Ordered by the House of Commons to be published on 4 February 2014
Oral evidence, 4 February 2014.
Witnesses
Kevin Laue, Legal Advisor, REDRESS, and Bruno Min, Assistant Co-ordinator, Fair Trials International, gave evidence.
Chair
I welcome our next two witnesses, who are going to allow us to explore legal and detention systems abroad. We have Mr Bruno Min, the assistance co-ordinator at Fair Trials International, and Mr Kevin Laue, the legal advisor at REDRESS. I thank you both very much for coming. Would you like to make a few remarks by way of an opening statement? We will start with Mr Min.
Bruno Min
Yes, thank you. Fair Trials International has been helping individuals who are facing criminal charges outside their own country for about 20 years. Our experience of dealing with these kinds of cases has given us an insight into how consular services work, not only in the UK, but in various other countries as well. We certainly welcome the Foreign Office’s decision to prioritise consular assistance, and we are delighted with this opportunity to submit evidence today.
Kevin Laue
If I can repeat what has been said, we are very grateful to the Committee for inviting us to give evidence. REDRESS has been concerned about this issue for many years. Indeed, we were formed more than 20 years ago by a British survivor of torture. Although we work in very many different ways, we have always had a particular interest in the torture or mistreatment of British nationals abroad. We are very pleased to be here.
Chair
Thank you; you are very welcome. Mr Laue, have you seen any change in the delivery of consular services and the performance of the Foreign Office in recent years?
Kevin Laue
As we explained in our submission, our focus is very much on consular assistance to people in trouble who are facing torture or mistreatment. In that sense, yes, we have seen a welcome improvement, at least in theory, in how the consular directorate responds to allegations of torture and mistreatment with, for example, the just-finalised new guidelines. More generally, there seems to be a more serious commitment to try to engage with and assist British nationals in vulnerable positions. The proof will depend, as we tried to set out in our paper, on how things are actually done in practice in the future.
Chair
Have you noticed any shift in how things are done in practice?
Kevin Laue
It is a bit soon to say, to be frank. Where we have also seen a welcome improvement, if I can put it that way, is in our own relationship with the consular directorate. We are very grateful for the fact that it is engaging with us and that we can engage with it in several different ways—that is good.
Bruno Min
I think that I would largely reiterate what Mr Laue has said. We are certainly grateful that we have built up a much closer relationship with the Foreign Office over the past few years. In terms of actual impact on individuals who have been arrested abroad, we have not seen much of a change in the quality of service being provided to British nationals arrested abroad. That is all that I can say.
Chair
Last year, the FCO launched a consular excellence strategy. As a result of that, have you seen any changes in service delivery?
Kevin Laue
Again, I would say that, from our perspective, it is possibly too early to say, but we welcome the commitment—it is quite a commitment—to make the UK’s consular services the best in the world.
Chair
Have you noticed any specific change in how services are provided to nationals arrested and detained abroad?
Kevin Laue
We have a rather limited sample of people with whom we have been in touch. There does seem to be an improved policy, or a tendency to try to help people and even to mention that REDRESS can help them when they get back. The sample is rather small. We are keen to have this monitored in the years to come by hearing more from people when they get back to this country so that we can find out how they perceive what happened to them. We have actually suggested ways that could be done.
Chair
Mr Min, have you spotted any shift in the last couple of years?
Bruno Min
We have not spotted any particular patterns or impact that have resulted from the Foreign Office’s policy changes. Our main concern is not so much the policy, but rather the consistency and the standard to which services are divided on a case-by-case, post-by-post basis.
Chair
I think we will be coming on to consistency a little later on.
Andrew Rosindell
Have you seen any evidence that the FCO is reducing the consular assistance that it provides due to a reduced budget?
Kevin Laue
I would say no, not directly. May I mention something that I heard the previous witness say in response to the question about honorary consuls? We did not deal with it in our written submission, but it would be of concern to us if, in situations when a UK national was facing serious threats of torture, an honorary consul did not show the same commitment to rendering urgent assistance. In that sense, if there has been a reduction, it could have an impact, but we do not have any evidence for that yet. We hope that we do not get such evidence.
Andrew Rosindell
If you do not have evidence, what makes you make that point to the Committee?
Kevin Laue
Well, from some limited cases that we have had, that kind of problem has arisen. It was not as a result of a cutback—as far as I know—in the employment of British consular staff. I think of one case where a British national was in prison in Ecuador—this was some time back—and he was not visited by a British consular official. He had a lot of complaints about the way that he felt that this other person was not taking him seriously.
Andrew Rosindell
So it is nothing to do with the budgetary position? You feel that the standard of service by honorary consuls leaves something to be desired?
Kevin Laue
I think it is something that we would hope is monitored closely in situations where British people are in trouble.
Andrew Rosindell
If more money were available to employ or provide more financial support for those who carry out that task, do you feel that it would make a difference?
Kevin Laue
Yes, I would imagine that it would.
Andrew Rosindell
Okay, that is interesting. Thank you.
Chair
Do you want to add anything to that point, Mr Min?
Bruno Min
One of the areas in which we understand that there have been cutbacks is the withdrawal of some staff on the ground in certain European consulates. We do not really know if that has had any significant impact on the levels of consular assistance provided to Britons arrested within the European Union. Our main complaint about how services are provided to British citizens within the European Union relates to the number of visits by consular staff, but we understand that that policy was in place in 2009, before this new consular strategy was established.
