Session 2010-11
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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 767-i

House of commons

HOUSE OF LORDS

oral EVIDENCE

TAKEN BEFORE THE

Joint Committee on Human Rights

The Human Rights Implications of UK Extradition Policy

Tuesday 1 February 2011

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing

Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

Evidence heard in Public Questions 1-58

USE OF THE TRANSCRIPT

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Members present:

Dr Hywel Francis (Chair)

Lord Bowness

Baroness Campbell of Surbiton

Lord Dubs

Dr Julian Huppert

Mr Dominic Raab

Mr Virendra Sharma

Mr Richard Shepherd

________________

Examination of Witnesses

Witnesses: Catherine Heard [Head of Policy, Fair Trials International], Jodie Blackstock [Barrister and Senior Legal Officer, EU Justice and Home Affairs, Justice], Sally Ireland [Director of Criminal Justice Policy, Justice] and Sophie Farthing [Policy Officer, Liberty].

Q1 The Chairman: Good afternoon and welcome to this public session of the Joint Committee on Human Rights. For the record, could I explain that this is a session dealing with a better understanding of the key human rights issues around UK extradition policy. Could you all please introduce yourselves?

Sophie Farthing: I am Sophie Farthing from Liberty, the National Council for Civil Liberties.

Catherine Heard: Catherine Heard from Fair Trials International.

Sally Ireland: I am Sally Ireland. I am the Director of Criminal Justice Policy at Justice and I will be speaking about the non-EU aspects of extradition.

Jodie Blackstock: I am Jodie Blackstock. I am the Senior Legal Officer on EU Justice and Home Affairs matters at Justice and I will be speaking on the EU aspects.

Q2 The Chairman: Thank you very much. We hope that you will be aware of the fact that we have a limited amount of time. Please take your time when you are answering the questions, but if you feel that one person has adequately answered everything, there is no need for everyone to have a go at it; otherwise, we will be here four times the length of time, so to speak.

Could I begin by asking a very simple straightforward question? Can you briefly comment on the rights that may be engaged by extradition proceedings of a person under the Extradition Act 2003? Who would like to answer that?

Sophie Farthing: I can give a broad list if that is what you want.

The Chairman: The acoustics are not brilliant in this room, so please do not be afraid to shout.

Sophie Farthing: Okay, and do tell me to speak up. Obviously, the rights to a fair trial and liberty, the rights to privacy and right to a family life are engaged. The rights on torture and inhuman degrading treatment can also be engaged.

Catherine Heard: If I could add rights under Article 14: not to be discriminated against. In our experience non-nationals facing criminal charges or proceedings often face greater difficulties in obtaining assistance and understanding proceedings, and therefore participating effectively in their defence.

Q3 The Chairman: It has been suggested that UK courts are reluctant to bar extradition on human rights grounds. Could you comment on this suggestion?

Catherine Heard: Yes. In our experience, although there is a human rights-based refusal ground, in practice English courts seem to be unwilling to use it. For example, in the recent case of Klimas, it was stated by Mr Justice Mitting that there had to be wholly exceptional circumstances, akin to a coup or military disturbance, for a court to even need to think about Article 3 issues, even if they were raised by the requested person, so prison conditions particularly. We think that is setting the bar too low and we are calling for greater clarity on how the human rights bar should operate.

Sally Ireland: If I could add to that: yes, we would agree that the courts are providing very stringent tests in relation to human rights and are very unwilling to find violations. In the Norris case, which was a US/UK extradition case, the Supreme Court basically point to the strong public interest in extradition, obviously preventing offenders from escaping justice, and therefore the human rights interference has to be extremely serious. That case concerned Article 8 rights and they said that the consequences would have to be exceptionally serious.

I think one of the problems is that, although the court did point there to a slight test of proportionality in relation to the seriousness of the offence for which a person is sought, they gave the example of if it was a minor offence and the individual had sole responsibility, say, for an incapacitated family member that perhaps they could resist extradition on Article 8 grounds. But we know that people are being sought for extradition for very minor offences and that, while the interference with their rights-often Article 8 rights are particularly engaged-will be very great, there is not a sufficient test of proportionality in order to allow the courts to block extradition in those cases.

Jodie Blackstock: I think perhaps the real problem with these cases is the courts are looking at extradition matters from the perspective of being requested by the Member States to return people that they allege have committed criminal activities. The starting point of our courts is not to go behind their systems. We have to have an element of trust in the way that they work. So the courts will not be looking at cases from the perspective of whether there is an Article 3 issue in a domestic case, for example. Had they been looking at prison conditions in the UK, they would apply a more critical analysis to the evidence that is presented before them.

The second issue-because we will see in pretty much all of these cases arguments about human rights-is actually trying to support those cases with proper evidence. Often extradition defence lawyers are given instructions by their clients about prison conditions, about length of detention, about length of trial, waiting for a trial to come on, all of which engage human rights issues, but they are not given the requisite evidence to prove those to the standards that our courts expect.

The answer that we propose for that, most particularly with European Arrest Warrant cases, but it applies across the board, is being given dual representation. You have a lawyer in both countries. So that if it is an issue about validity of the warrant being issued in the first place, there is a lawyer in the other country who can challenge that issue before our courts even have to look at whether there should be an extradition. If instructions come from a client about particular nuances of the system in the issuing state, that the defence lawyer in this country can contact the lawyer in the other country and find out if there is any way of establishing that to the level of proof that is required in this country.

In fact, we are fortunate in this country that legal aid is provided, certainly in European Arrest Warrant cases, where it is possible to show that expert evidence from the other country is required, but it is very ad hoc. It depends on defence lawyers here knowing: firstly, that they can access that service; and secondly, that there is a quality lawyer available in the other country who will be able to assist them in the way required.

It is obvious across the cases, when you look at the detail of them, that these attempts have been made. A good example was in Andrew Symeou and the Herdman cases, which I am sure FTI can speak to more, where there were Greek lawyers involved. There is certainly a question about what level of assistance they could give in terms of showing concerns about prison conditions, which was the issue in those cases.

Q4 The Chairman: If you could look at it from a different perspective: would introducing more specific provisions to the human rights bar in the Extradition Act 2003 help protect the human rights of those subject to extradition proceedings?

Jodie Blackstock: I think, in our view, it is very difficult to do so. The courts, as I say, are constrained at the moment by conventions, treaties and the Extradition Act, in relation to the starting principle that they are looking at, which is a principle of acceding to a request from another Member State-in the EU aspect certainly, or a contracting party-without scrutinising in too much detail the practices of that country.

But we also have to apply the standards that are established in the Strasbourg courts, and those standards across the board do require quite high thresholds to show violations of the specific rights. You need to show for Article 3 a real risk that the person might be subjected to torture, inhuman or degrading treatment, for example. Again that requires the evidence. We have heard about Article 8. In Article 6, you need to show a flagrant breach of fair trial rights. So it is a question, really, if you were going to try and amend the Act, of how you would go about doing that without going higher than the tests that have already been established. That is a difficult job for legislation to achieve.

One of the things that we do point to in our briefing is that we now have the Charter of Fundamental Rights in force across the EU. So for European Arrest Warrant cases, something that might be looked at is an amendment to section 21 of the Act, which requires the courts to look at human rights issues, from the perspective of the Convention on Human Rights. That could be amended to say they must also look at the Charter provisions. The reason for doing that is that there is a possibility that the standards are different under the Charter, in terms of the thresholds being lower to achieve violations.

The reason I say that is Article 1 of the Charter requires human dignity to be considered. Certainly, from an Article 3 torture and inhuman perspective, that might be an argument that could be raised. But the problem with that is those cases have not yet been brought. We await a decision from the Luxembourg court on whether the Charter even can be applied wholesale in this country. So we are certainly not into a position on that.

Sophie Farthing: Can I just add to that? Obviously agreeing with what Jodie has said, but I think, Chair, you raised the point that the courts have been hamstrung by the Act itself. Certainly, Liberty has been pushing for the procedural safeguards to be put back in the Act and the judicial discretion to consider extradition cases on a case-by-case basis. They are the changes that need to be made. If you are talking about three of the most significant safeguards, it is that no one is extradited before it is known that there is a case against them, so the prima facie safeguard.

