Home AffairsWritten evidence submitted by Helen Malcolm QC [JHA 01]

1. My name is Helen Malcolm QC. I am Vice Chair of the Bar Council’s EU Law Committee and Chair of its Criminal Law Subcommittee. I am also the UK’s representative on the Criminal Law Committee of the CCBE (Council for the Combined Bars of Europe). I am an extradition and fraud specialist with nearly 30 years’ experience of transnational crime, extradition and mutual assistance.

2. I submit these comments in my personal capacity.

Do you agree that it is in the national interest for the UK to seek to rejoin any or all of those measures falling within the Home Office’s remit which the Government has indicated that it will seek to rejoin?

3. I have no doubt that it is in the UK’s interest to seek to rejoin all the measures which the Government has identified. In particular, it is of absolutely vital importance to rejoin the European Arrest Warrant, for all the reasons that I have already set out in evidence to the House of Lords EU Committee Enquiry, and further at the seminar arranged by that Committee on 26th June 2013.

4. In addition, it would be useful to opt back into the Framework Decision on the mutual recognition of probation and alternative sanctions. That would (1) show consistency with the desire to opt into the FD on custodial measures; (2) would send the right message, promoting non custodial measures where possible/appropriate; and (3) it is in fact more important from a rehabilitation point of view that defendants serve non custodial sentences in their home countries, than custodial.

5. The European Judicial Network is also a useful network and training tool. We should opt back in.

6. As to the Convention on Mutual Assistance in Criminal Matters, the argument for not opting in is that it will be replaced by the European Investigation Order- but that is not yet in force. If the EIO is not ready for use then (arguably) the UK may fall back on the 1959 Mutual Assistance Convention—but that carries all the same problems as falling back onto the 1957 European Convention on Extradition that I have already given evidence about. Further, it was replaced because it was perceived to need improvement.

Do you have any comments on the analysis of policy implications and fundamental rights provided in the Home Office’s Explanatory Memoranda?

7. This is potentially a vast question; but it is very difficult to answer without any information as to the evidence used to reach the various judgements. As an example, para 233 contains the following comment re the EJN:

“Practical experience has shown that the contacts are not always the right people to speak to; often the contact points have a coordinating role. We judge that practitioners will know the names and numbers of people they need to speak to regularly.”

8. What does the reference to “practical experience” mean? Whose experience? On what basis do you “judge”?

9. In relation to the EAW at para 80, it is said that:

“Particular concerns have been raised 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.”

10. Whilst it is correct as a general comment that such concerns have been raised, often that has been in the (Eurosceptic) Press. Without any evidence in the Command Paper as to the person(s) raising the concerns and their experience, and without evidence of the number of instances actually found, it is difficult for anyone reading the paper to form a balanced view.

Do you consider any other factors should be taken into account in deciding whether the UK should seek to rejoin each measure?

11. At this stage, the most important issue is the speed with which decisions can be taken. Whatever decision the Government reaches about opting back in to individual measures, it is of the utmost importance that it is implemented fast. Time is running very short already and it will be absolutely vital to ensure that the transitional provisions are agreed, in place, and (most importantly) widely publicised both in this country and in the other Member States if we want to try and minimise damage to the efficient administration of justice. There is scope for considerable confusion amongst those on the front line of administering criminal justice, if required to deal at short notice with the unusual position of the UK. Police officers, judges and others in the Member States, as well as in the UK, will require training and information about the new measures and how they will apply; and also how they will interact with measures the UK may have chosen not to opt back into.

12. I would be happy to make myself available to give oral evidence if that would be of any assistance to the Committee.

Helen Malcolm QC

September 2013