Mr Roy
Gentlemen, in relation to the FCO’s partnerships with NGOs, do you think that this is a good initiative to secure specialised assistance or is it just a cheaper option of outsourcing the FCO’s work?
Bruno Min
So far, we are very delighted that the FCO has shown this initiative to work more closely with organisations like Fair Trials International. You will have no doubt noticed from the written submissions that we have been consulted to advise on the quality of the lists of lawyers and training for consular staff in recognising serious violations to the right to a fair trial. However, we understand that there has been a general tendency by this Government to outsource public services—obviously, Fair Trials International does not have a general position on that—but we believe that consular assistance is a key public service that cannot be replaced by civil society. Civil society does provide invaluable assistance to British nationals arrested overseas, but it does not have the network of staff across the world and the expertise that consular staff have on the ground. We do not have the diplomatic leverage that the Government have, which is absolutely crucial, especially in cases where there have been very serious allegations of fair trial abuses, including torture and the death penalty.
Kevin Laue
Very much so, and of course we do not have the right to go and see somebody in prison under the established treaty laws that the UK has.
Mr Roy
Does that mean that outsourcing is right or wrong or that outsourcing is fine, but only to a certain degree?
Bruno Min
We are delighted with civil society in terms of consultation. From Fair Trials International’s point of view, we are happy to be consulted, with the expertise that we have gained over a number of years being used to help the Foreign Office to improve the levels of consular assistance being provided. What we are trying to say is that the role of civil society must be to complement the assistance being given by the Foreign Office—it should definitely not be seen as a cheaper alternative or a replacement service for consular assistance.
Sandra Osborne
In relation to the fact that British nationals do not have a legal right as such to consular protection, do you think that they suffer a disadvantage?
Kevin Laue
Yes, in principle I do. If you have a right you can enforce it, but if it remains at the discretion of the Government you are in a weaker position. As a human rights organisation, we would like to see something entrenched and enforceable. If you ask whether it would make a difference, we don’t know, but in principle it should. If you have a right to something, rather than it being at the Government’s discretion, the chances of it being taken seriously are improved.
Sandra Osborne
What is the position of Fair Trials International on that matter?
Bruno Min
This issue is obviously something that must be exercised in the minds of Foreign Office lawyers. We all agree that there is a certain obligation for the Foreign Office to provide consular assistance, but the question is whether it is a moral or legal obligation. We certainly don’t see any reason why it should not be a legal obligation. Courts will have difficulty in practice, we think, in determining cases in which the Foreign Office is challenged in relation to its provision of consular assistance. We are having to consider many complicated issues to do with international relations. We are dealing with different countries with different legal systems and different challenges. We don’t really know what the actual impact will be, although in 2009 we had a look at a number of different consular services provided by different countries. It was a very small sample, and the only country that seemed to recognise that there is a legal right to consular assistance was Germany. Our report did not find that there were significant differences between how the German authorities provided consular assistance and how the other countries did it, but it is very difficult to predict, and it was a very small sample.
Sandra Osborne
Would it be correct to say that the FCO’s desire to avoid creating a legitimate expectation, and therefore an obligation to fulfil it, means that it cannot provide thorough explanations about the types of consular assistance it can and cannot provide to British nationals?
Bruno Min
The problem that we’ve had from many individuals contacting Fair Trials for assistance is that they have unrealistic expectations of the kind of services that the Foreign Office can provide. Many say that they simply expect the Foreign Office to intervene in their case and to take on the role of their lawyers. In a way, we have found that the message is not being delivered thoroughly. On the other hand, we also have the problem of people complaining that the Foreign Office emphasises too much what it cannot do, and not enough what it can do. We think that there is a risk there. Individuals arrested abroad are genuinely in need of the kind of assistance that the Foreign Office can provide, and they might not have the confidence to approach it to ask for that sort of assistance.
Kevin Laue
If I could add to that, the terminology is important. We must use the correct description, “consular assistance”, which is a legal and policy term. As we said in our paper—this confirms what Bruno said—there is a bit too much emphasis on assistance at the expense of protection. Although we don’t want to use the term “consular protection” because it’s not accurate, in practice that is what we are getting at. We hope that whatever the law is and whatever the legitimate expectation may or may not be, there will be a real commitment by the FCO to protect people facing torture in whatever way it can. Remember, we are talking about a relatively small number, although it seems to be on the increase. Millions of UK nationals have travelled abroad, there are fewer than 3,000 in prison and there are something like 100 complaints a year of ill treatment, so it is a relatively small number. If those people had a really clear legitimate expectation or right we feel more would be done to help them. I want to add another point without going on too long. It is not just in relation to these individuals. The REDRESS position is that this whole thing needs to be looked at in a wider context. We referred to the FCO’s torture prevention strategy, which is very welcome. It came into force in 2011. I know that the Committee examined this a year or two ago. In that strategy there is reference to the problem of UK nationals abroad. We think that if a focus is put on trying to assist people like that, it will have a wider impact. It will not just relate to their own predicament but will be a way of engaging with other countries on how they treat their own nationals and the whole torture prevention, torture prohibition policy. There are quite a lot of other areas involved.
Chair
Can I draw the Committee’s attention to the fact that there is a vote coming, in which case we will have to suspend the sitting for 12 minutes. I hope you don’t mind.
