House of COMMONS
MINUTES OF EVIDENCE
EUROPEAN SCRUTINY COMMITTEE
Wednesday 28 April 2004
CAROLINE FLINT MP, MR RICHARD BRADLEY and MR SIMON REGIS
USE OF THE TRANSCRIPT
Taken before the European Scrutiny Committee
on Wednesday 28 April 2004
Mr Jimmy Hood, in the Chair
Mr Richard Bacon
Mr William Cash
Mr Michael Connarty
Mr Wayne David
Mr Bill Tynan
Witnesses: Caroline Flint, a Member of the House, Parliamentary Under-Secretary of State, Mr Richard Bradley, Head, Judicial Co-operation Unit, and Mr Simon Regis, Head, UK Central Authority for Mutual Legal Assistance, Home Office, examined.
Q1 Chairman: Minister, welcome to the European Scrutiny Committee. It is good to have you here. I wonder if I could ask you to introduce your colleagues before we commence.
Caroline Flint: Yes. I have here Richard Bradley, who is the Head of the Judicial Cooperation Unit at the Home Office and Simon Regis, who is the Head of the UK Central Authority.
Q2 Chairman: Minister, we understand that the proposed Framework Decision on the European Evidence Warrant is meant to replace the EU Mutual Legal Assistance Convention of 2000 and its 2001 protocol when neither of these warrants has yet come into force. If it is to be modelled on the European Arrest Warrant, would it not be more sensible to see first how that operates in practice? How do you answer the criticisms that the proposal is premature?
Caroline Flint: I think it is a fair point that we are waiting for some of these procedures to come into force and be implemented but I am sure you and other members of this Committee are also aware how long these things take to be discussed. Having successfully got through the necessary legislation for the European Arrest Warrant, which we are currently using both in terms of responding to requests and also issuing requests after that, I think we and other European Union members feel that we should start looking at this issue as an area which could improve even on those situations that are currently held. We are only at the start of discussions. This clearly is not going to happen for a number of years and all those references that you made to mutual and legal assistance will still hold and we will still want them to be implemented, but, as it is with these areas, we want to be ahead of the game to discuss where we might go. I think there is a feeling that mutual recognition could offer us in the future a better way of executing requests for evidence. We need to start that discussion now so we are able to have, if you like, a more seamless transition if we can reach agreement. But this particular area should be mutual recognition rather than just mutual legal assistance.
Q3 Mr Connarty: The Chairman asked you about waiting to see how the European Arrest Warrant worked before we rush in to get another questionable arrangement on legal terms in Europe. For example, does the Minister know where the whole Formula 1 operation is now based?
Caroline Flint: I cannot comment particularly on Formula 1. I do not know whether Simon or Richard could comment on that particular issue. In terms of the European Arrest Warrant, we can give some information on what we have currently responded to and what we have currently requested.
Q4 Mr Connarty: Formula 1, a massive organisation, has left the United Kingdom and registered its office in Monaco, taking with it a major industry, because the European Arrest Warrant threatened an organisation like that with malicious attempts at prosecution from countries that may not be as disciplined as we are. The worry of the European Arrest Warrant may be that other companies who see it as being used by people in jurisdictions throughout Europe who are not as disciplined as us and who could be malicious, in fact may leave similarly. Therefore it would be sensible, I would suggest, to see how that arrest warrant works out and the actual impact of that arrest warrant on our standing as a country for the people who do business here, before we rush in to get another arrangement.
Caroline Flint: I do not think we are rushing into another arrangement.
Q5 Mr Connarty: It sounds like it.
Caroline Flint: I think I have said we are only at the start of the discussions, part of which we have some concerns about, with the proposals that are on the table at the moment. I think we have indicated some of our concerns to the Committee and, likewise, so has the Committee expressed some concerns. I think we are at the start of a process. I take your point on the European Arrest Warrant. Obviously there are some particular issues there, and if you would like to come and see me about those then I am happy to meet with people. All I am saying is, in terms of how we have used European Arrest Warrant procedures and in terms of countries coming to us to seek to use them, I do not think we have had any particular problems at the moment. That is all I would say at the moment. I do not know if Simon wants to add anything to that.
Mr Regis: At this stage, we have not had any particular problems with the operation of the warrant. Granted it is still fairly early days, but, as the Minister has said, the situation in relation to this particular Framework Decision is that the negotiations are going to take some time. If there are any particular problems that arise as a result of the operation of the European Arrest Warrant, I cannot see why these will not be taken into account in the negotiation process.
Q6 Angus Robertson: Minister, welcome to the Committee. How has it been established that the existing EU mutual legal assistance conventions are or will be ineffective?
Caroline Flint: I do not think it has been established that they are ineffective. The conventions and those areas of work that was done on them were to try to bring some better clarity to how we could work, particularly in terms of obtaining evidence. I think there is a view, however, that discussion about where we might need to execute requests better and more quickly should be something that could come under mutual recognition for the future. But, as I say, one of the things about these discussions is that we are exploring at this stage this particular issue. Those conventions would still apply and be used - because we are not going to not do anything for the next few years - but the idea is to look at where there are some issues that we have learned from the terms of the European Arrest Warrants, and all the debate we had over that having a mutual recognition system for that situation, as to whether it can be applied here. We would want to use the system, but we do know, just in terms of the way in which the current situation as to how mutual legal assistance works, that it can take a considerable amount of time, and some of that time we do not think is necessary. This system gives us some clarity but also some clear timetabling - although we do have a question mark over some aspects of the timetables that have been set which we think would speed up the process. At the end of the day, it is about trying to establish within the European Union that people who may be committing crimes cannot escape. That means people coming to the UK who are committing crimes and also people in the UK going to commit crimes in other countries. Whilst we would recognise that there have to be safeguards in that protection, I do not think anyone on this Committee would think that it is right that people should get away by having another Member State as a bolt hole for hiding their activities.
