Examination of Witnesses(Questions 20-39)
MS SUSIE
ALEGRE, MR
GARETH CROSSMAN
AND MR
CLIVE NICHOLLS,
QC
TUESDAY 29 OCTOBER 2002
Bridget Prentice
20. Is your last comment that it does not have
to be an offence in the UK because it has already been decided
at a European level rather than because of the way the Bill has
been drafted?
(Ms Alegre) The European Arrest Warrant, basically,
abolishes the dual criminality principle, which is that it must
be an offence in the requesting country and the requested country.
21. In other words, there is nothing specifically
that you could improve within this Bill to stop that problem that
you have raised?
(Ms Alegre) There are improvements. There is not a
basic change as to whether or not it could be an offence in the
UK. There are differences in the level, for example, of sentencing
that needs to be required before you abolish the dual criminality
principle. So there are detailed differences, but if the European
Arrest Warrant is going to be implemented then there will be an
erosion of that principle.
Chairman
22. Do you agree, Mr Nicholls, that the best
we can do is to call, on the face of the Bill, for more detail?
(Mr Nicholls) Yes, I think so. For example, the European
Framework Decision actually has a model arrest warrant and that
model—which is not referred to in the Bill at all—includes
all sorts of details that have to be provided. For example, the
nature and legal classification of the offence that is in the
foreign state and, also, a description of the circumstances in
which the offence was committed. One would expect—and it
is common of extradition systems throughout the world—that
you do have in the very least, even where you do not have the
evidence rule, a proper description of the offence. If it is not
properly described the case goes back for more detail. One of
the things that really worries me, too, is clause 47, which is
the interpretation section of the Bill, which defines extradition
offences. Can I just make a comment before—
23. Before you move on, is this going to apply
to us? All these things are dealt with in the model extradition
warrant. What are you worried about?
(Mr Nicholls) I was going on to the point that if
you look in relation to the definition of extradition offences,
which is the absolute sine qua non of extradition, the
definition provides that it is an extradition offence, for example,
if the conduct amounts to an offence in the foreign state, full
stop. Then it is also an extradition offence if the conduct amounts
to an extradition offence if it had occurred in this country.
Now those are two separate definitions. So they do not build in
the dual criminality requirement which has always been essential
in extradition, right up to modern times.
24. It is an either/or?
(Mr Nicholls) It is an either/or. In other words,
you could have a person extradited for what was an offence in
the foreign state but was not, in fact, an offence here.
Mr Cameron
25. They could commit it here?
(Mr Nicholls) It would not be committed here, the
offence would be committed in a foreign state. If the district
judge is satisfied that it was an offence in that foreign state
it does not have to be an offence here. I think I will be corrected
if I am wrong about that.
(Ms Alegre) The only thing I would add is that in
the drafting as it is, it does appear that potentially the offence
could be committed partly in the UK. I suspect that there may
be changes to that drafting, but on the drafting as it is that
is the case, although in the European Arrest Warrant there is
an optional bar, which is where the conduct is committed in whole
or in part in the requested country—so in the UK.
Chairman
26. Suppose the British plane spotters had been
back here in the UK and we had supported a policy to extradite
them. We would have been obliged to do so even though they had
not committed an offence in the UK. Is that right?
(Mr Nicholls) That is right.
(Ms Alegre) We would have been if it came under one
of the list of offences or if it was an offence which would have
also constituted an offence here.
Chairman: Therefore, we agree, that would
not constitute an offence here. So does plane spotting—I
suppose you would call it spying—come under any of these
offences? I cannot see it actually.
Mr Cameron
27. If you call it "facilitation of an
unauthorised entry".
(Ms Alegre) Or "participating in a criminal organisation."
Chairman
28. No. So actually the Greek plane spotters
could not have been extradited.
(Ms Alegre) I do not know the details of what they
were charged with. Unless it could come under this list, or it
was also something that would have been an offence here.
David Winnick
29. We have had various responses which the
Home Office have published, including of course Liberty. However,
I notice that in the memorandum submitted by one of your colleagues
Mr Nicholls, Mr Price, he is more critical than Liberty, which
is unusual on matters concerning civil liberties. He talks, in
the conclusion of his memorandum, about the "atrocious legislative
exercise" and goes on to say that if our law is to be changed
in this manner, confidence in those who negotiate, draft and enact
our laws will be severely undermined. Do you think he is going
too far, or would that, to a large extent, be your view?
(Mr Nicholls) I am not sure I fully understand the
point that he is seeking to make.
30. He virtually, in this memorandum, tears
to pieces every part of the Bill.
(Mr Nicholls) Can I respond in this way: when I first
read this Bill I was horrified. What really horrified me was this:
that here we were trying to streamline the legislative process
and make it simple, yet we have 169 clauses. The 1870 Act existed
for over 100 years. That, in fact, only had 27 sections. The Fugitive
Offenders Act (because, of course, the Commonwealth was different
from foreign states) had 41 sections; changes in 1967 to the Fugitive
Offenders Act, 23; legislation in other countries—Canada,
the 1985 Act has 40 sections and the Canadian Fugitive Offenders
Act, 28 sections. The most recent legislation in the Commonwealth,
the Australian Extradition Act, has 55 sections, but that includes
backing of warrants—that is between New Zealand and Australia—and
this legislation does not include the backing of warrants special
system between the United Kingdom and Ireland. What really horrifies
me is that you have to have a Bill with 169 sections.
