House of Commons - Home Affairs

Select Committee on Home Affairs First Report

ISSUES RELATING TO BOTH PART 1 AND PART 2 OF THE BILL

Death penalty as an absolute bar to extradition

A PROVISION FOR DEATH PENALTY COUNTRY TO BE DESIGNATED A CATEGORY 1 TERRITORY

88. Clause 15 (in Part 1 of the Bill) provides that a person's extradition to a category 1 territory will be barred if the person could be, will be or has been sentenced to death for the extradition offence in that territory. However, this bar to extradition is not absolute.

89. We consider that the inclusion of Clause 15 in the Bill raises questions about what countries the Secretary of State intends to designate as category 1 territories. As discussed in paragraph 33 above, although the Secretary of State's stated intention is that category 1 territories will include all EU member states and Gibraltar, Clause 1(1) of the Bill would permit any country whatsoever to be designated a category 1 territory, by Order in Council. If only EU member states were to be included as category 1 territories, there would be no need for Clause 15, because no EU member state provides for the death penalty as a form of punishment.

90. We asked the Home Office to comment on why Clause 15 has been included in the Bill, given that no EU member state provides for the death penalty as a form of punishment. In its response, the Home Office acknowledged that "it will be possible for Parliament to designate non-EU countries as category 1 countries and it is conceivable that such a country may retain the death penalty on its statute book". The Home Office stated that the Government has no current plans to "invite Parliament to designate" any country which still retains the death penalty as a category 1 territory but that it seems "a sensible precaution" to include Clause 15.

91. Part 1 provides significantly fewer protections for suspects than does Part 2. The UK is bound by protocol 6 to the ECHR, which abolishes the death penalty, although it permits derogation in time of war.[36] The Government has also recently signed protocol 13 to the ECHR, which abolishes the death penalty in all circumstances.[37] These protocols impose a positive obligation on the UK to protect people against a threat to their rights from people in other states.

92. We consider that there is no justification for extending Part 1 of the Bill to include countries that maintain the death penalty. We therefore recommend that Clause 1(1) be amended to specify that any country which provides for the death penalty as a form of punishment is prohibited from being designated a territory for the purposes of Part 1 of the Bill. If this is done, then Clause 15 can be deleted from the Bill as otiose.

B WRITTEN ASSURANCE THAT DEATH PENALTY WILL NOT BE IMPOSED OR CARRIED OUT

93. Clause 15(2) (in Part 1) and Clause 91(2) (in Part 2) are parallel provisions, although the Part 1 provisions apply to the district judge and the Part 2 provisions to the Secretary of State. Both provide an exception to the principle (set out in Clauses 15(1) and 71(1)) that a person's extradition will be barred if the person could be, will be or has been sentenced to death for the extradition offence in that territory. They provide that the bar does not apply if either the district judge or the Secretary of State receives a written assurance, which he or she considers adequate, that the death sentence will either not be imposed or, if imposed, will not be carried out. We note that the following comments on Clause 15(2) apply only in the event that our recommendation to delete Clause 15 is not accepted by the House.

94. The Home Office told us that the UK has, for a number of years, extradited suspects to countries which provide for the death penalty, on the basis of assurances that a death sentence will not be carried out. It states that there have been no problems in recent years in regard to death penalty assurances and that it sees no reason why the provisions in the Bill should give rise to any new difficulties.

95. The Home Office acknowledged that any assurance that a death sentence will not be imposed or carried out must come from a person who is competent to issue it and must bind the bodies responsible for imposing and carrying out a death sentence. Currently, all such assurances are received and considered by the Secretary of State. The Bill would require district judges to undertake this assessment in relation to extradition to category 1 territories. The Home Office considers that "the district judge will need to be satisfied that any assurance that is given is indeed binding". However, we share the concerns of the Joint Committee on Human Rights, JUSTICE, the Law Society, the Liberal Democrats party and Liberty all expressed concerns as to how a district judge can be expected to evaluate the quality of a written assurance which is likely to be given by the government of a foreign state. The Law Society comments that it is difficult to envisage what criteria a judge could apply to satisfy himself or herself of the adequacy of a written assurance, and what method he or she could have of verifying its reliability or authenticity. It also questions what the judge's position would be if, at a later stage, information was received that the returned prisoner had been convicted and sentenced to death—what action in these circumstances could the judge feasibly take?

