The Human Rights Implications of UK Extradition Policy: Oral Evidence

JOINT COMMITTEE ON HUMAN RIGHTS

The Human Rights Implications of UK Extradition Policy Oral Evidence

Contents Catherine Heard, Jodie Blackstock, Sally Ireland AND Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark AND Edmond Arapi ...... 2 Oral Evidence, 1 February 2011, Q 1–58 ...... 2

David Bermingham ...... 31 Oral Evidence, 15 February 2011, Q 59–76 ...... 31

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell ...... 40 Oral Evidence, 8 March 2011, Q 77–164 ...... 40

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler ...... 66 Oral Evidence, 29 March 2011, Q 165–240 ...... 66 Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

Catherine Heard, Jodie Blackstock, Sally Ireland AND Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark AND Edmond Arapi Oral Evidence, 1 February 2011, Q 1–58 EVIDENCE SESSION NO. 1. HEARD IN PUBLIC

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. Oral Evidence, 1 February 2011, Q 1–58

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

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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 Oral Evidence, 1 February 2011, Q 1–58 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

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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 Oral Evidence, 1 February 2011, Q 1–58 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.

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

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 Oral Evidence, 1 February 2011, Q 1–58 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?

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

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 Oral Evidence, 1 February 2011, Q 1–58 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, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

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 Oral Evidence, 1 February 2011, Q 1–58 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—

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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. Oral Evidence, 1 February 2011, Q 1–58

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

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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 third 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 Oral Evidence, 1 February 2011, Q 1–58 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.

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

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? Oral Evidence, 1 February 2011, Q 1–58

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 19

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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 Oral Evidence, 1 February 2011, Q 1–58 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

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

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.

Oral Evidence, 1 February 2011, Q 1–58

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

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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 Oral Evidence, 1 February 2011, Q 1–58 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.

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

Once he was handed over, he was 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. Police officers boarded and he was immediately handcuffed. 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 three other prisoners, who were also being transferred to Patras from Athens—in a cage that was meant for one, and four 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 four 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.1 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

1 Note by witness: As we had told him not to sign anything, Andrew refused to sign a slip of paper offered to him by a police officer. This slip was written in Greek and no translation was offered, which entitled him to the daily allowance of 5 Euro so that he could order some food. Because Andrew had not signed the slip of paper he was not brought any food. If it wasn’t for another prisoner Andrew would have gone without food that evening. Oral Evidence, 1 February 2011, Q 1–58 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.2 Andrew was eventually transferred through Patras again via Athens 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.3 The conditions in Avlona at that time were described by Andrew as disgusting and overcrowded with four boys in a cell. He spent four months there. Visitation was very good because we could visit three times a week, but it was behind glass, and we

2 Note by witness: Andrew had gone into a deep depressive state, almost trance like and his mother and I were extremely concerned for his mental wellbeing. With the help of the Vice Consul we arranged for a Psychiatrist to come and examine him. Andrew was diagnosed with acute anxiety, dangerously high blood pressure and depression. He was prescribed medication to help him. 3 Note by witness: Before his transfer to Avlona, Andrew was held in Patras for four days in which time he was locked up continuously in a cell. He was not allowed to shower or change his clothing, nor allowed outside. Worse of all he was refused his medication. He was then transferred to Athens where his mother and I were able to see him. By this time he looked terrible. His eyes were glazed over and he was slurring his speech. We thought we had lost our son—he was emotionally broken. 27

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi 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 higher 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.4 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 with a rubber hose because he owed the gang leader money. He had not paid him for the drugs he had bought from him.5 Under Greek legislation, you can put an application for a judicial review of the conditions of your pre-trial detention 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 automatically 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

4 Note by witness: The glass was always smeared and filthy dirty. 5 Note by witness: Andrew later told me that a rumour was going around that a man had been killed. Oral Evidence, 1 February 2011, Q 1–58

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.6 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.7 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

6 Note by witness: There were no reasons given why he was considered dangerous and the fact that Andrew has a clean criminal record, is of excellent character and has never been in trouble with the police, was totally ignored. 7 Note by witness: it was not for the courts in this country to decide whether the original local warrant was valid or not. In District Judge Purdy’s opinion this was for the Greek Courts to decide. 29

Catherine Heard, Jodie Blackstock, Sally Ireland and Sophie Farthing; Michael Turner, Frank Symeou, Deborah Dark and Edmond Arapi

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.8 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.

8 Note by witness: Andrew’s trial is set to commence almost two years after his extradition. It is a fundamental right to expect swift justice. This has not happened. In this time Andrew’s life and the lives of my family have been disrupted in ways we never imagined and we have been denied a normal family life. Our family has been split for almost two years. All legal documents served to Andrew have always been in Greek and English translations never provided. In all cases he was expected to sign for them. Evidence could not be taken into consideration because we are all European but once Andrew was extradited he suffered in prison for almost a year because he is British and not Greek—being European was of no consequence. Oral Evidence, 15 February 2011, Q 59–76

David Bermingham Oral Evidence, 15 February 2011, Q 59–76 EVIDENCE SESSION NO. 2. HEARD IN PUBLIC

Members present:

Dr Hywel Francis (Chair) Lord Bowness Lord Dubs Dr Julian Huppert Lord Lester of Herne Hill Mr Richard Shepherd

______

Examination of Witness

David Bermingham.

Q59 The Chairman: Good afternoon and welcome to the Joint Committee on Human Rights and this particular evidence session on UK extradition policy. For the record, could you please introduce yourself? David Bermingham: My name is David Bermingham.

Q60 The Chairman: Thank you very much. Could I begin by asking you a very straightforward question? Your trial took place in the United States, despite arguments that it should take place in the United Kingdom. What impact did the location of the trial have on you? David Bermingham: I’m sorry, if I could begin with a correction. I never actually had a trial. I was extradited to the United States in 2006 and some 18 or so months later myself and my co-defendants entered into a plea bargain with the Department of Justice.

Q61 The Chairman: What effect did the location have on that then? David Bermingham: There are two categories of effect; I think this is common to most, if not all, people who are extradited. The first is that you have a physical disconnection from your family and your friends. In our case we were in Houston, Texas, which was about 5,000 miles away, and we were there for as long as it took for us to decide that the best course of action was to sign a plea agreement. The other thing, of course, is that in our case—and again I think this is becoming more common in extradition cases as a consequence of the new Act—we were 5,000 miles away from everything that we needed to defend our case, the witnesses and the evidence, all of which were in the UK. We had no access to them and no rights of subpoena when we were in America. 31

David Bermingham

Q62 The Chairman: Could you say a little more about what you consider to be the human rights implications of all of this? David Bermingham: Yes. Ours was the test case for human rights in the new Extradition Act. Two key arguments had a bearing on our case, and they were obviously Article 6 and Article 8. With Article 6, we knew we were always going to lose because it has long been European jurisprudence that the standard test that you must meet in order to demonstrate that your chances of a fair trial are slim is flagrant breach. For as long as anybody recognises that—in the case of America the sixth amendment to the US constitution guarantees you a fair trial—the chances of ever winning that in an American case are slim to none, and we knew that. The much more important argument—and more interesting perhaps from a legal perspective—was on Article 8, which involves the right to a private and family life. Article 8, as I’m sure the Committee is much better aware than I am, is a qualified right. You have the right to a private and family life but that right is qualified if it is either necessary or proportionate in the interests of justice for the right to be breached. What we argued—and it is worth saying that we had Liberty intervening on our case in the High Court on this point—was that it was neither necessary nor proportionate to extradite us because the case not only could but should have been heard in the UK because all of the facts, all of the evidence and substantially all of the witnesses were here. We were accused, after all, of robbing our own bank in London, to put it crudely, and we had supposedly conspired to do this while here in London. So, Article 8 was very much engaged, and regrettably in the High Court action the Attorney-General intervened, and his counsel argued that the desirability of honouring our international extradition treaties should always trump the rights of the individual. The High Court ruled with him on that argument. They certified it as a point of public interest but, for reasons we have yet to understand, the House of Lords as it then was—now the Supreme Court—refused to hear our case. So that particular point was then taken on in the case of Mr Norris, who is now languishing in a prison in Brooklyn, New York. He too lost on the point. The Chairman: Lord Dubs, before you ask your question you want to make a declaration.

Q63 Lord Dubs: I need to declare an interest. I am a former chair of Liberty, although that was some years before any of the events that affected you took place. I wonder if I could stay with the question of location. You may have partly answered this, but of course you argue very strongly in your submission to the Home Office review panel that the first question to be considered in an extradition case should be the location of the trial. Now, would that provide additional human rights protections for those subject to extradition proceedings? You have partly answered it, but could you develop that a bit? David Bermingham: The short answer is yes. If we stick with the current framework of the Extradition Act there are basically no protections, and were you to have a forum clause within the Act that would pretty much do the job, particularly on Article 8. As I said in my paper, perhaps we’re asking the wrong questions, perhaps we’re starting from the wrong place, perhaps we should be looking more conceptually at Oral Evidence, 15 February 2011, Q 59–76 what an extradition act ought to do rather than saying, “Here’s what we’ve got at the moment, quite right”. But, yes, a forum clause would certainly answer the Article 8 point. Clearly it won’t answer the Article 6 point or Article 3 and some of the others but the main one tends to fall into the category of forum in terms of the volume of cases and the arguments that people are bringing forward and consistently losing on. So, for instance, Gary McKinnon case would almost certainly be solved by a forum amendment. There is a case of a young Muslim man, which I still find absolutely disgraceful, called Babar Ahmad who has been languishing for six and a half years in a category A prison. A forum amendment would sort that out here and now. There is no possibility of him being sent to America were there to be a forum amendment that was properly enacted.

Q64 Lord Dubs: In which case your argument is that if such an arrangement had been in place, you would not have gone to the States and everything would have happened in Britain? David Bermingham: There was not a cat in hell’s chance of us being extradited if the forum amendment, even as currently sitting in the Extradition Act, had been there at the time. In fact, as a consequence of what was happening to us, the fact that we were losing these arguments, it was we who actually drafted the forum amendments that were put forward by both the Conservatives and the Liberal Democrats back in 2006.

Q65 Lord Lester of Herne Hill: I need to declare my interests. I’m on the Council of Justice and something or other for Liberty, which I can’t remember. I also ought to say that I was educated at Harvard Law School and therefore have some familiarity with the American system of justice. I find it very difficult to understand how this Committee can pass judgement on the fairness of the independent and impartial United States Federal Judiciary, or indeed your treatment, given that you lost your challenges in this country all the way to the House of Lords and indeed the European Court of Human Rights. Are you suggesting that the American Federal Judiciary are not independent and impartial? David Bermingham: No. I’m not suggesting that at all. I think I ought to make it clear, first, that I’m not anti-American and nor am I anti the US justice system per se, or particularly not the judicial part of it. One of the common mistakes—that may be the wrong word—one of the common arguments that goes off at the wrong tangent is that you can’t get a fair trial in the US. I think that is a wholly wrong argument. The problem is that 98% of people never get to trial; that needs to be addressed. It is a matter of absolute statistics rather than my personal thoughts on the matter that 98% of people indicted in the federal system in America choose to plea bargain rather than go to trial. There is a vast amount of information, and again nothing whatsoever to do with my personal opinions as to what may have happened to me, suggesting that the United States justice system, as distinct from the trial itself, has

David Bermingham got completely and utterly out of whack and that the prosecutors over there are now judge, jury and executioner. You have to ask the question: if 98% of people opt to plea bargain rather than go to trial, is there not something wrong? There must be something, surely, that is noteworthy there. There are very many reasons that people do that. Some of them apply to us, many apply to other people, but if I were just to spend perhaps two minutes explaining some of the characteristics of the justice system there pre-trial it might give you some perhaps better feeling for why do people do what they do. We testified, or I testified in the magistrate’s hearing, given the expert advice that we had had from a Texas jurist that we would be insane if extradited to the US to do anything other than plea bargain, and that was before we had set foot in the country. But in terms of the way the system now works, you can trace back its roots as to where we are today not very far and it all began with the institution of the Federal Sentencing Commission, which is only some 20-odd years ago. What that did was to codify, by reference to a points matrix, how sentences should be doled out, depending upon various factors, and it is a matrix. There is very little discretion there for the judge; it is a matrix. So you have this sentencing system where a prosecutor can now go to a potential defendant and say, “Look, I’m going to indict you on these 15 different counts here and in aggregate, if you’re found guilty on those, you will face 350 years in prison”. People sometimes laugh at that but it is worth saying that Bernard Madoff is currently serving a sentence of 150 years in prison. In the federal system in America there is no parole: 150 years means 150 years. So the prosecutor has the ability to say to somebody, “I will put you in prison for the rest of your life”. He can then also get himself a co-operating witness by threatening that witness with exactly that, who will then give testimony. Perhaps the most stark example of this was a case called Jamie Olis, that happened during the pendency of our extradition hearing, in Houston, Texas where we were going to be extradited to. Jamie Olis worked for a company called Dynegy, very similar to Enron. He was one of three defendants all charged at the same time with the same offences. His two co-defendants were persuaded by their attorneys to enter into plea and co-operation agreements. They gave evidence against Mr Olis who stood by his guns and said, “I did nothing wrong”. They were sentenced variously to 15 months and 30 days in prison. Mr Olis, who went to trial, as a consequence of their testimony, one of whom subsequently admitted that it was false, was sentenced to 24 years. So, given that kind of a disparity between a sentence if you plea bargain or if you go to trial, added to which any costs of trial, which can run to millions and millions of dollars, are non-refundable even if you win, added to which the rules of evidence are heavily weighted in favour of the American Government, added to which the prosecutors can and regularly do delay trials and delay and delay and delay, you have a very, very toxic set of ingredients. That is why you have the statistic that you have.

Q66 Lord Lester of Herne Hill: Am I right in interpreting your evidence in the following way? Despite the constitutional safeguards in the American system, are you saying that no one should be extradited from the United Kingdom to the United Oral Evidence, 15 February 2011, Q 59–76

States, say to face a fraud trial, because of the fundamental defects in the American system of criminal justice? If you are not saying that, what are you saying? David Bermingham: No, I’m absolutely not saying that. Lord Lester of Herne Hill: Can you tell us what you are saying? David Bermingham: What I am saying is that by virtue of the fact that under the current system we are willing to extradite to America without so much as a scrap of evidence being put in front of a UK court to see whether or not there may or may not be a case, and secondly, without any reference to whether or not it might be better for the case to be heard here, we are doing a grave disservice to our citizens and other people who may be the subject of extradition. The point I was endeavouring to make in my paper to the Home Office consultation was that the act of extradition in itself is like a summary sentence because of the consequences to people, and this has nothing whatsoever to do with America. It doesn’t matter where you are sent; the chances are you will be locked up. So you are going to be locked up in a far-off legal jurisdiction, a long way away from your family and your friends and everything else. You may well have difficulties with language, legal systems, getting representations, all these other things. So the act of extradition has profound consequences, not just on the individual but on the families and the friends of the individual. So the question I would ask is, “Should we really be doing that almost entirely without safeguards or should we not say, ‘Well, hang on a minute’?”. It is such a profound consequence that it ought to be almost the last step rather than the first and at the moment, given the framework of the Extradition Act, it is demonstrably the first step.

Q67 Dr Huppert: It seems to me there are two issues we have touched on or continue to touch on: one is the extradition process, almost regardless of where it goes; the other is the US system and whether that is fair, which my very learned colleague has raised. Can I ask about the overlap of those two issues? Do you think that you were treated by the US system in any way differently because you were from the UK, had been extradited, or do you think that made very little difference in terms of the quality of the legal representation, the understanding you had of the system, the nature of plea bargains and so forth? David Bermingham: That is a relatively difficult question. I’m afraid I’m going to answer it in two different ways. Rather bizarrely, I think we were treated an awful lot better than most people. In the first instance, we were given bail. I think I’m right in saying we were the very first people ever to be granted bail, having been extradited to the United States. It is written into the United States Attorneys’ Manual that they will oppose bail because, by the mere act of fighting extradition, as far as they are concerned you are a flight risk. Added to that, of course, you are a deportable alien; you have no status in the US so the chances are they are going to put you in jail. I think it was only by virtue of the fact that our case had become so high profile that both the Prime Minister and the Attorney-General at the time intervened on our behalf to get assurances from the US Government that we wouldn’t be locked up. So,

David Bermingham from that perspective we did better than almost any person who has ever been extradited. We were also in the enviable position of having sufficient money to buy extremely good legal help, and you really do get what you pay for over there. One of the issues that I have is that the vast majority of people in this situation will, first, be thrown into prison where it is all but impossible to defend yourself and, secondly, not have the money to pay for the representation they need.