We think it should be open to a court to be able to decide whether it is in the interests of justice if the alleged conduct is taken in part.

The Chairman: I think we are in danger of anticipating many of the questions that are about to come up.

Sophie Farthing: I am sorry.

The Chairman: So could you make your comments slightly briefer?

Q5 Dr Huppert: I was about to talk about the prima facie evidence issue, because there is no requirement currently to be presented with a prima facie case. Firstly, would implementing a requirement for such evidence help with human rights, and how could that be implemented through, say, the European Arrest Warrant?

Sophie Farthing: I could continue on. I think it is important to look at the safeguards as a whole, because there are several-obviously, the forum amendment; the prima facie case and the dual criminality safeguards-in addition to the human rights bar that is already in the Act. I do think it is important to look at all of those because the prima facie case safeguard will not pick up on all cases where there is a potential injustice. So that is what I would say in relation to your question on the prima facie case.

Sally Ireland: In relation to prima facie case, I think it is important not to attach too much importance to this as a safeguard. Essentially, what is required to establish a prima facie case can just be a witness statement, or even a summary of a witness statement in a document. So I think only in a small number of cases will we say that prima facie would safeguard somebody against wrongful extradition. The example that is often given is that of Lotfi Raissi, but I have never heard any other example cited. So we would say that other safeguards are more important and we will come on to those.

Jodie Blackstock: Certainly, in relation to the European Arrest Warrant it is just unrealistic to start looking at importing back a prima facie case. The European Arrest Warrant has been developed out of agreement in the European Union to engage in judicial cooperation in criminal matters in cross-border matters, in a way that requires less scrutiny. Therefore, we are not going to be able to convince our EU partners that we ought to start looking with more scrutiny at the level of evidence that is provided. Not only in fact because these countries are signed up to the European Arrest Warrant, but also because there were European Convention countries prior to that. We have had arrangements for the past 30 years with all of these EU Member States where we have not looked at the prima facie evidence that they could provide, but for the reasons Sally says the reality is that you are not going to get that much necessarily anyway.

Q6 Dr Huppert: In that case, can I ask about the US/UK Treaty where, as I understand it, the UK has to present a prima facie case but the US does not?

Jodie Blackstock: No, it does not. That is not the case.

Sally Ireland: Yes, the Treaty says that we have to provide evidence that would show reasonable grounds for belief that the offence had been committed, which is not that different to the test in the Extradition Act for arrest. A lot of public attention has been given to the notion of balance, which I think is really a foreign policy point about our relations with the United States, but what we should be focusing on is whether we are providing sufficient protection to our citizens and residents against wrongful extradition. So I think that the disparity in the Treaty text is not the most important issue.

Q7 Lord Dubs: I am sorry I was a bit late coming in. There are instances where there is a request for a European Arrest Warrant arrangement, when there is no case in existence in the demanding country. Now, if the prima facie case is not a safeguard, what is a safeguard?

Jodie Blackstock: The safeguard in those cases is that we cannot under the Extradition Act extradite someone to a European Union country, unless we are satisfied that there has been a charge laid; that the other country wishes to extradite for the purposes of prosecution. That level of evidence must be presented, and the courts will look quite closely at a request if it does not, on the face of it, establish that that position, that stage of proceedings has been reached.

Catherine Heard: If I can step in there, you will be hearing later from one of the clients we have assisted at Fair Trials International, who experienced this very problem of being extradited to Hungary. His name is Michael Turner. Prematurely as it turned out, the Hungarians certified that the extradition request was for the purposes of a criminal prosecution, which is the test for whether the Warrant can be issued in an accusation of Warrant case, but when he came to his four month remand in Hungary, he was only questioned once and it turned out that he was not ready to be charged and in the end Hungary released him.

Lord Dubs: Yes. Well, my question is: what is a safeguard? I always thought the prima facie case was a safeguard, if we had it. If that is not the safeguard and these things happened, what do we do?

Jodie Blackstock: Coming back to the point that I made, I am not sure if you were in the room at the time. Our concern is that it is not possible to raise those arguments-like Mr Turner might have-legitimately before this court because of not having legal representation to do so. So the safeguard is having legal representation in Hungary to verify the case with the Hungarian authorities, and legal representation in this country to put that argument properly before the extraditing judge.

If you have a prima facie case test, our concern would be that Hungary would still be able to satisfy that. If they were in a position to be able to seek extradition in the case where, in reality, they were not even bothered about it, they are going to be able to provide and support their request with evidence which will satisfy the prima facie test, through perhaps dubious means, who knows? We do not see that that is where the actual safeguards that are required are going to be found.

Q8 Mr Raab: Can I just ask one follow-up question on the US/UK situation? You talked about the reciprocal relations under the Treaty, and whether there was that much difference, but what about the underlying application in the UK legislation, versus the US legislation? I guess the bottom line is-and my bottom line question is-is there a different evidential threshold being applied for cases being extradited from the US and from the UK, in practice?

Sally Ireland: I cannot answer as to the US legislation because we only look at the UK legislation and human rights in the UK. So the issue of disparity is not really one that primarily concerns us. We are just looking at whether we are providing sufficient protection here.

The Chairman: Anyone else?

Sophie Farthing: We completely agree with Sally on that. Again, we are not US litigators so we do not know about US legislation, but the focus has to be on the EA, and not just on the US. There are a number of territories that we have agreements with on Part 2.

Mr Raab: Sure, but sorry, with respect, we are interested in whether there is a fundamental lack of reciprocity in the enabling legislation. We are interested in that.

Sally Ireland: I do know that obviously in the US citizens have a constitutional protection of the Fourth Amendment, which relates to probable cause, which they cannot be extradited in breach of, and the definition of "probable cause", essentially to my understanding is somewhere between the level of reasonable suspicion and prima facie case, and essentially whether there are reasonable grounds for a prudent person to believe that a crime has been committed. So that would probably be slightly higher than what we have here but not as high as a prima facie case.

Q9 Mr Raab: Thank you. Can we just turn to the question of forum and the forum safeguard for extradition proceedings, and whether you think that in both the US and the EU context is something we need to look at?

Jodie Blackstock: It is hard to understand why this has not been implemented, frankly. The Framework Decision on the European Arrest Warrant allows for forum. It also allows in fact for return of nationals and residents to serve their sentences here, which is another matter that we have not implemented in the Extradition Act, and we would certainly call for. The European Convention, which deals with other designated Part 2 countries, also allows for forum. Therefore, it is not clear why we have not considered the necessity for forum to be implemented. The reason why it is important is that it could attempt to deal with some of these perhaps more spurious cases-that we would certainly allege are more spurious-where they can be dealt with in this country.

Q10 Mr Raab: Can I ask a question about that because it is a very interesting one? If they are spurious, why would we prosecute them in this country?

Jodie Blackstock: Spurious in relation to Article 8 grounds, I think is the way that I would frame it. Some cases we would consider it is in the public interest to prosecute in this country, but you will see if you look at the disparity between the amount of people we request for extradition back to this country, that when someone is no longer in this country that public interest test has to come into play, in terms of whether it is worth seeking their return. From a perspective of someone’s private and family life and the upheaval it causes in them having to go and face trial in another country, it comes back to the proportionality test as well. There is an element, a question of whether it is necessary to extradite someone to another country. Unfortunately, the courts have not seen it that way, as we have already said, but if it is a matter that could be tried in this country we consider it certainly should be.

The fundamental principle, I think it is important to remember, with extradition is that we are trying to ensure that criminals do not evade justice. If they can be tried in this country, there is no question of them evading that justice.

Sally Ireland: I think the problem is, though, not cases where we do want to prosecute in this country but cases where we do not, because a person is protected from extradition if they have been acquitted here, or obviously they have been convicted here under the principle against double jeopardy. The problem situation arises in the Gary McKinnon scenario where the CPS have looked at charging somebody and declined to do so, possibly because they think there is insufficient evidence, or even because they think somebody else is responsible for the offence. But, of course, authorities in another jurisdiction are under no obligation to take those findings into account and if they then choose to prosecute the court cannot take into account the fact that our authorities have declined to do so.

