Part 4 – International Liaison and relationships
88. As mentioned, securing high regard and credibility among the international community is critical when seeking mutual assistance from other jurisdictions.
89. Effective working relationships with other agencies and organisations are therefore essential to securing assistance and successful outcomes.
90. Eurojust is a means of facilitating the co-ordination of international work between the UK and the rest of Europe. It is based in The Hague with the UK desk dealing with the Scottish, Northern Irish and English legal systems. There is a national member and a deputy posted from the UK. It is currently dealing with approximately 350 cases although, as at September 2013, there were only 14 cases relating to Scottish proceedings. ICU has a trainee based at The Hague. The national member works with ICU when dealing with any complex or high profile work on behalf of Scotland. Members of ICU attend on a regular basis at Eurojust to monitor the work and to ensure a presence. Much of their time is spent on forging new relationships, nurturing old ones and remaining visible as a country which co-operates, thus ensuring best co-operation from foreign authorities.
91. Eurojust rules dictate that when a request is sent to more than one country a case is opened in Eurojust so that face-to-face meetings with interpreters can take place between all the countries involved, their prosecutors and police officers. This ensures all parties are fully aware of the circumstances and work together to tackle international crime. We noted that in a case involving incoming and outgoing MLAs, a misunderstanding was resolved during such face-to-face discussions and as a result full co‑operation ensued.
92. Eurojust is an excellent forum for negotiation and mediation. The real value is in having an easy means of communication with other European countries that are part of Eurojust. Feedback from International Liaison Magistrates and from Eurojust officials on ICU was very positive, with Scotland being highly regarded in international circles.
93. The Council of the European Union carry out regular evaluations on member states. These are conducted by independent inspectors chosen by Eurojust. Scotland is evaluated with England and Wales and Northern Ireland as part of the UK. The most recent evaluation took place in May 2013.
94. The preceding evaluation was in 2007, where the UK was commended on their high standard of drafting requests and warrants. The certification process applied by ICU received favourable comments and the flexibility of the Scottish approach in amending or adding to an EAW to rectify defects was singled out as better practice than in the other parts of the UK.
95. There was a recommendation that persons working in this field should have language training to facilitate direct contact between Judicial Authorities. While we found no evidence of specific language training for those in ICU, we found evidence of direct contact in many of the files we reviewed.
96. The only negative issue mentioned in the evaluation was the lack of availability of statistical information on the time taken to complete certification.
International Liaison Magistrates
97. International Liaison Magistrates (ILMs) are based in a number of countries. The UK has ILMs based in Spain, France, the United Arab Emirates, Pakistan and Italy. Their duty is to assist the UK to obtain the best possible assistance from abroad and to facilitate assistance to foreign countries from the UK. They provide advice on legal processes both in the UK and abroad, work with authorities in providing practical assistance such as locating a court for a witness to give evidence by a live link and direct requests to the appropriate person or department. On occasion, they will assist in drafting requests and providing updates on outstanding inquiries. The ILMs work closely with ICU. We found evidence of productive joint working. ILMs report that the quality of work coming from ICU is consistently of a high standard and they welcome the more flexible approach taken by ICU than occurs in other jurisdictions. Their only request was that they would welcome being contacted at an earlier stage in proceedings. The assistance provided by the ILMs has undoubtedly enhanced the reputation of Scotland.
Criminal Justice Partners
98. All extradition work in Scotland is heard at Edinburgh Sheriff Court by a designated body of sheriffs who deal with all extradition matters. The volume of business is consistent with approximately between 30 to 50 ongoing cases at any time with the majority deriving from the EU. While most extradition requests are ultimately successful, they do tend to proceed to a full hearing and approximately 10% of cases are continued to allow the Crown to obtain more information or clarification from the foreign authority.
99. Overall, feedback from the judiciary on the input of ICU is extremely positive and they were particularly appreciative of a presentation on extradition that was delivered by a senior manager from ICU at a UK-wide conference on extradition. There was feedback on specific cases including one that had to be withdrawn due to a lack of dual criminality, although the purported crime was rare and the problem was exacerbated by poor translation of a document.