Q68 Dr Huppert: You say it is all but impossible to defend oneself. Why is that different? David Bermingham: Again, that is not specific to the United States. If you are incarcerated in a prison overseas, particularly if it is something like a white collar case that is paper intensive, managing to defend a case from inside a prison cell is all but impossible. I was in 10 prisons over the course of 18 months so I have a fair degree of knowledge about the way that prisons work, particularly in the US. Typically you will be in a 10 foot by seven foot cell with another person and the amount of documents you are allowed to have in there is about that much. So there is substantially no way you can defend yourself from inside a prison cell.

Q69 Dr Huppert: Can I then move on to the extradition process, because obviously there are limits to what we can do about the US legal system? I think we lost that war some time ago. You said in your letter that the UK’s extradition practice is at odds with every single one of our treaty partners and it exposes defendants to enormous hardship. Can you expand a bit on that, particularly what these hardships are directly as a result of the UK’s system and how that is different from other countries’ extradition processes? David Bermingham: The key thing is that the rest of the world can be divided into two categories: those who will not extradite their own citizens, full stop, and those who will in principle extradite them but in practice put roadblocks in front. In the case of the Extradition Act as it currently stands we haven’t opted for either of those two approaches. Most of the European countries, for instance, as a matter of practice don’t tend to extradite their own citizens. Of course, that has been muddied a little bit by the European Arrest Warrant, the Framework that says, “You must”, but in practice it is the way in which I suppose European countries have long worked. In practice, they tend to take a fairly pragmatic approach to these things among themselves. So what you tend to find is that they will deal with their own. For instance, there was the case of the German locum, Dr Ubani, who was wanted over here for manslaughter and by the time the Crown Prosecution Service had put a case to the German authorities they had already dealt with him administratively in Germany and so he couldn’t be brought across here to face manslaughter charges.

Q70 Mr Shepherd: I wanted to revert slightly to something that Dr Huppert said. Your own case, for instance, was a hugely controversial one here. It was fought in the Commons and central to this about the equality of extradition versus the competence Oral Evidence, 15 February 2011, Q 59–76 of another jurisdiction, the argument that the Government presented was rough equivalence. You are familiar with the expression? David Bermingham: Yes, very, or ‘roughly analogous’. Mr Shepherd: Well, we used rough equivalence in the Commons anyway. There was a great deal of discomfort about rough equivalence; that is, that a British citizen does not have the rudimentary protection that an American citizen has when we seek extradition for them. Do you have anything to say on that? David Bermingham: Yes. I think this has been a rather unhappy chapter all the way through, to be honest. It began in December 2003 when the United States was designated by the Home Secretary and in both the Commons committee and the Lords the following day the relevant Ministers, Caroline Flint in the Commons and Baroness Scotland in the Lords, made a big point of saying, “Well, we appreciate there’s a non-reciprocity here but, hey, so what?”. Over time, I think possibly partially as a result of our case and all the negative publicity that the Government was getting over the issue, that argument morphed, as you say, into the ‘rough equivalence’, ‘roughly analogous’. My personal opinion is it’s total sophistry; it’s neither here nor there. Practically, the difference is this: if you are a United States citizen who is wanted for extradition by the United Kingdom, you have an absolute right to a hearing in a United States court where you can challenge the evidence that has been put in front of the court and present evidence of your own. If, by contrast, you are a United Kingdom citizen or somebody ordinarily resident here who is wanted by the United States, you have no such right. There is no hearing here. It is as simple as that. So, to say prima facie is a little bit higher than probable cause is rubbish. It doesn’t make any difference. That is not the argument. It’s the one the Government would like to run but it’s irrelevant. It is ‘hearing in America, no hearing here’. It is as simple as that; it’s not difficult.

Q71 Lord Lester of Herne Hill: I am entirely sympathetic to the view that the US-UK extradition treaty is unequal, for the reasons that Lord Goodhart and I, among others, said in the debates at the time, so I don’t need any persuading about that. What I am in need of persuading about is your very broad attack on the American justice system—for example, that even the sentencing guidelines that lay down clear guidance to the sentencing judge ought to be part of our concern. The United States is not the Russian Federation. Its courts and its prosecutorial and its pre-trial system are covered by very stringent constitutional guarantees of the kind that our system doesn’t actually have. Therefore, leaving aside the facts of your case where you didn’t go into prison because you did a plea bargain as was your choice, my question for you is whether you are really saying that in a case like yours you shouldn’t be extradited because of the systemic flaws in the American system. David Bermingham: No, I’m not. I’m sorry if I’m not making myself clear on this. I began by saying I am not anti-extradition nor am I anti-American. I have a direct experience of the United States’ justice system on which I can give my views but they

David Bermingham are no more than my views; I accept that. What I am saying is that the extradition arrangements that the UK currently has, as evidenced by the Extradition Act, lack fundamental safeguards and the two key ones are, first, evidence, and, secondly, a forum provision. So, if you put both of those in they would act as a filter. They would not stop people being extradited to the United States, nor should they. There will always be very good reasons for people to be extradited to the United States and I am certainly not saying that they should not be. What I am saying is that at this current moment in time, as evidenced by the judgement in the case of Mr Christopher Tappin on Friday, the view of the judiciary here is that, if I may just read out, this is quoting from Lord Justice Laws, in fact, in the case of Babar Ahmad, “The fundamental assumption of good faith on behalf of the requesting state where the requesting state is one in which the UK has for many years reposed the confidence not only of general good relations but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force”. What I’m saying is that at the moment our extradition framework assumes, pretty much in blanket terms, whether it is the United States or Albania, that the legal system into which somebody is being dropped is of a standard sufficient that we really shouldn’t have any great concerns. I think as a matter of practice just to have that blithe assumption across the board is wrong. I do believe that people should be able to displace assumptions. They ought to be able to do that.

Q72 Lord Lester of Herne Hill: Surely there are two things, aren’t there? One is that if the Serious Fraud Office had thought it more convenient for you to be tried in this country they could have done so. David Bermingham: Absolutely. We tried to get them to do that. Lord Lester of Herne Hill: I know you did, but that is the first thing. So they took the view that it was more convenient for the trial to take place in the United States. Secondly, our courts are obliged by the Human Rights Act and otherwise to take seriously allegations that a foreign country, a requesting state, cannot provide a fair trial, whether under the European Arrest Warrant or under a bilateral treaty. You failed to persuade our courts that you couldn’t get a fair trial in the United States. Other than that you lost, what are the safeguards that you think would need to be added to what I have just described? David Bermingham: If we had a forum amendment and if we had an amendment requiring that the United States and all the other countries support their request for extradition with evidence I think you would find that, rather than there being 5,000 cases a year here being pushed through the courts, there would be a fraction of that.

Q73 Lord Lester of Herne Hill: But there was evidence that was before the English court before it was decided to extradite you. David Bermingham: I’m terribly sorry to disagree here. This has often been misquoted and it is a subject on which I’m quite passionate, but the extradition court made it abundantly clear that, while there may have been extradition materials before them, they could not and would not take a view on the sufficiency of that because Oral Evidence, 15 February 2011, Q 59–76 they were not allowed to by the Act. It does not allow the extradition judge to take a view, nor does it allow the defendant to contest any evidence.

Q74 Lord Dubs: You mentioned that evidence and forum were the two safeguards that you would look for. Would they be sufficient to provide adequate human rights protection as regards our treaty obligations? Would that be sufficient to do it? David Bermingham: Let me put it to you this way. I’m definitely not a human rights expert. The only thing on which I can reasonably talk is Article 8, because ours was such a landmark case on that. I think they would solve most of the Article 8 issues. Whether they would address any of the other human rights issues, I’m sorry, I’m really not qualified to say, but I think that is the key one.

Q75 Lord Dubs: Your comment was that the UK treaty obligations render the human rights bar to extradition almost entirely worthless. That is the basis of it, is it? David Bermingham: It is, because most of the arguments in practice that are heard in the extradition courts tend to centre around Article 8. There are very few cases that will talk about the possibility of torture. There are some, I appreciate, but in terms of the sheer number it is Article 8 that is most readily engaged and there are a whole number of cases on which I have been helping people, in all of which Article 8 is front and centre.

Q76 The Chairman: Could we look specifically at the Extradition Act and ask you if you could briefly tell us how you would amend that, your proposals to amend that to make the human rights bar to extradition more effective? David Bermingham: Yes. Without touching sections 21 and 87 themselves, I think there is a forum bar that is sitting dormant in the legislation. With respect, I think it is the wrong forum clause. The clause that we drafted, that was put forward in amendment by both the Conservatives and the Liberal Democrats, had a presumption against extradition if the judge decided that the UK was a better place to be, but what happened was that the Home Secretary, John Reid, put forward an amendment, which is now sitting idle on the statute book, where the presumption is in favour of extradition unless the defendant can displace that presumption. There are many able lawyers around the room here who will know that that sounds like semantics but it is in practice a very, very important distinction. What I would say as a matter of absolute passion is that the correct forum amendment ought to be the one that was proposed by the Conservatives and the Liberal Democrats in 2006, not the one that is sitting gathering dust on the statute book at the moment. The Chairman: Thank you very much for giving your evidence today. It has been very helpful to us in our inquiry.

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell Oral Evidence, 8 March 2011, Q 77–164 EVIDENCE SESSION No. 3. HEARD IN PUBLIC

Members Present

Dr Hywel Francis (Chairman) Lord Bowness Dr Julian Huppert Lord Lester of Herne Hill Lord Morris of Handsworth Mr Dominic Raab Mr Richard Shepherd ______

Examination of Witnesses

Commander Allan Gibson [Head of the Strategic Risk Management and Specialist Crime Prevention Command, Metropolitan Police], and Detective Superintendent Murray Duffin [Head of Metropolitan Police Extradition Unit]

Q77 The Chairman: Good afternoon and welcome to the Joint Committee on Human Rights and this particular evidence session on the human rights implications of UK extradition policy. For the record, could you introduce yourselves? Commander Allan Gibson: Yes, Good afternoon. My name is Allan Gibson; I am a police commander with the Metropolitan Police and I am representing the Association of Chief Police Officers, for whom I speak on the issues of extradition and mutual legal assistance. Detective Superintendent Murray Duffin: My name is Murray Duffin, I am a Detective Superintendent in the Metropolitan Police and I represent the International Section in Scotland Yard.

Q78 The Chairman: I begin by asking a question about the role of the Metropolitan Police Service in the arrest, detention and search of requested persons. Could you outline the role of the police when processing a request for extradition from category 1 and 2 countries? Commander Allan Gibson: Okay. First of all, on the bit around the Metropolitan Police and the police generally, the differentiation is between category 1 and 2 countries. Until April 2009, the Metropolitan Police did both on behalf of the police forces in England and Wales. Because of the growth of the EAW, that was no longer sustainable, and from that time onwards individual forces around the country now execute their own EAWs. But we start with the schedule 1 EAWs; the role of the police is to receive EAWs from SOCA, acting as the central gateway. When the police receive Oral Evidence, 8 March 2011, Q 77–164 it, their first job is to ensure that the warrant has been certified, which is done by SOCA; then we move on to the responsibility to locate and arrest the subject in the warrant. That is done partly through initial searches undertaken by SOCA, but then it passes to the force area where the person is believed to reside. Further, intelligence searches are undertaken, then, once we have identified where the person lives, we execute the warrant. The next responsibility is to ensure that the person we arrest is the person in the warrant—so there is a need to establish identity. We then have to bring the person before the City of Westminster court in London, whether the person is up in the north of England or London itself. Our role then is to assist the court to be satisfied that the person before it is the person stated in the warrant and also with any issues over whether it will be a bail case or not. Finally, the role is to facilitate the removal of the subject of the EAW by arranging his surrender to law enforcement officials of the host or requesting country for a departure. The Metropolitan Police deals with all category 2 extradition requests for the Police Service in England and Wales. There are two types of order, the full and the provisional; with the full cases, the papers go to the Home Secretary requesting extradition, and if they are certified they go to the City of Westminster court to be issued. The warrant is then sent to the MPS extradition unit, of which Murray Duffin is the head. Provisional cases are received by the MPS extradition unit by one of several routes—through SOCA, Interpol, diplomatic channels or through the CJU at the Home Office. An assessment is undertaken via the extradition unit to identify whether it is practical and appropriate to execute this—i.e., is there a risk of flight? If there is, the MPS officer will lay an information before a court to seek a warrant to arrest. When we have the warrant, we will execute it and put the person before the court; if it is the right person, there will be a minimum period of 45 days in which to obtain the full extradition papers and put them before the court. That is our role in processing schedule 1 and 2 warrants.

Q79 Dr Huppert: Just to follow up on that and to get more understanding of what powers you have over the people under the European arrest warrant, and how it compares to the regular powers that you have. You mentioned arrest, but I am talking about also the powers to detain, take fingerprints and DNA samples, to take photographs and to search people. Commander Allan Gibson: They mirror the powers we have for general arrest in the UK. Obviously, it is provided for by the Extradition Act. We have powers of entry and search; the powers of search—and Murray may want to come in with more detail here—are dependent on the type of warrant, whether it is an accusation warrant or a conviction warrant. In all cases, we have the power to search for identity documents. If it is an accusation warrant, we also have the power to search for evidence relating to the offence for which the warrant has been granted. So that needs to go through a proportionality test or a reasonable test if it is a very historical offence. We may not be justified in searching for evidence of an assault that happened several years ago, when the likelihood of getting bloodstained clothing and DNA and so forth will be

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell much diminished. All those considerations must be put into a search plan, which the arresting officers will undertake. Detective Superintendent Murray Duffin: They are very similar to PACE. The Extradition Act enacts those PACE powers into the extradition arena.

Q80 Dr Huppert: When you say they that they are similar to PACE, can I just press you on that? Are they the same for category 1 and 2 countries, or are they different? Detective Superintendent Murray Duffin: They are. The only difference is whether the person has already been convicted. As Mr Gibson says, if they have already been convicted, we have no power to search for evidence. If it is an accusatorial case, we have the power to search for evidence.

Q81 Dr Huppert: When you say it is almost the same as PACE, as you know the nuances of PACE make a big difference. We have had big debates here in the House on stop and search powers, for example. How different are they? What are the differences, and which direction are they? Detective Superintendent Murray Duffin: The pieces of PACE that are coming into play are not the stop and search powers, but the powers of arrest, entry and detention. The only real practical difference is that when a person has been detained and taken into custody on an extradition warrant there is no power to keep them incommunicado under any circumstances, whereas there is in certain circumstances under PACE.

Q82 Dr Huppert: But it is governed by a separate set of rules—is that right? Detective Superintendent Murray Duffin: It is governed by the Extradition Act, which enacts certain parts of PACE within it.

Q83 Dr Huppert: Does that cause confusion for officers, who have to apply one set of rules to one group of people whom they might be arresting or searching and a slightly different set of rules for another group? Detective Superintendent Murray Duffin: Practically, no. When you are looking at when a person is taken into custody and is taken before the custody officer at the police station, the relevant pieces of paper served upon them are slightly different for extradition from how they would be with PACE, in the people’s rights and entitlements. There is a separate set of paperwork, but we in the MPS are always happy to advise and supply that to other forces.

Q84 Dr Huppert: So the paperwork would be different, but an officer involved in arresting somebody would behave in exactly the same way as under PACE? Detective Superintendent Murray Duffin: When an officer is arresting someone under an extradition warrant, it is exactly the same for all intents and purposes. It is a warrant issued by a court, which is exactly the same as a warrant issued by a court for a domestic offence. Oral Evidence, 8 March 2011, Q 77–164

Commander Allan Gibson: I shall just add one point there. First, with the schedule 2 countries, only Metropolitan Police officers do that, and then only officers in the extradition unit. They are all trained and fully understand the powers they are using. With the European arrest warrants that goes more widely, but in each of the forces’ areas there is a single point of contact and co-ordination is through that single point of contact. There is a slightly different caution that officers have to use when executing a European arrest warrant; it is not difficult—it is written down. There are certain questions that they have to ask to establish identity, which again is in the briefing pack. The National Policing Improvement Agency has produced a guidance document, which sets that all out for officers, so that if they get one of these to do a quick check of the guidance document and they should be okay.

Q85 Dr Huppert: So essentially there are a few technical changes, but the safeguards are all exactly the same and the provisions are all exactly the same. Commander Allan Gibson: Yes. Detective Superintendent Murray Duffin: They are.

