Home Affairs - Minutes of EvidenceHC 615

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 10 September 2013

Members present:

Mr James Clappison (Chair)

Michael Ellis

Dr Julian Huppert

Steve McCabe

Bridget Phillipson

Mark Reckless

Chris Ruane

Mr David Winnick

In the absence of the Chair, Mr Clappison took the Chair.

________________

Examination of Witnesses

Witnesses: Garry Mann and Andrew Symeou, gave evidence.

Q102 Chair: We are now moving on to a different subject, the European arrest warrant. Mr Mann and Mr Symeou, each of you have very direct experience of the European arrest warrant, so I think we would be grateful if you could give us a brief explanation of that experience and tell us what the current position of your case is. If we could start with Mr Mann.

Garry Mann: Good afternoon. First of all, I don’t know if anyone knows my case or remembers my case, but I was arrested in Portugal during the Football Euro 2004. I was arrested under a temporary Portuguese legislation, which is basically arrested and tried within 48 hours. I was arrested coming out of a bar at 3.30 in the morning. There had been riots there that night; they had finished at 1 o’clock. I was arrested, then I was beaten on the floor. Then I was taken and charged at 10 to 4, with no solicitor, no lawyer, no translator, and so all I knew was this was a public order offence. We were then kept in a room and then kept in a cell where all 12 of us-there were 12 arrested at the time-were, like, if you had looked at the wall you were hitting the back of the head, if you closed your eyes. Basically, after that I was then sent to trial within 48 hours, and then one hour before the trial in the morning I saw a lawyer.

Q103 Chair: Can I just interrupt at that point? Up to that point had you had the benefit of a translator at all? Were the questions being directed to you in English or not?

Garry Mann: Nothing. I had got to one hour before the trial in the morning waiting and I saw my lawyer-still had not seen a translator anywhere. No one had translated anything of the charges when I was in the prison, when I was charged. Then an hour before I was due in court, I saw a lawyer for five minutes. I told him that I had done nothing, and he said, "Look, do you want to say voluntary deportation?" and I said, "Look, I just want to get out of here. You know what I mean, I just don’t trust anything that is going on here." Still no translator. I got to the court; 11 o’clock it started in the morning. Then-

Q104 Chair: Can I ask you, before that, had the questioning of you been in English or Portuguese?

Garry Mann: The what question?

Chair: Had the police questioned you at all?

Garry Mann: During that time the police had not questioned me. They did not say anything. They just told me it was some kind of public order offence.

Q105 Chair: Did they give you any detail or any indication of what the allegations against you were?

Garry Mann: No, nothing. No.

Q106 Chair: So you had had no chance to comment on it?

Garry Mann: No. Of course, then I saw my lawyer and told him and he only spoke broken English. Then we went into court and there were 12 of us English. There was one Portuguese, one Russian, and we had one interpreter. She just sat at the front, like in front of me there, and just took some notes and did not translate anything, not one word. All 12 of us were just trying to talk to her and she was just too busy writing. She quit, saying that she could not handle it. She was a hairdresser, we found out later, and this is truth, it’s not fiction. She was a local hairdresser that they plucked from the air, basically, that knew the wife of the judge. That is how bad it was.

Then they gave us another translator. This translator again was at the front. She was a little bit better and she would try to say something and pass it down the line of 12, but we did not understand what was going on at all.

Q107 Chair: Did you have the chance to give evidence yourself?

Garry Mann: No. They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English.

Q108 Chair: At that stage, did you know what the charge was that you were facing?

Garry Mann: No. I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night, because it carried on from 11 in the morning. So 11.30 at night, because they only had 48 hours to convict, and then they had to release me.

Q109 Chair: Can you tell us briefly what happened after that?

Garry Mann: In the court?

Chair: Well, and after the court. You said you were convicted.

Garry Mann: I was convicted. I had no translator, but I asked for witnesses. I saw two in the court, but I had another seven witnesses but they weren’t there at the time. They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV. So I never had any time for that. But then, yes, I was convicted and I was then put into a detention centre. The judge there said I should be imprisoned in the UK, so I was waiting to go to the UK. Then I was in a detention centre for three days. The Foreign Office then said, "You are being deported voluntarily. You are not spending the two years because there is no transfer system." You cannot just transfer someone from Portugal. The British refuse. So the Foreign Office then said that basically anything under three years you are voluntarily deported. So I agreed. I signed it in front of the Foreign Office, voluntary deportation. I went back to England where I was rearrested for a banning order. To cut a long story short, they arrested me for a banning order. Judge Day then found that my rights to a fair trial had been abused. I had no-

Chair: In Portugal, yes.

Garry Mann: Yes, in court in Uxbridge, a two-day court. A British police officer who was in the court gave evidence for three hours stating that he did not understand. This man and these people could not understand any of that court case. So Judge Day then said, no, they had violated all my human rights to a fair trial. They had all been broken, translators, no evidence, so he said, "No banning order" and he said that you cannot take into account the Portuguese-

Q110 Chair: The upshot here was that you were extradited to Portugal?

Garry Mann: Yes, because that was in 2005 when I had done that. I went back to work as a fire fighter, which I have done for 31 years. Five years later, after the 2004 arrest, I was then arrested on a European arrest warrant. I had Europol knock on the door at 8 o’clock in the morning. I was taking my kids to school and he said, "We are arresting you under the European arrest warrant." I said, "What for? I have already been to a British court. I was voluntarily deported. The British Metropolitan Police and the Foreign Office said so." "No, you are being"-and I went straight on blue lights to Westminster, appeared before a judge. Basically, I was bailed. Then I came back and I lost that court case because basically all the judge wanted to do through the rules was put a stamp on it and say, "Look, I have everything from Portugal. This is all I need. I do not need evidence from you, your defence", and he rubberstamped it.

Q111 Chair: What happened to you after that? Did you have to go back to Portugal?

Garry Mann: What happened after that is-which is one of the things that I have seen that you are trying to amend as well-that when they gave me the extradition and said, "You are going," I had seven days to appeal. My lawyers missed the seven days because it finished at 4.30, and they thought they had to get it in the next day at 9 o’clock. They missed it by a day. Because of missing it by a day I had no further appeals, so all my evidence, the evidence of the police officer, the evidence of Judge Day that had come forward, it was all thrown out.

I went to a judicial review twice. On the judicial review Judge Moses said, and I will quote, "I cannot leave this application without remarking about the inability of this court to rectify what appears to be a serious injustice to Mr Mann." Lord Justice Moses knew but could not do anything about it. He said, "My hands are tied because you have missed your appeal and because I have all this evidence in front of me now from lots of people, including the Foreign Office, that says that you did not have a fair trial." He said, "But you missed your appeal and we cannot go back." Because my lawyers missed it by one day, through no fault of my own I was never allowed to appeal. So then by judicial review they just threw it out of court. I then served two years. I was then taken by Europol from my house. Sorry, I went to Heathrow, met Europol. I went from there to-

Chair: Portugal?

Garry Mann: -a Portuguese prison.

Q112 Chair: How long did you spend in a Portuguese prison?

Garry Mann: I was convicted for two years but I spent one year there. Even though Fair Trials and my MP, Hugh Robertson, and other politicians tried to help me, it took one year for me to get transferred back to England. I was then transferred back to England after one year. The thing that really annoys me is that when I got back I was given another six months on top of the one year I had done under good behaviour, because on the transfer embargo when you get someone transferred you have to do half your remaining sentence. So I had one year left. They gave me another six months, three months in Wandsworth-

Q113 Chair: So you spent 18 months altogether in prison?