100. Other international matters such as requests for MLA from foreign jurisdictions can be dealt with in any Scottish court. The bulk of such requests relate to taking precognitions on oath, or seeking search warrants.
101. Overall, we found a high level of satisfaction with the ICU team and, in particular, those appearing in court, from the sheriff clerks, defence solicitors and counsel who specialise in this area. There are effective working relationships and ICU regularly assists the defence to obtain information from foreign authorities.
102. Solicitors acting on behalf of accused persons did comment that there could be greater scrutiny of EAWs to identify deficiencies and some were critical of the practice of ICU to decline to give out information about the existence of an EAW. They maintained that such information would be helpful to allow arrangements to be made for fugitives to hand themselves in. However, there are sound operational reasons for the practice adopted by ICU as there is clearly a risk of such information assisting those who are seeking to avoid apprehension and, in any event, there is always the option of surrendering voluntarily to the police.
Interpreting and Translation
103. Due to the nature of extradition hearings, interpreters are often required. Interpreters are obtained by the police prior to and for the first appearance in court and thereafter it is the responsibility of the court to obtain interpreters for future hearings. Prosecutors will make arrangements for interpreters to be present if, for example, a statement on oath is required from a non‑English speaking person in a request for MLA.
104. ICU often requires the services of translators as all documents issued by ICU to other countries must be translated into the appropriate language. In some countries where there is more than one language, care must be taken to ensure that the correct language is identified. This is where local contacts made by ICU through the European Judicial Network (EJN) and other bodies and personal contacts are extremely valuable.
105. Translation has on occasions proven useful in identifying potential errors in outgoing requests including the wrong name of a suspect in part of a document, a reference to the Appeal Court instead of Court of First Instance and the omission of pages.
106. We have found instances where further clarification should have been obtained from the foreign jurisdiction where the meaning was not clear from the original translation. In one particular case, originating from Turkey, where a request was received for a precognition on oath to be taken from an accused, the sheriff refused to authorise the citation of the accused due to the poor translation and a lack of clarity on the questions to be asked and a lack of information on any procedural requirements. The request was returned and re‑submitted by the Turkish authorities.
107. Care is required in monitoring translations to avoid such issues and there is scope for ICU to proactively sift out some requests for incoming MLAs and extraditions where the translation is unsatisfactory.
108. It has to be recognised, however, that the nature of international requests sometimes precludes the opportunity to review documentation in detail due to the urgency of a particular situation. One such example that we reviewed was a case where information was received that a person for whom a warrant was outstanding in England was believed to be coming to Scotland imminently. The priority was to have the warrant certified and executed to safeguard the possibility of apprehension. When the fugitive appeared at court, the terminology of the warrant was found to be unclear and required clarification. ICU successfully resolved the apparent anomaly within days and following a hearing the fugitive was extradited and surrendered to the issuing country approximately six weeks later. We also saw in this case a good example of ICU making direct contact with the judge in the foreign country to obtain information about a new charge on an indictment there (obtained by the fugitive's defence solicitor) which was not referred to in the EAW. This query was resolved quickly due to direct email contact.
Police Scotland Fugitive Unit (FU)
109. To coincide with the establishment of a single Scottish Police Force, a Fugitive Unit was set up in March 2013. It comprises of a small, centralised team that can respond quickly. It has an excellent relationship with ICU. A small but practical change which has enabled closer working is that both the FU and ICU now use the same reference number for cases and as ICU follows a chronological numbering system, it immediately highlights any inconsistencies in the cases both are dealing with.
110. The FU gathers intelligence about fugitives along with SOCA and Interpol and it is their function to trace and apprehend fugitives and to bring them to Edinburgh Sheriff Court as soon as possible after arrest which is usually on the same day, although occasionally they are kept overnight before their first court appearance. Their role is concluded once the fugitive is brought to court. An area of good practice identified by the FU and where ICU operates better than SOCA is that, as a result of the closer relationship between the FU and ICU, if an EAW exists, in cases of urgency, ICU will agree to the arrest as long as the certified copy of the warrant is with the officers (and fugitive) within 48 hours of arrest.
