SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
Part 1 of the Bill
1. We recommend that, in order to provide
some safeguard against clear abuses of the new procedure introduced
under the framework decision, the Home Secretary give consideration
to the following proposal: that in each case the district judge
should look at the terms of the offence specified in the European
Arrest Warrant and make a statement as to whether dual criminality
applies. In cases where the alleged offence is not a crime in
the UK a separate decision about whether to extradite should then
be made by the Home Secretary, who is responsible to Parliament
(paragraph 31).
2. We recommend that Clause 1(1) be amended
to specify that only those countries that are signatories to the
framework decision may be designated territories for the purposes
of Part 1 of the Bill, and that Clause 68(1) be amended to specify
that only those countries with which the UK has general extradition
arrangements may be designated territories for the purposes of
Part 2 of the Bill (paragraph 41).
3. If the previous recommendation is not accepted,
then Clause 205 should be amended to provide that Orders in Council
made under Clauses 1(1) and 68(1) may not be made unless a draft
of the order has been laid before Parliament and approved by a
resolution of each House (paragraph 43).
4. We do not accept that Parliament should
be constrained by the precedent of the Extradition Act 1989 from
requiring an appropriate degree of parliamentary scrutiny for
delegated legislation that may have the effect of removing significant
safeguards for individuals subject to extradition requests (paragraph
43).
5. In relation to the dual criminality requirement,
we can see no justification for eroding the basic level of protection
provided by the framework decision, by removing the protection
in relation to offences carrying a maximum penalty of 12 months
or more where the framework decision requires the UK to do so
only in relation to offences with a maximum penalty of at least
three years, and we are dismayed that the Home Office is seeking
to do so (paragraph 51).
6. We recommend that the three-year limit
specified in the framework decision should be retained in UK domestic
law (paragraph 51).
7. We consider it highly undesirable that
Parliament should have no say in regard to future changes to the
32 categories of offence listed in the framework decision. We
therefore recommend that the list of offences be imported directly
into the Bill. Clause 65(3) should be amended to refer, not as
at present to "the list of conduct set out in article 2.2
of the European framework decision", but rather to "the
list of conduct set out in a specified schedule to the Bill"
(paragraph 55).
8. We further recommend that the Bill should
delegate a power to amend this list only in so far as is necessary
to reflect any extensions or amendments made to article 2.2 of
the framework decision by the EU Justice and Home Affairs Council
(paragraph 56).
9. The Bill should also provide that any statutory
instrument made under this delegated power should be subject to
the affirmative resolution procedure (paragraph 56).
10. We agree with the European Scrutiny Committee
that the European Arrest Warrant should be able to be issued only
by a judicial authority exercising recognisably judicial functions
in an independent manner. We consider that this requirement should
apply to all Part 1 warrants. We therefore recommend that Clause
2(5) be amended to provide that the UK judicial authority may
not issue a Clause 2 certificate unless it believes that the Part
1 warrant was issued by such a judicial authority (paragraph 63).
11. We recommend that Part 1 of the Bill be
amended to specify the information that must be provided on the
face of a Part 1 warrant, including a European Arrest Warrant
(paragraph 68).
12. We strongly urge the Government to re-consider
its intention to give notification, under article 27.1 of the
framework decision, that it may be presumed to have consented
to another EU member state taking proceedings against a suspect,
where the other member state has also given such notification
under article 27.1. We recommend that Clause 53 be deleted from
the Bill (paragraph 75).
Part 2 of the Bill
13. We consider that the power delegated by
Clause 83(6) is too broadly defined. As currently drafted, Clause
83(6) would allow any territory whatsoever to be designated as
exempt from the prima facie case requirement (paragraph 82).
14. We recommend that the power delegated
by clause 83(6) should be specifically limited to a power to make
Orders in Council to exempt from the prima facie case requirement
only:
- those European states that are signatories
to the European Convention on Extradition but that are not EU
members
- any other state with which the UK has a bilateral
agreement which requires that state, in making an extradition
request, to meet evidential requirements equivalent to those set
out in the Convention (paragraph 82).
- We recommend that Clause 83(3) be deleted
from the Bill, so that a summary of a statement will not be admissible
evidence for the purposes of Clause 83(2) (paragraph 86).
- We are concerned that Clause 134(3) appears
to undermine the rigorous evidential standards that we consider
should be required to establish the existence of a prima facie
case. We draw Clause 134 to the attention of the House (paragraph
87).
Parts 1 and 2 of the Bill
19. We consider that there is no justification
for extending Part 1 of the Bill to include countries that maintain
the death penalty (paragraph 92).
20. We 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 (paragraph
92).
21. We 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
(paragraph 96).
22. We endorse the comments of the Joint Committee
on Human Rights on the adequacy of written assurances that the
death sentence will either not be imposed or, if imposed, will
not be carried out. We 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 (paragraph 99).
23. We consider that Clauses 3(3) and 5(2)
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
(paragraph 104).
24. We 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
(paragraph 106).
25. 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 (paragraph 109).
26. We consider that the requirements of article
11.1 of the framework decision, that an arrested person must be
informed of the possibility of consenting to surrender to the
issuing judicial authority, 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). We recommend that the Bill is amended accordingly (paragraph
112).
27. We recommend that, where an arrested person
consents to be extradited, the judge or, in some Part 2 cases,
the Secretary of State, should be required to satisfy him or herself
that:
- the arrested person has been offered access
to free legal advice before giving consent to being extradited
- access to such legal advice was made available
to the person, and
- the person has understood the implications
of giving consent to extradition (paragraph 114).
The Bill as a whole
28. We recommend that Clause 202 should be
deleted and that the repeal of the 1989 and 1965 Acts should be
provided for on the face of the Bill itself. We do not consider
that such a provision repealing the 1989 and 1965 Acts would be
incompatible with the need for these Acts to continue to apply
to any extradition requests made prior to the Bill coming into
force. We consider that appropriate provisions can be drafted
to allow for this eventuality without needing to delegate to the
Government the power to repeal the Acts (paragraph 116).
29. We recommend that central statistics on
extraditions to and from the Republic of Ireland should henceforward
be maintained (paragraph 8).
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