Ann Clwyd
In your paper you say, “Regarding terrorism suspects, we concluded that when consular assistance was most urgently required, it was frequently lacking, delayed or not provided.” Are there geographical areas where this happens or are there particular issues in which the FCO shows a lack of consistency?
Kevin Laue
This was a problem a few years ago. From my recollection, some of these cases arose in Pakistan where consular officials were either prevented or voluntarily stood aside. This is a controversial area, because it is still part of the whole inquiry relating to complicity. The point we are trying to make is that in addition to examining whether the UK security services were complicit—that is a question in itself—there have been allegations that consular officials failed to exercise the basic policy at that time, which would have been to visit people and so on. Pakistan is one country where I think this happened. Sitting suspended for Divisions in the House. On resuming—
Chair
I apologise to members of the public and witnesses for the delay, but that is what happens in Parliament. Ann Clwyd had the floor and she has been held up, unfortunately. She had one more question before I give the floor to Mr Baron. Based on your experience, can you say how the consular assistance to nationals in foreign legal systems or detention compares with assistance provided to nationals from other states? How do we compare with the French, the Germans, the Italians, the South Africans or the Australians?
Bruno Min
As the Committee is aware from the written evidence, we did a report, what we called the Nuffield report, comparing the assistance provided to their nationals by five ministries of foreign affairs. The overall findings were that there is generally not that much difference between the consular services provided by different countries, but again this is a very small sample. The report is quite narrow in the sense that it is focused on trial attendance. There were notable exceptions: the German example of funding representation in certain death penalty cases, and the Australian example of having a general policy of consular staff attending the trials of Australian nationals.
Chair
Does Germany fund the legal costs of people detained overseas in capital punishment cases?
Bruno Min
That is our understanding. That was our finding in this report, but Germany is not the only example. My understanding is that Mexico also has a similar system of funding the representation of their own nationals in death penalty cases. I believe that there are a couple more examples, and I think Austria might be one of them. However, obviously, we are not experts on death penalty cases, so we are not in the best position to comment on that.
Chair
Do you have anything to add, Mr Laue?
Kevin Laue
As we referred to in our written submission, some states have a right to consular protection in their constitutions or in their legislation, but as we do not know how that impacts in practice our comparative expertise is a bit limited. It is also interesting that many of the states which seem to have this right are former iron curtain countries, so it may well have just been a paper right anyway. Their citizens probably weren’t allowed to travel abroad much, so it would not really have had any relevance. We don’t really know whether other states are better in practice.
Chair
Thank you.
Mr Baron
The right to a fair trial is one of the basic tenets of English common law. We are all too aware of the fact that this right is not globally acknowledged. Many countries do not allow their citizens a fair trial, or do not have the institutions to see it through. What can the FCO then do to ensure that citizens have access to a fair trial? What more can they do than they are already doing? Have you made any recommendations to the FCO in that light?
Bruno Min
The FCO actually has two key roles in providing assistance to British nationals arrested abroad. One is to help British nationals with some of the additional difficulties they face as foreign-national defendants. The second obligation or crucial role of the FCO, as you suggested, is to help ensure that international standards are respected in countries where fair trial rights are systematically abused. On the first point, helping British nationals to overcome additional difficulties, the FCO can help to ensure that they have access to legal representation by providing lists of criminal lawyers, for example. The FCO also helps people to understand their rights, so that they are in a better position to exercise them. We accept that it is a lot more problematic in countries where fair trial rights are systematically abused. However, as a good starting point, our recommendation is that consular staff should be trained in the first place to identify where serious violations of fair trial rights have taken place. After that, they have to take a much more case-specific and country-specific approach. Obviously, when dealing with over 200 different legal systems, they are facing different challenges and different cultures.
Kevin Laue
After agreeing with everything Bruno said, I would just add from a slightly different perspective an important issue relating to consular assistance and torture specifically. If the consular officials can be engaged from the beginning, then that would hopefully have some effect on preventing torture-induced confessions. That is only one aspect of an unfair trial, but it is an important element to which is probably worth drawing attention.
Mr Baron
Speaking of how local consular services can help in these sorts of situations, can we move on briefly to lawyers lists, because that has been another area where perhaps more could have been done? There has been no shortage of complaints to say that the lists produced in the past have been inadequate. The information has been incorrect and there have been inconsistencies—for example, in language, competencies and even lawyers broken down by regions and specialities. That has been recognised by the FCO and there has been input by FTI. Can you tell us more about that? How far are we down that road? What more needs to be done?
Bruno Min
So far, Fair Trials International has taken on the task of providing expertise, in terms of providing best practice guidelines for the compilation of lawyers lists. As part of that project, we surveyed the number of posts in the FCO consular network. We had a go at trying to compile a few lawyers lists ourselves. We have produced basic products so far. A few still need to be finished. Now we need to monitor the extent to which our guidelines are being followed and how our recommendations are being followed in practice by posts. I am hopeful that the Foreign Office will take on the challenge of monitoring and ensuring that lawyers lists are produced to a similarly high standard in all countries, despite the difficulties faced in many jurisdictions.
Mr Baron
In summary, with regards to consular services and the FCO actually helping British citizens abroad on these matters, are we suggesting that the only other improvement we can make—we are making one on the lawyers lists—that has any effect is to train staff in consular services better to ensure our citizens are aware of their rights? As far as we are concerned, we are not lawyers and there are consular services, so we will then let it go.