Mr Raab: All right.

Jodie Blackstock: The forum bar would not create an absolute bar. There is still a discretion upon the court to consider those elements about prosecutions and so forth. So, although we would see it as providing a safeguard, it does not tie the UK’s hands in terms of our relationship with other countries and our obligation to extradite.

Q11 Mr Shepherd: It is just that where there is no common law on this-say Germany and Holocaust denying, which is not an offence here. What is your response to that?

Jodie Blackstock: Holocaust denial is a difficult one because it may fall under racism and xenophobia. There is a framework list of 32 offences now, as you know, in the European Arrest Warrant for which we cannot argue people should not be extradited. It is not an issue that has been played out in the courts unfortunately, because in the case of Tobin, although the courts in that case refused extradition, it was on whether the warrant was valid and not on the issue itself. I think it still needs to be argued as to whether the Holocaust denial falls within that bracket for the purposes of which we should understand it in this country.

Sophie Farthing: Can I add on that point, to take a step back, that there is the dual criminality point that I imagine we are going to discuss as well? That is a very important safeguard and that is something that we have been pushing for as well, to recognise that where the British don’t think that a conduct is criminal then we don’t think we should be extraditing British residents to somewhere where it is.

Q12 Mr Raab: Can I be clear on this, because I hadn’t quite realised this was the case? Is it your understanding that the forum bar would allow UK courts not just to consider whether they can and should prosecute in this country, but also to bar extradition if that has been considered by the CPS and there has been a decision not to proceed?

Sally Ireland: Absolutely.

Q13 Mr Raab: I see. So it would catch all the trivial or spurious cases as well as the more serious ones?

Sally Ireland: Yes, it can catch cases at any levels of seriousness.

Q14 Baroness Campbell of Surbiton: What are the human rights implications of the practical automaticity of the operation of the UK’s extradition treaties? It has been suggested that the UK’s extradition arrangements in practice are very automatic. So, can you tell me a bit about the human rights implications of this?

Sally Ireland: We have certainly been concerned about some of the nations with whom we have seen the UK signing extradition treaties in recent years. I would give Libya as one particularly egregious example. However, in practice, because of the human rights problems in those countries, and in particular Article 3 in relation to torture and prison conditions, we would not expect those treaties to be used to extradite people from the UK to Libya or even perhaps Algeria or the United Arab Emirates. We suspect they have been signed in order to allow us to bring people here from those jurisdictions and obviously the courts, whatever the faults of the stringency of the test they’re applying, do have human rights considerations to apply before an extradition can be ordered. So in those states we would have faith that those conditions would prevent an extradition in those circumstances.

Sophie Farthing: I would just add as a broad principle that the UK with the EA was trying to introduce a very streamlined process but, in trying to create a very streamlined process, which can of course be in the interests of defendants as well as victims, that they have cut out a lot of the procedural safeguards. So speedy extradition doesn’t necessarily have to mean unfair extradition.

Catherine Heard: I would add: with the seven years that we’ve now had to observe the effects of a virtually automatic system of extradition within Europe, it is long enough to see that it would have been far better to first have in place basic procedural safeguards in all of those countries. For example, we’ve only just begun on the so-called road map of procedural safeguards that the EU has brought forward in 2009 and only one of those suite of rights has been introduced. That is the right to an interpreter when you’re facing proceedings in another jurisdiction, which doesn’t even come due for implementation until July 2013. So we still don’t have the right to information on arrest when you’re facing proceedings in another country, information about your basic legal rights and about the charges against you. There is no right to see the dossier of evidence against you when the investigation is over in many countries. There is no automatic right to legal representation from the moment you begin to be questioned. All of these have to be put in place and in retrospect it would have been better to put off having an automatic system of extradition until those minimum safeguards were in place.

Q15 Baroness Campbell of Surbiton: Do you think the executive should have greater powers to exercise discretion in extradition cases?

Catherine Heard: If you’re looking at the European Union, I’m not sure that having executive discretion is either practical or would get to the heart of the problem. We’ve stripped out executive discretion and we’ve tried to replace the political decision-making with a judicial decision-making process, but what we’ve failed to do is to build in sufficient discretion for judges who are dealing with extradition requests to make sure that certain flexibility remains in the system to avoid miscarriages of justice in extradition cases. So, for example, their hands are tied in many different ways, even when it comes to the time limit for filing an appeal. If those time limits are gone over by just a few hours, it has been held that that is simply too late to file an appeal. So we need to build back in a little flexibility. We wouldn’t lose much if we did so, but I don’t think the answer is adding another layer of red tape. In terms of the numbers alone, 5,000 requests were issued last year. For the executive to be involved in all or some of those cases would involve a lot of extra resourcing for the Home Office.

Q16 Baroness Campbell of Surbiton: Do you think that is a practical possibility in the case of the European Arrest Warrant? If we were thinking about the executive having greater powers to exercise discretion, do you think that would be a practical possibility in the case of the European Arrest Warrant? I’m interested in discretion.

Catherine Heard: I think it would be practically very difficult to build back in a level of political discretion and I’m not sure whether it meets the problems that we’re seeing. The other problem with executive discretion is that it’s traditionally not a very transparent process and politicians can be-one only has to think back to the Pinochet case to see the difficulties that can arise and the sorts of pressures that can be imposed behind the scenes. What we really want is for judges who see what the case is about-after all it is a judicial process involving alleged criminal activity. I think judges are in a better position to deal in a transparent fashion, in open court, in an accountable way with difficult extradition cases.

Jodie Blackstock: The Framework Decision just wouldn’t allow the executive to have a role anyway. It has made it quite clear that this has to be a judicial decision.

Q17 Mr Shepherd: I wanted to ask a supplementary in this area. There is a difference between common law jurisdiction, obviously, and civil law traditions, and the investigative magistrate, which is the continental usual way of doing this. Is there not a difficulty in those two systems of justice trying to meld there that the investigator often arrests or holds someone that may be subsequently charged and prosecuted and therefore is seeking extradition for something that is absolutely unknown to us?

Catherine Heard: Yes. We have a much greater separation of powers here in the way our prosecutions are organised and the same, I think, applies in the four common law jurisdictions of the European Union. One sees similar problems now arising with the new proposed Investigation Order. At the moment the big question on that is who can issue it. Can we see common law countries receiving requests to investigate activity that are actually issued by police authorities or arms of the executive in the issuing state? For us that is a real difficulty and we would much prefer to see a judicial role at that end-at the issuing end-as well as the executing end.

Q18 Lord Dubs: May I ask a supplementary? Just a couple of questions ago, you indicated a number of serious criticisms of where the system isn’t working very well when people are being transferred from Britain under EAW to an EU country. How do we behave? In other words, when we ask for somebody to come to Britain under EAW, do our procedures meet the standards you’ve just set?

Catherine Heard: All I can say is we’re a casework-driven organisation, so we very much respond to the requests for assistance that we receive. We certainly are open for business to anyone from any country who wants to complain about a risk of an unfair trial or an unfair extradition, but I don’t think we’ve received any cases from people who have been subject to arrest warrants in other countries facing proceedings here. We know that, for example, the PACE Code, the rights that are read to a person on arrest in this country and access to legal aid at the very early stage are being seen as an example to follow by Europe in their deliberations on the measure in the road map I just mentioned on the right to information. So I think we do have a fairly good record in that sense.

Jodie Blackstock: I think if you look at the figures as well, we had over 4,000 requests to our country last year. We issued 220 requests and received back 80 people. So, on the scale of what we look at here and the decisions we make as to whether we ought to request someone’s extradition, we’re looking at it with much more scrutiny than some other EU Member States are, which is why all of us share the concern about the proportionality of this instrument. That really is the key problem in our view.

Catherine Heard: Yes, it cuts both ways. We apparently are very different from countries such as Poland and others who are under a constitutional obligation to prosecute every single offence that is complained of. For every indicted offence in the UK, as we know, there is a process of deciding if it is in the interests of justice to issue an arrest warrant to another country. So that filter, I would argue, ought to be imposed on all other countries so that we’re not facing enormous numbers of arrest warrants for minor offences from other countries.