Garry Mann: I did one year and three months in prison and then another three months on curfew at my home address and on probation. That is a half year more than anyone else would serve with good behaviour when given a sentence of 2 years.

Q114 Chair: Thank you very much for that. Perhaps we could turn now to Mr Symeou and he could tell us about his experience.

Andrew Symeou: Firstly, thank you for the opportunity to speak before you. I was wrongly accused of attacking a young holidaymaker on a Greek island in 2007. This was due to a group of police officers in Greece who abused their authority. The evidence that was assembled against me has recently been criticised by the Coroner in Cardiff who stated that the statements in Greece were not worth the paper that they were written on. They beat up people. They beat up two of my friends into signing something in Greek that they did not understand, which said that I was there and it was me who struck the punch. This person who fell over then subsequently died. The rest of the statements that were assembled against me were complete lies. The same witnesses came back to the UK and made statements to the British authorities that told the truth. I did not fit the description of the actual perpetrator and I could prove my innocence. I took this before a Magistrates’ Court, who had no power in preventing the extradition.

Q115 Chair: Sorry, the Magistrates’ Court, was this in Greece or in this country?

Andrew Symeou: No, this was in London.

Chair: This was in London.

Andrew Symeou: I was in London when I was arrested.

Q116 Chair: You were in London when you were arrested. So what you are telling us is as a result of things that had happened earlier in Greece, and then you had come back to this country?

Andrew Symeou: Yes. I was in London at the time and I was arrested. I appealed the extradition and the district judge had no power. They were unable to prevent my extradition, even though I could prove my innocence. We then appealed the decision and went to a higher court.

Q117 Chair: Can I just take it back, because you are telling us now what had happened in London.

Andrew Symeou: Sure.

Chair: Back in Greece, were you seen by the police and interviewed at all there?

Andrew Symeou: No, not at all.

Q118 Chair: Were any allegations put to you?

Andrew Symeou: No. I went on a holiday with a group of friends but there were two other friends who were on a different package. They remained on the island for an extra four days because we did not book the same holiday. In that period, there were a collage of photographs taken by a photographer on a different night and one of them was of me. It was just a complete wrong identification. They went to all the hotels on the island. The manager of the hotel obviously recognised my photograph and told the police that my two friends were still there.

Q119 Chair: So you had not been seen by the police at all in Greece?

Andrew Symeou: Not at all.

Q120 Chair: This event had taken place. You were not arrested by police or seen by them-

Andrew Symeou: No.

Chair: -and you came back to this country after completing your holiday?

Andrew Symeou: Yes, exactly.

Q121 Chair: It was when you were back in this country that you were then arrested under the European arrest warrant?

Andrew Symeou: The picture was just of my face with my eyes closed. You could not tell it was me.

Q122 Chair: No. But you were then arrested in this country under the European arrest warrant?

Andrew Symeou: Yes.

Q123 Chair: Can you tell us what happened then, please?

Andrew Symeou: Like I said previously, we appealed the extradition and we retrieved the case file from Greece. I got a lawyer in Greece who went to the public prosecutor magistrate in Zakynthos and they obtained the case file against me. That is when we discovered that the witnesses who did see this attack, their statements were word for word identical and all claiming that 100% it was me. I mean it was physically impossible. It was those same witnesses who came back to the UK and then made subsequent statements to the south Wales police, which said that one of them saw it and was not 100% sure if it was the person in the photograph.1

Q124 Chair: This was all in this country?

Andrew Symeou: This was all in this country.

Q125 Chair: You were then subject to the extradition proceedings?

Andrew Symeou: Exactly. When seeing all the evidence together you can see that there was clearly an abuse of process on behalf of the Greek police, yet authorities in Britain had no power. They could not prevent the extradition.

Q126 Chair: You were then extradited back to Greece. Can you tell us what happened to you in Greece?

Andrew Symeou: I was extradited back to the abusers, back to the same police officers in Zakynthos. When I got to Greece I was-

Q127 Chair: How long after the original event was this, the extradition? How long was it after the incident that had taken place, your holiday, and so on?

Andrew Symeou: Since I had gone on the holiday it was two years later. I was not arrested for a whole year. I don’t know why, because their one-sided, manufactured investigation only took them four days. I was arrested in 2008 and I appealed the extradition, which took a year, and I was extradited in 2009.

Q128 Chair: What happened after you had been extradited in 2009, when you got back to Greece?

Andrew Symeou: We landed in Greece. I was taken to many different police stations and police cells, and I sat before the investigating magistrate in Zakynthos. That was my only chance to make a statement. Nevertheless, they put me in prison on remand because I was not a Greek citizen. So I was extradited because we are European but I was put in prison because I am British, which does not really make sense.

Q129 Chair: No. How long did you spend in prison?

Andrew Symeou: Overall, I was there for 11 months.2

Q130 Chair: Eleven months. Members of this Committee have seen Greek detention facilities, so I imagine it was not entirely pleasant.

<?oasys [tb ?>Andrew Symeou: I have stories that you could not imagine.3

Q131 Chair: What happened at the end of the 11 months?

Andrew Symeou: At the end of the 11 months, I was told that I was going to trial. The Greek authorities had failed to summon any witnesses, which I think you would all agree is quite a standard procedure when coming up to a homicide trial. I turned up and I asked that they release me on bail. In the end, I think that they admitted they were wrong and they did release me on bail and I stayed on bail for another year, but I thought it would only be a few months. I was on bail for another year living at a residence. A family member owns a property in Greece that I could stay at, but again, this whole passage of time-

Q132 Chair: At the end of that time, what happened to the charges against you?

Andrew Symeou: I finally went to trial, and I was acquitted of all charges on the evidence that I had from the very beginning that I was showing to a court in Britain. So I went through all of that effectively for no reason.

Q133 Chair: You spent 11 months in detention in Greece and then a further year on bail there involuntarily?

Andrew Symeou: You cannot imagine what it has done to me and what it has done to my family. It has changed our lives and it is unacceptable.4

Chair: Thank you. I think Mr Michael Ellis has a question for you now.

Q134 Michael Ellis: Gentlemen, it is clear to me that you have both suffered appalling injustice. Mr Symeou, I have been made aware of your case. Who is your Member of Parliament?

Andrew Symeou: Nick de Bois.

Q135 Michael Ellis: Yes. I think Mr de Bois has spoken in Parliament before on your behalf and I am certainly aware of your case.

As it currently stands, the European arrest warrant is seriously defective in my view. What do you both think could be done differently? First of all, how could the UK authorities have handled the allegations against you differently if we were starting from a clean slate? Could you give some consideration to that, Mr Mann?

Garry Mann: I think what kept coming up in the cases for me was this flagrant breach of Article 6. Basically, the Crown prosecution just keep finding there has been no flagrant breach of Article 6; there has been no flagrant breach. Every time I went to court it was the same. In the Magistrates’ Court and even when I got to the High Court the judge said, "I cannot do anything about this because I do not have the law to do anything about it with." But the flagrant breaches, as I have told you, everything that happened to me-no translator, no lawyer, could not get defence witnesses-they did not see that as a flagrant breach. What is a flagrant breach? That is the problem with it. The bar is set too high, because everyone then comes up with, "It has to be a real flagrant breach," and then to stop someone being extradited they were saying to me, "Well, you are not going back to be tortured or going to get the death penalty."