Kevin Laue
I would not put it like that. What you say is partly true, but certainly, if you are looking at torture, consular staff need to understand how to recognise torture, how to keep records of torture, how to deal with particularly vulnerable people, and how to keep proper records and relate back to London. All that is on track, in the sense that there is a renewed commitment to it in the internal guidelines. It requires quite a lot of work over and above training. It means actually doing it, monitoring it and getting feedback in time from the customers—if you want to call them that. It is more complex than just paying one or two visits and then leaving it to the local lawyers. It is about having real understanding of what torture is and how dreadful it is. As I have said, the FCO could have a wider perspective on how it is not just a matter of protecting a relatively small number of UK nationals and how this fits into their overall torture prevention strategy worldwide. There is that link.
Mr Baron
Briefly, are you satisfied that the FCO has clear procedures in place? Should there be what it considers to be contravened rights, illegalities and so forth, will those procedures flow through? Do you think the training is there to deal with, for example, a British citizen who has been tortured?
Kevin Laue
It is looking much better than it was. I go back to the new guidelines. I do not know whether the Committee has read them; they are not a public document. The internal guidelines are much more detailed than they ever were before. The FCO consular director is committed to training. They have invited REDRESS and others to participate. Fair Trials does training. I am hopeful that things will get better, but, to repeat, we will not know unless the consular directorate in due course is more forthcoming, seeks feedback from people and makes statistics public. There is a lot that can be done, which will then show what is really happening.
Bruno Min
Training is just the first step. What is really required at the moment is training but the more important issue is what is done with the training thereafter. What we are trying to say is that in order for the Foreign Office to take a more proactive, objective approach in terms of getting involved in cases where serious fair trial abuses have taken place or are about to take place, training needs to be there. But they also need to take a more proactive approach in future where they are able to recognise these kinds of violations taking place. At the moment, we find that the approach being taken is rather inconsistent, in the sense that the Foreign Office will be more likely to make representations to foreign Governments where there is political backing and where there is some media coverage in a particular case. It should not really be like that. The level of assistance being provided by the Foreign Office should not depend on these factors. They should be in a position to be able to decide for themselves, where serious violations have taken place, what the appropriate action should be.
Chair
Mr Min, before I hand you over to Mr Stewart, may I just return to the answer you gave a second ago when you spoke about FCO officials being present at trials? If there was an FCO official present at a trial, will it make any difference as to whether that is a fair trial? The guy just sitting in the second row, does that help?
Bruno Min
I appreciate that that is quite a tricky issue. As part of the Nuffield report that I referred to earlier, we asked consular officials what they thought the possible benefits of their attendance would be. It is difficult for us to assess to what extent trial attendance has a positive outcome. Certain consular officials seem to believe that it does have a positive impact on cases because the courts are much more aware that there is some outside interest in a particular case. They may make more of an effort to ensure that international standards are complied with. Certain consular officials found that there is no impact at all. Fair Trials International at the moment are not necessarily pushing for consular officials to attend all trials, but we might say that there may need to be objective criteria for consular officials to use to decide whether to attend trials.
Chair
But the Foreign Office in their submissions to us say that approximately 6,000 Britons get arrested every year. That is over 100 a week, of which I would imagine a fair amount end up on trial. Are you suggesting that the Foreign Office should send officials to 100 trials a week around the world?
Bruno Min
Those are not our submissions. We are not saying that the Foreign Office should attend trials for every single British citizen who has been arrested in another country. We are in a very good position to understand that the Foreign Office faces many difficulties when it comes to the provision of consular assistance. We know the problems with limited resources and limited personnel which may make it very impractical for them to attend these trials. What we were hoping to do with the Nuffield report was to highlight the kind of difference in the consular assistance being provided by different ministries of foreign affairs. We recognise, however, that there may be certain cases where trial attendance might be beneficial, especially in cases of vulnerable defendants.
Rory Stewart
Just to bring it down to a concrete level, I have recently been dealing with one of my constituents, Mr John Armstrong, who is a private security contractor who managed to be arrested in India when his ship was swept ashore, apparently by a storm. He is being detained with his colleagues in an Indian prison. It looks as though they may not be brought to trial for some months or even longer. Bail has been refused. What sort of things would you imagine that the Foreign Office should be doing in a case like that, particularly a case where it appears as though a British citizen hasn’t done anything that seems particularly wrong?
Kevin Laue
I would hope that, at the minimum, the consular service is fully exercising its rights to have access to him, to hear from him in private how he is being treated, whether he has any allegations of torture, how his food, hygiene, medical needs and all that kind of thing are being catered for, and if there is any concern arising then, with his agreement, to do what they can to persuade the authorities to engage. The guidelines deal with this. You start at a certain level and if necessary, you escalate up until eventually it is a full-blown diplomatic confrontation, in theory. That is the way these things ought to work.
Rory Stewart
Just to clarify a bit more, one response that might come back is that India has an independent judiciary; it has its own functioning legal system. The Indian Government might well turn around and say, “Okay, you feel that the delay in justice in India is too long. Maybe from your perspective people are kept too long in prison before they are tried, but that is normal procedure; we have an independent judiciary, and there’s nothing we can do about that.” What would your response be to that?
Kevin Laue
I have been emphasising that no matter how long a person has to be in detention before trial—that is a concern, of course—the treatment while a person is waiting, from the moment of arrest to the time they get released, there is nothing which prevents the consular service taking a very keen interest in his welfare. There is a commitment to do that, on paper. Bruno can speak more on the legal, trial side of things.
