there were experts from
many Member States and many organisations which were at that point
very sceptical about the e-Justice portal as something that would
work in practice. The idea is one which is a good idea, certainly
in principle. How it effectively it is going to be rolled out
is another matter. It was supposed to become live on 14 December.
That has been put back and no date has been proposed as to when
the portal might become available. From a defence perspective,
and even indeed from a victim's perspective, if we are going to
use those phrases, which are very EU-speak, the advantage is knowing
what rights are available to you in any given Member State, what
the Justice system might be if you were to become embroiled in
it in any Member State. The problem with that is keeping up to
date so that the information remains accurate and translating
it into 23 different languages as a minimum. At that meeting the
Commission did say quite optimistically that that would be something
that Europe would take a role for, I think. Since then that has
quietly been diluted and perhaps it might become a Member State
responsibility. The idea as we understood it then was that each
Member State would take responsibility for its own content and
there would then be a linking system so that anyone who went onto
the portal could find their way to each Member State's given information.
The problem with that is that you are not going to get a representative
and uniform set of principles and information about each country.
It is very ambitious ultimately and perhaps it would be better—
| 