Q7 Mr Cash: Minister, I have listened with some substantial amazement to what you have just said. If we were dealing with very serious crimes of the kind that you have mentioned, at least we could discuss that in terms of the principle, but the extension to the list of criminal offences which would be covered is simply extraordinary and of course invades matters, which I shall come on to later, with respect to concepts such as swindling, racism and xenophobia, and also the huge and vast differences between the criminal laws and procedures and burdens of proof as between Member States. Irrespective of whether or not it is desirable to try to catch criminals - and we would all agree with that - you have to do it within the framework of a proper and proportionate analysis of infringements of freedom of speech, and also, for that matter, proper procedures. Surely you agree with that. Why is the Government - and it may not be you, it may be further up the line, but whoever it is - not condemning this, instead of arguing around the subject, as if somehow or another there might be a way of dealing with it and hopefully hopping over that five-year period?
Caroline Flint: I think the reason we support discussion on this area is primarily because we recognise that we are part of the European Union in which we are working together for all of us to have fair and democratic systems of government and, within that, the right to a fair trial. Within that situation we think there are benefits for us as the UK, in order to be able to seek evidence for our own activities here in terms of law enforcement. That is something we should recognise from countries who might want to come to us for evidence as well. There are some issues clearly about safeguards; there are some issues we feel we need to explore further in terms of where the offences took place in other territories. We need to look at that as well in terms of somebody issuing a warrant for evidence where an offence may have taken place elsewhere. In terms of your point about the range of offences, I suppose it depends where you stand, as to whether you are a victim of one of those offences, as to how seriously you think these things are. To a certain extent, justice and the application of justice is most important for the victims of these crimes, depending on whatever those crimes are. I do not know if Richard would like to say anything more about racism and xenophobia, the particular issues that Mr Cash has raised.
Mr Bradley: This was also raised on the European Arrest Warrant and there was considerable concern about the possibility of the European Arrest Warrant being issued in relation to perhaps xenophobic statements made in our press.
Q8 Mr Cash: What about the Home Secretary?
Mr Bradley: Or of course by politicians or any member of the public. What can be xenophobic in one Member State would not be considered as an offence in another Member State. The answer to that was that the European Arrest Warrant would not apply where the conduct took place wholly or partly in our jurisdiction. We are considering whether there should be a similar type of safeguard that might be sought in relation to the European Arrest Warrant. Having said that, of course, we are talking about a rather different case, because here we are talking about providing evidence to assist in another jurisdiction with its investigation and prosecution processes; we are not talking about handing over a person to stand trial. Of course, even if the dual criminality rule did not apply at all to the European Evidence Warrant, then, in order for a person to be handed over to the prosecution, you would still have to follow the rules that apply under the European Arrest Warrant.
Q9 Mr Connarty: Could I just put on record that I am quite shocked that the Minister or senior advisers did not seem to have followed what has happened to Formula 1. It shows that perhaps the consultation process was not as thorough as it should have been.
Caroline Flint: We have not finished the consultation process.
Q10 Mr Connarty: It was the European Arrest Warrant that made them move to Monaco. It is of concern that maybe the Executive with its very trite answers about justice - which really means them pursuing the people they think are criminals - have opened up the possibility of malicious prosecutions and grandstanding by small jurisdictions in Europe which could have major effects on companies in this country. The Commission described its proposals as only a first step - which certainly sends tremors through my human rights' fibre - with existing arrangements for the cross-border gathering of evidence being "replaced by a single EU body of law". That is a direct quote from the Commission. Is that what the Government wishes to see? Are such uniform rules and such extensive EU involvement in criminal procedure and evidence really necessary or appropriate? I have not yet heard enough from the Minister to convince me that it is.
Caroline Flint: We certainly do not support an EU body of law. We think individual Member States should be allowed to determine how the law is enforced within their own domestic proceedings, but we do recognise the issues for people who commit offences in other Member States and then go to another Member State possibly to evade prosecution. We think that is an issue that we need to attend to. The process of that is important, but that can happen in a way which does not fundamentally affect us being able to implement the law as it stands in this country. We do think it is important, where people do commit offences within the European Union, that you should have procedures and safeguards within those procedures, both in terms of ECHR and other issues around data protection, to make sure that we can assist as appropriate. I think that is something which is in the interests of the UK as well as obviously wider interests across the European Union in tackling people who commit offences.
Q11 Mr Cash: Minister, apart from the fact that some part of this runs a coach and horses through the Human Rights Act, the question I am very concerned about is what the Commission has said, that they want these arrangements to be replaced by a single EU body of law. You know as well as I do what that means. It means that the European Court of Justice would effectively be the supreme court in matters of this kind, overriding our own judgments, and also, for that matter, our own Parliament, so that there is a very serious problem which lies at the heart of this. We do not have time to debate the entire issue of the sovereignty of Parliament in this context, but I am sure you recognise that the very expression they used "replaced by a single EU body of law" carries that implication.
Caroline Flint: Could I ask Richard to elaborate on that and what the interpretation we understand is of the Commission by using that particular phrase there.
Mr Bradley: We understand the Commission is proposing that they would bring forward a single legal framework for dealing with requests for evidence. We do not read that as referring to ideas such as the corpus juris, where you have a complete body of law dealing with all aspects of the procedure and substantive law. Really, we are saying this is a first step to have a European Evidence Warrant which relates to pre-existing evidence, and then, at a later stage, the evidence warrant concept could be extended to other types of evidence; for example, where evidence has to be sought by a special monitoring procedure or an investigation process and they want to have a comprehensive system for collecting evidence. It seems to us that it would be sensible, if we approved the concept of the European Evidence Warrant, to extend it at a later time to cover all the forms of evidence; subject of course to the proper safeguards.
Mr Cash: I am sure you are putting up the best possible case that can be put up in the circumstances but I have to say that I really do not buy it. This is a step-by-step approach but it also has that implied threat in it and it is what they want. That is really the position, as I see it, but I pay some tribute to the fact that you are doing your best to defend the impossible situation.
Chairman: Mr Bradley, may I just read from the Commission's explanatory memorandum, paragraph 40: "... the existing mosaic of international EU conventions governing cross-border gathering of evidence within the EU would thus be replaced by a single EU body of law."
Q12 Mr Cash: Minister, could you ask the Prime Minister if he would be good enough to red-line this one. Would you like to reply to that?
Caroline Flint: We are trying to explain that this is dealing with procedures and process rather than something which is fundamentally affecting the way in which we are interpreting how we gather evidence in this country, in terms of cases and issues around the burden of proof and other issues. We obviously have a difference in terms of what we understand by this document and what it means, and that obviously affects our cooperation or participation or not.
