Home Affairs - Minutes of EvidenceHC 615

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 3 September 2013

Members present:

Keith Vaz (Chair)

Nicola Blackwood

Mr James Clappison

Michael Ellis

Dr Julian Huppert

Steve McCabe

Mark Reckless

Chris Ruane

Mr David Winnick

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Examination of Witnesses

Witnesses: Sir Hugh Orde, President, ACPO, and Commander Allan Gibson, ACPO, gave evidence.

Q1 Chair: This is the first session of the Committee in our inquiry into the list of opt-in and opt-out measures for the Justice and Home Affairs agenda of the European Union. As the Committee will know, we have undertaken to the House to produce a report on this by 30 October. Sir Hugh Orde, the President of ACPO, and Commander Allan Gibson, the ACPO lead on extradition and mutual legal assistance, are here to assist the Committee. Thank you, gentlemen, for coming today.

Could I start with you, Commander Gibson? In ACPO’s evidence to the House of Lords Joint Committee on the opt-out on 6 February you said that by coming out of these measures the United Kingdom would become a safe haven for Europe’s criminals. What did you mean by that?

Commander Gibson: I meant it would be the effect of us having less effective measures to fight serious organised crime. As we are already an attractive location, we find in London-where I police-that on average 28% of those we arrest every year are foreign nationals and half of those are from the EU, so 14%. That is a significant number of people. That is with powers available to us today.

We are finding people are fleeing justice into the United Kingdom. By simple logic, if you take away some of the most important powers we have available to us-I am talking about exchange of information, the European arrest warrant, joint investigation teams and so forth-it will become a better place to flee to to avoid justice.

Q2 Chair: So looking at the numbers for the moment, you said that 13 European Directives were vital that we opt back into and you said another 16 were very important or important, so that means a total of 29?

Commander Gibson: That is correct, yes.

Q3 Chair: Is that your shopping list? Would you be happy if it was just 29 or did you expect it to be more, because the Government has announced 35 of course?

Commander Gibson: Yes, we took a pragmatic approach; we have prioritised and were very selective in what we put into our list as vital. Some of those are measures that come together, for instance Europol, we put forward together but the important thing is membership of Europol.

On the desirable list we were again very pragmatic and weren’t trying to overegg the pudding by saying these things are important but not critical.

Q4 Chair: So that is your minimum list? Your 29 is the minimum you wanted? The Government has given you 35.

Commander Gibson: No, the vital ones are the minimum that we want.

Chair: The minimum?

Commander Gibson: Yes.

Q5 Chair: So you are very happy with what has been recommended? You can carry on your fight against international crime by just looking into-

Commander Gibson: By and large we feel that we have been listened to and they take the measures that we recommended as a group of 29. The most important ones are in there and the things we said were the most important for the United Kingdom are in that list.

Q6 Chair: Are you concerned that we are not opting into the Prüm Council decisions, because those seem to me to be quite important?

Commander Gibson: Prüm wasn’t one of our vital ones. Prüm is some use but there are issues around Prüm and when we spoke to our counterterrorism specialists they said they were not vital on a day-to-day basis. We had not made the progress and we had not implemented many of those measures in the way that we have with things like the European arrest warrant.

Q7 Chair: But it does mean that we can’t follow reciprocal arrangements to search the databases of European partners, does it not? That means DNA profiles, vehicle registration data and fingerprints. If you are not in Prüm you can’t get access to any of that.

Commander Gibson: Underneath that is Europol membership, which is even more important. Full membership of Europol allows you to search their databases directly.

Q8 Mark Reckless: Mr Gibson, you said that we would be a safe haven for criminals if we were to opt out of these EU measures, and you referred to 14% from the EU and 28%, I think, of these potential criminals who are foreign nationals. You imply that what you are stating is a logical deduction, but is it not also logically possible that we could deal with this situation by opting out of the EU and, indeed, the ECHR so we can simply deport these people?

Commander Gibson: We have to be able to arrest them and return them to the courts that want to deal with them. The alternatives under the 1957 Convention, first, can you return to them easily? Based on my research, my judgment is we couldn’t because of the way the EAW has been implemented in different jurisdictions across Europe, so we simply can’t return to the 1957 operating regime as easily as that. Secondly, many of the people that come to this country are committing offences here. We are finding that they continue to offend here; they continue to present a risk to the British public. Between 93% and 96% of the people being moved out of this country under European arrest warrants are foreign nationals. So we need to bear that in mind. These people are here preying on our public.

Q9 Mark Reckless: But why can’t we simply opt out of the EU, opt out of the ECHR and get rid of these people?

Mr Winnick: Stop the world.

Mark Reckless: As the majority of our constituents would wish.

Commander Gibson: Because the alternatives are far less effective.

Q10 Mr Winnick: So, gentlemen, if you had your way and it is for the Government to decide or Parliament to decide on this issue, insofar as you had your own policies accepted, you would like the European arrest warrant to stay as it is, am I right?

Sir Hugh Orde: We absolutely see the European arrest warrant at the top of our list, as we said in our evidence to the House of Lords. We do recognise, of course, there are some issues that are rightly of public concern around proportionality and certainly around people being held in custody for long periods of time in other jurisdictions awaiting trial and then sometimes being acquitted. There are a number of high profile cases in both those categories. Ideally we would see the solution to proportionality being one that was being applied EU-wide. I think pragmatically we would see-and would strongly support-a Government initiative to have a proportionality clause applied here so we are not spending a lot of time arresting people who, frankly, when they go back to their jurisdiction will not be receiving substantial sentences. There is a cost to the purse in so doing.

So that is how we would see it. In broad terms, we would see the benefits of staying in as vastly outweighing the small number of individual cases, important though they are.

Q11 Mr Winnick: So you would not consider it in any way a priority, despite the shortcomings that you have mentioned and that obviously have been well aired on the Floor of the House of Commons, for the European arrest warrant to be changed?

Sir Hugh Orde: That would be a matter for Government. We see the need to have that facility available to arrest people, put them in front of the courts and remove them to the country where they are fleeing from as quickly as we can because-as my colleague rightly identified-a burglar from France will probably be burgling communities in this country if he is wanted over there.

Q12 Mr Winnick: On average it takes, I understand, approximately three months to extradite someone under the European arrest warrant. That is the position, is it?

Sir Hugh Orde: That is it, indeed.

Q13 Mr Winnick: A part 2 extradition-that is, an extradition to non-EU country-takes approximately 10 months.

Sir Hugh Orde: Indeed.

Mr Winnick: So clearly there is an advantage as far as European arrest warrants are concerned.

Sir Hugh Orde: Yes, and it is a common system that cuts the cost of bureaucracy substantially and that is also important.

Q14 Mr Winnick: Let me put this point to you. Much has been made by the Home Secretary and others, valid or otherwise, that whatever advantages there may be in dealing with criminality through the European Arrest Warrant there are relatively minor cases that become subject, which otherwise would not be dealt with in the same way.

Sir Hugh Orde: Are you talking about less serious offences that are subject to arrest?

Mr Winnick: Yes.

Sir Hugh Orde: Yes, indeed, and there are many cases that have been well aired, the famous Polish wheelbarrow thief springs instantly to mind. Those are cases where we say proportionality calls would deal with that. Of course the Governments are looking to sign up to the information system stuff, which we do see-I think jointly-as vital. Therefore Border Agency staff may very quickly under SIS II-the Schengen Information System II network-pick these people up, but it could be within the scope of an agreement on proportionality to advise the requesting country that this person is in the UK jurisdiction but we do not intend to arrest because it is a very minor offence.

