Examination of Witnesses(Questions 40-59)
TUESDAY 29 OCTOBER 2002
40. The draft Bill reduces to twelve months
the length of sentence that would have to apply in order for an
extradition, instead of the three years which I think the European
Framework recommends. Do you think that is acceptable?
(Mr Nicholls) I would have thought it was acceptable.
Twelve months has been common for years in the extradition process.
Two years is the highest I have ever known. I have never known
(Ms Alegre) I think the difference is that the three
years only applies for the dual criminality exception. So given
that we do not really know what the laws are in other Member States,
I think it is safer to say there is a three year limit, because
a three-year limit is certainly what is considered at a European
level to be a serious crime. United Kingdom sentencing practice
is very different from most other countries.
41. Given that ours has been twelve months,
as Mr Nicholls has said, what is the problem?
(Ms Alegre) The problem is that when we are talking
about losing the dual criminality requirement we do not know what
lawsfor example, relating to racism and xenophobiain
other countries carry, for example, a one-year sentence or a three-year
sentence. Certainly, in France until very recently there were
defamation cases which did carry a potential one-year sentence.
Although that one-year sentence was never handed out there is
no reason why a request could not be made and then a fine given.
Whereas, if you extend it to the three-year level, you are likely
to be dealing with more serious offences and you are likely to
get rid of arbitrary questions, particularly in the racism, xenophobia,
freedom of expression type offence.
42. What do you say to that, Mr Nicholls?
(Mr Nicholls) I do not have any comment on that. I
can see the point of three years if there is no dual criminality.
On the other hand, I do not see why the penalty is necessarily
a protection. Either you are going to have dual criminality or
you are not. If you decide not to have it, why have a three-year
limit? Then there are problems as to the penalty in a foreign
43. Can we do away with dual criminality?
(Mr Nicholls) No, I think we should have dual criminality.
I cannot see any really logical reason for not having dual criminality.
Why should we extradite people whose conduct does not amount to
an offence if it was committed here? One can think of many sorts
of circumstances and types of conduct which are regarded as criminal
in one country but not in another.
44. Continuing the theme of the effect of abolition
of dual criminality, you have raised some of your concerns about
it. However, we have had this assurance that a judge would be
able to take into account the Convention on Human Rights when
making these decisions on extradition. If there was a conflict
in terms of a law not being in place in one country but being
in place in another, we could come down to a pretty fundamental
human right that there is no punishment for that law. Is that
enough protection or not?
(Mr Nicholls) I am not sure it would operate because
the punishment would be in accordance with the law of the requesting
state. I am not sure that the Human Rights Act will operate in
those circumstances. The greatest protection of the citizen, and
it was said as long ago as the century before last, in extradition
was, in fact, the discretion of a secretary of state. I know it
is a huge burden on him but that discretion enabled him to take
into account almost anything. It was unfettered and very often
it might be information which the fugitive had no knowledge of
at all. It could relate to political matters or matters peculiar
within government knowledge in a state that was making a request.
What remains to be seen is whether, having scrapped the secretary
of state's discretion the Human Rights Act will provide the same
sort of protection. The other thing that, perhaps, is a matter
for concern is that if one says one is simplifying the system,
if you have the district judge having to have regard to Human
Rights Act considerations, you are going to build up a huge body
of case law built up on different situations as they come before
the court. I think it may make extradition a great deal more complex.
(Ms Alegre) I would agree that in general I do not
think the article 7 question would come in because the extradition
itself is not the punishment; the punishment is according to the
law of the country once you get there. It is debatable whether,
if it is applied retrospectively, there could be an article 7
point on the basis that at the time you could not have been extradited
from the UK because we still had dual criminality. It is a debatable
point and it may well be debated. That is why we have asked that,
like some other Member States (I think France, but I cannot remember
exactly which ones) who have made a declaration as to the date
from which the European Arrest Warrant would apply, so that it
would not apply to acts committed in the past.
45. At the beginning of the Bill the Home Secretary
will be required to confirm that the Bill is compatible with the
Convention on Human Rights. In this particular issue of dual criminality
effectively being abolished, do you think he can rightfully do
(Ms Alegre) I think that he can, particularly given
that he has put a positive obligation on the judge to ensure that
the extradition is Human Rights Act compliant. As I said, I do
not think there is an article 7 issue with the extradition per
se without dual criminality.
46. Although the effect would flow from that
decision. Punishment could come from the law of the land.
(Ms Alegre) That punishment would be applied in accordance
with the law of the land where it was applied, because the extradition
is not the punishment; the punishment would be what would happen
in the country where it was law. So there is some case law on
article 7 to say that extradition is not a punishment in itself.
47. Can I take you to clause 61 of the Bill?
The draft currently allows a suspect's mental and physical health
to act as a potential bar to extradition in a category 2 country,
yet the distinction is not currently made in category 1 countries.
Could you give us your opinion on what seems to be an anomaly?
(Mr Nicholls) I must confess I had not spotted it.
It does seem to be an anomaly and without giving any further thought
it seems to be illogical.
48. Is that the general view?
(Ms Alegre) Yes. I would agree with that, on a first
(Mr Nicholls) I do not know whether that point has
not been spotted by the draftsman. There is another point I noticed
when standing outside, which is that in relation to bail provisions,
the bail applications will be made before the district judge.
Certainly, from experience, one knows, from appearing before district
judges, very often it is difficult, even where there is a right
of bail, to achieve bail for a fugitive. There is no provision
whatsoever for appeal against the district judge's decision. That
seems to me to be inherently wrong. My experience has shown that
on many occasions where a district judge has refused bail, on
appeal to the High Court and judge in chambers bail is granted.
49. That is probably why it has been drafted
in that way then.
