16
Examination of witnesses
Rebecca Niblock, Élise Martin-Vignerte and Joanne Jakymec.
Q1 The Chair: Good morning everyone and welcome to the House of Lords Justice and Home Affairs Committee and the start of our short inquiry following a report by a predecessor committee on policing, law enforcement and security, “Beyond Brexit”. We have apologies from Lord McInnes of Kilwinning and Baroness Sanderson of Welton, and Lord Blunkett is on his way but has been delayed. He will slip in shortly. I am very grateful to our witnesses for joining us this morning.
To leap in with a fairly general question, Part 3 of the Trade and Co-operation agreement, known in many circles as the TCA, has been in place for a couple of years—obviously, Covid caused a hiatus. Its purpose is to provide for law enforcement and judicial co-operation between the UK and the EU in the prevention, investigation, detection and prosecution of criminal offences.
From your points of view, how is it operating? In particular, one witness to the previous inquiry talked about the need to finesse domestic legislation following the TCA. Do you have comments on any aspects of our domestic legislation that need attention after a couple of years of practice?
Joanne Jakymec: Co-operation continues to work well—that is the headline. The trade and co-operation agreement provided a streamlined framework for judicial co-operation between the UK and EU member states. However, for the Crown Prosecution Service to achieve that co-operation, we had to enhance our capabilities and engagement levels fully to be able to utilise the tools now available to us. The work that we did prior to this, in the two-year build-up to exiting the EU, was key to our operational success.
We have a network of CPS prosecutors based in-country who have been a real asset, enabling us to facilitate co-operation in respect of our casework and we have called on them to support us in that regard. We also refocused our network of liaison prosecutors into EU member states so that we get that additional level of support. In the main, co-operation absolutely continues to work well, but there has been an impact on Crown Prosecution Service resources and we have incurred additional costs to ensure operational effectiveness.
The Chair: Thank you. I should have said that you are speaking as head of the International, London and South-East Division of the Crown Prosecution Service. Before we go on, I remind members that, if they have an interest, they should declare it the first time they speak as this is the first meeting of the inquiry.
Élise Martin-Vignerte: Good morning everybody. Thank you for the invitation to this meeting. I am here on behalf of the European Criminal Bar Association, an association of European defence lawyers with a strong connection to the UK. My evidence today will be based on our experience on the ground. We are still in the early days of the TCA from a practitioner point of view because our intervention is mainly at the end of the process, when persons are arrested or the mutual legal assistance measures are executed.
At the moment, we have observed that it is mostly business as usual, but the benefits and flaws of the previous system are still present. I would not be able to comment fairly on any changes to UK domestic law, but they might be directed toward these flaws that have been identified before.
Rebecca Niblock: Thank you for the invitation today. I am here as an extradition specialist, but I also practise in domestic criminal law. I consulted colleagues before attending this morning, in particular members of an organisation called the Defence Extradition Lawyers Forum. From our perspective, anecdotally, we have not seen a great difference in numbers. There are still people being requested and people being surrendered. May I come back to your question on the finessing of domestic legislation later?
The Chair: Thank you. Let us get into the detail.
Q2 Baroness Prashar: My question is about the post-Brexit criminal data exchange between the UK and EU. As you know, the trade and co-operation agreement provides for the UK’s participation in a range of databases designed to facilitate the exchange of information, such as Prüm and the Passenger Name Record data. What aspects of these arrangements have been a success for the CPS? This question is mainly for Joanne but is of course applicable to the others.
Joanne Jakymec: The exchange of information is primarily a function for law enforcement. The National Crime Agency is best placed to assist on the Prüm database and the framework exchange. The Crown Prosecution Service becomes involved with Prüm in respect of two countries, Ireland and Belgium. There is a requirement for us to assist with drafting a letter of request to secure information. Outside that, such exchanges are purely a matter for law enforcement, so it would not really be appropriate for me to comment.
Q3 Baroness Meacher: Our witnesses are giving a very good gloss on things, but I find it very difficult to imagine that there has been no loss from losing access to the Schengen Information System, SIS II, and having this alternative arrangement very much as a third country. Can you point to particular losses that have arisen because of the change from one system to the other?
