Memorandum submitted by Fair Trials International
1.1 FTI welcomes this opportunity to provide
our views to the House of Commons Justice Select Committee on
the Stockholm Programme and on how action taken at EU level has
affected people, particularly in the area of criminal justice
and the procedural rights of accused persons.
1.2 This paper will look at the opportunities
presented by the Stockholm Programme and present arguments and
case studies supporting the need to back the Swedish Presidency's
efforts to prioritise minimum procedural defence safeguards for
all EU citizens.
1.3 The paper will also show, again based on
FTI's own casework, that certain enhancements could be made to
EU mutual cooperation measures such as the European Arrest Warrant
to ensure they deliver justice in combating and punishing serious
cross-border crime, as originally intended, without undermining
the core EU values of upholding the rule of law and guaranteeing
the right to a fair trial for all citizens.
2.1 During the last 10 years the EU has
actively sought to build an area of justice, freedom and security
within Europe. The dominant theme has been for member states to
cooperate more effectively to bring to justice those convicted
or suspected of criminal activity. The most notable development
has been the creation of a fast-track system of extradition within
Europe (the European Arrest Warrant or EAW). We believe this increased
cooperation has resulted in real improvements in some areas of
criminal justice, cutting down delays, increasing efficiency,
and enabling serious organized crime that crosses national borders,
such as human trafficking, money laundering and cyber-crime, to
be tackled more effectively. These are laudable achievements.
2.2 We are, however, concerned that European
cooperation in the fight against crime has forged ahead with insufficient
regard for basic principles of justice and fairness. The Stockholm
Programme must address this to enable member states to trust each
other's systems to deliver justice to the necessary standard.
2.3 The Stockholm Programme aims to build
on progress to date and go on increasing mutual cooperation in
a highly diversified Union where over 500 million citizens live
and over 8 million of them currently reside in another member
state than that of their nationality. Clearly this presents challenges
for justice and home affairs policy and makes mutual cooperation
a necessity. However, it must not be at the expense of basic principles
of fairness and justice. Sadly, there has been insufficient assessment
of the human costs of existing measures such as the EAW and their
2.4 The EAW system has been in place long
enough to demonstrate some of the dangers that can arise from
mutual cooperation, where mutual trust is not yet in place. FTI
wants to see the EAW system and other mutual cooperation instruments
work properly, so that they uphold rather than undermine the justice,
freedom and security that lie at the core of the EU's mandate.
We suggest a number of concrete ways in which the EAW system could
be strengthened to deliver greater justice without detracting
from suspects' fundamental rights and without allowing the system
to be abused through the issuance of unreasonable or improper
extradition requests. We illustrate our suggestions with a selection
of case studies.
2.5 The injustices we encounter in our own
casework show us that more must be done under the Stockholm Programme
to improve the delivery of justice for the benefit of all EU citizens,
wherever they happen to live, work, study or travel within the
Union. In particular, our cases illustrate the importance of minimum
procedural defence rights being guaranteed. In practice, it can
often be more difficult for non-nationals than nationals to receive
a fair trial.
3. EUROPEAN ARREST
3.1 The EAW fulfils an important aim in
ensuring mutual recognition of judicial decisions between states
and enabling simpler extradition procedures within the European
area of free movement. However, in order for the scheme to be
deemed a real success it must be just and fair and respect the
principle of proportionality and the rule of law. Below is a non-exhaustive
list of the significant problems being encountered under the EAW
3.2 Main problems with the European Arrest
3.2.1 Authorities in some member states are not
taking enough account of the burdensome effects of extradition
on individuals. As a result there is an absence of sufficient
safeguards against extradition on the basis of weak evidence or
with respect to very minor offences. Domestic procedures to issue
and execute warrants do not always respect the principle of proportionality.
3.2.2 The rules regarding the availability of
legal aid for individuals subject to an EAW are unclear and vary
from state to state. Legal aid to support legal representation
(in both the requesting state and the executing state) is often
limited. Given the serious impact extradition can have on an individual's
personal and family life and the likely problems individuals will
face in following the proceedings in another language and culture,
it is essential they should have representation and that if necessary
this should be paid for by legal aid. This is all the more so
given the abolition of the requirement on issuing states to show
a prima facie case when issuing an EAW.
