Oral evidence: Implications of Brexit for the justice system, HC 750
Tuesday 10 January 2017
Ordered by the House of Commons to be published on 10 January 2017.
Members present: Robert Neill (Chair); Alex Chalk; Philip Davies; Mr David Hanson; John Howell; Victoria Prentis; Keith Vaz.
Questions 82 - 167
Witnesses
I: Francis FitzGibbon QC, Chair, Criminal Bar Association, Professor Tim Wilson, Professor of Criminal Justice Policy, Northumbria Law School, Northumbria University, and Michael Gray, Founding Partner Gray and Co Solicitors, on behalf of the Criminal Law Solicitors’ Association.
Written evidence from witnesses:
– Northumbria Centre for Evidence and Criminal Justice Studies, School of Law, Northumbria University
Witnesses: Francis FitzGibbon QC, Professor Tim Wilson and Michael Gray.
Chair: Good morning, gentlemen. Thank you very much for coming to help us this morning in our inquiry. For the sake of the normal form and procedure, we will go through the declarations of interest that we all have to make as members of the Committee. Then I will ask each of you to introduce yourselves and the organisations that you represent, and we will go into the questions. We are grateful for the written evidence that has been submitted, which we also take into account. As is apparent from my register of interests, I am a non-practising barrister, a consultant to a law firm and a former member of the Criminal Bar Association.
Alex Chalk: I am a practising barrister and a current member of the CBA.
Victoria Prentis: I am a non-practising barrister. During my time with the Government Legal Service, a member of my team conducted extradition law on behalf of the Government.
Keith Vaz: I am a non-practising barrister.
Q82 Chair: I think that has covered the works. The non-lawyers do not have to declare anything. Could you all introduce yourselves?
Michael Gray: Good morning. My name is Michael Gray. I appear on behalf of the Criminal Law Solicitors’ Association.
Professor Wilson: Good morning. I am Tim Wilson. I am a member of the Northumbria University Centre for Evidence and Criminal Justice. Thank you for the invitation.
Francis FitzGibbon: Good morning. I am Francis FitzGibbon. I am chair of the Criminal Bar Association.
Q83 Chair: Thank you very much for your time in coming to give evidence to us today. We want to look at some of the practical implications, with Britain leaving the European Union, for legal process and legal procedures, as well as substantive law and so on. We have looked at some of the evidence from the National Crime Agency and a number of other bodies. I wonder whether we can start with some of the key issues that have been flagged up to us. One of those is the position with the European arrest warrant. In a lot of the evidence that has been given to us, it has been stressed as something that is critical—a key thing that people want to try to maintain and that, arguably, the Government should try to maintain. The National Crime Agency told us in their evidence that leaving the European arrest warrant “would pose a huge public protection risk” to the United Kingdom. Those are quite strong words. What is your take on that?
Michael Gray: The European arrest warrant is a tool that has been used since early 2000. We have seen its use grow exponentially. We had a handful of extraditions pre-2000, and now we are looking into the thousands. Alison Saunders has given us figures that there are somewhere in the region of 1,000 extraditions a year. There is no doubt about it: it is a key tool in having those who are suspected and have been convicted of crime sent back to the states that want them brought to justice there. It works the other way as well; we can request that people be sent back here. There are notable examples where serious crimes have been committed and we have been able to get the suspects back and deal with them here in the UK.
Undoubtedly, it is a very powerful tool that is now being used on a daily basis. Here in Westminster there are specialist teams of lawyers dealing with that extradition work. That demonstrates how important a tool it is, not just in the fight against crime but in bringing justice for all those concerned, be they victims, or even suspects or defendants. The ability to be dealt with in a reasonable time is key to delivering justice. Pre-European arrest warrant, the experience was very different. We could be talking in terms of months or years before people were dealt with properly. That is my observation from a practical point of view.
Q84 Chair: You would not disagree with the Crown Prosecution Service view that the EAW is “absolutely vital.”
Michael Gray: No, not at all.
Q85 Chair: I will take Mr FitzGibbon first, Professor Wilson, because I would like to come back to a specific point in your evidence. What is the Bar’s point of view, Mr FitzGibbon?
Francis FitzGibbon: There are costs and benefits to the current system. I think that the benefits significantly outweigh the costs. I will expand on that in a moment, but can I tell the Committee something that the Prime Minister said about this in her speech on 25 April last year? Among other things, she said that the arrest warrant and the passenger name record directive “are worthwhile because they are not about grandiose state-building and integration but because they enable practical co-operation and information sharing.” That sums up the value of the arrest warrant.
It has a slightly troubled history, as I am sure you know, because it required amending in 2014. It was thought that there were unfairnesses in the way it operated. You will know this more than I do, so forgive me for repeating things that are familiar, but it is important for context. Parliament inserted measures to ensure that decisions were proportionate and that, if necessary, less coercive measures than extradition could be used in place of extradition. The difficulties arose from the sheer numbers of cases that were coming into the system. Some of the EU member states do not or did not have a filter on their nationals living abroad. There was justifiable concern that too many cases were coming through, and too many trivial cases—Polish bicycle thieves and that sort of thing—that should not have been clogging up the courts.
The numbers are not really within the control of this country’s legal system. You might say that is a cost to be put on the debit side of the ledger, but, in my view at least, the security and law and order advantages of having the system far outweigh that cost. If you try to imagine what would happen and where we would be if we did not have that system, the default setting would probably be to go back to the 1957 extradition convention, which was cumbersome, awkward and slow, and did not cover offences such as fraud that are plainly transnational offences. The procedures are cumbersome. We would probably have to renegotiate that treaty with the European Union member states, and it would not replicate the relatively simple processes that now apply. Of course, they apply as much to the benefit of this country’s own law enforcement, in that we can request extradition of British citizens from the European Union with the same ease as member states can have their citizens extradited from here. The numbers are smaller, perhaps because we are more discriminating in whom we choose to request, but the mutuality is extremely important and not to be underrated, in my view. There were notoriously horrible cases—for example, that of poor Mr Symeou, who spent a long time in Greece—
Q86 Chair: I was going to come on to that point. Have you come across downsides to it? How do we deal with those?
