Home Affairs - Minutes of EvidenceHC 615

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Oral Evidence

Taken before the Home Affairs Committee

on Wednesday 11 September 2013

Members present:

Keith Vaz (Chair)

Mr James Clappison

Michael Ellis

Lorraine Fullbrook

Dr Julian Huppert

Steve McCabe

Bridget Phillipson

Mark Reckless

Chris Ruane

Mr David Winnick

________________

Examination of Witnesses

Witnesses: Kai Hart-Hoenig, German lawyer, and Wojciech Andrew Zalewski, Barrister, gave evidence.

Q193 Chair: This is the resumed hearing of the Committee’s inquiry into the European arrest warrant opt-out. We have given the Home Secretary and Parliament an undertaking that we will have our report ready for the consideration of the House by the end of October. Our witnesses today are Mr Zalewski and Dr Hart-Hoenig. Thank you very much for coming.

If I could start with you, Mr Zalewski. Why is it that Poland has such a bad record in terms of the number of European arrest warrants that it has issued? I do not mean bad in that they have done something wrong, but in terms of the sheer volume of cases that come from Poland. Why is that the case?

Wojciech Andrew Zalewski: Mr Chairman, as always these things are perhaps more complex than meets the eye. It would be difficult to ascribe any particular one factor or some simplistic answer to the whole thing, but I have at least four factors jotted down here that may be of interest.

Chair: If you could discuss them as briefly as possible, I would be most grateful.

Wojciech Andrew Zalewski: Absolutely. First is the actual function of the judicial authority and how it operates. I will just extremely briefly quote Lady Hale, and this is a recent judgment that was delivered by the Supreme Court, last year. This is the case of PH, HH and F-K that was decided on 20 June 2012 by the Supreme Court and there is a telling paragraph.

Chair: Is it a long paragraph?

Wojciech Andrew Zalewski: No, just a sentence.

Chris Ruane: Is it telling?

Wojciech Andrew Zalewski: Yes. I am most grateful, sir. This is Lady Hale, at 45, "Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed and how respectable the life which the offender has led since then."

Q194 Chair: Lady Hale points to the fact that there is a problem in terms of the process in the Polish judicial system that has led to such a large number of European arrest warrant requests?

Wojciech Andrew Zalewski: Yes. In a nutshell that is what is said, so I would agree.

Q195 Chair: Excellent, and the other three nutshells?

Wojciech Andrew Zalewski: The other three nutshells, if I can put it that way, are sort of systemic differences. Our judiciary in this country are incredibly good at trying to give effect to something, which may at times appear extremely alien in terms of ethos.

Q196 Chair: Yes. So, they are very helpful?

Wojciech Andrew Zalewski: Yes.

Q197 Chair: When somebody asks for a request, they just grant the request?

Wojciech Andrew Zalewski: Absolutely.

Q198 Chair: What is the third factor?

Wojciech Andrew Zalewski: What I was going to say is there is a literal interpretation of law in Poland. We have over 300 rules of interpretation of a statute, for example, and it all depends on grammar-

Q199 Chair: So it is the interpretation of the law in Poland?

Wojciech Andrew Zalewski: Yes.

Q200 Chair: What is the third factor?

Wojciech Andrew Zalewski: The third factor is the sentencing guidelines in Poland are at variance to what we expect in this country. It is very easy to get a custodial sentence over four months, for example.

Q201 Chair: Right. For minor offences?

Wojciech Andrew Zalewski: For minor offences.

Q202 Chair: Give me one example? We have heard about the wheelbarrow.

Wojciech Andrew Zalewski: Theft of a bike.

Q203 Chris Ruane: What about a wheelbarrow?

Wojciech Andrew Zalewski: Well, yes, it could be.

Q204 Chair: The theft of a bike in Poland will give you a sentence of four months in prison?

Wojciech Andrew Zalewski: Yes, it could do. It could do.

Q205 Chair: For a first offence? It could do?

Wojciech Andrew Zalewski: As I say, everything is prescribed in statute and there is absolutely no movement in terms of discretion or anything.

Q206 Chair: What is the fourth factor?

Wojciech Andrew Zalewski: The fourth factor, which is more to do with this jurisdiction rather than the Polish jurisdiction, is the whole Schengen idea and how it operates. Of course, as you know, Chairman, we have not been part of this Schengen information system, and also the fact that everybody can now travel with just ID cards, which is a great thing. A judge in Poland could not say, "You cannot leave the jurisdiction, you have to surrender your passport", because an ID card is absolutely essential to exist.

Q207 Chair: Sure. What you are saying is that if this European arrest warrant is kept, and the Government wants to keep the European arrest warrant with a number of changes to legislation, this will still be a problem, because we have not changed either the sentencing guidelines or Polish statute or the attitude of the judges in Poland, which is to deal with strict interpretation. That is not going to change, so even if there are changes made here, it will make no difference?

Wojciech Andrew Zalewski: If I may just say that judges in Poland are doing their level best as well, but they are constrained.

Q208 Chair: No, I know that. Sorry, could you just answer my question? What is the answer?

Wojciech Andrew Zalewski: Yes, I would say that there are fundamental problems that need to be addressed.

Q209 Chair: Which will not change?

Wojciech Andrew Zalewski: Which will not change.

Q210 Chair: Dr Hoenig, in Germany, you have a proportionality test, of which the Home Secretary is a great fan. We will come on to it more a bit later. In terms of the number of warrants that have been issued in Germany, do you have similar information to give this Committee about the number of arrest warrants? We will come on to proportionality later and other members of the Committee will ask about this, but do you have any figures about where Germany is in the league table of asking for European arrest warrants?

Kai Hart-Hoenig: No, but because Germany is very fond of issuing arrest warrants also at the national level, I guess it will be a great deal of arrest warrants.

Q211 Chair: Are you telling this Committee that the United Kingdom changing our position on the European arrest warrant and putting in a proportionality test will not affect the German judges’ decisions to issue these warrants since they are so fond of them?

Kai Hart-Hoenig: Yes.

Q212 Mr Winnick: The question of the European arrest warrant is a very controversial issue, if not in Germany and Poland, certainly in Britain. In Britain we have more controversy over membership of the European Union itself. The argument in favour, as obviously you know, is that the arrest warrant is a very important instrument in dealing with criminality across Europe. Critics say otherwise. What is your view?

Chair: Dr Zalewski?

Wojciech Andrew Zalewski: No, it is just plain Mr.

Chair: I am sure you will be a doctor at the end of the session.

Wojciech Andrew Zalewski: I hope so. I like history and I think history is quite informative, particularly in this case. What we have here, essentially-and I stand to be corrected by Dr Hart-Hoenig here, who is probably much better at this than myself, but we have the impetus to actually put this through-is the 9/11 attacks and the whole criminality cross-border of a scale that was at the opposite end of the spectrum to minor offences. I take it that the Commission-the Commission gets very bad press sometimes-has produced a list of offences, a negative list of offences, which basically said, "You will not issue EAW for XYZ". But that list, I understand, was then overturned politically and now we have 32 offences-I hope I am right-on the actual list, which are the top end offences for which no dual criminality test is required. Then we have a whole host of offences that still satisfy the four months, for example, on a conviction case, which fall below that. Sorry to be long-winded. As a tool it is very useful, but once you think about the Schengen area and the rationale of why it was implemented, because there were no borders in the Schengen area-

Q213 Mr Winnick: I think it is really a yes or no on this one. Do you think that if the arrest warrant is changed according to what the Home Secretary has in mind, and if Parliament so approves, that it will harm or not the fight against criminality in Europe? Difficult?

Wojciech Andrew Zalewski: I think that is probably too difficult for me to answer, but in principle I think it had to be done because if one is thinking in terms of one big jurisdiction, as a sort of Schengen area, then one needs to have a mechanism-I hope Dr Hoenig agrees-that actually does what the European arrest warrant is supposed to be doing. Transnational borders do not exist and one has to have a mechanism by which one pursues certain individuals and brings them to book. Where we stand in this country, so far as that is concerned, perhaps needs to be looked at very carefully.

Q214 Mr Winnick: Your fellow witness told the Chair that Germany uses the European arrest warrant quite a lot. Do you think that if it was changed in the manner in which the British Government has in mind-the same question I put to your fellow witness-it would undermine in any way the fight against crime?

Kai Hart-Hoenig: I believe fighting crime effectively in the long run needs to heed the rule of law and the current concept of the European arrest warrant in many respects infringes the rule of law, so in the long run the capability to be a tool to fight criminality will fade away. What I know from UK-I will not try to interfere in your home turf-is that there are improvements of a certain system but the essential question should be whether the concept needs a remedy. I guess it needs a comprehensive remedy. Why? Because the idea of mutual recognition based on mutual trust needs to be set right. The point is that there is no mutual trust. Therefore I do not trust, for example, the Romanian or-sorry-Polish system. Insofar it is needed to reconstruct the framework decision and the concept in a way that these are building up trust, because we cannot rely on trust currently because of the absence of common standards.

Q215 Chris Ruane: On this issue of commonality, what are the costs? If a Polish citizen steals a bike for £100 and then comes over here, the whole bureaucracy to get him back there may cost thousands, tens of thousands of pounds. Is there no proportionality that could be introduced? It does not show Poland in a good light if you are trying to take Polish citizens who have stolen wheelbarrows and drag them back to your own country. Is there nothing that you can do on the Polish side to screen those and say, "This is reasonable, this is not reasonable"? A simple measure?

Wojciech Andrew Zalewski: As an English barrister, I find great difficulty in commenting on that in full. It would be a great thing to do, but one needs to understand that this is a post-totalitarian era for places like Poland. They only just managed to start existing in 1997 when the new constitution was brought in. Things like judicial authority or anything in terms of judicial function, as we understand it, which has certain aspects to it, is completely alien. The system did not trust an official, there was no room for manoeuvre, and that is how it is set up still, I am afraid.

Q216 Chair: You do not see that is going to change in the near future?

Wojciech Andrew Zalewski: No, I think there are moves. Obviously the judiciary cannot do it themselves. There needs to be a political movement in that direction.

Q217 Dr Huppert: Dr Hart-Hoenig, can I come back to understand a bit more about the proportionality test in Germany? It would be helpful to understand how it works for outgoing warrants but also to hear a word on your take on how that is fitted in with the wider European frameworks. Essentially what I am asking is, could we do the same thing?

Kai Hart-Hoenig: The proportionality test is a requirement for issuing an arrest warrant at the national level. Usually, at first an arrest warrant is issued at the national level and then it is just translated into a European one. But as to proportionality we are also so far not as good as I would like it to be because, for example, a sentence without probation must not be expected. It needs not to be one and so the prerequisite for being proportionate is also very low. But putting it the other way round, if it is a proportionality test on incoming requests, we are only looking at whether it is grossly disproportionate. We are not substituting the judgment of the foreign judge but if we believe it is grossly disproportionate – I already mentioned some examples – then we would say no.

Q218 Dr Huppert: I suspect we are using the terms in and out in the opposite sense, whether the request is coming in or the person is coming in.

Kai Hart-Hoenig: Yes. But the proportionality test operates in both directions.

Q219 Dr Huppert: But in terms of other states asking you, you have the proportionality test, and that looks only for gross disproportionality. How is that defined and have you had comment from other European countries about that? Have they resisted your introduction of that proportionality test?

Kai Hart-Hoenig: Altogether not, because it is a right under our constitution so all judges, for decades, are trained in looking at proportionality and it is now also enshrined in our International Legal Assistance Act and it is also an element of the European public order now.

Q220 Dr Huppert: Are there any other countries that take a similar approach in terms of requests coming in and people going out, looking at a proportionality test? Are you aware of other countries that do that? Are there any barriers that would stop them?

Kai Hart-Hoenig: I would say you have to distinguish theory and practice. It is completely different. If you are looking at the practices of different higher regional courts, it is also completely different. Some are just taking a formalistic approach, doing more or less nothing about proportionality, others are taking it quite seriously. There is no appeal just because the blue heaven is above the higher regional courts, unless it is the Constitutional Court, but such cases are rare.

Q221 Dr Huppert: Would you suggest that we follow the German model for this and should proportionality tests be conducted by the issuing state or the receiving state?

Kai Hart-Hoenig: My suggestion is to include specific provisions, not a general rule as to proportionality. For example, it should not be possible to request the enforcement of a sentence that is not longer than, say, one or two years. If it is just a matter of discretion, I am really concerned the practice will just continue.

Q222 Chair: Yes, but you have told the Committee already that even if we change to a proportionality test, it would not affect Germany, because Germany would still be requesting because they are very fond-

Kai Hart-Hoenig: That is right. There will be no impact if it is just about a general rule.

Q223 Mr Clappison: Thank you very much. It has been extremely helpful listening to your answers and, listening to some of the questions, I have to say I am tempted to the conclusion that people who support the European Union on these matters are prepared to throw civil liberties out of the window and just let the EU juggernaut steamroller justice in all the individual nation states. Listening to what you have said, wouldn’t it be simpler if we just had individual agreements between different nation states in Europe, as between the United Kingdom and Poland or Germany, and we could build up the mutual trust that you have talked about rather than having a one-size-fits-all solution dictated by the European Union?

