House of Commons - Home Affairs

Select Committee on Home Affairs First Report

FIRST REPORT

The Home Affairs Committee has agreed to the following Report:

EXTRADITION BILL

The Government's Extradition Bill proposes fundamental changes to the current system of extradition to and from the UK. In particular, it makes provision in UK domestic law for the introduction of a European Arrest Warrant in implementation of the EU framework decision of June 2002. The Bill creates two categories of countries: category 1 territories which will qualify for "fast-track" extradition arrangements, based on "taking on trust" those countries' judicial and administrative systems; and category 2 territories which will be subject to a streamlined version of the existing extradition procedures. The Government intends that all EU member states will be in category 1.

We express concern about some important aspects of the decision to adopt the European Arrest Warrant. In particular, we are concerned about the erosion of the safeguard of "dual criminality" (whereby the offence for which extradition is sought must also constitute an offence under UK law) and the ill-defined nature of the 32 categories of offence which will be exempt from the dual criminality requirement. We note in particular the fact that no debate on this momentous change in extradition procedures was held on the floor of the House of Commons. We acknowledge that the UK is now committed to the adoption of the European Arrest Warrant, but recommend that the Home Secretary give consideration to a proposal aimed at providing some safeguard against clear abuses of this new procedure. This is that in each case, when the judge is of opinion that the alleged offence is not a crime in the UK, a separate decision as to whether to extradite should be taken by the Home Secretary.

In the remainder of the report we examine details of the Government's proposals. We welcome some of the changes made by the Government following earlier consultation. However, we have serious concerns about some provisions in the Bill. In particular:

we reject the proposal that the Government should be able to add non-EU countries to category 1 (thus enabling them to benefit from fast-track procedures). We are further concerned about the Government's proposal that this should be done at its own discretion and without appropriate parliamentary scrutiny

we recommend that countries which retain the death penalty should be ineligible to be added to category 1

we express dismay at the extraordinary decision by the Home Office to reduce the remaining degree of 'dual criminality' protection significantly further than is required by the EU framework decision (by removing the protection in relation to offences carrying a maximum penalty of 12 months or more, where the European decision requires the UK to do so only in relation to those with a maximum penalty of at least three years)

we recommend that the list of 32 categories of offence be imported directly into the Bill, to prevent extra categories being added without parliamentary approval

we oppose the Government's intention to permit other EU member states to charge a person extradited from the UK with an offence other than that for which the person was extradited
we express concerns about proposals to relax the requirement that extradition requests from non-European countries must demonstrate that there is a prima facie case to answer

we draw attention to several other provisions which are likely to erode the rights of UK citizens and circumvent parliamentary scrutiny, and recommend that those provisions be withdrawn or amended.

INTRODUCTION

Purpose of this report

1. This report is intended to assist the House in its consideration of the Extradition Bill, which was presented to the House by Mr Secretary Blunkett on 14 November 2002. It is based on our examination of the draft Extradition Bill, which the Home Office issued for consultation on 27 June 2002. The closing date for consultation responses to the Home Office was 30 September 2002. Given that we wished to consider these responses before reporting to the House, our examination of the Bill has taken place within a fairly tight time frame.

2. The Home Office received submissions on the draft Bill from the following organisations and individuals:

The Council of Her Majesty's Circuit Judges

JUSTICE

Law Society

Liberal Democrats party

Liberty

Metropolitan Police Service

National Crime Squad

Mr Leolin Price QC CBE.

We have considered these submissions.[1] We have also received a letter from Mr Christopher Gill of the Freedom Association which we have published as an appendix to the Minutes of Evidence. We have taken into account reports on the European Arrest Warrant by the European Scrutiny Committee and a report on the draft Bill by the Joint Committee on Human Rights.[2] On 29 October 2002 we took oral evidence from representatives of JUSTICE and Liberty on a number of issues relating to the draft Bill. The minutes of evidence of that session are printed with this report. Following the evidence session we submitted a series of written questions to the Home Office, and its response is also printed with the report.

3. As a result of the consultation exercise, and the Committee's scrutiny of the draft Bill, the Home Office has made a number of modifications to its original proposals, and we welcome this.[3] However, there remain some areas of significant concern in the Bill as introduced. Because of the time constraints, we have not attempted to carry out a comprehensive examination of all aspects of the Bill itself or of the extradition system, but have concentrated on drawing the attention of the House to key areas of concern.