Joanne Jakymec: As you have referenced, SIS II is a real-time information-sharing system, operated by law enforcement agencies. I believe they are due to give evidence to this committee and are better placed to assist on that. The CPS involvement with Schengen and the alternative system comes when we are required to request a wanted diffusion notice, following the issuance of a TaCA warrant. That is a notice circulated via Interpol to enable us to arrest and detain a requested person who is subject to extradition. There is no impact on capabilities from a CPS perspective in preparing those wanted diffusion notices to accompany the warrant. However, it is clearly now more resource intensive for us to do that. There is extra work to be done on the administration and assurance processes to ensure that that is the appropriate step.
Baroness Meacher: Can you give us some indication of the size of that increase in resource?
Joanne Jakymec: I cannot really give you the proportionate increase from putting out those notices, but there are extra stages that prosecutors must go through now to complete that additional step. As I said, the assurance process is also required. It is hard to quantify that in the total additional resource, but clearly it is more resource intensive for prosecutors.
The Chair: The Home Office acknowledged that it is behind in its I-LEAP programme. Have you noticed any delays? Will things speed up once that system is online? I think everyone had expected and hoped that it would not take so long to get going.
Joanne Jakymec: Again, that is a matter for the Home Office.
Lord Beith: I was going to ask about Schengen and SIS II, but Baroness Meacher has already dealt with that and you have answered it quite clearly.
Q4 Baroness Henig: The Government told the sub-committee in 2021 that the Interpol I-24/7 database would fill the void left by the loss of access to SIS II. Has this proved to be the case for the CPS? Have the Government’s promised technical improvements to the I-24/7 database been successful?
Joanne Jakymec: Again, this connects to my earlier answer. The Interpol I-24/7 database is obviously an Interpol system and is operated by law enforcement. It is not operated by the Crown Prosecution Service. Law enforcement is better placed to answer that question.
Baroness Henig: That is not really very helpful.
The Chair: Have our witnesses in private practice noticed any knock-on effects of this? Obviously, it does not directly affect you, but I imagine that you might have been aware of delays, perhaps during disclosure arrangements and so on.
Élise Martin-Vignerte: We have noted an effect; because TCA warrants travel via Interpol, there are, for example, no roadside arrests on foot of warrants because most countries require the TCA warrant to be endorsed by the court. In that sense, there is a delay with TCA warrants. We have not noticed a substantial drop in the number of requests for surrender from the UK in the courts. They are still present and processed and take the necessary time. Further information is often sought from the UK central authority, with delays in replies—as we can have from other countries.
Rebecca Niblock: In my experience, the NCA has been a little more active in looking at the Interpol system. I say that from my experience not in EU extradition cases but outside the EU, in US extradition cases. I have had several of those where people have been arrested on provisional warrants arising from red notices, but that is as a result of the Extradition (Provisional Arrest) Act, enacted around the same time as we left the EU.
The Chair: We are now joined by Lord Blunkett and Lord Liddle, who is a member of the European Affairs Committee, which has a clear interest in this area.
Lord Blunkett: My apologies to the Chair, the committee and our witnesses. I got caught up in the Trumpian playbook on immigration.
The Chair: Lord Liddle, you are very welcome to join in and ask questions. Do either of you want to ask anything following that section? If not, let us move on to extradition and the European Arrest Warrant [EAW]. I hope that this is not Trumpian.
Q5 Lord Blunkett: Could the witnesses comment on one element of the trade and co-operation agreement—the nationality exemption? If I were not a member of this committee, I would not have known that 10 countries appear to have adopted it. That must surely have caused some very real problems for us.
Joanne Jakymec: It is too early to say what the scale is of the impact caused by the nationality bar, but you are right that 10 countries have exercised their right to have it. In fact, the CPS regards a further three countries as having a nationality bar due to the conditions that they impose for the surrender of their own nationals to the UK. The nationality bar is perhaps the most challenging aspect of our exit from the EU. It has made our casework more complex, with less certainty of surrender, and created additional delay.
Additional costs connected to that have also been incurred by the Crown Prosecution Service because we are committed to assuring operational effectiveness. This means prosecutors are now required to take a strategic approach to try to identify the best route to secure justice for victims in a particular case. As I mentioned before, they do that with the support of our liaison prosecutors based in EU member states, who can assist with the specific legislative frameworks of those countries.