Q15 Mr Winnick: Sir Hugh, final question, do you consider the European arrest warrant to be an effective weapon against criminality with all its difficulties and faults and weaknesses? But overall, has it been-I will put it in the past tense if you like-an effective weapon against criminality?

Sir Hugh Orde: Yes, the leadership of the service would see it as an essential weapon.

Q16 Michael Ellis: The Home Secretary is effectively supporting your position and you are supporting hers in as much as she wants to continue the European arrest warrant but make some remedial changes to those aspects of it that were clearly dysfunctional. There were some-and there still are until these changes take place-dysfunctional aspects to the European arrest warrant, are there not? For example, I would like to pinpoint three particular areas of the European arrest warrant that have brought considerable criticism on its operation. One is proportionality. The whole issue that someone can be extradited for the theft of a wheelbarrow from Poland is entirely disproportionate to the gravamen of the alleged offence. It is disproportionate in costs, it is disproportionate in penalty and it brings the system into disrepute, would you agree with that?

Sir Hugh Orde: Yes, I would agree but of course at the other end of the spectrum there are extremely serious criminals who are brought under control by the same-

Michael Ellis: Of course.

Sir Hugh Orde: So your point on proportionality is extremely well made and we would agree with you.

Q17 Michael Ellis: Good. So you agree with me on proportionality. Where the Home Secretary has indicated that she would make amendments or cause the situation to differ so that this aspect, this problem would no longer subsist, you agree with that?

Sir Hugh Orde: Yes.

Q18 Michael Ellis: The other point is-which has been a bone of contention-that at the moment with the European arrest warrant extraditions can take place before the country requesting extradition has even decided to charge an individual. That is my understanding. Commander Gibson, is that right?

Commander Gibson: We do not use the warrant that way; we only use the warrant for British requests when we are prosecution ready.

Q19 Michael Ellis: When you are prosecution ready? Is that the same as-

Commander Gibson: When we are ready to charge.

Q20 Michael Ellis: Have there been people extradited before the requesting country has made a decision about whether to charge or not?

Commander Gibson: Different systems operate in different ways.

Q21 Michael Ellis: I understand one of the mooted changes will be so that cannot happen any more. Presumably from what you say, Commander, you would be happy with that?

Commander Gibson: This is a matter for Government. Our prize is to retain the European arrest warrant. As to the details of how it operates we are content to-

Q22 Michael Ellis: You are content. What about the issue of bail pending proceedings? Do you have any views on that? Please correct me if I am wrong, but is it the case that people can apply for bail now pending the proceedings or can they not?

Commander Gibson: There is only one court in country that deals with this, Westminster Court. The circumstances depend on the individual cases. Leading towards this is the European supervision order, which the UK has signed up to but has not yet implemented-it is one of the measures for us to opt back into. We think it is a good counterbalance to the European arrest warrant because it provides for people to come back to their country to have bail supervision while they are awaiting trial in a foreign jurisdiction.

Q23 Michael Ellis: So in other words, with these mooted changes and improvements, those aspects of the European arrest warrant that are dysfunctional or have been dysfunctional, if the mischief that effectively concerns them now could be corrected you will still have the European arrest warrant, you will still be able to use it, it will still be the precious tool that you need but it will be improved?

Commander Gibson: Yes.

Q24 Nicola Blackwood: I just wanted to pick up on that point about the European supervision order. I think in her oral statement on 9 July the Home Secretary stated her intention to implement that supervision order. I just wondered what discussions you might have had with the Home Office about how that might work in practice because obviously while having the European arrest warrant lightens your load, having the European supervision order might add a little bit of weight to your load.

Sir Hugh Orde: If it is part of the quid pro quo, as Mr Ellis has identified, of keeping the European arrest warrant I am sure it is manageable. I personally have not had any detailed conversation: I don’t know if you have, Allan. Of course the UK is not the only country that is yet to implement this system, but we would strongly support it, and I do think it goes some way to balancing this issue of people spending a long time in custody in foreign places awaiting trial when they could be effectively managed here. We are used to managing people on bail so it wouldn’t be a new bureaucratic system. I am sure we could bolt this on to the existing system for people who are on bail and subject to conditions.

Nicola Blackwood: Okay, thank you very much.

Q25 Chris Ruane: I was fascinated by the case of the famous Polish wheelbarrow thief.

Sir Hugh Orde: I understand you are visiting Poland shortly, Chairman.

Chris Ruane: I would advise you not to take a wheelbarrow. You gave us an example of a request from another country to the UK for the arrest of a wheelbarrow thief as disproportionate. I think I would agree with that. Do we have any records of the number of disproportionate requests from countries across the EU, across the world, and have any UK police forces had their requests for British criminals refused by foreign police forces because it has been disproportionate?

Commander Gibson: Not for that reason, no. We don’t have-

Chris Ruane: Sorry, not for what reason?

Commander Gibson: If the warrant is not valid then it might be sent back but we don’t apply for warrant in trivial cases.

Q26 Chris Ruane: Have there been any refusals?

Commander Gibson: Not for trivial cases.

Chris Ruane: Who judges the triviality?

Commander Gibson: At the moment some countries have an in-country test, for instance. What we are doing in the United Kingdom seems to be practised in other countries, that is one of the reasons why the Government looked at it.

Q27 Chris Ruane: So we have never made a trivial request?

Commander Gibson: We don’t make trivial requests. We don’t do it.

Q28 Chair: You are thinking of the German model?

Commander Gibson: Yes, I am.

Chair: We want to base our legislation on the German model.

Commander Gibson: Precisely.

Chair: Because at the moment there is no forum bar, so to speak.

Commander Gibson: No.

Chair: If it goes before a judge here it is just issued?

Commander Gibson: Yes, exactly.

Q29 Chair: So the four suggestions made by the Home Secretary are going to be put in four different pieces of legislation. Is there a concern that what has been proposed will be complicated? It is not one piece of legislation that you can go to, it is four different pieces of legislation that will need to be amended.

Commander Gibson: I am not familiar with the detail of how that is being done. It does sound complicated, but what we want to keep is the European arrest warrant. If there is a price to be paid, we may have to pay it.

Q30 Chair: You will pay any price, bear any burden in order to ensure-

Commander Gibson: Within reason, Chair.

Q31 Dr Huppert: If we can move on from the European arrest warrant. I think the Home Secretary has at last accepted the case to Europol. Firstly, could you just outline your perspective on the consequences if the UK were to leave Europol and try to establish some sort of alternative arrangement?

Sir Hugh Orde: In broad terms-I am sure Allan will be happy to fill in the detail, Dr Huppert-it is the essential place through which information is exchanged. It is one of those measures that by membership gives you the right of access, which we see as critical. Indeed the United Kingdom, and SOCA in particular, are one of the most substantial users of that mechanism so we would see it as vital, which is why we would certainly raise-or we will be raising-a slight concern that while there is, without question, a desire to join Europol, four measures that we saw on our list as essential are not listed in the Government’s list, which are all in essence supporting the basic principle. So, yes, my worry would be without those other bits we may not be full players at the table, and that would cause a real concern with my members.