Bruno Min
The Foreign Office isn’t in a position to decide whether somebody is guilty or not guilty; that is up to the independent judiciary to decide. The Foreign Office is not in a position to replace the role of local lawyers in representing them, giving them case-specific legal advice, but the very least that it should be doing in these cases is to equip the individual concerned with information and referrals, so that they are in a better position to understand and exercise their rights. Obviously, there are countries where there are systematic problems. Even if somebody is being treated in line with local laws, even if in a particular legal system it is quite normal for individuals to be detained for three or four years before their trial goes ahead, the Foreign Office should be aware that there are international standards which India may have signed up to. Where there have been serious violations of an individual’s rights, the Foreign Office is in a position, in Fair Trials International’s point of view, to point out some of the obligations they fail to comply with.
Rory Stewart
Do you feel that, in general, to leave the particular case, that FCO consular officials carry out sufficient numbers of prison visits? Should there be a defined, obligatory number?
Bruno Min
Again, we are talking about many different countries with many different problems. There may be cases, especially when there are vulnerable defendants in very poor prison conditions, where the Foreign Office should be in a position to make more prison visits. On the other hand, there are individuals who could do without a prison visit every week or so. What we disagree with is the complete withdrawal of prison visits within the European Union, perhaps based on the assumption that there is a very strong guarantee that all rights will be respected. That is a position that we recommend the Foreign Office to review.
Rory Stewart
Neither of you would like a minimum standard—for example, a visit once a month?
Kevin Laue
I am not sure that that would be the way to really deal with things. Where there is any evidence of serious mistreatment, or mistreatment, then there should be a capacity and a commitment to pay more attention to that person. Where somebody has never raised any complaint and is completely satisfied with everything, one or two more formal visits—going through the motions, even—would be adequate, just to make sure that nothing has come up. One would accept a flexible approach, but not so flexible that it does not fulfil the need when the need arises.
Rory Stewart
I caught the end of Mr Baron’s question, and I apologise if I am repeating it in any way, but in comparing the British Government’s willingness to follow up on torture with that of other Governments, how would you rate the British Government?
Kevin Laue
I referred to how on paper some other states seem to have stronger mechanisms, but in practice we do not know where the UK fits on the ranking tables. We think it is important for the UK to be the leader. If it is going to be the best consular service in the world, as it says it wants to be, it should try to be better than some of those other states. I know that the Committee is not looking closely at diplomatic protection and the espousal of claims, but we have emphasised the link between consular systems and helping people, when they finally get home, to take up their cases with the torturing states. That is a way of developing the long-term policy against torture. I’m sorry; I haven’t really answered your question.
Rory Stewart
I believe that you have also been talking about the importance of publishing Foreign Office guidelines on mistreatment.
Kevin Laue
It is a suggestion. The new guidelines are excellent compared with previous ones. They are internal—it is not a public document—and if they were made public, even without people having a right to consular assistance, their legitimate expectation would be much clearer, as they would know what to expect in terms of the guidelines. I think that that would be valuable, and it would be a way of holding the consular services to account. It would allow people to come back and say, “You said you were going to do this, this and the next thing, but you didn’t. Why not?”—that kind of thing.
Mr Baron
Do you think there is a disconnect between consular services on the ground that try to ensure that justice is done and the reaction from the FCO more generally when that doesn’t take place—because there has been a miscarriage of justice, there hasn’t been a fair trial, there has been torture or whatever? Is the reaction from the top sufficient to match the expertise and the training on the ground? It is all right doing something on the ground competently, but if there is a lack of bite at the top, there is a disconnect. Is that a fair criticism or not? We have heard one or two complaints suggesting that that may be the case.
Bruno Min
Again, the problem is that we are dealing with a very large network of consular posts across the world, and there are good examples of posts that have taken a much more proactive approach than Whitehall would have done. Then there are examples where it is the other way around—where posts do not take the initiative to help individuals in distress.
Mr Baron
So it is very patchy.
Bruno Min
The point is that it seems quite inconsistent. One way of addressing the problem is, as we have suggested, by ensuring that the relevant training is delivered to all consular staff so that they know what they are supposed to be doing and how to recognise certain problems, but it is difficult to generalise about how it all works. A lot of the things that take place in the Foreign Office are done behind closed doors, so we do not necessarily get to see when diplomatic notes are being exchanged or anything like that, so it is a difficult area for us to comment on.
Kevin Laue
Very briefly, it probably is patchy. The samples that we have had over the years are relatively small, but there is enough to show that it can vary a lot from state to state. Partially, I think it is just about personnel, but it is also about the politics and the foreign policy of the particular country—whether it is an ally and so on. It is not consistent.
Chair
Thank you both very much indeed. It has been very helpful to us, and it is much appreciated. Examination of Witness
Witness
Eve Henderson, Director and Co-founder, Support After Murder and Manslaughter Abroad, gave evidence.
Chair
The next witness is Eve Henderson, director and co-founder of SAMM Abroad. Am I pronouncing that correctly?
Eve Henderson
Yes.
Chair
I understand that you co-founded the organisation in 2001 after your husband was murdered in France.
Eve Henderson
That is right.
Chair
The poor service that you felt you encountered from the FCO motivated you to found the charity to support others. Since then, you have directly helped more than 250 families—congratulations.
Eve Henderson
Thank you.
Chair
Would you like to make an opening remark?