Wojciech Andrew Zalewski: At times like this I wish I was a politician, but I am not. Yes, absolutely. In a sense one could argue that is the case, but of course one needs to be fair in the sense that, for example, the Schengen information system, which I understand the Government is putting in, I think in October of next year, is well overdue.

Chair: Yes, Mr Zalewski, we know about the Schengen information system, Mr Clappison has put to you this point-

Wojciech Andrew Zalewski: As an English lawyer, I must agree with him.

Q224 Chair: You agree with him?

Wojciech Andrew Zalewski: Yes.

Q225 Chair: You think it is better to bilaterally negotiate with the 27 countries? Dr Hart-Hoenig?

Kai Hart-Hoenig: Either yes, or it is about creating a European Union of different speeds and so, as it is discussed, as with the currency, maybe there are a couple of member states where I have more or less trust and there are others where there is none. It could be multilateral, but it is premature to have the one-size-fits-all solution.

Q226 Mr Clappison: One other point on this. Where people subject to an arrest warrant are concerned at their potential treatment after they have been extradited, to what extent can they use the European Convention on Human Rights to prevent their extradition? We took some evidence yesterday from people who, after the alleged offences had taken place, had returned to this country and then they had been extradited. They were very worried as a result of what had happened to them at the time of the alleged commission of the offences: the way in which they had been investigated, the way they had been dealt with, the lack of interpretation, the lack of justice, the lack of opportunity to put their own case. They then come back to this country and later on are extradited back.

Kai Hart-Hoenig: This convention is a very good convention. However, in Germany, it does not has a constitutional status. It is considered as something like a federal law or just a convention, but the Constitutional Court has found a way to construe our fundamental rights in the light of the convention. The point is if you use the convention to remedy an arrest warrant before the European Court of Human Rights you have to go the ladder up exhausting all available remedies, that takes you years, so in this regard you can just ignore it in general.

Q227 Michael Ellis: Gentlemen, listening to you I am reminded of the old saying by William Blackstone, I think in the 1760s, "It is better that 10 guilty persons escape than one innocent suffer". You have heard of that?

Kai Hart-Hoenig: Of course. It is very famous, worldwide I guess.

Michael Ellis: The reality is that part of the defect in the European arrest warrant system is that it seems to disregard that principle, inasmuch as when you apply a one-size-fits- all protocol, human scenarios do not tend to fit that protocol. We get manifest injustices like those this Committee has heard about and that clearly is of great concern to those who are interested in civil liberties. But, do you think that the proposed reforms will have some beneficial effect on that? For example, isn’t the issue of proportionality rare? My understanding is that the United Kingdom has that proportionality test with other countries already, the United States for example. So we do not extradite people to the United States unless the likely sentence is 12 months or more. Wouldn’t it be quite simple to have a system whereby unless the gravamen of the offence is one likely to be met by that type of sentence in this country, it simply is not worth sending them?

Chair: Dr Hart-Hoenig, would you like to answer that question? Do you know what the question is?

Kai Hart-Hoenig: Yes, of course. A general proportionality test requirement will change nothing. The problem with the presumption of innocence is that what is required is a strong suspicion; it is a very dynamic, blurred phenomenon. At the very beginning of an investigation, the requirements for strong suspicion are close to nil, but close to bringing charges they are very high. That means that the requirements under the same criterion are low at the very beginning. That means you often see arrest warrants issued when it is just the police minutes and a certain idea of the case does exist. So what is needed is, for example-I guess it is your system- that extradition is only allowed if it is at the pre-charge stage.

Michael Ellis: Past the pre-charge?

Kai Hart-Hoenig: Or even past pre-charge, because otherwise you have this wide area where it is far from clear how robust, how lasting the evidence is.

Wojciech Andrew Zalewski: I was just going to say two things. One thing is I think extradition may be easier to live with if it was just to do with the 32 really major offences and that the rest would be taken care of in some other way. That might be a good way of dealing with it. But also there may be a greater co-operation, for example, insofar as the lower end of the scale is concerned, between the probation systems in Europe, which is completely missing. Another force that has been taken out of the equation is the politician, which I think might be a good thing, one, because politicians can actually be accountable and, two, hold the balance of something, or make sure that something is in check. All that has been taken away.

Q228 Chair: Are you suggesting that at the end of the day the Home Secretary should make these decisions?

Wojciech Andrew Zalewski: No, but she is part of the equation, which may be balancing the system out.

Q229 Michael Ellis: In some cases there is a political dimension?

Wojciech Andrew Zalewski: No, absolutely, but what I am saying is I would loathe a system where the judiciary was being pushed to make political decisions, if that were the case.

Q230 Michael Ellis: A couple of the remedies that have also been spoken of to improve the system that currently exists with European arrest warrants is to permit the issuance of bail for those people, pending proceedings. If they are going to be extradited to Poland or wherever and potentially spend months or even a year or two in jail pending proceedings, that clearly can lead to a manifest injustice. If they are permitted to be on bail or if bail is at least possible then that may reduce the injustice if they later go on to be acquitted. Would you support that?

Kai Hart-Hoenig: Only if this bail is granted on the home turf, or it is the type of bail that means they can return until the proceedings take place, because if they are deprived of all the social environment, the damage is done.

Michael Ellis: Yes, I accept that. Thank you very much gentlemen.

Wojciech Andrew Zalewski: I would second that.

Q231 Dr Huppert: I wanted to follow up from Mr Clappison’s question. He was advocating the creation of some 351 bilateral treaties to deal with as an alternative to the European arrest warrant. Do you think that there is any reason to be certain that such bilateral treaties or return to the pre-existing Council of Europe approach would necessarily be better from a civil liberties perspective than a European arrest warrant, if reformed as the Home Secretary has suggested and perhaps with a proportionality test?

Kai Hart-Hoenig: Provided the parties are sharing common standards in a substantial way.

Wojciech Andrew Zalewski: I agree.

Q232 Bridget Phillipson: Regardless of the means by which you would extradite or otherwise, is part of the issue the lack of speed in proceedings in some member states? What we heard yesterday was the length of time it can take for cases to come to court, and I have seen that in constituency cases where it can take two or three years. There is very little the British Government can do because if that process applies equally to Spanish citizens in Spain, a British citizen is not being disadvantaged by that length of time, but clearly they are because it requires them to reside in another country pending the outcome. What more can be done to speed up proceedings in some member states?

Kai Hart-Hoenig: You are speaking about the regular proceedings not the extradition proceedings?

Bridget Phillipson: Yes. It appears to be connected as well to the length of time it can take for the legal process to-

Kai Hart-Hoenig: I am only doing white collar crime and tax-related crime. If you have a very complex cross-border case it just takes years and there is more or less no chance to obviate these problems. So it is just because of presumption of innocence, again. You have to have a bail-out system in place that works and that will keep the person who has to be seen still innocent in his regular, natural environment. It is the only solution.

Wojciech Andrew Zalewski: I agree. I don’t think I can add any more. It is a fundamental, universal point.

Q233 Bridget Phillipson: In some of the cases I have seen, it can take two or three years for a case to come to court and in that time you are prevented from returning to your home country. It seems like a-

Kai Hart-Hoenig: Investigations in white collar crime proceedings sometimes take many years. The longest case I had took more than seven years, just the investigation.

Q234 Bridget Phillipson: Do you think there is a role for training? To what extent could that be improved in member states in exercising the European arrest warrant?

Kai Hart-Hoenig: Who needs to be trained? The German officers are well trained; the prosecutors specialise in extradition issues. Who needs to be trained are lawyers because they don’t have the UK legal aid system. They have just no idea and they have no time to start working on it. So, if someone needs to be trained, then it is the lawyers.

Q235 Bridget Phillipson: Would you like to add anything?

Wojciech Andrew Zalewski: As Dr Hart-Hoenig has just said, we do have a legal aid system and we are extremely lucky to have one, but equally, as my head of chambers has always said, the primary duty is to the Legal Aid Board in the running of those cases, particularly the appeal cases. One has that at the forefront of one’s mind and sometimes one has to say to the client, "I’m sorry, you have no merit in your case" and that’s that. But luckily we do have quite a few lawyers who are very good at extradition, and of course there is the dedicated extradition unit here.

Q236 Bridget Phillipson: Is there, therefore, any solution to that, because that is unlikely to change? Would training lead to any improvements, given that we are not going to alter the fact that we have a legal aid system but some member states do not?

Kai Hart-Hoenig: There is a huge difference in legal aid systems. In Germany you can earn a maximum of €6,000 in the period of investigation-not per day, for the whole period. If it takes seven years, it is also only €6,000. If you have a long-lasting extradition case, no lawyer can afford doing it on a legal aid basis. That means the lawyers who are working on an hourly fee basis, as I do, need clients that can afford it. Most clients cannot afford it, just if it is a petty offence, and colleagues who are only working on a legal fee basis cannot afford to be trained to know this very complex extradition law. That is how it stands.

Q237 Lorraine Fullbrook: Could I ask a supplementary to that? As well as lawyers, is there not a case for training the police in member states, as well, when they actually make arrests for, if you like, spurious cases, traffic offences for example? Is there not a case for police training too?

Kai Hart-Hoenig: But the police, at least in Germany, have nothing to do with extradition matters. It will be only prosecutors.

Q238 Lorraine Fullbrook: But what about charging in the first place, though?

Kai Hart-Hoenig: We don’t have that system, sorry. From the very beginning, from the inception of the case, even if the police starts it, actually and legally it is controlled and supervised by prosecutors.

Q239 Lorraine Fullbrook: Is that the same in Poland?

Wojciech Andrew Zalewski: I am not a Polish lawyer. I can only comment from my experience of Polish cases in the UK. I think that the system has been borrowed from Germany, the way Poland is operating in terms of law and stuff like that. I would probably say that it is very likely that Poland is operating on the same principle, and also there is no legal aid. We take things for granted, for example we have a lawyer in a police station in a cell and so on; nothing like that happens in Poland. A lot of judges have expressed concerns with regard to that. So there is a huge difference jurisdictionally, particularly insofar as this country is concerned and other states in Europe, such as Poland and eastern Europe, central Europe.

Q240 Chris Ruane: In the evidence we took yesterday from British subjects who have been extradited, to Portugal and Greece and from the evidence we have heard from you today, things are not working well, things can be improved. What actions could the British Government take to improve the procedure in the UK and what actions could it take to improve procedures at a European level?

Kai Hart-Hoenig: I am not an expert to advise on what the UK should do. I guess if it is about your law, and given the majority of this stuff, I do not rely on principles, a principle-based approach, I would like to have crystal clear criteria. For example, you mentioned Greece. You can get 10 years imprisonment for just one small portion of cocaine, very small, as a consumer, and so what is needed are clear criteria about on what requirements you are going to surrender and where not. What is now in Measure C, part 1, which passed the European Parliament yesterday, means you need to have dual representation. We have requested that for a long while, and maybe now-it is not yet implemented-we will see how it will work out practically in all the countries.

Wojciech Andrew Zalewski: I was just going to say a couple of things. One thing is that perhaps other agencies can co-operate. We have a lot of cases that probation in Poland are recalling and issuing extradition orders for, which are very minor offences, for somebody who perhaps did not get in touch with the probation or left and got a job here and so on. Even judicial authority as a concept is a thick concept and has a very wide meaning. Then probation in various member states can co-operate with each other so that perhaps EAWs are not issued for, say, breach of probation. I had somebody who ran a case in the first tier immigration tribunal for not being invited back into the UK, who had a letter from probation in Poland saying that he is perfectly at liberty to go to the UK and work there as long as he kept in touch with them. I think if there was more co-operation on a basic level, outside of the 32 offences, between the probation systems then a whole host of EAWs could be avoided at a stroke.

Q241 Chris Ruane: Finally, will the European Investigation Order and the European Supervision Order reduce the level of demand for arrest warrants?

Kai Hart-Hoenig: I fret about this. This will not really be of a significant impact because it is just about minimising all the measures that are provided for in this instrument. The supervision order is something that leads in Germany to the suspension of the execution of an arrest warrant but the arrest warrants are usually based on grounds of risk of absconding, so there will be no relief in this regard. As to investigation, that could improve the situation, given the Polish cases, because it is often just about interviewing suspects but the Polish authorities are issuing arrest warrants. In this regard, maybe an improvement will happen.

Q242 Chair: I am going to ask you both a final question. You are both very distinguished lawyers, you know this subject matter very well, and you have looked at the Home Secretary’s list. You know the task that we have been set, along with the Justice Committee and the European Scrutiny Committee, to prepare a report for Parliament, so this is serious stuff. A lot of Members of Parliament are going to be reading our report and making their decision as to how they are going to vote on the basis of what this Committee says. I want a brief answer from both of you. Having looked at the list of 100 measures, including the 35 measures that the Home Secretary wants to opt in, do you think we should support this list-it is your opinion I am seeking-or are there still problems with the 35 that we are going to opt into, including the European arrest warrant? Mr Zalewski?