We work within the provisions, but it is absolutely more challenging. We hugely encourage the Government to continue engaging with EU member states to try to strengthen our ability to prosecute cross-border crime—for example, as is happening at the moment with Poland, which has a nationality bar. Work is ongoing for Poland to change its domestic legislation, which would allow us to secure the return of Polish nationals. That is a challenging aspect of this.
The Chair: I understand that the 10 member states are Croatia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia and Sweden. What are the three additional countries, and what requirements do they impose?
Joanne Jakymec: The three countries are Austria, the Czech Republic and Portugal. The additional restrictions are further conditions around the type of offence for which they would be prepared to surrender an individual. It is that kind of condition that precludes them. We take the view that it is right to treat those countries effectively as if they had an absolute nationality bar, and to put in a strategy so that we should be able to overcome that.
Lord Blunkett: Could you say a word or two about the strategy?
Joanne Jakymec: Our options where a country has an absolute nationality bar include putting out a wanted diffusion notice in other jurisdictions around that country in the event that the individual travels, can be arrested elsewhere and then returned to the UK.
We also explore a transfer of proceedings to see whether that might be an appropriate route—where the prosecution takes place within the country where the individual resides. However, that is quite a complex route to work through as we must look at the country’s legislation and in particular at the available support for a victim or witness if they are required to travel. Having to go to another country to seek justice in their case can be a stressful prospect for a victim of crime. The other option—potentially, but not until someone is convicted—is the transfer of a sentence.
There are options that we can explore but they are challenging and resource intensive. They add further delay to us being able to progress to a criminal justice outcome.
Lord Blunkett: Have these 13 countries provided an exemption for counterterrorism measures?
Joanne Jakymec: The absolute nationality bar for the 10 individual countries covers all offences.
Lord Blunkett: Including suspicion of engagement in terrorism.
Joanne Jakymec: That is my understanding. It is an absolute nationality bar.
Lord Blunkett: Thank you. Before the European Arrest Warrant was introduced, we had major problems. It took 10 years to extradite one individual from France.
The Chair: I will pursue this a little with two rather different questions. First, although I obviously do not expect you to comment on individual cases, are you giving up on certain cases? Quite separately, how do you explain this to victims of crime?
Joanne Jakymec: We are absolutely not giving up on cases. That would not be appropriate. Obviously, we have a commitment to secure justice.
The Chair: But you must gauge what is in the public interest in terms of resources and so on.
Joanne Jakymec: Yes, of course we do. That is why there is benefit in putting out the speculative wanted diffusion notice in the event that somebody may travel. Clearly, there is no timeframe around that, but, once it is issued, we wait and hope that there is travel that enables us to extradite and, ultimately, secure justice. We are not giving up.
On discussions with victims and witnesses, all we can do is apply the law as it is now and explain that law and the position to the victim or witness. We reassure them that we are doing everything possible within the bounds of legislation that we operate within.
The Chair: Does the diffusion notice take us back to SIS II information, or am I joining up the wrong dots?
Joanne Jakymec: No, you are not joining up the wrong dots. The wanted diffusion notice goes via the Interpol system, not SIS II. The Interpol system circulates that warrant on our behalf.
Lord Sandhurst: I have a simple question, but the answer may not be simple. The first complete year of this was 2021, and 2022 was the second. You may not have collated the figures for 2022, but how many cases were there in 2021—and in 2022, if possible—where you would in the past have extradited from these 10 or, query, 13 countries but now had them refused?
Joanne Jakymec: It is very difficult to quantify that, but roughly 10%.
Lord Sandhurst: What numbers are we talking about? I do not know whether that means 10, 100 or 1,000.
Joanne Jakymec: On average, we have 350 TaCA warrants live at present, so roughly 10% of those might be impacted, but at different stages. We are working through that. It is very early to make any form of assessment.
Lord Sandhurst: If you were to look back at the requests that you issued under the old system—2020 was the last complete year—do you know how many requests for surrender you issued?
Joanne Jakymec: I am sorry, I do not have that data, but I can provide it.
Lord Sandhurst: It would be helpful to have some idea of the scale and the impact and what this actually means—that is, what it was in 2020 and 2019.
Lord Blunkett: 2020 would have been affected by Covid.
Lord Sandhurst: That is a very good point. So, could we have the information for 2019 and for the last two years?
The Chair: We can pursue this after the meeting, because obviously Joanne is one part of the CPS—regionally, as it were.
Lord Sandhurst: That is all I wanted to ask.