Q136 Michael Ellis: Anything short of execution or torture is not a flagrant enough breach?

Garry Mann: Is not a flagrant breach.

Q137 Michael Ellis: Right. So you think the bar is set too high?

Garry Mann: Yes, and the judge, Judge Workman in the Magistrates’ Court, he should have the power to look to see if there has been a denial of justice, which there was in my case. Once you have seen the evidence-and I had a police officer and the judge before who said, "Look, these have all been broken"-the judge should have had the power to say no to the European arrest warrant, but he just does not have the power. He just rubberstamps it.

Q138 Michael Ellis: Mr Symeou?

Andrew Symeou: I was a 19-year-old student. I had never been in trouble with the law before in my life. To show a British court this overwhelming evidence of my innocence and then to be extradited is crazy. I think it is quite simple: just don’t extradite people who are able to prove their innocence.

Q139 Dr Huppert: Mr Symeou and Mr Mann, you have clearly had some awful experiences and been treated in an incredibly unjust way, and that is what we are trying to fix. Mr Mann, many of us would agree that human rights considerations should be taken very seriously and pervade our justice sense. I would agree with you completely on that. You will be aware that the Government has proposed some reforms to the European arrest warrant. Mr Symeou, there was an entire paragraph or two entirely dedicated to you. Do you think that the changes that have been proposed would prevent future situations like you described from happening?

Garry Mann: No. I think they are a good start. But if you look at the cases of both of us, they were presented or sometimes at the Magistrates’ Court I was not allowed to present a defence. Basically, it is like, "Let’s rubberstamp this. We believe everything the Portuguese authorities have said in their transcript. Let’s just move on because we don’t have the power to look at the evidence." But I am trying to say, no, you should be looking at the evidence and the judge should have the power to say, "Look at this, this man, all his human rights here. His rights to a fair trial were just thrown out the window, so how can we send this man to another country?" when a judge in this country also, two-day trial, said, "Look at these. They have broken all the rules of Article 6, so no."

Q140 Dr Huppert: Your call would be to make sure that judges are empowered to use Article 6? You clearly cannot expect them to run a full trial?

Garry Mann: No, but they can-

Dr Huppert: They could look at the Article 6 rights.

Garry Mann: Yes, and they can look at the evidence. Why can’t they look at the evidence? Because you can look at the evidence and if I have evidence from, say, a police constable, which I had, that this whole trial he never understood a word of it. I could not understand it if he cannot understand it. Why couldn’t he look at that and go, "This man has not had a fair trial. He has had no translator. The lawyer never turned up, no defence"?

Q141 Dr Huppert: I at least would agree that the Article 6 rights should be looked at. Mr Symeou, you are specifically named. Do you think that the Home Secretary is right to say that her proposals would address your problem?

Andrew Symeou: I agree with Garry that it is a good start but I don’t think it is enough. For example, I read that they were looking at-sorry, I have lost my words.

Chair: Take your time.

Andrew Symeou: Sorry. They were looking at only extraditing you when they are trial ready. But authorities like the Greek authorities would probably claim that they are trial ready, because they claimed that they were trial ready when I was extradited. But they weren’t at all, which is why it took two years to come to trial, and one of those years I had to spend in a Greek prison.

Q142 Dr Huppert: You are right that we have to understand exactly what is meant by "trial ready", and I would hope that if the Greek authorities were breaking the limits of that we would notice that and respond. It would be interesting to have other suggestions from you in writing if that is okay.

Andrew Symeou: Yes, of course.

Q143 Dr Huppert: To step back from the principle-and clearly it has worked awfully for both of you-I have to say it seems to me there is a whole series of problems in each of these. It is not just to do with the European arrest warrant. It sounds like there were a number of instances about whether the Foreign Office misled you and so forth. Would you agree that there is a need for some sort of mechanism, that there clearly are people who commit crimes in Portugal, in Greece, who should go back to face justice, that we have to make sure there is an efficient way to make sure that that does happen as well?

Garry Mann: Of course, but on the other hand what you have to do, you have to make sure that the trial that these people are supposed to have had was conducted fairly and justly.

Dr Huppert: Absolutely.

Garry Mann: As soon as you see the evidence that the trial wasn’t done in a just way, you should have the right then to say, "We are not sending our citizen back to the country."

Chair: Thank you. I think that point has been made very persuasively.

Q144 Mark Reckless: Do you think there is any realistic prospect that, on any reasonable timescale, the standards of justice in Portugal or in Greece would be standards that we would consider satisfactory in this country?

Garry Mann: It is going to take a few years. It is going to take people not like me and Andrew, because we are just small people and our advice is not heard. It is being heard today, which is good, but it is people like yourself that then have to take it to the European courts and say, "Look, these countries are not obeying the rules of Article 6 or they are not obeying the rules of the 2003 Article 6 or 1 and 2", and we should be saying to them, "Look, you cannot be ordering these people to be extradited under a European arrest warrant under those circumstances." Yes, of course, there are going to be people that are going to be extradited. If they have had a fair trial. If it has been just. If you can see that everything has been followed to the letter of the law, not from their point of view but from our point of view. One of the things you are saying is if there is a lawyer in another country, someone who could help in that country. If I had had a lawyer in Portugal who could speak fluent English for a start-off it would have been helpful.

But once I got back to England it was a case of none of these judges had the power to do anything. The countries, Portugal and Greece, they just do whatever they want to do at the time to get a conviction and that is the sad thing about this. I think Andrew would agree.

Q145 Chris Ruane: Yours are two high-profile and quite emotive cases and you have been to hell and back. When they attracted press interest-and I am assuming that there has been press interest locally or nationally-did many people contact you and say, "I have been through the same"? The experience that you have been through, how widespread do you think it is?

Andrew Symeou: I have been in contact with victims of the same kind of corruption in Greece, but I have only ever met people who have gone through something similar to me through Fair Trials International, the charity.5

Q146 Chris Ruane: How many UK citizens do you know of that have been extradited unfairly?

Andrew Symeou: I think this might be a question for somebody else. I don’t think I am the right person to ask.

Garry Mann: Through Fair Trials we have been in discussion with lots of people that have been treated unfairly.

Q147 Chris Ruane: British nationals?

Garry Mann: Yes, Deborah Dark I think her name was; lots of girls. We have all met, and you have seen the stories from these other people and you think, "Yes, that’s it" Everyone will tell you the same, and that is where they got the evidence from. Some of it was made up. To put you down, the evidence they got. Everyone is going, "Where did they get that from? Why were we even found guilty in the first place?" Not about when they got to court and tried to then stop the European arrest warrant. It was before then. I was with the 12 other people in court. They had the same thing done. But all the people we have met, and we have had people who have emailed over or got in touch with us and said, "Yes, this is crazy." We have had nothing but support from FTI but also everyone around the country.

Chair: Thank you. I think Mr Reckless might have one final very short question.

Q148 Mark Reckless: I want to put the same question to Mr Symeou and then I have a final question. I want to ask Mr Symeou whether you have any more confidence than Garry has for the Portuguese situation, that Greek justice would become of an acceptable standard for this country.

Andrew Symeou: I have no confidence in the Greek justice system, to be honest. They are notorious for their delays. For example, I was denied bail for the second time and the document quite literally said that I was guilty, to the point where it said I would naturally deny the charge and it basically said, "This would not be happening if you did not punch people in the head." This is all based on a one-sided, very flawed investigation, so I cannot say I have any confidence.6

Q149 Mark Reckless: I personally am quite influenced by both the cases and what has happened to you. Parliament as a whole has voted to exercise what is called the block opt-out from all of these EU justice measures. However, there is proposed to be an upcoming vote where Parliament will be able to choose if it wants to opt back into measures, including the European arrest warrant. How would you like MPs to vote?