Eve Henderson
No, but I would like to say that the subject is really vast. What I touch on today will probably be just a minuscule part of what we do.
Chair
We are quite focused on the provision of consular services. Can you summarise the main complaints that you hear from your members about the FCO’s service?
Eve Henderson
As I set out in the written submission, this is not a criticism of desk officers individually; it is the position that they hold and the fact that they are dealing with traumatised families. I would like to emphasise that these are not like any other deaths. We all experience death in our families and we are all bereaved. Following a homicide, there is shock and trauma, and families cannot get past that. I just need to emphasise that this is like no other death. Somebody once asked me whether I would want my daughter to be a desk officer. The answer is no, because they are dealing with people who are going to be cross and angry, which is understandable. That is why in the written submission we talked about having a specialist unit to deal purely with homicides.
Chair
We very much appreciated your written submission. Is it fair to say that the Foreign Office is a bit of a curate’s egg—good in some parts and not so good in others? Is it patchy? Can you identify any weak spots?
Eve Henderson
It is very patchy. It is down to individual desk officers—we are talking about consular services abroad—if they have contact. Many of the families are here in the UK when their loved one is murdered abroad, so they may deal only with the Foreign Office in London until the time of the trial, when they will engage with the consular staff in a foreign country. In the Foreign Office, it is almost as though the responsibility lies with somebody who is dead. It is about repatriating the body and making sure that the process is managed. Well, actually, you can’t help a dead person—it is too late for them—but you can help the family, and there is where the problem lies. It is not dealt with sympathetically; it is about the process and the practicalities of it. They cannot offer any money or provide emotional support themselves. What we do is peer support, basically—this is what you can do. The first thing we recommend to people is that they go and see their MP.
Chair
And they regularly do.
Mr Roy
Have the service improvements that have supposedly been made seen a greater emphasis from the FCO? For example, with murder and manslaughter cases, has the FCO given more prominence to the service it provides to people like you?
Eve Henderson
No, I don’t think so.
Mr Roy
Not at all.
Eve Henderson
They have outsourced some of it, and that is one of the things that we will probably come to, and I am not sure whether that is a good thing.
Mr Roy
The FCO has said that over the last three years it has placed greater importance on—
Eve Henderson
Well, that is about training, and the problem with desk officers is that they are passing through the Foreign Office. We raised the topic of having a homicide unit more than 10 years ago, and we were told, “There is no way you can have that. This is the way the Foreign Office works and you have got no chance.” We persisted, and now it is looking at it, but I can send you a parliamentary question raised by Priti Patel, who has a constituent with a homicide in the family.
Chair
We have copies of her report.
Eve Henderson
They are talking about the autumn. We raised it and it was being taken seriously at the end of 2012. Charles Hay, the former director of consular services, came to a meeting, met the families in March and said, “Yes, we are dealing with it; we are going to do it.” That was March last year. We are coming up to a year now and we are talking about the autumn. Bear in mind that that is 10 years, so if you are asking me whether I feel progress is being made, if it is, it is slow.
Mr Roy
Are you confident that the FCO is moving in the right direction or is there stagnation?
Eve Henderson
I am not confident. I am not confident about things like the MOU being reviewed and how it is being monitored. A previous witness talked about guidelines. It asked us to look at the checklist that it is currently conducting, but when we ask for the guidelines that go behind that checklist, we get “No, that’s classified.” Well, can we have the organogram to tell us where the desk officers sit? “No, sorry, that’s classified.” We are up against it. We are not professionals; we are supporting families—that is my remit.
Mr Roy
Can I raise a point that I have come across as a Member of Parliament, and that is attitude, whether face to face or on the phone? Is that something that you recognise?
Eve Henderson
I am not sure that this is the right place for anecdotes. Feel free? When Charles Hay came to our meeting—he has moved on, and that is the other problem. You get this revolving door and you are speaking to the next person. When you think someone will be there to help you through the system, it doesn’t happen. We have families who phone up and the officer gets the name wrong of the deceased. They get letters to the dead person with “deceased” in brackets. There are administrative things—they are stupid, but someone should be looking at them. These things distress families—“Does anyone care about my loved one who is dead?” It speaks for itself. That is a training issue—
Mr Roy
I was told about 10 years ago by one family I dealt with that, with hindsight, they wished that the Foreign Office people had experience of “death counselling”, which you can expect from other organisations in the United Kingdom. If you go to the DWP, for example, you speak to someone who is experienced in that type of counselling. Certainly my constituent felt that that was missing. Is that still the case?
Eve Henderson
I think that desk officers do experience bereavement counselling, but that is about a normal death—it is not about homicide, which is a really specialist area. The needs of these families are the same as if the murder had occurred in the UK. They need access to accurate information, not to be misled. We have people missing trials—there is a vast range. One of the things that was promised, probably about five years ago, was that every family would have a FLO—a family liaison officer—and this was written by a Minister, but we do have cases when that does not happen. I had a family liaison officer without a senior investigation officer looking at it and giving some instruction. FLOs struggle—even a police FLO will struggle without background information. As I say, the subject is massive and that was why the memorandum of understanding covered it. The FCO has a coronial department, but we have never had access to it. We have one family for whom the husband is lying in a mortuary in this country—the body was returned and the coroner agreed to keep it until the trials had taken place. That was five years ago and it is still in the mortuary. The wife has had to move; she could not drive past the mortuary with her husband’s body there without having had the trial. Maybe that coroner made a mistake, but whatever the reason was for his agreeing to that, the Foreign Office has a coronial department and it should be advising.