3.2.3 It is unacceptable that individuals
in many EU countries have no means of ensuring EAW alerts against
them are removed after a decision has been taken in one Member
State to refuse to execute an EAW. This is particularly unacceptable
in cases where the execution of an EAW has been refused due to
passage of time, the mental or physical health of a defendant
or one of the mandatory grounds for refusal as laid out in the
Framework Decision on the EAW.
3.3 Suggestions for improvement to the European
The following is a non-exhaustive list of improvements
3.3.1 Checks should be implemented to ensure
EAWs are only issued when proportionate to the offence and in
the interests of justice.
3.3.2 Domestic courts should be equipped with greater
powers to refuse to execute a warrant where: execution will result
in a breach of human rights; or the procedures leading to the
EAW being issued were unfair, illegal or resulted from misconduct
by police or investigating authorities.
3.3.3 The EU should introduce common rules on
the provision of legal aid in relation to criminal proceedings,
especially those relating to EAWs. Legal aid should be made available
for legal representation in both the requesting and the executing
state. Individuals should usually have lawyers representing them
in both countries. The duty to provide legal aid to individuals
subject to an EAW should be appropriately shared by the requesting
and executing state.
3.3.4 The system for removing EAW alerts
from the Schengen Information System, Europol and Eurojust must
be as efficient and reliable as the system for issuing EAW
3.4 FTI Case Studies on EAW
Fair Trials International has worked with many
clients who have suffered injustice under the EAW system. Below
are some summaries of FTI cases illustrating how the scheme has
operated unfairly in ways which the above recommended changes
would help to prevent. More information on many of these cases
can be found at http://www.fairtrials.net/cases/.
In 2007, Andrew, then a university student of
exemplary character with a bright future ahead of him, was on
holiday with friends in Zante, Greece. One night while Andrew
was in Zante, another young Briton was assaulted and fell off
an unguarded stage in a night-club, tragically dying two days
later from his head injury. Andrew insists he was not even in
the club at the timeand many witnesses have since confirmed
this. He was never sought for questioning at the time, and knew
nothing about the incident when he flew home at the end of his
A year later, he was served with an EAW seeking his
extradition to Greece to stand trial for murder. Only during the
course of his legal challenge has it emerged that the EAW is based
on completely flawed evidence, much of it extracted through the
brutal mistreatment of two witnesses who have since retracted
their (word-for-word identical) statements. Our concern in this
case is not only about Andrew's fate: if the Greek authorities
had acted legally and diligently, the true assailant (who witnesses
have described as bearing no resemblance at all to Andrewalthough
a friend who was with this person that night does closely resemble
Andrew) could be brought to justice.
JM was just 18 when he went on holiday to Spain
with two friends. While there, all three were arrested in connection
with counterfeit euros. JM himself had no counterfeit currency
on him or in his belongings when arrested and has no idea how
the notes came to be on his two friends and in their rented apartmentin
total, the police found 100 euros in two notes of 50. The boys
were held in a cell for three nights, then on the fourth day they
appeared in court and had a hearing lasting less than an hour,
at the end of which they were told they were free to leave but
might receive a letter from the authorities later.
They returned to the UK and heard no more about it
until four years later when, as JM was studying in his room at
university, officers from the Serious Organized Crime Agency arrested
him on an EAW.
JM was extradited to Spain and held on remand
in a maximum security prison in Madrid. Other inmates told him
he might be in prison for up to two years waiting for a trial.
Under immense pressure and fearing for his future, he decided
to plead guilty, even though several grounds of defence were available
and he would have preferred to fight the case on home ground,
on bail, and with a good lawyer he could communicate with in English.
None of this was possible, and he ended up spending nine weeks
in prison before coming home to commence his university career,
his future blighted by a criminal record.
This is an example of how EAWs are being issued
in a disproportionate way, wasteful of costs and having an unduly
harsh effect on individuals' personal lives.
Lee Yarrow and Michael Tonge
Michael Tonge and Lee Yarrow were arrested on
holiday in Crete in 1999 after a nightclub fight in which Michael
sustained injuries. Lee was released from police custody after
four days but Michael was held on remand for four months, during
which he was beaten, kicked, flogged with rope and denied food
and medical treatment. He was then released and came back to England,
only for both men to receive EAWs in 2005, with no explanation
for the delay. At their eventual trial in Greece, charges were
dropped against Lee. Michael was convicted of assault, served
a short sentence in Greece and was released and returned to the
UK in August 2007.