Q32 Dr Huppert: That was going to be the next thing, and I will let Commander Gibson comment as well in a second, but on that particular issue about the missing ones, can you see any good reason not to opt in to all of those? Would it not make sense to be in Europol or out of Europol rather than half in Europol?

Sir Hugh Orde: Our professional judgment is that it makes sense to be full members of both Europol and Eurojust. Of course, things like joint intelligence teams are a consequence of membership of these. It gives you a right and indeed funding in terms of joint inquiries, joint investigations. So we would see it as very important and I would worry that if we are not there because we have not signed up in totality there may be some impact-I don’t know what it would be yet-on how quickly we could access information. At the moment our access is fast-time. There are other agencies, other countries do sit in on these organisations but they are sort of second tier. So while America may be there it does not have the same rights, quite properly, that full members have.

Commander Gibson: I think the importance of fast-time immediate access to criminal intelligence when dealing with the crime problems we have today cannot be underestimated. I am very concerned about associate membership, having to put formal requests in for checks to be undertaken rather than have your own staff do it in real time. I think that will lead to less effective kidnap investigations, drug trafficking investigations; major crime will suffer in consequence.

The other thing about our membership of Europol, we are leading players in Europol. We have provided some of the heads of Europol, the current head. We are the biggest provider of intelligence to the European intelligence system that underpins it. We are the second biggest user of that intelligence. That growth is exponential. We are, along with Spain, one of the major hubs around drug trafficking in Europe and so we have crime problems that demand modern tools to be able to tackle them. International collaboration, European collaboration is right at the heart of an effective response.

Q33 Dr Huppert: I hear a strong call from both of you for full Europol membership, including those other ones. Can I just ask a more general question? This whole astonishingly complex process of opting out and then opting back in to bits of it, bearing in mind those bits we are not opting back into are fairly irrelevant anyway, it has presumably taken up quite a lot of time and effort from the two of you, and presumably a number of other staff, as well as Home Office officials, lawyers and so forth. Do you reckon it has all been worth it? Would there be any disadvantages from your perspective if we were to decide just to stay in the whole thing?

Sir Hugh Orde: Technically no. We were consulted, quite properly, or asked for our view and, mindful of the Government’s view of the relationship with Europe, we took it very seriously. What we looked at is what we saw as vital, what we saw as very important and, frankly, some things that made no difference at all because the world has moved on. So in terms of a good housekeeping exercise, Dr Huppert, it enabled us to focus our minds on what was absolutely crucial so Government was fully informed of our view of the essential bits that we really did need to keep citizens safe in this country and those that we did not. Of course it takes time, a lot of Commander Gibson’s time far more than mine and the Metropolitan Police who contributed to this piece of work in particular. But we would see that as a very good investment. Looking at the list of 35, with a small number of differences around the margin, which I am sure could be negotiated around, we are in a place that we can say with confidence the public of this country are safe, notwithstanding the politics that flies-I am delighted to say-above my head.

Of course some of these third pillar measures are not a matter for the police. There are a lot of things that, quite rightly, the Ministry of Justice, Border Agency, SOCA and others would have a view on. I know they are giving evidence, Chairman, so you will be able to hear direct from them on those matters. We felt it would not be appropriate for police to give a view on things other than effective investigations.

Q34 Dr Huppert: So it has basically been an extensive housekeeping exercise and you have preserved the most important valuables while you were cleaning the house up?

Sir Hugh Orde: It has been a major piece of work. There is a benefit to that, I am now far more knowledgeable, I can tell you, on third pillar measures and, worryingly, first and second than I was before.

Q35 Chair: We were going to ask you to give your evidence in French but we are glad we did not.

Sir Hugh Orde: I am delighted for both you and me that you did not, Chairman.

Q36 Steve McCabe: Can I just ask, what practical arrangements have you made to make sure that we are not caught cold in the event of a major extradition request either to or from this country during the period that we have opted out and have not yet been able to opt back in?

Commander Gibson: I am not aware that we are going to have a gap. I understand this is going to be a seamless process.

Chris Ruane: We have heard that before.

Q37 Steve McCabe: Can I ask what you base that on?

Commander Gibson: I am only basing it on what I am advised. My contacts in the Home Office say that that is the way it would work. We do not anticipate having a gap. I come back to the fact if we have to resort to the 1957 convention on extradition we are not certain it will operate in the way it used to operate because of the jurisdiction difficulties that some countries have named the European arrest warrant in their statute, and if you are not part of the European Arrest Warrant it will not work for you.

Q38 Steve McCabe: I don’t want to put words in your mouth but am I right to assume that the police are saying that they are relying on the assurances of Home Office officials that there will be no gap between the opt-out and the opt back in as far as our ability to issue or receive extradition requests?

Commander Gibson: We do not understand how it would work and it is absolutely critical that we do. If there is going to be a gap, we would need to be fully involved and fully understand what the risks were.

Q39 Chair: But at the moment you do not have a definitive statement on this, you just have contacts. We all have contacts with the Home Office, but you would like a piece of paper that sets out very clearly that even though the Prime Minister has given his intention to opt-out he has not opted out as yet until Parliament has finished its scrutiny, but when that happens there is no gap, it is seamless?

Commander Gibson: That is my understanding of the way it should work and if it is contrary to that we are not aware of that.

Q40 Chris Ruane: Could you give us some practical examples of cases of the effective use of the European arrest warrant, for criminals that we want to bring back to this country and for criminals that have been requested to be sent back to other countries?

Commander Gibson: I am going to give you a case from when I was on call in London. In December last year, I was working in the serious and organised crime area-I am currently in professional standards-a gentleman called Jason McKay murdered his girlfriend by means of strangulation on 3 February last year. On 10 February last year he walked into the police HQ at Warsaw and said, "I’ve killed my wife". The SOCA liaison officer was despatched to police HQ in Warsaw.

Mr Winnick: That is the capital of Poland, not my borough.

Commander Gibson: Yes. Prima facie evidence of his admission was taken by the SOCA officer. On that basis we got the statement back to the United Kingdom, we obtained a European arrest warrant, one day later we had the warrant and we had it approved by the court. We took it back to Warsaw and he was extradited on 11 February and two weeks later on 23 February he was before a UK court.

Q41 Chris Ruane: So from beginning to end it was two weeks.

Commander Gibson: Two weeks.

Chris Ruane: So that is effective use.

Commander Gibson: Yes.

Q42 Mr Clappison: Would it have been impossible for that person to be extradited under the previous arrangements?

Commander Gibson: No, it wouldn’t have been, but it would have been a long process. If he had been a Polish national, they would have not extradited him back to the United Kingdom.

Q43 Mr Clappison: What would have happened if he had done the same thing in Sydney?

Commander Gibson: It would be an extradition under part 2 of the Extradition Act and it would have been a much longer process. We are talking-

Q44 Mr Clappison: If he had done the same thing in Toronto?

Commander Gibson: Same again.

Mr Clappison: New York?

Commander Gibson: Yes, these are part 2 countries.

Q45 Mark Reckless: With all these examples you are talking about extradition, whereas if it were not for the various EU and ECHR constraints on our operation were you as the police or the Home Secretary presented with evidence that someone was a threat to the interest of this country, we could otherwise simply deport them.