Lord Filkin: Lord Sandhurst has asked exactly the question I wanted to explore, on the numbers.
Baroness Meacher: I am very alarmed by Lord Blunkett’s question on terrorism. Can you give us an example of a terrorist case where we have not been able to get the person extradited? Can you talk about that? I would like to understand the implications of what has happened.
Joanne Jakymec: I am afraid that I do not have that information. Obviously, it would not be appropriate to talk about any cases that are currently live.
The Chair: We have witnesses next week from the police. Maybe we can warn them that we would like more information on this.
Q6 Baroness Prashar: We talked about specific numbers but, if you were to stand back, have the arrangements put in place for the surrender of criminal suspects been effective? How quickly do you actually get that surrender?
Joanne Jakymec: Co-operation continues to work well, in the main. That is down to the hard work of prosecutors and all those involved in the system, to whom I referred. We recently had an extradition case, a murder case, where the suspect was arrested two days after we issued the TaCA warrant, and 10 days later the decision to surrender was made by the EU member state’s judicial authority. That is one of many examples that demonstrate the effectiveness of the framework. There are absolutely positive examples. In the main, it works well.
Baroness Prashar: You get good co-operation from EU institutions.
Joanne Jakymec: Yes, we do.
The Chair: Do our other witnesses want to comment on this area?
Élise Martin-Vignerte: On the effectiveness of the TCA warrants, I can confirm what my colleague from the CPS said. It is working. We have some countries where TCA warrants are processed slightly more slowly than EAW warrants. For example, in Italy the new legislation provides for an EAW to be dealt with in 15 days while a TCA warrant takes 60 days. The requirement to establish dual criminality takes a little more time compared to the tick-box exercise that we might have had before with the EAW. To take my colleague’s murder example, usually double criminality for this type of case is quite easy to establish.
Rebecca Niblock: I have nothing to add to that.
Q7 Lord Sandhurst: When the TCA was introduced, the Government welcomed what they described as the introduction of a proportionality test and the protection of various rights in the new surrender arrangements. What has been the practical impact of that? Does it not bite both ways, making it easier if we do not like a country’s judicial system to find some reason to say, “No, you can’t extradite Mr X because we think this is a political charge”? That is really what it is aimed at, is it not, or am I wrong?
Joanne Jakymec: No, you are not wrong. The domestic judiciary is very skilled and experienced in dealing with proportionality. It is well equipped to determine whether a warrant issued under TaCA achieves the principle of proportionality within our existing provisions. It is not really a new aspect as such because proportionality is contained within our domestic legislation for accused persons. The court will routinely consider whether extradition is compatible with the Convention rights both for accused and convicted persons. The proportionality aspect of this operates very well and is not really any different to how it operated previously.
Élise Martin-Vignerte: I am afraid I will have to disagree. As defence practitioners, we had great hopes for proportionality to be included in the TCA, in writing. The UK had a very special place before, where legislation provided for this control of proportionality. That was not something you could find across other member states in Europe. Unfortunately, it seems that member states have continued their old practices, and proportionality is not really controlled by the courts. We are yet to see decisions refusing extradition to the UK purely on the basis of proportionality.
That also brings us to the problem of the lack of effective remedy in the interpretation of the TCA. At the moment, there is no overarching organ interpreting the TCA and ensuring that the jurisdiction properly implements it. This void has been filled by domestic courts, which leads to diverging interpretations. In the long haul, we will have increased uncertainty around the interpretation of the TCA. We must be conscious of that. Proportionality is a really good example of a right and a criterion of the TCA that, at the moment, is not properly applied.
Lord Sandhurst: Your concern, as a European lawyer, is that someone from Romania might interpret it one way and in Poland it will be applied in a completely different way. I am just taking the names of countries as examples, not saying it is actually like that.
Élise Martin-Vignerte: That is exactly the problem. Courts are presided over by judges, who are human and have different interpretations sometimes of a single piece of legislation or provision. Without the oversight of an organ—a court or another body—we do not have this uniformity of interpretation. It is very early in the day to be seeing substantial divergence of interpretation already, but that is where we might be led in future.
Rebecca Niblock: My view is that the idea that there will be increased protections as a result of the TCA for requested persons was overstated. I do not think that the provisions provide anything above and beyond what we had with the previous system, for a couple of reasons. First, a proportionality exercise is already built into the EAW system; that is supposed to be undertaken on the issuing state side. As both other witnesses have said, it was already open to the courts to refuse to surrender on the grounds of fundamental rights or proportionality.