Francis FitzGibbon: To a great extent, the amendments in 2014 mitigated that risk. We will not extradite people if there is a real risk that their human rights will be infringed—for example, by inhumane prison conditions in the countries that seek their extradition. I cannot say for sure, but that would probably have assisted Mr Symeou or people in his situation. What is interesting is that those cases, horrible though they are, are fairly few in number. I am not an extradition practitioner myself, so please take what I say with a degree of caution, but I understand from those who are that arguments are made, not on a daily basis but very frequently, in individual cases based on potential human rights violations in the country to which the suspect is to be extradited. Those things are examined pretty thoroughly in this country. The same standards apply across the European Union. Whether courts in other countries apply them as rigorously as we do is another matter, but the common standards apply throughout.
Q87 Chair: That is very helpful. Professor Wilson, your evidence indicated some of the studies that you and your centre have done around the differing approaches in different parts of the EU. Mr FitzGibbon referred to that. What is your take on that at the moment? Is there an issue around proportionality? What would we do, if we were outside the EU, to deal with it?
Professor Wilson: I have to caveat what I say more than Francis, in the sense that we were researching not extradition or rendition, but the exchange of forensic biometric information, which is a much narrower field.
Perhaps I can make three general points. One has to look at the European criminal justice co-operation arrangements as a system. I recognise the concerns that have been expressed about the European arrest warrant in the past. One way in which a concern has been addressed is that the question of extradition prior to charges being preferred or instituted will probably be tackled—I am not an expert on this either—through the European investigation order. That is not focusing on just one aspect of the system but seeing how they all interrelate. I suspect that it is rather like a pack of cards. If you try to take some elements out, the whole system may be less effective, because they are mutually reinforcing in, generally, a reasonably virtuous way.
What struck me, from very limited discussions in a very limited number of countries, is that we have an overarching system that produces a degree of commonality between 28 jurisdictions—quite a lot of these arrangements should eventually extend to the EEA countries and Switzerland—but that recognises that everyone has a quite different approach to criminal law. The arrangements do not engage with substantive criminal law and impact on only a very small proportion of criminal law. What is interesting about the 2014 reforms of the Extradition Act in this country is the way in which two elements—no extradition before proceedings are instituted and proportionality—were learned directly from how the Germans and the Irish Republic dealt with those issues. One is for ever trying to achieve a balance between an efficient system and respecting that everyone’s laws are different.
My third point is that one of the problems when it comes to academic research is that it is virtually impossible to say that this particular element of something has that impact, because there are so many variables. When you are looking at the investigation of crime with an international dimension, most of what happens, in terms of the effectiveness of finding and dealing adequately with an offender, relates to the jurisdiction where the offence takes place. Probably in most instances, the international co-operation element is quite small, but it might introduce a vital piece of information that may, for example, result in the identification or confirm the identity of a suspect or provide information about their criminal back story, all of which are important for the jurisdiction. You almost have a situation where the arrangements pull together around an individual case the records of one or more criminal justice systems that have been put together in quite different ways.
Q88 Chair: Does anybody dissent from the view that, broadly, this a system we need to look at? Do you all accept that?
Francis FitzGibbon: Yes.
Professor Wilson: Yes.
Francis FitzGibbon: Can I come back to the earlier point about costs and benefits and the potential difficulties for our citizens abroad? It is worth pointing out that the European Union has adopted what it calls its road map, which introduces common defence rights across the member states. I think they are one of the things we opted out of, but they include the presumption of innocence—it may sound surprising that it was not there already—the right to an interpreter and the right to legal aid. The last two have been particularly important for foreign suspects in legal systems with which they are not familiar.
Chair: I understand. That is a very useful start. Mr Vaz, would you like to go on to some specifics?
Q89 Keith Vaz: To try to get some context, could I ask each of you whether you are in favour of or against Brexit?
Michael Gray: Gosh.
Keith Vaz: Obviously, it affects the evidence you give us.
Michael Gray: I would like to think that the approach we are taking as lawyers is quite factual. In other words, we are accepting of the Brexit decision—the referendum—and are looking at how to facilitate—
Q90 Keith Vaz: That is a politician’s answer; it is quite good. I just want a yes or a no. Are you in favour or against?
Michael Gray: Personally, I am in favour of some aspects and not others.
Professor Wilson: I am not sure whether it is against the Representation of the People Act, but, to be perfectly candid, I voted against Brexit. To give you an academic answer, I do not think that this is a binary question. I feel very strongly that the European Union needs to reform. I share Professor Stiglitz’s views about the risks of the eurozone.
Francis FitzGibbon: Cards on the table. I am firmly against Brexit.
Q91 Chair: Those of us who follow one another on Twitter will be aware of that.
Francis FitzGibbon: Yes. I am aware of the Twitter views, at least, of some Committee members as well. In giving evidence to you today, I am doing my best to be as objective as I can, as I would be if I were representing somebody in court.
Q92 Alex Chalk: Do you think that you are able to be objective? On 27 June, you wrote to Jeremy Corbyn, “I write to you as my constituency MP, to urge you to use your vote in the House of Commons to block the invocation of Article 50 of the Lisbon Treaty, and so prevent the disaster that Brexit will surely bring upon this country.” Do you think that you are really able to bring an independent perspective?
Francis FitzGibbon: Yes, I do.
Q93 Alex Chalk: You went on to say, “We can already see that the collapse of the currency”—this is in June—“and the stock market is sending the economy into a state of shock, perhaps recession. Investments are being suspended or stopped. Pension funds are worth less. Employers will make redundancies, and cut wages. There won’t be enough tax revenue for benefits or basic services.” You have made your mind up about this already, haven’t you?
Francis FitzGibbon: I have made my mind up about Brexit, certainly, but, speaking to you today, I am not allowing my personal views about that aspect of it, which was largely the economic aspect, to influence how I try to assess the likely impact on our criminal law.
Q94 Alex Chalk: This is the last point, just because I think that it should all be out. Do you still take the view that the press you commented on are “feral” and that “self-serving mendacious leaders” are making the case for Brexit?
Francis FitzGibbon: Yes, I do.
Q95 Chair: Not everybody will always disagree.
Francis FitzGibbon: Would you like me to name them?
Chair: You may not be on your own.
Keith Vaz: I won’t ask Professor Wilson or Mr Gray whether they have written to Jeremy Corbyn. We will leave that.
Q96 Chair: We won’t ask you whether you have either.
Francis FitzGibbon: I wrote in perhaps slightly less emotive terms to other Members of Parliament as well.
Chair: I understand.
