Lack of bar to extradition for
political offences, and extradition requests motivated by race,
religion, nationality or political opinions
124. Section 6(1) of the Extradition Act 1989 currently
provides a bar on extradition from the UK where an offence is
of a political character or where the request is for, or would
have the effect of, punishing the extradited person on the grounds
of race, religion, nationality or political opinions. The protections
provided by section 6(1) were carried over into the draft Bill
to only a limited extent.
125. Section 6(1) provides that:
"A person shall not be returned under Part III
of this Act, or committed or kept in custody for the purposes
of return, if it appears to an appropriate authority—
- that the offence of which the person is accused
or was convicted is an offence of a political character;
- that it is an offence under military law which
is not also an offence under the general criminal law;
- that the request for his return (though purporting
to be made on account of an extradition crime) is in fact made
for the purpose of prosecuting or punishing him on account of
his race, religion, nationality or political opinions; or
- that he might, if returned, be prejudiced at
his trial or punished, detained or restricted in his personal
liberty by reason of his race, religion, nationality or political
opinions".
126. In relation to paragraph (b) of section 6(1),
Clause 112(8) of the draft Bill (now Clause 137(7) of the Bill
as published) expressly maintained the bar on extradition in relation
to offences under the military law of a requesting category 2
territory that do not constitute offences under the general criminal
law of the UK.[44]
127. In relation to paragraphs (c) and (d), Clause
61(3) of the draft Bill provided an equivalent protection in terms
of a bar on extradition to category 2 territories. However, it
provided no equivalent protection in relation to category 1 territories.
128. In relation to paragraph (a), the draft Bill
appeared to provide no equivalent protection for either category
1 or category 2 territories, although the Clause 61(3) protection
may have been sufficiently wide to bar extradition to category
2 territories for political offences.
129. Concerns about the apparent failure to carry
over the section 6(1) protections into the draft Bill were first
raised by the Joint Committee on Human Rights.[45]
We agreed with the Joint Committee's conclusions on this matter.[46]
We were concerned that, if section 6(1) of the Extradition Act
1989 were to be repealed, this would create a serious risk that,
in relation to category 1 and category 2 territories, people could
be extradited for political offences and, in relation to category
1 territories, subject to extradition requests that are motivated
by race, religion, nationality or political opinions. As discussed
above, Clause 202 would enable the Government to repeal or amend
section 6(1) by way of Order in Council (see paragraph 115).
130. We asked the Home Office what its intentions
are in relation to the future repeal or amendment of section 6(1).
The Home Office told us that, as discussed above, it intends to
repeal the Extradition Act 1989 in its entirety, including section
6(1). However, the Home Office agreed that the protection provided
to category 2 territories by Clause 61(3) of the draft Bill should
also extend to category 1 territories. It undertook to amend the
published Bill accordingly.
131. We are pleased to see that the Home Office has
indeed amended the published Bill. Clause 61(3) of the draft Bill
is now Clause 80 in Part 2 of the Bill as published. A parallel
provision to Clause 80 has been inserted in Part 1: Clause 13.
Clause 13 provides that a person's extradition to a category 1
territory is barred if:
- the Part 1 warrant issued in respect of the person
(though purporting to be issued on account of the extradition
offence) is in fact issued for the purpose of prosecuting or punishing
him or her on account of his or her race, religion, nationality
or political opinions, or
- if extradited, the person might be prejudiced
at his or her trial or punished, detained or restricted in his
or her personal liberty by reason of his or her race, religion,
nationality or political opinions.
Mental and physical health as
a bar to extradition
132. In relation to category 2 territories, Clause
61(5) of the draft Bill provided that a person's extradition is
barred by reason of the person's condition if it appears that
it would be unjust or oppressive to extradite him or her because
of his or her physical or mental condition. The draft Bill contained
no parallel provision applying to category 1 territories.
133. Concerns about the apparent omission of a bar
to extradition under Part 1 on the grounds of lack of physical
or mental capacity were also first raised by the Joint Committee
on Human Rights.[47]
We agreed with the Committee that lack of physical or mental capacity
should be among the express bars to extradition under Part 1 of
the Bill. We considered that this was a fundamental protection,
and we could not see anything in the framework decision which
required that this protection should not be extended to category
1 territories.
134. We asked the Home Office to comment on the lack
of a parallel provision to Clause 61(5) in Part 1 of the draft
Bill. The Home Office told us that the published Bill was to be
amended to provide that lack of physical and mental capacity would
act as a bar to extradition under both Parts 1 and 2 of the Bill.
135. We are pleased to see that the Home Office has
indeed amended the published Bill. Clause 61(5) of the draft Bill
is now Clause 88 in Part 2 of the Bill as published. A parallel
provision to Clause 88 has been inserted in Part 1: Clause 25.
Clause 25 provides that, if a judge considers that the physical
or mental condition of an arrested person is such that it would
be unjust or oppressive to extradite him or her, then the judge
must either order the person's discharge or adjourn the hearing
until the person's physical or mental condition no longer acts
as a bar to extradition.
44 Clause 137(7) (previously Clause 112(8) of the draft
Bill); see HC (2001-02) 1140. Back
45
HC (2001-02) 1140, para 6. Back
46
HC (2001-02) 1140, paras 20-22. Back
47
HC (2001-02) 1140, para 6. Back