Wojciech Andrew Zalewski: It is very kind of you to describe me as such. To be honest, I find it difficult to come to a definitive view, but the European arrest warrant is definitely an area that needs to be examined in some detail. With regard to-

Q243 Chair: So, you are not happy with opting back in, even with the four safeguards that the Home Secretary told the House about?

Kai Hart-Hoenig: The European arrest warrant concept is still rather an idea – the first piece of legislation in the framework of mutual recognition based on mutual trust – made operational than an instrument which satisfies all requirements under the rule of law. Just changing this European arrest warrant system pragmatically may lead to improvements. But I believe, only a comprehensive review and re-negotiation of the flawed framework decision will remedy all shortcomings of the European arrest warrant system.

Q244 Chair: You are sounding like a typical lawyer. I know you have divided loyalties, and England will be playing Poland on 15 October, but do you think that we should opt into the European arrest warrant as currently drafted, with the changes that have been elegantly proposed by Theresa May? A yes or a no would be helpful.

Wojciech Andrew Zalewski: It is very difficult. More work needs to be done, I think.

Q245 Chair: More work? So, no, at the moment?

Wojciech Andrew Zalewski: Not at the moment.

Q246 Chair: Dr Hart-Hoenig, can you be clearer?

Kai Hart-Hoenig: It is better with these safeguards than without, but I would not vote for opting in.

Q247 Chair: You would not?

Kai Hart-Hoenig: Yes.

Q248 Chair: Thank you very much, you have been both extremely helpful. We are now going to hear from the Cabinet Minister who negotiated the opt-out, Charles Clarke. You are welcome to stay in the body of the hall if you do not have to rush back to court, but thank you very much for your extremely helpful evidence.

Wojciech Andrew Zalewski: Extremely grateful for being invited, thank you.

Examination of Witness

Witness: Rt Hon Charles Clarke, former Home Secretary, gave evidence.

Q249 Chair: Mr Clarke, welcome back to the Home Affairs Select Committee.

Charles Clarke: Thank you very much, Mr Vaz. It is very nice to see you again.

Chair: We are most grateful to you for coming here. The context of this is that the Home Secretary, one of your successors, has asked this Committee to look at the measures that she is proposing to opt in and opt out of and she has asked us to deliberate to prepare a report for Parliament by 30 October, along with the Justice Select Committee and the European Scrutiny Committee. We have asked you here because you were the Home Secretary who enabled us to have this discussion, because you negotiated the opt-out. If I could start by asking you, why did you do that?

Charles Clarke: The sequence of events is not quite as you describe, Mr Chairman. I finished as Home Secretary in May 2006 and the European Council under Angela Merkel, the German presidency, decided in June 2007 that it was going to set about the process of establishing a further renegotiation of the Lisbon Treaty. That followed the Declaration of Berlin on 25 March 2007. Following the European Council, the intergovernmental conference started in July 2007 and the treaty was then signed in Lisbon on 13 December 2007 and, as we know, came into force in December 2009. So I was aware of the run-up to the conversation but I was not in office at the time of the process when the British Government was deciding its view.

Q250 Chair: Did you support the view that we should opt out?

Charles Clarke: I did not actually, no. I felt that the opt-out was suggested by those who were more anti-European in the Government, and there were some at senior levels in the Government, because they wanted to keep open the possibility of not being as engaged in the justice and home affairs pillar as we in fact subsequently agreed to do. I think the reason was entirely political. It was not about justice and home affairs, law and order; it was not about how to best deal with the threats from international crime and so on. It was because of the political difficulties, which you as a former Minister for Europe are more than familiar with, of getting issues of this kind through both Houses of this Parliament. Having the opt-out in place gave the possibility that people could say if we do not like it we could return to it. But I do not believe there was, even at the time it was carried through, any view that an opt-out was a worthwhile thing to do, still less do I think there would have been any intention-

Q251 Chair: You would have preferred for us not to have opted out and you certainly do not like the idea that we are opting out of any measures. In an interview with Justice Across Borders on 22 January you said that opting out and then attempting to opt back into 35 measures will universally weaken our ability to fight crime and is a terrible idea, whereas Yvette Cooper-I am not saying you should agree with everything she says-says that it is good to opt out of some of these measures because they are obsolete, they do not exist any more.

Charles Clarke: I think that the opt-out was a terrible mistake by this Government and I think the Labour Party-

Chair: By your Government?

Charles Clarke: By the current Government, by the current Coalition Government. I think that the Labour Party should have taken the position of opposing the opt-out from the very beginning. I think there are no benefits in the opt-out for preventing crime. The biggest threats we face-serious and organised crime, drug dealing, people trafficking, illegal migration, fraud, internet crime, terrorism-are all international, all of them require close co-operation between police and security organisations and close co-operation between justice organisations, for example, in the form of the European arrest warrant to bring people to justice. I believe that the best way to fight this international crime is to strengthen international co-operation rather than to weaken it. I believe that the reasons why this Government has decided to do this are entirely political in relation to the attitude to the European Union and not at all about law enforcement. That view has been strengthened by the announcement by the Home Secretary of the decision to seek to opt back into 35 measures, including the European arrest warrant, which I think gives very little even potential benefit at all for those who think there is some benefit in opting out.

Q252 Chair: You have looked at the list and you think 35 is not enough. Obviously you do not want to opt out in the first place, but if we were going to opt back in, since your Government gave us the chance of opting out, you would like to go back to all 135?

Charles Clarke: I think, and I know this from a number of conversations, that the Commission would agree, and many in the European Union would agree, that 133 is far too many. You can get to a position of, say, 35, 40, 50, and you can do that perfectly well by agreement. I do not think you need to go through this opt-out process in order to get there.

Chair: That is very helpful, thank you.

Q253 Dr Huppert: Thank you Chair, and welcome, Mr Clarke. I read in the EDP that you are moving to Cambridge, so I look forward to-

Charles Clarke: I am going to be one of your constituents. I am afraid that I think I am unlikely to vote for you, but it is not because I do not regard you as an excellent Member of Parliament.

Q254 Dr Huppert: Thank you very much for that praise-may it appear in literature. It is very good to hear your comments about the problems with the opt-out in the first place, and I do agree that it would have been helpful had those on the Labour Front Bench said that we should not opt out in the first place. It felt very lonely for those of us who were arguing that, but we are where we are.

Do you think that the effort that has been taken, from a police perspective, a parliamentary perspective, a Government’s perspective, from all the officials who have worked on it and the negotiations that will happen in Europe in order to deliver an opt-out and opt-in, would have been worth it at all?

Charles Clarke: In no respect whatsoever. I see no gain and massive potential risk. I didn’t respond to part of the Chairman’s earlier question about the risks involved. I think it is not at all clear that we will be able to opt in in the way that is proposed by the Government. It is quite likely there will be egg on the face in a very substantial way for this whole process.

The fact there is required to be a parliamentary vote in both Houses also means that if there is any doubt about the actual implementation of the opt back into the 35, there is a serious possibility of the Government being defeated in one or both Houses, in which case the whole issue would have been a total disaster. As it is, it simply would have been a waste of time with no value whatsoever.

Q255 Mr Clappison: May I say to you, Mr Clarke, welcome back, as somebody who was on the Committee when you used to come and give evidence to it. You were always very frank and very honest when you were giving evidence before, and left nobody in doubt as to your position. You also had at one point to take responsibility for something that was not your fault at all, frankly, if I remember the circumstances correctly. Can I take you back to the background to the decisions that were taken? Were you the Home Secretary at the time of the constitutional treaty proposals, which were the predecessor of the Treaty of Lisbon?

Charles Clarke: Yes.

Q256 Mr Clappison: The United Kingdom’s membership of the constitutional treaty was subject to a referendum promise. Is that correct?

Charles Clarke: Yes, it was.

Q257 Mr Clappison: At that time, the constitutional treaty proposed that the United Kingdom would be part of the justice and home affairs chapter of that treaty. That is correct, isn’t it?

Charles Clarke: Yes, it is.

Q258 Mr Clappison: One of the reasons that was given for saying that the subsequent Treaty of Lisbon was different from the constitutional treaty was that the United Kingdom was not part of the justice and home affairs chapter of the Treaty of Lisbon.

Charles Clarke: That is one of the reasons that was given, yes.

Q259 Mr Winnick: Just like old times. You have said, in effect, in reply to the Chair, that this is really political. Therefore, would it be right, regardless of the technicalities-we are examining a number of witnesses who are very proficient, to say the least, in European law and aspects of the European Union-that the attitude one takes politically, as politicians, over opting out or opting in depends to a very large extent on one’s attitude to continued membership of the EU?

Charles Clarke: I think that is true, but there is an interesting qualification, which has surprised me. Another classic political issue, upon which you in your own life have been very active on in the discussion, is on the security liberty, the crime prevention argument. I am surprised that this issue has been dominated by the politics of in or out of the EU, as you suggest, rightly in my opinion, and less preoccupied with the effectiveness or otherwise of policing and justice measures to co-ordinate to contest international crime. That is also a political issue that has often been there. I think your analysis is completely correct, that the dominant question has been in or out of the EU.

Q260 Mr Winnick: Do you think to a large extent the present Government are doing this to appease, if that is the appropriate word, the anti-European element, be it in the Government party of the moment or generally in the country where, as you will admit no doubt, there is a good deal of hostility to continued membership of the EU?

Charles Clarke: I do believe that is the case. I do believe this particular decision was not thought through, and there are many people who have not understood the consequences of this. The consequences will be reduced if we do succeed in opting back into those 35 measures, which is the bulk of measures that are in our interest. There are others that it would be beneficial to come back in, but the key 35 are there, including the European arrest warrant. But if anything went wrong with that process, I think there are very serious consequences indeed.

I chaired a session held by a think-tank about the implications for the Irish relationship, for example, where a former Irish ambassador to this country made very powerful and strong remarks about the dangers for security in Northern Ireland of this issue going wrong in some respect. People have not thought it through. They have just gone to the knee-jerk politics rather than considered it fully.

Q261 Mr Winnick: Two further brief questions. Clearly then, it is your view that opting out, be it the European arrest warrant or other aspects, would undermine the fight against criminality in Europe?

Charles Clarke: Absolutely and very strongly. As I say, the secular trend, which I observed very closely both as Police Minister in the late ’90s and then as Home Secretary, is of the increasing internationalisation of crime syndicates that are organising, for example, people trafficking, for example, drug dealing, and they impact directly on our streets. It used to be the case, for example, that 75% of the heroin in this country came up through Kosovo. The question of how you contest that and deal with that is an extremely important issue, including terrorism issues as well, and that requires the police to co-operate very effectively. It also requires judicial co-operation, as in the European arrest warrant, to bring people to trial in the most effective way.

Q262 Mr Winnick: Mr Clarke, you are a very senior former politician and you have certainly not given up politics. You have emphasised the political aspects and I have asked you questions on that. My last one, and you have spoken about it in answer to my question, is about the Government part. Would it be unfair to say, to a very large extent, that you represent on this issue, if nothing else, the Blairite view of the Labour Party towards the EU?

Charles Clarke: I reject the word Blairite. I always have. Indeed, I went so far as to write an article in the New Statesman. I think it was not an effective and accurate definition of somebody’s political position. But I certainly would not claim to represent a majority view and I certainly would claim to be more pro-European, if I can put it like that, within the Labour Party than is the current centre opinion within the Labour Party, and I regret that. I think, in fact, our future comes from more co-operation not less. But the arguments around this are not only about the European Union. They are also about the extent to which we co-operate internationally in fighting crime, not only in the European Union. Obviously, it is a very important component, but it is wider than simply the EU.

Mr Winnick: That is a very frank and honest answer. Thank you very much.

Q263 Michael Ellis: Mr Clarke, you have made some political points in your evidence so far. You confirm, of course, that it was Labour that gave this country the option of opting out in the first place, was it not? So you are complaining now, are you, that you do not like it that that exercise that your Government gave is now being undertaken?

Charles Clarke: It is not required that it be undertaken. The opt-out is an option, and the Labour Party gave the option in the negotiation for the treaty. That was an option that is open to the Government now and open to any Government up to five years. It was not a requirement, indeed a suggestion, of the last Labour Government that anybody should actually take up that option.

Q264 Michael Ellis: You have been rather dismissive, suggesting that it must all be about politics that this opt-out be even considered in the first place. But surely you would have to accept-you went some way towards doing that just now, in an answer to Mr Winnick-that there are some Labour voters who are also sceptical about Europe and its powers and the way that those powers have developed. Would you accept that?

Charles Clarke: Of course.

Q265 Michael Ellis: Effectively, you are a personal player in the game, if I can put it that way, in that you are the person who was Home Secretary when these powers were negotiated, and you do not like the idea that they now be resiled from. Is that the problem?