Chair
We are coming to the MOU in a minute.
Rory Stewart
Just to confirm that we have understood what you have said, you have essentially said that you are not satisfied with the training that the Foreign Office currently receives, you believe that this responsibility should be taken out of the hands of desk officers, and you are not confident that the Foreign Office has been—from your point of view—sufficiently open and constructive in dealing with your recommendations. Is that correct?
Eve Henderson
That is right.
Rory Stewart
Could you please give us a concrete example of the sort of thing that might go wrong? You have talked about the administrative problem and receiving and getting a name wrong. Do you have any stories or examples of what happens when somebody gets in touch with a desk officer and the sort of things that the desk officer would not be good at doing?
Eve Henderson
The first thing is about repatriation and how we get the body home. Does the desk officer tell the family that, without repatriation, there will be no inquest? Families are distraught and they might think that an inquest will mean cutting up their loved one again. That would be their immediate thought—“That is not what I want”—but that is not the real issue; the real issue is that you need to bring the body back complete. It is no good bringing ashes back as it will not provoke an inquest. That was one of the first things that we said. Regarding forensics, there is a very recent case where the clothing of the dead person was posted back to the family and had not been analysed in the foreign country. That leaves a role for our police or for somebody to look at preserving that evidence, as it may be needed. Regarding witnesses that are with the person, in my case my husband and my son-in-law were both attacked and nobody spoke to them once we were home, nobody supported them at the police station, nobody came to the hospital while he was dying, even though we had engaged with the Foreign Office. I do not want to go back to my case because it was some time ago, but I hear of that sort of thing happening.
Rory Stewart
Concretely, taken out of the hands of the desk officer, we would be looking for somebody who you feel should, presumably, have spent a minimum amount of time doing this job, with a specific type of homicide training? Is the way to fill this to take a member of the Foreign Office staff, a civil servant, and give them the homicide training, or is your recommendation that one would instead go for somebody who has a background in dealing with homicide and bring them into the Foreign Office? In other words, there are two models. You could take somebody on a conventional Foreign Office career, maybe on their way to becoming an ambassador, and post them for a minimum length of time in a homicide department, or you could bring in someone from a non-profit background, from the police or some other area, and put them in a specialist cell. Do you have an instinct on which would work better?
Eve Henderson
My instinct is that retired police officers who have done their 30 years and are young when they come out have that background, that nose for when things are going wrong and when we should be intervening. According to the speech that William Hague gave in, I think, April 2012, 10% of all homicides of British people are abroad. That is 10%. Then we talk about £100,000 being given—it is a drop in the ocean against what is spent on homicide here in the UK. For perpetrators of crime—I might add that sometimes it is a British perpetrator of crime abroad who has killed the loved one of our families—it has a different connotation. I do not want to say all the support is given to the British perpetrator, but a certain amount is. They have rights. They are alive, so they have rights. That is what I gathered from the information here: people who are alive have rights and people who are dead have none, but the families of those dead people expect it, and that raises the thing about expectation.
Mr Baron
Just to reiterate, congratulations and well done on what you are doing and the service you have provided.
Eve Henderson
Thank you.
Mr Baron
Is it just a question of training, though? In a couple of the examples you gave—you talked about the return of personal belongings and so forth—it seemed as though the system was partly to blame as well. There is a need for an improvement in training, personnel skills and all the rest of it—how you approach it and so forth—but is it the system as well that needs to be looked at, in your view?
Eve Henderson
Absolutely. I would like much more emphasis—these are vulnerable families, and I believe that that needs to be looked at in isolation. I know every time I raise it at the Foreign Office, they say, “What about the rape victims?” or whatever, but actually, they are standing. It is not that I have no sympathy for that, but I am dealing with homicides. These people have a loved one who is dead. Who is speaking for them?
Chair
Am I correct in saying you are dissatisfied with the written guidance from the FCO?
Eve Henderson
We haven’t seen their written guidance, except for what goes out to the public, but of course—
Chair
I am talking about the FCO’s publications on dealing with bereavement.
Eve Henderson
Well, that is not especially about homicide; it is about all bereavement. It has to be specific. Families don’t even read leaflets. They are incapable. They need an advocate, usually a policeman.
Chair
The FCO has produced a booklet called “Guide for Bereaved Families”. As I understand it, you have expressed dissatisfaction with that publication.
Eve Henderson
I have not expressed dissatisfaction with that, because it will work very well. To quote it, 4,000 British nationals die abroad every year. I am not interested in 3,940 of them; I am actually only interested in the 60.
Sandra Osborne
I believe you were involved in drawing up the memorandum of understanding between the FCO, ACPO and the Coroners’ Society. You described it in your written submission as groundbreaking, but you don’t sound as if you are very impressed by it or have seen much difference since it came in. Is that the case?
Eve Henderson
Well, it hasn’t been monitored. It hasn’t been reviewed. It does say that after one year, it will be reviewed annually, for cases that go on longer. We have asked them on numerous occasions how that is. Just recently, within the last couple of weeks, I have had an “It’s too early to review”. It will be coming up for two years in August. In the making of it, that was all being talked about. It is about getting something done. It is quite frustrating for it to be there while we do not see the improvements. Of course, for lots of families, the problems do not arise immediately. It is when they discover—they read newspapers and see what help is there after the event, and then say, “Well, why didn’t I get that?” It is about whether it is high-profile, how much press involvement there is and whether their MP supports them. Those people who are articulate get a lot more done. I worry about the families who never come anywhere near us and just had to bury—sorry, unfortunate word—suppress what they would really like to do or say. Who is following up on them? The Foreign Office is not proactive in contacting people. If you do not ring them regularly, they will not interact with you.
