Home AffairsWritten evidence submitted by the Home Office [JHA 00]

Government Response to Home Affairs Select Committee call for Evidence

Thank you for your ongoing interest in the 2014 opt-out decision.

Please find the Government’s written evidence attached to this letter. I apologise for the slight delay in providing this. I thought it would be helpful to provide some further information, in addition to the Explanatory Memoranda contained in Command Paper 8671, concerning some of the high profile measures included in the set of 35 measures we will seek to rejoin. I hope this will help to inform your consideration of this matter further and is useful in preparing your report.

I look forward to appearing before your Committee on 15 October to give further evidence on this matter and other Home Office business.

I am copying this letter to the Justice Secretary, the Rt. Hon. Chris Grayling; the Chairman of the European Scrutiny Committee, Mr William Cash MP; the Chairman of the Justice Select Committee, the Rt. Hon. Alan Beith; the Chairman of the House of Lords European Union Committee, Lord Boswell; and Deborah Maggs, Home Office Departmental Scrutiny Coordinator.

The Rt Hon Theresa May MP
3 October 2013

Government’s Response to Home Affairs Select Committee call for Evidence: 2014 JHA block opt-out: Home Office Measures

1. The Government is committed to rejoining those measures where it is in the national interest do so. As I said in my Statement on 9 July, as people have become more mobile in recent years, so too has crime. We are seeking to rejoin those measures that underpin cooperation in the fight against organised crime and protect the British public.

2. While detailed analysis of each individual measure is included in the five Explanatory Memoranda contained in Command Paper 8671, I have set out more of the Government’s reasoning for wishing to rejoin a number of the more high profile measures where the Home Office has lead responsibility. These are the European Arrest Warrant (EAW), the European Criminal Records Information System (ECRIS), Eurojust, Europol and Joint Investigation Teams (JITs). Although not the responsibility of the Home Office, I have also provided further information on Naples II: the Justice Select Committee is focusing on the measures for which the Ministry of Justice has responsibility and, as such, this measure would not otherwise be included in the Government’s evidence.

EAW

3. The EAW is perhaps the most high profile measure within the scope of the 2014 decision. Law enforcement partners have made it clear that the EAW is a vital tool in combating cross-border crime and keeping our streets safe. In their evidence to the House of Lords European Union Committee Inquiry, the Association of Chief Police Officers (ACPO) were clear about the value of the EAW in terms of safeguarding the British public and in evidence to your Committee on 3 September, Sir Hugh Orde stated that the EAW is “at the top of our list” and “an essential weapon” in the fight against crime. Keir Starmer, the Director of Public Prosecutions, was also clear that the EAW is a hugely beneficial instrument. Between April 2009 and April 2013, 5,184 people were arrested under an EAW in England and Wales, and 4,005 were surrendered to another EU country. Of those surrendered 181, or 3.5% of those arrested, were British nationals. Over the same period, 507 people were surrendered to the UK from another EU country, 277 being British nationals.

4. The extradition of Hussain Osman shows the effectiveness of the EAW. Osman was swiftly surrendered by Italy to the UK and convicted of his involvement in the failed 21 July 2005 bombings in London. On 29 July 2005 the Metropolitan Police sought and obtained a warrant for the arrest of Osman and additionally sought an EAW, which was transmitted to the Italian authorities on the same day. He was arrested that day and was returned to the UK on 22 September 2005 and charged.

5. Another example is the case of Jeremy Forest, the Sussex schoolteacher who abducted a pupil to France in September 2012. On 25 September an EAW was issued for his return to the UK and, in October, he consented to his return to the UK and was surrendered under an EAW on 10 October. He was charged with child abduction by Sussex Police later the same evening. He was found guilty in June 2013 and jailed for five and a half years.

6. As these cases show, the EAW can, and does, facilitate swift access to justice—returning serious criminals to the UK is possible within weeks. By contrast, return under other arrangements can take months or, in many cases, years.

7. In terms of surrender from the UK to another country, it takes approximately three months to extradite someone under an EAW. A Part 2 extradition (ie extradition to non-EU countries) takes approximately ten months but can, and often does, take considerably longer. The swift return of Hussain Osman to the UK can be contrasted with the protracted extraditions of terrorist suspects including Abu Hamza, Babar Ahmad, Syed Ahsan, Khaled Al Fawwaz and Adel Abdul Bary to the US.