Secondly, even if those changes were substantial and provided new grounds for refusal to surrender, the primary legislation here—the Extradition Act—has not changed significantly. There is some legal uncertainty about how to apply the surrender provisions of the TCA in practice.
It is surprising—I have sensed some surprise—that the TCA has been successful in replicating the EAW, but, to that extent, the problems that we had with the EAW remain. Along with proportionality, I also highlight the question of whether there has been a decision to charge. That is still an ongoing problem in arrest warrant cases. A cross-border arrest warrant such as the TCA one is a powerful, coercive measure that should not be used unless it really must be. It should not be used for questioning, but it is still used for that.
For example, a colleague I heard from through DELF, Noam Almaz, had several examples of cases where his clients fought extradition and were surrendered. In one case, the person had been released after two days and should never have been extradited. In that case, mutual legal assistance should clearly have been used rather than that powerful, coercive measure.
Another problem to highlight that applies across TCA warrants and EAWs is that of detention conditions across EU member states and the practice of giving assurances. For example, where you are unable to trust that a person’s human rights will be respected in the prison conditions in that country, that country will give an assurance that the person will be properly treated. There are numerous examples of such assurances being breached and there is little that one can do about that. Those are two more examples to highlight.
The Chair: Thank you. Joanne, do you want to come back on this?
Joanne Jakymec: No, I have nothing to come back with, except that Rebecca’s examples relate to export cases rather than import cases into the UK.
The Chair: Let us continue on the subject of mutual legal assistance.
Q8 Baroness Shackleton of Belgravia: Extradition deals with the movement of people—criminals. That is based on evidence. Are the provisions in the TCA dealing with mutual legal assistance being applied mutually, in a reciprocal way that is of benefit to everybody, or are we now stigmatised? Do you find that people are not as helpful as they were before? Could things be improved?
Joanne Jakymec: The trade and co-operation agreement effectively tops up the European Investigation Order framework in place previously[1]. We have not seen any perceivable difference regarding the effectiveness of the system, I am pleased to say. That is due in part to the support of our liaison prosecutors based in-country overseas who work with their counterparts on the ground to explain what is required and why it is necessary, and ensure that we submit the relevant required material.
I can give you another example of a recent murder investigation where we were able to obtain assistance to search a property in an EU member state, recovering some vital evidence within a matter of days of issuing that request. That was really positive. Generally, the total timeframe from receipt to execution of a request is 135 days, so to receive it within a matter of days following that request is a really good example of excellent co-operation.
Ongoing work led by the Home Office is looking to agree a standard template for mutual legal assistance under the trade and co-operation agreement to, we hope, streamline the process. Clearly, that is a matter for the Home Office, which would be better placed to assist you. Certainly, my experience is that—
Baroness Shackleton of Belgravia: It is business as usual.
Joanne Jakymec: Yes, it is business as usual. We had another video link request, for example, executed within four weeks of being issued, well within the timeframe. We see good levels of co-operation for mutual legal assistance.
Baroness Shackleton of Belgravia: That is encouraging.
Joanne Jakymec: Yes, absolutely.
Élise Martin-Vignerte: As defence lawyers, we intervene towards the end of the request for mutual legal assistance, when the measures are executed or where the police or the jurisdiction’s prosecution intend to rely on the evidence.
It is correct that most of the provisions that were in the EIO can now be found within the TCA, but not all the rights enshrined for suspected or accused persons are present in the TCA. For example, under the TCA there is no obligation for the state to provide a legal remedy against the investigating measure equivalent to that provided under domestic law, which was a feature of the EIO. In short, you could challenge an EIO in the same way as you could challenge a domestic measure of investigation. Now, there is no obligation on the state to grant that.
In the same way, an accused person or suspect under an EIO could apply for an investigating measure, which is not guaranteed with the TCA. It happens in some member states but not in all of them. Again, it is very early for us to have a proper overview of that. Those are our preliminary observations.
Rebecca Niblock: I have nothing further to add.
Q9 Baroness Chakrabarti: You will all know that, periodically, perhaps even today, the UK Government flirt with leaving the European Convention on Human Rights or, short of that, amending the way in which those rights are enforced in the UK. Part 3 of the TCA can be terminated immediately or suspended if the UK leaves the ECHR. What would be the practical consequences if the UK could no longer draw on those arrangements in Part 3 of the TCA? What would be your biggest concern arising from that?