Charles Clarke: I do not think that is an accurate description at all. I was a personal player in the game. I was a pro-European member of the Labour Government and I was in the Cabinet at the time of the referendum, which Mr Clappison asked about earlier on. I did not think that we should have had a referendum at that time but I lost that particular argument. We should not have put that forward, in my view. I have a set of views about this.

But the central question for this discussion is not about the pro or anti EU point. It is about what is the implication for fighting crime and reducing crime for the people of this country, and I think that should be the top consideration. So just to be absolutely clear, if I were clear that opting out of a number of these measures would improve this country’s ability to fight crime, I would favour it despite my generally pro-European stance. My regret is that the debate has taken place, such as it has been, on a relatively narrow political basis, pro or anti EU, rather than on law and order.

Q266 Michael Ellis: I understand that, so can I come to that point? I presume you would accept that innocent people are also entitled to justice?

Charles Clarke: I do, funnily enough.

Q267 Michael Ellis: Of course. I make that point because you have spoken hitherto, in answer to the questions from my colleagues, about justice being effective by those who have done wrong being punished for what they have done. I do not think anyone in this room would disagree with that, but also a balance has to be drawn, does it not? This is always the political question that has to be dealt with. A balance has to be drawn between that and achieving the ends of justice, without being unjust to innocent people. I do not accept that there are serious, fundamental flaws within the system as it currently exists that have led to manifest injustice for innocent people.

Charles Clarke: You can only be referring to the discussion about some aspects of the European arrest warrant having been used in a disproportionate way by some countries.

Michael Ellis: I am.

Charles Clarke: That particular, narrow question is a fair point, and I think it is true. It is one that is accepted by many people throughout the European Union, including by the Commissioner concerned, Madame Reding. I think there is a general consensus-I have talked to a lot of people about this-of a readiness to make reform to try to reduce what I will call the disproportionate use of the European arrest warrant that some countries have engaged in. If that was your banner, I would be behind you. I think it is a correct thing to do. But that is not in fact the banner that this opt-out is being fought behind. The banner is, "Let’s chuck out the European arrest warrant and everything about it". If you invite me to tell you a story about, I will, but I will leave it to one side.

Chair: Are you done, Mr Ellis?

Michael Ellis: I think I am.

Chair: One final question.

Q268 Mark Reckless: Let us hear the story.

Chair: Is it a long story, Mr Clarke?

Charles Clarke: I can make it particularly short for you.

Chair: Excellent.

Charles Clarke: There was a long case of a man who was accused of placing a bomb on the Metro in Paris, and he could not be extradited from this country to Paris to face trial. As Home Secretary, I had to deal with the Minister of the Interior, Monsieur Sarkozy, to discuss the question of how we could get this done. The only way it could be done would be if the French Government had come to the British court and say in court that the individual would get a fair trial in France, which the French Governments, traditionally, had always refused to do because they thought it was beneath their dignity to go to another country to say, "We do have fair trials in France". This case had gone on for literally a decade, and eventually I persuaded the French Minister to send somebody to the court in order to make that case, which he did. The man was then extradited and then had a fair trial.

My point about this little story is that that process, on a suspected terrorist, had gone for over 10 years and did not have any process, precisely because we did not have a European arrest warrant or anything of that kind.

Q269 Chair: But isn’t the answer, which has been put by those who are concerned about the European arrest warrant, to negotiate those bilateral treaties with individual countries? If we had such an agreement with France, the bomber would then have been able to go. It just means a little bit of hard work, but you can get all those agreements in place, can’t you?

Charles Clarke: One of the terrible misjustices that occurred when I was Home Secretary was if you went to the extraditions unit in the Home Office at that time, you had a large number of cases that were just hanging around for literally years and years and years because such agreements had not been agreed, including with countries within the European Union.

Q270 Chair: But they can be, if the countries want to do it?

Charles Clarke: If they want to, but that is why the European arrest warrant, which was signed when I was Home Secretary, was such an important advance. Of course, the classic case is the one you are more than familiar with, of the suspected bomber, a fortnight after 7/7, who was arrested in Rome under that process, or you have the whole of the Costa del Crime process, where we had all of those-

Q271 Chair: So your view is that it will take too long to get these treaties negotiated?

Charles Clarke: Much too long, and it will not happen.

Q272 Steve McCabe: I wanted to ask about Mr Ellis’s concerns about the European arrest warrant. Do you think that the proposal for the European Supervision Order would go quite a long way to addressing some of his concerns, without the need to opt out and take the risk that you have been referring to?

Charles Clarke: I think it certainly does, and there was a time when I was worried the Government was not going to work with the European Supervision Order. I am delighted it has, and I completely agree with your analysis. It does go some way towards dealing with it. I also believe it illustrates what I said in answer to an earlier question, that there is a willingness within the European system to relook at some of these questions to try to deal with some of the problems that there have been.

Q273 Mark Reckless: Mr Clarke, you were saying earlier that you foresaw a risk of a proposal to opt back into a package of measures being defeated in one or both Houses of Parliament. Could you explain a little more what considerations might apply and why you think that?

Charles Clarke: My greatest worry is that opt-ins will not be agreed in the European Union. They have to be agreed by unanimity, as you know, and any European Government can simply sabotage any of the opting back in, for whatever reason. Unfortunately, one of the worst aspects of the European Union is the horse trading that goes on on all kinds of issues. We do not know what prices will arise. For example, the Spanish could say, "We will not agree to all this happening unless you do X or Y or Z on Gibraltar", or whatever it may happen to be. I think that is a very serious problem. The reason I made the case then about the House is, if you take the two Houses, the House of Lords has had a very good Select Committee report, which I am sure you will match and go past in the quality of your report. If you look at the political make-up of the Lords, I do not think it is at all clear-cut that the Lords would agree to a motion to opt out if the opt-ins are not back there again. There are many Liberals in the Lords who have said to me that they will not vote with the Government on this question.

As far as the Commons is concerned, I think there is even a question as to whether the Liberals in the Commons would vote with the Government if we did not succeed in getting the opt-ins back on the process that we have. I think it is very likely the Labour Party in the Commons would vote against the Government unless the opt-ins had been secured. If the opt-ins are secured, which is obviously what the Home Secretary hopes will happen, then there is a good chance of it being agreed in both Houses. But if the opt-ins are not secured, or if there is a time factor or a delay, or a renegotiation takes place or whatever that takes us past the times that we are talking about, I think there is a real risk to the Government in both Houses.

Q274 Mark Reckless: You have identified one set of risks there Just slightly on the other side, I know some people in the Labour Party, and indeed in the Liberal Democrats, have said they would like us to opt back into more measures, and there are some in particular they think we should opt back into that which the Government is not proposing. There is also the issue with the European arrest warrant, and we have just heard from two very prominent European lawyers how they would advise us to vote against opting back into the EAW as the Home Secretary’s changes are insufficient, in their view. Will there be some opposition, potentially, from people who feel the measures do not go far enough?

Charles Clarke: I am no longer in active politics so I can’t make the judgment, but that is the kind of classic debate that you have. We are in a situation where, if we had stayed opted in to the whole lot, had not opted out, there would have been very little disbenefit to the UK and we could have achieved the changes that are needed, for example, in the European arrest warrant by negotiation, as I have said, in that process. I do not think the argument, at the end of the day, is going to be should we have more in or not than the 35? That may be an argument-you are closer to the Government than I am-but I would be very surprised if the Government was going to go beyond the 35 in this position. I think that will be the political choice that it will gel around as we get nearer to those decisions.

Q275 Mark Reckless: To summarise, you do not believe that the Prime Minister can rely on Ed Miliband to necessarily help him vote these things-

Charles Clarke: Well, I don’t see why he should, in any case. I would certainly argue that the Labour Party should have voted against opting out. I think it would have been better to do that, and there is every chance that that will go forward. We will see what happens. Other colleagues here are closer to Ed Miliband than I am. But certainly the assumption that there will not be a problem about the voting when it finally comes around needs a good deal of close examination.

Q276 Mark Reckless: Just finally, Mr Clarke, on the structure of the opt-out, can you shed any light on why the Labour Government at the time did not seek a Danish style arrangement for these measures and instead went for this either/or block opt-out? Was it intended that that opt-out would never be exercised?

Charles Clarke: I am certain it was intended the opt-out would not be exercised. Whether that was the reason for the form that was chosen-I think it probably is the reason, but I could not say that authoritatively because, as I said to the Chairman at the beginning, I was not there right at that point when those issues were being decided. But I am absolutely certain there was no view anywhere in the Labour Government that we should be opting out further down the line.

Mark Reckless: Yes. I know you speak with significant authority, having only left the Home Office barely a year before that happened. Thank you.

Q277 Chair: Mr Clarke, your evidence has been extremely helpful, and we will consider what you have had to say.

Charles Clarke: Thank you for inviting me.

Q278 Chair: Just one final point. How do we remove from existing EU law an agreement that we made with our partners, that is those measures that can be regarded as being obsolete? A number of colleagues, including the shadow Home Secretary in responding to the Home Secretary, when looking at the list, which is what we are concerned with today, said some of these measures are obsolete but they are still there. How do we get rid of those measures that no longer apply?

Charles Clarke: Firstly, she is completely right. Secondly, we have that problem in UK law. That is why we have all the codification processes that go on the whole time. I may not have the title of the body right. Is the Law Commission the body that looks at codifying our law? We have redundant law as well. Thirdly, the way to do it is to have a serious discussion with the Commissioner concerned and the Commission about making the changes. I have had that conversation with the Commissioner and I believe that were there a serious discussion between a number of countries-and in this case there would be a number of countries, both on the particular of the European arrest warrant and on the general point that you make precisely, accurately, that a number of the measures are entirely redundant at the moment-they would come forward with a proposal to do that. That would be the intelligent way to proceed, in my opinion.

Chair: Mr Clarke, we are most grateful. Thank you very much.

<?oasys [pg6,cwe1] ?>Examination of Witness

Witness: Dominic Raab MP, gave evidence.

Q279 Chair: Mr Raab, thank you very much for coming to give evidence to this Committee. We have heard a number of conflicting voices about the list-we call it the Home Secretary’s list-of measures that she has decided to opt out of and opt back into. Having looked at the list, are you happy with the list that has been given to Parliament?

Dominic Raab: I think the 35 certainly cover areas of crime and policing co-operation where we want operational co-operation, things like the exchange of criminal records, the one about taking into account prior convictions in new prosecutions, JITs, the joint investigation teams. All of these, to my mind, are sensible areas of European co-operation, but I think rather than purely the formulation of lists, the question underlying this decision is whether we should submit to the Commission, and the ECJ’s control as the price of that co-operation.

Aside from the mere drawing up of lists, what I have argued from the outset is that the Government and the UK should use this moment, use the Lisbon opt-out, to recast our underlying relationship, where we strip away that supranational control but we stay operationally engaged. We could use the Frontex model. We could use MOUs or binding bilateral arrangements. The EU has legal capacity; we could do this with them so that we were not engaged in multiple bilateral negotiations.

The point I would also make is the development of a bespoke relationship-Europol and Eurojust-is going to happen. If you look at their creeping assumption of supranational powers that are already happening, and then you look at the two new regulations in the pipeline and the prospects of us opting into those-and I would put them at 50:50 at best-I suspect we are going to end up having a bespoke relationship with them, anyway, where we want to engage and co-operate on a practical level but we do not want that overarching, supranational control. In which case, why not have a sensible conversation now? What better juncture than now to have that wider strategic conversation?

Q280 Chair: I am not really clear. Do you think that we should accept what she has said? You have come here because you are an expert, you are not just a Member of the House like the rest of us; you clearly know the subject extremely well. I understand your second point about the European Court, and we will be exploring that later. Mr Clappison will explore it with you. Do you think that we should accept this list and vote it through the House?

Dominic Raab: How can you divorce those two questions? That is my problem with this. I think those 35 areas are good, practical areas, but how can you divorce whether we co-operate with joint investigation teams from whether there is ECJ and European Commission control over that?

Q281 Chair: Yes. Do you accept the argument that has been put forward by some, that as far as the other items are concerned-I think100 other items-some of those are obsolete, and therefore there is no point in opting into those? I accept your point about the European Court, looking at it as an intellectual discussion.

Dominic Raab: We should not have bad law on the statute book, whether it is British or European.

Q282 Chair: So you are happy for them to go, the others that we looked at?

Dominic Raab: Absolutely. The question is whether there are too many, not too few, plus the wider underlying point.

Chair We will come on to European arrest warrant slightly later.

Q283 Mr Clappison: Do you regard it as being significant that whereas under the previous arrangements for these measures we were party to them under the previous justice and home affairs chapter, under the new arrangements, under the new law and the Treaty of Lisbon, we would be subject to the European Court of Justice?

Dominic Raab: Do I regard it as significant?

Mr Clappison: Yes.