4. Our primary purpose has been to inform the House's consideration of the Bill at Second Reading and in subsequent stages. However, we believe that some aspects of the Government's proposed use of secondary powers under the Bill deserve detailed scrutiny by the House of Lords Committee on Delegated Powers and Regulatory Reform, which has the task of reporting "whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny". We have therefore written to the Chairman of the Lords Committee on Delegated Powers and Deregulation drawing attention to Clauses 1(1), 3(3), 5(2), 68(1) and 202 of the Bill. We regret that there is no House of Commons select committee with an equivalent remit to investigate the appropriateness of delegated powers.

Background

5. Extradition is defined by the Home Office as the return of persons accused or convicted of serious offences from the United Kingdom to other jurisdictions, or vice versa. Existing extradition procedures are set out in the Extradition Act 1989 and the Backing of Warrants (Republic of Ireland) Act 1965. Extradition from the UK requires decisions both by Ministers and by the courts. Details of current procedures are set out in Appendix A to this report.

6. The UK currently enters into extradition arrangements with over 100 countries, under the provisions of three main schemes: the European Convention on Extradition, the Commonwealth Scheme for the Rendition of Fugitive Offenders, and a number of bilateral treaties. The majority of extraditions from the UK take place under the European Convention. A list of the UK's extradition partners is set out in Appendix B.

7. Extradition is a relatively infrequently used procedure. The following table gives numbers of extraditions from England, Wales and Northern Ireland for the period 1970 to 2000, together with the number of requests for extradition in each year:[4]

Year
Number of extraditions
Number of requests

Year
Number of extraditions
Number of requests

2000
47
78

1984
19
58

1999
38
101

1983
10
36

1998
45
111

1982
19
48

1997
43
107

1981
20
45

1996
35
116

1980
19
58

1995
31
101

1979
14
45

1994
35
100

1978
14
43

1993
27
27

1977
10
47

1992
36
36

1976
5
43

1991
17
52

1975
7
25

1990
19
65

1974
8
24

1989
27
35

1973
7
19

1988
31
57

1972
5
17

1987
26
43

1971
4
29

1986
32
60

1970
12
19

1985
24
63

8. We note that there are no centrally held records of requests made under the backing of warrants legislation with the Republic of Ireland. This is regrettable, and we recommend that central statistics on extraditions to and from the Republic should henceforward be maintained.

9. During the three years from 1999 to 2001, the UK extradited 139 fugitives.[5] Of these, 82 fugitives (or about four out of every seven) were extradited to other EU member states; the remaining 57 were extradited to non-EU member states. The following table sets out the countries to which the 139 fugitives were extradited:[6]

Country
Number of fugitives
Country
Number of fugitives

EU member states

Non-EU countries

Belgium
8
Australia
1

Denmark
2
Canada
3

Finland
3
Cyprus
3

France
5
Czech Republic
5

Germany
25
Hong Kong
2

Greece
1
India
1

Italy
8
Lithuania
1

Luxembourg
1
Norway
3

Netherlands
14
South Africa
1

Portugal
6
Switzerland
13

Spain
4
Uganda
1

Sweden
5
United States of America
23

10. The Government believes that the current extradition system needs reform, both to implement recent decisions taken at EU level and for other reasons. The then Home Secretary, Rt Hon Jack Straw MP, set out the Government's thinking in March 2001:

"Developments in the EU are setting the pace for progress and the United Kingdom is determined to be at the forefront of this. The purpose behind the Treaty of Amsterdam 1997 was to establish an area of freedom, security and justice. In seeking to implement the treaty it was agreed at the Tampere Special European Council in October 1999 that the mutual recognition of judicial decisions should become the cornerstone of judicial co-operation in both criminal and civil matters within the Union. In the light of these developments, the present arrangements for extradition from the United Kingdom appear out of date and in most cases unnecessarily complex. The Extradition Act is now over 10 years old but some of its provisions date back to previous centuries when European nations were periodically at war with each other. What was needed then is no longer always appropriate in today's fast-changing climate. Serious crime is becoming increasingly complex and international in character...In response we need to step up our efforts to tackle these growing problems".[7]