(Mr Nicholls) If that is right then that is a classic
example of a protection to the subject which has, in fact, been
taken away and ought not to have been because the extradition
process is not a punishment in itself.
(Ms Alegre) On bail the one thing that they have done
is actually brought it into line with domestic practice, so that
may answer the appeal questionthat bail in extradition
cases will be dealt with in exactly the same way as domestic cases.
(Mr Nicholls) That is only in relation to the right
to bail, that is not in relation to the right to appeal. It is
the right to appeal that concerns me.
(Ms Alegre) That may need clarification.
50. Can I move you on to another area, the death
penalty? How seriously do you regard the draft Bill's omission
of the death penalty as an absolute bar to extradition?
(Ms Alegre) In terms of the category 1 area, I regard
that as a very serious omission because it is clear that the death
penalty does not apply in the European Union, or in the candidate
countries or, indeed, I think, in any Council of Europe countries,
at the moment. That, therefore, begs the question of what potentially
the category 1 territories are envisaged as being, finally. I
cannot see any good reason for having the option of extraditing
with the death penalty.
51. Even if there is an assurance in writing
that the death penalty will not be either imposed orbecause,
at the moment, there could be a sentence to deathcarried
out? Do you see that as a proposition?
(Ms Alegre) There are two different issues. One is
that if we are talking about category 1 territories, what territories
are we talking about if we are talking about the death penalty,
because on what one would imagine we were talking about there
is no issue on the death penalty. If one of those particular countries
brings the death penalty back in I can see no real justification
in holding that out as a future option. The second issue about
a written guarantee is where that guarantee comes from. That guarantee,
presumably, comes from the state. Whether the state can bind a
supposedly independent judiciary is another question. Specifically,
in relation to the category 1 countries, I just cannot see any
justification for having that fine line. There are other countries
where they have an absolute bar on extradition in death penalty
cases precisely because they say the state cannot give an adequate
guarantee that a death penalty will not be imposed. That is particularly
the case in federal versus state law.
52. Can you furnish us with the countries that
have got a mind to
(Ms Alegre) I think it is Italy and I think Spain,
possibly, as well.
Mr Watson: Perhaps we could look that
up at a later date.
53. As the evidence has gone on, I wonder if
you would, in a few words, indicate what is in your view the driving
force behind this legislation?
(Mr Nicholls) I certainly think it was influenced
by the Pinochet case. I think the Pinochet case
brought extradition into the public eye. One of the concerns of
the Pinochet case, I think wrongly, was the delays in the
system and the need to simplify it, and what I described as too
many bites at the cherry. So I think Pinochet got it under way.
I think the other matter that has now, so to speak, propelled
it to the stage we have got now, is unquestionably September 11.
My own concern is that everything is in far too much of a hurry
and you should not need legislation as lengthy as this.
54. One second, Mr Russell. Is the reason why
the Bill is so lengthy because many of the clauses have to be
repeated for category 2 countries as well as category 1 countries?
If that is the case, does it matter very much?
(Mr Nicholls) I think, from a lawyer's point of view,
you could simplify that. I do not think you need to keep repeating
and repeating; you do not have to say "This is a category
1 state, I will look at category 1 and, possibly, if it is category
2 I will look at category 2 too". I think that the old schemes
were pretty successful; they had faults and flaws, and so did
the 1989 scheme, but I just do not understand why you have to
have anything so lengthy as this. I do not like this phrase "If
in the affirmative do this, if in the negative do that".
It is an extraordinary legislative technique. I have never seen
55. If we stay with the Extradition Act 1989
and, particularly, section 6.1, I believe it is possibly being
repealed. Do you agree with me this would create a serious risk
that people could be extradited for political offences, or that
extradition requests could be motivated by race, religion, nationality
or political opinions?
(Mr Nicholls) Section 6.1 of the 1989 Act had these
provisions in relation to political motivation, etc. That also
continues in relation to the present Bill but does not apply in
relation, as I understand it, to a European Arrest Warrant.
56. Are you saying that the draft Bill will
still provide protection for those types of circumstances?
(Mr Nicholls) Yes, it will. I cannot remember which
they are now, but I know they are marked at some stage.
57. So those who have suggested that perhaps
there will not be protections are mistaken?
(Mr Nicholls) I think that is wrong, as I have read
(Ms Alegre) I think there is a degree of concern,
and I have outlined it in our paper, particularly with reference
to participation in a criminal organisation. A criminal organisation
is a criminal organisation because it has been declared a criminal
organisation in any country. So we now have the example of Spain
having made the party Batasuna illegal despite the fact that at
European Union level it was refused from the list of terrorist
organisations. In fact, now, with the European Arrest Warrant,
if you are a member of Batasuna in the UK requested by Spain you
will be sent back for participation in a criminal organisation,
or you could be.
58. They would argue they are a political organisation.
(Ms Alegre) They could argue. It is a question of
degree, what you consider a political offence. The reason, according
to Spain, that they made them illegal is because of their links
with terrorism. However, the point is you do not know tomorrow
what is going to be made a criminal organisation here or elsewhere.
59. If this legislation had been in power a
year ago, that organisation would not have been deemed to be a
criminal organisation, and the person could not be extradited.
Because Spain has now made them a criminal organisation they can
(Ms Alegre) They could have been extradited for specific
terrorist offences, if they have links, but not for simply being
a member of Batasuna.
(Mr Nicholls) Can I correct what I said? You asked
me about a prosecution on a count of race, religion, nationality,
political opinions, or prejudice resulting from that. That does
not apply to category 1 but it does apply to category 2. So, I
suppose, in relation to category 1 it is, in a sense, being assumed
that category 1 states, being parties to the European Convention
on Human Rights, would not make a request in this fashion.