Commander Gibson: We are using that against foreign national offenders in London quite effectively, using every opportunity. If we can deport them, we will, but obviously with some of them we don’t have the prima facie evidence that they have committed a crime. We would arrest them if we could.

Q46 Mark Reckless: But we have 28% of-I am not sure if arrests was the figure you were giving at an earlier stage in the process-foreign nationals. Surely one way of reducing crime would be to get rid of a lot of that 28% by deporting a lot of the people involved without these constraints?

Commander Gibson: There are more difficulties around EU states, of course.

Mark Reckless: Indeed, my point.

Commander Gibson: Indeed. But you can’t deport EU nationals in the way that you are talking about.

Q47 Mark Reckless: Because of the EU Regulation. Whereas you are saying the logical deduction is we must be part of all these things or we can’t do it. I am saying there is actually another logical possibility. Can I take you on to the point you made about UK and Spain, drug interception and being keen on access? The Committee visited Portugal and an organisation there called the Maritime Analysis Operation Centre, MAOC. We learnt it had been established as a bilateral or multilateral co-operation, particularly the UK-Spain relationship had been very important and the European Commission had very kindly provided some financing for that and it was working well, but then it was told it could only continue to have that financing if it was subsumed into Europol. So various other partners, such as the US, who were previously involved in that are now no longer involved and can only be observers, and it was intercepting dozens of ships a year with drugs and now barely any. What do you say to that?

Commander Gibson: I am saying that there are many instances of joint investigation teams dealing with drug trafficking that are highly effective. For the example you quote I could quote others that show the effectiveness of European co-operation.

Q48 Mark Reckless: But surely the requirement that it can only happen in Europol-similarly when we went to Turkey and Greece, we found effective co-operation on the border, but then because Turkey is not part of Europol there can’t be any information exchange and there is no effective working.

Commander Gibson: Can I explain the difference? The difference with joint investigation teams is that you don’t have to issue letters of request. If you want something done in that foreign jurisdiction you have teams brought together with officers from the jurisdictions themselves and so you have three or four countries working together. If you are having something done in that country you use an officer from that country, there are no letters of request needed and it is a very quick, immediate process, so you can get things done far more effectively.

Q49 Mark Reckless: Mr Gibson, you said the big prize for ACPO was staying in the European arrest warrant and the key issue was that senior officers should be at the top table. Is this not about the ego of top senior police officers rather than effective policing?

Commander Gibson: No, we have argued this on public safety right from day one.

Sir Hugh Orde: Chairman, as I said in my explanation, why we took this request so seriously was to look, mindful of the Government position or some of the parties’ views on Europe, at what we saw as essential to keep citizens of this country safe. No more and no less. I can assure you it is absolutely nothing to do with the ego of chief officers, it is absolutely the fact how we keep citizens in this country safe and indeed citizens in other parts of Europe where we have an obligation to bring back to this country and lock up those who are fugitives from justice here.

Q50 Mark Reckless: So you are saying all of it is essential and without it you will not be able to keep us safe?

Sir Hugh Orde: As we said, if I can just remind you, when I started, Mr Reckless, that there were a number of measures, 12 in all, which we saw as vital.

Commander Gibson: Thirteen.

Sir Hugh Orde: Thirteen, I do apologise. We see 16 as very important and, if one benchmarks our list against the current Government’s list, there is a huge area of agreement. As I have pointed out already, there are four issues around Europol, not the principle, but around some of the detail that I think will need to be worked through to make sure that we do have people contributing and, as my colleague describes, giving a huge amount of intelligence to fellow officers across Europe and vice versa. We need to make sure we are not excluded from that or we get some huge bureaucracy because we are not signed up to the detail. There are some others that don’t feature on the Government list, which we do see for pragmatic reasons-and if it helps, Chairman, I will send you that list.

Chair: If you could.

Sir Hugh Orde: It broadly covers, for example, movement of controlled substances for evidence. At the moment we can move class A drugs from country A to country B without huge difficulty because there is an agreement. If we stepped out of that, there may be some difficulty in sharing evidence. Those issues are minor at one level, but important from a practical police point of view, which is why we put them in the "what we would like to have" option. You are right, they will not stop policing, they will not stop co-operation, they are just likely to make it far more bureaucratic and time-consuming and there is a common cause, I think, that more time spent on the streets protecting citizens here is time well spent not tied up in red tape.

Chair: Thank you, Sir Hugh. James Clappison.

Mr Clappison: I think my question has already been answered.

Q51 Chair: Can I just ask you, Commander Gibson, you talked about the number of foreign nationals who have been arrested, 35% of those arrested in London are foreign nationals and a third of them had convictions abroad? What was that figure you gave us?

Commander Gibson: 28%. The figures at the point in time taken was 28% in the Met in London and half of those were European nationals.

Q52 Chair: Yes, but I am giving you the figures for the numbers who have convictions abroad already, it is 35%. Do you have a better figure than that?

Commander Gibson: That is the figure I quoted in the paper rather than I gave in oral evidence.

Q53 Chair: No, that is fine. But of those 8% are already wanted in their own home countries?

Commander Gibson: We did a couple of pilots, one in Harrow in North London and, I think, one in east London where we did more detailed checks that we normally do on people coming into the custody block and that is what we found from the two pilots.

Q54 Chair: No, I understand that. But what that shows is that the system isn’t working that well. The willingness is there, obviously you need these powers, but if we are finding that a third of the people who are arrested in London already have convictions abroad and 8%, even though it was a pilot in Harrow, have convictions in their home countries, and they are entering the country at the moment, it means that the system really isn’t as robust as it should be.

Commander Gibson: That is why we need the SIS. SIS II will allow us to link up to police national computers and be able to do the checks at the point of entry into the United Kingdom. What was happening is that we didn’t have access to the European equivalent of the police national computers in real time so people were being processed through our custody suites and not being checked. It would require a check through SOCA, so that is the reason why-

Chair: Sure, but you don’t have that yet.

Commander Gibson: No, we don’t have that and that is the reason-

Q55 Chair: At the moment it has cost £39 million and you still don’t have access to it.

Commander Gibson: Late 2014 I think is the go live date for SIS II.

Q56 Chair: You are confident that will be met. The other point that you mentioned, the concern we have had that there was an article in the Telegraph about this, about an increase in so-called easyJet crime. This is not casting aspersions on anyone who travels on easyJet because I am sure everyone in this room does at some stage, but people who arrive in the morning from Europe, commit their crimes and then before they are tracked they get back on the flight and they go back home. There is no way we can stop that: even if you opt in to all these arrangements that is still going to continue, isn’t it? If you don’t have passport checks on arrival.

Commander Gibson: I am not familiar with what has been referred to by that journalist.

Chair: No, but you do understand the scenario. The scenario is people can arrive from any part of the European Union, they can commit their crime in London, they can pop off down to Stansted, Luton or Heathrow and get back home without anyone doing anything about it because we don’t have checks when people leave the country.

Commander Gibson: Leave the country, but we do have them when they come into the country.

Chair: Yes, but when they leave you don’t know, do you?

Commander Gibson: No, I would agree with that. That is a matter perhaps for the UK Border Agency because I don’t police people leaving the country.

Q57 Chair: No, but the point is even if you opted into all these arrangements, it still wouldn’t mean you could stop criminals leaving the country?