Chairman
31. To what do you attribute this legislative
diarrhoea?
(Mr Nicholls) I have not gone through it in detail
but there is a huge amount of repetition. You find time and time
again provisions being repeated. It seems to me that what you
want is, really, a much more consolidated Bill. I have not gone
through the exercise, but I think the whole thing is structurally
wrong. It is almost like a game of monopoly: the dice shows six,
you move six and it says "go back to Go". It is almost
like an instruction manual because throughout you see "If
in the affirmative, do this", "If in the negative do
this". I must confess, in my experience I have never ever
seen a Bill drafted in that way. You have clear-cut provisions.
32. I am told the number of clauses is yet destined
to increase.
(Mr Nicholls) One of the things that worries me is
that the legislation is so rushed and nobody has sat down and
thought "Let's have a simple, streamlined system". My
personal view is that the system worked pretty well before. I
know there were huge delays.
33. That was the point, was it not?
(Mr Nicholls) There were notorious cases, but they
were exceptional. The longest in history was nine-and-a-half years
in relation to Lorrain Osman being returned, and I can think of
even a European Convention case, Cuoghi, which was five-and-a-half
years. That was appalling, but the reason for that was because,
in fact, there were so many bites at the cherry. For example,
you had a hearing before a magistrate; after the hearing before
a magistrate you had habeas corpus before the High Court—possibly
going to the House of Lords; after the House of Lords, representations
to the secretary of state; after those representations a judicial
review, which meant that the secretary of state was considering
the same matters as had been considered by the High Court and,
perhaps, the House of Lords, and some additional matters.
34. All of those stages will be ruled out in
this Bill. Is that right?
(Mr Nicholls) Ruled out, because what they have done
is they have very simply—forgetting the European Arrest
Warrant—said "There will be a hearing before a district
judge and a habeas corpus hearing, and the whole business
of the representations to the secretary of state will have gone"—the
huge burden which the secretary of state and his officials have
at the moment. In my experience, I put in representations as to
why a person ought not to be returned. The secretary of state
has a huge discretion and, sometimes, those representations may
be three ring-binder files, and it has not been exceptional—certainly
in my experience—for the secretary of state to consider
those representations for something like 18 months. That is one
huge burden which is now—thankfully, I am sure, for the
secretary of state—going to be removed. In any event, it
is far better that these matters are considered judicially and
not as an executive function.
35. So we do not disagree with the objective
of this Bill?
(Mr Nicholls) No, I certainly do not disagree with
it.
36. We agree there has been a problem because
it can take many years, as we saw with General Pinochet.
(Mr Nicholls) Yes. Can I just say that, as far as
Pinochet is concerned, I know—because I appeared for Pinochet—it
is wrong to use that case as a reason for it all taking too long.
In fact, it was quite quick; Pinochet was exceptional because
there were so many important proceedings before the House of Lords—three
hearings before the House of Lords. That dragged things out. That
is not a notorious example. One is, and that is the Osman
case which took nine-and-a-half years.
37. What would you consider a reasonable length
of time to be considering an extradition application?
(Mr Nicholls) On a European Arrest Warrant I would
have thought something like three months. In the case of where
a prima facie case is required, I would have thought something
like nine months to a year, but it would depend upon the complexity
of the case. If it is a massive fraud and they have got to decide
if there is sufficient evidence, obviously that is going to take
more time than, say, a simple case of murder.
David Winnick
38. This is, to a large extent, post-September
11. The meeting which took place of the EU Justice and Home Affairs
Ministers was on 19 September, so presumably, to a large extent,
this was a reaction to the atrocity which took place.
(Mr Nicholls) Yes, and it is a very worrying reaction
when you think that the one person who was arrested, a man by
the name of Raisi, the magistrate discharged him. There was no
evidence, and there were other cases, I understand, also in the
pipeline—terrorist cases—where the cases are almost
non-existent. One must not be in such a hurry if you destroy the
fundamental protection.
39. Would it be fair, therefore, to say that
the horror which took place in the United States was, if not an
excuse, a reason why the EU ministers decided to cover a number
of other topics (which as we know have nothing to do with terrorism)
in order to bring forward the measure which we are now discussing?
Would that be a fair description?
(Mr Nicholls) I think that is right. Things are being
slipped in in the hope they might just pass without being noticed.
(Ms Alegre) Maybe I could respond, firstly, to your
initial question, just to clarify that I represent JUSTICE, not
Liberty. I have not read the document that you referred to but
possibly one of the reasons for the approach that we have taken
is that we were working on the European Arrest Warrant from the
start, so on many of the points that may be being made now we
have already made representations, so we are dealing with really
how the European Arrest Warrant is being implemented rather than
necessarily questioning the basis of the Arrest Warrant itself.
As to the September 11 point, the European Arrest Warrant is something
that has been in the pipeline at European level. I think it is
true that it was agreed much more quickly than perhaps it would
have been as a result of the rush post-September 11, at European
level, to be seen to be doing something about terrorism. I think
it is also true that it goes way beyond terrorism, but, as I say,
given that it was initially intended to put into place the principle
of mutual recognition between European Member States, it was not
initially thought of as being an anti-terrorist measure. That
is also some explanation of why it goes further. That is not to
say I necessarily agree with the list as it stands, or the way
it has finally been done, but I do not think it is entirely a
response to September 11. The Raisi case was a case to
the United States, so if we are dealing with the European Arrest
Warrant it would not actually be affected.
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