Garry Mann: The answer from me is "no" because I know what you are trying to do. You are trying to pick the ones that we want to go into, but picking them is very difficult. We opt out. In my view, we should not be letting any British citizens go into another country if the proof is there that they were innocent. At the moment, people are coming back from being arrested, convicted, some in absentia, which is crazy, and then coming back and then just being sent on their way. Basically, just sign a bit of paper. It cannot be that way. I don’t think we should let any of our British citizens go to another jail in another country unless there is proof from both sides, not just a transcript from Greece or Portugal saying, "This man has killed this man."

Q150 Mark Reckless: Mr Symeou, do you agree?

Andrew Symeou: I do agree with what Garry is saying.

Chair: Thank you. Gentlemen, can I thank you both very much for coming along and giving evidence to the Committee? It has been very helpful. I think we all understand these have been very painful experiences for you, but we are very grateful to you and what you have told us has been of great help. Thank you very much.

Examination of Witness

Witness: Professor Steve Peers, EU Justice and Law, University of Essex, gave evidence.

Q151 Chair: Professor, thank you very much for joining us this afternoon. Some of us have had experience of hearing your evidence in other contexts in the European Scrutiny Committee, and I know you have given evidence on other occasions as well. We are very grateful to you for coming along today. Can I begin by asking you about the opt-in process and where we are with it at the moment? Do you think the Government should be confident that the Commission and Council will be willing to let the UK opt in to those measures that it has chosen out of the ones that it has opted out of?

Professor Peers: In principle, the Commission and the Council, as I read the rules, have an obligation to let us opt back in provided that the criteria in the protocol 36 are satisfied, which is that there is no serious effect on practical operability and there is respect of the coherence of the different parts of the pre-Lisbon measures. I think the Government’s list of 35 measures to opt in does satisfy those criteria so, therefore, they ought to let us in. I am not necessarily confident, though, that the Commission and Council will see it that way, but they ought to see it that way. As I say, they have an underlying legal obligation.

Q152 Chair: Because that was the way these matters were all negotiated back in 2007, prior to the accession of the Treaty of Lisbon?

Professor Peers: How do you mean exactly?

Chair: This process was negotiated before the Treaty of Lisbon. It was always foreseen that there would be the opt-out and possible opt-ins afterwards.

Professor Peers: Yes, during the Treaty of Lisbon negotiations this clause of the protocol was added. It obviously assumes that the pre-Lisbon measures are divisible, otherwise it would not make sense to have a clause about opting back into some of them in the first place. Obviously they are divisible, subject to these criteria of coherence and practical operability. As I said, I think the Government’s list of 35 measures meets those criteria. There are ways in which if it had taken different decisions, for example, there are two different measures on the criminal records information system, we have to opt back into both of them. We cannot just choose one, so it is either both of them or none of them. But as the Government says it wants to opt into both of them, for instance, those criteria of practical operability and coherence I think are met. That is just one example but it is the sort of idea.

Q153 Chair: Thank you. How likely do you think it is that the Government will be able to negotiate the opt-in in time, so that transitional arrangements are not necessary when the opt-out comes into force?

Professor Peers: There might be a slightly awkward issue with the transitional arrangements, because 1 December 2014 is a Saturday. I don’t know if it is possible for the Council and Commission to officially adopt decisions on a weekend. If they cannot adopt them until 3 December you certainly have an awkward position with the people who are detained on the basis of a European arrest warrant, assuming the Government’s plan to opt back in goes through, because on what basis are we then detaining them over that weekend? Of course, any detention has to be in accordance with the law. Equally, people detained in other member states on the basis of arrest warrants we have issued, what is their position over that weekend? I think there is a slightly awkward issue there.

Will the Government succeed in time? Again, it ought to because it has made its decision quite early. It has officially notified the opt-out this summer. It has this provisional list of 35 measures that is not yet confirmed, but a provisional list that it has informed everyone of back in July. I do not know when they plan to confirm that list but from today there is nearly 15 months to go. You can surely have informal discussions on the basis of that list anyway. The Council and the Commission can begin thinking about their response to our application, on the basis of what is probably going to be more or less the final list of measures we try to opt back into. There certainly ought to be enough time. I would say it would not be the Government’s fault if there is no decision in time by December next year. It would be some kind of political difficulty that the Council and the Commission have dreamed up.

Chair: Thank you very much. That is very helpful.

Q154 Dr Huppert: If I remember correctly, you suggested a list to the House of Lords Scrutiny Committee, which had 44 powers that you thought we should opt back into. Which ones are missing?

Professor Peers: Some of those are the Europol implementing measures. I had assumed that we had to opt into the whole list of them, but the Government’s explanatory memorandum says, "No, we don’t need to opt into the implementing measures, just into the Europol decision. The implementing measures are necessarily part of it." In which case I would say why were they listed at all as a part of that list of 130 measures? That is part of it.

Also I had assumed we ought to opt back into the Prüm decisions on exchange of information, those two decisions. The Government gives the explanation that it probably costs too much, in terms of the benefits that we would receive, and that in the near future there might be some simpler or less costly way to exchange that sort of information. Perhaps that justifies its non-application to opt back in.

I had also suggested that they ought to opt back into the framework decision on probation and parole, and that is not on the list. I do think it probably ought to be on the list. That partly connects to issues about the European arrest warrant, which we will come to later. Equally, the mutual assistance convention and its protocol, I think when I gave the House of Lords that list I was probably assuming that would not really be valid any more by 2014. Now it is clear that it will be for about two years afterwards, but the Government is not seeking to opt back into the convention, even though, according to the Home Secretary, it seeks to rely on some things in the convention as a way of reducing the number of European arrest warrants that we execute. I think there is an obvious contradiction there. If we are going to rely on video conferencing, for instance, which is regulated in detail in that mutual assistance convention, we ought to opt back into the mutual assistance convention. There is a Council of Europe Treaty that also provides for video conferencing. There are 10 member states that have not ratified it, so if we want to avoid executing European arrest warrants for them and have video conferencing instead where we can, we ought to go back into the mutual assistance convention during that two-year period before it is replaced.

Q155 Dr Huppert: It certainly seems you make a strong case that these would be things that would facilitate other things that the Government is trying to achieve.

Professor Peers: Yes.

Dr Huppert: This Committee will have to make certain recommendations. Would you want us to suggest that your full list should be the supporting one?

Professor Peers: Probably, yes. I would have to go back to that list, but the two things that I thought were obviously missing were the framework decision on probation and parole and the mutual assistance convention and its protocol.

Dr Huppert: If you want to reflect on it and write to us with the ones that you do think should be back in and the reasons, that would be very helpful.

Professor Peers: Sure.

Q156 Dr Huppert: Whether it is your list of 44 or the 35 that the Government is proposing, there has been a debate about how much repatriation that will have. Do you think that would be a substantial difference or if the Government had decided not to opt out in the first place?

Professor Peers: I think these 35 are by and large almost all of the most important ones. The only three really significant measures that are missing are the Prüm decisions-there are two of them-the mutual assistance convention and its protocol and the framework decision on probation and parole. Apart from those, I think the Government is opting back into anything of any great significance. My answer simply would be, no, on the whole, with those exceptions. The Government is not significantly repatriating powers.