Q13 Chairman: If it is any comfort to Mr Cash, my legal advisor underlined that quote I just gave in red, so it is red-lined here! Mr Bradley wants to respond.
Mr Bradley: I wanted to respond to the point about paragraph 40. Looking at in detail, I think it does confirm what I said before, that they are talking about a single consolidated instrument to replace mutual legal assistance processes in the same way that the European Arrest Warrant will replace extradition. This is not part of the concept of a corpus juris. I am not saying, of course, what some people in the Commission may intend to do at some future time. We do not of course know exactly what plans the Commission or the Member States might have for the future, but, as far as this instrument and the explanatory memorandum is concerned, they seems to be referring just to the idea of procedures for collecting evidence.
Q14 Mr David: Following on from that, I was wondering if you would like to speculate as to what might happen in the future. The Government frequently says it is seeking to set the agenda, if you will, rather than responding to other people's initiatives. What might you imagine would happen next? Is this an end in itself? Or do you see it automatically, as the Commission does, in whatever shape or form leading on to other things?
Caroline Flint: In some ways mutual recognition we see as the next step in terms of this area and that is building on what we have already discussed in relation to the European Arrest Warrant. That is where we think it is important in how we can have a more effective way of working together in some of these areas. As I said, mutual recognition for us is where we are aiming rather than anything else.
Q15 Mr Bacon: Minister, when you said earlier that you saw this all as a matter of processes and procedures, it reminds me of an utterance by Tony Benn that people underestimate the importance of processes and procedures. Whenever I hear anyone talking in those terms, it slightly raises an alarm bell. Could I just clarify something here. I understood you to say, to go back to Mr Connary's question, that in any event you were opposed to seeing the arrangements for the cross-border gathering of evidence being replaced by a single EU body of law. That is what you said, is it not?
Caroline Flint: I think I was referring to trying to clarify what we understood by a "single body of law".
Q16 Mr Bacon: So you are not saying you are opposed to it but that you and the Commission have different understandings of what it means.
Caroline Flint: I am saying that I think Mr Cash has a different understanding from what we understand the Commission means.
Q17 Mr Bacon: Do you think your understanding of what the Commission means and the Commission's understanding of what the Commission means are the same?
Caroline Flint: I think we do have a clear view of what that means. Where you might be right is that one of the things we have to make sure as part of the negotiating a process is that that clarity is there. When Mr Cash asked me the question, I thought he was referring to an idea that would be that somehow we would have a system of law across Europe that would be harmonised and the same. I was trying to address that that is not what we understand is the interpretation when we talk about a single body of law in this. Richard then outlined that we were talking about the procedures and processes of how we work together in terms of the collection of evidence, and that is something on which we could strive to have a unified agreement across Europe. I think that is different from what Mr Cash was inferring, but, as with all these documents, because of the different legal systems within Member States, we do have to go through these issues with a fine-tooth comb to make sure the language is firmly understood by everyone concerned and there are different parts of this proposal about which we do have concerns and which we need to explore. I think the Committee has raised some issues as well - and we would agree with them - that we have to nail down, to make sure we are clear about what the understanding is, so that at the end of the day we can be confident and reassured that it will be implemented appropriately.
Q18 Mr Cash: Chairman, could I just clear up one point that the Minister has just raised with regard to what I was alleged to have said? It is with regards to this principle of mutual recognition. One of our problems as a committee, certainly on advice, is that we have come to a conclusion that when you refer to mutual recognition it is more in the nature of a ritual incantation than anything else. This sort of approach actually overlooks the point that mutual recognition is the consequence of mutual trust and confidence that exists between Member States' legal systems and not its cause. Now, you know what JUSTICE has said about this. They say that "mutual recognition may in fact breed mistrust, suspicion and uncertainty" and so on, and Dr Jakobi of Fair Trials Abroad gave us evidence some months ago in relation to the Convention's proposals for criminal justice that "a Europe which contains Netherlands and Greece is a Europe that might as well contain Morocco and the Netherlands".
Caroline Flint: We have a consultation out at the moment and both the organisations you mentioned have been asked to submit their views. We are in consultation. In a number of different ways, we are currently working, I think very productively and constructively, on a number of law enforcement issues which I think are to the benefit of the UK citizen. Part of the issue is tackling who are the appropriate authorities for which, for example, in this context, an evidence warrant would be issued, what are the safeguards there in terms of human rights, what is the opportunity if, for whatever reason, we are unhappy with the way warrants are issued and what is done with the evidence. These are all things that we would share with you that we need to clarify and can only come out as part of the negotiation. Going back to the first point that was made by the chair about why are we looking at these things now, we do not think these are easy issues just to resolve overnight; they are going to need extensive discussion. That is why we have to start the process now about the particular issues because they will take time, and they will take considerable scrutiny and input from people in parliaments in the countries concerned but also other organisations as well.
Q19 Jim Dobbin: You have described the proposal of the European Evidence Warrant as a "reasonable development" of the EU's mutual recognition programme, but is the case of a search warrant not materially different from recognising a court judgment? In the case of a search warrant, there will have been no adversarial proceedings, the need for the warrant will not have been tested and the person affected will not have had any chance to be heard. How can near-automatic recognition and enforcement be justified in such a case?
Caroline Flint: The European Council at Tampere in '99 did call for the principle of mutual recognition to apply to pre-trial orders, which I think is behind your question. The reason for that was to enable competent authorities to secure evidence quickly. There are other examples of how mutual recognition applies in this respect, where the application can be made solely on the application of one party, and that is the European Arrest Warrant and the Framework Decision on orders freezing evidence or assets. So there are currently, if I have understood the question correctly, both precedents set for recognising that under mutual recognition actions can happen without necessarily being in trial or going to trial or what-have-you, and part of that is about obviously gathering the evidence necessary in the first place. The issues are I think on what safeguards are there around that situation for the individuals and how they are executed. Within this, I understand - Richard will correct me if I am wrong - there is the facility for the defence to seek evidence as well through this procedure. So it is not just a prosecuting issue necessarily, it could be a defence issue as well.
Mr Regis: To add to that, in relation to the current procedure there is no adversarial process. If we receive a valid request for a search warrant to be executed in the UK, the UK officer will go before a magistrate, apply for the warrant, and only until the warrant is executed can any adversarial mechanism come into force because until that point in time the person affected will not have been affected and will not have notice. So there is not that much of a difference between what we currently do now and what is proposed under the new system because their is no adversarial procedure in the UK in relation to obtaining search warrants.