Q19 Lord Bowness: It just occurs to me in your answer there, those decisions, however, are actually executive decisions, aren’t they? Very often, it’s a police decision not to proceed; it’s a Crown Prosecution Service decision not to proceed. We’re talking about ourselves. We’re taking officials’ and functionaries’ decisions on this, but we’re saying that is not acceptable in any of the other 26 Member States. We need to resolve that, don’t we?

Jodie Blackstock: If we decided to seek the extradition of someone back to this country-and the "we" there is, yes, a police decision or a CPS decision-a prosecutor would have to go before a judge and the judge would make the decision to seek the extradition. So it would be a judicial decision.

Lord Bowness: I appreciate that. I don’t want to prolong this but the point I was making was that the initial decisions whether to charge and proceed with the prosecution are being made by arms of the executive, if you like.

Jodie Blackstock: Absolutely.

Q20 Dr Huppert: May I ask briefly again about non-European situations, because there are a number of bilateral extradition treaties Britain has where I believe the political role is very important in deciding what happens? I think Liberty gave us some particular evidence on this point. Is that something that we should be particularly concerned with, compared to issues with Europe or the US? Would we have to renegotiate all the treaties in order to get anywhere on the political involvement in the other bilateral treaties that we have with random countries around the world? I raise this partly because Liberty highlighted that this led, in practice, to individuals becoming political pawns, which is something we’re not keen on.

Sophie Farthing: Yes. I guess we have the renegotiation point. If you are to see the safeguards being put back into the EA then there may have to be renegotiation of the treaties. I can’t speak to all of them, but we think that is something that would have to happen in order to give better protections, given they weren’t put in there in the first place.

On the issue, which has been raised, of having some sort of discretion-we would like to see it as an obligation of the Home Secretary-the submission that we have made to the Committee is that we certainly see a role there. Extradition ultimately is the transfer of one person from one state to another, so we certainly see a discretionary role there for the Home Secretary or the Secretary of State under the Act. What we do say is that if you are going to have that discretion then you need to have those safeguards throughout the whole process so that it actually operates and we still get that aim of having a streamlined extradition process.

Sally Ireland: To add to that, there is still a bar in the extradition act in relation to politically motivated prosecution under the extraneous considerations section and so there is protection there.

What we do not like to see is cases-just to raise Gary McKinnon again-where we have seen media reports of basically political diplomatic negotiations going on between Ministers of different countries about the fate of individual extraditees. That obviously depends very strongly on the UK’s particular relations with that state, which is not really a relevant consideration in our view and hence the importance of the primary decision-maker being the judicial decision-maker in all cases.

Q21 Mr Raab: It has been suggested that extradition under the European system has lower human rights standards than for non-EU extradition. Is that your sense?

Sally Ireland: There are two distinct differences. The first is the role of the Secretary of State, who can take into account various factors-the death penalty, for example, which is not an issue in EU nations in any event-but does provide an additional safeguard because she can hear human rights arguments as she has done in the McKinnon case and her decision can be appealed against. There is an extra level of protection there.

The other differences really do not relate to human rights so much as issues such as dual criminality. Obviously, the automatic removal of the prima facie case requirement is not automatic in relation to non-EU countries. The human rights provisions in the Act are exactly the same.

Q22 Mr Raab: Just a very brief follow-up: the interesting thing if you look at Article 8, say in relation the European Arrest Warrant-and I was looking at the Norris case-and you compare it with the Article 8 protections that would apply for example in deportation, is that they seem to be lower in extradition than in deportation.

Sally Ireland: There is obviously a very strong public interest recognised in extradition as a system and the courts have imposed a very exacting level or threshold to prevent people evading justice. What we would say is: a lot of this does come from Strasbourg but Strasbourg obviously provides a floor but not a ceiling. It is open to our courts to provide stronger protection. They have chosen not to do so.

Q23 Mr Raab: It has also been suggested that the speed of the European Arrest Warrant procedure makes it quite difficult for lawyers of those requested effectively to defend their clients, particularly given the large number of different legal systems that involve mutual recognition under the scheme. Do you think that is an issue?

Catherine Heard: Yes. I would make two points on that. First of all, insufficient time is built into the system. The deadlines are too tight in many cases for an individual to obtain evidence-often expert-on the situation of human rights protection on the ground in the country concerned. If the person has only been there on holiday, for example, or on a brief business trip, it is going to be very difficult for them to have that knowledge themselves or the contacts to marshal it from.

The second point I would make is the importance of legal representation in both countries. We think it is absolutely crucial for a number of reasons, not least to make sure you marshal the evidence quickly that would enable you to tell the court in the executing country why it would be a risk of a breach of your rights if you were extradited there. We have on the agenda in the European Union the third measure on the road map, which is the right to legal advice. We will be arguing very strongly for legal advice in extradition cases to be provided in both countries. Quite often a lawyer in the other jurisdiction can quickly take action to stop the extradition request going any further. Often it is just a telephone call with the prosecutor’s office. Certainly, in many cases, things can be ironed out in relation to identity, in relation to whether it is possible to negotiate a fine rather than a custodial sentence. So really it could reduce the cost and the time as well as the human impact of an extradition request to make sure that legal representation is in place in both countries.

Q24 Mr Raab: Does anyone else have anything to add to that?

Jodie Blackstock: We would absolutely agree with Catherine and I say the same thing. It builds on the point I made about dual representation. I suppose one thing to look at: the UK does already far exceed the timeframe in many cases that we are supposed to adhere to on European Arrest Warrant cases because of the opportunity to argue matters but we are still frustrated; and you still see, when matters are taken on appeal from the district judge to the High Court, evidence appearing which was not available before the district judge. So even though we are flouting the time limits in many cases, it is not actually long enough. We would have grave concerns about other Member States where they are adhering to the time limits and how they are dealing with these abilities to raise arguments themselves.

The Chairman: Could you now turn to the implementation of the Arrest Warrant?

Q25 Baroness Campbell of Surbiton: Do different Member States use the European Arrest Warrant in a different way to the UK in terms of what stage in the investigation a suspect is requested under the European Arrest Warrant? What human rights issues does this pose?

Catherine Heard: Yes. A number of Member States have implemented into the own legislation certain optional grounds for refusal. For example, where a person is wanted under a conviction warrant, it is possible under the Framework Decision to have in your own legislation a provision that prevents them from being extradited only to be sent back when they come to serve their sentence. So there are a number of extra steps we could take in this country to take advantage of better protections for our own nationals, which are already envisaged in the Framework Decision. At the issue stage, as I have already said, many countries in practice seem to have a public interest test before they go as far as issuing a warrant.

In terms of other basic rules on how implementation works. I think there may be some differences in terms of deadlines for appeal and so on. We would want to focus during this government review on all of the comparative benefits of what other countries’ implementations have done so that we get the best of all worlds and improve our implementing legislation where it can be done in accordance with the Framework Decision. Some countries, for example, had constitutional bars against extraditing own nationals and so they availed themselves then of the optional ground for refusal, which in fact is not a refusal ground; it is a condition you can impose that, once convicted, the person must be returned to their home country for serving their sentence.

Sophie Farthing: Jodie and Catherine may speak to this more, but I do understand that in other EU Member States there has been some legislation which has dealt with the broad categories of offences. For example, as you know under the EAW, because the categories are so broad basically anything could fit in under the categories. Belgium for example, I think, has legislated that abortion will not fall in the murder category. There may be other examples as well. So there are those options for added protection for the citizens and residents.

Q26 Baroness Campbell of Surbiton: So when compared to its implementation in other Member States, does that mean that the human rights of UK citizens are not well protected as those other Member States? Would you go as far as saying that?

Catherine Heard: Yes.

Baroness Campbell of Surbiton: You would?

Sophie Farthing: Yes.

Baroness Campbell of Surbiton: That is a yes? Okay.

Jodie Blackstock: It is difficult to say because the systems are so very different. You have to look at each system in the context of the criminal justice system as a whole. While there may be some safeguards written into legislation, you then have to question how their legal representation works. Are they getting quality legal representation? Can they make arguments to defend against the warrants? You have to look at the system in terms of what the judiciary do. In the Netherlands, for example, on paper you cannot appeal from an extradition warrant. However, the highest court makes decisions on whether to extradite at first instance and scrutinises with a great deal of detail whether cases should be extradited. It is not always easy to answer.