Q157 Dr Huppert: In fact, the only powers we seem to be repatriating are powers not to share information with other people?

Professor Peers: Yes, Prüm, not to share and to receive information, that is about the information primarily, about the sharing information. The framework decision on probation and parole is about recognition obviously of probation and parole orders, and the mutual assistance convention is about a sharing of evidence.

Q158 Mr Winnick: Professor Peers, I have just been looking-well, I looked previously-at your work: consultant for the European Parliament, European Commission, Foreign and Commonwealth Office, House of Lords Select Committee. Really impressive, genuinely so. What I basically want to ask you, Professor, is this. As far as the cause of justice is concerned, do you feel that the decision that is being taken by the Government is on the right course?

Professor Peers: In principle, I think if we have EU law adopted the Court of Justice ought to have its ordinary jurisdiction over it. According to the rules, it necessarily comes with our decision to opt back in or to apply to opt back into this list of 35 measures, and so I can only welcome the fact that, in principle, the Court of Justice would have its jurisdiction. Having said that, of course there are always going to be some judgments I disagree with. When it comes to the European arrest warrant, on the whole the Court of Justice has evaded opportunities to clarify whether there is a human rights exception and, if so, how it would work in relation to the European arrest warrant.

Q159 Mr Winnick: Other colleagues will be asking you about the European arrest warrant, but if I can put it this way: do you think it will leave our position intact or do you think it would lower or not the reputation of this country as far as justice is concerned?

Professor Peers: Do you mean if we opted out completely?

Mr Winnick: Yes.

Professor Peers: I think if we opted out completely it would have some impact on the reputation of this country.

Q160 Mr Winnick: As far as the measures proposed, do you think that will have a negative effect on the reputation of the UK?

Professor Peers: Given that the Government proposes to opt back into the large majority of the most significant ones, I think that would largely reduce the impact of any reputational damage, which is a phrase that the Government uses in its Command Paper. I think the mere fact we are exercising the opt-out at all does some reputational damage, but then to a certain extent it is fixed-not wholly but partly-by opting back in.

Q161 Mr Winnick: The last question is, would you rather the position stayed as it is?

Professor Peers: Would I rather that we not opt out at all?

Mr Winnick: Yes, exactly.

Professor Peers: It is a done deal, of course. It is a fait accompli. But I think it would have been better not to opt out at all.

Mr Winnick: Thank you very much, Professor.

Q162 Chair: I am going to come to Mr Reckless in a minute but I think Mr Winnick was putting a global point to you about this country’s reputation. Of course, what one views as this country’s reputation in the European Union is one thing, but the country’s reputation as a place where justice is done and attempts to be done-and we have had our mistakes in the past-our general reputation for justice, was built up before we became members of the European Union, wasn’t it?

Professor Peers: I thought he was asking me a slightly different question about our reliability as a negotiating partner, but our reputation-

Chair: Possibly. But British justice does not depend upon the European Union.

Professor Peers: -as a justice system is a different question. I do not think that is damaged by opting out.

Q163 Mr Winnick: No one has suggested that British justice has come about because of the EU.

Professor Peers: No.

Mr Winnick: But, Chair, I think the professor understood the question I was putting.

Q164 Chair: There is a separate point as far as the European Court of Justice is concerned. Do you accept that there is quite a big difference in the position if we opt back into these measures, as far as the European Court of Justice is concerned? Before now the measures concerned were not subject to the European Court of Justice, whereas now, if we opt back into them, they will be subject to the European Court of Justice. Do you see that as a significant development?

Professor Peers: Of course, when you say they were not subject to the Court of Justice’s jurisdiction, that means for the UK. A number of member states did accept the court’s jurisdiction. I think it is a significant difference but I would not overstate it. The Court of Justice has been receiving from the two-thirds of member states, which have accepted its jurisdiction, on average three or four cases a year on these measures. I don’t know why that would necessarily be hugely different, simply because the UK and some smaller member states would all be also accepting the Court of Justice’s jurisdiction for the first time next December. I don’t think that would necessarily be profound. What would be different is that aspects of our Extradition Act, for instance, or other measures implementing the EU’s pre-Lisbon measures, could possibly be interpreted in a different way or even possibly ruled invalid because of a contradiction with the EU’s measures, which the Court of Justice finds, either because one of our courts sends a question to the Court of Justice and that is the answer we get back or because the Commission sues the UK. That is a possibility, yes.

Q165 Chair: Some people have seen in the past a tendency towards federalising in the case of the European Court of Justice. Other people do not but some people do, and it also has a reputation for activism as and when it chooses to become active. Do you think that is possible here?

Professor Peers: It is possible, but I don’t know if this is the right forum or rather that the pre-Lisbon third pillar measures are the sort of area where these issues of federalism and activism get worked out. The bigger concern I have is whether or not human rights are sufficiently protected in the interpretation and application of the law in this area. If the Court of Justice said the European arrest warrant is invalid or part of it on human rights grounds, would you say that is activist or federalist? It is a bit hard to classify what we are talking about almost. From different perspectives that is a court striking down a legislative act. On the other hand, for the critics of the European arrest warrant that might be seen as a great triumph not exactly as an act of centralisation or activism. I find that a bit hard to classify what we are talking about.

Q166 Mark Reckless: Professor Peers, what impact do you think the treatment of Mr Mann and Mr Symeou has had on the reputation of British justice?

Professor Peers: Of course, the main source of the miscarriages of justice that they faced was in Greece and Portugal, and the UK courts felt they had to go along with the European arrest warrants that were issued. That exacerbated the problems that they had faced. It is not so much the UK courts. It is a question of whether it was wise to draft the European arrest warrant the way that it was and to draft any Extradition Act in the way that it was, and perhaps there are some questions about how the British courts interpreted it and whether or not there is already in the Act a broader possibility of refusing surrender on human rights grounds. But primarily the problems go back to our own legislation and the original EU source.

Q167 Mark Reckless: Speaking about source, Professor, your biography we have says your research interests include EU justice and home affairs, EU internal market, EU social law, and that you have worked as a consultant for both the European Parliament and the European Commission. Can I ask broadly what degree of funding you have received from these institutions?

Professor Peers: Obviously, my main source of income is working as a professor at the University of Essex. The funding that I have received: I have worked as a sub-consultant on impact assessment on three or four occasions for European Commission impact assessments and I am usually brought in as giving human rights advice. On each of those occasions I have been paid for about two or three days’ work. Over the course of about five years for the European Parliament I have written about three or four studies and perhaps briefing notes, and been paid for a couple of days’ work each time. It might add up to between 1% and 2% of my income over the last five years.

Mr Winnick: Nothing criminal about that.

Q168 Mark Reckless: Does the University of Essex receive any additional funding from these EU sources?

Professor Peers: Do you mean in direct connection with myself or-

Mark Reckless: Directly or indirectly from EU sources.

Professor Peers: Not in direct connection with myself, no. Obviously, like every other post-secondary institution, we apply for research money that the European Commission administers, and I have been involved in applying. I have not myself been successful via the university, but I am sure that many of my colleagues in other fields have been successful, as have universities across the European Union.

Q169 Dr Huppert: The Committee is very grateful for your expertise in these matters. I see the fact that you have studied in these areas as a positive rather than a negative.