Q20 Mr David: In a few days more time we will be looking at a European Union of 25 Member States. To be perfectly honest, I think it is reasonable to say that not every country in Europe will have the same standards of law that we have in this country - and you could argue that that applies to the existing European Union, let alone an enlarged one. I am thinking in particular of the situation in Greece. We have all heard about the scandal, as many of us thought, of the plane-spotters being incarcerated. Are you able to imagine a situation whereby if a European Evidence Warrant had been enforced you could have had the homes of these plane-spotters in Britain being searched on the basis of what had been decided in Greece?
Caroline Flint: Would you like to say something on that particular case, Richard.
Mr Bradley: Of course that particular case was not one where mutual recognition processes were applied because the people concerned were actually in Greece and were arrested there. But, to follow up your question about searching processes here, we would only have to carry out searches if the person asking for the search, the authority issuing the evidence warrant, had certified that it was necessary and proportionate, and then there are various safeguards which are set out in the European Evidence Warrant proposal, such as giving notification after a search has been carried out, which are rather similar to the processes which apply under the Police and Criminal Evidence Act. So it is not clear that this raises a whole set of new and difficult questions which we do not already have under our mutual legal assistance processes.
Q21 Mr David: You say it is not clear, but is that not slightly worrying? Should it not be very clear because a lot of people have legitimate concerns about certain hypothetical scenarios developing but nevertheless ones which could severely impinge upon people's civil liberties.
Mr Bradley: I say it is not clear because we are at the beginning of a negotiation process and the kind of issue you have brought up I am sure will be amongst those which will be discussed in the negotiations. One of the concerns we have is the possibility of evidence warrants being issued for offences which are not of a very serious order. We are looking at whether there should be some type of threshold, that at least the offence should be punishable by a certain period of imprisonment in the country that issued the evidence warrant.
Q22 Mr Bacon: Do you mean even if it is not an offence here?
Mr Bradley: Yes. That comes back to the point about dual criminality.
Q23 Mr Bacon: It would be acceptable to you if it were not an offence here. So long as it were a sufficiently serious offence to warrant a prison term in the country you are talking about, then it would still be okay.
Mr Bradley: That is the point the Minister made earlier: we are looking at whether there should be a restriction concerning the territoriality of the offences. If we are talking about offences which were committed in the country that investigated that offence, then it seems reasonable that we should cooperate with that country in providing evidence.
Q24 Mr Tynan: This is the first step. We are at an early stage. This evidence session is really to express our concerns, so that you are aware, Minister, of the concerns that exist. The proposal does not allow a state to refuse to execute a warrant on the grounds that to do so would be inconsistent with the national law. Do you agree with that?
Caroline Flint: We think we need to have a system where warrants can be executed. I think we are looking at a safeguard within this and the procedure that is the process. This is about a process of gathering evidence rather than something that is directly a factor of our national law. In that sense, I think it has been mentioned earlier, the question of whether a crime is a crime that exists in this country, the issue of dual criminality, if you like, the fact that we are accepting within some of the provisos and safeguards the issues about the territory in which the offence is committed, we can see a situation in which we would permit the gathering of evidence even if an offence was not one under national law. I suppose in that situation, in that scenario, the answer to your question would be yes. We can see a situation where, even if a situation was not an offence by our own national law, we would still cooperate with some evidence. Likewise, if an offence was committed in the United Kingdom and we felt there was evidence that we wanted to get from another Member State, we would like a quid pro quo and have the ability to have involvement in that process. It is the process, I think, that is important here. I am not underestimating how important processes were before. I think, as Mr Bacon mentioned, just because it is a process does not mean we must not look at these issues, but it is about a process rather than affecting, if you like, how we implement our own domestic proceedings and our own law in this country.
Mr Regis: Currently, under mutual legal assistance, unless it is a request for a search procedure, dual criminality is not applied in relation to requests that we currently receive. If they are seeking, for example, evidence in relation to banking information and telephone records, the offence does not have to be an offence in the UK for us to provide the assistance. As long as it satisfies the test set out in the Crime and International Cooperation Act 2003, which is that if it is an investigation or criminal prosecution that has come from a competent authority abroad, we will execute.
Caroline Flint: May I mention one thing in terms of coercive measures, because I think this is an issue that is of concern to the Committee and of concern to us in negotiation. When we talk about the coercive measures, which are search and seizure, we only mean the measures such as that which are already available under the domestic law of the executing state. We would not expect them to ask us to carry out something that would not be in line with PACE, for example, and in some way, if you like, undermine the procedures and measures we would take to enforce the law in this country. That is one of the issues where we are looking to influence the wording, because we do think within that area requests could be made but how it is carried out should be left to the individual Member State in line with their procedures.
Q25 Mr Tynan: What about the case where the execution of the warrant could be contrary to the Human Rights Act 1998?
Caroline Flint: I do not think we would expect it to be. We would want to make sure that the conventions that apply to other areas of mutual recognition should be applied in this area. I think there is an issue in negotiation about looking at where, within this, aspects like that should be on the face of the proposal. I think that is something we should take up in negotiation.
Q26 Mr Tynan: You are saying a state cannot or should not under the present terms of the proposal refuse to execute a warrant on the grounds that to do so would be inconsistent with the national law. You have said yes to that. We are then in a situation where you are saying that, as regards the execution of a warrant, it would be contrary to the Human Rights Act 1998 and that should not happen. That seems a slight contradiction. Could you clarify that, please.
Mr Bradley: I think there is a difference here because the Human Rights Act is based on the European Convention on Human Rights, as you know, and all measures taken by the European Union have to be in conformity with the European Convention on Human Rights under Article 6 of the Treaty on the European Union. Therefore, we do not believe that the Framework Decision could have the effect of requiring us to indicate some action to the contrary to the European Convention on Human Rights, but we would see some advantage in spelling that out on the face of the Framework Decision as it was also in the European Arrest Warrant.
Q27 Mr Tynan: Obviously clarification is important. Would you seek a derogation from the European Convention on Human Rights for the European Evidence Warrant?