Rebecca Niblock: The most obvious immediate consequence would be the cessation of extradition from EU member states and from the 45 Council of Europe states, along with the loss of the ability to rely on co-operation in criminal matters. A secondary consequence, which would make the resumption of cross-border co-operation in criminal matters more difficult, would be the loss of mutual trust.
On the cessation of extradition relations, there is not an obvious mechanism to replace the TCA arrangements. The fallback position would be the 1957 Council of Europe Extradition Convention. As a non-member of the Council of Europe, we would have to be unanimously invited back by the remaining Council of Europe member states. There would be the possibility of negotiating bilateral agreements with all those countries, but the sticking point might be the UK having to give guarantees in respect of fundamental rights.
Coming back to mutual trust, without wishing to state the obvious, extradition arrangements—within the EU or beyond it—depend on the trust that one country can have in another country. You are sending someone who may be a national to that country to face its criminal justice system. The European Convention on Human Rights has been key in establishing that trust. As a minimal set of principles, everyone who signs the convention agrees that they will stick to it. As Lord Bingham said of those Convention rights, no one in a free, democratic society such as the UK should be required to forgo them.
Without that, where a country says, “We don’t agree with this set of principles”, as Russia recently has, other countries will say that they are not prepared to trust it. That is one of the reasons why people are not being extradited to Russia now, as far as I know, from any European country.
Coming back to your question, my biggest concern would be an almost guaranteed impunity, for a time at least, whereby a person could come to the UK, commit an offence and jet off. If there were no extradition arrangements, they would not face justice.
Élise Martin-Vignerte: I would distinguish between leaving the ECHR only and leaving the Council of Europe entirely. Leaving the ECHR would have a very strong impact on the UK, which would be placed at an extremely high level of mistrust by other member states due to the loss of mutual trust. In terms of mutual co-operation and extradition, there would be very tough scrutiny of the UK’s domestic legal system and prison conditions, for example.
If the UK left the Council of Europe, as highlighted, there would be a loss of all the conventions on extradition and on mutual legal assistance. The primary concern in terms of extradition would be an offender’s impunity. It would also bring extradition back to the diplomatic and political level, which was the case prior to the conventions, which put extradition at the judicial level. Courts were dealing with extradition requests, not the Executive. There was no conflict of interest, or at least no suspicion on that side. There could be a reintroduction of that kind of issue that we had before.
Baroness Chakrabarti: You made a distinction between pulling out of the Convention and pulling out of or being ejected from the Council of Europe. Do you really think that that distinction works? Is it practically feasible to stay in the Council of Europe, having pulled out of the Convention?
Élise Martin-Vignerte: I think that would be an extremely difficult position to maintain.
Joanne Jakymec: It is difficult to speculate about what would happen in those circumstances. We would need to step back, reflect and review the impact. Clearly, any loss of tools would reduce our collective ability to tackle cross-border crime.
Lord Filkin: I might be ignorant, but I am not aware that this has been given much publicity as a risk or an issue—at least among the general public. If not now, will you send us a note on the type and estimated number of extradition cases that are likely to be frustrated either way as a consequence of our no longer being in the ECHR? Is that a reasonable and possible request?
Joanne Jakymec: From a Crown Prosecution perspective?
Lord Filkin: I would expect you to be a bit cautious, but maybe the defence barristers could.
Joanne Jakymec: It would be very challenging for us because we would be speculating on what we were left with and its impact.
Lord Filkin: Could you give a historical view of the number of cases that were extradited when we were in the ECHR over the past 12 months or so, which would then be thrown into question as ones that will probably not be extradited in the future? Would that not be possible?
Joanne Jakymec: We could look at that, but we would need to review the impact of what was in place, if anything, so there would be an element of speculation.
Lord Filkin: I was asking for a worst-case statement.
Joanne Jakymec: I will take that away.
Lord Filkin: Élise, Rebecca, could you give a note on that subsequently?
Rebecca Niblock: Respectfully, we do not need to speculate, because we have seen it happen with Russia. It would mean the end of all extradition requests to and from Council of Europe states.
Lord Sandhurst: I thought Russia never extradited anyone, anyway.