8. Before the EAW, a number of Member States did not allow the extradition of their own nationals. We know that many of Member States have constitutional bars to the surrender of nationals, and the following countries made reservations to the 1957 Council of Europe Convention on Extradition (ECE) making clear that they will not extradite their own nationals under that system: Bulgaria; Croatia; Cyprus; Estonia; France; Germany; Hungary; Lithuania; Luxemburg; Netherlands; Poland; Portugal; and Romania. Even those Member States who did not make reservations to the ECE could still refuse to extradite their own nationals. Under previous arrangements, there were numerous instances—particularly in the 1980s between France and Italy—of alleged terrorist offenders going unpunished because of the constitutional bars on the surrender of nationals. Under the EAW, however, Member States are precluded from refusing the surrender of their own nationals in prosecution cases because it is a system of judicial surrender, rather than extradition.

9. The case of David Heiss, a German national who murdered British student Matthew Pyke on 19 September 2008, is one such example. Heiss developed an obsessive infatuation with Pyke’s girlfriend, Joanna Witton, and travelled to Nottingham both in June and August 2008 to meet Witton and Pyke in person. During his last visit to the UK, on the morning of 19 September 2008, Heiss proceeded to kill Matthew Pyke after stabbing him 86 times. An EAW was issued on 25 September 2008. Heiss was arrested at his home in Limburg on 27 October 2008. He was surrendered to the UK on 25 November 2008. Heiss, who denied the murder charge and said he was acting in self defence, was found guilty at Nottingham Crown Court, and on 5 May 2009 he was sentenced to a minimum of 18 years in prison.

10. Tomasz Marczykowski is a Polish national who was returned from Poland to the UK in March 2010 to face trial for sexual activity with a child. Marczykowski pled guilty at his trial and was sentenced to four years under the Sexual Offences Act 2003, handed a seven year Sexual Offences Prevention Order, and was placed on the sex offenders register indefinitely.

11. Under the ECE it is very likely that these, and many other dangerous criminals, would not have been returned to the UK to face justice. Since 2009, over 100 people have been returned to the UK from countries that did not extradite their own nationals under the previous extradition systems. Given many Member States have constitutional bars to the extradition of their nationals it is highly unlikely that they would agree to the surrender of their own nationals under any alternative bilateral arrangements that were put in place.

12. Operation Captura shows the role of the EAW in the fight against serious organised crime. This operation was launched in Spain in 2006 and is a joint initiative between Crimestoppers, SOCA and the Spanish Police to target fugitives from British justice who are believed to be resident in Spain. To date, the details of 65 individuals have been circulated. 53 of those have since been arrested. In July this year, convicted drug trafficker Mark Lilley, from Warrington, was arrested in Malaga. He had been on the run since 2000 when he skipped bail during his trial. He was sentenced to 23 years in his absence for masterminding a large-scale drug operation and firearms offences. Lilley was surrendered by Spain to the UK on 5 August and is now detained at Her Majesty’s Prison Belmarsh.

13. While the Government recognises the operational importance of the EAW, we have been clear that there are problems with its operation. In October 2012 I raised particular concerns about the disproportionate use of the EAW for trivial offences, the lengthy pre-trial detention of some British citizens overseas and the use of the EAW for actions that are not considered to be crimes in the UK. The Government has addressed these concerns by proposing amendments to the Extradition Act 2003, which were introduced through the Anti-Social Behaviour, Crime and Policing Bill on 10 July. These reforms build on the recommendations made by Sir Scott Baker in his review of the UK’s extradition arrangements, the practices of other EU Member States and the fundamental rights and legal principles that are enshrined in EU law. As I said in my Statement on 9 July, cooperation on cross-border crime is vital, but we must also safeguard the rights of British citizens, and the changes that we propose will do that.

ECRIS

14. ECRIS allows Member States to obtain details of the previous convictions of EU nationals. This allows courts to make the right bail decision, take bad character into account and, on conviction, give sentences which reflect previous offending history. This type of exchange makes our streets safer.

15. For example, in the case of “GA”, a Romanian national who was accused of raping a prostitute and a vulnerable female adult, previous conviction information revealed that he had a conviction for rape in Romania. An application to use the previous conviction as bad character evidence was accepted. On being sentenced to an indeterminate prison sentence with a recommendation that he served at least 11 years in jail the judge remarked on his previous conviction and the similarity of this offence to the Romanian one. Without ECRIS, UK authorities would have been unaware of GA’s offending history. The sentence reflected the previous offending, and there is evidence to suggest that the previous offending was significant in securing the conviction.

16. Another example of the benefit of this type of exchange is the case of a UK national, “W”, who was convicted in France for importing pictures of minors presenting an indecent character with a view to circulating, and possession of an indecent image of a minor. W was sentenced to one year and six months’ imprisonment, of which one year has been suspended. W had no previous UK record and, without criminal record exchange, UK authorities would not have known of W or his previous conviction. Knowing that he had a conviction for child sex offences allowed him to be placed on the UK Sex Offenders Register and so become subject to monitoring in the UK.