Mr Bradley: Certainly not a derogation from the European Convention on Human Rights but also not a derogation from this Framework Decision. We would not be looking for a special opt out. We would be looking for a clarification that the Framework Decision does not affect the principles on the European Convention on Human Rights. That would mean in our own law, in implementing the Framework Decision, that we would be able to make clear that the court could apply the Human Rights Act and could if necessary refuse to enforce the European Evidence Warrant if doing so would be contrary to the European Convention on Human Rights.
Q28 Mr Tynan: Would you not accept there is a contradiction in what you have said in your responses to the questions I have asked?
Mr Bradley: No, I do not believe there is a contradiction, because in one case we are talking about consistency with national law and we are saying that in line with the mutual recognition principle it would be helpful to have a general clause saying that you do not have to enforce a warrant if doing so would be inconsistent with your national law, and in the other case we are talking about international law and the European Convention on Human Rights would apply across the board to this instrument.
Q29 Mr Tynan: Would you give an undertaking that in no circumstances will an authority in this country be obliged to execute a warrant when to do so would be contrary to the Human Rights Act?
Caroline Flint: Yes, I think so. Yes.
Q30 Angus Robertson: I wanted to give an example to illustrate the point. In a previous life I worked as a journalist and I handled a number of court cases in Vienna where people with very extreme views were facing charges of wiederbetätigung, which is, roughly translated, national socialist agitation. Under Austrian and also German law freedom of expression and association is suspended if somebody holds such views, because of the particular history and experiences of those countries. Under the circumstances of going ahead with these measures, will procedures be pursued in cases such as this because of somebody's political views, however heinous we may think they are, which are illegal in other countries but not here?
Caroline Flint: The short answer is if it is an offence in that country and the offence took place in that country, then, yes. Given the other issues we have said earlier about human rights and ECHR, it would be appropriate for the issuing state or authority to seek our support to gather evidence. I think that would be the case. As I have said before, we have some concerns about issues around where offences took place which we are seeking to look at, but if the offence took place, for example, in Germany, and they were seeking our support through this, then we would I think cooperate in those circumstances.
Q31 Mr Cash: I am sure you will appreciate, Minister, that what you have just said may be convenient for the purposes of the state in question, but, actually, in so far as it affects the kind of legal framework that we are used to in this country, there would be journalists, and for that matter politicians, who have very strong views which are an exercise of their freedom of speech but which, as my colleague has said, may be inconvenient or even thought to be undesirable and criminal in another state. That, as far as this country is concerned, is in fact something which can be done properly, even though it may be open to criticism. Surely you are really saying that somebody like Hans-Martin Tillack, the Brussels correspondent of Stern magazine, who has been detained for ten hours on the allegation that he corrupted a public official and so on, is a serious kind of example and in respect of which, quite frankly, we would not regard the circumstances to warrant the degree of aggression that was shown in his case. Do you have any comment on that?
Caroline Flint: It is hard for me to comment on that individual case because I do not know the ins and outs of it for a start. All I feel I can say, which is trying to give a clear answer to the question, is that on the basis on which we are discussing the issuing and the executing of a European Evidence Warrant, it would stand that if an offence took place in the issuing state and they wanted to enact the procedures in this regard then the fact that that is not necessarily an offence here would not be a bar to us executing the evidence warrants. At the end of the day, the other issue is that their own systems in terms of their trial would have to take place. Similarly, for us, if an offence takes place in the United Kingdom for which there is not an equivalent elsewhere, we would seek potentially to be the issuing state, to seek evidence to pursue in a case which we are trying to bring to trial in this country. That is, as I have said before, within our safeguards in relation to the European Convention on Human Rights. Richard can give an example of that, if that is helpful to the Committee.
Q32 Mr Cash: My concern is that it is open to the Belgian authorities to accuse Mr Tillack of corruption - and you know the circumstances in which he is being given a hard time - but the problem is that on this basis the home and offices of Stern journalists in this country could be searched. This is the point which certainly I am concerned about: not only the question of whether or not in Belgium Mr Tillack can be accused of corruption but the consequences of bringing this system into operation would mean that journalists who lived in this country would have their homes and offices searched in those circumstances. You see how sensitive this can become.
Caroline Flint: If it is an offence of corruption, we recognise the offence of corruption, so, without knowing too much about this case, it would be ------
Q33 Mr Bacon: It is not an offence in this country for journalists to give members of the public money for information.
Caroline Flint: As I say, I do not know the details of this case, so it is very hard for me to answer. I have tried to answer in a broader outline but Mr Bradley has an example which might be helpful to the Committee.
Mr Bradley: I wanted to give one example of where the UK might want to issue an evidence warrant, and at present we would also issue a mutual legal assistance request, and the dual criminality rule might be a problem for us, and that is the offence of conspiracy. Conspiracy, of course, is a common law offence, not necessarily recognised in the same way in all the Member States. The fact that we would not have to satisfy dual criminality requirement could be useful to us in pursuing allegations of conspiracy.
Q34 Mr Bacon: Chairman, may I pursue this point a little further? Mr Bradley has given an example of the UK wanting to issue a warrant and I understood Mr Cash was talking about instances where foreign authorities want to issue warrants here. Could the Minister confirm, because I think this is the implication of what you were saying earlier, that circumstances would or could arise under the European Evidence Warrant whereby a home of a person in this country could be forcibly entered at the request of a foreign authority to gather evidence for something that was not a crime here? That is correct, is it not?
Caroline Flint: That is correct, but one of the issues I would like to add is that we are looking at and would like to negotiate on what threshold might be used for those search powers to be used.
Q35 Mr Bacon: Do you expect that the offices of journalists and law firms should be included in that or should they be exempt?
Caroline Flint: I think we need to define better what we understand by premises. I think in relation to that it would not be a bar, would it?
Mr Bradley: I think I would like to invite my colleague Simon Regis to comment on questions of legal privilege which might arise in executing a warrant.
Mr Regis: In terms of warrants being issued against solicitors' firms, yes, the warrant could be executed but not against legally privileged material. That is something which is contained within the draft Framework Decision, Article 15: "If there is an immunity of privilege under the law of the executing state which makes it impossible to execute the European Evidence Warrant ..." We would say legally privileged material falls under that category.
Q36 Mr Bacon: Do you mean by that they could stomp around inside a solicitor's office but if somebody pointed to a pile of papers and said, "I'm sorry, you can't touch that, that is legally privileged," that is how it would be sorted out?