Q86 Lord Lester of Herne Hill: I think Commander Gibson said that you use a proportionality or reasonableness test. Which is the one that you tend to refer to— because obviously they are not the same? Commander Allan Gibson: Officers are trained to use an acronym called PLAN— proportionality, legality, accountability and necessity. It is a general human rights framework which is instilled in them all the way through their training. They should be conscious of the four dimensions of that framework. If they are going to seize evidence in a house, they have to ask themselves, “Is this necessary, is this legal, is it proportionate and am I keeping a record of it—is it accountable?”

Q87 Lord Lester of Herne Hill: So the test is proportionality, not reasonableness. Commander Allan Gibson: Yes.

Q88 Lord Bowness: I am going back a bit to what Dr Huppert was asking. Can you help the Committee by outlining the major differences between codes of practice and the Police and Criminal Evidence Act, which we use for domestic cases, and the code of practice set out in the Extradition Act? Detective Superintendent Murray Duffin: Practically, for the officer executing the warrant there is very little difference indeed. As we have said, the caution is slightly different and the notice of entitlement given by the custody sergeant is slightly different, but to all intents and purposes— Lord Bowness: But there is nothing else? Detective Superintendent Murray Duffin: No.

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Q89 Lord Bowness: This may sound like a naïve question, but what information are the arresting and the custody officer obliged to give, when someone is put under arrest in an extradition case? Detective Superintendent Murray Duffin: A copy of the warrant needs to be served upon them, and a notice of their rights and entitlements, which mirrors PACE but says that under the process of the Extradition Act they are entitled to speak to a lawyer exactly as they are for a PACE arrest. That is about it. The certification of the warrant is part of the warrant itself.

Q90 Lord Bowness: And that is the same under the EAW? Detective Superintendent Murray Duffin: For the EAW, they receive a copy of the warrant and a notice of the right to entitlement when that warrant has been certified. If they are arrested on a domestic warrant, they will receive a copy of the warrant and a copy of their notice of the right to entitlement. So there is very little difference.

Q91 Lord Bowness: And are there any circumstances in these cases where police officers make a provisional arrest of people? Detective Superintendent Murray Duffin: There is, and under schedule 2 or category 2 countries we often make provisional arrests. However, the provisional arrest is still subject to a warrant procedure. You still have to swear an information before magistrates at the City of Westminster magistrates’ court and receive a provisional arrest warrant before we can make the arrest. So it is not that we arrest without a warrant, but we arrest with a provisional warrant.

Q92 Lord Morris of Handsworth: My first question is largely around the possibility of mistaken identity. What identity checks do the police carry out pre-arrest to avoid cases of mistaken identity in extradition requests? Commander Allan Gibson: I will have a go at this, then Murray can help me out. We seek identification documents from the requesting country—passport numbers or birth certificates and other things that you are likely to find in the possession of the person. Also we do our own checks to find out whether the information that we have about them equates with what we should have from those identification documents. On arrest, officers are required to ask specific questions such as, “Are you so and so and what is your date of birth and where were you born?” We differentiate between cases where identification is admitted and those where identification is an issue. When it is an issue, we can get the person remanded in police custody while we undertake some checks around fingerprints. We do biometric testing to see whether we can establish that person’s identity beyond doubt. Detective Superintendent Murray Duffin: In most cases, we receive fingerprints with a request, so we do not have a problem because we can put those fingerprints on the system. When we put that person into custody, we can search for fingerprints against the database and it is either them or it is not. On occasion, we find that if we load fingerprints on to the system, we find unsolved crimes within the UK that those Oral Evidence, 8 March 2011, Q 77–164 fingerprints match to. There are domestic offences that come into play as well, but fingerprints are the normal method if identity is in dispute.

Q93 Lord Morris of Handsworth: Do you have any discretion to refuse to execute extradition requests? If so, on what grounds can the execution of an extradition request be refused—and, if at all, how often? Commander Allan Gibson: No, we do not have that. Detective Superintendent Murray Duffin: We do not have discretion to refuse. If the warrant is certified—if we are looking at EAWs—by SOCA as correct and meets the framework decision, it is executable, and the warrant will state to every constable that it should be executed. What we do have discretion around is our own operational response. Within the Metropolitan Police we have a matrix system and every request that comes to us is scored against this matrix system. It is quite simple really—it is about the seriousness of the offence and of the offender. The most important thing for us is to ensure that someone who is subject to a requirement to be extradited overseas to face trial does not commit further offences while in the UK or create further victims. For simple ease of argument, a rapist or a murderer would come higher up the list than a shoplifter.

Q94 Dr Huppert: If you do not mind, I shall just pick up on a couple of things you said in answer to the two noble Lords. You described a very procedural process. There are some things that I have heard from witnesses who have come before us where it would be helpful to understand some of the high-level functioning. We have had witnesses suggesting that they get very little information, not just about what the warrant is but about what happens next—what is the process, because they are not familiar with it. Do you think that you have a role in conveying that information to people? Commander Allan Gibson: I do think we have a role, but it would depend on the knowledge of the officer who is dealing with that person. We have a requirement to tell them not just that there is an EAW in existence for their arrest; we also have to give information about the offence described within that warrant. We have to say that it relates to this date, this place and this allegation. So it should not be just that they are told that there is a warrant out for their arrest and no more. As for an explanation of what happens next, that is done either by the arresting officer or, if not, it should certainly be done by the custody officer when someone is booked in; they will then be told what court they are going to and what will happen next. Obviously, they will have access to legal representatives, who should also be able to explain. So there may always be that criticism, and I am sure that it is true on some occasions but, equally, within the system there are plenty of points where that information can be provided.

Q95 Dr Huppert: I am glad to see that you accept that there is a role in that, and I hope that it is done more thoroughly. Lord Morris spoke about the case of mistaken identity, and you drew a distinction between a case where the person challenges their

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell identity and one where a person agrees it. What about a case such as a witness gave us whereby somebody says, “Yes, that is me”—so the case is not that you have arrested the wrong person now but that the original charge is against the wrong person. We had one witness, for example, who could prove that he was in a different country at the time. Do you pay any attention to that aspect of mistaken identity? Detective Superintendent Murray Duffin: That is evidence and that is an alibi, and the correct place to hear that is where the charge has been laid. If an individual says that he was charged with an offence in Spain but that he was not there and that it was not him, the place to hear that would be Spain.

Q96 Dr Huppert: So you would not play any role in that? Detective Superintendent Murray Duffin: That is part of the evidence for the defence. Commander Allan Gibson: It is a matter for a court

Q97 Lord Lester of Herne Hill: We have been looking so far at cases whereby those in other countries are seeking to use the system. When we seek to do so ourselves, what is the role of the police in cases when we seek to extradite someone from a category 1 or 2 country? Could you take each one in turn? Detective Superintendent Murray Duffin: The role of the police is to complete the investigation to a standard whereby that person could be charged with an offence. We then seek a decision from the CPS as to whether the offence is charge-ready, as we call it, and whether the CPS would lay a charge. Then we can ask for a first instance arrest warrant from the court. It is then a matter for the CPS to draw up and apply for a schedule 1 or 2 warrant, which will then be transmitted to a country where we, the MPS, or whichever other force believe that person may be.

Q98 Lord Lester of Herne Hill: So is the position then that the test is a CPS test rather than a police test? Detective Superintendent Murray Duffin: If the person is to be charged with an offence and it is an accusatorial case, the CPS make the decision as to whether it is charge-ready; if they are already charged, that decision has been made.

Q99 Lord Lester of Herne Hill: So what role do the police play in deciding whether to issue a request? Detective Superintendent Murray Duffin: It is to make the request of the CPS. We have internal guidelines within the MPS of the sort of offences for which we would seek an extradition warrant. Commander Allan Gibson: Can I come in on that one? That is a good point, because it plays out more widely around the test of proportionality. We are quite conscious of cost and have to bear in mind what the likely penalty might be at the end of the process. So cost and end product or outcome are relevant considerations. Within the United Kingdom we exercise that judgment; people may be wanted for a small shoplifting charge and circulated on police national computer, not on an arrest category but on a trace. We want to know where this person is—then we can decide Oral Evidence, 8 March 2011, Q 77–164 whether we want to spend £2,000 of public money going up to the Isle of Skye to bring them back or whether we will say, “No, we know where they are, we’re going to serve them a summons and bring them down”. Although a warrant may be in existence, on domestic warrants we exercise a test. In the same way, if I was a senior investigating officer or crime manager, I would say, “I know you’re investigating that and I now know that the person is in Lithuania, but I don’t want you to do that, because it is not justifiable with the scarce resources we have to manage”.

Q100 Lord Lester of Herne Hill: So am I right that you are concerned with resource implications while the CPS is concerned with criminal tests? Commander Allan Gibson: I am sure the CPS would also exercise a public expenditure perspective as well, although it is not one of their tests. Detective Superintendent Murray Duffin: The CPS will not apply for an extradition warrant unless the police ask them to. So we instigate the proceedings, and proportionality and costs are a big consideration in that decision.

Q101 Richard Shepherd: But that cannot apply when it is an application to us. Commander Allan Gibson: Precisely. That is one of our things with the EAW, that we would like a proportionality test brought in.

Q102 Lord Lester of Herne Hill: Can I just follow up on what Mr Shepherd has just said? From your own knowledge and experience, do other countries within the EU operate similar tests and standards to those that we operate? Commander Allan Gibson: Apart from Poland, they appear to, because the figures that we have suggest that of the 4,000 or so EAW requests that came to the United Kingdom in 2009-10, 2,400 came from Poland. The next largest country was Germany, which was 250, or something like that. Germany is a bigger country than the United Kingdom, so it seems to be exercising some proportionality tests in its requests to us. I do not know—I am just inferring it from the figures.

Q103 Richard Shepherd: But you can tell, presumably, by the nature of the requests. What does that tell you? Commander Allan Gibson: They seem to have a proportionality test. Richard Shepherd: Germany—but not the Poles. Commander Allan Gibson: No.

Q104 Richard Shepherd: So what sort of offences are they seeking extradition for? Detective Superintendent Murray Duffin: The lower level of the offences has been widely reported and discussed an awful lot. The Poles have been sending requests for relatively minor offences of criminal damage and theft—that type of offence. An awful lot of work has been carried out with the Home Office and the CPS and with ourselves, with various meetings and bilateral arrangements with the Poles to try to

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell introduce some sort of proportionality test. Anecdotally, I would say that those types of requests are reducing.

Q105 Lord Lester of Herne Hill: But suppose hypothetically that a member state classifies criminal damage or theft of a minor kind as punishable by more than two years’ imprisonment. As I understand it, nothing can be done under the system to refuse extradition on the grounds that it is being disproportionately classified, and that something trivial has been classified as serious in terms of punishment. Detective Superintendent Murray Duffin: If you look at the offence of theft, for example, within the UK for a first offence as an adult, you could be—although you never would be—subjected to five years’ imprisonment. Therefore it meets the test for extradition is as it would be if it were coming in from another country. No proportionality test is written into the framework or the legislation, so if we receive a request and it is certified and meets all the requirements, it is to be executed.

Q106 Dr Huppert: The 2003 Act gives quite strict time limits as to how quickly you have to process extradition requests. Does this give you problems as to practically getting on with it? Detective Superintendent Murray Duffin: As processing requests when someone asks us to do so? Dr Huppert: Yes. Detective Superintendent Murray Duffin: With the time limits for processing an incoming request when it gets to us to execute, we will execute using our own systems. As I have said, the most important thing for us is the risk that individual poses to the British public. So we will execute a request depending on where they meet our own proportionality test.

Q107 Dr Huppert: There are some tight timetables—10 days if they consent, for example. Detective Superintendent Murray Duffin: Sorry, you mean the end of the procedure—not the arrest procedure but the judicial procedure for them to be extradited. Should they consent to the arrest, it gives 10 days for the requesting country to send some escorts physically to collect that individual. Dr Huppert: And you would be able to comply with that. Detective Superintendent Murray Duffin: We would.

Q108 Dr Huppert: Presumably there are delays. What are the consequences if there is a delay either in presenting an arrested person to the court or in removing the prisoner from the UK? Detective Superintendent Murray Duffin: The magistrate has the option to discharge them.

Q109 Dr Huppert: Does that happen? Detective Superintendent Murray Duffin: Rarely, because if there is a good reason for it, we will put that before the court. A person has to be presented before the City Oral Evidence, 8 March 2011, Q 77–164 of Westminster magistrates’ court as soon as is practicable, as the legislation says. If you are bringing them from Newcastle it will take longer than if you are bringing them from Hackney.

Q110 Dr Huppert: The trains are reasonably good. If you have 10 days, it normally gets there. Detective Superintendent Murray Duffin: This is really within 24 hours, because if a person is arrested at 4 o’clock in the afternoon in London, we will have them before the City of Westminster magistrates court the next morning, because that is reasonable. If they are arrested at 4 o’clock in Newcastle, it would probably be more difficult. So that is the first stage. Then you go down the judicial process with the hearings and the cases that come after that.

Q111 Dr Huppert: But you are content with the time limit, you can work with them and they work fine. Detective Superintendent Murray Duffin: Operationally, yes.

Q112 Lord Lester of Herne Hill: Are there any pre-arrest procedures that you recommend should be in place to deal with some of the problems? Detective Superintendent Murray Duffin: Which problems are we talking about? Lord Lester of Herne Hill: I am not sure. It is an open-ended question. Is there anything that you would like to recommend, or are you content with the present system? Commander Allan Gibson: Around European arrest warrants? Lord Lester of Herne Hill: Around European arrest warrants, yes. Commander Allan Gibson: We can come back to whether you can put in a proportionality test. Murray mentioned the fact that offences in theory, such as theft and shoplifting, a sentence can keep you in prison for five years on first conviction. Under other parts of the law, we have a concept of serious arrestable offence where we go further than that and say what a person on first conviction is likely to get. We add a rider to that so that if you are a first-time offender and you commit this offence you are likely to get a sentence of so and so. That makes a slightly more sophisticated test, which you could apply to some of these offences. If you applied them, you would quickly conclude that it was not appropriate to use an EAW. That would be my answer to that question.

Q113 Lord Lester of Herne Hill: Would it be open to the UK unilaterally to do that? Commander Allan Gibson: I do not know constitutional law, but I believe that under the framework agreement there are some possibilities for individual countries to have provisions in their own law. I think Belgium has a requirement that says that you cannot be extradited to a country if that country regards abortion as murder.

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Q114 Lord Lester of Herne Hill: We have a human rights safeguard ourselves, as a domestic traditional criterion, which we may come back to. But what I am asking is slightly different. Suppose that another country wrongly classifies something that is obviously to be regarded as trivial as serious; under the system we cannot unilaterally question that in our police or judicial system? Commander Allan Gibson: No, we cannot—and it might be dangerous to do so, as well, is my first reaction, when we are not party to the full facts of the case or the gravity factors that may be involved in the commission of an offence. It is more about exercise of a proportionality test on the part of the requesting country. It is more difficult if we try to exercise it at the other end and try to second guess what is right in any individual case.

Q115 Lord Lester of Herne Hill: This is rather indiscreet of me, but never mind. We operate under the pleasant fiction that all the member states within the EU have impartial courts and fair systems that operate properly, whereas in reality I would suggest that that may not be the case. But the system operates on that assumption, doesn’t it? Commander Allan Gibson: It does, but I am sure your judgment in these matters may be better than mine. I would prefer to keep my counsel.

Q116 Lord Lester of Herne Hill: Is there any pre-arrest planning that you can think of that police authorities should do, but do not do already, to try to deal with the kind of problems that you have been asked about, or are you satisfied that the planning is sufficient? Commander Allan Gibson: Planning for arrest is an operational matter, not a matter for the police authority; it is for the Chief Constable. We do risk assessments and try to identify the person we are dealing with and the offence for which they are wanted. From that point of view, we do plan. The number of officers who are sent to undertake an arrest will reflect the risk assessment that we have undertaken.