The Chairman: Finally, could we ask some questions on the European Investigation Order?

Q27 Dr Huppert: This is obviously currently undergoing a whole lot of discussion about what it will actually look like. It seems like an opportunity to shape it before it is done rather than afterwards. Firstly, what human rights implications does it raise for you, particularly given the context of extradition? What safeguards do you think we should be ensuring are in there? Do you think we have any chance of getting them?

Jodie Blackstock: It is ongoing and we have submitted our briefing which raises all of our concerns to you. I think it is right to say that a lot of those concerns have been acknowledged by the European Council. We have not seen a finalised general approach from the Council yet. It is still going through very slowly, but issues about what a judicial authority is are being looked at carefully and there is a proposed amendment to try to make judicial authority tighter. The issue about proportionality, which is a major concern for us in terms of when these requests can be issued, again has been looked at and there is a proposed test for proportionality on the table. We hope that that finds its way into the legislation. Certainly, the European Parliament will be making that argument.

A real concern again is about being able to challenge the issue of an evidence request from a defence perspective. The real problem with these instruments is the same with the Arrest Warrant: how a person who is affected by it-and this could be any witness; it doesn’t just have to be a defendant; it could be a witness to support the prosecution if evidence is required from them or if they are a party even; a bank, for example, is affected by this instrument-is able to firstly know that the request has been made and how to challenge it if there are reasonable grounds to challenge. At the moment there is nothing built in there to give a structure to legal representations. That is a major concern.

Catherine Heard: There are also one or two other concerns, which we have raised in our briefings on this. There is no reference in the current draft for use by the defence. In our experience, it is often extremely difficult for defendants in proceedings in another country to obtain evidence from overseas. Of course, there are ways under the mutual legal assistance regime, but in many countries it is very difficult in practice for that to happen. So making an equality-of-arms-friendly instrument is important and attention should be focused on that.

Another issue is that there was really little explanation of why were faced with just three months to opt in or opt out of a Member States initiative when actually the European Commission had been tasked with doing a detailed study and an impact assessment prior to bringing forward its own legislative proposals on the very same topic of cross-border evidence gathering. Quite how a minority group of Member States was able to sideline that activity and force the UK to make a decision with almost no scrutiny and no debate-it was damned if we do, damned if we don’t, and we had to join the club in the end otherwise we would not have any say in negotiations. I just hope that we are not faced with that scenario again because it did not seem an efficient way.

The whole reason behind the European Investigation Order is to make it simpler to obtain evidence in overseas cases. We would support any instrument that really did result in more evidence being made available that had been legally obtained and that was admissible in the proceedings. That can help both parties and it can lead to speedy resolution of a case but this is turning out to be a very complex instrument because little thought was given to these very difficult issues of admissibility, of the fairness in which the evidence was obtained. We have 27 different legal systems, all with their own ways of obtaining evidence and their own admissibility requirements.

Finally, there is not really enough data protection safety in the criminal justice arena across Europe. The European Data Protection Supervisor has issued quite a critical opinion of this legislative proposal because of the absence of a coherent EU-wide set of rules on evidence-gathering and sharing, so we have a number of serious concerns with the investigation they have done.

Q28 Mr Raab: Just one brief question in relation to the EIO: are you aware of any UK impact assessment in terms of volume because the number of requests we get will have an impact, quantitatively, on human rights, both in terms of those they are the subject of, but also in terms of the impact on police resources, not least in light of Osman?

Catherine Heard: Yes, the Home Office did one and we would be happy, as a follow-up to this, to provide you with a copy and our opinion on it, because I think we felt when we read it back in July or September that it was a little optimistic about the volume and the cost associated with it. We were very concerned about the resourcing. If you have an instrument that is as easy as the Arrest Warrant, it’s a tick-box exercise and there is no real proportionality test for a lot of types of request; there isn’t even a dual criminality requirement at the moment. We are looking at a potentially vast increase in requests and at the moment we are quite sparing in our use of mutual legal assistance.

Q29 Mr Raab: Have you got an idea of what you think the volume might be, even in range terms?

Jodie Blackstock: I would say, looking at the range of European Arrest Warrant cases, there is no reason to think it would be any less than the amount of requests that we’re getting for extradition. Indeed, it would probably be far more because we’re not talking about the return of a person; we’re talking about an element of a case.

The UK exercises freedom of movement across the EU more than any other Member State in both directions, so there is a huge amount of movement, which engages a huge amount of potential evidence in cases in other EU Member States. If a proportionality test and if the safeguards that we have all talked about are contained within the final draft of this instrument, then the numbers will be far lower, but as it stands we would be seeing 10,000 of these probably a year.

Catherine Heard: We hold an awful lot of data in this country. We have a vast number of CCTV cameras. We hold a lot of DNA evidence. The potential for receiving large numbers of requests-and disproportionate ones in some cases-has to be taken seriously.

Q30 Mr Raab: Would you agree, as a general consensus, that something in the region of 10,000 is not unrealistic?

Catherine Heard: I wouldn’t know.

Sophie Farthing: I don’t have the knowledge to give those kind of estimates.

Catherine Heard: It is the automaticity issue that Baroness Campbell raised. Once it becomes an order rather than a request for assistance, once you cut out the discretion-"Is this a sensible test? Is this a sensible use of resources?"-you are looking at a potentially vast number of extra requests. If you look at-

The Chairman: At the risk of cutting you off now, we are slightly moving into the realms of speculation. I would wish you to go away and reflect on those questions, because we will be writing to you. Could I ask Dr Huppert to finally ask one more question?

Q31 Dr Huppert: I was briefly going to ask, given that we do collect excessive amounts of data compared to others, could another way of helping each other’s problems be to collect a more proportionate amount of data and to store fewer DNA samples and CCTV images?

Jodie Blackstock: We are obliged to that in relation to DNA now anyway and hopefully we will see that in the future. Hopefully we will see a proportionality test and that means that that figure that I have plucked out of the sky will dramatically reduce, but at the moment we are at a stage in the legislative process where the official instrument has virtually no safeguards in it.

Sophie Farthing: I must agree with Dr Huppert’s suggestion that we do need more protections within our UK legislation, but that would be going off topic.

The Chairman: Could I thank you all for your evidence today and for the thoroughness with which you answered our questions. We would like to write to you on certain questions we have not been able to put to you. If you feel that there are points that will not be covered by our questions today or the questions we send you, we would be very glad to have a further memorandum, please. Could I finally thank you for the memoranda that you supplied us beforehand, which were very helpful in preparing for this session. Thank you very much. Could I ask the second panel to come forward now, please?

Examination of Witnesses

Witnesses: Michael Turner, Frank Symeou, Deborah Dark, Edmond Arapi.

Q32 The Chairman: Welcome to you all to this session of the Joint Committee on Human Rights, and for the record could you all introduce yourselves, please?

Mr Turner: Good afternoon, I’m Michael Turner. Would you like a little bit about myself, sir?

The Chairman: Just very briefly, yes.

Michael Turner: I was extradited to Hungary in November 2009 and released four months later, this year in February.

Frank Symeou: My name is Frank Symeou. I’m the father of Andrew Symeou, who is currently on bail in Greece. He has been on bail for eight months. Before that, he was in prison for almost 11 months pending trial; the trial is set for 4 March.

Deborah Dark: My name is Deborah Dark. I was arrested in Turkey on a European Arrest Warrant. Then in Spain; I was arrested there and detained in a high security prison and then I was arrested here in the UK, because the Spanish refused to extradite me. I was detained in Holloway until I was given bail and the UK refused to extradite me. Then I was left, basically, with the European Arrest Warrant still present, which meant I couldn’t leave the country and I couldn’t go and see my father and the French refused to remove the warrant. It has now been removed, thanks to Fair Trials International.

Edmond Arapi: Hi everyone, my name is Edmond Arapi. I am from Albania and I was arrested at Heathrow Airport during a visit with myself and my family, my wife and kids. We went back to Albania and when we came back I was arrested for a murder apparently. "Apparently" was the word-that I have been committing this crime in Italy while I was working here in Britain. Then the charge, after 12 months, was dropped, again thanks to Fair Trials International putting on some pressure. That took place and there was evidence that we had or I had, and here we are today.