Mr Bradley: We have processes in the UK for dealing with privileged maters. Those processes would be exactly the same. This sets the outline. How we execute will be the way we currently do things. It is not a situation of a foreign officer coming in and saying, "We want to get this," and somebody saying, "That is legally privileged." We employ the same processes that we do for domestic situations.
Q37 Mr Bacon: I understand that. But it is at whose behest it is, is it not? As Mr David made the point, 25 countries now are coming into the EU and they do not all have the same standards. Mr Connarty raise this question of potentially malicious grandstanding by small jurisdictions. Is that not a worry?
Caroline Flint: I think one of the reasons we are having the discussion about this document - and, as I said, it will take time - is to get the reassurances - which I think is fair enough - about who will be the issuing authorities in countries; what are the safeguards there that apply to us all; what will be the process where the issuing is not being handled correctly or the evidence once it is provided is not being dealt with appropriately; what are the safeguards to tackle individual Member States if they abuse this framework. I suppose that goes for a whole number of other issues which we currently attend to, let alone the issue of the European Arrest Warrant - and, as you will be aware, a number of countries are still having to go through the processes of making sure their systems are up to meeting the demands and the safeguards of that particular piece of mutual recognition.
Q38 Mr Cash: When you referred to the question of whether or not an individual Member State abuses the system, that is not really the problem, if I may suggest, Minister. The real problem is there is no definition of the offences. For example, I mentioned the case relating to corruption and it is because the offence of corruption is defined in Belgium in a particular way that the problem arises. If you take things like environmental corruption, sabotage, swindling, and I have mentioned racism and xenophobia, the problem is that in relation to the mens rea, the question of whether or not the person had a guilty mind in relation to a criminal act and the pile of papers to which Mr Bacon referred, these are police officers who go in there and they cannot possibly cope with this situation where they have to work out whether or not a particular criminal offence has been committed. Further more, the question of whether or not it is right that the question should be left wholly to the law of the issuing state to characterise those acts as criminal. The real problem therefore is a much, much deeper one: it is actually about what is criminal and what is not as well as the problems and failings in the procedures. The more I hear, the more concerned I get. Finally, we are told that the United Kingdom would be obliged to abandon the safeguard of dual criminality in all cases after five years. Do you not think, in the background to all this, that this is just a manoeuvre, a stepping stone? This is what is really going on and, actually, despite any attempts you may make, the bottom line is that sooner or later we are going to find we are absorbed and wrapped up in this, and that is the real problem, and that, frankly, to go back to my earlier point, this should be red-lined and vetoed and we should not even need to discus it now.
Chairman: Everybody wants red lines.
Q39 Mr Connarty: Could I put on the record my thanks to Mr Regis for properly explaining to the public of the UK something they probably do not know, when he said that at this moment things are going on under the present arrangements which allow things to happen -although people do not know it is happening - in getting evidence collected. The question is what are the supposed criminal accusations that allow this to happen? No one here is against anything that would stop international crime in the pure sense, but if it is used in other ways that means citizens' rights are being breached because of these mutual arrangements between police forces and jurisdictions, I think we would be greatly concerned. Dual criminality seems to have been an example which I thought people might have known from your office, the example which I mentioned earlier of Formula 1. There was a malicious prosecution against a senior executive of Formula 1 where it was seen to be grandstanding by a minor jurisdiction, and the way it was struck down was because dual criminality did not apply. The worry of the UK under the European Arrest Warrant is that that would not protect them and you could have the whole operation ground to a halt by this kind of grandstanding. In terms of dual criminality for evidence gathering, similarly, unless the public have some confidence that their human rights and their basic rights are not going to be breached because people are searching for evidence for criminal acts that they think may have taken place that are offensive to one of the 25 countries, then people will feel that they have been abandoned by the Government to basically the whims of 25 jurisdictions and minor jurisdictions in those 25 countries. What is the Government going to do to protect people? It does seem from the statements that we have in the explanatory memorandum that the Government is supporting abandoning dual criminality in relation to the gathering of evidence just on the basis, as Mr Regis said, that it is going on anyway. I do not know if the public know it is going on, or if there is any sense that the authorities even in this country are accountable at this moment. Are we going to abandon it willy-nilly without having any safeguards for the public?
Caroline Flint: Could Mr Regis just clarify.
Mr Regis: On the point of what takes place now, we do require dual criminality for the execution of search warrants and for fiscal offences where proceedings have commenced. However, all other offences, with all other types of request for evidence, do not require dual criminality. I just want to stress that, in relation to search warrants in fiscal offences where proceedings have not commenced, we will require dual criminality, but for all other types of evidence now we do not require dual criminality. That has been the case since 1990, when Parliament passed the first Crime International Cooperation Act.
Q40 Mr Connarty: But they are going to abandon it for everything.
Mr Regis: Under this, yes, eventually.
Q41 Angus Robertson: Article 12 of the proposal provides that a natural person cannot be obliged to produce evidence "which may result in self-incrimination" but there is no such protection for a legal person such as a company. Are you able to explain, Minister, why this should be?
Caroline Flint: Mr Bradley.
Mr Bradley: This is because I believe the Commission considered that the protection against self-incrimination was one which attaches itself to natural persons, to people in the ordinary sense of the term, and that under the European Convention on Human Rights that protection does not necessarily apply to a company, so they did not think that the company should be able to shelter behind that protection. I think this is a point on which we will have to seek some clarification in the negotiations to ensure that we understand the reasons for making a distinction between natural and legal persons and to be sure whether we can agree with that assumption.
Q42 Angus Robertson: Could I pick up on that point. A number of times, Minister, expressions have been used such as "matters are still being discussed" and "clarification is still being sought". I suspect certain things are wanting to be tightened up. I think that all Committee members appreciate that you would never go into chapter and verse about exactly every item on which you are wanting to seek clarification, but could you paint a picture of exactly where the major causes of concern from the UK Government are in regard to this whole measure and what are the particular areas that you would want to see improved.
