Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 60-79)



  60. Yet we have just been given an example of Spain where that can happen.
  (Mr Nicholls) Spain is category 1, so it could happen. I would have thought and would have hoped that if you did have a request of that kind the European convention might be invoked. I am not sure.
  (Ms Alegre) I think it is difficult to say. Surely the European convention probably would be invoked. Whether or not there would be an argument is a different matter.

  61. I think the exchange we have just had indicates that the people who draft the Bill and those who consider the legislation need to revisit, to see exactly what can happen in certain circumstances, particularly in the light of Spain and the Basques. If I could move on to a further question, which is to do with the likely effect of the UK giving a notification to article 27.1 of the European Arrest Warrant framework decision, which would effectively mean that the UK would be presumed to have consented to an extradited person being proceeded against for a crime other than that for which he or she was extradited; in other words, once they have got them, they can bring other charges. How seriously would you consider the consequences of such a notification could be?
  (Mr Nicholls) We are talking here about specialty. Let me deal with specialty generally. A person is only to be tried for the offence for which they are returned or for any offence disclosed by the facts supporting their return. That is where a person is, so to speak, being extradited. I have only ever known one case in England, and it is only just coming before the courts, may come before the courts. The situation is where a person has in fact been extradited but after they have been extradited there is a request for them to be tried for another offence. That arises in a particular case at the moment, where, for example, a person was extradited in 1989 and a Commonwealth government has said, as he comes to the end of his sentence, "We want to try him for another offence," for which he was not returned. That is very exceptional. There are a few cases in Canada but there is only one, ever, in England and it has not yet, if it ever does, come before the court. The situation used to be in the hands of the secretary of state and is at present. The idea now, as to whether or not to give consent to another offence of this kind, is that that is put in the hands of the district judge. I do not complain about that at all. It could always be subject to review if his decision is disagreed to, but I do not understand why you need to have some particular arrangement between some states and not all states of there being a presumed consent. It seems to me that the matter ought to be dealt with not by presumptions of this kind but that it ought to be done in public and it ought to be transparent and it also ought to relate to the particular case rather than being a general rule.
  (Ms Alegre) I would agree that the issue of specialty in general only comes up in a couple of cases, but I think that if you have a declaration which is in effect a carte blanche, that if you get anybody back to the country you can then proceed against them on any basis, you know that when you are making the request and I think you are then likely to find that those cases are much more common. It is very different if you have to make a request. I cannot really see a justification for making such a declaration.

  62. You would like to see it removed.
  (Ms Alegre) Yes.


  63. Suppose that someone is extradited for murder and when they get back investigation reveals that they have been involved in a number of other murders. Can they be charged?
  (Ms Alegre) They could then request consent.

  64. I see, they would come back to the judge here and say, "These new facts have emerged."
  (Ms Alegre) Yes.

  65. That would resolve that problem.
  (Ms Alegre) Yes.
  (Mr Nicholls) Yes, the secretary of state used to do it or does it up to now, but, as I say, I only know of one case where it has ever actually happened. But I cannot see that there would ever be a problem about it. In fact the district justice has to decide: If the person were not where he is now but he was actually here and it was a request for extradition, are all the conditions complied with? It seems to me to be perfectly sensible.

Bridget Prentice

  66. Under Part 1 it says that the arrest may be carried out by a constable or an "appropriate person". What is your view on that part of the legislation?
  (Mr Nicholls) I must confess, I had not spotted that. I do not know who an appropriate person would be.
  (Ms Alegre) I think that is a concern. I cannot imagine what the appropriate person that they have in mind is. That should be specified.
  (Mr Nicholls) It seems to me to be, in a sense, rather sloppy draftsmanship. If you have a phrase like "appropriate person", it is like an "appropriate authority", you would expect it to appear in the interpretation section and it does not. Who does execute a warrant or an authority of arrest other than—

  67. Customs & Excise, I would have thought would be a pretty obvious example of somebody who might be designated an appropriate person. Our concern is whether it would be wider than such an example. Presumably police officers from the extradited countries might be considered appropriate persons. That is what I am asking you.
  (Mr Nicholls) I think that shows the danger, because I do not know of any legislation that permits foreign police authorities to execute warrants in this country.
  (Ms Alegre) That could change at a future date.
  (Mr Nicholls) Yes. I agree.

  68. Given your concern about that, do you think it is appropriate that parliament will under this Bill allow the Home Secretary that very obvious, very open-ended power, to designate who is an appropriate person and especially given that the person can arrest without being in possession of a warrant?
  (Ms Alegre) I think there should be a statement of who the appropriate person is on the face of the Act.
  (Mr Nicholls) I think that is right.