Once again, an EAW was executed despite serious police
misconduct and abuse and following unreasonable delay. The English
Court should have been empowered to refuse extradition on the
basis of justice, fairness and the rule of law, but under the
new system it held that it had no discretion to refuse.
Michael and Brian Hill
In 1997 the Human Rights Committee of the UN
reported that Michael and Brian Hill had been denied a fair trial
in Spain following their arrest in 1985 and were entitled to a
remedy "entailing compensation" as a result. But Spain
failed to comply with this ruling. Instead, it issued an EAW seeking
the brothers' extradition to Spain. In October 2005, Michael Hill
was arrested in Portugal and extradited to Spain where he served
seven months for breach of parole conditions. They had already
served three years in prison in Spain.
This is a clear abuse of process. Courts of executing
states should be empowered to refuse extradition in such cases,
rather than perpetuating the injustice of the original trial.
Ms X (anonymity requested)
In 1989, British citizen Ms X was arrested in
France on suspicion of drug-related offences and held in custody.
Her trial took place later in 1989. The court acquitted her of
all charges, finding she had been set up by her then partner.
She returned to the UK thinking that was the end of it.
But unbeknown to Ms X, her case was appealed by the
French prosecution. She was not notified and the appeal went ahead
without her knowledge in 1990. No lawyer represented her. The
Appeal Court overturned the original verdict and sentenced Ms
X to seven years imprisonment. Again, she was not informed.
In April 2005, an EAW was issued by the French
authorities for Ms X to be returned to serve her sentence. Unaware
of this, in 2008 she travelled to Spain and to her horror was
arrested and taken into custody there pending extradition to France.
Ms X refused to consent and spent a month in custodyaway
from her daughter and grand-children in Englandwaiting
for an extradition hearing. Eventually the Spanish court refused
to extradite her, given that 19 years had passed since the alleged
Ms X was released and flew home to the UKonly
to be re-arrested on the same EAW by the British police at Gatwick
airport. The City of Westminster Magistrates' Court refused the
extradition in April 2009 given the passage of time.
This could happen again and again, until France
removes Ms X's EAW from the EU-wide system. Ms X is virtually
a prisoner in her own country, as any trip abroad could result
in her arrest. She wants to visit her sick and elderly father
in Spain but cannot risk it for the sake of her family.
Garry Manncovered below in Section
4. CONTEXT OF
4.1 On 1 July the Swedish Presidency published
a "Roadmap with a view to fostering the protection of
suspected and accused persons in criminal proceedings"
(Roadmap), a positive step which FTI welcomes.
4.2 In our day-to-day experience of cross-border
EU criminal investigations and proceedings, we frequently see
instances of injustice caused by an absence of adequate standards
of fairness in defence procedures across member states. During
the past ten years, EU legislation and policy has been geared
towards mutual recognition and cooperation, with no adequate simultaneous
measures to protect individuals' rights to a fair trial. Once
the rule of law and the right to a fair trial are called into
question, so too is the legitimacy of the ever stronger powers
the EU and member states give to police and judicial authorities.
If the Swedish Presidency is truly ambitious for change in this
field, it (and the Working Group which has been set up to push
forward on these safeguards) must ensure that the minimum rights
contained in the Roadmap now receive the legislative attention
they urgently require. Those efforts should receive the UK's full
4.3 Previous attempts to build a sound basis
for mutual trust between member states have notably failed. Instead
of ensuring minimum fair trial standards across the Union, states
have placed too much faith in the capacity of other legal systems
in Europe to deliver justice. Part of the problem is the lack
of public engagement in the area of defence rights and the almost
total absence of political debate on the subject, particularly
since the Madrid and London terrorist attacks. Recent emphasis
has been on strengthening security and building cooperation in
the fight against terrorism and serious crime. The fundamental
rights of citizens have received almost no attention, but there
is now an opportunity to put this right, with the UK's backing.