International Assistance Unit (IAU)
111. In addition to the FU, the IAU has recently been set up by the single Scottish Police Force. Effectively this means there are no longer local ILOs throughout the country as their work is now undertaken by the IAU with occasional assistance from local police officers to serve documents, take statements etc. The IAU liaises closely and directly with ICU. The main function of the IAU is in surrendering fugitives to the issuing country once extradition has been granted, and to collect fugitives who are being returned to Scotland. They are informed by ICU of all surrenders and have 10 days from the date of the court order or when consent is intimated to arrange the return of fugitives. In exceptional circumstances, an application can be made to the court for an extension. To facilitate the increasing number of extraditions to Poland and to reduce costs involved, arrangements have been made for Polish military flights to land at Edinburgh airport. This can occasionally factor in some delays to tie in with arranged flights.
Serious and Organised Crime Agency (SOCA)
112. SOCA is the certifying authority for EAWs in England and Wales. It is also responsible for placing markers on the Police National Computer (PNC) that such a warrant exists. SOCA gathers intelligence about those who are being sought, both in the UK and abroad. While ICU has contact with SOCA HQ, there are SOCA officers based in Scotland who work more closely with ICU. One officer operates as liaison officer and sits two days per week in ICU. This is of mutual benefit to both organisations.
113. SOCA has an excellent working relationship with ICU. In one case where the EAW had been issued by SOCA to England, the fugitive was arrested on separate matters in Scotland and SOCA sent the EAW to Scotland for execution. When ICU checked they discovered that the warrant was for non-payment of child maintenance which is not a crime in Scotland or England and thus would not be certified by ICU. The EAW was returned to England where, in accordance with current practice, it would be issued if the fugitive were to be located in their jurisdiction. The warrant would, however, be dismissed as soon as the fugitive appeared in court. This is an example of where ICU has an advantage over the procedures in other parts of the UK. It is our understanding that to avoid unnecessary procedural steps and to reduce delays SOCA and other UK partners intend to introduce a system whereby there is some legal input on issues of proportionality and compliance with their legal requirements on receipt of the EAW before certifying. In addition, they will seek to involve UK lawyers in making direct contact with judicial authorities in the country seeking extradition.
114. One example of an expeditious response by ICU that was highlighted by SOCA related to an EAW destined for England, but at the last minute (29 April 2013) intelligence indicated that the fugitive was heading to Scotland for a brief stay with a family member. SOCA alerted ICU and he was arrested on 30 May 2013 and returned to Romania on 24 July 2013. The rapid turnaround and the co‑operation between the Scottish and English police, SOCA and ICU were commended by SOCA.
115. Another example of co‑operation between Scotland and SOCA concerned two brothers. Both brothers became aware that there was a warrant for their arrest and tried to evade justice. The first brother was arrested in Scotland on 29 May 2012 and returned to Poland for charges relating to fraud, drug trafficking and theft on 18 July 2012. The second brother fled south to England but due to effective co‑operation between ICU, FU and SOCA was arrested in Cumbria on 6 June 2012 following intelligence provided by FU to the English police. He is currently being dealt with under the English system.
United Kingdom Central Authority (UKCA)
116. UKCA is the part of the Home Office which deals with international legal matters.
117. The Home Office represents the UK on policy matters. It relies on ICU to provide contributions and views on how new proposals are likely to affect Scottish law and whether amendments might improve what is proposed. ICU prosecutors also attend meetings between UKCA and representatives of foreign judicial authorities to explain how the legal system in Scotland works. These contributions are valued and we received positive feedback on the relationships that ICU have with foreign judicial authorities and their expertise in the field.
118. UKCA also deals with incoming MLA requests which they pass on to ICU, as appropriate, although as the reputation of ICU spreads and an ever-increasing number of international links are forged, more and more requests are coming directly to ICU.