Q33 The Chairman: Thank you very much for that. Mr Andrew Symeou of course is currently awaiting trial in Greece so that case is sub judice. Could I remind my Committee Members that we should not ask any questions specifically about the case?

Mr Turner, could I begin by asking you then? Could you explain what exactly happened to you once you were extradited from the UK? I understand you were imprisoned without charge for quite some time.

Michael Turner: That’s right, yes. I fought the extradition in England for about a year, I think it was, until I was finally extradited to Hungary to face prosecution. Let me just state that I surrendered myself to the English police, who I met at court for the first time in London, to go through the extradition proceedings. I was then on bail for a year in England. I surrendered myself again and drove myself to the airport for the extradition to take place, to get on the plane and be handed over to the Hungarian authorities. On arrival in Hungary, I was handed to their police force and handcuffed and basically thrown in prison. After spending some time in prison, I was interviewed once with the police-

Q34 The Chairman: Could you explain to us what were the conditions in prison?

Michael Turner: I was locked in a cell; it was a 20 foot by 11 foot cell with three other Hungarians-a sealed door-for 23 hours a day. You had an hour walking on a roof cage. You had one shower a week. Your food was passed through a hatch in the door. If you were leaving the room to see your lawyer, for example, you were always accompanied by a guard. I’d see it as high security; I don’t know what is.

Q35 The Chairman: Did the Hungarian authorities explain to you what was happening?

Michael Turner: Through a rough translator-I’d say the translation wasn’t very good-they did say I was on remand pending investigation for fraud.

Q36 The Chairman: Did you say that you were represented by a lawyer? Did you have access to a lawyer?

Michael Turner: That’s right, yes. During the extradition process in England, we contacted a Hungarian lawyer to see what was going on on the other side. We then retained that lawyer-obviously I knew I was going to Hungary so I prepared in advance-who eventually managed to get access to me in the prison and to take the case forward.

Q37 The Chairman: Did they explain to you your rights while you were in prison?

Michael Turner: Very vaguely-I learnt the prison system from other cellmates who could speak a little bit of English. I was given brief rules. I then eventually got hold of a translated rule book, which at first they said didn’t exist and then did. I eventually got it I think about a week before I was released.

Q38 The Chairman: Were you able to get access to your family or to your friends by telephone?

Michael Turner: The first telephone call I made was two and a half weeks in. The police lady made them promise, when I was left at the airport, that I could phone back to say I’d arrived safely but that obviously wasn’t true; I didn’t make a phone call for two and a half weeks to my father. I think it was two and a half months until I managed to contact my girlfriend.

Q39 The Chairman: Did you have any information about the nature of extradition before you were extradited?

Michael Turner: The extradition paper is quite brief in what it says-we were suspected of fraud because we ran a small office in Hungary-but obviously it didn’t show any evidence. Obviously, when we said "This isn’t true", that wasn’t taken into consideration in England. When I got to Hungary it was very early in the morning, about 2 am or 3 am. We were at the police station and my lawyer wasn’t present and they did try and get me to sign documents saying that I understood what they were trying to charge me with, through a rough translation again-not very good-and I refused to do so because I didn’t know what I was signing.

Q40 The Chairman: But in that period, that year when you were waiting, were you provided with any information about extradition and if you were not-

Michael Turner: No.

Q41 The Chairman: Do you think that you should have then been provided with some information?

Michael Turner: Definitely. Obviously, through that year I was hoping that I wouldn’t be extradited or I definitely thought I wouldn’t be extradited. I thought justice would prevail and stop it happening. I only started really asking questions, obviously, when they said, "You must go back to Hungary". Then we started asking, "Well, what’s going to happen when we get there?" and nobody would answer the question; whether they didn’t know or whether they didn’t want to tell us, I’m not sure.

Q42 The Chairman: Is there anything else that you would like to tell us before we move on to the other witnesses?

Michael Turner: It’s very bewildering when you are given to a foreign country and they deny you something that you think is your right, like a phone call home. You cannot fight the police when you are arrested. You are hidden in prison-I was only found by my father, who came looking for me. They would not contact the Consulate. They made things very, very difficult for me. We have spent, and are spending, a lot of money just to keep me out of prison now. The case still goes on, hopefully to hear in February of a better outcome.

Q43 Mr Raab: Ms Dark, please could you set out a little bit about the background of your experience?

Deborah Dark: Yes, well, first of all, I was arrested in Turkey at gunpoint. I was taken off to a room, physically manhandled, and I would rather not go into detail about that. I was then told that I had a big problem, and that was all I was told. Then I was told to carry on with my holiday-they would not let me leave-which was a holiday from hell. I just wanted to get home.

I came back to the UK. I went to my local police station to investigate, because all the Turkish would tell me was that I had a big problem with Interpol. I went to my local police station. I reported a couple of incidents there that happened in Turkey, and also asked why I was arrested. Could they investigate it? Could they get in touch with Interpol?

The police then told me I did not have a criminal record. There were no warrants for me. Therefore, there was nothing they could do. I then wrote to SOCA. I had to wait 40 days for a reply and the reply was, "No information to give you". I then telephoned the Foreign Office. The Foreign Office said they had been in touch with Turkey and there had been an alert-I think it was a red alert, or something like that-and that it was probably a case of mistaken identity. I said, "Well, how many Deborah Darks are there?" He said, "There are eight on my computer now". He said, "I wouldn’t worry about it".

I then went to Spain with my daughter and my two grandchildren, who were a year old at the time, to see my father, because he had not seen the twins yet. We had a great holiday. We were just about to check in at the airport in Alicante when my daughter pointed out and said, "Mum, there are two men over there and they are looking at you funny". I said, "Don’t worry about it. I’ve got a letter here from SOCA. Everything will be fine". It was two customs officers who came around to me and said, "Is she with you?" They meant my daughter. "And are the babies with you?" I said, "Yes". They said, "Neither of you are boarding the plane. Could you come with me, please?"

They took my fingerprints. I was taken back and forth to a laboratory to have my fingerprints taken again. Eventually, they showed me a photograph and I recognised it straightaway, because 20 years previously I was found not guilty for importing drugs. I was set up by my boyfriend. I was very frightened of him. He was very violent. The court acquitted me. They showed me the photograph and I remembered where it had been taken, and I automatically thought, "This must have something to do with France". They said, "Is this you?" I said, "Yes". They said, "Right, come to this room. There is a translator". The translator turned around to me and she said, "Could you sit down? We have some bad news for you".

She then proceeded to read out this arrest warrant, which I knew nothing about, and she said, "In 1989, you were acquitted of this offence. In 1990, the French Courts appealed, and you were given six years in prison. You are now therefore being extradited to France to serve that sentence." I just collapsed. I could not believe it. It was such a shock, and then I thought, "How am I going to tell my daughter?"

They had to sedate me, because I did not want to break down in front of my daughter. The last time this had happened, she was eight years old. She was put in an orphanage and I did not know where she was. Seeing my two grandchildren there, it was like déjà vu. Anyway, they sedated me. I just remember sitting on the floor with the babies and my daughter, and I had to explain that I had to serve six years in prison and she broke down. Excuse me. I am so sorry about this. It’s embarrassing.

Q44 Mr Raab: Take your time. Do you have any idea why the British authorities were unable to tell you that you were subject to the warrant?

Deborah Dark: They were not party to the Schengen information system, so therefore they did not have the information.

Mr Raab: They did not have it themselves?

Deborah Dark: No.

Q45 Mr Raab: How was the situation eventually resolved? Why was the warrant not withdrawn after the first time the court refused an extradition request?

Deborah Dark: The Spanish refused to extradite me, so I was released. I took a flight straight back to the UK. I was arrested at Gatwick under the same arrest warrant, which totally baffled me. I just could not believe it was happening again, especially when the UK had told me, "There are no warrants". It was bizarre.