Sandra Osborne
Does your organisation provide trauma counselling?
Eve Henderson
No. I don’t know whether I’ve said this, but the one good thing to have come from outsourcing is Trauma Assist, which does an excellent job. It also deals with UK homicides, which is its expertise. The unfortunate thing is that Trauma Assist tries not to take people until after a trial, because trauma is quite long term. They are the experts and we have no trouble, but we are not funded by the Ministry of Justice and Trauma Assist cannot take referrals from us. I do not understand all of that. Either we are doing a good job or we are not, and somebody should be assessing that. Why does the fact that we are not funded by the MoJ mean that Trauma Assist can’t accept people from us? That leaves me not understanding how it all works.
Chair
If you say that the one good thing is Trauma Assist, does that mean that the rest of it isn’t very good?
Eve Henderson
I can’t say that in every case, but I can say that it’s patchy. Trauma Assist is one of the good things that has come from it.
Chair
The FCO makes it quite clear that it uses specialist partners for different aspects. Do you welcome that? Are they up to the mark?
Eve Henderson
Who is looking at what they are doing?
Chair
We are.
Eve Henderson
Good. The Foreign Office says things like, “We are helping with repatriation, translations and interpreters.” Take the first one, repatriation. Are we talking about the cost of it, or are we just telling people where the international undertaker is? We can do that. One family was offered £400 towards the £4,000 repatriation cost. Is that what we call assistance? Either we are going to provide money for repatriation or not. Most people are insured. I do not think that there would be very many per year who do not have insurance that would cover repatriation.
Chair
Do you think the Foreign Office should be doing more itself? Should it have in-house training to deal with this? It doesn’t have the capacity at the moment.
Eve Henderson
I query how outsourcing is a good thing unless it is open and transparent. That applies to repatriation. Who is helping, when, why and how much? Families talk to us about this. There has just been an Adjournment debate on a case in the House, which I don’t know whether anyone has seen. Stella Creasy raised it on behalf of one of her constituents. For the first time, Victim Support has come up with £1,800—which is not a lot—so that the family can engage a lawyer. Our families are told that there is no help available for that. I have no objection to that family getting the funding, but it is inconsistent. Who is picking who gets that help? £1,800 is not going to go anywhere. The review into the needs of homicide victims by Louise Casey was excellent, and it showed that our families were paying out something like £60,000 to employ a lawyer and so on.
Chair
On that very point, we have the Victim Support National Homicide Service. Do you have any experience of that?
Eve Henderson
Well, they don’t engage with us. We pass out the leaflets, and obviously we tell people immediately. From November 2010 we tell people that they are entitled to the Victim Support National Homicide Service. Some of them come back and say that it is a bit tea and sympathy, and it’s not very structured. Are they doing a tick-box exercise? I don’t know. I can’t comment on it. I just hear from families after the event. I don’t want to be derogatory about people who are trying to do their best, and perhaps it is underfunded and you can’t offer everything to everybody, but it needs to be transparent and it needs to be effective.
Chair
I must say that in my experience of looking at the various organisations here, every one of them say that they could do with some more funding, including the Foreign Office for that matter. As a last question, you have been fairly critical of the Foreign Office: on a scale of nought to 10, where nought is very bad and 10 is excellent, where do you pitch the Foreign Office’s performance?
Eve Henderson
I think they think they are doing a brilliant job and from everything that I have written to me from Ministers, parliamentary questions we ask, reference to our guidelines, I honestly think they think they are doing a good job. Well, come and talk to our families.
Chair
So where do you put it? At five? Three? Seven?
Eve Henderson
I give them five for effort and three for achieving what families need. Sorry.
Chair
Mr Baron just says it reminds him of his school reports.
Eve Henderson
I would just like to ask Sandra Osborne whether she is aware that one of her constituents has been murdered abroad. Do you cover Minishant?
Sandra Osborne
Yes.
Eve Henderson
Well, I might just ask this family to come and talk to you if that is okay.
Sandra Osborne
Sure.
Chair
I’ve got two constituency cases right here in front of me: Mrs D. Ashton, whose son was shot on a beach in Thailand about this time last year. Were you involved in that case?
Eve Henderson
No. My assumption is because it was high-profile and there was not a financial problem for the family.
Chair
They were insured?
Eve Henderson
Well, yes, but they can afford lawyers. The insurance won’t cover a lawyer. That is not something that is covered by our insurance companies. The Foreign Office, the first words out of their mouth to our families are: “Get yourself a lawyer because we can’t interfere in a foreign judicial process.”
Chair
Fortunately, in this case the insurers covered the lawyer.
Eve Henderson
Well, that is amazing.
Chair
It was because he paid for the holiday with his credit card.
Eve Henderson
Well, I paid for mine but I had to pay my own repatriation.
Chair
Which only goes to show, Ms Henderson, it is an uncertain world. We really value you coming along here today. It has been very interesting. Thank you very much indeed. Oral evidence: FCO consular services, HC 905 23