4.4 The Roadmap document contains strong
arguments for introducing minimum procedural safeguards. Pointing
to the fact that the removal of internal borders has increased
cross-border criminality and that as a result more individuals
are finding themselves involved in foreign proceedings, the Roadmap
acknowledges that this results in suspects knowing less about
their rights than they would if arrested at home, as well as language
barriers making meaningful participation in their defence more
difficult. It also points out that introducing basic EU standards
for the protection of procedural rights will enhance mutual trust
in other states' systems, thus improving mutual cooperation.
5. FTI'S CONCERNS
5.1 The European Commission's proposals
for the Stockholm Programme published on 10 June highlight the
need to put ordinary citizens' interests at the heart of the project
but contain few concrete proposals about how to achieve this in
the criminal justice context.
5.2 The Presidency's 23 June Work Programme also
contains no detail on this point, referring to its "ambition
to balance effective crime fighting with measures that guarantee
the rights of individuals [emphasis in original]" and the
need for the Programme to "strik[e] a better balance between
measures to safeguard security and measures to preserve the rights
of the individual".
5.3 While FTI welcomes the Swedish presidency's
acceptance that more must be done in this area, what is needed
is more than a re-balancing exercise. We fully accept the
need for cross-border cooperation in the fight against crime,
but there must be no "trade-off" between fundamental
rights and the need to fight crime. The very cornerstone of EU
values is the right of all within the EU to be treated fairly
in criminal investigations and proceedings. This entails citizens
being allowed a full opportunity to defend themselves and participate
meaningfully in their trial. These rights are not variables, to
be weighed in the balance with other policy considerations. They
are universal rights, which should now be restored to the centre
of criminal justice policy.
5.4 This point is best made by looking at
cases involving real people. This is done in section 6 below,
which deals with various of the Roadmap's measures in turn. A
single case often suffers multiple failures to respect basic rights,
with for example the lack of access to a lawyer or legal aid being
exacerbated by the lack of information on rights or on the prosecution
case, or the lack of a quality interpreter or translations of
important documents, or the inability of suspects to contact friends,
family or consular officials as quickly as possible to help them
avail themselves of these other basic measures quickly enough
not to have their position irrevocably prejudiced.
5.5 This indicates that these minimum rights
should be developed in a mutually coherent way, even though the
Roadmap envisages a "right-by-right" approach so that
"focused attention can be paid to each individual measure,
so as to enable problems to be identified and addressed in a way
that will give added value to each measure".
5.6 FTI is concerned at the absence of detail
in the Roadmap about how or when legislation on minimum defence
rights will be introduced. It is also concerning that it has not
been expressly stated that the Roadmap safeguards will be developed
within the framework of the Stockholm Programme. It seems the
intention may be to run this project on a parallel track. On the
other hand, the Programme is quite detailed and specific when
dealing with, for example, increasing the powers of police and
justice agencies even further to gather evidence across borders,
strengthening support measures and training for judges and prosecutors,
and for the principle of mutual recognition to apply at all stages
of criminal procedure.
5.7 FTI's cases suggest that although these
rights are enshrined in the European Convention on Human Rights
and Fundamental Freedoms, they require further legislative force
in order to become tangible for ordinary citizens. Only then can
individuals depend on them with confidence wherever they happen
to be in the Union, whether in their home state or another member
state. This is implicitly recognised by the Swedish Presidency's
statement in the Roadmap that "there is room for further
action of the European Union to ensure full implementation and
respect of Convention standards, as well as, where appropriate,
to expand existing standards or to make their application more
5.8 We believe detailed and binding legislation
on each measure is the best way to ensure this important aim is
6. CASES ILLUSTRATING
Translation and Interpretation
Case study: Teresa Daniels (TD), British national
arrested in Spain
In 1997, TD and her companion AB were arrested
at Gran Canaria Airport: almost four kilos of cocaine was found
in two suitcases belonging to AB. On arrest, AB told police that
TD had no knowledge of the drugs. No drugs were found on her person
or in her luggage. At the trial (less than three months after
her arrest), TD was asked a few questions and after 1½ hours
was told she could leave. She assumed throughout the trial that
she was there as a witness. No interpreter was present to assist
her and she could not follow the proceedings. AB maintained throughout
the trial that TD had known nothing about his activities.
In a judgment issued six months later, TD was sentenced
to 10 years. AB received the same sentence and was taken to prison
to start his sentence; TD was allowed to go free pending her appeal.
She was not sent the judgment or an English translation of it.
