Examination of Witnesses(Questions 100-119)|
TUESDAY 29 OCTOBER 2002
100. How do you think that would work?
(Mr Nicholls) I would have thought that designation
would simply be by an Order in Council, in which case it does
not have to be, as I understand it, laid before parliament. It
certainly does not have to be approved, so there is no control
by the legislature at all on the designation. When one thinks
of countries of the former Soviet Union, there are the gravest
worries. With no disrespect to them and all their aspirations,
their values are not the same and, even if they might be on paper,
in reality it is an extremely disturbing state of affairs. You
only have to think in another context there, especially the designation,
that you have many prosecutions that have been launched from those
countries against their people that certainly on the face of it
appear to be for political purposes. For example, the request
for the extradition of Vladimir Gusinsky, the Russian media mogul.
Another classic example was the pursuit by Kuchma of Lazarenko,
the former prime minister of the Ukraine. Normally these requests
are launched on, so to speak, the eve of elections in order to
destabilise and damage their chances. I think there ought to be
some sort of procedure whereby the legislature at least has a
say in relation to designation. If I can just give an example
of that. A few years ago there were a lot of Venezuelan bankers
that were wanted by the authorities in Venezuela. They were in
this country and parts of Europe. The Venezuelans wanted them
extradited. As I say, some were in this country. We had no extradition
arrangement with Venezuela. There were fears on the part of the
bankers that the United Kingdom and Venezuela would have an ad
hoc arrangement of bringing extradition into being. I personally
was concerned in drafting lengthy representations to the Secretary
of State as to why there ought not to be an ad hoc arrangement
and in particular drawing attention to Venezuela's human rights
record and the fact that a fair trial could not be guaranteed.
But it seems to be crying out for a provision that designation
should not simply be an act of government, it ought to be reviewed.
101. Do you agree with that?
(Ms Alegre) I do agree. On the point of designation
and the intention, I imagine that this is to a degree connected
to what will be on-going negotiations on bilateral agreements,
as opposed to the sort of European agreements, and the issue of
the prima facie case is still a very important point. The
case of Raisi that Mr Nicholls mentioned earlier, I think
that was discharged on the basis that evidence was not forthcoming.
(Mr Nicholls) Yes, there was no evidence.
(Ms Alegre) So I think the prima facie case
is very important, and particularly in a post-September 11 atmosphere.
Chairman: Moving now to delegated law-making
powers in the Bill. Clause 165 is the relevant clause.
102. Clause 165 seems to allow the Home Secretary
or the Government to amend or repeal the Extradition Act 1989
just by use of Orders in Council without going back to parliament,
without debate on very important policy matters and a very important
Bill. What is your view on that particular degree of delegation?
(Mr Nicholls) I must say I am rather surprised at
a mechanism as an Order in Council because usually the provisions
in relation to existing legislation are to be found in the Bill
itself, in which case parliament can express its approval or disapproval.
It seems to me to be too large a power to leave to delegated legislation.
103. Do you consider it appropriate for extradition
cases to be heard in the Bow Street Magistrates' Court in the
first instance or would it be preferable to be in the High Court?
(Mr Nicholls) I have always thought that extradition
cases are sufficiently serious and difficult that they ought all
to be heard in the High Court. That might have an effect on the
manpower as far as the judges are concerned. Another good reason
for them being in the High Court is that you get rid of a duplication
of function. If you take an example here: What is going to be
the most used weapon for the defence? The most used weapon is
going to be the Human Rights Actincredibly complexand
we are at an early stage of our own jurisprudence in that area.
Why leave it to a district judge? I ask the question: Are you
ever going to have a district judge who is sufficiently experienced
and of sufficient standing really to determine these matters?
