Select Committee on Home Affairs First Report


ISSUES WITH THE DRAFT BILL THAT HAVE SUBSEQUENTLY BEEN RESOLVED

Detaining suspect for up to seven days following withdrawal of warrant or request

119. Clauses 32, 34 and 35, in Part 1 of the draft Bill, and Clauses 96, 99 and 100, in Part 2 of the draft Bill, addressed the situation where a warrant (in Part 1) or a request for extradition (in Part 2) is withdrawn while extradition proceedings are underway. Under these Clauses, a court was authorised to retain a person in detention for up to seven days following the court receiving notice of the withdrawal of the warrant or request for extradition applying to that person.

120. JUSTICE, Liberty and the Metropolitan Police Service argued that it would be entirely unjustifiable to deprive a person of their right to liberty for up to seven days when the warrant or request for extradition against them had been withdrawn. We agree. We can think of no good reason why it might prove necessary for the courts to be able to detain a person for up to seven days after the withdrawal of the warrant for that person's arrest. We understand that, if a warrant or a request for extradition were to be withdrawn because of an error in the warrant or request, the corrected warrant or request could be issued immediately following the withdrawal of the faulty warrant or request. A suspect could therefore be re-arrested almost immediately following the withdrawal of the faulty warrant or request. We note that both the draft Bill and the Bill as published contains other provisions dealing with competing requests from different states.

121. In addition to being procedurally unnecessary, we considered that these provisions appeared to be in breach of article 5 of the ECHR. Article 5 protects an individual's right not to be deprived of his or her liberty in an arbitrary fashion; a power to detain a person for up to seven days following the withdrawal of the warrant or request for extradition applying to that person would seem clearly to constitute a breach of that right.

122. We asked the Home Office why it proposed that persons against whom arrest warrants have been withdrawn should be able to be detained for up to a further seven days. The Home Office told us that it was its intention that, in the event of a warrant or extradition request being withdrawn, the fugitive would be released immediately. The provision allowing for up to seven further days' detention was intended to serve as an additional safeguard if the fugitive had not, for whatever reason, been discharged: it was intended to convey that, in such circumstances, the fugitive must be taken to be discharged after seven days. The Home Office appreciated that its intent may have been misunderstood and undertook to redraft the provisions to make them clearer.

123. We are pleased to see that the Home Office has indeed amended the published Bill. In relation to Part 1 of the Bill, Clause 32 is now Clause 40; Clause 34 now Clause 41; Clause 35 now Clause 42. In relation to Part 2 of the Bill, Clause 96 is now Clause 118l; Clause 99 is now Clause 120; Clause 100 is now Clause 121. The amended provisions in the Bill as published have had all reference to the seven-day detention period deleted.

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 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


 
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Prepared 5 December 2002