Q97 Keith Vaz: That is very helpful. Going back to the European arrest warrant, there have been real problems with the EAW. The balance is not in our favour. We tend not to issue many requests—237, on average. The other way—from the EU to us—the figure is much higher; it goes into the thousands. Mr FitzGibbon, how do we deal with countries like Poland, who seem to issue their arrest warrants for people stealing bicycles? How will we deal with that outside the EU?
Francis FitzGibbon: As I understand it, the Poles have instituted a filter on their cases. The fact is that we have the potential for 27 different nationalities coming to this country, and we are looking for only one nationality to bring back to this country when we make requests elsewhere. I do not know how much that accounts for the difference in the figures, but I am sure it must make some difference.
Q98 Keith Vaz: Mr Gray, there will be 27 separate agreements, won’t there, unless this is part of the Brexit arrangements? Given what the Prime Minister said when she was Home Secretary—that coming out of the EAW will cause problems in getting criminals back here and sending criminals over to the EU—either it must be part of those negotiations and part of the core deal or there will be 27 separate agreements.
Michael Gray: Now we are drilling into the detail of what we could ultimately end up with.
Q99 Keith Vaz: Yes. That is why I am interested in it.
Michael Gray: At first sight, I see some huge problems in the negotiation, based entirely on that. For example, Norway and Iceland sought their own bilateral extradition agreement, which mirrors to a certain extent the European arrest warrant that we have now, but there are some significant problems with it that will have to be assailed at some point in the negotiation. First, that agreement was signed a decade ago and is still not in force. We know that those involved in law enforcement say that taking a decade to negotiate this without sensible transitional arrangements is unacceptable and will be a real problem.
Q100 Keith Vaz: This is my final question to each of you. Isn’t this our big opportunity to get right what is wrong with the European arrest warrant—the stealing of a bicycle in a country, as compared with a serious criminal offence in this country? This is our big opportunity to get it right.
Michael Gray: Mr Vaz, you state what is probably the will of all the member states and ourselves: we want a workable, mutually beneficial process by which we can achieve justice in the way we want it.
Q101 Keith Vaz: Indeed. Professor Wilson, do you agree with that?
Professor Wilson: There is an issue about the legal traditions of the member states. It is too easy to lapse into talk about Polish bicycles. We need to respect—
Keith Vaz: But that is the case.
Q102 Chair: Finish your point, Professor Wilson.
Professor Wilson: We need to respect the characteristics of their criminal justice system just as much as we wish to have the characteristics of our criminal justice system respected. I have discussed this particular issue with a single prosecutor in Poland. They are at the extreme end of a continuum between public interest decisions about whether to prosecute, like ourselves, and the principle of legality, where the prosecutor has very little discretion. They are trying to tie that down a bit. Their legal system is changing, but that is how their legal tradition requires them to operate, particularly if victims require the prosecutor to institute proceedings. I think we found a way forward by the reforms introduced in 2014. When you speak to Polish prosecutors, they say, “We recognise that your system operates differently. We think that where you recognise we are dealing with a serious case, we get a very constructive and speedy response from the UK. We can live with a difference.”
Q103 Keith Vaz: Mr FitzGibbon, do you think that there is a big opportunity? There are problems with it. We know that we all like the idea and that we need some kind of mechanism, but Brexit is a big opportunity to renegotiate what we mean by the European arrest warrant.
Francis FitzGibbon: At the risk of being thought partisan about this, it would seem to me elementary that it is easier to renegotiate when you are inside than when you are outside, if that is the aim. If you are inside, you have a stronger bargaining position and can have more influence. I hope that you are right, and that there are positives to be taken from this and that the system can be made to work in a way that people regard as more just and equitable.
Q104 Keith Vaz: Is it better than having 27 separate agreements?
Francis FitzGibbon: It must be. As Mr Gray said, when you consider the amount of time that it has taken for little Iceland to get its arrangements in place, it does not bode terribly well. The same applies to rather larger Norway, who opted out at the same time.
Chair: That is very helpful.
Q105 Mr Hanson: At the end of the day, the question on all of this is, are we able to stay in the European arrest warrant as it is currently constituted post-Brexit? Is that a possibility?
Francis FitzGibbon: If I knew the answer to that—
Chair: We wouldn’t need the inquiry.
Q106 Mr Hanson: What needs to be done by the UK Government in this two-year period to ensure that, if we are outside the European Union, we are still in the European arrest warrant? Like you, I think it is a positive thing.
Francis FitzGibbon: I am not sure you can detach the European arrest warrant from the panoply of other mutual arrangements that exist in the law and order and justice field. I would like to think that there is a way of detaching the whole of that sphere from the bargaining chip negotiations that are plainly going to take place with regard to economic and other matters, because it seems to me that our public safety and protection from terrorism and other serious crime are just too important to put into the mix of poker chips that are likely to be on the table for other things. There seems to me to be so much common interest between the European Union and us on these matters that there should be a way of detaching them from the rest of the negotiation. I hope so. Maybe that is an idle, vain hope, but what is at stake is so fundamental that that should be the way.
Q107 Mr Hanson: We have talked about Norway and Iceland. What particular problems have prevented that 10-year discussion from being completed much earlier?
Michael Gray: We know that one particular problem is the nationality exception. I do not know whether that was part and parcel of why it took so long to sort out. In the run-up to it, Norway and Iceland negotiated an option of applying the nationality exception, which means that they do not have to extradite their own nationals. That may not be an issue for the UK. We might not have a problem with that in the negotiation—I don’t know—but it could be a problem that arises in the negotiation. Far more fundamentally, and this really needs to be turned back to the Government, where do we see the role of the Court of Justice of the European Union? Ultimately, the oversight of that tool rests with that European institution.
Q108 Mr Hanson: If, as Mr FitzGibbon said, we end up with some mechanism that isolates our discussion around the European arrest warrant as part of our negotiations, what is the mechanism in future, post-Brexit, for the UK to contribute to discussions about the European arrest warrant if we are not part of the European Union?
Francis FitzGibbon: Your question answers itself. As with other aspects of this, we will not have a seat at the table. We may be listened to or we may not, but we will have no right to be listened to. That is going to cause difficulties across the piece, isn’t it?
Q109 Mr Hanson: Is that a particular reason why the EU 27 could wish the UK not to be party to it? Essentially, at some point down the line, we will be causing trouble because we have not agreed and signed up to something the other 27 have signed up to.
