Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 20-39)



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.


  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.


  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."


  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.


  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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