The next thing, I was in a police station, and then the courts, and then Holloway Prison until I could find bail, which had to be paid in cash before I was released. Then I spent the next seven months fighting extradition here. The judge discharged me. She refused to extradite me, but the French refused to remove the warrant, so therefore I was stuck here. I could not go to see my father, who is a pensioner. He lives in Spain. My daughter went over a couple of times. I was basically stuck here for three years.

Q46 Mr Raab: How did you eventually get it resolved?

Deborah Dark: Fair Trials International-basically, media pressure-

Q47 Mr Raab: And the French withdrew the-

Deborah Dark: As far as I know, they were getting a lot of bad press about their judicial system, so they decided to withdraw my warrant.

Q48 Mr Raab: Having been through a terrible ordeal-and I am sure the Committee will express its deep sympathy with you-what do you think, in practical terms, should have happened?

Deborah Dark: I should have been told that this was happening. The French never informed me that there had been an appeal. I had been walking around for over 20 years as a wanted person and I did not know.

Q49 Baroness Campbell of Surbiton: Mr Arapi, thank you for coming. Could you describe to us your experience of the European Arrest Warrant?

Edmond Arapi: Yes. Before I go to that, can I correct something from when I introduced myself earlier? I said that I was arrested at Heathrow. The nerves are getting the better of me. Actually, it is Gatwick Airport, so I am sorry about that.

How could I describe the EU Warrant? Well, I am just going to go a bit briefly, so everybody can think for themselves, basically, how I feel about it. To me, I think that would be the best explanation. I am going to make it brief, if that is all right.

We went on holiday-myself, my wife and two kids at the time. We went back to Albania, my homeland. We went there for four weeks. We had a really nice holiday. We came back through Gatwick Airport. My wife passed through. Because I still had an Albanian passport, with leave to remain, she goes through, but I have to go in the other queue, which I did. My passport was taking quite a while to be checked and I was wondering what was going on. Then my wife got a bit-not necessarily worried-anxious about it. She was wondering what was going on. After that, hours were going by. Some police turned up there. We were asking, "Please, can you tell us what is going on?" All of a sudden, there were these police-two or three of them-just taking their handcuffs out in front of my two kids. We were exhausted when we came back from all that journeying. In front of my kids, they said, "We are arresting you for a murder". My experience is that.

After that, I had the help of my lawyer, the barrister, the QC, and especially Fair Trials International, with Italy, with the evidence that I had and everything. Also, there was the new Prime Minister in Question Time. It was his first time appearing on Question Time. It was Karen Bradley who asked him a question specifically about my case. I think it was a result of the media pressure and the evidence I had that the warrant was dropped after 12 long months of hell. I would say the word "hell", but I tell you what: most people do not know what the word means until they have been there themselves.

Q50 Baroness Campbell of Surbiton: Thank you, sir. When did you first hear that a European Arrest Warrant had been issued against you?

Edmond Arapi: Basically, I heard a little bit about it at Gatwick Airport when I was arrested, but at the time I just laughed about it, to be honest with you. I looked my wife in the eye and said, "Is this some kind of joke, some kind of prank?" I don’t know. Then I said the same thing to one of the police officers who arrested me. I said, "What is going on?" He said, "I’m sorry, mate." He said, "You know, this is no joke". Then, later on, after I was arrested, my lawyer gave me a bit more information about what had been going on, and she was trying to build a case and fight the impossible, because that was what I was going to fight against, basically, with evidence or without.

Q51 Baroness Campbell of Surbiton: I understand. Did your extradition hearing examine whether any case existed against you?

Edmond Arapi: I’m sorry, I can’t. I am just getting very nervous now.

Baroness Campbell of Surbiton: No, do not worry. Did the extradition hearing examine the murder case that was alleged against you?

Edmond Arapi: Yes.

Baroness Campbell of Surbiton: Did they examine it in detail?

Edmond Arapi: I am sorry. I am not-

Q52 Baroness Campbell of Surbiton: Do not worry; we will skip on from that one. Did the court consider whether you could have committed the crime of which you were accused?

Edmond Arapi: I don’t think the court-obviously, I am aware that I am not allowed to say certain things, but the court, as I see it, had no power and still has no power. Basically, as far as I am aware, or as I understand it, the EU Warrant, or what I was told, by lawyer and from elsewhere, is fighting the impossible. If they want you somewhere, whether you have evidence or not, they will send you there regardless. It is not about your conviction or whether you have done something. It is not about giving you your rights as a human being. It is like, "That country wants you; we will wash our hands, and goodbye to you and good luck elsewhere".

Q53 Baroness Campbell of Surbiton: Was there no real discussion, then?

Edmond Arapi: Not at all. It was not about that at all. After, at some stage later, when I was arrested for a second time in a day, I had to go back into prison for a second time. I was attending another hearing, which was the one before my very last time at the High Court, when I was not aware that the judge probably could say, "You are a threat to the country or the people", or anything like that, "so we might have to keep you in until we make some kind of decision". Nothing was explained to me whatsoever, so people really did not know which way to go about it.

Baroness Campbell of Surbiton: Everyone was in the dark.

Edmond Arapi: Basically, yes, but at some stage the prosecution side was saying, "We have this kind of evidence". Then after, they were saying, "Oh, no, we do not have this now". I was getting prepared for all of that. To a point, I was glad and happy to go in there, because I was told they were going to compare DNA. I said, "Absolutely, please", and there was laughing all that morning, because I said, "Here, we have this. Let’s just get this done with. It means it will be ‘Case solved’. I am out of it. We do not have to go through this."

Then you just go in there and you get disappointed again, and they say, "It was the word that was spread and got out of hand, et cetera". How does the word get spread around unless somebody has said that? There was some kind of paper hidden somewhere, because it was there to begin with and the matter just disappeared.

Then again, it was just fighting the impossible again after that. After that, the judge decided against me, saying, "Oh, you are a threat", even though I was out for so many months already and was obeying everything I was asked to do. I had a curfew in my own home. I had to sign to the police daily between 3 pm and 5 pm. Even though I was following everything that I was asked to do, apparently I was still a threat, even though I had my wife and kids and all the rest.

Baroness Campbell of Surbiton: I understand. Thank you. That is very helpful.

Q54 Lord Dubs: Mr Symeou, could you explain what has happened to your son since his extradition?

Frank Symeou: Yes. Firstly, he fought extradition in this country for 13 months. We did offer evidence to the courts in his hearing, but obviously that was rejected and not considered. There were other various aspects and points of law that were raised by the barristers and QCs that were finally rejected by the House of Lords. That was 13 months.

When he was finally extradited, Andrew was taken to Heathrow by two officers from SOCA’s extradition unit. He was handed over on the plane to Greek officers. At that point, he was not handcuffed, because for 13 months Andrew was on bail in the UK. He had met all the conditions of his bail. He had been in court when he was requested to be in court.

Once he was handed over, he was immediately handcuffed and flown to Athens. At Athens Airport, when the plane landed, he was met by five or six police vehicles on the tarmac with six armed police officers in a row. Andrew could not believe that these were actually here for him. For some reason, he was categorised as "dangerous". He was immediately taken into custody and taken to a transfer unit in Athens.

At this point, my wife and I also flew to Athens and tried to find out through the British Embassy where he was being held, because we knew that at some stage he would be transferred to the island of Zante from Athens, but we did not know-and no information was offered to us-when and how he would be transported. We actually did not see him in Athens, and he was moved the following day to Patras.

The conditions of the move: if you can imagine, it is in the middle of summer and he was in a cage at the back of a police van with two other prisoners, who were also being transferred to Patras from Athens-in a cage that was meant for one, and three of them were squeezed in the cage. You can only describe it as a cage, because it was made of wire and you sat on a metal stool, but literally in not enough room for three people to huddle together. This was in 40 degree heat.

He was taken to Patras, where he spent a Thursday or Friday, so the weekend had come. He was in Patras for one night in a police holding cell. He was treated extremely badly in Patras. When he was asked to pack his bag very early the following morning, the officers or guards thought it quite funny to handcuff him and make him pack his bag with handcuffs on, and later opened his toothpaste, squeezed the toothpaste and threw it into his bag. They thought that was quite funny. Very early on, he was put into the truck or van and taken to the ferry port. While he was on the ferry, the officers left the van and went up, but he was left in the back of the van in 40 degrees again, without any water.