Q117 Lord Morris of Handsworth: Can we just take a moment to look at the possibility of double jeopardy? In that context, could you comment on the double jeopardy provision in the European arrest warrant, which can prevent the return of a person wanted for an offence committed in the UK? Commander Allan Gibson: This is the provision whereby if you are acquitted in the United Kingdom, you cannot be extradited to another country. I can see that that is absolutely right. We fully respect that principle and are aware of it. It is sometimes very difficult to say whether it is a different offence, but based on the same circumstances. You can have complex matters when you investigate and identify different offences. I understand why that has been put in place, but sometimes it may be difficult to have a surgical analysis of whether it is double jeopardy or whether it is slightly different, based on the complexity of the facts. Detective Superintendent Murray Duffin: This is a matter that will be dealt with at the extradition hearing in any case. If those provisions were brought to bear, it would be part of the considerations for the district judge hearing the matter in EAW cases. Oral Evidence, 8 March 2011, Q 77–164

Q118 Lord Morris of Handsworth: Can you see any problems arising if the subject to be extradited is already under investigation for an offence committed in the UK? How can these problems be prevented? Detective Superintendent Murray Duffin: Operationally, it does not cause us a problem. If an individual is already being investigated for an offence within the UK and has already been charged, that will take primacy over an extradition warrant. We can execute the extradition warrant and then stay the proceedings until the conclusion of the domestic hearings. That is done very regularly and is not a problem at all.

Q119 Lord Morris of Handsworth: What about if the domestic hearing results in a custodial sentence? Detective Superintendent Murray Duffin: Then we wait until the end of the custodial sentence or we can produce that person and put them before the extradition court for the hearing to take place, which can result in them being removed at the end of that custodial sentence. If the custodial sentence is particularly lengthy, we can do a temporary surrender, so that person could go to another country and be heard.

Q120 Lord Morris of Handsworth: So there is no time barrier? Detective Superintendent Murray Duffin: No.

Q121 Dr Huppert: Can I just come back to the sheer number of cases that we get. You have touched on this slightly already. As I understand it, as well as Poland having a particularly high number of requests, the UK also gets a lot more requests than anyone else. If it was simply that Poland did not have a public interest test, you would expect it to be making huge numbers of requests of other countries as well. Maybe there is something special about Poland, but is there something special about the UK to explain why we get twice as many requests as any other state? Detective Superintendent Murray Duffin: Because of the makeup of our population.

Q122 Dr Huppert: What do you mean by that? Detective Superintendent Murray Duffin: We have representatives from every nation in the globe. We are a very diverse population. There are an awful lot of foreign nationals living in the UK. It is as simple as that.

Q123 Dr Huppert: The figures I have refer particularly to European arrest warrant arrests. Do we have that many more people from all the other European countries than France or Germany, for example? Detective Superintendent Murray Duffin: I do not know the figures or the demographics, but we certainly get more requests.

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Commander Allan Gibson: I do not know the answer to your question. I do not understand how they operate the European arrest warrant in their countries and whether there are any qualitative differences, but I think the cosmopolitan nature of our population is certainly part of it.

Q124 Lord Lester of Herne Hill: I do not really understand that reference to the cosmopolitan nature of our population. When Poland requests that alleged criminals should be sent from here, I do not think you are saying that because of the cosmopolitan nature of our population, we have more crooks here who are foreigners than other countries do. Germany and France and Italy, for example, all have very large migrant populations. You do not have to be foreign here to be a crook. I still do not really understand why we are a magnet for so many requests. It is a very interesting subject, but I cannot see the answer. Commander Allan Gibson: To be frank, I do not know why we have a different rate of requests into the United Kingdom. We do have a large Polish population. I do not know the comparative size.

Q125 Lord Lester of Herne Hill: But do we have any information about the nationality of those who are being sought by Poland? Are they mainly Polish? Detective Superintendent Murray Duffin: Almost exclusively.

Q126 Lord Lester of Herne Hill: They are almost exclusively Polish? So it is not the cosmopolitan nature of the population; it is the fact that we have a lot of Polish settlers in Britain. Commander Allan Gibson: That is part of it, but we also have requests from a large number of other European countries. There are 25 other countries. We have a very diverse population in the United Kingdom. In London particularly, we have a very richly diverse population, including from the former eastern European countries.

Q127 Mr Raab: I have two questions, really. The first is to follow up on what you have said. Like Lord Lester, I am a bit perplexed. Are you trying to say, in a very diplomatic way, that Britain has disproportionately more European foreign nationals with criminal records coming to our country compared with other countries? Commander Allan Gibson: I have no empirical evidence on which to say that.

Q128 Mr Raab: But is that your suspicion? You say that we are a cosmopolitan society. I would be slightly cautious about drawing an inference from that, but if you are saying, as a raw numbers game, that we have more migration of foreign criminals to this country, for whatever reason, and that is what you are picking up on your radar screens, that would be empirical data. Commander Allan Gibson: I think I could agree with your assertion apart from the word “more”. I do not know whether we have more. I know that we have an issue with criminals who originate from other countries, particularly in London. That is a common feature of the criminality we are dealing with. Oral Evidence, 8 March 2011, Q 77–164

Q129 Mr Raab: Given the rising number of requests—I had a quick look and in the first quarter of this year they had gone up again—under the EAW, can I ask you a broad policy question? It is a bit unfair, because you are seeing one side of the coin, but because you are in the Met, I am sure you are also aware of the law enforcement benefits more broadly that we glean from the EAW. Do you think that we as a country or you as a police service, the Met, get as much out of the European arrest warrant as you put in, in terms of the resources that it diverts from you and given the pressures you are under?

Commander Allan Gibson: When you are in a club with 27 members, you are never going to get parity. If we have 200 requests for warrants to be executed in other countries, with 26 other countries requesting of us, they are never going to be matched; they are always going to be out of kilter. The aspiration is not for parity. We need to take a broader and more mature view of the benefits of being a member of the EAW scheme. When you need to have someone arrested abroad, it is a simpler, faster and more certain process of getting a person before your courts. The police service benefits from that. It is much easier than what went before.

Q130 Mr Raab: In a way, I was asking you a slightly cruder question. In terms of sheer resources—let’s take the Met—do you see as much going into the search, the follow-up and the execution of arrest warrants issued on the United Kingdom as you see on the other side for requests that you have put in? Commander Allan Gibson: I could probably give you some data around that. There are around 200 requests being made. That led to about 100 surrenders into UK custody last year. The figures the other way around were 4,100 requests of us and we surrendered 700 and arrested 1,032. Proportionately, we are getting more reliable conversion of a request into a surrender into our custody than the other way round. Detective Superintendent Murray Duffin: When you look at the UK requests that I outlined, they are for the more serious spectrum of offences. The country being requested by the UK will tend to put the requisite resources into finding that person and arresting them. We do an awful lot of work with Spain, where British criminals are living. The Spanish are very helpful in executing those requests. The Chairman: Mr Raab, do you have one final question?

Q131 Mr Raab: I do have one. The European investigation order, which is very much in support of the EAW, is very much in draft stage at the moment and it is going through. I wonder whether you have any concerns and whether you have fed them in about the operational strain that it will put on you, given that effectively, at least under the original draft, it allows EU investigative authorities to mandate UK forces, again with very little discretion, to do investigation in relation to crimes originating in their countries, but with an evidential trail in Britain. Commander Allan Gibson: Yes, I have had an opportunity to make my views known. I have written a letter to the Home Office setting out the views of the Metropolitan

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Police and the Association of Chief Police Officers. We broadly support exploring this further, with a caveat around proportionality. We would not wish to have that same lack of control and not be able to say that we do not think that that is a proportionate use of our resources, particularly when, while you never know what workload this might lead to, there are a lot more investigations than there are arrests. The potential for work to come in is greater. We observe that the current systems of international letters of request are slow and cumbersome. Quite often, we get the answers to our requests coming in far too late. The trial has run its process. There may be benefits. We like the idea of putting time limits on the response, provided they meet the proportionality test and there are safeguards that we will not do something for you that we would not do for ourselves because we would not apply that level of intrusion or commitment of resource to an investigation in this country. Detective Superintendent Murray Duffin: We do this anyway. This is not new work; it is just a different way of doing work that we already undertake. While it may lead to an increase in requests, because it becomes simpler as the EAW made extradition simpler, you have to look at the benefit outgoing as well, because there are benefits both ways.

Q132 Mr Raab: Would you be able to share that letter with our Committee? Commander Allan Gibson: Yes, I am sure I could.

Q133 Lord Morris of Handsworth: Do each of the 27 participating countries meet their own costs? Detective Superintendent Murray Duffin: They would provide the cost if they are looking for somebody to be extradited from the UK. They will obviously provide the escorting officers, who will fly in, and the cost of the ticket for them. Lord Morris of Handsworth: And vice versa if we are making the application. Detective Superintendent Murray Duffin: Yes.

Q134 The Chairman: I have one final question. Could you explain the process whereby an extradition request is withdrawn? Detective Superintendent Murray Duffin: It is a simple matter of making the request to whomsoever it was issued to. If it is a category 2 country, that request would go to the Home Secretary for the warrant to be revoked. If it is an EAW, it would go through SOCA. It is just a simple matter of asking. It is no more complex than that.

Q135 Lord Lester of Herne Hill: I know that this is not part of what you have been asked already, but suppose that another country accuses someone of a crime and puts their name into the European information system, so that right across Europol and across Europe, that person is effectively treated as a fugitive. Are there any safeguards for such a person just for being put unfairly into the system, or are the safeguards only when an application is made to transfer that person from state A to state B? Oral Evidence, 8 March 2011, Q 77–164

Detective Superintendent Murray Duffin: Are we talking about the Schengen Information System? Lord Lester of Herne Hill: Yes Detective Superintendent Murray Duffin: Obviously, as we are not part of Schengen, we do not have Schengen alerts. For the rest of the EU who are part of the Schengen agreement, their method of transmitting EAWs throughout the rest of the EU is to place it on to the Schengen system. Once that person has been placed on to the Schengen system by a requesting country, that is an EAW to all intents and purposes and that person is subject to an arrest. Q136 Lord Lester of Herne Hill: But are there any safeguards?

Detective Superintendent Murray Duffin: No. But for it to come to the UK, it comes through SOCA via those channels. What the UK has, but no other countries have, is a certification process. SOCA will certificate that warrant to say that it meets the standard and meets the framework decision prior to it going to a police force for execution. The Chairman: Thank you very much for your evidence this afternoon.

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Examination of Witnesses

Ms Charlotte Powell [Chairman, Extradition Lawyers’ Association].

Q137 The Chairman: Good afternoon. Could you introduce yourself for the record, please? Ms Charlotte Powell: Good afternoon. My name is Charlotte Powell. I am a barrister in private practice at Furnival Chambers. I am also the founding member of the Extradition Lawyers’ Association and, until recently, was chairman of that association. When I speak today, I speak not on behalf of the ELA but to represent my own personal, professional opinion.

Q138 The Chairman: Thank you very much. Could I begin by asking you a question about the human rights threshold test? Can you comment on the suggestion that extradition judges are reluctant to refuse surrender on human rights grounds in the European arrest warrant cases? Ms Charlotte Powell: In my experience, extradition judges have been reluctant to order that a person's extradition is barred by reason of human rights. There has been an increasing unwillingness to do so since the implementation of the Extradition Act 2003. The reasons for that unwillingness, I would suggest, are twofold. The first is the high threshold test that has been set by case law, notably by the administrative court and the European Court of Human Rights. The second reason, which really compounds the first, is the difficulty that some defence lawyers have in trying to locate evidence to put before the court to substantiate the risk of a breach of human rights. I will be happy to deal with those two issues in a bit more detail in turn, if that is convenient for the Committee. Starting with Article 3, the current test that applies to establish whether there is a bar to extradition is whether there are substantial grounds for believing that there is a real risk that an individual would be subjected to treatment which is “inhuman and degrading”. The case of KRS v the United Kingdom was heard in Strasbourg in 2008 and I mention it briefly because it has led to a line of authority in the United Kingdom which has set the threshold test very high. Briefly, then, in KRS v the United Kingdom the Strasbourg Court made the following observation: it recalled that Greece, as a contracting state and the country to which KRS was due to be sent, had undertaken to implement the European Convention on Human Rights and had undertaken therefore to secure to everybody within Greece the rights that the European convention affords them. The court went on to state that, “in the absence of any proof to the contrary it must be presumed that Greece will comply with that obligation in respect of”, subjects who returned to it. In this jurisdiction in the case of Jan Rot v Poland, before the administrative court last year, Mr Justice Mitting cited that passage as being equally applicable in extradition cases where appeals were brought. He stated that that quotation must apply with at least equal force. Oral Evidence, 8 March 2011, Q 77–164

So far so good, to the extent that that must be a manifestation of the principle of mutual trust, but his Lordship went on to state that category 1 states, those within which the European arrest warrant is implemented, “can be taken to have accepted between themselves that conditions of detention and the adequacy of fairness of criminal justice systems in such states will not be required to be examined by other states when considering extradition applications”. On its face, it looks as though that passage seems to exclude any possibility of a defendant in extradition proceedings rebutting the presumption that was outlined in KRS. The concern is that that decision has been added to and consolidated by other cases. I will cite one more, if I may: the case of Klimas v Lithuania, again decided in 2010 and where, applying his own reasoning, Mr Justice Mitting stated that he would hold, “as a matter of principle … as I did in Jan Rot that when prison conditions in a Convention category 1 state are raised as an obstacle to extradition, the district judge need not, save in wholly extraordinary circumstances … examine the question at all”. The difficulty that we as extradition lawyers have is that since those decisions, a third decision of the administrative court has proposed a competing line of argument. That was a case handed down on 2 February 2011, Targosinski v Judicial Authority of Poland, in which Lord Justice Toulson gave the leading judgment. In that case— The Chairman: Can I pause at that point? You may be anticipating a lot of our questions. Can I, with respect, ask you to stop at that point and allow Lord Lester to ask a supplementary, then Mr Raab?

Q139 Lord Lester of Herne Hill: I should declare an interest, I suppose, because I was in a case which I think was called Khemais, where three Tunisians were seeking not to be sent to Italy for fear that they would be sent on to Tunisia and face ill treatment under the previous regime—a case I lost. Therefore I perfectly understand, from my own experience as a practitioner, the problems that you are describing but we are a parliamentary Committee and we have to think about the framework of the Council of Europe system, which is based upon the assumption that all the member states of that council have independent and impartial courts and fair systems of justice. We are not able, as a national Parliament, Government or judiciary, as it were, to violate that general system except for very good reason. My question really is: granted that the case law is entirely as you say, what do you suggest could possibly be done about it? Given that comity between different systems of justice and different courts requires our courts to give full faith and credit to other systems, in the absence of really cogent and compelling evidence of something violative of human rights happening elsewhere is it not virtually inevitable that our courts are going to adopt the approach that you are understandably criticising? Ms Charlotte Powell: The approach that I have summarised is such as to create an irrebuttable presumption. That is not my understanding of what the intention of the European framework decision was—nor is it your Lordship’s, with respect, on the basis on which you summarised the law and our political obligations of comity there. I cited the case of Targosinski because it is interesting and, perhaps, helpful for this

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Committee to note that in that case Lord Justice Toulson considered that there were conditions that might make it possible to rebut the presumption. That is helpful to us as practitioners because it enables us to be aware that it is possible to use Section 21 of the Extradition Act 2003 to argue that extradition should be barred on human rights grounds. The reason that Lord Justice Toulson gave for there being the ability for lawyers to argue that the presumption should be rebutted was where, for example, there had been evidence of systematic violations of a convention right by a requesting state. The particular example that he gave, which I cite today, is Orchowski v Poland: an ECHR case of 22 January 2010, in which the Strasbourg court held that Poland had allowed there to be systematic violations of Polish prisoners between 2000 and about May 2008. There we have a judgement allowing us to displace, if I can use that word, the presumption which KRS set up. The courts are, quite rightly, looking for potent evidence to displace the presumption but it is important to bear in mind how high the threshold test incorporated within that presumption in the first place should be. When we look back to the January 2003 House of Commons Standing Committee Hansard transcripts, the words of Bob Ainsworth, who was then the Parliamentary Under-Secretary of State at the Home Office, were informative. He said: “It is unambiguously set out in the Bill that people should not be prevented from alleging that their human rights would be breached and that they could not secure a fair trial”, for example, “in another jurisdiction. That is fine by me. Extradition will be barred if they can convince the district judge that that will be the outcome”.

Q140 The Chairman: Can we pause at that stage? I am conscious of the fact that you have a kind of a script or a memorandum in front of you. Could you share that with this after the session is over? Ms Charlotte Powell: Certainly. I will be more than happy to forward the quotes to the Committee. The Chairman: I ask you then to be a little briefer in your answers, because you seem to be following a script. Lord Lester of Herne Hill: Can I ask one supplementary? The Chairman: Very quickly, then we will move on to Mr Raab.