Professor Wilson: There is a tremendous amount of mutual interest here. When the negotiations start for real, I hope that people will look at mutual interest. Things will be different. We will be outside the EU, but they are our near neighbours and we share a lot of criminal activity. Crypto-crime is very much based in Europe, in terms of the UK, the Netherlands, Germany, France and Spain, so criminals are bringing us together. British justice and policing are highly regarded. People have made a major contribution to the modernisation of criminal justice, particularly in the former Soviet satellite states, and I think there is a fund of good will and a lot of respect.
For our part, we need to recognise that, if we were starting separately, we might not have mutual recognition and the European arrest warrant in the form it is in, but that is where the other 27 states are. They have embedded it in their national legislation. The instrument I looked at involved four or five levels of legislation at the primary Bill level and about four different things. Criminal justice is very busy at the moment. Just as in the UK Parliament, there is legislation in Poland on regular occasions. It needs statutory instruments and orders, and affects the criminal code. Having got there, I do not think there is a huge amount of flexibility, and why should they begin to change the system?
If you look outside the European Union, in a more global context, some people who study the convergence between criminal justice and security say that the Atlantic is bound by two big blocs. There is the US and Canada as a clear bloc; sometimes Mexico comes into the equation. How it will fare in the next four years is an open question, but there are some balances there. On the other side of the equation, you have the European Union. It is rather like trade negotiations or WTO admission negotiations. A lot of these things have to be constructed on a bloc basis, because you cannot do it around lots of different positions. That forms a constraint.
It is also a very dynamic area. We have seen quite a lot of progress and trend in the European Union instruments. Forensic science is changing rapidly. The nature of crime is changing rapidly. Traditional crime is going down across the wealthy part of the globe, but cybercrime is rocketing. We do not know quite how bad the situation is. We need to be in a position where people can go forward with changes that respond to realities created by trends in crime, and that requires a degree of constructive engagement, albeit from different positions.
Chair: That may or may not be within the EU context. We agree on that.
Q110 Mr Hanson: I accept that this is speculation, but do you envisage that the decision to leave the European Union will have any impact, in the legal context in which you are working, on the use of the arrest warrant in the two-year period between now and whenever we leave? What happens to any arrest warrants in or out of the UK that are outstanding at the point when we leave?
Francis FitzGibbon: I have no reason to think that the system will change while we are in the EU. There will have to be some sort of transitional arrangement for overhanging cases that are still in the system after we come out. I would not like to forecast what that will be, but plainly there will have to be something.
Q111 Chair: There will have to be something.
Francis FitzGibbon: Yes. It cannot just stop. There will have to be some procedure for dealing with those people.
Q112 Mr Hanson: I have one final question. Are the Government consulting you on the mechanisms for the potential continuation of the European arrest warrant?
Francis FitzGibbon: They are not consulting me.
Q113 Mr Hanson: What about the organisations that you represent?
Francis FitzGibbon: No, they are not.
Q114 Chair: They have not talked to the representative bodies of the professions.
Francis FitzGibbon: No.
Mr Hanson: I did not mean you personally.
Francis FitzGibbon: No. I meant my body.
Q115 Chair: Not the CBA.
Michael Gray: I can speak only for my body. The Law Society may have more to tell you, but my organisation has not been approached.
Francis FitzGibbon: Likewise, the Bar Council may have more to say on this.
Chair: Thank you.
Q116 Victoria Prentis: If we have to leave the EAW even on a temporary basis, for whatever reason—a breakdown in negotiations—will the 1957 European convention on extradition, which Mr FitzGibbon mentioned, automatically come into play?
Francis FitzGibbon: There would have to be some provision for part 2 of the Extradition Act to apply to European Union nationals, which would, I suppose, require amendment to bring them back into it. I think that would have the effect of bringing the convention back into our law, as far as European Union citizens are concerned, but I am not sure.
Q117 Victoria Prentis: But you think we would have to take that action.
Francis FitzGibbon: I think we would have to do something, if we wanted to continue to have the power to extradite.
Q118 Victoria Prentis: You mentioned the 1957 convention very briefly, and said that it was cumbersome and awkward and did not cover fraud. Briefly, what other differences are there between the convention and the EAW?
Francis FitzGibbon: Again, forgive me for not being an expert in this area of law. I should think that the Committee knows more about it than I do. Can I defer to Mr Gray?
Michael Gray: A big difference is that the convention works through an Executive function, whereas the European arrest warrant is a mutual recognition of judicial decisions. One is a diplomatic channel; the other is a relatively straightforward recognition of judicial decisions across Europe. That is a fundamental problem. In the same way, when we get on to discussing other aspects that probably will not be part of today’s agenda, there is a problem in that we have an adversarial system in the UK, and across Europe, we have an inquisitorial system. That will cause problems. I am sorry for moving on—
Q119 Victoria Prentis: No, it is very helpful.
Michael Gray: It has caused problems with the European prosecutor, because there are nuances in the way our systems operate that are fundamentally different. Fundamentally, that is the problem.
Victoria Prentis: I am sorry to ask complicated questions, but we are all slightly feeling our way. Earlier, you were asked what will happen when we leave the EU, and you answered that question, in so far as you could. Does leaving the Council of Europe make any difference to extradition?
Q120 Chair: That is not necessarily something that anybody here particularly wishes, but we must posit it. I caveat that very strongly.
Francis FitzGibbon: Does that imply leaving the European convention on human rights?
Victoria Prentis: Yes, I think it does.
Francis FitzGibbon: That would make it more problematic, unless the provisions were re-enacted in some way to apply the proportionality tests and the tests that are capable of barring extradition at the moment. We would have to rethink that one.
Victoria Prentis: Yes. That is one issue.
Q121 Chair: It would add a significant extra level of complication.
Francis FitzGibbon: Yes, I think it would. Going back to Ms Prentis’s question—I thank Mr Gray for helping me out with the answer—the process of extradition through the Home Office for non-EU states is much slower and more cumbersome. The EAW was designed to avoid the slowness and administrative burdens that were placed on extraditing to other countries in the world.
Q122 Victoria Prentis: Stepping back for a minute, how would you advise the Government to approach the negotiation on the EAW?