Dominic Raab: I think it is very significant, for all of the measures. Whether it is the ECJ or the Commission, they are integrationist bodies at the EU level, so they are going to look to expand their powers over time. If you look at the ECJ in particular, the Metock case in 2008 on asylum and the Pupino case in 2005 on criminal procedure are good examples. I am out of touch with all the latest case law, but there is some excellent evidence from Martin Howe QC to the House of Lords Committee and I basically agree with all of that, which warns about the judicial legislation from the Luxembourg court.

Q284 Mark Reckless: What do you think would be the practical impact of opting out of the European arrest warrant on day to day co-operation?

Dominic Raab: The practical effect? I think on the benefit side you would have fewer miscarriages of justice, and I believe you have already interviewed some of the victims. I have a constituent myself, Colin Dines, who is just going through this process. He is almost certainly likely to have the warrant dropped, but I should say not before he had suffered a stroke under the pressure. I can vouch that this man, as well as I could for any man or woman, is innocent. He is a retired judge of impeccable standing, and has been really put through the mill. So we will see less of those kind of miscarriages of justice.

On the downside, there has been a lot of scaremongering. The worst case scenario is that we would get a bit more delay in securing fugitives back, but that would seem to me to be months not years. I do not think you would have a single dangerous criminal who would go free, because we could, of course, apply the underlying Council of Europe conventions. What is interesting in the Government’s command paper is it recognises this, that we are talking about delay, not about bad people going free. I am trying to give you the pros and the cons. I do think there are pros and cons. But the Council of Europe conventions, if we did opt out of European arrest warrant, would be the starting point. You would presumably try to negotiate some enhanced procedures somewhere between that and the EAW.

Q285 Mark Reckless: The Metropolitan Police drew our attention to the fact that over a quarter of people that they were arresting in London were now foreign nationals, and over half of those were EU citizens. They seemed to think that it followed from that that we must have the European arrest warrant in order to expedite extradition. Could deportation have a use in that scenario rather than going through extradition, expedited or otherwise?

Dominic Raab: It is a very good point. Let us face it, what we really care about when we talk about miscarriages of justice is our own citizens. Do not get me wrong, I do not want to see rough justice for anyone but we, as a Government and as a Parliament, have a particular responsibility to make sure we are not extraditing our own nationals.

Deportation and the ability to deport foreign nationals back to other European countries, and of course, non-EU countries, have been made increasingly more difficult because of fetters under various dimensions, human rights law of course, but particularly under the EU citizenship directive, which came into force at exactly the same time as the European arrest warrant and has narrowed and narrowed the grounds for deportation, again because of the interpretations of the Luxembourg court. So, if you compare the data, for example, of Jamaica, Australia, America, we rely increasingly on extradition and the EAW because our scope for allowing deportation of foreign nationals has been so whittled away. I think that is a strategic, legal mistake.

Q286 Mark Reckless: Finally from me, do you see any scope for deeper co-operation with some countries, both within and outside the EU, on these type of issues, if we could restore confidence in the system that people would not be treated unjustly, as we saw from the two people subject to the European arrest warrant from Greece and Portugal in terrible circumstances before this Committee yesterday?

Dominic Raab: Do you mean should we cherry-pick the countries that we have enhanced co-operation with? Is that your question?

Q287 Mark Reckless: Is there a danger that a lack of confidence in, for instance, the Greek and Portuguese systems may seep into a wider concern about extradition and judicial co-operation more generally?

Dominic Raab: I think it has already happened. The most astonishing omission from the Baker review, the independent review into extradition, was the evidence from our most senior extradition judge, Lord Justice Thomas. He says that it has already become unworkable and that northern European countries feel a deep lack of faith in it. This is Britain’s most senior extradition judge and he said that the system has become unworkable. It is precisely because we have this assumption of common standards and yet it is clearly not the case, whether it is lousy jails in Greece or a defunct, slow or incompetent judicial system in Italy, Spain, Portugal or wherever it may be.

Q288 Mark Reckless: So would an exercise of the opt-out by not going back into these measures lead to a system where there was better practical co-operation, at least with those countries that have high standards in these matters?

Dominic Raab: I think you would always have the option then on a bilateral basis to work out on a selective basis who does meet the standards that we expect for our nationals. Equally, not just on the extradition side, depending on the wider renegotiation of Britain’s JHA relationship, you would look at the deportation side of things too.

Q289 Lorraine Fullbrook: Based on everything you have said, do you believe that the planned legislative changes proposed by the Home Office will improve the operation of the European arrest warrant as conducted in the UK?

Dominic Raab: I think they would help mitigate the bluntness of the European arrest warrant, and there are two aspects that I have looked at particularly. One is the proportionality bar and the second is the bar for cases that are not trial ready. That is my own experience with Colin Dines and I think of some of the witnesses that you have had before you already.

On the detail of it, I have sought legal advice on how robust they would be because they are quite detailed amendments. I am going to wait until I have received that to take a firm view on their adequacy, but I think even if we are confident they will do what it says on the tin, there are still two problems. One is the problem of a lack of an evidential threshold and whether or not there is some compromise between the EAW box-ticking exercise and the prima facie test that we used to have. Secondly, there is the question of ECJ jurisdiction over extradition of our nationals. The latter is quite a serious point. We have set up a Supreme Court in this country and yet we continually subordinate it, whether it is to Strasbourg or to Luxembourg. This is on decisions relating to the freedom of British nationals. I think it goes to the heart of the British justice system.

Q290 Dr Huppert: Can I turn to Eurojust and your take on the benefits to the UK of involvement with Eurojust and the things surrounding it? I think you describe it as a category 1 measure that the UK benefits from. Can you say a bit more about that?

Dominic Raab: I worked in The Hague for three years when I was at the Foreign Office and one of my jobs was liaising with Europol and Eurojust. I can certainly see operational advantages in a college of co-operating national prosecutors, whether it is sharing information, saying who is the right person to pick up the phone when you need to expedite a case or to find out more about it, general co-ordination of work, the kind of practical co-operation we have talked about. I think on the downside Eurojust is already acquiring supranational powers to demand information from UK prosecutors, and the new Eurojust regulation will strengthen those powers. They will also force the UK to co-operate with the new European prosecutor and give the Commission power over the direction of Eurojust.

Dr Huppert: But you-

Dominic Raab: Just a second. On the new board, the executive board, there is going to be a seat for the Commission, so again you have this creeping supranational power by stealth. This is all new and it comes in the new regulation. I think the question is at what point does Eurojust go through these stepping stones from being a really sensible college of co-operating authorities, which I saw and I am a fan of, to something more along the lines of that half step to the European Public Prosecutor.

Q291 Dr Huppert: Obviously future changes will be things that Britain can be involved in or not. When it comes to things like joint investigation teams, I think you say the UK benefits from joint investigation teams. Is that still correct?

Dominic Raab: Yes, I think we benefit from it, but when we opt back in, the question is whether we want the nature of that co-operation to be subject to Commission jurisdiction and ECJ jurisdiction. There is a carve-out for ECJ jurisdiction over JITs at the moment. For example, I would not want to see the European Court of Justice having the last word on the balance of operational powers that we give to foreign officers on British soil. But again, once you give jurisdiction to the ECJ, the risk is it will whittle down that safeguard and I think that is something to look at. But you are right, it is an area where we should be in favour of practical operational co-operation, but not political control. That is the distinction I have drawn.

Q292 Dr Huppert: When it comes to cross-border criminal records checks, I think the House of Lords report that you are supportive of those continuing?

Dominic Raab: Yes.

Q293 Dr Huppert: Do you share a concern that if we were not to go ahead with all of these, either you would have to set up some other multilateral thing, which would be hard to negotiate with everyone else, or you would require a vast number of bilateral agreements?

Dominic Raab: No, I tried to make that point earlier. First of all, there is already a model for operational co-operation without the political control, and it is Frontex. If you ask the Executive Director of Frontex is Britain a good partner, she has said very clearly it makes very little difference that we are not formally signed up to it as a formal member. There is no difference between our operational co-operation. That is a good model. It is already happening. Why not expand that? I think because the EU has legal capacity in this area we could avoid negotiating with 26, 27 other countries, although we might want to do that in certain areas, for the reasons that Mr Reckless has highlighted.

What this really requires is a bit of elbow grease. All these people putting insurmountable obstacles into forging this kind of bespoke relationship are ignoring the fact that our non-EU co-operation with the US, New Zealand, Canada, Australia is brilliant, an equally as good as most of our European co-operation. That all relies on those mechanisms and those procedures.

Q294 Dr Huppert: I had not realised you were such a fan of the US-UK extradition treaty, but I suspect you meant "with some reservations".

Dominic Raab: No, I have made it very clear I am not such a fan of the UK-US extradition treaty. I have made the case for reform in that area as well.

Dr Huppert: Indeed, yes.

Dominic Raab: But unlike you guys I would not duck the issue whether it is dogmatically with the EU or dogmatically with the US. I would look at the nature of the co-operation underlying it and I would be in favour of good law enforcement co-operation, but I would not just throw aside the interests of British citizens or the wider political control that we have a duty to our constituents to retain and exercise.

Dr Huppert: I think all of us are trying to argue for the interests of our constituents and how to make sure that they are safe and secure and free.

Q295 Chair: Just for the record, we take a very sceptical view of the extradition treaty, as you know. You have given evidence to us before. We do think it needs to be changed. You mentioned Frontex. When the Committee was in Greece a few years ago looking at the Greek-Turkish border, which is the border that allows so many illegal migrants to come into the EU, we were specifically told as far as Frontex was concerned that because we were not part of Frontex, we could not be part of the RABIT forces that seek to police that area. Are you quite confident that we can still be a part of organisations, not be formally joined to them but still co-operate?

Dominic Raab: Don’t take my word for it. I am quoting the Executive Director of Frontex and I cite her in my pamphlet, which I will shamelessly plug but only for the purposes of giving-

Chair: Is it free?

Dominic Raab: I can give you this copy-only for the purposes of giving a short answer. There is a section here on Frontex and the fact is that by staying out of it, according to the leader of that organisation, our operational co-operation is as good, if not better, than many formal members.

Q296 Michael Ellis: Mr Raab, first of all, can I congratulate you on the level of expertise you have reached in this area? Can I ask you about the opt-in decision in itself? What do you think would be the best arrangements for the House to undertake to approve the opt-in measures? Should it consider each separately, which would clearly be a very long, tortuous process, considering how many there are and each division takes approximately 15 minutes, or should it consider all of them together or in blocks or something in between?

Dominic Raab: I am not wedded to any particular answer to this. I think there are pros and cons. You would get perhaps more proper, substantive scrutiny measure by measure but, as you say, it would be quite a cumbersome approach. I think on balance I would say vote on the package, mainly because it would allow us to deal with the underlying questions of jurisdictional and Commission control, which I mentioned. I think we have to view this as a package, but I do not have strong views on it.

Q297 Michael Ellis: You are relaxed about that?

Dominic Raab: I am relaxed about that.

Q298 Chair: You do not think that there is a case for taking out the measure concerning the European arrest warrant, because that is the one that has caused most concern? I understand your principle about the European Court, but in terms of the practicalities witnesses even today have told us of their real concern about the way in which the European arrest warrant operates. You do not think that there is a case for just taking that out and taking the rest as a package?

Dominic Raab: You mean if I do not get my broader strategic approach that we-

Chair: Exactly.

Dominic Raab: I think there is a case for that, yes. Again, I have tried to preserve my position to a degree because I want to be fair and look properly at the substance and take legal advice on the safeguards, but I think probably in any event it will leave a lingering doubt and a question relating to the evidential threshold and, as I said, ECJ control, so I think there probably is a case for that.

Q299 Chair: I assume you are against the idea of a European prosecutor?

Dominic Raab: Absolutely.

Q300 Mr Winnick: Is there anything European that you are not against?

Dominic Raab: Yes. I am glad you asked that because I started my life as a competition lawyer in Brussels, my professional life, and I think competition law is a very good example of an area where you want to have cross-border supranational control. There are lots of question marks about the supranational competition authorities, but that is an area where you do want it. Crime and policing, law enforcement? I suspect it is the least worthy candidate for that creeping supranational control, but not for ideological reasons.

Mr Winnick: Good job I asked the question.

Q301 Chair: Just to clarify things, on the European arrest warrant you have looked at the Home Secretary’s four principles, the things she wants to change, and you are not satisfied that the proportionality test that is operated in Germany is going to meet the objections that people have?

Dominic Raab: No, what I said was I wanted to look and take legal advice on the adequacy of them before I came to a firm judgment on the European arrest warrant side of things. I have to say the proportionality one is not the one I worry about. The big problem with the European arrest warrant, contrary to the way it has been conveyed and portrayed, is not the piffling cases. It is the serious cases. My constituent, Colin Dines, is accused of fraud. That is a serious case. Andrew Symeou was accused of murder or something serious. All of the cases, Deborah Dark, Edmond Arapi and the others that you have had before you were serious cases. The proportionality bar is not the one that I am looking at most. It is the trial ready bar. Even then, even if those were adequate, even if they came back and they were very robust, I think there is a question about whether we need an evidential threshold and, even then, who do you want having the last word on it? I want to wait and look at it properly, I want to be fair to the Government but I do have serious reservations about the EAW.