Caroline Flint: Certainly some of the issues we are concerned about are issues around clarity on the territory in which an offence took place. We think that is an area we need to look at. We are also concerned, as I think we raised earlier, as to whether specific references to obligations under human rights should be there within the document. We are also concerned about the issue of retaining the options we currently have of transmission of requests via a central authority, which Mr Regis heads up, rather than the direct transmission of these EWs to a competent executing authority. Part of that is about the safeguard of systems and making sure we can keep tabs on what is happening, and that is something which is particular to our situation which is not necessarily shared by some of the other Member States. We also talked earlier about thresholds based on the seriousness of the offence in the use of coercive measures and also one of the areas we are concerned about is the protection of sensitive material, which would include information that we would normally not disclose on grounds of national security. So those are particular, if you like, headline areas where we have concerns, but clearly there are a number of other issues. As you have just pointed out, there are issues around individuals as opposed to organisations and companies and where that fits into it as well. Does that help?
Q43 Angus Robertson: That is very helpful. Just to follow up on the third point you were highlighting, you have brought up the transmission of requests through a central authority. Is the UK Government's position that you would wish to have one central authority within the UK, or would you wish to have one point of contact for all the different jurisdictions within the UK because there are different legal authorities within the UK?
Caroline Flint: I think is both, but I think Mr Regis can give you more detail on that and particularly how it currently works, because you are interested in how it affects Scotland and Northern Ireland.
Mr Regis: Currently under the legislation we have the UK central authority, of which I am head. The Crown Office in Scotland and the Northern Ireland Office have also been designated as central authorities. Depending on the types of international convention we are talking about, a request may currently be transmitted only to the UK central authority, and we will forward it on to the relevant central authority, or may be transmitted directly to that authority. Because the issue has not been settled here, it may be the situation that we say "central authority/authorities" which means it can be sent either to my office for onward transmission or directly to the Crown Office or the Northern Ireland Office.
Q44 Angus Robertson: Could the Committee be informed as to how that progresses please?
Caroline Flint: Yes, that is fine.
Q45 Mr David: Minister, as I understand it, an issuing authority as defined in the current proposal is a "judge, investigating magistrate or prosecutor". However, in a letter to this Committee you did express your concern that this would exclude Her Majesty's Customs Prosecutors from issuing such warrants. Is that still your position and still your concern?
Caroline Flint: There are a couple of issues here. One of the issues for us at the moment is Customs, as I understand it, both are involved in investigations but also prosecutions, so there are some issues to be resolved there. Members of the Committee will be aware that we have a White Paper out at the moment on the Serious Organised Crime Agency which will bring together parts of Customs & Excise into that organisation. So we need to be mindful of our current situation, that in some circumstances Customs & Excise would be a prosecuting authority but that might be under discussion as the development of SOCA takes place. The other issue is in relation to other countries. To give you an example, the Chief of Police in Denmark is also a qualified lawyer and he has prosecuting status within their system, and therefore there are some issues there about being clear about who has the credibility and the status and legality of position to be defined as a prosecuting authority. So for our purposes there is a particular issue for us in relation to Customs & Excise but there are some issues to be sorted out as well in terms of understanding the language and who it applies to, but it should be not just a police officer as such, it should be a judge, investigating magistrate or prosecutor with competence under national law to issue an EEW request.
Q46 Mr David: I understand the need for clarification, that is a very helpful response. Do you not think there is a need to have clarity in all of this, that the issuing process should be confined to those who have recognisable judicial functions such as magistrates and judges? Would that not be clearer?
Mr Bradley: That could be seen as a step backwards compared to the present mutual legal assistance arrangements, because at present a prosecutor would be able to issue a legal assistance requirement, at least in most of the Member States, so that description you propose would stop them from making use of the new evidence warrant procedure which would slow down the law process.
Q47 Nick Harvey: On the issue of slowing down, how quickly do these things take place at the moment under the current system? Is time generally of the essence? It does not seem to me it would be a terrible burden for our own Customs Prosecutors to have to get a warrant issued by a judicial body, if the cost of that is to stop people in the other 24 Member States, who only have to be defined within their own national law, you told us, as being authorised to issue an EEW. Would it not be better to sacrifice a bit in time in order to stop people who we would not think right or fit people to issue these warrants?
Caroline Flint: From what I understand, if you move prosecutors that would affect a whole number of people - CPS, the Serious Fraud Office and others - from their ability to take part in this. I have asked for a time line to look at how presently under mutual legal assistance the current procedures work, and the indications are that they can take a huge amount of time, sometimes in terms of years, to sort out, whereas under this procedure apart from the fact it is trying to within safeguards make it streamlined, it does set some timetables for execution to take place, which at the moment is not the case. That means that if you are the issuing authority, say the UK is the issuing authority, as far as I am aware there is no imperative on the executing authority to do that within a particular time. We feel we need to have a reasonable system which works, which does make sure the system does not grind to a halt, which can move and can be effective, and that also requests do not just sit there for years on end which in itself may have implications for individual's human rights in terms of how these things are implemented and executed. So there are a number of things which are being addressed in the proposals we feel which should help the process. The time lines under the procedure which is being presented are, "The warrant to be executed and evidence transferred immediately to the possession of the executing authority, otherwise to be executed within 60 days of receipt by the executing authority to be transferred within 30 days of execution." There are some other issues about the time line which we have concerns about which are on appeal which we think need to be explored. There is one aspect on the proposals which suggests that evidence could be sent to the issuing state even if there is an appeal pending. We think it is a bit of a contradiction to suggest you could send the evidence whilst the appeal was pending. We would say the appeal should be heard and resolved before that evidence is sent, in a case where there is an appeal
Q48 Nick Harvey: That is what I thought, namely that the whole thing is very slow, it is not exactly done overnight anyway. When Mr Regis says the CPS or the Serious Fraud Office and so on would be taken out of it, I am just saying if they have to get it rubber-stamped by a magistrate or judge that would not slow things down hugely in the context of what you are describing, and the advantage might be we would not get all sorts of tin pot organisations in other states being allowed to issue these EEWs.
Mr Regis: I take your point but if we can come back to the question of malicious prosecution, that would not resolve the problem, because if the warrant has been issued by an judicial authority, if there is going to be malicious prosecution, there will be a prosecuting judge in that state to issue the warrant. So I am not sure we would get over the situation. The current situation is that the prosecutor in the UK can issue mutual legal assistance requests, and it is seen as being more efficient than to have to go to court to make applications. The Crown Prosecution Service issue in excess of 700 requests a year, Customs & Excise are on about 650, and that is England and Wales, I cannot talk about Scotland and the Procurator Fiscal Service or Northern Ireland. So there would be an issue about transferring that responsibility to the court and whether the courts would be able to fit that into their own time schedules.