Professor Wilson: Can I pick up the point that you made about feeling our way? No one has been in this position before, if one looks at our relationship in terms of economic convergence and now trying to move away. Most of the world has been moving in the opposite direction. That makes it particularly challenging, but perhaps it creates opportunities to do things differently and to have a more rebalanced arrangement. I think that it will take an awful lot of time and there will be tremendous devil in the detail.
Given that there is almost a blank sheet, I hope that we will be able—if there is willingness on both sides—to freeze some arrangements, such as criminal justice co-operation, so that we do not move down to inferior types of arrangements for a transitional period. I know it is politically problematic, but perhaps when one talks about a transitional phase, one could put it in the plural. The transitional phase in criminal justice might be of a different length to the transitional phase for the financial services industry, so that you are really looking at what needs to be done to create a detailed and workable new relationship that is sector specific. Once you have completed that transitional phase, you can move on to new arrangements for updating the relationship, in the light of changes that occur on both sides, and then some kind of dispute resolution procedure.
I do not think that I can go into more detail than that at this stage. It is very difficult, without knowing quite what the economic relationship is going to be. If it were some kind of EEA-type relationship, there would be some kind of judicial institution, like the EFTA Court. Perhaps at that point one would need to think about whether there was a case for a criminal justice jurisdiction within that kind of relationship. I hope that it would be run by people with criminal justice expertise and not dominated by commercial lawyers. I offer my apologies to the commercial lawyers around the table.
Francis FitzGibbon: It seems to me that the desire to take back control, in this sector at least, is indistinguishable from co-operating very fully with justice and law enforcement across the continent. We will lose control of an important part of our system of law and order if that degree of co-operation is significantly watered down. It seems to me that a negotiation has to start from firm points of principle about the desirability for the protection of the public of maintaining links at least as strong as those we have at present.
Chair: That is very helpful. Perhaps we will come back to some of the points towards the end. There are a few important matters we need to get through in the time available.
Q123 John Howell: Looking to the future, I want to touch briefly on the European criminal records information system. As I understand it, no non-EU member states have access to that. Do you think it will be possible for us to negotiate a type of access to it? How do you think we can go about doing that?
Francis FitzGibbon: I see no reason why it should not be negotiable, but there is a potential obstacle that I see. I am not the only one who sees it, but I see it. In order to get access to that sort of information, we have to be compliant with European Union data protection standards. I understand that at the moment we are just about compliant, and the European Union is willing to forgive any potential lapses in our data protection regime; but if we drift away from compliance when outside the European Union, it will not share data. That would be a very serious blow to co-operation across the piece in law and order and justice. Not just criminal records but the whole picture would be radically altered.
I can give you more detail. There is a case called Schrems, which involves a gentleman complaining to the Irish data protection people about the availability of his personal data on Facebook to the American security agencies. Mr Schrems thought that was not acceptable. The Irish would not interfere, so he went to the European Court of Justice in Luxembourg, which decided that the existing arrangements between the European Union and the United States—a thing called safe harbour—were not a safe harbour and did not give citizens enough protection.
The second point is the implications of the Watson judgment, again in Luxembourg, under the now repealed Investigatory Powers Act here, which said that our system of interception and data retention was not compliant. We do not know whether or not the new Act will fall foul of that. There is also a new directive on data sharing by law enforcement agencies that will come into force in 2018. Those three things will cause a potentially significant problem for this country post-Brexit. Unless we can satisfy the Europeans that our data protection is up to their standards, they will not want to co-operate.
Q124 John Howell: If we look at alternative ways of accessing those criminal records, it all comes back to the data protection issue.
Francis FitzGibbon: The agencies in the European Union will risk being in breach of European Union law if they disclose information to an institution that does not have the standards that apply to them. They will be prevented by law from doing that, much as they might like to.
Q125 John Howell: I want to move on to the second generation Schengen information system. How important is that to this discussion?
Professor Wilson: I am not sure that any of us is particularly qualified to comment like the National Crime Agency. Anecdotally, I think it is important in the sense of ensuring that information is efficiently exchanged and that, for example, where police are disrupting crime, it is possible to prevent people from coming into this country at a point of entry for that sort of purpose. I can’t say more than that. It is an essential part of the system. I cannot go further than that.
Q126 John Howell: I was more curious about whether, since we had opted out of Schengen, it was compatible.
Professor Wilson: It reflects the views of successive Governments. I remember this being around as far back as the Blair Administration. While firmly setting its face against Schengen as a movement area, the UK wanted to be able to get the benefit of sharing information.
Chair: That is helpful.
Q127 Keith Vaz: The headline point is that the European Union gives us access to Prüm, ECRIS, SIS II and PNR. It is a fantastic bouquet of information sharing that allows us to catch criminals. That is the headline, isn’t it? Provided that Mr FitzGibbon does not manage to persuade Mr Corbyn to vote against it, so that it all goes wrong, Brexit is going to happen. Therefore, how do we deal with the loss of SIS II, of PNR records and, indeed, of Prüm?
I want to ask you about Prüm, because we have just signed up to it, very late, but it has not yet gone through the House. It is supposed to do so in 2017—the very year when we will be voting to come out—and will be implemented only by 2020. By the time implementation happens, we will be on our way out. How do we ensure that we keep the best bits of information sharing, while accepting that we are coming out of the EU? Professor Wilson, you are the leading academic here. In your experience, which country has managed to do that?
Professor Wilson: Prüm is very interesting, because it is not confined to the European Union. It is intended that Norway and Iceland should come into the Prüm system, but I do not know quite where they are. The negotiations seem to go on interminably, and there has been quite a time lag in implementing Prüm.
Q128 Keith Vaz: It is up in the air and needs attention in the negotiations.
Professor Wilson: Yes. The Swiss Confederation has also given its judicial authorities and police a mandate to negotiate Prüm membership. As far as I am concerned—ultimately, it is a matter for the Government and their lawyers—because it is based on something more than the EU 27, the whole system should be accessible.
Q129 Keith Vaz: You want to see it continued. You want to see the legislation brought forward and implemented at the same time as we come out.
Professor Wilson: Yes. I hope that it will be part of the arrangements that may be frozen during a transitional phase.
Q130 Keith Vaz: Mr Gray, we as parliamentarians want the defence or the prosecutors in a court—the people you are representing here today, like Mr FitzGibbon when he represents his clients—to have access to ECRIS and all the information in SIS II when somebody is about to be sentenced. That will mean that the court is informed then and there what their criminal convictions are in Slovakia, for example. The worry I have is that we will not be able to do that. Is that what you want to see happen? Do you want to retain SIS II and ECRIS, to enable the courts to get accurate information?