11. Mr Straw added that the Government proposed "a radical reexamination of many of the assumptions that underpin current extradition law and procedure". The intention was "to create a simplified, unified scheme of extradition, which aims to remove where possible the complexity and potential for delay of the present arrangements, and to produce a framework that will form a much more efficient support to international judicial cooperation whilst ensuring justice for defendants and victims". This would enable the United Kingdom "to forge closer links with our European partners by way of fast-track arrangements, at the same time as maintaining, but in a simplified form, our existing arrangements with other partners".[8]

12. The Home Office intends to repeal the 1965 and 1989 Acts in their entirety and replace them with the present Bill. We comment on the legislative method by which the Home Office proposes to repeal the Acts in paragraphs 115 to 118 below. The Bill is in five Parts:

Part 1 deals with extradition to category 1 territories (the Secretary of State intends that category 1 territories will include all EU member states and Gibraltar)[9]

Part 2 deals with extradition to category 2 territories (the Secretary of State intends that category 2 territories will be all those countries with which the UK has extradition arrangements and which do not fall into category 1)

Part 3 deals with extradition requests from the UK to all other countries

Part 4 deals with police powers of search, seizure and arrest

Part 5 deals with miscellaneous provisions, including delegated powers for Orders in Council.

13. In this report, we have concentrated primarily on Parts 1 and 2 of the Bill because we consider that these raise the most important issues for the attention of the House.

PART 1—EXTRADITION TO CATEGORY 1 TERRITORIES: "FAST-TRACK" PROCEDURES

14. Part 1 of the Bill puts in place fast-track arrangements for extradition to category 1 states. It is intended to give effect to the framework decision on the European arrest warrant and the surrender procedures between member states. This was adopted by the Justice and Home Affairs Council of the European Union on 13 June 2002 and will replace all other European-level agreements from 1 January 2004. The next stage is for EU member states to incorporate the framework decision into domestic law. The Home Office has advised us that, so far as it is aware, no other EU member state is as well advanced as the UK in preparing legislation to implement the framework decision.

15. The European Arrest Warrant applies to all offences which carry a maximum penalty of at least 12 months' imprisonment in the issuing state or, in cases of those who have already been convicted and sentenced, where the sentence is at least four months (article 2.1 of the framework decision). A copy of the model warrant is attached at Appendix C. Article 2.4 of the framework decision provides that, in general, surrender of a suspect under the European Arrest Warrant will be subject to the principle of "dual criminality", the principle that the offence for which extradition is sought must also constitute an offence under the law of the state from which extradition is sought.

16. However, article 2.2 provides that, in certain circumstances, surrender of a suspect will not be subject to the dual criminality requirement. The circumstances are where the offence for which extradition is sought falls into a list of 32 offences "as they are defined by the law of the issuing member state", provided that the offence carries a maximum penalty of at least three years' imprisonment in the issuing state. The 32 offences listed in article 2.2 are set out in Appendix D to this report. The framework decision provides no further definition of these offences. Article 2.3 allows the Council to extend or amend the list at some later date.

17. The Home Office describes the European Arrest Warrant as being "based on the principle of mutual recognition...[which] implies trust in other EU Member States' criminal justice systems". Given that the decision to adopt the framework decision has already been taken at EU level, the question for the UK Parliament is now whether to implement the decision and, if so, how. It should be noted in particular that the designation of the 32 categories of offence which are, in certain circumstances, exempt from the dual criminality requirement cannot be changed at UK parliamentary level.

PART 2—EXTRADITION TO CATEGORY 2 TERRITORIES: "STREAMLINING" CURRENT PROCEDURES

18. Part 2 of the draft Bill is intended to streamline procedures for extradition to non-category 1 territories with which the UK has extradition treaties. The proposals are intended to speed up the extradition process by reducing duplication and complexity. The Home Office told us that, if the Bill is enacted, it intends to designate all non-EU members of the Council of Europe as category 2 territories.[10] Extradition to and from such category

2 territories will continue to be conducted on the basis of the European Convention on Extradition.[11]

19. Category 2 territories are also likely to include some Commonwealth countries and bilateral treaty partners.

1 The submissions have been published by the Home Office on the Internet: www.homeoffice.gov/extraditionbill/documents.htm. Back

2 Second, Sixth, Seventh, Eighth, Tenth and Seventeenth Reports of the European Scrutiny Committee, Session 2001-02, HC 152, ii, vi, vii, viii, x and xvii; Twentieth Report of the Joint Committee on Human Rights, Session 2001-02, The Draft Extradition Bill, HC 1140/HL Paper 158. Back

3 See below, paras 119-134. Back