Chair: Mr Raab, on behalf of the Committee, thank you very much for coming here. I would be grateful if you would leave your pamphlet on the way out so we can properly examine it.

Steve McCabe: We will all be fighting over it.

Chair: Thank you very much indeed.

Examination of Witness

Witness: Keir Starmer, QC, outgoing Director of Public Prosecutions, gave evidence.

Q302 Chair: Mr Starmer, welcome back. This is your valedictory appearance before the Home Affairs Select Committee. I am afraid we did not sign a card for you or bring any balloons, but it is five years since you took up this job. To me you look exactly the same as the first time you appeared before us. Before we finish, we are going to ask you about a number of things concerning the way in which the CPS is going to develop or you would like to see it develop.

Keir Starmer: Very well.

Chair: I would like to start with a couple of issues that are in the public domain at the moment and specifically concern you. You and your organisation, not you personally but the organisation, has had severe criticism this morning from barristers acting for Michael Le Vell that the case against him should never have been brought because of a lack of evidence, a lack of detail and the damage to reputation that has been caused by the prosecution. Alisdair Williamson said it was prosecuted without a single bit of corroborative evidence. Would you like to respond to this very serious criticism?

Keir Starmer: Yes. A proper assessment of the evidence was taken in the case. The decision to proceed was the right decision. There is a safeguard within our system and that is at the end of the prosecution case in court it is not only open to the judge, it is the duty of the judge to stop the case if there is no case to answer. That did not happen in this case and, therefore, there was a case to answer. That case was answered and the jury took some time to consider their verdict, so it was a perfectly properly brought case. It is not a case on which there was no evidence. Had it been, it would have been stopped halfway after testing of the evidence. It is true that the test of a prosecutor is a realistic prospect of conviction and the test for the jury is whether the case is proven beyond reasonable doubt, having heard all the witnesses. But the fact that a decision is taken to start a case and does not end up in a conviction does not mean that it was improperly brought. I think it is very important that we reaffirm that. The idea that if a case results in an acquittal it should not have been brought is wrong.

Q303 Chair: You are not going to review any of the issues around it, as has been said in the press today?

Keir Starmer: Because the case proceeded beyond the prosecution case, any decision not to have brought it would be to say that, although there is a case to answer here we are not going to prosecute. I do not seriously think anybody is suggesting that is a position we should adopt.

Q304 Chair: Yes. I know colleagues would like to come in on this. Eleanor Laws, your QC prosecuting, said to the jury, "You may think this is about some kind of celebrity witch hunt". That was a very odd thing for her to say, wasn’t it?

Keir Starmer: I am not going to comment on her closing speech. That is a matter for her in the trial that she is conducting. I can be absolutely clear the test for bringing a prosecution is the code test in the Code for Crown prosecutors. The question is whether there is sufficient evidence and whether it is in the public interest to prosecute. I am satisfied that test was properly applied in that case and I expect it to be properly applied in any case, whoever the suspect is.

Q305 Chair: Finally on this from me, do you think that sexual abuse suspects should be granted anonymity like their victims, as has been called for as a result of this case? The issue is the huge publicity for people, celebrities, those who are known in the press who feel their reputation has been damaged even after they have been acquitted and the former defendant in this particular case said anonymity should be granted. Are you proposing to look at that again or are you quite happy with the situation?

Keir Starmer: I understand those concerns, but the arguments are well rehearsed. In many cases, the fact that a suspect or a person once charged is named leads other victims to come forward. We have a number of examples of cases where, having named somebody once they are charged, other victims have come forward and that has enabled a case to be built. I do understand the anxiety. I think a judgment call has to be made. My own view is that naming on charge is appropriate, particularly in a country where we have open justice.

Q306 Chair: You would do it all again? You are very satisfied everything was properly conducted? You would bring the prosecution again?

Keir Starmer: This was a properly brought prosecution according to the proper test. It would have been wrong not to have taken a case where there was a case to answer, and that is this case.

Chair: Thank you. We have some quick questions from colleagues.

Q307 Mark Reckless: Mr Starmer, you seem to be putting through, at least to me, what seems to be quite a novel proposition. You say if the defence fail to put forward there is no case to answer, and the judge does not determine there is no case to answer at the halfway stage, then it must be the case that the CPS acted properly in bringing that prosecution.

Keir Starmer: Not that it must be the case, but it is impossible to argue that there is no evidence or that there was no case because if that was the situation it would be the duty of the judge to stop the case. All I am saying is that really blocks the argument that this was a case where there was no evidence. The case was presented and it was open to the judge to say if there is not the right evidence it will not proceed. That is the only point I am making. I am not saying that is the test of everything, but in-

Q308 Mark Reckless: Mr Starmer, you were making a very different point when you spoke of no evidence, whereas you stated before, quite correctly, that the test was sufficient evidence for a realistic prospect of conviction. Whether or not the judge decides there is no evidence, how is that determinative of whether there is sufficient evidence for a realistic prospect of conviction?

Keir Starmer: The test for the judge is whether there is a case to answer. It is not the same test of whether there is a realistic prospect of conviction, but it is not far removed. The judge has the advantage of having heard the prosecution case and seen it tested. My simple proposition is that in a case where the prosecution’s evidence has been heard and the judge has not removed the case from the jury, it is self-evident there is a case to answer. If anybody is suggesting that in a case of serious sexual allegations the Crown Prosecution Service should form the view that there is a case to answer but the proceedings should not be brought, then I think there is a debate to be had. It is an example of our system at work. We bring a case based on a realistic prospect of conviction. We convict on the basis of beyond reasonable doubt after the evidence has been heard.

Chair: We do not want to spend too much time on this, but I know Mr Clappison and Mr Ellis want to come in.

Q309 Mr Clappison: I am only familiar with the case from newspapers and I have not taken great interest in it, but is it the case that it was always the decision of the prosecution to prosecute all the way through or not?

Keir Starmer: No, there was an earlier decision that there was insufficient evidence. That was then reviewed.

Q310 Mr Clappison: Who took that decision?

Keir Starmer: The decision on review was taken by Alison Levitt QC, my principal legal adviser.

Q311 Mr Clappison: Sorry, but who took the initial decision that there was not enough evidence?

Keir Starmer: The team in CPS Northwest. It was a case that was determined by the CPS Northwest team. When it came to be reviewed, it was reviewed by the principal legal adviser, Alison Levitt QC. She reviewed it and came to the view that there was a realistic prospect of conviction. In those circumstances, the case proceeded.

Q312 Mr Clappison: Was the evidence that she saw the same evidence that was seen by the initial reviewer or the initial decision taker, or was there more evidence?

Keir Starmer: It was the same evidence plus some new evidence.

Q313 Mr Clappison: Was the new evidence from the same source as the old evidence?

Keir Starmer: I would rather check that if I am going to be asked detailed questions about it.

Q314 Chair: The evidence would have been presented to the court anyway?

Keir Starmer: It was presented to the court, yes.

Q315 Michael Ellis: Mr Starmer, do you think there is a general pressure to prosecute people who are in the public eye that falls on to the CPS because those cases attract media attention and not proceeding makes it look in the eyes of some that the CPS would just be looking to protect famous people? In other words, do you think there is a natural human pressure that is added to by those making these decisions if they are people in the public eye and that on this one we ought to prosecute and let the judge decide to throw it out at half-time if he does not think there is enough evidence or let the jury decide to acquit and let the ball rest with them?

Keir Starmer: No, I do not think there is any pressure and I think if you look at recent cases you will see examples of cases where we have decided to prosecute and cases where we have decided not to prosecute so-called high profile individuals. I think it does my staff a bit of a disservice to suggest that they are not properly applying the code for Crown prosecutors, because they are.

Q316 Michael Ellis: I would not want to imply that that is the case, but it would not be outside the realms of possibility that those involved in making decisions like that are under more pressure for a non-routine case than for a routine case. Do you know off the top of your head how many cases are thrown out at half-time by judges? How many CPS cases tend to be thrown out at halftime?

Keir Starmer: Again, off the top of my head I can’t give you a figure. I will certainly give you a figure.

Chair: Would you write to us with that?

Keir Starmer: I will.

Q317 Michael Ellis: Could we have an approximate indication?

Keir Starmer: Just staying with sexual offending, what is clear is that the conviction rate for sexual offending, and in particular rape, has gone up year on year for the last two years and more people are now pleading guilty than have ever pleaded guilty before. That signifies to me that we are making the right decisions and building strong cases. I am very happy to provide any further statistics that the Committee wants-

Chair: If you could write to us, that would be very helpful.

Keir Starmer: -across whichever offences you want me to.

Michael Ellis: Yes, I think the remarks certainly do not necessarily apply just to one type of offending or allegations. This is a general point.

Q318 Mr Winnick: Mr Starmer, are you aware that there is a feeling among some politicians, at least, that they should be very wary indeed of interfering in any way with the judicial process, and that the long-established separation between Parliament and the judicial process is a very good one and should continue?

Keir Starmer: Yes, I am, and I would agree with that.

Q319 Chair: Good. Let us move on to the European arrest warrant. We will deal with other matters colleagues want to raise at the end. Does the Government have this right? You have seen the measures: 135, opting out of 100, opting in of 35. You gave evidence to the Lords Committee. You said that if we were to opt out and not opt back in this would lead to an uncertain, cumbersome and fragmented approach to cross-border prosecutions. Are you happy now?

Keir Starmer: Broadly, yes. My concern, and it was a real concern, was about, broadly speaking, Eurojust, joint investigation teams, mutual recognition of EU convictions, European arrest warrants and some of the provisions around asset-freezing and confiscation. They were my main concerns and, broadly speaking, all of the important provisions there have been opted back into. Assuming that is successfully negotiated, the concern I had last time I gave evidence on this issue has been lessened.

Q320 Chair: Those that they have left out, that the Home Secretary has left out-since we are going to debate this and discuss this now, there are no other measures that you think we might as well opt back into at this stage?

Keir Starmer: I am speaking only from a prosecutorial point of view.

Chair: Yes, of course.

Keir Starmer: I know ACPO gave evidence where I think they identified four mainly relating to Europol that they were concerned about. From a prosecutorial point of view, our view is that the remaining measures are not key to prosecutors and/or in any event will be overtaken by incoming post-Lisbon provisions. I would not want to put before the Committee a particular provision that I think should be added to the list from a prosecutorial point of view.

Q321 Chair: Yes. You also mentioned, when you were asked about this, that the CPS, and you as DPP, had not been consulted formally about this list before it was agreed by the Government. Were you subsequently consulted?

Keir Starmer: We were able to contribute our views to the Home Office and to the MOJ and I had a private meeting with the Home Secretary and Justice Secretary to set out my concerns. I certainly feel that as I sit here now I have had the opportunity to make my concerns clear.

Q322 Chair: And the concerns have been met?

Keir Starmer: The concerns that I set have been met, assuming that we successfully negotiate through and do opt back into the measures in question.

Q323 Chair: Yes, thank you. Sorry, there is one question. A witness gave evidence to us yesterday, Professor Peers. Obviously, you have not seen the transcript and I am sure you do not spend your time glued to the internet to see what the Home Affairs Select Committee is doing.

Keir Starmer: I do look at some of your proceedings. No, I do, particularly in preparing for this, but I have to confess that yesterday was a rather busy day for one or two reasons and I missed it.

Chair: Of course. I have to admit I was not here for it because the Prime Minister was appearing before the Liaison Committee, so this is a transcript that I have read. Professor Peers, who is a noted expert on these subjects who gave evidence to us yesterday, said that there is going to be a weekend where Britain will opt out and then opt back in again. He is very worried about this weekend because he feels that the European arrest warrants that have been issued will then fall and people we are expecting to return to the UK will not return and they will all have to be reissued again. Do you know about this missing weekend?

Keir Starmer: I don’t, but I would be concerned if there was any real gap between the existing provisions and opting back into the 35. My successor will have to think very carefully about what we put in place to make sure that there are no unintended problems.

Q324 Chair: That would have been the perfect thing to consult you on, rather than a private meeting where you have expressed concerns to Ministers, surely, a proper round-table meeting with all concerned. When the opt-out is done, before the opt-in comes back, what is the law? Nobody knows, and nobody can give us the answer.

Keir Starmer: No, and I have not been party to any discussions about that, but I would be concerned obviously if there is a gap that leads to any difficulty.

Chair: So more work will need to be done on that for sure.

Keir Starmer: Yes, I agree.

Q325 Michael Ellis: I would like to ask you about the SOCA list on the issue before we come to the opt-in and opt-out situation.

Chair: Mr Ellis, could we do that at the end and could we just do-

Michael Ellis: I am quite happy to leave that until the end.

Chair: Thank you.

Q326 Michael Ellis: As far as the involvement, what I want to then ask you about as far as the opt-ins are concerned is what involvement the CPS have had in drawing up the opt-in list. Have you had any involvement, any input?