Michael Gray: Anything that improves access to quality data across borders is important in defending citizens, upholding their rights and bringing justice to bear. We want that for every citizen, so the obvious answer is yes; but there is a huge overlap between the rights of the citizen coming before the courts and national security and policing. There will be people, such as those in the NCA, who will tell you a lot more about how big a priority that is to safeguard people in the country as well.
Q131 Keith Vaz: Mr FitzGibbon, until Brexit occurs and we actually come out, we will still be able to find out whether somebody has committed an offence and been convicted in an EU country, because of the arrangements we have. Is it your worry that, when we come out, we will not have access to any of that information?
Francis FitzGibbon: That would be the worst case. There will surely be too much common interest between us and the European Union to allow the thing to go over a cliff at that point. I want to be assured that, if someone lets off a bomb in Berlin and makes his way to London, the police will be able to get hold of the fingerprints of the chap they arrest for double parking, or whatever it is, instantaneously.
Q132 Keith Vaz: You can do that under Prüm.
Francis FitzGibbon: You pretty much can.
Q133 Keith Vaz: Yes, but take the example of someone who has committed an offence in Slovakia. A few years ago, somebody who had committed murder there—he chopped off the head of his employer—came here and did the same thing in this country. We did not know about what he had done, because we did not have access to that information. Until we come out, are you satisfied that we will still have the information we need?
Francis FitzGibbon: Yes. As long as the legislation you refer to is passed, while we are in, it will be in force and that information will be available.
Q134 Keith Vaz: Professor Wilson, do we need 27 agreements or can we have one agreement, as part of the core discussions?
Professor Wilson: I hope we will have one agreement. At the risk of being unpopular, we might also have to think about finance in this respect. It is one thing to have systems such as ECRIS and Prüm, but the European Union has put a lot of money into financing the digitalisation of records and the use of fingerprints and DNA, using modern technology to modern, acceptable quality standards.
Q135 Keith Vaz: Is it your worry that we will have equipment that will not be able to match their equipment?
Professor Wilson: Standardisation is important. That is a much bigger issue. My concern is that, unless the European Union is able to finance the development of digitalised records in less wealthy countries, the information may be there, mouldering on a shelf somewhere, and no one will be able to access it. That is what happened in the case of Zalkalns, who, you will remember, committed a murder in London. The Metropolitan police arrested the man, but there was no opportunity to trace his back story. Hopefully, as far as Latvia is concerned, with ECRIS and European Union investment a lot of those records will have been digitalised. That will have reduced the risks for British citizens, on British streets, reasonably significantly.
Q136 Keith Vaz: Are you telling the Committee, in terms of our report, that it will cost us more to get a computer system that is able to talk to the EU, because the EU has more money to do this?
Professor Wilson: No. I do not think that we could set up a separate system. There will be one system, because of economies of scale and everything else, working to data protection standards within the 27 states. We want access to it that will be reasonably cost-effective, but criminal justice co-operation comes at a price. That is partly what our contributions to the European Union have paid for in the past. We are doing the same sort of thing bilaterally in relationships with Commonwealth countries. The National Police Chiefs Council, through one of its subsidiary bodies, has worked very closely with one of the smaller Caribbean Commonwealth members to digitalise its criminal records system.
Q137 Keith Vaz: Sure. I have a final question for each of you. I would like a very quick answer. The Prime Minister said on Sunday that she did not want us to have just bits of the EU and that the deal is the deal—Brexit is Brexit, to quote her. If we were looking for a bit we really wanted to be part of, the information sharing—the criminal justice stuff—is that bit. Do you agree?
Michael Gray: Yes, I do.
Professor Wilson: I would not go for a bit. It is a system or not. I do not think that one can disaggregate an effective system for criminal justice co-operation.
Q138 Keith Vaz: Sure. Mr FitzGibbon, is the information sharing, to keep out and identify criminals, the bit that we really want to keep?
Francis FitzGibbon: Yes. The primary duty of Government is to protect the lives of their citizens. We do not want to do anything that we do not have to do that will make that task more difficult. I say that without in any way demurring from my general view on Brexit.
Q139 Keith Vaz: We know your views.
Francis FitzGibbon: You know my views very well. This is the critical thing, in my view.
Chair: That is very helpful.
Q140 Alex Chalk: Professor Wilson, I am very interested in the point you made about disaggregating, because I want to move on to Europol and Eurojust. Do they matter? If so, why? Can I start with Europol?
Michael Gray: Again, it is part and parcel of the whole information-gathering process. It is recognised that we have been a protagonist in assisting with Europol.
Q141 Alex Chalk: Sure, but could you say briefly why it matters? Why should our involvement in Europol matter to my constituents?
Michael Gray: Because we are information sharing on matters of serious and organised crime that we need protecting from.
Q142 Alex Chalk: Professor Wilson, what is it about Europol that enables us to do that?
Professor Wilson: Europol is very important for making the system work. I recollect a conversation with a former colleague who was in a senior post in Europol and was quite sceptical in his views on the European Union—perhaps like some members of the Committee. That kind of ability to use the talents of member states to make the system work by bringing professionals together in a community is vitally important. You can see that in the way the Netherlands Forensic Institute and the BKA in Germany took the lead in developing the scientific standards and the IT that underpinned the efficiency of Prüm DNA exchange. UK colleagues have been very important in going to many of the A8 and A2 states, sharing their skills and working with people to make the thing work.
Q143 Alex Chalk: Could we have some concrete examples? We are aware of the secure information exchange network application—SIENA. How does the fact of Europol help a British police officer to solve a crime that may have transnational aspects—for example, if there is forensic information that needs to be seized—and assist that investigation?
Professor Wilson: Europol provides the system. In other cases, it co-ordinates operations, particularly against organised crime in areas such as narcotics. I remember an example where there was a series of very well-organised raids on jewellers’ shops. One of the UK cities affected was Leeds. People would arrive on motorbikes, smash the window, terrorise the staff and disappear. Europol put together an operation that resulted in a spate of arrests in either Estonia or Latvia. Its analysts looked at all sorts of information, such as airline bookings, because the foot soldiers were coming in on cheap flights.