17. Before EU criminal records exchange, information relating to previous convictions was not shared between Member States to the same extent. Under the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, the UK did not send any notifications to other Member States detailing convictions of their nationals in the UK, nor did we send any requests to other Member States for the previous convictions of their nationals being prosecuted in the UK. We received very few requests for the previous convictions of UK nationals being prosecuted in another Member State and relatively few conviction notifications for UK nationals. By contrast, since May 2012 France alone has sent 1909 notification messages1 to the UK and the UK has sent 887 notification messages to France.

18. As ACPO said in their evidence to the House of Lords European Union Committee Inquiry, “[t]he exchange of criminal antecedent information is a critical part of ensuring justice is done and that the public are protected from harmful people”.

Eurojust

19. The case of the murders in Annecy in France in early September 2012 demonstrates the value of Eurojust. Following slow progress in the first week of the case, proactive involvement by the UK and French National Desks at Eurojust helped drive progress in the case. Within a week of Eurojust’s involvement, a two day meeting on site in Annecy was held between judicial and investigative authorities of the UK and France which led to the creation of a JIT. Issues relating to the functioning of the JIT were negotiated and agreed, including secondments of officers from UK to France and vice versa. The UK and French National Desks at Eurojust were instrumental in chairing the meeting and clarifying the legal and procedural options in each country. The existence of the JIT meant that information could be shared between states in real time, and that a direct dialogue—including regularly via Eurojust—could overcome potential misunderstandings arising from diverse legal procedures.

20. This case demonstrates the value of Eurojust’s role in supporting cooperation and coordination amongst competent authorities in cases of serious cross-border crime. This helped support progress that led to an arrest in England on 24 June 2013 of a person for “conspiracy to murder”.

21. Although JITs are established under a separate EU instrument, Eurojust currently administers a JIT funding project. Eurojust has awarded a total of €165,156.25 in funding for the Annecy JIT. As of 6 June 2013, Eurojust had awarded a total of €1,823,379 in funding for JITs involving the UK since December 2009.

22. Eurojust also provides practical support by organising coordination meetings. This involves bringing representatives together from Member States (or any other countries involved) early on in the process of investigating or prosecuting a particular case to agree how the relevant parties will work together and to exchange information. For example, the removal of foreign national offenders to Lithuania had been virtually halted following the ruling earlier this year in the Campbell EAW case2 that conditions in Lithuanian prisons would breach Article 3 of the European Convention on Human Rights, rights of surrendered detainees. The Lithuanian government offered to detain prisoners in a named prison (Kaunas) and a number of test cases were listed in England & Wales to determine whether the new arrangements were Article 3 compliant. The Crown Prosecution Service (CPS) had struggled to obtain information needed from Lithuania in relation to the test cases. Of particular concern was an apparent refusal by Lithuania to allow a defence expert to inspect Kaunas prison. Lithuania was frustrated about what they saw as repeated and unnecessary requests for information and working level relationships were becoming strained.

23. In order to broker a solution, the UK desk at Eurojust requested a coordination meeting with Lithuania in early June 2013 and, working closely with the Lithuanian desk at Eurojust, was able to arrange a meeting with the relevant officials in Lithuania. As a result of the meeting, defence expert access to the prison was allowed and more robust assurances were provided about the use of Kaunas prison. Additionally, Lithuania agreed to provide further evidence about pre-trial detention conditions. On 9 August 2013 the Senior District Judge in the Westminster Magistrates’ Court ordered the extradition of the seven individuals who featured in the test case, with leave to appeal. Some issues remain to be resolved about the use of Kaunas prison but ongoing dialogue is taking place with UK desk support.

24. The Director of Public Prosecutions, Keir Starmer QC, said, in evidence to the House of Lords European Union Committee Inquiry, that there are a “number of examples of very positive outcomes where we have been able to progress serious cases in this country using Eurojust, ranging from rape trials, drug importation and animal rights extremists”.

Europol

25. Europol makes a valuable contribution to the UK in tackling the fight against organised crime, other forms of serious crime and terrorism. Europol has provided operational support to EU law enforcement agencies and JITs and provides tactical and strategic analyses to cross-border operations delivering tangible and quantitative outcomes.

26. One example is Operation Rescue, an operation led by the UK’s Centre for Child Exploitation and Online Protection (CEOP), which involved cooperation between the UK and Australia, Belgium, Canada, Greece, Iceland, Italy, the Netherlands, New Zealand, Poland, Romania, Spain, and the United States.

27. Europol provided the following support to this operation:

Cracked the security features on a seized copy of the server enabling them to rebuild the forum offline and forensically interrogate;

Distribution of 4202 operational intelligence reports to 25 EU Member States and eight other countries which identified links between this network and those featured in multiple other investigations; and

Analysis of the computer server and the identification of the members of the child sex abuse network. This facilitated operational action by police authorities in multiple jurisdictions and led to the arrests of suspects and the safeguarding of children.