Keir Starmer: As I say, I was asked by the Home Secretary and the Justice Secretary to set out my view and any concerns I had, and I did that. More generally, our team has been feeding in our observations to the Home Office and the MOJ. So, in that way-

Q327 Michael Ellis: You are happy that there has been adequate liaison between you and your officers and the Government as far as an opportunity to inform the Government’s decision-making in this regard?

Keir Starmer: I feel I have been given a proper opportunity to make my concerns known and, whether because of that or despite that, the 35 provisions that we are opting back into cover most of the concerns that I had.

Chair: Thank you. We will come to the other matters later.

Q328 Dr Huppert: You just said the 35 measures cover most of the concerns you had. Can you be quite clear, firstly, about which ones you would like to see added?

Keir Starmer: I am not putting before the Committee any measures that I specifically would want added. From a prosecutorial point of view, they are either not key, in the sense that we can continue to work efficiently with our partners in any event, or incoming post-Lisbon measures will cover the same territory. As I say, my real concern was Eurojust, JITs, EU convictions, EAWs and the provisions about assets. They were very real concerns, but as things stand they are on the opt-in list.

Q329 Dr Huppert: But you would be alarmed if any of them fell off, presumably?

Keir Starmer: Yes. The concern I expressed last time would then obviously return.

Q330 Dr Huppert: We have had a lot of discussion about the European arrest warrant, but can you just say a bit more about Eurojust and the joint investigation teams and give us a flavour of the consequence if we did not have them and, indeed, the successes that we have had as a result of them?

Keir Starmer: We use Eurojust quite heavily. They have a number of benefits from a prosecutorial point of view. First and foremost, we get access to all the other desks, the 26 other desks. There is a hub with facilities, language skills, legal expertise and so on to do effective cross-border work. We can have multi-jurisdictional meetings, so if there is an investigation going on in more than one country a decision has to be made as to where it is pursued. We can co-ordinate arrests and searches and if that is not co-ordinated it does not work very well, and it is a neutral ground for resolution of issues. Eurojust is of great benefit to us as prosecutors and we would have been concerned if it went.

Allied to that, of course, there are some very good examples of JITs doing very good work, particularly in drugs and trafficking kind of cases. One of the great benefits is that if a JIT carries out an investigation the evidence is more easily admissible in this jurisdiction than if there is no JIT and we have to go through the other arrangements for getting evidence from one jurisdiction to another. There are a number of very real benefits and we use Eurojust on a daily basis.

Q331 Dr Huppert: Mr Raab suggested that one could resolve these things by having a looser voluntary co-operation type scheme. I think you heard his evidence and I do not want to misquote him, not having any transcript yet. Do you think that is a realistic prospect?

Keir Starmer: No, I do not. I think Eurojust works very well and the co-operation increases every year. I do not see any advantage in withdrawing from Eurojust to set up other arrangements. I think it is a very effective way of proceeding.

Q332 Dr Huppert: Do you think it would be fair to say that if we were to withdraw from Eurojust and related measures that would make it harder for you to prosecute people who have committed serious crimes in the UK or elsewhere?

Keir Starmer: Yes. We regularly work with Eurojust and JITs on cross-border crimes in Europe.

Q333 Mr Winnick: On the European arrest warrant, we have heard conflicting evidence, as is to be expected, obviously; those for, those against, and perhaps to some extent those who stand in the middle. Do you think yourself that what the Government is proposing to do will undermine the fight against criminality in Europe?

Keir Starmer: Can I just be clear? Do you mean the steps that the Home Secretary is taking on proportionality, pre-trial detention and dual criminality?

Mr Winnick: Yes.

Keir Starmer: My starting point on this is that they are problems that need to be addressed, I would agree with that, but they are not problems caused by the EAW. If you take proportionality, it was not the EAW framework that introduced that problem. It was there before. If you go back to the older arrangements, there were no proportionality issues, no provisions.. The problem of proportionality needs to be addressed and I am supportive of what the Home Secretary is trying to do, but it is wrong to assume that that is a problem caused by the EAW. That is a problem that pre-existed the EAW and will be there-if we opt out of the EAW and go back to the old arrangements, we will have precisely the same problem. So I am supportive, of course, of the work that is being done here.

Q334 Mr Winnick: Were you consulted on this particular aspect?

Keir Starmer: We have been consulted on these provisions and I have seen the drafts of various ways of dealing with it.

Q335 Mr Winnick: You have seen the drafts. I am just trying to see if that can be considered consultation. Were you consulted before there were drafts or anything on your general view, in view of your position?

Keir Starmer: The issue came up in my conversations with the Home Secretary and the Justice Secretary, but our team has been feeding in on this for some time. We were part of a team that went to Poland in 2008 and 2010 to talk to our counterparts to see whether there wasn’t something we could do about what appeared to be a number of disproportionate cases where Poland was seeking the extradition of people back to Poland. This is something that we have been working on for some time because, quite apart from anything else, the resources that are needed to put into the large number of cases that fall into that category are sometimes quite considerable. It is a problem that has been on the table for a long time. I support any steps that deal with it, but in fact it is not an EAW problem.

Q336 Mr Winnick: The argument was put by colleagues to Charles Clarke, which I think you heard, that there could be individual treaties, extradition treaties, that there is really no necessity for the European arrest warrant, it is too cumbersome and it has caused too much injustice and the rest of it. What is your response to that, Mr Starmer?

Keir Starmer: I am really concerned about that. Firstly, there is an unresolved legal issue as to whether you could resurrect the old arrangements or strike new arrangements or whether those still within the provisions would be bound to seek some different kind of arrangement with the UK. That needs to be resolved.

Assuming for a moment that it might be possible to fall back on the old arrangements, we need to remind ourselves of the problems of those arrangements. First and foremost, it took much longer to resolve extradition proceedings. These days, on our figures, we usually get somebody back to this country within about one to three months of our request in very serious cases. That took years in the past. Secondly, a number of countries under the old arrangements would not extradite their own nationals. I think nine countries would not extradite their own nationals, which meant if we were wanting a national of another country back we could not get them and we then had to take the sometimes difficult decision as to whether we would export our evidence to the other country to see whether it was possible to prosecute in those countries. That was not very satisfactory.

I do have real concerns about falling back on the old arrangements even if that is permissible. Those delays and those difficulties were there at a time when the number of extraditions was far fewer. It will creak if we go back to that with the sort of numbers we are talking about now.

Q337 Mr Winnick: Recognising some of the injustice that people have suffered-we had two witnesses yesterday-overall would you say, therefore, that the European arrest warrant has served a positive purpose in dealing with criminality and overcoming some of the previous problems?

Keir Starmer: Yes, I would.

Q338 Chair: But it is in need of reform?

Keir Starmer: I am supportive of the proportionality reform. Anything that can be done on pre-trial detention-I understand that concern. I think again the Home Secretary has some proposals there. I would be supportive of that, and possibly some work on dual criminality, although that is slightly more complicated. But I would agree that they are problems that need to be dealt with if possible, but not by withdrawing from the EAW.

Q339 Chair: You told the Committee you went to Poland. Poland was one of those countries where judges apply for the European arrest warrant on what we would regard as minor offences and we have had evidence today from a Polish British barrister who says they will just issue these warrants and there is nothing we can do about it. The reforms do not stop that happening, do they?

Keir Starmer: No. I think there are a number of possible reasons for that. The guidance I have given to my prosecutors is to exercise discretion on whether or not they are going to apply for a European arrest warrant, so we have built in a filter before we do it. It is different in Poland because the prosecutor does not have the discretion that we have here. It is a different legal system and the judge is seized of the investigation at a much earlier stage. Therefore, in many respects the individual is asked to go back to court at a stage that we would consider still to be an investigative stage, but the system is different. That is what we were discussing with our colleagues in Poland. I do not think it is just a question of their not scrutinising in the same way. It is a different legal system.

Chair: It is a fundamental issue, yes.

Q340 Mr Clappison: Director, we have heard what you have to say about this. Somebody listening to your evidence today would be tempted to think that you have almost gone as far as to say it be impossible to do extradition without the European Union.

Keir Starmer: I would not say it would be impossible but what I said was we need to remind ourselves of how the arrangements worked pre the EAW. It took a long time to get people back to this country and some countries did not extradite non-nationals. If there is a serious offence committed in this country and somebody goes to another country, then I think the citizens of this country would be pretty concerned if we could not get them back.

Mr Clappison: I appreciate that.

Keir Starmer: The best example is the 21/7 bombing case where we got Hussein back in 56 days from Italy. If we were still waiting to get him back and embroiled in negotiations and legal argument in Italy, people would be saying to us, "What on earth is going wrong?" But we got him back in 56 days and tried him and convicted him.

Q341 Mr Clappison: You heard it was conceded by Dominic Raab in the evidence he gave to the Committee that it might take a bit longer but it could still happen?

Keir Starmer: I am not saying it is impossible.

Q342 Mr Clappison: We have managed to have extradition arrangements with-I will pick a country at random, Australia and Canada. How long does it take to get somebody back from Australia who has committed an offence?

Keir Starmer: It takes longer than under the EAW. I am not saying it is impossible but I am saying it is a choice. Do you want people back speedily for serious offences like the 21/7 bombing or do you want it to be a longer process? Do you want to extradite back to this country nationals of other countries who have committed or are alleged to have committed serious offences or do you want your prosecutor here to have to pass the file to that country to see whether they can’t bring a prosecution? For my part, I know what answers I would give to that. I would go so far as to say I think most people would say if there is a serious allegation against an individual we would rather have them back to be tried for a serious offence speedily, whether or not they happen to be a national of another country.

Q343 Lorraine Fullbrook: I would like to pick up on the reforms of the European arrest warrant that the Chairman mentioned. Do you think the planned legislative changes proposed by the Home Office will improve the operation of the European arrest warrant in the UK?

Keir Starmer: I think it is a little bit difficult to predict but I hope so. If there is some flexibility at an early stage for law enforcers as to what might be called trivial or disproportionate cases and if the court finally can look at it, I can see that that may help. It is a problem that has to be dealt with and I am supportive of those provisions. Time will tell whether they make the necessary difference. I hope they will, but if not, we will have to go back and try again in some other way. It may be that in the long run the better alternative is a pan-European change, but that inevitably is much more difficult and likely to take much longer.

Q344 Lorraine Fullbrook: On the issue of proportionality in consideration of arrest warrants, do you think the planned changes will address that?

Keir Starmer: Well, I hope so. On the face of it, the proposal is to give the court power not to order extradition if it would be disproportionate, so that blocks that case. My own view is there ought to be a discretion in addition to that slightly further up the line. In other words, if as a prosecutor you could predict that this is a case that the court is going to rule is disproportionate, then it would make sense for the prosecutor here to have some discretion to say we are not going to waste time and money getting it to the court for the court to do the obvious thing and that is to knock it out. I think that is a question of discussion and negotiation as we proceed with these measures. Our collective task is to try to make them work.

Q345 Lorraine Fullbrook: Could I follow up about the Polish arrest warrant, which is something that has vexed this Committee somewhat as to the amount issued by Poland. Is there anything you can update the Committee on about the work that the Crown Prosecution Service has been doing with the Home Office regarding the number of European arrest warrants issued by Poland?

Keir Starmer: I am not sure I can go beyond saying that we are involved in the discussions as to what the answers are, but I am very happy if there is anything more to that to write to the Committee and let you know.

Lorraine Fullbrook: Thank you.

Q346 Mark Reckless: You took some umbrage earlier when Mr Ellis suggested Crown prosecutors might not always apply the code properly. Did your team in the north-west apply the code properly initially in the Le Vell case?

Keir Starmer: Yes.

Q347 Mark Reckless: How come it was then overturned following a review?

Keir Starmer: When you review a case it is inevitable that you take a fresh look. There was some further evidence and the view taken on the relook was that there was a realistic prospect of a conviction. We have just introduced, quite rightly, a victim’s right to review. This is a right of victims to ask the Crown Prosecution Service to look again at a decision. We can’t run that regime on the assumption that if, on an honest and open review, a different decision is taken it necessarily means the first decision was wrong.

Q348 Mark Reckless: With a victim right to review, is there also a celebrity requirement to review?

Keir Starmer: No. It is a victim-

Q349 Mark Reckless: So why in this case was a decision taken to review and then overturn that decision for Michael Le Vell?

Keir Starmer: The scheme that is now in place was put in place in June of this year. That is a right of review. That means a victim whose case is not being proceeded with has a right to ask the CPS to review the decision and does not have to put a reason on the table or go through any formal procedure. We will then review the decision and we have been doing that for three or four months now. Before that, which would be this case-

Q350 Mark Reckless: I was not really asking you about that point. How many decisions do you get that are not reviewed when it is just an ordinary member of the public who may not be in the public eye, yet in this case when a decision was taken not to prosecute in the north-west it was reviewed and overturned in a celebrity case?

Keir Starmer: This arose because a complaint was made and that complaint procedure has been running for a year.