Q144 Alex Chalk: Fantastic. Mr FitzGibbon, I assume you think it is a good thing. If you take that view, can you assist by saying how investigations in Europe are more streamlined than if we have to seek a mutual legal assistance warrant from a country such as the United States? Is that a more bureaucratic and laborious process?
Francis FitzGibbon: You could say that Europol is a bureaucratic institution. It does not investigate or prosecute people; it co-ordinates information storing and that sort of thing. If it works well, it provides information readily and quickly to investigators in other countries. The examples that we have given so far indicate that a body of that sort is necessary. I do not know whether Europol does the job, but you need something to co-ordinate information gathering and sharing across the countries that are signed up to the agreement.
Q145 Alex Chalk: Eurojust is a slightly different organisation. If we were to leave Eurojust, what would we lose? Professor Wilson, you mentioned that you cannot have disaggregation. Can you explain why, if we came out of the EAW, for example, it would preclude some sort of other involvement whether with Europol or Eurojust? Why do you say that you cannot disaggregate?
Professor Wilson: I say that you cannot disaggregate because, in my view, if you take out elements of the system, you have a less effective system for protecting British citizens on the streets. You also have a less effective system for protecting British citizens indirectly, when they are on holiday in Spain, for example. We have a mutual interest in law enforcement.
On Eurojust specifically, you need the two, because of differences in criminal justice structure. To give you a very concrete example, in most countries DNA is held on police databases. In Belgium and the Netherlands, it is held on judicial databases. That results in major problems of co-ordination internationally, unless you have a judicial body as well. That is why the Netherlands and Belgium cannot use Interpol, which is a wholly police body.
Q146 Alex Chalk: Can I be absolutely clear? Are you saying that the only way we can continue with the EAW, or something pretty close to it, is if we remain within Eurojust? Is that your view?
Professor Wilson: To make the instruments effective, one needs to engage on the ground. That is a general issue. Where national Governments are co-operating to deal with international problems such as international crime and threats from terrorism, there needs to be close collaboration between the officials of member states. In that respect, Europol and Eurojust are very important, to make sure that the system is working efficiently.
Q147 Alex Chalk: Is it a sine qua non? Is it an essential prerequisite for an EAW system?
Professor Wilson: It is very difficult, for reasons I gave earlier, to say quite what impact individual parts of the system have on its effectiveness, because there are so many variables around performance. From personal experience, I have seen the role that Eurojust and Europol have played in trying to make legislation within the European Union effective, providing support, establishing operating procedures, providing training and providing helpdesks—that sort of assistance.
Q148 Alex Chalk: If I may, I will move to European investigation orders, which are not yet in force and will replace EEWs. Are they a big deal? If they are, why? Mr FitzGibbon?
Francis FitzGibbon: I’m afraid I can’t help you with that.
Q149 Alex Chalk: Don’t worry. Mr Gray?
Michael Gray: I’m afraid it is not an area in which we have very much experience.
Q150 Chair: This is more for the agencies, rather than for practitioners, isn’t it?
Michael Gray: It is. The crossover between policing and intelligence is the issue here.
Chair: To be fair, we are probably not asking the right people about this.
Q151 Alex Chalk: That is fine. I have one last question. I hope it is something you can assist us with. From the defence lawyer’s point of view, is there any concern at the moment that the shared investigative resources that exist—Europol and Eurojust—put defendants at an unfair advantage? If one were to look at this in poetic terms—the rights of free-born Englishmen and that kind of stuff—is the balance wrong, because the prosecutor now has not just the mighty power of the state, but the mighty power of states, some might say?
Francis FitzGibbon: Our laws and procedures are sufficiently robust to test evidence from a variety of sources, whether they are home grown or come from abroad, to the same high standards.
Q152 Alex Chalk: Forgive me, but can I interrupt for a moment? Suppose, for example, that obtaining forensic evidence from France was key to your defence. Would you have the full panoply of judicial co-operation to allow you to present your defence?
Francis FitzGibbon: No, I would not. In general, these arrangements are law enforcement tools, rather than criminal justice tools. There is a whole separate discussion to be had about the defence. I know that, within the European Union, the European Criminal Bar Association, among others, has worked very hard to persuade the Commission to take defence rights more seriously across the Union. The road map I referred to earlier is one step on the way to doing that. I do not think that the things we have been discussing today have a significant impact on defence rights of people on trial here. Whether we should have more co-operation to get the defence on a similar footing in terms of information is another matter. Whether that is easier within or outside the European Union is a matter for you gentlemen and ladies to think about.
Professor Wilson: Do bear in mind that the forensic science evidence relevant to the conviction for crime in this country will be gathered from a crime scene in this country and compared with an individual who will be presented for proceedings in this country. The international co-operation that may use DNA and fingerprints is simply seeking to identify that person or, if a person has been identified in this country, to try to draw together information about the criminal back record. The value of the forensic evidence and the extent to which it will be tested in court is wholly dependent on our arrangements for criminal justice within our jurisdiction, and issues such as access to legal aid.
Q153 Alex Chalk: It just seems to me that, with EIOs, European evidence warrants and so on, some might argue that the scales have been shifted in favour of the prosecuting authorities and that it is not a level playing field, because those tools simply are not available to the defence. I am reassured that that is not perceived to be a concern.
Professor Wilson: We are talking about quite a specialised group within the criminal justice system. There is a much bigger question about access for the defence to specialist expert evidence and advice on expert evidence.
Francis FitzGibbon: Brexit is unlikely to make the outward-facing part of our criminal justice system look much different. Trials and investigations will continue much as they have done. It is the hidden wiring behind them that seems to me to be at risk, for the reasons that we have been discussing today, with potentially dangerous impacts on cases that do not come to court—things that are missed. It seems to me that that is where the problems arise.
Q154 Chair: That is a fair point. Mr Gray, do you wish to add anything on that? If you are happy with those answers, that is fine.
Michael Gray: I do not think that I can add much. One point that develops slightly from the question you are asking relates to confiscation. As matters stand at the minute, if a confiscation order is made in this country, we can go into another member state—for example, Spain—and say, “We would like you to enforce this order against that property.” I understand that the member state would take 50% and we would see 50% of the proceeds. That provides benefit to both member states from using those tools. There is healthy mutual recognition of the benefits to both countries in enforcing orders of courts across Europe.
We see decisions in our courts dealing with the likes of confiscation. As you rightly question, we are not seeing much in terms of the little man against the might of the state or states. We sort of see it in confiscation work, but we do not see it in anything else. That provides a bit of an insight into the way in which this is operating across Europe and what the drivers are. I do not think it is the issue that it might seem to be at first blush.