What do you think would be the effect on the perspectives for British justice if through, for example, opting out of all of these procedures we were not able, either to take people who had committed very serious crimes overseas, to get them out to face justice, or indeed to bring people back from other countries, from the south of Spain, for example, to face justice here if we were unable to form joint investigation teams to look into cases? What do you think would be the effects then on British justice?

Professor Peers: If we did not opt back into anything at all, Britain would come to be seen as a kind of Brazil of Europe, without the nicer weather. A place that you would flee to or move assets to, and it would be somewhat difficult to then get you back to a country that wished to try you or enforce a sentence or wish to get hold of your assets. Of course it would not be impossible, because there are Council of Europe conventions that we are party to, but it would be more difficult than it would be otherwise. It would be slow and more difficult, and some people would either not be brought back to this country to face trial after a much longer delay or vice versa. For instance to face trial but other examples as well, such as recognition of fines after criminal convictions where we have not applied the Council of Europe convention in that area. We would have to either sign up to it or negotiate about actual treaties, all of which would take time and be difficult and not as effective as what has been agreed. There is one example in the Government’s Command Paper of the Naples II Convention, leading to a haul of over a tonne of cocaine and being used 2,000 times a year by customs officials. That alone at the very least we should opt back into. It does seem to be tremendously useful in practice.

Q170 Steve McCabe: Can I ask you to sum up what you think the benefits to this country have been of the European arrest warrant?

Professor Peers: It is not entirely beneficial because there are people who have suffered miscarriages of justice. Of course they might have suffered them anyway under the prior regime because, remember, the prior regime, the Council of Europe extradition convention, does not ban extradition of citizens-we did extradite our own citizens before in fewer numbers-and it did not require prima facie evidence. So it is possible that even under the prior system a British judge might have said, "I cannot review the evidence that you give me that Greece and Portugal have violated your rights. I am sorry, I have to accept the extradition request." It could have happened. Miscarriages of justice could happen. Of course, if you go back prior to 2003 there were allegations about particular extraditions being suspect or being miscarriages of justice. There were many cause célèbre that went on before. These sorts of things unfortunately could have happened anyway.

I think the net effect is clear-and the Government gives some statistics in its Command Paper-that a lot more people are extradited both to and from the United Kingdom. From the statistics the Commission has given, this is a much quicker process. It certainly benefits people who consent to their extradition. For them it was a much longer process. It was many months, cut down to half a month I think now if you consent to your extradition. There would be many months usually spent in jail before you were extradited. I think it is definitely beneficial but there are a lot of improvements that could be made.

Q171 Chair: Can I ask you on that point do you think the Home Secretary’s planned changes are going to help in this regard?

Professor Peers: I had a quick look at the amendments that have been made to the Anti-social Behaviour Bill and it does look like they will address a number of problems. Not all the problems. They do not directly address human rights issues, in the sense of where someone alleges there has been a breach of a fair trial in the other country. But in proportionality that is good.

Q172 Chair: Do you think they address the issue of proportionality? You think that is addressed?

Professor Peers: Yes, the drafting on proportionality seems to be a very open clause. It does look quite useful. [Interruption.]

Q173 Chair: I am very sorry, Professor Peers, I think we all have to go and vote. I think we have just about finished with your evidence unless anyone has burning questions. I would like to express the gratitude of the Committee for your coming along today. It has been very helpful indeed.

Professor Peers: Thanks very much.

Chair: Thank you very much.

Sitting suspended for a Division in the House.

On resuming-

Examination of Witnesses

In the absence of the Chair, Dr Julian Huppert took the Chair.

Witnesses: Jodie Blackstock, JUSTICE, Libby McVeigh, Fair Trials International, Isabella Sankey, Liberty, gave evidence.

Q174 Chair: Thank you very much. We are now quorate so we are able to begin. If I can call our three witnesses to the dais we will be able to start. Firstly, thank you all for coming and apologies for the delay. Before I get you to introduce yourselves with your name and where you are from, can I just declare an interest that I used to be on the National Council of Liberty. If we can start on my left with Jodie Blackstock?

Jodie Blackstock: Thank you very much for the opportunity to appear before the Committee. I know it has been a long day for you so I will try to be brief in the answers that I give. I am the director of criminal and EU justice policy at JUSTICE, which is a law reform and human rights organisation.

Isabella Sankey: Thank you very much, Chair. My name is Isabella Sankey. I am the policy director at Liberty, the National Council for Civil Liberties.

Libby McVeigh: Hello, thank you for giving us the opportunity to participate. My name is Libby McVeigh and I am head of law reform at Fair Trials International, which is a defence rights organisation based here in London.

Q175 Chair: Thank you. Since we are running rather late, if I can encourage colleagues to ask short questions and to get short but complete answers. That would be very helpful. To start off with, if I can ask does the Government have its list of 35 JHA measures to opt back into about right? Jodie, your turn.

Jodie Blackstock: From JUSTICE’s perspective, we would largely concur with what Professor Peers said to you earlier. The measures included in the 35 do largely reflect the measures that are the most operational. They cover the necessary mechanisms to maintain the police and judicial cooperation in almost all areas. What does not seem to be included, looking thematically through the list of measures, are those which establish criminal offences and sanctions and penalties. Looking at the Command Paper, the reason for that appears to be we have implemented these domestically and, therefore, we do not lose anything by not being part of them at an EU level, because they were about adopting national law and we have done that. From that perspective, we maintain our relationships with the ability to fight crime and to investigate crime through the measures there. We would welcome the instruments on the list. Obviously our position thus far has been that we would prefer not to have an opt-out. We think it doesn’t send a helpful message to the rest of Europe that, in the interests of fighting crime and improving standards by creating new penalties, you can pick and choose as to whether you take the jurisdiction of the Court.

In terms of what is missing, again I would agree with Professor Peers. There are two measures and one in particular that is of concern to us, which is the framework decision on the alternatives to custodial sentences, the probation measure. That instrument is a helpful measure in our view. Certainly, when we look at concerns about prison conditions across Europe and raising standards by alternatives to custodial sentencing, the UK has a very strong community punishment programme and we ought to be supporting the move towards community sentencing across Europe by being engaged in that measure.

Q176 Chair: Thank you very much. Ms Sankey, what is your position on this?

Isabella Sankey: Thank you, Chair. I should start by saying that Liberty does not take a policy position on European integration, per se. We are a membership organisation and there will be those among our members who are keen on further economic, social and cultural integration and those who are not, so we reflect the three main political parties in that respect. Our mission is as a domestic human rights campaign to ensure and safeguard the rights of people principally here in the UK. As a result of that, we have long expressed concerns about a number of the criminal justice and judicial co-operation measures that have been agreed at EU level. We think that the pioneers of European integration set about constructing a framework for law enforcement, investigation and prosecution without building in incredibly important safeguards to prevent against arbitrariness in justice and arrest. I think the evidence you heard earlier this afternoon from Andrew Symeou and Garry Mann really reflect the scale of human suffering that has been brought about as a result.

In terms of the measures that the Government has indicated they will opt back into, there are many that cause us continuing grave concerns, not least the European arrest warrant and the injustice that results, notwithstanding the reforms that have been proposed recently by the Home Secretary, but also a number of other measures that allow for the sharing of very sensitive information: DNA records, fingerprints, photographs and past criminal conviction information. Recent judgments against the UK, both in the Strasbourg court and domestically, demonstrate that our authorities are yet to understand their human rights obligations to safeguard and respect the private lives of UK citizens. That does not fill us with confidence about the extent to which they will be sharing information with their European counterparts that they should not be sharing.