96. We share these concerns. Given that such written assurances generally emanate from a state's executive branch, we consider it is appropriate that the Secretary of State, rather than a district judge, should be required to consider whether an assurance will be honoured. We therefore recommend that clause 15 be amended to require that, if the judge receives a written assurance that a death sentence will not be imposed or carried out, then the judge must send the assurance to the Secretary of State for him or her to determine whether the assurance can be considered adequate.

97. Where a written assurance emanates from a state's executive branch, JUSTICE considers that it is questionable whether the executive of a country has the power to give such an assurance, as it would effectively purport to bind the courts and would thus contravene the principle that the judiciary should be independent from executive action. JUSTICE adds that a number of EU member states, for example Italy, have introduced an absolute bar on extradition in cases where the death penalty could be imposed.

98. The Joint Committee on Human Rights has also commented on the adequacy of written assurances. The Joint Committee accepts that, due to the decision of the European Court of Human Rights in Soering v United Kingdom,[38] a written assurance is likely to be regarded as meeting a state's obligations under protocol 6 to the ECHR, at least for the foreseeable future. However, the Joint Committee draws attention to the particular difficulties that arise when a written assurance emanates from a state with a federal structure. The Joint Committee points out that the authority in the requesting state which gives the assurances may not be in effective control of the matter, either because of the federal structure or because of political or social instability. The Joint Committee cites the example of the United States:

"...while only federal authorities in the USA are in a position to give assurances on the international plane, non-federal criminal law (including, in a good many states, capital murder) is a state matter, and state courts and governors have not always been willing to give effect to the wishes of federal officers in connection with the imposition of the death penalty in individual cases".[39]

The Joint Committee expressed its hope that the Government would give an indication of its thinking on this matter, and that it would indicate particularly the factors relevant to assessing whether an assurance will be honoured, both generally or in relation to particular cases or countries.

99. We endorse the comments of the Joint Committee on Human Rights and urge the Government to give an indication of how it proposes that the adequacy of a written assurance that a death sentence will not be imposed or carried out should be assessed.

Issues relating to arrest

A DELEGATED POWER TO DESIGNATE "APPROPRIATE PERSON"

100. Clause 3(2)(b) provides that, where a Part 1 warrant has been issued, a person may be arrested by a constable or an "appropriate person". Clause 5(1) provides that a constable or an "appropriate person" may carry out a provisional arrest without a Part 1 warrant if he or she has reason to believe that an appropriate warrant has been or will be issued by the authority of a category 1 territory.[40]

101. In respect of both Clauses 3(2)(b) and 5(1), who constitutes an "appropriate person" is to be specified in an order made by the Secretary of State (Clauses 3(3) and 5(2)). Clause 204(6) provides that any orders made under these clauses are subject to the affirmative resolution procedure.

102. We are concerned that Clauses 3(3) and 5(2) currently delegate an extremely broad power for the Secretary of State to specify an "appropriate person". The Bill provides no guidance about, or criteria for, who might constitute an appropriate person. We are particularly concerned given that any person specified as an appropriate person would be able to arrest a suspect without being in possession of an existing warrant, on the basis of a reasonable belief that a warrant will be issued. On the face of the power delegated by the Bill, the Secretary of State could specify any person whatsoever as an appropriate person, including persons outside the UK; such a person would then be able to exercise an extremely coercive power, the power of arrest, within UK territory.

103. We asked the Home Office to comment on who the Government intends to specify as an "appropriate person". The Home Office responded that it intends that, in the first instance, officers of HM Customs and Excise should be empowered to arrest under a Part 1 warrant. The Home Office also commented on a concern raised during the consultation period on the draft Bill, that an officer of the category 1 territory where the warrant is issued could be specified as an appropriate person, by stating that there are no plans to specify such officers as appropriate persons.[41]

104. We are pleased to hear that the Home Office intends to specify only officers of HM Customs and Excise as appropriate persons, and that it is not intended to give powers of arrest to foreign law-enforcement officials. However, we do not consider that the Home Office's statements of intent are sufficient guarantee to ensure that the extremely broad power delegated by Clauses 3(3) and 5(2) is not exercised inappropriately. We consider that the Bill should explicitly limit the scope of the Secretary of State's delegated power by defining who may constitute an "appropriate person". Clearly, officers of HM Customs and Excise could be so specified; the House should consider whether there are any other categories of officer whom it may be appropriate to specify.