Chair: That is very helpful.
Q155 Mr Hanson: We are almost at the end. The final area is the question of the European judicial network in criminal matters. We are looking at whether there is any value in that network and whether, in the event of Brexit, we would lose any value if we were not a member of it. Does anybody want to comment on that?
Professor Wilson: I cannot comment.
Francis FitzGibbon: I cannot really comment, save in the very general terms that it is more helpful to have people at that level communicating freely with each other than not.
Michael Gray: I echo that sentiment.
Chair: Mr Davies, do you have any questions?
Q156 Philip Davies: I was just wondering how much weight we should place on Mr FitzGibbon’s evidence, given that his predictions so far have not really been borne out. Would you like to apologise at this point for your predictions about Brexit?
Francis FitzGibbon: No.
Q157 Philip Davies: What about the stock market collapsing?
Francis FitzGibbon: It took a dip at the beginning, didn’t it?
Philip Davies: It is at record levels.
Chair: Do you have any questions on the evidence?
Philip Davies: So far, his predictions about what would happen on Brexit have proved to be rather poor, so why should we hang off every prediction that he makes now?
Chair: Order. Mr Davies, this is a jury speech. Are there any questions?
Mr Hanson: How many euros do you get to the pound now?
Q158 Keith Vaz: In the overall negotiation that is going to take place, the economy and immigration have been centre stage so far. What you have told us in evidence today, and it has been very powerful evidence, is that there is the hidden wiring. The structure may not change—the courts will still be standing—but the bits behind will make the difference. Do you think that there should be much more emphasis on the justice agenda as far as Brexit is concerned? Obviously, we are going to get it; it is going to happen. The discussions will have to start on 1 April or before that, but so far justice has not been centre stage. Do you think there is a strong case for making sure that the justice portfolio is there, and that the Secretary of State should be at the forefront of the discussions, rather than it just being about trade, immigration and the economy?
Michael Gray: Fairly early on, you asked me whether or not I was in favour of Brexit. The bit from my practical experience, and from my association’s practical observations, about what is happening to our laws, potentially, and what is happening in our country and our relationship with the rest of the world, is that it is disappointing that the justice debate was not had sooner than now, because it would have been useful for the public generally to have seen what an intricate, complicated web of cross-border co-operation we have in place. People worked hard to put in place the road map, for example, and everything else we have talked about today.
Professor Wilson: I suppose we are all hanging on the Prime Minister’s words. I read what she said to the Liaison Committee before Christmas. At that point, the economy was a lead issue and immigration was stressed, but she also mentioned security. It may be that the Government regard criminal justice, in its public protection guise, as part of their security umbrella, so there is at least one statement.
Francis FitzGibbon: May I come back to what the Prime Minister said in April last year? After describing the European criminal records information system, financial intelligence units, the prisoner transfer framework, SIS II, joint investigation teams and Prüm, she said, “These are practical measures that promote effective cooperation between different European law enforcement organisations, and if we were not part of them Britain would be less safe.” It seems to me that that is a good starting point for bringing this whole area into greater prominence than it has had up to now. I hope that my predictions are proved wrong, but I make them nevertheless.
Q159 Chair: I have one final point on that. Being realistic, while we may advise the Prime Minister that those are things that we want to maintain to keep Britain safe, some of them inevitably involve our adherence to international standards—on data protection, example. Mr Gray, you made the point that one issue may be how decisions in the European Court of Justice after we have left affect the development of data protection law. For us to maintain adherence to international standards, do you think it will be necessary for us to have some means of following, shadowing or adopting those on our own part—we know not what—and some sort of relationship with what happens in the European Court of Justice, even though we are no longer bound by it as a state party, in effect? It seems to me that you are saying that we will.
Michael Gray: Yes. It is fundamental.
Q160 Chair: It is fundamental that we have some sort of relationship like that.
Michael Gray: Yes, I think so. Otherwise, the artificiality of what we have will bubble to the fore. Things will collapse and become unworkable.
Professor Wilson: I noticed reaction to that when the same issue came up in relation to civil and family issues. It is inevitable. The question is whether it can in some way be corralled into specific areas, given that we are talking about a very specific area of co-operation, with very clear objectives, and whether—you really need to talk to a public law and international law expert about this—one can use doctrine that is fairly mature now, such as margin of appreciation and proportionality, in order to create something in the structure between the UK and the EU, as we come apart, that limits the scope for intervention. I do not know whether that is possible, but it is perhaps the sort of issue that needs to be addressed.
Francis FitzGibbon: I do not see how we can take the benefits of some of these measures without also taking some of the burdens that go with them. If that means adhering to common standards, whether we are in or out, it seems to me inevitable—a no-brainer—that we will have to do that.
Q161 Chair: The question is whether, at the end of the day, you want equivalency. You are equivalent at the point at which you leave, but you must have some means of continuing equivalency.
Francis FitzGibbon: Yes.
Q162 Chair: Unilaterally or through some arbitral mechanism. It is one or the other, isn’t it?
Francis FitzGibbon: Yes.
Q163 Chair: Is that something you feel has been addressed sufficiently so far?
Francis FitzGibbon: Not in anything I have seen anywhere prominent.
Q164 Chair: Does anybody disagree with that?
Professor Wilson: No, I do not disagree. Obviously, equivalency is coming up in the financial services context. We need some kind of judicial mechanism to enforce equivalency, in our interests, in fair disputes against the European Commission.
Q165 Chair: There is an equivalency issue around the justice agenda.
Francis FitzGibbon: Yes.
Q166 Chair: Ball-park, as a broad term, it seems to me that more needs to be done on this. By the sound of it, there is not a simple or a quick solution, in your view.
Francis FitzGibbon: If we can get it done in two years, it will be quite remarkable.
Q167 Chair: Others have talked about transitions. The test is to get it right.
Francis FitzGibbon: Yes.
Chair: Gentlemen, thank you very much for your evidence. It has been a lively exchange. We appreciate that. We are grateful to you, because it is a serious topic. As you know, we are anxious to get as broad a view as we possibly can from experts in the field. We are grateful to you for your time and trouble. If you have any further thoughts or observations, we are always happy to have further written submissions to elaborate on anything that has passed between us today. Thank you very much for your time.