The operation resulted in the following:

At least 230 children safeguarded worldwide, 60 of whom were in the UK—the highest number of children safeguarded ever achieved from this type of investigation;

At least 184 offenders arrested worldwide, 121 of who were arrested in the UK.

28. Another investigation targeting a network facilitating illegal migration into the UK involved collaboration between France, Portugal and the UK, supported by Eurojust and Europol. This resulted in 12 arrests on a named day of action, six of which were in France and six in Portugal. Simultaneous house searches in France and Portugal resulted in the seizure of documents, money, bank statements, mobile phones and other supporting evidence. There was also one arrest in the UK and four additional arrests in France.

29. Another example is Operation SEAGRAPE. In July 2012 information from French and Belgian police was passed to Europol about a people smuggling gang based at a camp near Dunkirk. Analysis by Europol identified a series of British phone numbers and British bank accounts which were regularly in use by the smuggling gang leaders in France and Belgium. These details were then passed to the former UK Border Agency (UKBA) who linked these numbers to 37 UK residents, all of whom were linked to this smuggling gang. Further support from Europol enabled French, Belgian and British officers to plan a coordinated joint day of action across all three countries in February this year. Both Europol and Eurojust supported operational teams across the UK, France and Belgium, which resulted in a total of 36 arrests, 20 of which were made in the UK by UKBA officers. This is an example of how the UK has engaged with Europol and other Member States to target an organised crime group, arrest its leaders and seriously disrupt its activities.

Joint Investigation Teams

30. JITs combat cross-border crime by allowing investigations to be conducted in a coordinated manner between Member States. Our consultation with law enforcement partners has made it clear that this is a valuable tool for cooperation at the EU level; some of the benefits of JITs have already been highlighted in the Eurojust and Europol sections above.

31. Operation Sherston, a JIT between the UK and Netherlands, led to the conviction of British national John Patrick Sweeney for murders in the UK and the Netherlands. Evidence linked Sweeney, who was already serving a sentence for attempting to murder Delia Balmer, to the murders of Melissa Halstead, an American national whose dismembered body was discovered in a canal in Rotterdam, and Paula Fields, a UK national whose dismembered body was discovered in the Regent’s Canal, King’s Cross.

32. In 2008 a Dutch Cold Case Review investigation was launched into the murder of Melissa Halstead and, in 2009, police cooperation was initially established between the Dutch Cold Case team and the Metropolitan Police. Following a number of meetings a JIT, facilitated by Eurojust, was established. In 2011 Sweeney was charged and convicted of both murders in the UK. Dutch representatives were present throughout the proceedings. Neither case would have been able to be prosecuted without cooperation of this kind.

33. Another example of a successful JIT is Operation Fry. A JIT with the Netherlands targeted the abuse of Free Movement through sham marriages. To date this has led to 122 arrests, with 77 convictions, with sentences totalling 101 years. It has also allowed us to initiate action to remove non EEA beneficiaries of such sham marriages from the UK.

34. Another is Operation Golf, a JIT between the Metropolitan Police and the Romanian National Police focussing on human trafficking for forced criminality. This operation resulted in the convictions of 80 individuals involved in the network. This represents the first convictions in the UK for trafficking a child for exploitation through forced criminality. Additionally, 28 children were safeguarded from trafficking and exploitation and/or neglect by the network.

Naples II

35. The Naples II Convention strengthens our borders by enabling a range of operational cooperation between the relevant agencies in EU Member States to combat criminal customs offences. It allows for the exchange of information before, during and after customs offences take place. Examples of cooperation include “controlled deliveries” where illicit consignments are followed to their destination instead of being seized at the first opportunity, requests for surveillance by another Member State, and JITs.

36. An example of activity under Naples II is Operation Almagro. This was a joint operation between French and UK border officials which uncovered regular smuggling of Class A drugs from France to the UK, using micro light aircraft. 63kg of methamphetamine and 6.2kg of cocaine were seized, with a total value of approximately £1 million. Three British nationals were arrested in France and are awaiting sentencing.

37. In 2011 information shared between the UK and law enforcement agencies in France and Germany under the Naples II Convention resulted in the seizure 1.2 tonnes of cocaine (the biggest cocaine seizure in the UK to date) and the arrest of an international drug smuggling gang.

38. Information sharing, surveillance and controlled deliveries under Naples II also assisted a number of successful HMRC investigations into cigarette and alcohol fraud, and an oil laundering operation in 2011. These successes prevented over £120 million in potential revenue losses to the UK Exchequer.

Home Office
October 2013