Rebecca Niblock: But we did extradite to Russia.
Élise Martin-Vignerte: I was going to refer to Russia as a good example of the consequences on extradition of leaving the ECHR.
Lord Filkin: It would be pretty dramatic, by the sound of it.
Rebecca Niblock: Yes.
The Chair: As you say, the termination provisions have not been given a huge amount of coverage. They are pretty complicated, but they are on top of the general termination provisions in the TCA. There is particularity in this area. Baroness Meacher, you were going to ask about the Council of Europe conventions. In the light of that exchange, is there anything else that you want to ask?
Baroness Meacher: It feels as though we are getting a very gentle presentation. If we are thrown out of the TCA, is it not correct to say that we will lose exchange of DNA, fingerprinting, vehicle registration and all sorts of basic information exchange that is fundamental to our judicial system? I am not sure I am getting a sense of how serious this is for this country. I would like some more detail from our witnesses on that.
Baroness Shackleton of Belgravia: We have heard it is working.
Baroness Meacher: I would like far more information from our witnesses on what would happen if we are forced out of Part 3 of the TCA—if, indeed, the Government go ahead with pulling out of the ECHR.
Rebecca Niblock: I do not want to be a doom-monger, but I think that the effect would be absolutely devastating. The idea that we have respect for fundamental rights underpins all our cross-border co-operation, so there would be a significant negative impact. In my previous answer, I said that the effect on extradition would be devastating.
However, more generally, crime is increasingly international and in even the seemingly smallest, most domestic criminal case there is usually some international element involved. There might be a piece of evidence on a server in Ireland, a witness located overseas or a transaction undertaken in another jurisdiction. Without being able to access that evidence, it makes even those purely domestic cases very difficult to investigate and prosecute. The ultimate consequence of that is impunity.
There are other much wider ramifications. Without wishing to doom-monger, at a fundamental level it is a rule of law point. There are lots of things that we have gained from the Convention. One small example is the Osman case, which sets out the obligations of the authorities where there is a risk to life. That is about the protection of victims. Once you chip away at these principles by removing the underpinning legislation, it destabilises co-operation not just cross-border but domestically.
Q10 Lord Sandhurst: Let us try to pull this together. If we come out of the ECHR, we are likely to fall out of the TCA. Is that right?
Rebecca Niblock: Yes.
Lord Sandhurst: Does it follow that, unless or until it is renegotiated, we also lose access to PNR and Prüm? It might be helpful to have a list of the things which go. We would lose PNR and Prüm and the prospects of getting back into SIS II would be rather slender, if not non-existent. Is that right?
Élise Martin-Vignerte: I might stand corrected, but I think that being a member of SIS II depends on being a member of the ECHR. If you are not a member of the ECHR, you lose access to SIS II. As a practical example from the loss of the ECHR, I was talking about scrutiny of the UK system. If there is a request for extradition, the court will take into account preferential access to legal aid, delay in prosecutions and prison conditions—such as whether enough medical care is provided to prisoners—and where a foreign court has such concerns it will ask the UK to provide a letter of reassurance. If the UK was not part of the ECHR, to put it simply, those letters of reassurance would have no weight and courts abroad would not be able to rely on those reassurances from the UK at various levels.
The Chair: That is a serious situation. As has been said, this has not had much attention, although it received quite a lot of attention from our predecessor committee. Perhaps we can pursue it when we meet the Lord Chancellor.
Lord Liddle: We yesterday met a delegation from the Bundestag’s sister committee. The first question it asked us was what we thought would happen with our membership of the ECHR. At a political level on the continent, it is being watched very closely.
The Chair: That is my experience as well. A lot of colleagues in EU countries hope that politicians will have an idea of what is going to happen, without realising that the people they are raising this with are not members of the Government. We cannot answer that question, I am afraid.
Lord Blunkett: It is a blindingly obvious observation, but if, collectively around this table and more generally in the House of Lords, we were not participating in this then we would not know about it. There is no discussion of this outside. The media are simply not covering it.
Lord Filkin: We must rectify that.
The Chair: Indeed. I will not go down that rabbit hole. We are a scrutiny committee. We are not looking for answers of doom and gloom, so when you say that some parts of the system are working well, we are not disappointed. The TCA is due to be reviewed in about 18 months. If there are areas where it is becoming clear that we could do with some development, or which we should be taking up domestically, are you, from your different points of view, able to raise them?