Q177 Chair: Thank you very much. Ms McVeigh?

Libby McVeigh: Thank you, Chair. Fair trials is a defence rights organisation that designs its policy based on the problems that our casework indicates to us. The only concern that we have had in relation to the opt-out decision has been relating to the European arrest warrant. Our view is that the UK should not opt into the EAW in its current form without seeking to introduce stronger safeguards at the domestic level, and without being reassured of a willingness at the EU level to consider a form of the framework decision. I am sure we will get to the specifics of the reforms in due course but, given that we feel confident that both the Government and Brussels are moving in the right direction in this regard, we no longer have the concerns that we did have regarding opt in to the EAW.

Q178 Chair: Thank you very much. We will pick up the EAW specifically in a moment. Just before that, could I ask a slightly broader question? Some members of this Committee are quite concerned about the role of the European Court of Justice infringement proceedings. There are different perspectives on this. Do you think the UK has anything to fear from the change in jurisdiction there?

Isabella Sankey: I think the UK Government should be clear with Parliamentarians and the public on the implications of submitting to the jurisdiction of the ECJ on these measures that it chooses to opt back into. Terms like "an activist court" and those kinds of very subjective terms are unhelpful. I think any system of law, whether it is supranational or national in its focus to be sustained, maintained and to have credibility, is going to require the independent application of laws. So submitting to a court’s jurisdiction, if you choose to do that you need to then abide by the judgments of that court. It is no use further down the line accusing that court of being too interventionist. I think it is very important to be clear at the outset the jurisdiction that we would be submitting to if we opt into the EAW and other measures, and also submit to the court’s jurisdiction that we would be required to do.

Q179 Chair: You are comfortable with submitting to that jurisdiction?

Isabella Sankey: We are not comfortable with opting into a number of these measures, therefore, we would not be comfortable with also the enforcement that goes alongside that.

Libby McVeigh: Fair Trials believes in the rule of law, and our position is that we welcome the idea that the CJEU would have jurisdiction over a whole range of EU-wide measures. If you have a legislature that is passing legislation, it is necessary to have an independent court to ensure the consistent application and clarification of those laws. We do not think that there is value in these comments about judicial activism. Our position is that we would hope that the court could be more activist in certain areas, particularly in relation to protection of fundamental rights. Certainly, from our reading of the case law, the court does have a tendency to be deferential to member states’ interests in a lot of these areas.

Jodie Blackstock: We largely agree with Fair Trials International’s position. It is also important to be realistic about when the Court is engaged. In the sense of the infraction proceedings, which the Home Secretary pointed to in announcing the list of the 35 measures, that will only occur once the Commission has reviewed implementation of the measure. There will be a dialogue between the member state and the Commission as to whether in fact that measure has been implemented correctly or not. Other mechanisms can be used, different wording can be used. It will not be an automatic trigger where the UK finds itself before the Court of Justice. If we look at the annual report of the Court of Justice, the UK appears there on infraction proceedings perhaps two or three times a year so this is not going to produce a volume of litigation that the UK ought to be concerned about.

Certainly our review of the measures that are on this list of 35 is such that we have implemented these measures correctly. It is unlikely that the Commission will be seeking infringement proceedings against the UK in any event, but we concur with the Fair Trials position, which is that we welcome the jurisdiction of the Court of Justice. It is a court that exists to interpret EU law in a uniform manner across the EU. Going forwards, it will have the power to use the EU Charter of Fundamental Rights to raise standards across the EU. That is something we should welcome. When we are expressing frustrations about the way the European arrest warrant operates in practice, that Court is the court that is capable of expressing ways of improving the instrument through its fair trials and its human rights mechanism. We should welcome it.

Q180 Mr Winnick: Due to a conspiracy, those who would strongly disagree with you are not here at present, but we organised that accordingly.

I believe you heard the evidence of two witnesses who gave their experience-very negative experiences to say the least-of the European arrest warrant. You were in the room, I believe, the three of you. I suppose you could argue, well, whatever good any measure is there are some who will suffer consequences that are far from good. But can I ask you this question, do you think overall it serves the cause of justice for the European arrest warrant to continue as it is at the moment, before the measures that are to be taken by the Home Secretary? Ms Blackstock?

Jodie Blackstock: Since the inception of the European arrest warrant, we have expressed that it has flaws. Certainly, we would have wanted to see procedural safeguards in place, protecting the fair trial process across the EU, before that instrument was brought into force, but the reality is, without the European arrest warrant we still have an extradition process. Those people who cross borders between EU member states will still be embroiled in criminal activity. There has to be a measure by which that criminal activity can be processed. By and large, the European arrest warrant shortens the procedure. It entitles a person to legal representation. It has a judicial process before a court. Those things have to be welcomed and, by and large, we do support the European arrest warrant in comparison to the prior extradition procedure that we had under the European Convention.

There is a report that we prepared that I have given to your clerk. Following two years of reviewing the European arrest warrant in practice, which we published last August. We list there a number of flaws in it, many of which are picked up in the amendments that we may come on to in a moment. One of the fundamental problems is training. Training defence lawyers in understanding how the process operates and being able to represent their client in both jurisdictions, issuing and executing states. That requires a lawyer in both countries with expertise in both countries’ law. In the case of Garry Mann in particular, one of the fundamental problems is that he was let down by his lawyers in both countries. Had he had adequate representation in Portugal and in the UK, his arguments would have been before the court and he may well have been in a different situation.

Q181 Mr Winnick: Is it lawyers here or lawyers in both countries?

Jodie Blackstock: In both countries.

Mr Winnick: Including Britain?

Jodie Blackstock: Yes, they missed the appeal deadline and therefore his arguments, his evidence, could not be brought before the court. That was not a problem with the process. It was a problem with the training. So there are a number of aspects that are wrong in the procedure.

Q182 Mr Winnick: Let down by lawyers. Ms Sankey, championing civil liberties as always, are you in favour of the European arrest warrant as it is?

Isabella Sankey: Not as it currently is, Mr Winnick. I should probably say here that Liberty disagrees with JUSTICE on this point, and I should be clear about that I think.

Q183 Mr Winnick: If I can take over the role of the Chair for a second-a temporary Chair-we are running out of time, and we are very keen to finish. If I am correct, I think the Chair has in mind about half past five, so if you could keep it brief.

Isabella Sankey: I will be brief. I will keep it very brief. In our view, it is not a question just of training and problems with implementation. There are profound problems with the legal mechanisms and the law that we have. As a result it is very blunt. It allows for automatic surrender, and the very important component of judicial discretion has all but been wiped out of these very important decisions. Even if you have Rolls Royce justice systems across the EU-which I think we can all agree we don’t-extradition is still a trauma in and of itself, which is why you need basic procedural safeguards, like prima facie case, like a dual criminality requirement to ensure that you do not see cases like Garry Mann’s and Andrew Symeou’s. Before we have those procedural safeguards put back in place we think it would be very unwise for the UK to continue to be part of this automatic system of surrender.

Q184 Mr Winnick: Thank you. Do you have anything to add? Do you agree or disagree with your two colleagues?

Libby McVeigh: I would say Fair Trials would sit somewhere in the middle, in that in its current form we do not believe that the EAW serves the interests of justice. I think the evidence of Andrew and Garry earlier-two of our clients-speaks very clearly as to why that is. However, we do think that reforms can be made domestically and at the EU level to address the concerns we have. We think that the reforms that have been proposed by the Home Secretary do go in the right direction and take us a certain way forward in meeting our concerns. We do not think that they are perfect. We would hope that they may be strengthened and we think that there are gaps to be filled, particularly in relation to the protection of fundamental rights.