Sir Hugh Orde: The point is, Chairman, it is not perfect. We would see these as very important in terms of citizens in this country. As I say, SIS II, I think, provides a huge benefit to the Border Agency and no doubt they will give you their evidence, but it does give us that instant fast-time access to prevent people coming in. Of course there are ways one can stop people from the EU coming into this country if they had serious convictions.

Q58 Michael Ellis: On that point, Sir Hugh, the Chairman asked you in his first question about this. There has been more than one case, there was a case in Northampton Crown Court recently, we are supposed to know from the country of origin if a person ought not to be permitted entry into the United Kingdom because their presence would not be conducive to the public good. Now, is that a system that is working as far as the other countries? I am hearing of cases of convicted criminals, who committed serious offences in their home countries but then have flown into this country, and their home countries have not told us that they have been released from a long prison sentence, perhaps for a serious offence, and then they have committed the same offence, or allegedly committed the same offence, in this country. So is there something there that we need to look at?

Sir Hugh Orde: Certainly SIS II will give us far more information than we currently have. The ACPO Criminal Records Office does a huge amount of work checking those who are arrested now, and that is a success story. About 5,000 checks per month are now carried out through that once they have been arrested.

Michael Ellis: But once they have been arrested here they have already done something.

Sir Hugh Orde: But, of course, that does give us all the other information that is critical to keeping them locked up, because we now have the evidence that gives us the power to oppose bail and so on. But, no, the system is not perfect, you are absolutely right.

Q59 Chair: That deals with Mr Ellis’ question. Of course the system is not perfect, nothing is perfect in the world, Sir Hugh, apart from ACPO, I am sure.

Sir Hugh Orde: Mr Reckless may have a view on that.

Chair: What Mr Ellis is asking is once Schengen II is up and running, if you have a serious criminal entering the UK you will know when they arrive? Will you? Because when Mr Miranda arrived from Berlin we knew he was coming, we could stop him under schedule 7 and we could interview him. So will we be able to know when people who are bad people enter the United Kingdom if we sign up to Schengen II?

Commander Gibson: It is an alert system so what it does is it tells you that someone has put something on the system to alert somebody about the movement of a vehicle, of a person, of stolen property. What it isn’t-

Chair: Before arrival?

Commander Gibson: Yes, so if you try to enter the United Kingdom with a stolen passport or you are a person who is wanted, as you go through the checks will be done on you and you will be identified.

Chair: Excellent.

Commander Gibson: But what it doesn’t do is to say that you may not be wanted but you may be a bad person and you can still get into the United Kingdom. We have had lots of cases where people who have served lengthy custodial sentences in other European nations have entered the United Kingdom. They are allowed to enter. There is no prohibition on them.

Q60 Chair: Yes, just the final points. We have the head of Europol giving evidence so we will see him shortly. Sir Hugh, I am sorry I did not congratulate you right at the start on your re-election unanimously, our favourite form of democracy. You were unanimously re-elected president of ACPO. Have you managed to get your meeting with the Home Secretary on the important issue of police and crime commissioners? For the record, I know that you feel you have been misquoted by this Committee in something you said to the BBC about PCCs. Do you want to just put that right for the record?

Sir Hugh Orde: The meeting with the Home Secretary is on Thursday.

Chair: Excellent.

Sir Hugh Orde: I and two of my vice presidents are seeing the Home Secretary on a number of issues, including police and crime commissioners, yes.

Q61 Chair: In terms of your views on PCCs at the moment, and ACPO’s view, with so many of the chief constables-

Sir Hugh Orde: You will have to remind me which particular misquote you are talking about, Chairman.

Chair: I can’t remember, but have you been misquoted several times by the BBC?

Sir Hugh Orde: For clarity, the view of ACPO has always been the same and entirely consistent on this point, which is that how we are held to account is a matter for Government and not the service. That is how a democratic police service operates. We are held to account by whatever method the Government of the day see is appropriate. That is what is happening. Frankly, across the country at the moment there are some interesting issues but in the routine of policing chief constables and police and crime commissioners are getting on with keeping the citizens safe.

Q62 Chair: Before Mr Ruane mentions South Wales, which I am sure he is, can I just ask one issue about serving officers going to Europol. You have both spoken very highly about Europol and, as I said, the Director is about to give evidence to us. Why is it that British officers have to resign their positions before they take up a role in Europol and therefore they then can’t go back? Whereas other countries that I have visited in Europe-or you have-they are able to second people over there in order to do their job, they come back and then they resume their work. What is ACPO’s view on that?

Commander Gibson: I am not sure of the accuracy of that statement, Chair, because I think the Metropolitan Police have a seconded officer in Europol.

Chair: So they are seconded, they do not have to resign? We will know in a minute.

Commander Gibson: It is not my area of expertise but I thought that was the case.

Chair: Sir Hugh?

Sir Hugh Orde: I have no idea. If you need clarity I will happily research it and get back to you, Chairman.

Chair: It is all right, we have the Director and he will tell us.

Sir Hugh Orde: I am sure he is far better informed than I am.

Chair: If you all don’t know then it is an issue that we will certainly raise with him.

Q63 Chris Ruane: When I questioned the Secretary of State for Wales on the issue of accountability of Welsh PCCs or the lack of accountability, he said it was the Home Affairs Select Committee whose job it was to have this accountability. I don’t think that was written in law but what is your understanding?

Sir Hugh Orde: I am very clear, police and crime commissioners hold the chief constable to account for the totality of policing, not just policing in its broadest sense. So the chief constable in Gwent will be held to account for whatever he or she does subject to the appointment in terms of policing, be it at a national or a local level. The police and crime commissioner is held to account by the police and crime panel. That is my understanding of the law and, of course, that is not a matter for us.

Chris Ruane: Not the Home Affairs Select Committee?

Sir Hugh Orde: I am unsighted on the Home Affairs Select Committee’s particular role.

Q64 Chris Ruane: Finally, do you think those panels are doing a good job in providing oversights on PCCs?

Chair: Not the 43 of them, just generally.

Sir Hugh Orde: It is not for me to comment on really. What we are clear on is that the chief constable is held to account by the police and crime commissioner and that is where our responsibility begins and ends, making sure that works. Of course, there are bound to be tensions within that relationship and so there should be. It should not be a cosy relationship. But by and large the chief constables are getting on keeping citizens safe and police and crime commissioners are getting on and holding them to account.

Q65 Mark Reckless: Sir Hugh, you seem today to have a self-denying ordinance on this issue of PCC accountability and whether you should comment. I am pleased you say it is a matter for Parliament to determine the accountability. But were you not quoted as saying that you were very unhappy with what was happening with all these PCCs sacking all these chief constables and the panel not intervening-

Sir Hugh Orde: I was misquoted.

Mark Reckless: -and you were going to deal with it by seeing the Home Secretary? Is that all wrong and you were misquoted?

Sir Hugh Orde: No, I raised a legitimate concern that as currently structured there is no process of arbitration in the current legislation. I think it is quite legitimate to raise that issue with the Home Secretary, which we will do on Thursday. I am certainly not going to pre-empt that conversation.

Q66 Mark Reckless: But that is because Parliament determined that the PCCs should have the power to dismiss chief constables.