When he arrived in Zante, his mother and I were already there. We had arrived the night before. We did not know what time he was going to come in, so we just sat at the port waiting for the ferry to come in. Eventually, the ferry did come in. We knew it must have been that one because there was a police car waiting for him. The van was driven out and the police car put its sirens on and escorted the van to the police station in the local town, which was literally 300 yards away from the port, but they had all the sirens going.

The reason that he was transferred to Zante is that, under the Greek system, he has to be questioned by the investigating magistrate that has been appointed by the local public prosecutor to question him. At that stage, it was Friday. He was brought in front of the magistrate on the Saturday, and his lawyer, who was an Athenian based in Athens, did not know the times of the questioning and was unable to attend, so that had to be put off until the Monday. The investigating magistrate agreed that would be okay.

The conditions in which he was kept in Zante can only be described as draconian. It is not a prison; they are police cells, filthy, filthy dirty, about 4 m², and flanked on three walls by a concrete bench about 600 mm wide and about 500 mm off the ground. At first, in the first day or two, it was just him and another person. After the questioning, before he was transferred back to Patras, he was put in another cell with five other men.

In the cell, if you are lucky, there is a blanket. The blanket that was in there was flea-ridden. He had flea bites all over his body. We were allowed to buy sheets and a pillow to take to him, which we did, but then on the third day, he was put in a cell with five other men, so there were six men in a cell. At night, obviously, it was just strewn with bodies, on the floor and on the benches.

I would like to go back one day, to when he was questioned on the Monday. After the questioning, there is a rigmarole that goes on in the Greek courts where the investigating magistrates then consult with the public prosecutor on whether bail will be granted. In Andrew’s case, bail was refused on the grounds-as we later found out on the written ruling-that he was not a Greek citizen and that, because he was a foreigner, he was automatically regarded as a flight risk.

When Andrew was denied bail, he immediately collapsed. He was screaming that he was a good person. He collapsed in the investigating magistrate’s office, who asked the police to take him out into the hallway. An ambulance was called and he was taken to hospital. He was examined and put on a drip for a small amount of time because he was dehydrated. He was literally there only for an hour. Once the doctor said there was nothing else they could do, he was asked to stand up, handcuffed again and was taken back to the cell.

Andrew was eventually transferred through Patras again to Avlona Special Detention Centre, which is a juvenile prison. It is about 50 km north of Athens, so very difficult for my wife and me to get to. He was only 20 years old, so we knew that, once he had reached 21, there was the possibility of being transferred to an adult prison.

The conditions in Avlona at that time were described by Andrew as disgusting and overcrowded with four boys in a room. He spent four months there. Visitation was very good because we could visit three times a week, but it was behind glass, and we could communicate using a telephone. Once a month, we could put an application in for an open visit, which meant that we could sit opposite him across a table and hug him, which we did. The thing was: if you have an open visit, immediately after it that person is strip-searched, even though there are two or three officers in the room at the same time. He would be strip-searched completely, because in prison there is a huge drug problem.

We could never imagine at the time the conditions of Korydallos Prison, which is a maximum security prison in Athens. After four months, he was transferred to Korydallos Prison and put in Gamma wing, which is considered the worst wing. The reason he was put in Gamma was because again, he was a foreigner. In Alpha wing, most of the prisoners are Greek, with a high proportion of white collar crimes. In Gamma, most of the crimes are violent crimes, so there were murderers, rapists and drug dealers. Drugs were everywhere in that wing, which beggars belief, because when we visited, we could only visit across glass. There were no open visits in Korydallos. It was through glass and bars-three layers of glass and also bars-and we could speak through a telephone.

The conditions in Korydallos are extremely cramped: four prisoners to a cell, cells designed for one or two prisoners, with an Arabic-style toilet in the corner. If you needed to go to the toilet, you would ask your fellow cellmates to leave, and then you could use the toilet. If it was the middle of the night and they were asleep, you could not ask them, so you would just have to go to the toilet. This was the same in the other prison also. There was a toilet in the corner with an open sewer underneath, no U-bend, just an open channel that would get flushed occasionally. He would wake up in the mornings with cockroaches all over him. He had flea bites all over his body, his hands and his face. He witnessed riots over a period of two weeks. He was in Korydallos for six months. Over a period of two or three weeks, he witnessed violent, violent riots in the prison and witnessed somebody being beaten to death with a rubber hose because he owed the gang leader money. He had not paid him for the drugs he had bought from him.

Under Greek legislation, you can put an application for a judicial review of bail conditions after six months. However, it is a rubber stamp affair, and in most cases the conditions of bail are never reversed. After the review, the same reason was given for not changing his bail conditions and he was to remain in prison, pending trial, because he was not a Greek citizen and he was considered a flight risk.

Immediately, in the meantime, Fair Trials International and the AIRE Centre put in an application to the European Court of Human Rights, highlighting that he had been discriminated against because of his race. A further local application was put in for bail to be considered, and on the third occasion-he had been in prison for eight months now-automatically it seemed that the flight risk reason had been dropped, because they had been informed that an application had gone into the European Court of Human Rights. His bail was rejected on the third occasion with a new reason: that he was dangerous, that he could commit the same crime again and he was a public risk, so he was kept in prison.

His trial was set to commence last June, on 4 June, where we attended. The Greeks failed to summon prosecution witnesses, and it did not go ahead. At that point, Andrew’s lawyer put in a request for bail and, because it was the fault of the court that the prosecution witnesses had not been summoned, he was granted bail, and he has been on bail in Greece for the last eight months, and his trial will commence on 4 March.

Q55 The Chairman: Could I ask you on what grounds was he granted bail?

Frank Symeou: He cannot leave Greece. He has to reside at the address that we have given the court, and he signs in at the police station once a month, so it is not too harsh in that sense, but at the beginning we thought it was a million times better to be out of prison than to be in prison under those awful conditions, but we did not ever imagine it would be nine months before the case came to trial again.

Q56 The Chairman: Why was he granted bail? What were the reasons for granting him bail?

Frank Symeou: There were no reasons given, apart from the court accepted that it was their fault that the prosecution witnesses had not been summoned and that the trial could not commence on that particular day, so it was unfair to keep him in prison any further because the court had failed to summon their witnesses.

Q57 Lord Dubs: Thank you. I had a few questions, but I think in the course of your statement you have answered them all, so thank you very much.

Frank Symeou: Can I make just one more point that I did not make? With regards to the European Arrest Warrant process, it is very clear that the EAW can only be used, and should only be used, when the arresting country is trial-ready. In Andrew’s case, and in many other cases, the EAW is used as a summons for questioning. This was the case in Andrew’s case. This was brought up in his extradition hearing, but really could not go any further, because the law was quite specific, because it could not be proved. Even though we gave expert evidence from Greece, that point was rejected.

They were not trial-ready, and the first time that Andrew was questioned was by the investigating magistrate almost two years after the alleged offence. He has never been questioned by police officers. We were pushing for the 13 months while Andrew was fighting the extradition to Greece. We lobbied MEPs, MPs, the Home Office, the Foreign Office and SOCA to instigate a local UK investigation or to try to instigate mutual legal assistance so that at least witnesses could be questioned here in the UK. All the relevant witnesses are British. Andrew is British. There should have been some aspect of following-up in the case before Andrew was extradited over here in the UK.

Q58 Lord Dubs: I do have one question, if I may: how long after your son was taken to Greece and arrested and detained and so on was he able to get access to a lawyer there?

Frank Symeou: The thing is, we were very well-prepared. We already had a lawyer appointed a year before. It took 13 months before he was extradited, so we already had a lawyer who had obtained the case files from Zante. We were lucky that we had advice very early on from a British barrister to get a good lawyer. He came highly recommended. We were in a fortunate position, but many people are not in that position and they get extradited without any legal representation or preparation.

The Chairman: On behalf of the Committee, could I thank you very much for coming? It has obviously been a very difficult session for you all, and we are most grateful to you for sharing your very painful experiences with us. Could I also put on record our thanks to Fair Trials International for all the background work they did in preparing for this session? Thank you very much.