Q141 Lord Lester of Herne Hill: I find what you have said very helpful. I am sure that if you can put it in writing that would help greatly. Am I right that what you are really saying is that, in fact, there is nothing much wrong with some of the case law but that, in Britain, there is something wrong with lower court case law and that it needs to be clarified in a way which allows our courts to use the human rights standards effectively? Ms Charlotte Powell: Yes, the undertakings that were given originally in the parliamentary discussions that I referred to indicate that there should be an effective safeguard, but there clearly is not if there is an irrebuttable presumption. Lord Lester of Herne Hill: I understand. Ms Charlotte Powell: The solution is to legislate for a test which is clearer for practitioners and therefore clearer for our clients. Oral Evidence, 8 March 2011, Q 77–164

Q142 Lord Lester of Herne Hill: No, I am sorry, but aren’t you saying that it is not about legislating but that Lord Justice Toulson’s approach is right and does not involve an irrebuttable presumption? Therefore, if the courts follow his approach all will be well and if this Committee were to commend that approach, it would be in accordance with your evidence. Ms Charlotte Powell: Except for the fact that I would not necessarily agree that Lord Justice Toulson’s judgment goes far enough. The benefit of legislating for a test is that it would relate to more than one article of the European Convention and would simplify the law in practice. If there were one test throughout—I know that that has been recommended by Fair Trials International, for example, and I shall not repeat it—it would make it a lot easier for requested persons to know what their rights are. The evidence that might be relied upon in order to establish that there has been a breach, whether that is set out in legislation or whether we are simply prepared to stand by a particular judgment of the administrative court, is something which this Committee might want to know more about. Lord Justice Toulson seemed to be suggesting that only if there was a decision of the European Court of Human Rights, effectively stating that there had been a violation by the requesting state, could we rely upon that as evidence of a breach of the threshold. The reality is that there may be systematic violations of human rights before a case gets to the European Court of Human Rights and we as practitioners, including myself, might want to be able to point to evidence from various sources— not just country reports from the European Committee for the Prevention of Torture, for example, but other experts in foreign jurisdictions such as lawyers from the requesting state who may be party to appeals that are being brought against requesting states that have not yet got to the European Court of Human Rights. In some states, it might take longer for cases to get to that court than we are used to. If that is the case, it would seem wrong to deprive a requested person in this country from raising the issue in this jurisdiction as a bar to extradition. Lord Lester of Herne Hill: Was— The Chairman: No, you have had too many supplementaries. You will have plenty of time later.

Q143 Mr Raab: Can you just give us a sense of this? You referred to the Fair Trials International definition, which it sounds as though you endorse. Can you summarise how you would like the test to be defined? I think that would be quite useful. Ms Charlotte Powell: Yes, certainly. A person's extradition could be barred if evidence were to lead the judge to conclude reasonably that it would give rise to a real risk that that person would be subject to treatment which is contrary to or unlawful according to the Human Rights Act 1998.

Q144 Mr Raab: You seem to be applying what is effectively the deportation test. Is that how you, or Fair Trials International, see it? I am interested in the idea that we

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell have double standards in the human rights threshold bar for deportation and extradition cases and that the real risk of mistreatment and so on is, effectively, the deportation test. Is that what you are advocating and do you think that there are currently double standards between the human rights applied in deportation and extradition cases? Ms Charlotte Powell: The difference in tests between deportation and extradition cases can be understood as a point of principle. There are competing interests in both strands of law. In an immigration or a deportation case, I have to concede that the person who is being sent back is not necessarily wanted for the commission of an offence. Therefore, there might be a different balancing exercise in the threshold test which is set. Mr Raab: We are not allowed to balance in deportation cases. Ms Charlotte Powell: Exactly.

Q145 Mr Raab: Bearing in mind that deportation is dealing with foreign nationals, with some being criminals and others innocent, whereas there are extradition cases in the British instance I would have thought that there was quite a strong case for a universal and consistent application. Is that what you are calling for? Ms Charlotte Powell: I am not here to give evidence on deportation law or the intricacies of immigration law but it strikes me as practically helpful to have a consistent approach to extradition human rights bars. Be that on the grounds of Articles 6, 5 or 8, a consistent approach is more likely to be achieved if a consistent test is set down in statute. Mr Raab: Thank you. Q146 Lord Lester of Herne Hill: I will not ask you about an asylum test, because I think that I would be rightly ticked off by the Chair, but can I come to practicalities about legal representation? Do you think that is essential in extradition cases and how does it safeguard the human rights of a requested person to have legal representation Ms Charlotte Powell: Undoubtedly, legal aid safeguards the rights of the requested person. For many requested people, it goes without saying that these proceedings are relatively, if not very, complex and for the majority of those who have been requested they are being conducted in a foreign language. The access to a lawyer and an interpreter are therefore essential. The difficulty with obtaining proper, swift access to a lawyer is of vital importance to the safeguarding of the rights of the requested person.

Q147 Lord Lester of Herne Hill: Given the cuts that are being made in legal aid, is the position that it is readily available in all extradition cases? Ms Charlotte Powell: I do not profess to know what the policy reasons are in the Government for reducing the budget available for legal aid. Lord Lester of Herne Hill: I was not asking about that. Ms Charlotte Powell: But the reality is that the majority of people who are represented by the duty solicitor at the City of Westminster magistrates’ court will be Oral Evidence, 8 March 2011, Q 77–164 seen for some 20 to 25 minutes, in conference, 20 minutes of which will have to be taken up with the completion by that duty solicitor of the legal aid form. That might leave five or perhaps 10 minutes to discuss the intricacies of the Extradition Act and the personal circumstances of the requested person, all of which has to be translated, then to answer any questions which the person might have.

Q148 Lord Lester of Herne Hill: So as to shorten this, in a way, can you in writing— afterwards, if necessary—give a note to the Committee identifying the gap between what you say is made available by way of legal aid in extradition cases and what you say should be the case, so that we can see the extent of the unmet need? Ms Charlotte Powell: Yes.

Q149 Lord Lester of Herne Hill: You have just been describing how that system is very limited but we need to be able to measure the problem in a rather better way than simply relying on that. Ms Charlotte Powell: Absolutely. I am sorry that I do not have statistics. I am sure that they would be helpful for this Committee. But there are instances in my experience, which I am sure is shared by senior judges at the City of Westminster magistrates’ court, of those people who are requested in a foreign state, who are used to working on a relatively ad hoc basis—picking fruit, perhaps, or in the construction industry—and who have very varied backgrounds but who may not necessarily have all of the quite complicated paperwork which is required by the Legal Services Commission in order for their claim to be processed. Legal aid not having been granted after the first hearing, that person will effectively go unrepresented for however many adjournments thereafter. That is at great expense to the public because every time a case is heard the judge sits, the court staff sits and the interpreter has to come to court and interpret, only for the matter to be put off. It is almost inevitable in many cases where a requested person is not subject to benefits that they will be physically unable to produce the paperwork required to successfully apply for legal aid. I would not be at all surprised if that left some judges feeling very uncomfortable at the prospect of having to order a requested person's extradition without legal representation, but it happens. It does happen that people are effectively returned without having had the benefit of legal advice under a legal aid certificate—and, as you ask, I would be more than happy to put the detail of that in writing.

Q150 Lord Lester of Herne Hill: Thank you. To what extent do lawyers representing their clients in these cases need to know about the law of the requesting state? Ms Charlotte Powell: You need to know the law of the requesting state for various purposes. First, you would need to know it in order to establish whether there is a real risk of a breach of human rights, which would require you to apply again to the LSC for funding and which is only possible if you have a legal aid certificate for the

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell funding for an expert to do so. Then, you might need an expert to give you evidence on the extent to which a person’s mental or physical well-being might be catered for in a requesting state. Particularly in relation to mental health problems, in my personal, professional capacity I have relied upon expert evidence on how those needs are cared for in custody.

Q151 Lord Lester of Herne Hill: What about the need for defence lawyers to have access to evidence or other information that was located abroad in order to represent their clients effectively? Ms Charlotte Powell: Yes, locating evidence abroad is often needed in cases where the requested person might want to show that they could not have committed the extradition offence, for example. In those circumstances, particularly in the few years after the implementation of the Extradition Act and before the threshold test was quite so high, the defence bar, in my perception, was that we were very willing to find evidence abroad to show, for example, bank records which might prove a person who was charged with fraud could not have been in possession of a sum of money which he was accused in a foreign state of coming into illegally. The purpose of doing so might have been to show that the request itself was bound to fail and was in some way a disproportionate interference with the requested person's rights so, yes, it is often necessary to seek the evidence of a foreign lawyer abroad. If legal aid were automatic in extradition hearings, both for the provision of funding of services by defence lawyers in the United Kingdom and of a lawyer to represent them in a foreign state once they returned, that would smooth the process for the requested person. That is because the third form of expert evidence that clients often request is legal representation in the requesting state, once they get there, in order to smooth their passage and to enable them to better know what stage proceedings are at, so that they can defend themselves effectively once they are returned. Having access to that advice is really helpful.

Q152 Lord Lester of Herne Hill: Is legal aid in fact available to cover securing evidence from abroad? Ms Charlotte Powell: Yes it is, but the difficulty that we have is the threshold test being as high as it is for human rights potential breaches to become a bar to extradition. The courts have been very reluctant to grant what is called a certificate for counsel—that is, legal funding which will permit the services of a barrister as well as a solicitor to represent a requested person. The disadvantage of not having a certificate for counsel is that counsel is not instructed in order to be able to write the advice that the Legal Services Commission needs to see from them to show that there is an arguable case of needing evidence from abroad. So, yes, there is a difficulty in obtaining expert evidence from lawyers abroad.

Q153 Lord Lester of Herne Hill: So the counsel has to advise a prospect without payment and then if they get a certificate, they get paid? Ms Charlotte Powell: Yes, or the counsel will not or cannot advise until there is a certificate because there is not funding. I do not think that any judges would expect Oral Evidence, 8 March 2011, Q 77–164 counsel, or any lawyer, to represent a disproportionate number of people on a pro- bono basis.

Q154 Lord Lester of Herne Hill: Would the European investigation orders help to solve the problem that we are talking about? Ms Charlotte Powell: As far as I understand it, the European investigation order would not necessarily be available for defence representatives to use in order to secure evidence abroad, so while the mechanisms are in place which might enable the Crown to do so, there is an equality of arms disparity which might put the requested person at a disadvantage if he cannot also.

Q155 Lord Lester of Herne Hill: Would a forum requirement help to solve the problem? Ms Charlotte Powell: The forum requirements, to the extent that they would allow a requested person to be tried in the United Kingdom, would obviously enable a person to seek evidence in the United Kingdom to the extent that it will help them at trial. The difficulty that has been referred to in submissions to this Committee, and in other assessments of current extradition arrangements, is that there are cases where the interference with a person's human right to family life in the United Kingdom is disproportionate to the legitimate aim of pursuing extradition, particularly if the offence is relatively low down on the scale of gravity. In those situations, I can see why it would be particularly useful for a district judge to be able to exercise his or her discretion on whether the forum conditions should be implemented.

Q156 Lord Lester of Herne Hill: Is the lack of legal representation in the requesting state a problem? Ms Charlotte Powell: In the requesting state? Lord Lester of Herne Hill: Yes. Ms Charlotte Powell: The difficulty I have is that I have very rarely been contacted by clients who have been sent abroad and wanted to tell me that they had been without representation, so I do not have personal evidence to go on. But, again, I know of submissions that have been put before this Committee which would suggest that that has been a problem and that access to legal aid abroad has been slow. I come back to the suggestion I made earlier: that automatic right to legal aid in extradition cases for legal representation in this country and in the requesting state would obviously avoid that problem.

Q157 Lord Lester of Herne Hill: I was not asking you about cases where someone has already been sent abroad. I am really asking you about the situation where their extradition is being requested. In your experience of those cases, has the lack of legal representation in the requesting state been a serious problem or not? Ms Charlotte Powell: For the majority of my cases, no, it has not been a serious problem.

Commander Allan Gibson and Detective Superintendent Murray Duffin; Ms Charlotte Powell

Q158 Lord Lester of Herne Hill: I am sorry to ask you so many technical questions but would funding be available for representation abroad? Would British funding be available to cover representation in another country? Ms Charlotte Powell: The Legal Services Commission has not, to my knowledge, granted such an application. If it has done so, I would be delighted to hear about it— but no, not yet.

Q159 Lord Lester of Herne Hill: In your experience, what effect would a prima facie safeguard have on extradition cases—in other words, adding a requirement for a prima facie case to be presented before extradition is permitted? Ms Charlotte Powell: The prima facie case requirement would certainly help the requested person to the extent that they could begin to make inquiries about some of the evidence which they are party to in the extradition request. They might want to make those inquiries in the requesting state and to be able to put their defence into motion, if I can put it that way, before they are physically returned. Obviously, that might smooth the transition of travel for them and be a benefit to them. Otherwise, I do not have any submissions today on that point but I would be happy to follow that up in writing if I do.

Q160 Lord Lester of Herne Hill: I do not know whether you do asylum cases in your practice. Do you? Ms Charlotte Powell: The majority of the asylum and immigration law that I have come across has been in relation to the interplay between it and extradition law.

Q161 Lord Lester of Herne Hill: My wife is an asylum judge and one of the things that I find interesting about your evidence is, if you think of the crossover to asylum, I think that some of the safeguards you are suggesting do not exist even in asylum cases, in terms of some of the legal aid and representation that is in place. Is that right? Ms Charlotte Powell: I do not know, is the answer, but it strikes me as being understandable that there would be a distinction. If the requested person is necessarily wanted for a trial and his right to liberty is necessarily going to be interfered with upon return, there should be a better safeguard in the extradition context than the asylum one.

Q162 Lord Lester of Herne Hill: Even though the asylum case is one where the issue is whether there is a well founded fear of persecution? Ms Charlotte Powell: That is a question of the deportee having efficient and fair access to legal aid in the state which he is going back to, in order to bring a claim to prevent something happening as opposed to defending himself against one, so I think that the distinction stands.

Q163 Lord Morris of Handsworth: I have just one simple question for you. It is, if you like, an extension of the principles of safeguards. Can you please tell us if you Oral Evidence, 8 March 2011, Q 77–164 think that implementing the safeguards in the European Union's procedural rights road map would help protect the rights of those subject to extradition proceedings? Ms Charlotte Powell: The current requirement for provision of an interpreter is, as I understand it, the only part of that road map which has been properly implemented. The remaining protections are not due to be implemented until at least 2013. There is understandable concern among those who are requested in extradition proceedings to know that they will be entitled to apply for bail upon their return to a requesting state. If certain procedural safeguards such as that were properly implemented across Europe, that might curtail the need for lawyers in this jurisdiction to apply for funding to seek the expert advice of lawyers in the foreign jurisdiction about what would be provided.

Q164 Mr Raab: I am not sure how much of this is ground that we have already gone over but what problems do the time limits for processing extradition requests create for your ability to provide effective representation? Ms Charlotte Powell: For the appeals or the time limits generally? Mr Raab: The time limits for the requests. Ms Charlotte Powell: The really difficult sticking point is the competing timeframes for, on the one hand, securing legal aid to represent persons in extradition proceedings and, on the other, complying with the overall 60-day limit to effect an extradition that the framework decision has set down. Understandably, judges and practitioners want to implement the spirit of the framework decision and to make sure that extradition is a swift process. But the reality is that with so many adjournments of extradition hearings in order to secure legal aid, it is almost inevitable that that aspiration for swift resolution is not met. It is a very real problem for requested people who are effectively detained without access to legal representation, because there are Article 5 rights to be detained in a non-arbitrary fashion. If a requested person is unable to seek representation in order to deal with the proceedings as a litigant in a way which allows him to raise bars to extradition effectively then, arguably, his detention becomes arbitrary. The risk is that the judge would feel pressured by time limits to order a person's extradition without having ensured that Article 5 rights are being properly met. The Chairman: Thank you very much for your answers today. It has been a long session and you have answered all of our questions thoroughly and comprehensively. If you would like to share that memorandum that you were using earlier, we would be very grateful. Ms Charlotte Powell: Certainly, and thank you for having me. The Chairman: Thank you very much.

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler Oral Evidence, 29 March 2011, Q 165–240 EVIDENCE SESSION NO. 4. HEARD IN PUBLIC

Members Present

Dr Hywel Francis (Chairman) Lord Bowness Rehman Chishti Lord Dubs Dr Julian Huppert Lord Morris of Handsworth Mr Dominic Raab Mr Virendra Sharma Baroness Stowell of Beeston

______

Examination of Witness Mr Keir Starmer QC [Director of Public Prosecutions, Crown Prosecution Service].