Sir Hugh Orde: It is wider than that. Of course, in reality the complexity of the relationship is around what is operational and what is non-operational. There is a grey area where many of those debates take place. It just seems to me sensible that on occasions where there is an agreement to disagree that a third view may be quite helpful, firstly in maintaining confidence in both institutions and, secondly, in allowing some sort of flux to allow these things to take place. It is entirely an area where I think we have the right to raise that issue.

Q67 Mark Reckless: Which is a view contrary to what Parliament has determined should be the mechanism of accountability?

Sir Hugh Orde: Parliament has spoken on a number of things and that is where we are.

Chair: Anyway, the Committee will be looking at this whole area later this year. I am sure you will be giving evidence to us on that occasion when we review PCCs 12 months on. But for the purposes of today, Commander Gibson, Sir Hugh, thank you very much for coming in to give evidence and we look forward to receiving that list if you could send it to us.

Examination of Witness

Witness: Rob Wainwright, Director, Europol, gave evidence.

Q68 Chair: Mr Wainwright, thank you very much for coming to give evidence to us again on this issue. Can I begin by congratulating you on behalf of the whole Committee on your reappointment as Director? I think it is until 2017. Is it difficult being a British head of an agency, an organisation like Europol at a time when the Government is reviewing its relationship as far as the Justice and Home Affairs agenda is concerned, especially as Europol is central to some of the deliberations that we are having at the moment?

Rob Wainwright: I have noticed in the general environment some murmurings, if I can describe it in that way, among the law enforcement community around Europe about this because, frankly, they find it a very unusual position to be in. The UK has led by example the development of the international police co-operation environment in Europe for so many years. They are used to the UK being the team captain, if you like, and scoring most of the goals. The idea, therefore, that the captain would substitute himself from the field of play is an oddity, I think, in the broader police community.

Having said that, the UK’s reputation is high enough and for the moment that reputation is enough for there not to be any significant change, and that includes in relation to how I feel about it and how I am still perceived by my stakeholders.

Q69 Chair: The Government says that they will opt in to Europol 2 but will not opt in to Europol at the moment. Does that mean that you and the British Government cannot influence the debate as far as the future direction of Europol is concerned?

Rob Wainwright: No, it doesn’t mean that. My interpretation of the Government’s position is a bit more positive than that in the sense that they have declared firmly that they wish to remain part of the current legislative framework for Europol. That is an important point to make. As for the future, the Europol Regulation that will come into force within the next one to two years, the Government has expressed an intention to opt in once the final text of that agreement has been finalised, providing two issues in particular meet with their satisfaction. So to a certain extent I think it is still a positive expression, and during the negotiation of that Regulation I still would expect the UK to be influential in the debate.

Q70 Chair: But it is not the same as being signed up and there in order to influence the strategy, is it?

Rob Wainwright: No, it is not and it is a fair point to make because, as I said, the UK risks, I think, diminishing its well won influence in this area by choosing not to, in this particular case, lead the debate. I think it might make a difference therefore to how some aspects of the Regulation are finalised.

Q71 Steve McCabe: Mr Wainwright, as I understand it there are eight Europol-related measures that the Government plans to opt out of and the intention at the moment is only to opt back in to the decision which establishes the body. Do you foresee that there could be any problems with that? Is there any prospect that there will be an insistence that the Government has to opt in to all of the Europol measures?

Rob Wainwright: I think the UK Government has obviously come to some legal opinion on that, that it doesn’t need to and that it will be covered by the Europol Regulation. I tend to agree with that legal judgment, and I expect therefore that the Europol Regulation will indeed be designed to replace all of those measures. Having said that, I think the key risk is a risk of a gap in terms of the transitional measures if the opt-out in particular takes effect before the new Regulation enters into force. I don’t think it is likely the new Regulation will enter into force before December 2014 so there is likely to be a gap and, if there are not sufficient transitional measures in the meantime, then those accompanying eight measures would leave a gap, frankly, in terms of UK capability to carry out its work against international organised crime and terrorism. So I think it is particularly important for the UK Government Home Office officials, supported of course by Commission and Council officials, that we have the right legal understanding of this and that we make sure that we cover that gap through transitional measures.

Q72 Steve McCabe: How long do you think this gap could be and what have you been able to do to indicate to the Home Office your concerns about this possibility?

Rob Wainwright: I am in almost regular contact with Home Office officials, I have also discussed the wider issue with the Home Secretary on two or three occasions so I think they do understand this and I will continue to help them as much as possible to try and cover this gap. I think it is principally an issue, however, between the UK and other member states and the Commission. But I will certainly make sure that I help them as much as possible.

How long? Difficult to say, the European Parliament as part of the legislative procedure is trying to speed things up right now to get the Regulation on the books as soon as possible. As I said, I don’t think it will come in time by the end of 2014. We could be looking at a gap of one year, maybe two years, but I couldn’t predict with any great certainty.

Q73 Steve McCabe: Two years where Britain might not be able to play its full role in the team, to use your analogy earlier, to deal with issues like major crime and terrorism?

Rob Wainwright: Let us be clear about what the issue is here. Even if transitional measures are finalised and even if the UK decides maybe to have an alternative arrangement in the future with Europol by not opting into the Regulation, then Europol’s participation and capability to fight organised crime will anyway be diminished for more than two years. This will be for the foreseeable future. So I think this is a very important issue in terms of how the UK is currently involved in fighting organised crime especially, and what is at stake here is a significant part of that capability and the prospect that that capability will be diminished if it does not choose to opt-in to the new Regulation or if, as you say, there are no sufficient transitional measures also put in place.

Steve McCabe: Thank you.

Q74 Chair: Can you just clear up this point I put to Sir Hugh Orde and Commander Gibson about officers from the UK having to resign from the police force here in order to take up their positions in Europol? Is that correct?

Rob Wainwright: It is correct and it is unclear to me, Chairman, what the reasons are for that. I have never fully understood whether or not they are legal issues connected with the provisions of the police pension system or whether or not it is a matter of policy in the cases of certain chief constables. There have been exceptions over the years but they are few and far between. To give you an illustration, of the 60 or 70 British nationals that are currently working at Europol, albeit not all of them police officers, we have just one serving police officer that is working on a seconded basis to Europol. Many, many other police officers have been required to resign to take up their position in Europol, for that matter that includes me as the Director. I was required to resign from the Serious Organised Crime Agency before I took up that position. It is a position that is almost unique in Europe. There are one or two other countries that have a similar policy but this is the worst example of it. I think as your question to Sir Hugh earlier intimated, it is not necessarily in the best interests of the UK police community.

Q75 Chair: Indeed I think that Commander Gibson and Sir Hugh did not realise that was the case, to be fair to them. Clearly it is important to allow our officers to be able to serve in international organisations and then come back again. Presumably as far as Interpol is concerned they can do that, is that right, or do they have give up their positions there?

Rob Wainwright: I think it is a more common practice in Interpol. I think you are right, what is behind this? It is in the interests of the police service, in particular, for their officers to have the widest possible experience, particularly in these modern times where fighting international serious crime is very much about the international environment and getting this experience. At Europol we deliberately follow a policy of what we call rotation where we rotate our officers from all countries very regularly to make sure therefore that we allow the member states to accumulate the maximum amount of experience among their police staff.

Q76 Chris Ruane: Continuing on from what my colleague Steve McCabe was asking, the Government has said that it will not opt in to the new Regulation on Europol if it gives the body powers to direct national law enforcement agencies to initiate investigations or share data that conflicts with national security. Could the UK continue to participate in Europol if it did not opt into the Regulation?