She heard nothing further and was unaware that her appeal was
in fact unsuccessful and her sentence had been reconfirmed. A
letter from the Spanish authorities in response to a query from
her MP suggested she had been discharged. However, an extradition
request was later made by Spain and granted in October 2005 by
the UK, resulting in TD's extradition, to serve her sentence in
a Madrid jail. She was ultimately granted a royal pardon and released
in January 2009.
When we became involved in the case (after the appeal)
it became clear that the court had based its decision on a single
entry in TD's personal diary about an expected payment she was
looking forward to receiving. This in fact referred to a few thousand
pounds' compensation for a personal injury claim relating to a
car accident she had suffered, as she could have established if
she had had a fair trial. The court relied on its own unofficial
"translation" of the relevant entry, which was later
shown to be largely inaccurate. An official translation of the
diary, carried out by a qualified translator, was also supplied
to the court prior to trial, yet inferences were made by the prosecution
and the court to the detriment of the defence based on the first,
unreliable, translation. The official, accurate, translation was
ruled inadmissible for being adduced out of time. The appeal court
upheld the original decision in full.
In this case, having an interpreter at court throughout
trial and being allowed to insist on official translations of
key prosecution evidence in good time before the trial could well
have prevented a gross miscarriage of justice.
(See also cases of the Stow brothers and of
Garry Mann below. These cases also involved significant damage
to the individuals' trials, caused by lack of interpreters and
Information on Rights and Information about the
Case study: Andrew and Graham Stow (A and G), British
nationals arrested in Portugal
A and G were considering opening a diving school.
In July 1999 their dive boat was subjected to a thorough routine
search by Portuguese customs officers in Faro and nothing was
discovered. A few days later the Harbour Master in Faro asked
the brothers to move their boat 250 metres down the wharf to make
way for a larger boat. The next day one of the men dived below
the boat and discovered boxes scattered over the sea bed. He began
bringing the boxes up and around 15 minutes later officers from
the Policia Judiciária arrived. A and G assisted the police
in bringing up the boxes. They maintain they were completely unaware
of their contents. Shortly thereafter they were arrested at gunpoint
and accused of importing hashish into the harbour.
Immediately after their arrest, they were interrogated
in Portuguese with no interpreter or legal adviser present. They
were pressurised into signing confessions in Portuguese.
They did not see the charges against them in writing
until a whole year after their arrest. The charges were in Portuguese.
As their defence lawyer did not speak English, A and G had to
rely on other remand prisoners to help them understand the document.
Throughout the trial, the court-appointed lawyer only worked for
the benefit of the court; the court proceedings were not translated
for A and G; and only their responses to the judge were translated
They eventually won a retrial only for the appeal
to uphold the original decision. They served six years in jail
in Portugal and nine months in a British prison following a transfer.
They are now awaiting a decision from the European Court of Human
Rights under Article 6.
A number of our clients facing charges in Spain
have complained about the Sumário Secreto procedure
whereby the prosecution does not have to disclose any details
about their investigation until as late as 10 days before the
closure of the investigation. This seriously hampers the preparation
of the defence. In many cases it results in the refusal of bail
applications and the loss of any chance to prepare a defence case
in good time, for example, by taking witness statements from possible
defence witnesses while their recollection is still good, or adducing
other evidence which could assist the defence.
Access to basic information about the charges and
the prosecution's case must be given at a much earlier stage than
this. Often the damage is done by the time the person knows his/her
rights, particularly where lengthy pre-trial detention is a feature
of the relevant member state's system, as is the case in Spain.
It is also impossible to make proper bail applications without
this basic information.
(See also under Garry Mann's case below regarding
the damage caused by not being informed of legal rights, for example
the right to seek a stay of proceedings in order to prepare a
Legal Aid and Legal Advice
Case study: Garry Mann (GM), British national detained
On 15 June 2004 GM, a British national, was
with friends in a bar in Albufeira, Portugal, when a riot took
place in a nearby street. GM was arrested along with other suspects
some four hours after the alleged offences. He was tried and convictedalong
with 13 other defendantsless than 24 hours after his arrest.
He had been attending the Euro 2004 football tournament and was
arrested under temporary legislation in place at the time. The
object of the legislation had been to allow for a fast track procedure
to convict and deport foreign nationals caught "red-handed".