Q49 Chairman: Article 13 of the proposal appears to leave it to the issuing authority to decide whether and when to use "coercive measures". Can it possibly be right to leave the exercise of police powers in this country to a foreign authority?
Caroline Flint: As I was mentioning earlier, we do have some concerns about the language in the text relating to coercive measures. As you rightly say, the implication at present is that the issuing authority instructs almost the executing authority. We would like to see the language better reflect a request, and that the decision on the measure to be used - because it is a measure - be left to our own agents of execution, the police, in line with PACE and their procedures. We do not think necessarily that the issuing authority is best placed to decide in what way collection of evidence is carried out in the executing state. That is definitely something which we feel we need to explore further and really the Member State is best placed, we would feel in terms of the UK, to make some of those decisions about how some of these things are carried out and done.
Q50 Mr Bacon: When you say that the issuing authority is not necessarily best placed, are you saying there are circumstances where the issuing authority could be best placed or is it always the case that it would be better to leave it to the UK and the police force here?
Caroline Flint: What I am trying to say, and what I did not explain clearly, is it would be fair for the issuing authority to ask for a premises to be searched for evidence as outlined on the form that they would have to fill in, but the way in which that is carried out should be left to the Member State in line with their procedures and how their police are currently regulated in relation to these issues. So there are two distinct issues here. I am not saying the issuing state should not request search of the premises for evidence, but the way in which that is carried out should be left to the authorities within the Member State.
Q51 Mr Cash: Are you satisfied that ACPO, or whoever it is you deal with in this context, are rigorous enough in restraining a misuse of this power? It is not impossible, as one who is extremely keen on rigorous law and order but nonetheless, that given powers sometimes the police are inclined to over-use them, and if there is too much power given under these arrangements, are you in discussion with ACPO to be sure we do actually get the right result? Is it not your job and your advisers' job to ensure that there is a proper degree of restraint in the accumulation of police powers?
Caroline Flint: I think Mr Bradley can help out on that issue in relation to our own police.
Q52 Chairman: Please help Mr Cash out.
Mr Bradley: I will try. We are considering whether it should be necessary when executing a European Evidence Warrant for our police to go to the court, as they would for a domestic warrant, and to seek the authority from the court to carry out a search of the premises. It seems that would be the proper way, consistent with our domestic legislation to execute the evidence warrant, even though it would slow down the process slightly.
Q53 Chairman: Are you saying then if the issuing authority applies to our police force, our police force would have to go to our own domestic courts to get that authority before it would carry out any search or whatever?
Mr Bradley: Yes, in the case of coercive measures.
Mr Cash: I am talking more generally. That is the worst scenario. What I am concerned about is ---
Chairman: We are talking about coercive measures.
Mr Cash: Yes, but the issue applies across the board, surely, Chairman? We are interested in a whole range of offences.
Chairman: We were across the board earlier in the evidence session.
Q54 Mr Connarty: I am sure it would be helpful, because hopefully some of the public will have an interest in this, if the Minister gave us two assurances. One is on the general discussion group she has mentioned, is the Government position to actually have it written into these agreements that these coercive measures will in fact be constrained in the way she has said? She has told us what she thinks is nice and what may be necessary, but is it something the Government will in fact stand up for?
Caroline Flint: Yes.
Q55 Mr Connarty: Given it started off saying it would not abandon a number of other things in the European Arrest Warrant and then did, will the Government safeguard the people of the UK from coercive measures being instructed by a foreign jurisdiction?
Caroline Flint: Yes, we will stand up for any attempt to tell - and this is the important thing - our police how to carry out a search of premises. That is the issue. They may request us to do that, to search premises, but on how that is done we will be strongly standing up for the fact it should be left to us as the Member State to decide how that is carried out.
Q56 Mr Connarty: It may seem unimaginable, but can the Minister give us an assurance that no foreign police will ever come to the UK to actually carry out any of this evidence gathering, and it will be done in fact by the authorities of this country?
Caroline Flint: If I am right, and obviously officials can correct me, there is a situation at the moment where we have a number of joint operations with foreign police officers, but some of the key issues are who actually enacts and takes the measures out. So there could be a situation where a foreign police officer was present but not actually carrying out and enacting the measures themselves. I wanted to draw that distinction, because we obviously have our police officers who go overseas and co-operate as well. As far as I understand it, that would be the premise on which foreign police officers would be here. We had a huge discussion under the European Arrest Warrant about issues about stopping, intervening, what exactly could be done in those situations, and we would suggest that would apply in this area as well.
Q57 Mr Cash: Surely, Minister, the problem there is that one is standing there and the other is with him and the formality is conducted, as you would hope, by the British police officer in this context but actually in practice the legal basis on which the action is taken is being driven by what is being determined by the foreign police officer. So for practical purposes, surely our police officer is a bit of a nodding donkey.
Caroline Flint: Perhaps I could ask Mr Regis to ----
Q58 Chairman: I thought I got the answer to that question earlier on, and I did not perceive the answer to be that of a nodding donkey.
Mr Regis: In relation to what happens now, we have cases where search warrants are executed, the foreign officers as well as attending the actual search warrant application to assist the magistrate with information are named on the warrant and are present at the premises, normally for complex cases where their assistance or presence is necessary to ensure the correct evidence is uplifted by the police officer. So, yes, they will say to the police officer, "You need to look in that filing cabinet, search through those files for a particular document." The reason for that is the UK office does not know as much about the case as the foreign officer and, obviously, the converse applies when our officers travel abroad, they are the ones who know about the case and they are the ones who will be able to say to the foreign officer, "You need to lift this type of material" and as the officer goes through them he says, "Yes, we need that document, no, we do not need that document." That goes to the efficacy of executing the warrant and ensuring there are situations where evidence that is not required should not be uplifted.
Mr Cash: I think there could be problems.
Q59 Chairman: Minister, I hope you and your colleagues have enjoyed your first attendance at a European Scrutiny Committee. I am sure I am speaking for my colleagues, we have found it useful, and we look forward to some future evidence sessions with you and your colleagues again.
Caroline Flint: Thank you very much, Mr Hood.