Rob Wainwright: In terms of the first part of that question, frankly I don’t think it is likely. I don’t expect either of these powers as they are described to feature in the final text, certainly not if you consider how the early Council discussions are going, certainly not in terms of the way in which they have been expressed by the UK Government in terms of their fears. I go further than that-I don’t think it is also a reasonable interpretation that even the original text can really be seen in that light. Let us understand the intention here. The intention is not to create a new Europol with new executive powers, with any powers to direct any member states to do anything.

Now, clearly the text has been interpreted in that way by the UK Government. They have some sympathy, I have found, with other member states and as a result I expect the final text to change. Both of these conditions, therefore, are likely to satisfy the UK Government: we shall see. If they don’t, as to the second part of your question, then we are in uncharted territory. We are in the position when we would have a country that is still a member state of the European Union but choosing not to be a full member of Europol and there are no other parallels for that. It would require a new political agreement in Council to determine the limits and rights that the UK would be permitted to have in that case by being somehow a half member of Europol.

Many mitigating measures would be available that would certainly compensate the UK from no longer being a full member, but without a doubt it would lead to a reduced role and without a doubt it would lead to arrangements that would be less effective and more costly for the UK in its fight against crime and terrorism.

Q77 Mr Winnick: As an enthusiast obviously of the European arrest warrant, do you think the proposed changes, which obviously you are familiar with, Mr Wainwright, will weaken the fight against criminality including terrorism?

Rob Wainwright: The changes proposed by the Home Secretary, do you mean?

Mr Winnick: Yes.

Rob Wainwright: I think the weaknesses of the European arrest warrant are well known, they are as well known as the many strengths that I am an advocate of.

Mr Winnick: Shared by you?

Rob Wainwright: Shared by me very much. I am an advocate of the European arrest warrant, it has transformed the nature of the international police co-operation for the last ten years but at the same time there are parts of it, particularly in regard to proportionality, that impair the full effectiveness of that warrant. I think that those weaknesses are shared in many other parts of Europe.

Therefore within that context the proposals made by the Home Secretary are sensible and particularly so as they aim at trying to provide some solutions to these problems at a national level. I would certainly caution against any attempt to try and solve these problems at the European level. If you open up the legislative box in the European Parliament and with other Council member states there are 101 other ideas waiting in the wings to influence how the new arrest warrant might be changed and we might never get a second version of the warrant on to the statute book. So it is a sensible approach proposed by the Home Secretary.

Of course, I would also support her view, the Government’s primary view in this case, that for the moment the UK must remain a member of the European arrest warrant.

Q78 Mr Winnick: Why?

Rob Wainwright: Because it provides a particular capability that is unique. In particular in allowing UK forces to track down British criminals overseas but principally because it provides for the quickest, cheapest form of fast-tracking extradition from the streets of the UK of some very serious criminals-4,000 in the last four years-that would otherwise have walked the streets of the UK as serious criminal suspects at least for a lot longer, if not for the foreseeable future. The police community has found, therefore, for the first time that we have a modern, swift, cheap way of dealing with a serious criminal problem in the United Kingdom. That is a view I think is commonly shared by other countries in Europe.

Q79 Mr Winnick: If Britain was no longer a member of the EU, it would obviously not be involved with Europol, with the arrangements Europol has made?

Rob Wainwright: If it ceased to become a member of the EU, then I assume the UK would seek to conclude a co-operation agreement with Europol in the same way as we currently have with the likes of Norway and Switzerland.

Q80 Mr Winnick: Would that be as effective?

Rob Wainwright: No.

Q81 Michael Ellis: Mr Wainwright, can I just look at the European arrest warrant and its defects? Were you in the room when I raised these matters with the police officers that were in here?

Rob Wainwright: I do not think so, no, sorry.

Q82 Michael Ellis: Proportionality is a serious defect, is it not, at the moment in the European arrest warrant as it currently stands? So the fact that in our other extradition arrangements there is usually some proviso that extradition would not be contemplated where the sentence would reasonably be expected to be less than 12 months’ imprisonment, that does not apply in the current European arrest warrant arrangements so that, in theory, even if one was going to receive a £50 fine one could be extradited for it. That is an absurd situation, is it not?

Rob Wainwright: As I said earlier, I think there is a serious issue in regard to proportionality of the arrest warrant.

Q83 Michael Ellis: You do not want to go as far as to say it is absurd but you-

Rob Wainwright: Not least because I am not part of the legislative process that was responsible for that.

Q84 Michael Ellis: You agree that it is a controversial situation?

Rob Wainwright: Absolutely, yes.

Q85 Michael Ellis: Do you think, therefore, that the Home Secretary’s moves to bring some rationality into the proportionality issue are sensible?

Rob Wainwright: Yes.

Q86 Michael Ellis: The issue of extradition before charge: is it the case, and please correct me if I am wrong, that under the current arrangements a person can be extradited before the prosecuting authorities in the requesting country have decided whether to charge the person or not?

Rob Wainwright: I am afraid I do not know.

Michael Ellis: You do not know.

Rob Wainwright: I should clarify that Europol is not involved on a day-to-day basis with the functioning of the arrest warrant.

Michael Ellis: No.

Rob Wainwright: So when I speak I speak with my wider experience of the European police community and my previous experience of being a member of the Serious Organised Crime Agency in the UK where I was involved in the day-to-day handling of the arrest warrant. But in terms of the way in which it operates, and particularly in terms of some of the legal provisions, then I should hesitate to give you a clearer answer because I might-

Q87 Michael Ellis: Right. I will not pursue that as it is not your area. Effectively, the decisions that the Home Secretary has announced, you are supporting those? You are supportive of her? You have described them as sensible and you are supporting those measures?

Rob Wainwright: In terms of the arrest warrant, yes. In terms of the broader decision on the opt-out I might have a different view.

Q88 Michael Ellis: Let us look at the opt-in package and the transitional arrangements, if I may. Are there any measures that you are aware of that Her Majesty’s Government is not proposing to opt back into that you think it should?

Rob Wainwright: I think there are some wider points here, which is that if you are going to opt in or opt out on a selective basis, then the Government knows, of course, that you take some general risks, not least that you allow criminals to exploit what suddenly become arbitrary differences between different countries in Europe. The risk that the UK becomes more attractive to criminals who might see it as a safe haven applies, at least in theory. There is also the risk that I intimated earlier, which is the UK’s standing before the international police community and with other member states. The UK Government, for example, as part of this decision is deciding to opt out of the framework decision on terrorism for some very good technical reasons that were in this case that we have implemented the necessary provisions in domestic law. Nonetheless, it is an odd piece of symbolism on the part of the United Kingdom that it decides to withdraw itself from an international political agreement and measure on terrorism, and so I think there are some wider issues that the Government should be aware of. Having said that, if for political reasons a decision is taken to define a list, a more selective list, then the 35 certainly are, I think, in my view the most important 35. There are one or two others that I might quibble with, but I think the list looks-

Q89 Michael Ellis: The thrust of your concerns would be met by the 35 opt-ins that the Home Office have referred to?

Rob Wainwright: Let me put it this way. I think that the greatest value of the whole package of 135 measures, the greatest value expressed in terms of UK police benefits, are mostly served by those 35.