This was clearly inappropriate in GM's case, where identification
was in issue.
GM was sentenced to two years imprisonment on 16
June 2004 but, two days later, voluntarily agreed to be deported
after being told he would not have to serve his sentence provided
he did not return to Portugal for a year.
The trial was grossly unfair in a number of ways
but perhaps the most striking is that GM had no time to prepare
his defence, instruct a lawyer of his own choosing, or seek legal
aid to help pay for his own lawyer or interpreter. Unbeknown to
GM at the time, it now appears, based on information from the
Portuguese ministry of justice, that the temporary legislation
contained a provision allowing suspects to request a one month
stay of the proceedings to prepare their defence. Had a lawyer
informed him of this, he could have taken advantage of it.
There were only two court-appointed lawyers
for the 14 defendants and they were not given the time or opportunity
either to cross-examine prosecution witnesses or to call witnesses
for their own clients who could support their alibis and offer
character evidence. The court-appointed interpreter translated
for all 14 defendants, communicating with one, who would then
convey the information to the others as best he could.
Garry Mann's EAW
For reasons that are entirely unclear, GM is
now threatened with extradition to serve his sentence, having
been served with a European Arrest Warrant in March 2009, despite
never having returned to Portugal and having been in no trouble
since. He is challenging his extradition.
In part because of his inability to instruct his
own lawyer properly in good time before his trial and his unawareness
of his legal right to a one month stay of proceedings, GM now
faces a real risk of having to serve a jail sentence in Portugal
for a crime he did not commit. His conviction was branded by District
Judge Stephen Day
as having been "obtained in circumstances that are so unfair
as to be incompatible with the Respondents' right to a fair trial
under Article 6 ... [inter alia, because he and the other
respondents] ... had inadequate time to instruct lawyers to conduct
their defence appropriately".
FTI believes that extradition in these circumstances
would amount to an abuse of process. The extradition hearing will
take place on 29 July 2009 at 2.00 pm at the City of Westminster
Communication with Relatives, Employers and Consular
In a number of cases we have seen unacceptable
delays in allowing suspects to speak to family or consular officials.
This causes prejudice to their ability to organise legal representation
as well as unnecessary vulnerability to them and concern to their
relatives. If they are absent from employment without explanation
this can also cause problems for them. It is important to remember
in this context that suspects are just that: they are entitled
to a presumption of innocence and denying them basic communication
rights is not consistent with this.
Green Paper on the Right to Review of the Grounds
Case study 1: Klaas Jan Bolt (KB), Dutch national
detained in France
KB, a lorry driver, was hired by a Dutch transport
company to make several trips between Spain and Netherlands in
late 2004 and early 2005. During one such journey, he noticed
he was being followed by a van. He stopped, checked his load and
found cannabis hidden inside one of the containers. He immediately
notified the Spanish police but was unable to make himself understood.
He next telephoned his wife, who contacted the Dutch police. They
advised him to abandon the lorry and return to the Netherlands
and he followed their advice. Meanwhile, KB's former boss was
arrested in France for possession of four tons of cannabis. Subsequently,
KB was arrested in the Netherlands under a European Arrest Warrant
and was extradited to France in the spring of 2005, having been
falsely accused by his former boss of being part of the drug-smuggling
operation. His accuser has since admitted he lied about KB's involvement
in letters of apology written to KB's family, but this has unfortunately
not led to KB's release.
Having been extradited to France in Spring of 2005,
KB's trial was not conducted until Spring 2008. During this three
year period he was remanded in custody, hundreds of miles from
his family and unable to earn a living or provide for them. (He
was ultimately convicted and sentenced to five years: there were
serious concerns expressed over the adequacy of interpreting and
Case study 2: Joseph Mendy (JM), British national
detained in Spain
The case of JM, referred to above in the context
of the EAW, is another example of how suspects' personal lives
can be severely blighted by the threat of needlessly lengthy pre-trial
detention: in this young man's case, leading to pressure to plead
guilty when he would have preferred to fight the charges.
FTI is grateful for this opportunity to provide
our initial views on the Stockholm Programme and illustrate them
with some of our clients' experiences. We would be delighted to
deal with any queries on this submission.
9 July 2009
1 In an unsuccessful application for a football banning
order brought by the Commissioner of Police against Garry Mann
in July 2005. Back