Q165 The Chairman: Good afternoon and welcome to the Joint Committee on Human Rights session today dealing with the human rights implications of UK extradition policy. For the record, could you introduce yourself please? Mr Keir Starmer QC: Keir Starmer QC, Director of Public Prosecutions.

Q166 The Chairman: I understand that the flowcharts that you have very kindly made available to committee members are also available to the public who are present and that they will be made available to view on the committee website shortly. Thank you for that. We have a great deal to cover. It would be rude of me to say that we expect all our witnesses to be concise and to the point, but I hope that you would take that in the spirit in which it was given. I begin by asking a general question on extradition procedure. In your view, what are the main differences in the role of the CPS in the extradition process under Part 1, which concerns extradition under the EAW procedure, and under Part 2, which concerns extradition to non-EU countries? Mr Keir Starmer QC: As I tried to depict in the flow diagrams, the role of the CPS is, in a sense, slightly earlier in Part 1 extradition proceedings than in Part 2, because the major difference between Part 1 and Part 2 is the involvement of judicial authority to judicial authority rather than Secretary of State to Secretary of State. That means that the CPS comes in a little earlier in the proceedings. I hope that the flow diagrams pretty much speak for themselves. I have always found it quite difficult to trace through who does what and when in the four different situations—the two export and the two import—and this was simply an attempt to put that down in diagrammatical form. As you can see from the first diagram, essentially the CPS will Oral Evidence, 29 March 2011, Q 165–240 be involved once there is a hearing at the Westminster Magistrates’ Court, which is at the right-hand box on the second line, for a Part 1 case. It comes in at the same stage essentially for Part 2 but in a Part 1 case the Secretary of State will not have been involved at that stage.

Q167 Dr Huppert: Thank you. Can I ask a specific question about the role of the CPS as an agent for other countries? You said in December that the CPS would be acting as the agent of Sweden in the proceedings with Julian Assange. I have here a letter from the CPS, which states: “my response is as a CPS lawyer working for the US in extradition proceedings”. First, is it right that the CPS should work as an agent of other countries given that it does not act as an agent of the Government here, in that sense? Mr Keir Starmer QC: There is an essential difference between our role as public prosecutor here for domestic criminal cases and our role in extradition cases. There is no reason why the role should be the same. It is different. So far as extradition is concerned, the CPS and I require a statutory provision to give us power to conduct extradition proceedings. That does not arise from the power to act as DPP or CPS in this country. Those powers are dependent on the international agreements that have been made either of a bilateral or multilateral nature. The judicial authority in a Part 1 case or the state in a Part 2 case has, under the international arrangements, the right to seek extradition in this country. It needs somebody to conduct those proceedings on its behalf. The CPS acts in that capacity. There is a statutory power to do it. It has been described by the courts as akin to a solicitor/client relationship. The only footnote that I would add to that is that, under domestic legislation, the CPS is a public authority bound by the Human Rights Act and therefore cannot act incompatibly. Secondly, as lawyers, we have duties to the court about evidence that is presented. Beyond that, it is broadly speaking a solicitor/client arrangement.

Q168 Dr Huppert: When you are acting as an agent of another Government, do you have any sort of internal review on that? How do you exercise your responsibilities under the Human Rights Act and your responsibilities to the court? Can you refuse to act as its agent? Mr Keir Starmer QC: The understanding is that an arrangement is set up on the basis that we are the agent so we therefore act on its instructions. I say “instructions” because the international agreement sets out the procedures, the process, the evidence that has to be presented and so forth and we comply with that. There is no provision under the statute that says that the CPS can refuse to act in the following circumstances. That having been said, we are bound by the Human Rights Act. We are bound by our duties to the court. We can of course give advice in these cases and we do give advice in these cases as they develop.

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Q169 Dr Huppert: So if there was a conflict and you were supposed to act as the agent for Sweden, the US or any other country, and you felt that to do so would breach the Human Rights Act, could you refuse to act? Mr Keir Starmer QC: You have to take this quite carefully because if you take a Part 1 case—if I can use the flow diagram for these purposes—we would have got involved at the hearing at the magistrates’ court. The district judge will be seized of the matter. The district judge will then ask the questions that are set out in the following series of boxes. Then, at the bottom left-hand corner of my diagram, the district judge considers whether it is an extradition offence. Are there bars to extradition? That starts to introduce the length of time and so forth.

Q170 Dr Huppert: But that is the district judge considering it, not you? Mr Keir Starmer QC: Yes. Then there is the Section 21 question: would these proceedings—would extradition or surrender—be incompatible with human rights? That is a question for the court to determine. The only possible circumstances in which we as the CPS could conclude that we would be acting incompatibly with the Human Rights Act in continuing proceedings would presumably be if we had reason to doubt that the court would properly exercise its function. In other words, assuming that the court conducts the Section 21 exercise in accordance with the statute, it will come to a finding of whether there is a breach of the Human Rights Act. If it decides that there is not, it logically follows that we are not breaching the Human Rights Act to bring the proceedings. If it finds that there is a breach or there is an incompatibility, it will discharge the proceedings in any event. There may be some extreme case falling outside of all of that, but we have not yet encountered it. It would be a rarity that that mechanism does not provide the place for that discussion to take place.

Q171 Dr Huppert: But you have no choice and no ability to adjust until the bottom left-hand corner on the flow diagram, when the district judge decides Section 21? Is that right? Mr Keir Starmer QC: The only caveat that I would put on that is this, and I am saying this as a theoretical situation: if, for example, we had reason to doubt the truth of the evidence or something like that, as an officer of the court we would be duty bound not to act on it. I would give that wriggle-room. As an officer of the court you have an obligation to the court to conduct the thing properly without abusing the processes of the court. Under those extreme circumstances, my view would be that we were entitled to say that we were not proceeding. Lord Dubs: I should first declare an interest in addition to my written interest: my daughter works for the CPS. Mr Keir Starmer QC: I am glad to hear it.

Q172 Lord Dubs: My first question is this: if the initial request for extradition is vague, can the CPS request further information from the issuing authority, either before the warrant is certified by SOCA or after the defendant is arrested? Oral Evidence, 29 March 2011, Q 165–240

Mr Keir Starmer QC: Yes, and we quite often advise on such matters. We take the view that the request should be put before the court in a proper form and therefore we can advise that there may be a defect in the evidence or that further evidence is needed, and we do that in certain cases.

Q173 Lord Dubs: Then you are satisfied that the country requesting the individual has everything organised for the proceedings to follow. Is that part of it as well? Mr Keir Starmer QC: That is not part of our function, but we have a power to advise. Therefore, this is done in the spirit of advice. If we are asked for advice, we will give it. We are not required to certify because under a Part 1 case, as you can see, the certification is early certification by SOCA, not by the CPS. The process will be: the request is received by SOCA, SOCA certifies under Section 2, the warrant is executed and the person is then arrested and brought before the court. There is no stage at which we formally have to approve or certify anything. However, if a country comes to us and says, “This is what we are proposing to do. Is this in the sort of order that is needed to be put before the court?” we will give advice. It is a power not a duty.

Q174 Lord Dubs: Is there an opportunity for the defence to obtain more information about the facts of the case from the issuing authority? Mr Keir Starmer QC: The information that the defence must have is set out in Section 2 of the Act. We have summarised it in the first diagram in the second box on the right-hand side. It is set out in Section 2 of the Act. Essentially, the information must be the person’s identity and the particulars of any other warrant issued. Then it states that the “particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence”. So that is a mandatory requirement of the warrant itself. That is something that the court will look at and we will look at as well.

Q175 Mr Sharma: Several witnesses to the committee have argued that the human rights threshold is too high. Several have also suggested that the defence lawyers find it difficult to locate evidence showing a risk of a breach of human rights in extradition cases. Can you comment on that? Mr Keir Starmer QC: The statute requires the court to consider whether extradition would be compatible with convention rights. The essential question, therefore, is: what approach will the court take and what test will it set? Since those witnesses gave evidence—I have seen the evidence of some of the witnesses—the law has slightly moved on. The bar was set quite high in certain circumstances, but two recent authorities have suggested that it should perhaps be a little lower. There was the case of Klimas, which suggested the approach that you take. First, you assume, if it is a European convention country, that the country requesting will comply with the European Convention on Human Rights and will have domestic remedies available to

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler the individual should there be any breach, so you have a presumption. Then the approach has been that the individual can rebut that presumption by clear and cogent evidence that there will be a breach of his or her human rights. In the case of Klimas, it was suggested that the threshold is quite high. You would have to show that there was some constitutional defect in the country requesting whereby the human rights would not be upheld—possibly revolution or constitutional turmoil. The two recent cases, Targosinski and Agius—the first in February of this year and the second in March of this year—said that that was the wrong approach. The court is duty bound to inquire and it must ask itself whether there is clear and cogent evidence of a breach. In Targosinski, our court said that if, for example, there was evidence that the Strasbourg court had found a systematic violation of human rights in the country in question, which was Poland in this case, that might be sufficient for clear and cogent evidence. Essentially, our courts have tried to align themselves with the Strasbourg jurisprudence and say that, if you can show consistent breaches that have been found by the Strasbourg court, you are getting close to clear and cogent evidence of a breach of human rights. That is a lower threshold than the threshold as was understood to be the case before the last six weeks. I can understand why people would have been anxious about the higher threshold that had been articulated beforehand.

Q176 Mr Raab: Notwithstanding the case that you cited, if you compare the regime with the human rights regime for deportation, particularly around Article 8 and the growing case law around that, would you agree with the assessment that the ability or scope to block a deportation on human rights grounds is greater than in extradition cases, at least in the European context? Mr Keir Starmer QC: I am not sure that I necessarily would, because most of the deportation cases are Article 2 and Article 3 cases. In those cases, there is obviously very extensive scrutiny, because you are talking about a situation where somebody might lose their life or be subjected to torture. The courts carefully scrutinise those and have a rather exacting test. In extradition cases, sometimes of course you are dealing with Article 2 and Article 3, but more often you would be dealing with Article 5 on the right to liberty, Article 6 on fair trials and Article 8. They are by their nature different rights. In other words, the scrutiny that you would attach to a case where somebody might lose their life is inevitably greater than the scrutiny that you might attach if somebody is likely to have their Article 8 rights infringed. The test is pretty clear from Strasbourg. It may appear to be differently articulated, but that is probably because the two types of cases are normally focusing on different convention rights. There are slightly different tests with different convention rights.

Q177 Dr Huppert: To return to the issue of the discretion of the CPS, you have already outlined the very limited discretion that you have in extradition cases. As I understand it, in the Netherlands the public prosecutor can refuse to execute a European arrest warrant as well as the court. The Netherlands has clearly found some way to empower its prosecutors. Is that a role that you think you should have? Oral Evidence, 29 March 2011, Q 165–240

Mr Keir Starmer QC: Perhaps I can caveat my answer. We have been trying to track down exactly what is the power of prosecutors in the Netherlands. It is not entirely clear. I know that there is a suggestion that they have some discretion before taking on a case. I think that that argument has been advanced in particular when it comes to proportionality. As everyone appreciates, a lot of requests come from Poland. On the face of it, they are often relatively minor cases and therefore there is a question of whether the prosecutor or somebody else should have the power to say, “I'm sorry, this is disproportionate”. There is some hint that there may be such a power in the Netherlands. Our investigations of the Eurojust desk have not borne that out, but we have not done extensive research. I am not entirely sure. On the face of it, if the regime works as it should, on the one hand the extreme exposure to a breach of human rights ought to be dealt with by the court under Section 21. Equally, proportionality ought to come in under Section 21. An individual accused of stealing a loaf of bread in another country would be able to argue that to remove him or her would be such a disproportionate interference with their Article 8 right that it should not happen. There is a Latvian case where an individual was charged with stealing two mobile phones. There was quite a considerable suicide risk and our court said that that would be a breach of Article 8 and disproportionate. Therefore, in answer to your question, if the regime works properly, there is arguably no need for the prosecutor to have the additional role. That depends on the view one forms of whether the regime is operating as it should.

Q178 Dr Huppert: Given that the regime is operating as we actually see it operating, would you like to have that power? Mr Keir Starmer QC: I am hesitating because there is a problem with the number of cases from Poland. A lot of work is going on on proportionality and whether there is some way in which the number of cases can be reduced by applying some proportionality principle. I am well aware of that work, which is being advanced. There are a number of ways of skinning this particular cat. At the end of the day, if someone suggests that the prosecutor should be given a role to be able to say early on that this is clearly a case that is disproportionate and should never come into the system, I would not argue against that. At EU level, a lot of work is going on to try to reach agreement. If that agreement can be reached, all well and good. The Chairman: I think, Mr Sharma, that your question has already been answered.

Q179 Lord Bowness: Can surrender of a person under the European arrest warrant be postponed so that the requested person can be prosecuted in the United Kingdom? Mr Keir Starmer QC: It depends where the case has got to. If a decision is taken to prosecute the individual in this jurisdiction before the extradition hearing concludes, the extradition proceedings must be adjourned until the domestic proceedings are completed. In those circumstances, that would nearly always be the case; they would

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler be prosecuted here before the extradition proceedings continued. Yes, it can happen and, yes, it has to happen in those circumstances.

Q180 Lord Bowness: But only in those circumstances, where there is a domestic prosecution. Mr Keir Starmer QC: Yes. I hope that I am answering the question completely.

Q181 Lord Bowness: The reason why I asked the question was that we understand that the framework decision allows a member state not to extradite on that basis, but that has not actually been put into domestic legislation. Is that correct? Mr Keir Starmer QC: No, it has.

Q182 Lord Bowness: That particular exclusion? Mr Keir Starmer QC: Yes, it has. If you would like the details of how it operates, I am more than happy to provide them.

Q183 Lord Bowness: Our understanding was that it was not in the original Extradition Act. It was then put into domestic legislation in a later Act, but that required a resolution of both Houses, which has never been put to each House. It is therefore not in force. Mr Keir Starmer QC: I am sorry. This is in force. The provision that you may be thinking of is the forum bar, where Parliament has passed provisions which have not been brought into effect but which would deal with the appropriate forum for conduct that is an offence in both jurisdictions. I am sorry; perhaps I am not being clear. If during extradition proceedings a decision is taken to prosecute in this jurisdiction for an offence, that will take priority. If you have a different situation, with proceedings at an early stage, where there is conduct that could be tried in this country or another country and a decision has to be taken about which country will try the individual, provisions on that were passed by Parliament but have not yet been brought into force.

Q184 Baroness Stowell of Beeston: Before we get into the detail of the European arrest warrant, can you tell us what you see as the practical advantages of this system? Mr Keir Starmer QC: The advantages are a lesser role for the Secretary of State. It is judicial authority to judicial authority. Under the old regime and the non-EAW regime, the Secretary of State has a role at the very beginning and at the end. This is quicker and clearer. In a case where someone consents to be extradited under a European arrest warrant, they are usually surrendered in about 16 days. If it is contested, it is about 93 days. That is much quicker than it used to be. It was common to have a rule before the European arrest warrant that a country would not surrender its own nationals. This regime deals with that issue and there are more limited provisions on dual criminality. There are a number of advantages in those respects. Oral Evidence, 29 March 2011, Q 165–240

Q185 Rehman Chishti: Witnesses to the committee have commented that old and outdated European arrest warrants remain in place for some time, posing difficulties for the subjects of those requests. Is that right? Mr Keir Starmer QC: The arrest warrant is Europe-wide. An individual can be arrested in this country under a warrant and discharged by our courts. If they then travel to another country, that warrant can still be a valid basis for arresting them there. I am aware that that has happened on occasions. The mere fact that the warrant has been executed in one country and proceedings have been brought does not extinguish the warrant, which remains outstanding and can be acted on in other countries.

Q186 Rehman Chishti: Is there a way of improving the system that we have in place at the moment? Mr Keir Starmer QC: Yes, but it would have to be a Europe-wide solution, because this is a framework decision; it is not a UK decision. If all the countries in the EU were to agree to amend that, it could be amended.

Q187 Rehman Chishti: Is there a system by which outstanding extradition requests are reviewed? Mr Keir Starmer QC: I am not sure. I will happily try to find out. Whether there is a central clearing process across Europe, I am not sure. There are obviously Eurojust and Europol, but I am not sure whether there is formally a clearing mechanism. I will check and, with permission, I will write to the committee and let you know.

Q188 Rehman Chishti: The reason why I say that is that it would make sense if the right arm knew what the left arm was doing, rather than having a situation where there is no connectivity between states and you have a problem with people being repeatedly arrested. Mr Keir Starmer QC: I completely take your point. The problem arises because, when the European arrest warrant is issued, it is not always known where in Europe the individual will be. Therefore, it is a Europe-wide warrant. As I say, the fact that the person has been arrested and discharged in country A does not stop country B picking them up. I take your point about a general review and I will come back to you on that.