Joanne Jakymec: We are continuing to work with EU member states and the Government to improve operational processes under the trade and co-operation agreement and to develop solutions.
The nationality bar, which I have referenced, is the most significant challenge. Operational activity is generally working well, but it could be improved through enhanced government engagement in pursuit of bilateral agreements between individual EU member states. We would very much welcome and support that. We are doing the work we can with our prosecutors based overseas in-country and our prosecutors and senior international team in the CPS. That is the one area that I would flag.
The Chair: With particular countries?
Joanne Jakymec: Generally, countries where there is a nationality bar.
Élise Martin-Vignerte: There is always room for improvement, even in a good agreement.
I have identified three areas where some work could be done. The first is in relation to the transfer of prisoners between member states and the UK when they are not linked to a warrant, as can be the case at the moment. Currently, the 1983 Council of Europe Convention applies. It is a very slow procedure that requires government authorisation, whereas before we had a framework decision that simplified the matter. Perhaps some discussions could take place around that.
Another one is provision for the mutual recognition of extradition decisions. At the moment, if a UK citizen or anybody is arrested in Spain under a TCA warrant and Spain refuses extradition to the UK, if the person travels to Italy, for example, and is again arrested, the Spanish decision refusing surrender from Spain to the UK will not have any impact on the Italian court—it would not be bound by that, so it would be a repeat.
Let us reverse the situation, with a Spanish warrant coming to the UK but the UK refusing to surrender—the person travels to the Netherlands, which receives a warrant from Spain and decides to execute it because there was no recognition of the UK decision. For more information, I refer you to the statement of the ECBA on that specific issue. It is a very important issue among extradition practitioners.
The last point would be to consider legal aid in cross-border cases. For extradition, the TCA provides for the right to a lawyer in the executing state but also in the issuing state. There is no effective access to a lawyer if there is no corresponding right to legal aid. It is a very difficult question because it depends on member states, but it bears consideration.
Rebecca Niblock: I agree with that. The current system is that TCA arrest warrants are the first port of call for prosecutors and investigators—here I am still talking about export extraditions, so not within the CPS’s remit or responsibility. It is a very rigid instrument and leads to a binary state of affairs: extradite or do not extradite. There should be more flexible measures for cross-border co-operation. It would be helpful if there were more tools to further cross-border co-operation in investigations and prosecutions.
As Élise mentioned, dual representation in both states might allow for some negotiation. When I am privately instructed in cases I always work with lawyers in the requesting state to try to obtain a different or better outcome than extradition, which could mean voluntary surrender or not having to go through this very coercive measure.
Another tool available in the TCA is Article 616, which allows for temporary transfer. The mechanisms in place that might obviate the need for extradition are not there. The arrest warrant is the go-to, knee-jerk response to the investigation and prosecution of cross-border offences. A more flexible approach to cross-border co-operation would be on my wish list.
Q11 Lord Beith: Following those comments, may I ask the CPS how useful in-country prosecution is in the country of residence of the person concerned? How frequently is it used? What mechanisms exist? You talked about in-country prosecutors being part of your structure. Will you give us some background on that?
Joanne Jakymec: We have international liaison prosecutors based in-country, but they do not prosecute in-country. They facilitate domestic prosecutions in England and Wales. They will assist with securing evidence—for example, a video link—and providing assistance to the domestic prosecutor so that we can progress proceedings in the UK. They do not prosecute in that country.
Lord Beith: But you have other mechanisms for in-country prosecution.
Joanne Jakymec: I referred earlier to the alternative to the nationality bar—exploring whether there could be a prosecution for the same offence in-country rather than in England and Wales. That is quite a challenging task to undertake. We have not had one of those yet; it is too early in the use of these provisions to explore how effective it might be.
Lord Beith: So we are looking at something that does not exist at the moment.
Joanne Jakymec: It is within the framework; it is possible but it has not happened yet. It would be inappropriate for me to talk about any current cases where that is being explored.
Lord Beith: Are we looking at something like Lockerbie, creating an almost artificial structure of a Scottish court in the Netherlands?
Joanne Jakymec: I do not think we are in that territory, but it is too early to say what the effectiveness will be of that as an alternative.
The Chair: Many thanks to our witnesses. I am very grateful to all three of you. That concludes the public part of the meeting.