B ARRESTED PERSON MUST ASK BEFORE WARRANT IS REQUIRED TO BE SHOWN

105. Clauses 4(2) (in Part 1) and 71(2) (in Part 2) provide that, where neither the warrant nor a copy of it was in the possession of the arresting officer at the time of the arrest and if the arrested person asks to see a copy, then the warrant (or a copy) must be shown to the arrested person as soon as practicable after the request.

106. We are concerned that Clauses 4(2) and 71(2) allow a suspect to be arrested and subsequently extradited without the arresting officer at any stage being required to produce the arrest warrant (or a copy of it). The Law Society has expressed similar concerns. We therefore recommend that Clauses 4(2) and 71(2) be amended. We consider that, if it is not possible for the arresting officer to be in possession of the warrant at the time of the arrest, then the officer (or some other appropriate officer) should be required to show the warrant to the arrested person as soon as practicable after the arrest. We can see no justification for placing the onus on the arrested person to ask to see the warrant, rather than on the appropriate law enforcement officials.

C REQUIREMENT TO INFORM ARRESTED PERSON OF CONTENTS OF A EUROPEAN ARREST WARRANT

107. Article 11.1 of the framework decision provides that, when a requested person is arrested, the executing competent judicial authority must inform the person of the decision and of its contents.

108. We can see no provision in the Bill requiring the judge before whom the arrested person is initially brought to inform that person of the existence of a European Arrest Warrant, let alone its contents. This is of particular concern given that Clauses 4(2) and 71(2) allow a suspect to be arrested and subsequently extradited without the arresting officer at any stage being required to produce the warrant, as discussed above. As the Bill stands, there is no requirement for an arrested person to be afforded his or her right under article 11.1 at any stage before being extradited from the UK.

109. We recommend that the Bill be amended to require the judge before whom the arrested person is initially brought to inform the person of the European Arrest Warrant and of its contents.

D ARRESTED PERSON'S ABILITY TO CONSENT TO EXTRADITION

110. Clause 44 (in Part 1) and Clause 123 (in Part 2) provide that an arrested person may consent to be extradited to the category 1 or 2 territory in which the arrest warrant or extradition request was issued. In the case of category 1 territories, consent would result in the arrested person waiving any right he or she would have not to be dealt with in the category 1 territory for the offence in question.

111. Clause 8(1)(b) (in Part 1) and Clause 71(6)(a) (in Part 2) require that, at such time as an arrested person is remanded in custody or on bail, the judge must give the person certain information about his or her ability to consent. The required information is set out in Clauses 8(3) and 71(7) and is that the person may consent to be extradited and that consent must be given before the judge and is irrevocable, together with an explanation of the effect of consent and the procedure that will apply if the person gives consent.

112. Clauses 8(1)(b) and (3) are, we assume, included in the Bill to satisfy the requirement under article 11.1 of the framework decision that, when a requested person is arrested, the executing competent judicial authority must inform the person of the possibility of consenting to surrender to the issuing judicial authority. However, the Law Society suggests that it is inappropriate for a judge to give a defendant information that could be mistaken for legal advice about his or her case and that judges would be reluctant to put themselves in that position. We agree with the Law Society. We consider that a distinction should be drawn between a judge being required to inform a person of their ability to consent to extradition and being required to provide additional information that could be mistaken for legal advice about the person's case. The requirements of article 11.1 of the framework decision would appear to be satisfied if the judge is required to give only that information specified in paragraphs (a) and (c) of Clause 8(3) and paragraphs (a) and (c) of Clause 71(7), and we recommend accordingly.

113. We also agree with the Law Society's suggestion that consent should not be accepted unless the judge is satisfied that the arrested person has had an opportunity to consider and reflect on legal advice. We consider it vital that, if an arrested person consents to be extradited, such consent should be meaningful, particularly as consent is irrevocable once given. The consequences of consent are extremely serious, particularly in relation to category 1 territories, because the arrested person effectively waives his or her right under the specialty rule not to have proceedings taken against him or her other than proceedings for the offences for which he or she was extradited (see paragraph 69 above).