Q185 Mr Winnick: Ms Blackstock’s view that in the two cases we heard today, the witnesses who gave very articulate evidence about their misfortunes abroad, would you agree it was the lawyers at fault?

Libby McVeigh: I think Ms Blackstock was referring specifically to Garry Mann’s case not to Andrew Symeou’s case. I think Mr Mann’s case is a complicated one but I would disagree that it was all down to the lawyers.

Q186 Mr Winnick: Some of it?

Libby McVeigh: I think there were mistakes made by lawyers in both jurisdictions, but I think the mistake made by the lawyer in terms of missing the appeal deadline in this country is one that to a certain extent is met by the proposed reform relating to flexibility on the appeal deadline that has been proposed in the Anti-social Behaviour, Crime and Policing Bill. So I do not share exactly that view. I think that there are definitely fundamental rights issues in both cases.

Mr Winnick: In order to try and meet our deadline I think we ought to have Mr McCabe.

Chair: Thank you. Yes, Steve McCabe.

Q187 Steve McCabe: I will be nice and brief, Chair, but let me just ask you if the UK succeeds in opting back into these 35 measures that have been proposed, will the opt-out have succeeded in repatriating powers to this country?

Isabella Sankey: It is a very interesting question and I do not think there is a straightforward answer. As the Home Office documents make clear, with some measures that are being opted out of, domestic law, either pre-existing domestic law or domestic law as it now is, already implements what is required. In a sense we have repatriated power in that we have it in our domestic law and we are not required to have it there anymore but, in effect, there will not be much change. Submitting to the jurisdiction of the court in this area will mean that powers have been sent back in the other direction, and I think it is very important in the report that this Committee writes to make absolutely clear the areas in which we will be submitting to greater jurisdiction of a supranational body and where we won’t be. I think to a large extent there has been some muddying of the waters in some of the political messaging around the opt-out.

Q188 Steve McCabe: Is that a view shared by all three?

Jodie Blackstock: JUSTICE would probably be more succinct in saying it does not appear that we repatriate much in the list that we have. By and large, the powers that the EU institutions and bodies operate are retained in the 35 measures. We welcome that because these are bodies, such as Europol and Eurojust, that are very important. There are information sharing systems that are useful to UK interests that are on that list, such as the transfer of convictions, for example. Those are powers in the context of prosecuting crime that will continue to be held across Europe. They are not repatriated at all. In the sense of what might be repatriated on the list, I cannot see anything in particular there. I may well have missed something, but the majority of these measures that are not on the ‘35’ list relate to existing criminal offences in this country and obsolete measures that we were not using anyway, so powers were not sent to the EU in any event.

Q189 Steve McCabe: Is that your view?

Libby McVeigh: As an organisation that adopts neither a pro nor anti EU position-and we can only speak from the position of law-certainly the opt-out will see the UK subject to 100 fewer measures and from our conversations in Brussels this is a move that is not being treated as insignificant. While the measures themselves may not be viewed as significant, the actual move is being treated as such and the UK is clearly sending a very clear message as to how it wishes to proceed.

Q190 Steve McCabe: I want to try to draw that distinction. I do not doubt that the UK would be subject to fewer measures, but I was wondering does that mean that they have repatriated power. That was really the point.

Isabella Sankey: What is interesting about the 35 measures that have been opted back into is that they are perhaps the most coercive, so the ones that place obligations on our enforcement to share information, the ones that allow UK citizens to be parcelled off to a foreign jurisdiction without what we would say are basic safeguards. As Ms Blackstock said, a lot of the measures that we are opting out of to a certain extent seem obsolete or they are already exist in law. The ones we are opting back into are perhaps those more coercive ones that have much more impact on UK based individuals. On top of that, the jurisdiction of the court will now apply in relation to determining whether the UK has complied with those obligations, so on balance perhaps repatriating powers in the other direction.

Q191 Steve McCabe: Thank you. One more, Chair? I think Ms Blackstock touched on this. I just wonder about some of the opt-in measures. You mentioned Eurojust. We have European Criminal Records Information System, the Schengen information system. How operationally interdependent are these with other opt-in measures. Is it possible to segment it in quite the way that some people have suggested?

Jodie Blackstock: I suppose I could talk about that but you would be better speaking to a law enforcement operator. I think Steve Peers gave helpful evidence on that in that he thought the list from a coherence point of view, which is what the Commission is looking for in terms of packages of measures, that would be acceptable.

In my view, all the Schengen measures largely have to come together. It would be difficult to separate those. They are integrated in terms of how the system operates. Equally measures on exchanging of criminal records, there are three of those. They are all on the list together and it would be difficult to take them separately. When it comes to looking at things like the European arrest warrant as compared to taking account of criminal records, they do entirely different things and there would not be any problem with taking the European arrest warrant and not taking the records information system, for example. Certainly the 35 are not fully integrated. They do not stand and fall together. What they do do is provide mutual recognition. Pretty much all of them are mutual recognition instruments that, as Ms Sankey suggested, deal with treatment of individuals and individual’s data rather than the creation of offences, per se.

Chair: Brief comments if you would not mind.

Isabella Sankey: Very briefly, I would echo what Ms Blackstock said that we are not best placed to talk about the operational interdependence. I also agree that it is clear because some of them deal with very different things, previous criminal convictions versus a pending prosecution that many of them will be divisible, as I think I said in answer to my first question. Our very real concern is that before we start sharing past criminal record conviction information, which will probably include cautions as a result of how our databases are currently constructed, DNA and so on, the UK looks to put its own house in order about the extent to which excessive amounts of information are held by law enforcement.

When the Police National Database went online-I think back in 2011-it was reported that a quarter of the UK population are on there. It includes information about suspects, soft information, conviction information, caution information and also information about vulnerable witnesses and victims. It is our very real fear that the more this type of information is shared beyond our borders, without appropriate safeguards, you will see very counterproductive results.

Libby McVeigh: I have nothing further.

Q192 Chair: Thank you. One very quick question from me, and if you cannot answer it in a sentence please feel free to write. Do you think the European supervision order will mitigate some of the concerns about the European arrest warrant?

Libby McVeigh: In brief, we are delighted to see that this is being opted into. We think it goes a long way to addressing certain of the concerns. I think it could have had a great impact in Andrew Symeou’s case in avoiding his pre-trial detention. I do not think it addresses all of the issues, and I think its impact depends on other member states agreeing to implement it and doing so in individual cases. I think that is something that will take time.

Isabella Sankey: I wholeheartedly agree with that analysis of the European supervision order. I would echo the fact that in Andrew Symeou’s case it would not necessarily have made all the difference. If British judges are not able to look behind a request such as that, where there has clearly been abuses of process, you are not going to find yourself in a much better situation. It is another sort of centralising measure to deal with an awkward situation but I do not think it will be the answer.

Jodie Blackstock: It is disappointing it comes nine months late as an announcement. We should have implemented it in December. It has the potential to make a big difference to pre-trial detention. It is a complex measure and we will have to wait and see how the UK seeks to implement it and how the member states interpret it as well. It may be one for the Court of Justice to assist us in finding a uniform interpretation.

Chair: Thank you all very much. I am sorry for keeping you waiting, and thank you for giving us the ethical problem of what to do when Justice and Liberty disagree. Thank you all very much.