Q90 Michael Ellis: What are the transitional arrangements? Do you think that there are any risks involved about the transitional arrangements if there is a failure to agree for the opt-in? Are there going to be any gaps between the changing of the arrangements that will create difficulties?

Rob Wainwright: As I said, in the case of Europol there will be a gap, according to my expectations, because the new Europol Regulation will not be ready in time. As for the wider packages, similar risks apply, so this is a very important part of the process that the UK Government makes sure that the transitional arrangements are in place and agreed in time with the European Commission. As I understand it, the UK Government officials are well aware of that and are working on it with some priority.

Q91 Nicola Blackwood: I just wanted to pick you up on a couple of comments that you made. You mentioned the fact that there are theoretical risks to not opting into the whole package if some states have some opt-ins that are different from other states. Surely it is your job and the job of the ACPO representatives who we just saw to give advice as to what the practical risks are, not the theoretical risks. Now, ACPO were very clear that their preferences are to opt back into the European arrest warrant and the information sharing opt-ins, and so we know exactly what they think their practical priorities are. I am not quite so sure what your practical priorities are. You have said that the 35 are a good start but you want all of them. Do you think that it is the information sharing and the European arrest warrant as well or would you have other practical preferences?

Rob Wainwright: No, I agree with ACPO’s view and I have given similar evidence to other inquiries in the House of Lords, for example, and given the same consistent view before UK Ministers whom I have met, including the Home Secretary in this case. I would agree that information sharing is probably the most important and if you put that in the context of Europol we see that the UK has double the amount of casework that it is putting through Europol’s information exchange channels over the last two years almost. It shows, therefore, that the appetite and the requirement among the UK police community to share information, co-ordinate international operations across Europe, is increasing quite significantly and that is creating a greater dependency on some of these police co-operation measures in Europe that the UK police community have. But all of those and the most significant of those are covered in the 35 measures that the Government have announced.

Q92 Nicola Blackwood: Yes. Given that the Home Secretary has indicated that she is intending to opt back into the information sharing measures and to the European arrest warrant with the amendments that have been put down on the Antisocial Behaviour Bill, do you see any practical risks that are likely to emerge from the proposals that she has put forward?

Rob Wainwright: None that are significant.

Q93 Chair: Mr Wainwright, you are also president of the cyber centre, the new cyber centre that has been established. Were you disappointed that the UK Government was not prepared to help fund that centre?

Rob Wainwright: Of course I was disappointed because the view taken by the UK-and other member states, I have to say, not just the UK-gave us a bit of a false start in that we had very high political expectations to establish a European Cybercrime Centre with no budget at all. It meant that I had to divert resources from other parts of my organisation. I do not complain and I am only saying this in response to your question because I understand the conditions of budget austerity that affect all police and other public sector bodies at the moment, so we just get on with it. But it has nonetheless made it difficult for us.

Q94 Chair: As you know, we have just published our report on e-crime; well, you may not know this. The Committee has been looking at e-crime for a year and we put out the figure that 15 countries had chosen the United Kingdom as their main target for cybercrime. Can cybercrime be fought on just a UK basis or is this now so international that bodies such as Europol and Interpol and, indeed, your Cybercrime Centre are essential to deal with this?

Rob Wainwright: We are finding from our experience that most forms of organised crime now are inherently transnational in nature. Cybercrime is the best example, of course. It requires, therefore, very effective use of available international police co-operation mechanisms, which is why, of course, Ministers in Europe decided to establish something at Europol and invest with us the responsibilities that we have now, in particular to exchange information in real time about the principal criminal threats operating online and to act as an operational co-ordination centre so that we can go after the most significant criminal targets in an effective way. I can say that we are in the final stages of concluding a major operation against internet-related crime involving 16 countries in which the UK played a very, very important and leading part. This is just coming to an end at the moment, and we hope to publish in the coming weeks, a significant operation, almost a landmark operation, against the ability of the police to penetrate in particular the dark areas of the internet. It shows, therefore, the virtues of the ability of international co-operation mechanisms, therefore, to turn up the pressure and the volume against some of these criminals who until now, frankly, have operated with impunity on the internet.

Q95 Chair: Of course, members of the Committee have visited Europol so we have seen what you are doing on terrorism. There is no equivalent in this country to what you all are doing in Europol as far as terrorist organisations are concerned. There seems to be a constant monitoring of information there. When you get that information, it is passed to the Metropolitan Police or GCHQ? Where would it go?

Rob Wainwright: Primarily, the Met Police and we have an officer as part of the UK liaison bureau that is from the counterterrorist command of the Metropolitan Police and he acts on behalf of the CT community as a whole, including the Security Service, of course.

Q96 Chair: Did you give us the figure that there were 3,600 organised crime criminal gangs operating in the European Union?

Rob Wainwright: That is right. According to our estimate, there are 3,600 internationally active organised crime gangs, and this is already quite a high threshold that we are applying. All of these, therefore, are capable of operating in multiple jurisdictions, very often in multiple criminal sectors, and I think it says something about the changing nature of organised crime.

If I may say, in terms of the unique value of Europol in this case, the UK would risk losing our ability in particular to track the movements of those criminal groups and to hold the unique databases that we have in Europe. However good SOCA’s databases are, however good NCA will be, they do not have what we have, which is intelligence collected on a pan-European basis, which allows us to identify criminal connections between multiple countries at any one time and then allows us to co-ordinate the kind of operation that I have just been talking about.

Q97 Chair: Were you disappointed that the Government is not opting into the Prüm Directive to enable countries to be able to access databases?

Rob Wainwright: Well, I think that is a much more narrow area of police co-operation. I think the Prüm-

Q98 Chair: Do you think we ought to go into Prüm?

Rob Wainwright: It would bring benefits. In my opinion the benefits to the UK are not as essential as they are in the case of other instruments such as the European arrest warrant.

Q99 Chair: Just to be clear at the end of your evidence, you are happy with the 35 that the Government has decided to opt into. Would you have preferred them to have opted into all the others as well in the fight against international crime? Because we were told that some of those directives and some of those measures are actually obsolete.

Rob Wainwright: Given that the UK was already a participant of all 135, then the decision to opt out of some of them runs the risk of having some negative consequences, again at least in theory, of encouraging criminals in certain ways and sending a false message to the UK’s partners in Europe. Having said that, the UK in opting into 35 has made very clear what its intentions are and that it is still, of course, remaining steadfast in its fight against crime and terrorism. If I had to choose the most important 35, then these would be those.

Q100 Chair: Finally, how would it leave you as the British head of Europol if the two criteria set down by the Home Secretary were not met and, therefore, Britain decided not to opt into Europol 2? Would you be able to continue in your post as head of Europol?

Rob Wainwright: In legal terms, yes, because the requirement among the staff regulations is to be an EU national. In political terms, it would make my position very difficult, but that is a factor that should play no part in the consideration of the Government.

Q101 Chair: Mr Wainwright, thank you very much for coming to give evidence to the Committee today. It has been extremely helpful. If there is any other information that you think you could be able to send us that would help us with our inquiry-we have a very short timescale; we have to report to the House by 30th October-we would be grateful to receive it. As part of our inquiry into international crime and terrorism, the Committee will be coming to visit Europol over the next 12 months.

Rob Wainwright: You will be very welcome. Thank you, Mr Chairman.

Prepared 31st October 2013