Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 80-99)



  80. Supposing it is discovered during the course of proceedings that the warrant is defective, and it is a technical matter that can be put right fairly quickly, is it not a good idea to hang on to the suspect, if you have him in custody, while the defect is remedied?
  (Mr Nicholls) There are two things here. One is the request; the other is the warrant. A person has appeared before the appropriate judge and the person is either on bail or has been remanded. If he is told or informed the request has been withdrawn, one cannot see any circumstances where there would be a defective request, or, if there were, you would just hold for a while and redraft your request. And the same in relation to a warrant: if it is a defective warrant, you put it right straight away.

  81. It might have to go back to the country from which the warranted emanated.
  (Mr Nicholls) But the warrant that was used in England for the purposes of arrest would remain valid, and the custody, so long as the judge had not been informed that it had been withdrawn. If the request is withdrawn for some defect, some reason like that, one would expect that you would not inform the magistrate that it was withdrawn until such time as you had another one to put in its place. Commonly fugitives have been released, for example, at Bow Street, under the present system and as they left the court there was another warrant and they were immediately re-arrested.

  82. We did see some time ago, in relation to the extradition of terrorists from Ireland to here, a whole series of cases in which there were alleged to be defective warrants and those people walking out of the front door of the Irish courts.
  (Mr Nicholls) I think the reason for that is the very strict rules imposed by the Backing of Warrants Act, 1965, and particularly on the Irish side, because it is a young country with a young constitution, they were very strict as to the adherence to the rules—if anything, I suppose, over-strict—and the same reaction in this country. I do not think it is a fair comparison you can make between this legislation and the Backing of Warrants legislation between England and Ireland.
  (Ms Alegre) I would agree that I can see no justification for keeping the person for seven days after the warrant—

  83. If not seven days, how long?
  (Ms Alegre) I cannot see any justification for keeping somebody in custody following the withdrawal of a warrant. There is no reason why. Once you know that the warrant is defective, you redraft it before you withdraw it and you pick them up as they are walking out of the court, exactly as Mr Nicholls says. I think that this provision is entirely against the Human Rights Act and Article 5 of the European Convention on Human Rights. It absolutely does not comply with any of the reasons for detention and deprivation of liberty. There is no justification—certainly no legal justification, and, even beyond that, I cannot see a practical justification.

  84. What would you insert instead, "As soon as practicable?"
  (Ms Alegre) Absolutely: "A person should be taken to be discharged on withdrawal of the warrant as soon as practicable."

  85. Would you go along with that?
  (Mr Nicholls) Yes, I would go along with that.

  86. On withdrawal of the warrant or as soon as practicable?
  (Mr Nicholls) On withdrawal of the warrant. I think it is a pretty serious act for a country to say, "We are going to withdraw either a request or a warrant," and if they are going to take that serious act, if there is some defect you would have expected them to put a new warrant into effect immediately so that it can simply take its place.

  87. Is there any provision in the draft Bill that requires that the arrested person should have access to legal advice? I am sorry, it relates to consent: before they consent to be extradited.
  (Mr Nicholls) It is clause 36, is it not?

  88. Yes, it is.
  (Ms Alegre) I think on this issue it is not put highly enough, particularly given that once consent has been given it is irrevocable. I think that there needs to be a higher protection on legal assistance. I think certainly there needs to be a guarantee that the judge is certain that a person consenting to extradition has had legal advice and is consenting.

  89. That needs to be written into the Bill, does it?
  (Ms Alegre) Yes, I think it does.

  90. You all agree with that, I take it.
  (Mr Nicholls) Yes, of course.

David Winnick

  91. As regards the question of being held for seven days once the warrant is withdrawn, you may be aware that the Metropolitan Police Service is also critical and argues that the subject's "human rights would be breached if the person were to be detained unreasonably beyond the moment that the official withdrawal notice was received." They do say "unreasonably", so they qualify it somewhat, but basically they seem to agree.
  (Mr Nicholls) I think the person should in fact be entitled to be discharged, having regard to the fact that the act of withdrawal must be a serious act, and need not be implemented until such time as they have other mechanisms in place.


  92. Going to clause 62 now, which relates to the existing requirement that a requesting state must establish a prima facie case to answer. Apparently in the Bill this safeguard is maintained only in relation to category 2 territories. Do you think that is right?
  (Mr Nicholls) I think clause 62(3) ought to go. It is a dilution of the prima facie case rule and if you are going to retain the prima facie case rule I think you should maintain it in all its strictness because it covers all other countries in the world apart from those who come within category 1. So it would cover Brazil and the Ukraine.

  93. I am sorry, these are not category 1 countries are they?
  (Mr Nicholls) No, category 2.

  94. It covers all those already, does it not?
  (Mr Nicholls) Clause 62 is in relation to category 2 and it then deals with the question of a prima facie case in 62(1). Then, in relation to 62(2), it is dealing effectively with the admissibility of the evidence; in other words, the statement does not have to be taken before a foreign judge, it is sufficient if it is made to a police officer or person charged with the duty of investigating. But it is 62(3) that we object to: "A summary in a document of a statement by a person must be treated as a statement by the person in the document for the purposes of the subsection." What that really comes to is this: it allows something to come before the court which is not effectively evidence at all. One of the things about a prima facie case is that you have a statement by a witness. What this is permitting—

  95. Sworn before a lawyer in the appropriate country.
  (Mr Nicholls) Yes, by a lawyer. Actually it is less than that because it is sufficient that it is a statement made to a—

  96. No, I mean the existing situation is that you must swear an affidavit. Is that right?
  (Mr Nicholls) Yes.

  97. Which must be sent over here or . . .
  (Mr Nicholls) That is right and authenticated. The existing situation is generally speaking that the witness statements are in fact statements made to judges. For example, in the United States you would have the depositions that were taken before a grand jury, so you know somebody is actually giving evidence and you know precisely what it is that they have said. But the trouble about 62(3) is this: it means that any summary, as I see it, in a document of something that has been said by someone else is going to be treated as if it was said by that person. It effectively has, I would have thought, no authenticity whatsoever. I think this can be very disturbing because many other countries do not have our common law system, either as to procedure or as to substantive law, and certainly in my experience, in prosecuting and preparing cases for extradition for countries from all sorts of parts of the world, things slip in which in our system I do not think would be allowed to slip in
  (Ms Alegre) Perhaps I can assist just on the distinction between the category 1 and category 2. The current situation is that the prima facie case is not required in European Convention on Extradition cases, so if category 1 territories are to be understood as being European Union and/or potentially Council of Europe, if that is really what we are talking about, there is no change in the status quo on the prima facie case. If, however—which was the worry about the death penalty issue—we are talking about potentially other countries being category 1 countries, then that is slightly a different matter. But I assume that the distinction is made on the basis of the situation as it is now and as it will continue to be. There is no requirement currently for what we expect to be category 1 territories for prima facie case.

  98. Would you go along with withdrawing clause 62(3)?
  (Ms Alegre) Yes, I would agree with withdrawing 62(3) as well on that point.

  99. Then on this business of the proposed delegation of power to allow the Government to designate certain category 2 territories as being exempt from the requirement to demonstrate a prima facie case, presumably that is not a very good idea either, is it?
  (Ms Alegre) No.
  (Mr Nicholls) No. Terrifying.

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