Q351 Mark Reckless: Is it not the case that complaints are more likely in celebrity than non-celebrity cases?

Keir Starmer: No, there are lots of complaints about all sorts of cases.

Q352 Mark Reckless: Mr Starmer, were I concerned that you had acted criminally in the course of your office, should I take that to the police or leave it to the Bar Standards Board?

Keir Starmer: You should take it to the police.

Q353 Mark Reckless: So why in the recent case in terms of gender-selective abortion was the fact that there is a professional regulator-in that case the GMC-a reason for not prosecuting a case where you had a reasonable prospect of conviction?

Keir Starmer: I agreed last week that we would put a more detailed set of reasons into the public domain setting that out, which I intend to do in the very near future.

Mark Reckless: Please do.

Keir Starmer: My strong preference would be to put that out in detail before dealing with it piecemeal.

Q354 Mark Reckless: Perhaps you can just answer me one question of principle. Do you think it is in the public interest to deter gender-selective abortion?

Keir Starmer: That is a very general question.

Mark Reckless: Can you answer it?

Keir Starmer: In this particular case, one has to bear in mind that the legislation does not in terms specifically prohibit gender-selective termination.

Q355 Mark Reckless: So you do not want to deter it?

Keir Starmer: No, of course there is a public interest in upholding the criminal law and gender-selective abortion would be prosecuted in the right cases.

Q356 Mark Reckless: But not in this case?

Keir Starmer: Well, that is why the detailed reasoning is important because the facts are critically important, the basis upon which the prosecution could be brought and the detailed reasons as to public interest. I do not want to frustrate you, but I do think that having agreed to put fuller reasons in the public domain-

Q357 Chair: The reason why Mr Reckless has raised it is that it was raised at Prime Minister’s Questions today and there is a feeling that the CPS has not taken appropriate action because the policy is not clear. Irrespective of the public interest, can you tell this Committee today there is no question but that if somebody decides to gender select that would be unlawful, you would prosecute? What is the current position?

Keir Starmer: Just two or three things. What I agreed to do last week was to put detailed reasons into the public domain so that individuals could better understand our decision. I have been working on that and I hope to do that in the very near future. That will then set out in detail what the facts of the particular case were and why a decision was taken not to prosecute.

Q358 Chair: Leave aside that case because we do not know the case and we understand you have to make decisions on the basis of the facts of each case, but as a matter of policy is it unlawful for a medical professional to say, "I will perform this abortion because this child is a girl"?

Keir Starmer: If that is the only reason, it is unlawful.

Q359 Chair: It is. How many cases like that have you prosecuted?

Keir Starmer: I do not think we have had any to consider apart from-

Chair: None at all, ever?

Keir Starmer: As far as I know, none. I do not think we have had to consider any other cases.

Q360 Chair: But in these cases that you have considered, you go back to the practitioner, do you? Do you investigate? Who investigates?

Keir Starmer: The police investigate it.

Q361 Chair: The police investigate it. Have you had any police reports on any cases? We just want to know how widespread this is.

Keir Starmer: I will double check this for the Committee but as far as I know, certainly in the last five years, we have not had any of these cases investigated and passed to us to take a decision on prosecution apart from these.

Q362 Chair: That is very helpful. When do you think this policy will come out? As we know, you are about to-

Keir Starmer: No, it is not a policy, it is detailed reasons. I hope to get it out in the next day or two, which is the only reason, Mr Reckless, that I am-

Chair: That is very helpful.

Keir Starmer: I am so close to being able to provide you with a much fuller answer that I would rather do that.

Q363 Chair: Once you have put it into the public domain, just in case we miss it, would you write to us and tell us about this, because it is obviously of great concern?

Keir Starmer: Yes, of course.

Q364 Chair: What you are telling this Committee is that if anyone gender selects you will prosecute?

Keir Starmer: It is an offence to authorise a termination or carry out a termination unless two medical practitioners genuinely and in good faith certify that the risk to the mental or physical health of the patient is greater by continuation than by termination. That is the test. The statute says nothing about gender or handicap or anything else.

Q365 Chair: Is that the problem? Should it, because that would be a matter for Parliament?

Keir Starmer: One of the things I am going to deal with, hopefully tomorrow or the next day but as soon as I can, is the fact that there is not very clear guidance here.

Chair: Well, there is not clear law according to what you are saying.

Keir Starmer: If the only reason is gender and it has nothing to do with a risk to health, then in those circumstances it may well be an offence because the doctor would not in good faith be able to form the appropriate view. The test is whether the doctor in good faith formed the view that is set out in the legislation.

Q366 Chair: You will make this all clear?

Keir Starmer: I understand the concern and I understand-

Chair: You understand the concern?

Keir Starmer: I understand the concern and I understand the debate. It is for that reason that I think I do need to set it out in detail and I will send it to the Committee. I will send it, Mr Reckless, to you straight away when it is there, but I intend to deal with it and set out in clarity and detail what the position is and why the decision was taken in that particular instance.

Q367 Mark Reckless: I am sorry, Mr Starmer, this has nothing to do with the decision you made in this case, because the CPS judgment was there was sufficient evidence for a realistic prospect of conviction under the law, yet you determined it was not in the public interest. Why?

Keir Starmer: That is what I am going to set out in the fuller statement so everybody can see it in the context of the facts of the particular case. I think the difficulty is that unless the full facts are there, there is concern about the decision arrived at. It is to answer that question that I will issue, as I say sooner rather than later, I am hoping-

Chair: Mr Ellis, could you hold yourself, please? Order, Mr Ellis, order. Mr Reckless is asking a question. Would you please let him ask his question?

Q368 Mark Reckless: Are you concerned that the impact of the decision you made not to prosecute in this case is that there will be a greater amount of gender-selective abortion and are you proud to have that as your legacy?

Keir Starmer: I would obviously be concerned if that were a consequence. I think when the reasons are set out in detail, people will understand that that is unlikely to be the case.

Chair: Thank you. Dr Huppert has a question on cyber-crime.

Q369 Dr Huppert: We heard yesterday from the Information Commissioner about a range of issues to do with blagging and it became quite clear, I think, that SOCA do not take computer-related issues, data-related issues very seriously. I have had comments from a number of other people about the Computer Misuse Act and the Data Protection Act. Does the CPS take these issues seriously enough?

Keir Starmer: Yes, we do. I have to confess I really have not kept up with the proceedings. If there was any evidence on this yesterday I-

Dr Huppert: It is a general question rather than a specific one.

Chair: It is not specifically about other issues.

Keir Starmer: I just have not seen yesterday’s evidence.

Q370 Dr Huppert: You are convinced that the Crown Prosecution Service takes offences under the Computer Misuse Act and Data Protection Act seriously enough; it aims for serious enough prosecutions and rates these in the way that they ought to be considered, because some of these are very serious crimes?

Keir Starmer: Yes.

Q371 Michael Ellis: I am entitled, of course, to a comeback. Mr Reckless mentioned my name before he went on about the other matter and we are very close to a Division, so I am very keen to deal with a couple of issues. The first is we must have absolute transparency in this Committee and I want to make sure that we cover a couple of issues that have not yet been covered. The first thing is I want to make it clear for my part-and I prosecuted many cases as a barrister before I was a Member of Parliament-that I do not think that every time the Crown Prosecution Service loses a case that they have made the wrong decision to pursue a prosecution. I want to make that very clear.

Keir Starmer: Good.

Michael Ellis: Clearly, there can nevertheless be pressure on any well-meaning individual in a case that has become a cause célèbre. Do you accept that that is at least a feasible prospect? It is not necessarily an improper decision or a decision made improperly to prosecute or not to prosecute, but there can be an increase in pressure one way or the other if a case has become a cause célèbre. Do you have any safeguards to protect your own staff from cases that might get more than the usual amount of public attention?

Chair: Like not letting them read the newspapers?

Keir Starmer: The whole point of the code for Crown prosecutors and the whole learning of the Crown Prosecution Service is to act with independence and integrity, and that means that you do not take pressure into account. I can happily say that at no stage in my tenure has anybody ever sought to put pressure on me in relation to any of the cases that I have had to consider.

Q372 Michael Ellis: I would not have thought they would on you, but I am thinking of your more junior staff, your regional staff, staff in regional offices, and so on.

Keir Starmer: Yes. So far as that is concerned, there are safeguards about the quality of our decision making that are in place on a routine basis. Every quarter we dip-sample cases to ensure the quality is right, so that throws up random cases. Cases that are particularly high profile, sensitive or difficult are subject to very often a case management panel within the CPS where senior members of staff look at it, and of course the principal legal adviser or I are consulted on a number of these cases or we might go to external counsel. There are all sorts of checks and balances, but I do want to resist this notion that cases are pursued because of pressure. In fairness to my staff, they faithfully apply the code and arrive at a decision. They may well be criticised for it and held to account for it; so am I and that is absolutely right. But the fact that we give our reasons, which is something I have been very keen on in my term of office, go out and explain ourselves, answer questions about our decisions, if necessary put further reasons forward so that we can be even more transparent, is all designed to show our workings.

Q373 Michael Ellis: Yes, quite right, and I agree with that. Can I move on and ask you about the so-called SOCA list? I am not going to ask you to divulge anything, but I want to ask you something as a matter of general principle, which is that knowing what you know about the criminal justice system, do you think it is in the interests of justice for alleged offences, where there are some, or suspicions, effectively to sit around for seven years and for nothing to happen with them? Do you think that might be tantamount to an abuse of process caused by delay?

Keir Starmer: It depends on the circumstances but as a general proposition it is not right.

Q374 Michael Ellis: Yes. When you say it depends on the circumstances, if prosecuting authorities, to give an example, do not know all the facts and there is that sort of delay, then clearly there is no issue there. There is no fault there, or there may not be any fault. But clearly where there is or may be some fact, then a delay of that order is not conscionable, is it?

Keir Starmer: It is hard to deal with in the abstract but the case law is pretty clear. Delay is a basis for an abuse of process argument. The court, if such argument arises, will look at the reasons for delay and if it thinks that it is the failure of the prosecution to act properly, that counts against the prosecution in the abuse of process argument. Courts will then stop a case if appropriate.

Chair: Thank you. Mr Ellis, a final question.

Michael Ellis: No, that is it from me, thank you.

Q375 Chair: Mr Starmer, in response to inquiries at the end of last weekend you said that the Crown Prosecution Service was reviewing evidence in regards to Millipede of police officers who may have accessed databases for private investigators. Is that correct? Are you involved in any way in any of the aftermath of Millipede? Have you asked for any review of any kind?

Keir Starmer: I have not been involved. Can I write to the Committee and just clarify the proper position and put it to you in a letter?

Q376 Chair: Would you do that? But in respect of any of the activities concerning Millipede, is the CPS involved? Are you currently considering any proceedings?

Keir Starmer: I think I would rather put that in a letter, if I may.

Q377 Chair: Certainly. Very finally, you are off now. Your predecessors have gone back to the bar, some have become judges. I will not ask what you are going to do next, but what do you think your legacy is for the Crown Prosecution Service, which you have served so well over the last five years? What we have seen is greater transparency and we have seen your Crown prosecutors on television much more explaining decisions, as you said. You are very much alive, but on your tombstone what would you like it being said of you as Director of Public Prosecutions?

Mr Winnick: He may not have a tombstone.

Keir Starmer: Well, I do think it is for others to decide the legacy of DPPs rather than the DPPs themselves. What I hope I have worked hard at is being much more transparent, being prepared to say upfront how we will approach a problem by issuing guidance on difficult matters like assisted suicide, social media and child sexual abuse, so being clear upfront about how we address this problem. Going on from that, we are showing our workings by being prepared to give reasons for what we do and allowing people to see for themselves what the decision is and to judge us and hold us accountable. I have often said I can’t be held to account if people do not know why I have made the decision that I have made. Then I hope I have also introduced another element, which is a willingness in the Crown Prosecution Service to look again at issues or decisions if there is any reason for concern about those decisions.

I would have to add that I would want to pay tribute to my staff. In the period I have been in post, we have taken savings of 27.5% to our budget. Notwithstanding that, the conviction rates have been upheld and on the performance indicators we have improved. I am not saying everything is perfect, far from it, but to have done as much as we have done in the most challenging circumstances that the Crown Prosecution Service has ever been through in its history is a tribute to the staff.

Q378 Chair: Yes. We get no more stories about files not arriving at court on time or getting lost. These have all disappeared in the last five years.

Keir Starmer: We will soon be in the position where the digital file is the main currency and the concept of losing the file will be an ancient concept associated only with paper.

Q379 Chair: On behalf of this Committee, thank you, first of all, for your co-operation with us. Whenever we have asked you to appear, whenever we have asked you for information, you have been very forthcoming, very clear. You have been an excellent DPP and, on behalf of the Committee, I wish you the very best for the future.

Keir Starmer: Thank you very much indeed.

Chair: Thank you. That concludes this inquiry.

Prepared 31st October 2013