  69. Moving on now to the fact that they do not necessarily have to have the warrant on them when they make the arrest, is that an appropriate thing to have in a Bill of this nature? Also, there is the fact that they only need to inform the person arrested if the person arrested asks to see the warrant. How do you feel about the fact that somebody can be arrested without a warrant being in the possession of the arresting officer?
  (Mr Nicholls) I cannot say I am very happy about it but I see that it does say, "A copy of the warrant must be shown to the person arrested as soon as practicable afterwards . . ."
  (Mr Crossman) ". . . and if requested."
  (Mr Nicholls) Yes, ". . . and if requested." I think it should be shown in any event.
  (Mr Crossman) I am wondering whether or not this might in some way be tying in with the provisions of the Nationality, Immigration and Asylum Bill and Regulation to the need to show a warrant when entering premises. I am not exactly certain, but it does seem to me unusual that they do not say there is a need for a warrant to be shown at the time.
  (Ms Alegre) I think it may also, I am not sure, be connected to the possibilities of transmission of the European Arrest Warrants where the country of residence is not known—so, where it is being transmitted through the chain information system. That may be the reason. That does not justify the need for a request on behalf the person to see the arrest warrant as soon as practicable but it may be related to language issues and transmission issues.

  70. So a delay is acceptable if there is that kind of complication.
  (Ms Alegre) Certainly it should not be only on request.

  71. They do not actually have the arrest warrant in their pockets all the time.
  (Ms Alegre) It may be impracticable in those cases that they would have to have the warrant in their pockets at all time.
  (Mr Crossman) But there should be a duty to produce the warrant at the earliest opportunity without request.

  72. The duty to produce it without it being requested
  (Mr Crossman) Yes, without requirement of request.

David Winnick

  73. An "appropriate person" (as it is described), should we consider that in any way as a sinister factor which we should be on our guard about?
  (Ms Alegre) I do not know whether "sinister" is quite the right word but it would raise the questions of what one might be considering as the future developments in terms of who is able to execute arrest warrants on British territory.
  (Mr Nicholls) There must be somehow a simple answer as to who is entitled to execute a warrant apart from a constable.


  74. We shall ask.
  (Mr Nicholls) Yes.

David Winnick

  75. I suppose the most obvious one would be the immigration officer.
  (Mr Crossman) Anyone who has a power of arrest under the general law. That, I imagine, would be the easiest way. Unless it has been done intentionally with a view to leaving it open-ended for future provisions. As Mr Nicholls has just pointed out to me, in fact a general power of arrest does exist to members of the public, so that probably would not be an ideal answer.

  David Winnick: But, whatever the position, it should be tightened up so there should be a more defined explanation of what is meant.

Bridget Prentice

  76. I want to ask a final question about the constable or the appropriate person being able to make an arrest in the belief that a warrant will be issued. That seems to be a very, very flexible power to give, certainly to someone other than a constable.
  (Ms Alegre) I would agree with that. I think it needs to be absolutely clear who the appropriate person is. I would agree that that seems to be a very wide power that should be tightened.

  77. Are you aware of such powers being available in any of the other category 1 countries?
  (Ms Alegre) As far as I am aware, it has not been implemented elsewhere. At the moment we are actually looking at how other countries are implementing it and what the politics and legal issues in other countries have been. I am not aware of that but it is certainly something that we have been looking at generally, because clearly how it is implemented elsewhere also affects people being extradited to the UK.

  78. Would your general view be that in this area we should try to be on all fours, that all the category 1 countries should have a very similar forum of extradition law?
  (Ms Alegre) That would be the idea. That is a difficult European constitutional question, which I think is probably being dealt with in the Convention on the Future of Europe at the moment, that the problem is with the framework decision, that there is no guarantee that the countries will all implement it in the same way at all. It is impossible to tell.


  79. Clauses 32, 34 and 35 address the situation where a warrant is withdrawn while extradition proceedings are underway and gives the authority power to detain someone for another seven days after the warrant has been withdrawn. Can you think of a reason why that might be necessary?
  (Mr Nicholls) I cannot see any reason at all. A warrant would only be withdrawn and a request withdrawn when a firm decision you would expect to be made by the foreign authority. Once that decision is made, I do not see any reason why a person should be held for seven days, other than the thought that perhaps the country would say, "We made a mistake."

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