Q189 Rehman Chishti: Do the time limits for processing European arrest warrants cause concern and problems for the CPS? Mr Keir Starmer QC: Generally speaking, no. The framework requires the process to be completed in 90 days, but our domestic law does not, so there is no domestic consequence of failure to extradite within 90 days. The domestic time limit that bites is one under the European arrest warrant of removal 10 days after the final order. That is fixed. We can apply to extend it and we have done so, but it is quite tight. Normally, it should not cause too many difficulties, but it can do—for example, if you have a final order coming into play on 22 or 23 December, which is a very busy time

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler for flights, bookings and so on. Ten days to make all the arrangements is quite tight. There is provision for us to extend that time, which we do on occasion. It is not an insuperable problem, but it is tight.

Q190 Rehman Chishti: Justice has said, “The UK does already far exceed the timeframe in many cases that we are supposed to adhere to on European Arrest Warrant cases”. Mr Keir Starmer QC: Let me give you the figures that we have on that. Our figures suggest that we have not met the 90-day time limit in 112 cases, which is quite high across Europe. The average time is about 93 days, which is obviously beyond the 90 days. In our view, the reason is that we have quite an elaborate appeal system. I am not complaining about that; it is perfectly right and proper, but it takes time for cases to progress through our courts. They go reasonably quickly, but to get a case through the district judge, the High Court and, if necessary, the Supreme Court within 90 days within our legal system is quite a big ask. I am not for a minute suggesting that in order to speed things up you would want to limit any of those rights of appeal.

Q191 Rehman Chishti: One point that I would like to link with that is that Fair Trials International told the committee that “the deadlines are too tight in many cases for an individual to obtain evidence—often expert”, which leads to injustice for the accused. Is that a fair comment? Mr Keir Starmer QC: I do not think that it is right for me to comment one way or the other. The district judge has the power to adjourn if it is necessary in the interests of justice. Therefore, there is the ability to apply for an adjournment if necessary. In the individual case, the court will simply have to make up its mind, but I am not in a position to comment.

Q192 Rehman Chishti: What practical effects would increasing time limits have on EAW cases? Mr Keir Starmer QC: If the law provided a longer timeframe or it simply started to take longer? Rehman Chishti: No, if the law allowed for the timeframe to be increased. Mr Keir Starmer QC: At the moment, the 90 days is a requirement under the European framework but not a requirement of domestic law, so it does not present a problem. There is no domestic law consequence of going beyond the 90 days. The domestic law consequence is at the end of the process—the time limit of 10 days from the final order. That can be a bit tight, but as long as everyone is doing their job we ought to be able to apply for extensions as and when we need them.

Q193 Lord Morris of Handsworth: Mr Starmer, witnesses to the committee commented that not enough information about the extradition process is provided to defendants. Do you think that the CPS could play a role in providing this information? Mr Keir Starmer QC: Could the CPS play a role? Yes of course it could but, if you trace through the process, it is probably right that this is the function of the police. The arrest warrant is executed by the police. It has to have certain information within Oral Evidence, 29 March 2011, Q 165–240 it and the police will do the physical picking up of the individual, which is when the individual needs to know what is happening and so forth. The individual will then be brought to the court very swiftly. The court then has to ensure that it has all the information that it requires. The process is essentially: execution of warrant, brought to court, police to provide certain information, court to provide information. I am not against any suggestion that the CPS should provide any further information as necessary, but in fact in that process the individual will already have been brought before the court by that stage. I know that there are moves to standardise the information available to individuals across the EU for both extradition and non- extradition. That is a good thing. The spirit is right and I would support that. Actually, it is a function of the police and the court, but I would not quarrel with any suggestion that anybody who is able to play a part, including the CPS, should do so.

Q194 Lord Morris of Handsworth: I want to pick up the point that you just made about the provision of information. Is there any difference in the information given to persons awaiting surrender under the European arrest warrant and to those awaiting extradition to a non-EU state? Mr Keir Starmer QC: Not significantly. The information needed is set out in statute. To that extent, the information required is broadly similar. There is of course the major difference between a Part 1 and Part 2 case when it comes to the broader questions of the information that the court must consider. In a Part 1 case, there is no requirement to show a prima facie case whereas in a Part 2 case there may be. Therefore, in a Part 2 case, there is likely to be much more by way of information/evidence that the individual gets. The test that the court has to apply is different.

Q195 Lord Dubs: Witnesses have argued that those who are subject to extradition request do not have sufficient access to lawyers in the UK or in the requesting country to enable them to prepare an effective defence on human rights grounds. What do you think about that? Mr Keir Starmer QC: There are some outstanding lawyers acting on behalf of those being extradited in this country. I did cases myself for individuals and I know many of the practitioners involved. As far as the lawyers in this country are concerned, I think that it is well recognised that there is a body of highly regarded extradition experts who invariably are involved in these cases and are extremely good human rights lawyers. As for whether there should be parallel lawyers in the requesting state, I do not have a view on that. In a sense, the proceedings are here and it is a matter for the domestic team to decide if and when it wants to involve lawyers from elsewhere. There are well known individuals acting in these cases in this country who are extremely respected and good lawyers.

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Q196 Lord Dubs: But the witnesses have said to us that those subject to extradition requests do not have sufficient access to the lawyers. The issue is about being able to have the lawyers there to help them. Mr Keir Starmer QC: I am not sure that I am in a position to comment. I was in practice for a number of years and dealt with these cases. It did not appear to me in that capacity to be a major problem. I have not been doing it for a couple of years. If others have perceived it to be a problem, they can give their evidence.

Q197 Lord Dubs: Are there enough CPS lawyers at any one time to answer defence queries? Mr Keir Starmer QC: I hope so. We have a dedicated team in our headquarters in London who are themselves experts broadly speaking doing only extradition cases and they manage the casework very well. I would not hand on heart say that there was never an occasion when a telephone call went unanswered, but broadly speaking it is a specialist unit with specialists in it who know what they are doing and are experts in their field. They do not have any great difficulty.

Q198 Lord Morris of Handsworth: Are they all London-based? Mr Keir Starmer QC: Yes, they are all London-based for requests into this country. That is for two reasons. Our specialist divisions on counterterrorism and organised crime tend to be London-based so that we can get a group of specialists together. Secondly, the City of Westminster Magistrates’ Court is the court that deals with these cases. Therefore, it makes sense to have our team located in London.

Q199 Mr Raab: In 2009, we had about twice as many European arrest warrant requests as any other member state. Why do you think that we in Britain received so many? Mr Keir Starmer QC: I am not sure that I am in a position to answer that other than to say that the number of requests and surrenders by us compared with the number of requests that we make is quite marked. I am not sure that I am in a position to explain why that is other than to say that a lot of them come from Poland: 425 surrenders in 2009-10 were surrenders to Poland, which is 61% of all EAWs. I suspect that it may be that particular population that we have here.

Q200 Mr Raab: We obviously get a lot of EAW requests now. What resource implications does that have for the CPS? Mr Keir Starmer QC: The numbers have gone up. The number of surrenders by the UK under the EAW scheme has gone up. For example, in 2004 there were 23. The figure then went up year on year to 75 in 2005, 151 in 2006, 320 in 2007, 470 in 2008 and then 699 in 2009-10,9 so it has gone up quite steeply in a short period of time. So far as the CPS is concerned, we manage that well within our resources. Obviously,

9 Note by witness: The 2008 figure is an estimate, rounded to nearest decile, based on the known figure of 351 from January-September 2008 inclusive. Oral Evidence, 29 March 2011, Q 165–240 it is more demanding because there are more cases, but we have our specialist unit and we are able to process them reasonably efficiently.

Q201 Mr Raab: Just to give us a broad-brush view, what proportion in percentage terms of CPS resources or manpower is now absorbed on extradition requests? Mr Keir Starmer QC: In pounds and pence, it is about £2 million out of a total of about £650 million. I can give you the precise figures if you would like them as a percentage.

Q202 Mr Raab: It is a very small proportion. Mr Keir Starmer QC: It is a small proportion. We prosecute about 1 million defendants a year within this jurisdiction, so when you put it in that context you can perhaps see why it seems such a small percentage.

Q203 Mr Raab: Do you see any value in and do you think that it would be feasible to have some kind of filter—whether a public interest test, a seriousness test or a proportionality test—that the CPS could adopt? Mr Keir Starmer QC: If there was agreement that there ought to be a different regime involving the CPS having some sort of filter exercise, that would not present us with a difficulty. We do it in all our domestic cases. I am not making a case for it, but I am perfectly happy to accept it if that is a change in the regime that others think is more sensible.

Q204 Mr Raab: Is there a type of filter that you think might be more manageable than others, whether it is proportionality, seriousness or public interest, so that you do not end up with huge legal proceedings around the definition of the threshold? Public interest strikes me as quite broad. Mr Keir Starmer QC: You could have a proportionality exercise. There is a way out on proportionality grounds under Article 8 when the case gets to the court. However, you could say, if there is an obvious case, why put it into the process just for the courts to deal with at a later stage? The CPS could deal with it earlier. If people think that that is a good change, that would not present us with a difficulty. The problem with the public interest is that you would have to be quite careful. Gauging when it is in the public interest to prosecute in this country is a task that we have to perform, but it is not always easy. Trying to gauge whether it is in the public interest for an offence to be prosecuted in another country, with different traditions from our own, would on the face of it be quite a headache. I do not suggest that some means could not be devised, but it would not be quite the same exercise.

Q205 Mr Raab: Finally on this area, you talked a bit about the obligation in Poland to prosecute, which resulted in a peak or increase in cases from that jurisdiction. Can you elaborate on the nature of that duty?

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Mr Keir Starmer QC: I am not professing to be an expert, but perhaps I can try to sketch out what I think are the two fundamental differences. In Poland, they operate on the principle of legality, which means that they do not have the public interest test that we have before they prosecute. If there is enough evidence, the case goes to court. The prosecutor cannot say, “This is not in the public interest. It is such a small amount that the penalties would be nominal”. We have that power and therefore we operate it. In Poland, everything goes before the court, so you are locked into a system where the legality principle applies. It applies in a number of countries in Europe, not just Poland. Secondly, in Poland, as I understand it, the law requires the individual to be before the court for the pre-trial stages in person. Therefore, the court cannot proceed without the individual being there. I think that it is that combination that leads to a real difficulty. The contrast is with the guidance that we have given to our own staff when they are considering applying for a European arrest warrant. I put in place guidance that says, “Think about the likely sentence. Think about proportionality and think about the gravity of the offence before deciding if it is appropriate to issue a warrant”. We have built-in flexibility in our own guidance. That does not exist in Poland and therefore, if there is enough evidence, broadly speaking the person will be required to be returned to go before the courts. That is part of the problem.

Q206 Baroness Stowell of Beeston: It has been suggested to the committee that there have been some inconsistencies in the way in which the UK implements export and import requests, with the CPS requiring a trial-ready case before requesting a person for extradition to the UK while no such discretion is exercised by other countries issuing an EAW request. What are your views on that? Mr Keir Starmer QC: There is a difference. The question under the statute is whether the request is “for the purpose of being prosecuted” for the offence. There is a difference, because in this country no one is put before the court unless they are charged. In nearly all cases, we will make the assessment about whether there is sufficient evidence. You have to have reached point X with the threshold of a reasonable prospect of conviction before you are charged. Only at that stage are you required to appear before the court. In civil law jurisdictions, which obviously apply in some countries in Europe, there is a different approach. The court is seized of the matter much earlier on and there is an examining judge. The prosecutor has a different role. Therefore, the pre-trial stage starts much earlier. That means that some of those countries may make requests for the purpose of prosecution at an earlier stage than we would recognise as being the start point of criminal proceedings. There is a difference broadly speaking to do with the two different approaches in Europe as to the function of the court in criminal cases.

Q207 Baroness Stowell of Beeston: That might lead those who are the victim of a crime and who are waiting for the person who has committed the crime to be imported back to the UK from another country to lose some confidence in the system. Once the CPS has advised the victim of a crime that an application will be Oral Evidence, 29 March 2011, Q 165–240 made for a European arrest warrant, in normal circumstances how long after that would you expect an application for the warrant to be made to the court? Mr Keir Starmer QC: I would expect the application for the warrant to be made as soon as it was reasonably practicable. If there is a crime in this country, there will then be an investigation. If, looking at the evidence that has been collated by the police, we form a view that there is enough to charge the individual but the individual has left the jurisdiction, we apply for a warrant. Once we have reached that decision—that there is a case to be charged and progressed—I would expect the warrant to be applied for reasonably swiftly. The reverse procedure then requires that the warrants will go to the country in question and the case will progress through their domestic proceedings. If it is within the EAW scheme, broadly speaking, it ought to be about the same. Most countries in Europe would say that they are a bit quicker than we are at dealing with requests and getting people through their courts. We take slightly longer than other European countries.

Q208 The Chairman: Thank you very much for your evidence today. There are a number of other questions that we would have liked to ask but time was against us. We would like to write to you with questions that relate to the counterterrorism review. Mr Keir Starmer QC: By all means. I should just add that I have various notes clarifying answers that I have given. It may be helpful to the committee if I put those in writing. Mr Raab asked me about extradition and immigration and I have a more detailed answer to that, which I can give the committee.

The Chairman: Thank you very much.

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Examination of Witnesses

Baroness Neville-Jones [Minister of State for Security and Counter-Terrorism], and Ms Fenella Tayler [Head of Judicial Co-operation Unit, Home Office].

Q209 The Chairman: Good afternoon and welcome back to the committee. I believe that you wish to make a brief statement but, before that, will you please introduce yourself and your colleague? Baroness Neville-Jones: I am Pauline Neville-Jones, the Minister of State for Security and Counter-Terrorism at the Home Office. This is Fenella Tayler, who heads the extradition section of the Home Office.

Q210 The Chairman: I understand that you want to make a brief statement of about two minutes. Baroness Neville-Jones: Thank you, Chairman. I will be brief, because I know that the committee would much prefer to spend the time on questions. I just thought that it might be helpful if I were briefly to review what the Government have been doing in two areas that I know are of interest to the committee: the review of the Extradition Act and the European investigation order. When the Government came into office, they had decided that they wanted to see the operation of the Extradition Act reviewed. As the committee will be aware, Sir Scott Baker has taken on this task. We have put to him a number of issues that in particular we would like his panel to focus on. The committee may be aware of those. They include the question of whether there is an imbalance in the arrangements between the UK and the USA in the matter of extradition. On the European side, there is the operation of the European arrest warrant, as concern has been expressed about the perceived ease with which people can be surrendered by the UK to other member states. There is also the question of whether the UK might implement more of the safeguards, which are optional under the European arrest warrant framework decision. There are other questions that we would be grateful if the panel would look at, including the Secretary of State’s discretion and its extent. I might say that, on all these matters, having asked the panel to do all this, I am reluctant to pre-empt the findings that it will come to, but obviously I am willing to talk to the committee about these issues. The final thing is the European investigation order, which is an EU legislative proposal aimed at streamlining the process of MLA, or mutual legal assistance. Progress has been quite slow on that. The officials have reached only Article 19 out of 34, so I think that it will take some time. We do not reckon that the EIO, if finally agreed, will enter into force until either 2014 or 2015, so it is some way off.

Q211 The Chairman: Thank you. I begin by asking about the Government’s commission of a review of the UK’s extradition policy. Did the Government have a concern about the human rights protection afforded to those involved in extradition proceedings? Oral Evidence, 29 March 2011, Q 165–240

Baroness Neville-Jones: The Government felt that the amount of comment to which the operation of the system had given rise indicated that it was not quite right. I would not say that the Government thought that the human rights elements were a particular problem of note, but certainly human rights elements would be included. There was the whole question of fairness to both suspect and victim.

Q212 The Chairman: Do these concerns differ for proceedings under Part 1 and Part 2 of the Extradition Act? Baroness Neville-Jones: Part 1, in theory, ought to give rise to less concern, as it relates to extradition between countries that ought to have equally valid judicial systems, if I can put it that way. Clearly, as I said, the operation of the system has given rise to comment, so we feel that it would be right to look at both parts.

Q213 Lord Dubs: I think that you have partly answered my question. You have indicated that the European arrest warrant should be in the scope of the review because of certain problems. Is there anything that you want to add to what you said in your introduction or is that enough? Baroness Neville-Jones: I think that, for starters, it is enough. Practical problems arise about proportionality and there are issues relating to the length of time, which is not so much a matter of law as a matter of habit and practice in states about how people are treated, the date at which the trial begins and all those things. We think that the so-called road map, which is meant to come into operation to strengthen some of the safeguards of MLA, will be helpful, as it ought to even up the standards that are observed in practice between member states.

Q214 Lord Dubs: Witnesses have commented to us that mutual recognition and mutual trust of legal systems on which the European arrest warrant is based do not exist in practice, as the differences are so great. Fair Trials International told us: “Standards of justice vary greatly from one EU country to another and human rights do not receive the same respect in every Member State”. Would you like to comment on this? Baroness Neville-Jones: I think that it is probably a matter of observation that human rights are not interpreted in all member states in the same way. We are committed to this system. The UK would regard it as important, therefore, to try to work within the system to raise standards elsewhere, so that this can be a valid way of treating people.

Q215 Baroness Stowell of Beeston: How is the review going to look at the interests of the victims of crime, in terms not just of those who are the subject of extradition but of those who are affected by the crimes that are reported to have been committed? Baroness Neville-Jones: I hesitate to speak for those who are conducting the review. I know that they have taken oral evidence and that they have had submissions put to

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler them. I think that they are also going to pay a series of visits. All those things are useful means of relating the theory of the operation of the system to real life. The anxieties that have been expressed relate to the perceived gap. It is not always just the suspect who has cause for anxiety; it is also the victim. Both parts of that need to be looked at. I do not know whether Fenella wants to comment further on that question, which is an interesting one. Ms Fenella Tayler: I just wondered whether you were referring particularly to people who have been victims of crime in this country and where the alleged assailant had fled overseas.

Q216 Baroness Stowell of Beeston: Primarily, yes. I am looking more from the point of view of the British citizen who is a victim of crime and is waiting for the person to be extradited back to the UK. Baroness Neville-Jones: In the case of Part 1 countries, the chances of getting someone back are greatly increased by the existence of the system, for all its imperfections—we know that there are some in practice. The chances of getting people extradited in the absence of a system of this kind would be much lower. To that extent, the interests of justice are certainly served by both extraditing and facilitating the process under the rules. When you have got someone back here, of course, British justice is in operation.

Q217 Mr Raab: One of the issues that we have heard evidence on is that judges in extradition cases are reluctant to refuse to surrender on human rights grounds, basically because of, in EAW cases, the mutual trust implicit in the system. I wondered whether you had any reflections or comments on that. Baroness Neville-Jones: It goes to the core of the criticism that is being made, which is that, although in theory you get equal justice, in fact you do not. I come back to what I was saying. We have to endeavour over time, if we are committed to this system, to try to get standards elsewhere raised. Clearly, one thing that the panel will wish to look at is whether some of the uncommenced safeguards could be brought into play, which might help. If that recommendation were made, the Government would look at it very seriously.

Q218 Mr Raab: Another interesting thing that has come up in the evidence is the comparison between deportation proceedings and extradition proceedings and the application of Article 8 human rights standards. Obviously, this becomes rather technical, but it is apparent that there is an exceptionality rule for pleading disruption to family life under Article 8 in extradition proceedings which is not as high in deportation proceedings. That leads to quite a stark anomaly. Your innocent British citizen is protected by weaker safeguards than your foreign national criminal when you try to deport him. Is that something that you think ought to be addressed? Baroness Neville-Jones: The question of the right level of human rights protections is itself controverted and to some extent that level is moving. Individual cases give rise to changes in law. I think that it would be preferable to have confidence in same standards, but the difficulty is that justice is a moving thing and standards change Oral Evidence, 29 March 2011, Q 165–240 over time. I would not say necessarily that one has heard the last word about human rights standards in either of those two contexts.

Q219 Lord Morris of Handsworth: Minister, we note your opening comments about the reviews that are taking place, but can we have some indication of the extent to which the Government believe that implementation of the European arrest warrant has been successful? Baroness Neville-Jones: The numbers certainly show that the system is operating. One reason why we asked the panel to look at it is that we are not entirely content with some aspects of the operation. The one that is most obvious and most often commented on is proportionality. It is no secret that there is one country in particular that sends us many more warrants than any other—over 60 per cent of the warrants that we receive come from Poland. Fenella Tayler has talked to the Polish authorities and I have talked to their Minister. There is a plan to ask the Polish judicial authorities to come over here to see our system in operation. At the end of the day, of course, this is a judicial rather than a governmental matter. One thing that we would like to do is to inculcate various habits that are more like ours. Secondly, I think that it is true to say that, in the negotiation of the European investigation order, the experience of EAW has alerted people to the need for proportionality in the operation of the EIO. I think that there will be greater safeguards there. Fenella, you might like to say something about that. Ms Fenella Tayler: That is certainly something that is being considered in the negotiations on the European investigation order. Those negotiations are ongoing, so we do not yet have a concluded instrument, but we are working hard to try to ensure that proportionality is included in the instrument.

Q220 Lord Morris of Handsworth: Can I just pick up that point? Both of you have made strong reference to the principle of proportionality. Will that be codified somehow or will it apply purely on a subjective basis? Will there be criteria on the application of proportionality? Baroness Neville-Jones: You have put your finger on a very acute issue. I asked the same question: could one codify this and define proportionality? The answer that I get from the experts is that that is very difficult and that, if you try to fix a definition of what constitutes proportionality in any given area, that would give rise to its own anomalies. It comes back to more common sense and restraint. There are some guidelines in EAW that are meant to bear on the question of proportionality—for instance, on the kind of offences for which you can extradite. The system is not wholly without its own limits, but I think that its operation is still open to the criticism of spending too much time on relatively trivial offences when perhaps it would do well to focus its attention on ensuring justice for the more serious offences.

Q221 Lord Morris of Handsworth: Do you think that agreed guidelines would be more objective?

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Baroness Neville-Jones: I think that guidelines are probably the way to go, rather than legislation. Is there not a code book now and some guidelines that judiciaries are meant to use? Ms Fenella Tayler: In relation to the European arrest warrant, there is a threshold below which a warrant cannot be issued, which is that the offence must attract a maximum sentence of at least 12 months.

Q222 Lord Morris of Handsworth: Within domestic law? Ms Fenella Tayler: That is within the law. But although that is a threshold, it none the less allows, as Baroness Neville-Jones indicated, quite a lot of warrants to be issued. It depends on the law of the issuing state as to whether a warrant would be issued for such offences.

Q223 Baroness Stowell of Beeston: A lot of the exchange that has just taken place has been about a topic that I was going to come on to later, so in the interests of speed I should like to pick out an issue from the later questions that has not been covered. We understand that the European Commission has suggested incorporating a proportionality principle in the context of the European arrest warrant. Baroness Neville-Jones: I am not aware of that. Ms Fenella Tayler: It is at the moment enshrined in the handbook, so it is in guidance rather than legislation. If it were to be enshrined in the instrument, that would require an amendment to it, which brings a lot of further complex issues in its train. Baroness Neville-Jones: It brings with it a whole definitional train. I think that for someone in government it would be very helpful to have the guidance of the experts on this. If the extradition panel has views on this, it would be very helpful to have them. I am not sure how much further forward enshrining a proportionality principle in law and then interpreting it would get us than we already are. That is my worry.

Q224 Mr Raab: You mentioned earlier some of the progress on the EIO. That was very useful, so I shall skip some of the questions that relate to that. There are two concerns. One is operational strain on the police service. The Met gave us evidence in the form of a letter, which I understand went to the Home Office. One point that it made was that “the EIO is likely to become an ineffective instrument should it go ahead without a proportionality clause”. You said that that is quite difficult to define, so I wondered how in the EIO negotiations parties are going about trying to get to grips with it. Is there anything more that you can say on that? Baroness Neville-Jones: I am aware that there has been evidence to the effect that the EIO would give rise to a much bigger demand for investigation. I confess that that was not something that the police said to us at the time when we were discussing whether to opt in. We do not on the face of it see why that would be the case. This is another area where guidance would be very useful as a material way of controlling the kind of requests that we received. That is a material consideration. Am I not right in thinking that another piece of European legislation is coming up? Ms Fenella Tayler: There is the European evidence warrant— Oral Evidence, 29 March 2011, Q 165–240

Baroness Neville-Jones: That is already in existence. We are not pursuing that, I seem to remember. Ms Fenella Tayler: The EIO will supersede it.

Q225 Mr Raab: Can I just ask a follow-up? Fair Trials International made a number of points on safeguards as opposed to a filter with the accused in mind. It talked about fundamental rights grounds, the absence of dual criminality provisions in the original draft, the lack of provision for the defence to request evidence and the lack of data protection controls—for example, the fact that the EIO request can go to someone who is not themselves subject to a criminal investigation but is just a witness. I appreciate that there has been only limited or partial progress, but are all these things currently under negotiation or is there any progress on any of them that you might be able to report? Baroness Neville-Jones: I will ask Fenella to answer that in detail, as she is part of the negotiation, but my understanding is that almost every one of the issues that you have described has been raised in the negotiation. The question is how far those will be considered to be absolutely material to the system’s operation. One can get to the point at which one makes the operation so complex, particularly if one starts to insert the need to go to a judge every time, that it jams up and ceases to be useful. However, there are other areas where some guidance and safeguards would be a good idea. Ms Fenella Tayler: One particular area that we are investigating and pushing on at the moment is to seek to ensure that an EIO cannot be sent or executed in this country for something that would not be possible under our own domestic law if it was a domestic case. That is perhaps the most basic form of proportionality. It would be a way of refusing or screening out such requests for evidence. That is a key safeguard that we are seeking to enshrine.

Q226 Mr Raab: ACPO took a rather different line on the EIO. Certainly the Home Secretary’s Statement to the House at the time of the original decision to opt in took a rather different line from that taken by the Metropolitan Police. Had both given evidence prior to the Oral Statement? Had the department received evidence from both? Baroness Neville-Jones: I am afraid that I do not know. It was before we were in office. The briefing that I had was that we had consulted the police. My understanding at that stage was that the police were rather in favour, as indeed were the prosecuting authorities. Mr Raab: I think that ACPO was but that the Met seemed rather less enthusiastic, so I was curious about the synergy between the two. Baroness Neville-Jones: You are enlightening me. I think that we will have to write to you on that.

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Q227 Lord Dubs: Witnesses have suggested that the Extradition Act 2003 could be amended to include a forum safeguard. Would the Government consider amending the Extradition Act 2003 to implement some of the optional grounds for non- execution of the warrant? Baroness Neville-Jones: That is one of the things that we have asked Sir Scott Baker and his panel to look at. We will now await his recommendations, but if there is a recommendation to implement that, we would want to look at it positively.

Q228 Lord Dubs: What possibility is there for renegotiating the framework decision itself? Baroness Neville-Jones: That is difficult, as you may know. It requires, I think, 25% even to get the matter considered for renegotiation. Having said that, I would not want to underestimate the difficulty, but equally, if the level of dissatisfaction with this piece of legislation is very great indeed, it would be right to try to do something about it. I do not take the view that in no circumstances would we be willing to reopen. It would be difficult and one also has to bear in mind the fact that you might get outcomes that were unwanted as well as ones that were wanted. We would have to balance the risk.

Q229 Lord Dubs: Witnesses have also told the committee that many requests for extradition under the EAW are issued for the purpose of evidence gathering, leading to those persons awaiting trial for many months in a foreign country, sometimes without bail. What do you think about that? Baroness Neville-Jones: One of the things that we are trying to do is to get the system operating so that people can come back under supervision. Secondly, this relates to the comments that were made earlier about the efficiency with which the EAW is operated at both ends. I am quite clear that we need to speed this up.

Q230 Lord Dubs: Does the EAW actually allow extradition for the purpose of investigation? Baroness Neville-Jones: No, it does not. There has to be an offence.

Q231 Lord Dubs: Yes, but to investigate the offence— Baroness Neville-Jones: Yes, but you cannot just have a fishing expedition. It has to be issued by a member state with a view to arrest and surrender by another member state.

Q232 Lord Dubs: We have had witnesses who gave us instances of where a country questioned somebody but was clearly not trial-ready at all. The individual was held while there was an investigation on how to take the matter further. That seemed to us to be a bit premature. Baroness Neville-Jones: In relation to the UK? Lord Dubs: It was somebody from the UK, yes. Baroness Stowell of Beeston: This goes to the heart of the question that we were discussing with Mr Starmer. Oral Evidence, 29 March 2011, Q 165–240

Q233 Lord Dubs: We certainly had a witness who spoke to that effect. Is there any way in which the Government can take steps to ensure that EAW requests are used only for the purpose of prosecution? Baroness Neville-Jones: The way we can do that is to ensure that any request that we get conforms to the provisions of the legislation under which we are operating— that is to say, the directive and our transposition of it into UK law. We shall do that.

Q234 Lord Dubs: But does that not mean that there ought to be a power in the courts in Britain to ensure that that is the way the system is operating? Baroness Neville-Jones: We can and do reject requests.

Q235 Lord Dubs: So the courts could ascertain whether the country requesting the individual is ready to put that person on trial. Does it go as far as that? Baroness Neville-Jones: That goes to judicial proceedings in other countries. The purpose of the directive and of the Act that transposes it is to facilitate a trial. It is not just a means of keeping people warehoused.

Q236 Lord Dubs: So you are unhappy— Baroness Neville-Jones: I would be unhappy to have the sense that this was what was going on. I would want to be aware of such cases.

Q237 Lord Morris of Handsworth: The committee has heard from witnesses that those subject to extradition requests are not at all times provided with sufficient information on their rights when arrested. Can you offer any comments on that, Minister? Baroness Neville-Jones: That is very important. There is a provision, which I think is under negotiation, to make it mandatory on a member state that arrests a foreign national who does not speak and understand the language in which the proceedings are going to be conducted to provide both translation of documents and interpretation of proceedings. This will not just be in the context of EAW; it will be more general. That will certainly help and will be a major improvement on the current situation. That is part of what is called the road map. These are important practical safeguards, which should improve the real-life experience of people who get caught up in the legal systems of other countries.

Q238 Mr Raab: We have covered a lot of ground, but I wondered whether in relation to both Part 1 and Part 2—EU and non-EU—you thought that there was scope for greater ministerial discretion. I know that the trend has been the other way, but perhaps it needs to be slightly rejigged. One can think of cases such as the McKinnon case where Ministers have said, “We just don’t have the discretion”, whatever their disposition might have been. Do you think that the automaticity of the EAW or the UK-US and other extradition relations should be addressed?

Mr Keir Starmer QC; Baroness Neville-Jones and Ms Fenella Tayler

Baroness Neville-Jones: You are right to say that on the whole the trend has been the other way. This is not just a trend in the UK. Governments have been increasingly reluctant to get themselves involved in the exercise of discretion. That is related to the greater saliency of law in international relations. On the whole, it becomes increasingly uncomfortable to exercise executive discretion in a judicial or quasi-legal context. We have asked the panel to look at this issue and I do not want to go much further at the moment. The reason why on the whole people in the Executive have wanted to reduce their discretion is precisely because of the difficulties to which its exercise can give rise and the unevenness of the justice that can result. I do not get the impression that the Home Secretary is seeking a great expansion of her discretionary authority.

Q239 Mr Raab: In relation to the UK-US treaty, there has been a lot of discussion and debate about the differing standards between the evidential thresholds for the US and the UK. In the UK, you have to demonstrate prima facie that a case exists, whereas there is a different formula for the US. Is it the view of the department that there is a meaningful and significant practical difference between the two evidential thresholds? Baroness Neville-Jones: We have so far had too few cases to test the whole thesis of whether there is a difference of form or a difference of reality. Much of this happened before we were in office, but it is fair to say that we do not believe that injustice was delivered. Again, this is an area that we have asked the panel to look at in terms, so it would be wrong of me to express a view beyond that. I appreciate why the question is being asked, as it is central.

Q240 Mr Raab: Finally, with the EAW and the UK-US treaty, there is the question of what you can do without changing the international instrument. In broad-brush terms, how much room for manoeuvre do you feel there is in terms of adjusting the administrative arrangements under the US-UK treaty without amending the treaty? Baroness Neville-Jones: Clearly, that is a hypothetical question. Without specific detail, all that one can say is that these are two friendly Governments. If an adjustment can be made which is in the spirit and intention of the treaty and which improves its operation, I would expect us to be able to do that. The Chairman: Thank you very much for your evidence today, which has been most productive. We hope that we will produce our report by the early summer so that the review can take account of it.