If you went straight to the High Court and had all these cases
done in the High Court, I know it would need manpower but, nevertheless,
the whole complaint about delay would in fact be reduced. Certainly
I have had it in my mind over the years. I have never understood
why these matters have been heard in Bow Street. I did one case
which over an 18-month period took no less than six months to
be heard at Bow Street. This is the case that went on for nine
and a half years. That case could have been dealt with straight
in the High Court and would have been far better: all the complex
issues would have been properly canvassed and the judge would
have kept proper control on the case itself. I think, yes, one
should have considered having the High Court and not a magistrates'
court. If you ask me the question: If it has to be a district
judge, does it have to be Bow Street? the answer again must be
yes, because the position is that they have a rota of experienced
magistrates or magistrates who specialise in extradition.
104. The stipendiary magistrates?
(Mr Nicholls) Well, not just stipendiaries. There
are stipendiaries who actually deal with extradition. Traditionally
always the senior magistrate always did the extradition cases.
There might be two more after that, so that you have possibly
three doing them.
105. How many cases a year are we talking about?
Do you have any idea?
(Mr Nicholls) I really do not know.
106. Tens, hundreds?
(Ms Alegre) I think it is about 100.
(Mr Nicholls) Yes, it is just under 100, I would have
thought. But of course most of these cases go on up. It is a ladder:
you are forever regurgitating the same old arguments before a
107. I think ministers would argue that is one
of the things that this Bill was intended to stop.
(Mr Nicholls) Which is exactly what should happen.
That is why, for example, I said if you had it dealt with before
the High Court that would be a very good thing. But the judges
would say: "We cannot tie up our judicial manpower in such
things as extradition cases."
108. There is no way of distinguishing between
the more serious and the less serious.
(Mr Nicholls) I think it could be worked out. I mean,
obviously if you take the European Arrest Warrant, that may be
fairly simple unless you come on to the ECHR issues. If you come
into prima facie case category 2, then those are probably
going to be more serious.
109. The Pinochet case, perhaps you will
remind me, started off in the court of first instance, Bow Street,
and ended up inevitably, as it would do, in the Lords.
(Mr Nicholls) May I correct that. Forgive me, please.
The position was that there was an arrest warrant for the senator.
110. From Spain, yes.
(Mr Nicholls) It had not even reached Bow Street at
all. The position was that there was an immediate challenge, that
he could not be amenable to the criminal process in this country
because, as a former head of state, he was immune. There was then
a challenge to the legalityit was a provisional arrest
warrant. This is why it is so exceptional; it is not a good example
of delay. There followed a challenge before the High Court, before
Lord Bingham, Chief Justice, in which he said that Pinochet was
immune. After that the case went to the House of Lords, which
was effectively an appeal against that decision, and the House
of Lords held by three to two that he was not immune. It then
went back to the House of Lord again because the House of Lords'
own decision was impugned on the grounds of biasapparent,
not real biasby Lord Hoffmann, and it then had to have
yet another hearing. Between the first House of Lords' hearing
and the second one, which was the bias one, there were only eight
days, so there was no real delay, but then you had, exceptionally,
the final decision in the House of Lords and then the case. Up
to there, no had extradition started at all; it was simply a challenge
as to warrant. Then back you go and start properly, and you start
in the magistrates' court.
111. It went back to court.
(Mr Nicholls) It went back to the magistrates' court.
There were huge delays in the case being heard in the magistrates'
court, the reason being that originally one magistrate was going
to do it, then the chief magistrate said he was going to do it
and he was not well, and there was a good six months' delay before
we actually got into Bow Street proper.
112. We should not get too bogged down in that
case, I think.
(Mr Nicholls) No, I am sorry.
113. Because it was an exceptional case.
(Mr Nicholls) Yes. Totally exceptional.
114. If it starts off in Bow Street, if the
defendant has sufficient resources and it is controversial and
all the rest of it, it will go from Bow Street, will it not?
(Mr Nicholls) Yes, it will.
115. It will not end up there.
(Mr Nicholls) It will go from Bow Street on a habeas
corpus to the High Court and then from the High Court with leave
to the House of Lords. But not many cases in fact do go to the
House of Lords.
116. Taking up the Chairman's point again, if
a case is not controversial and is considered more minorperhaps
not by the defendant, but it certainly is not a controversial
caseshould it really go to the High Court and take up the
judge's time when it can quite likely be decided by the magistrates
at Bow Streetif you like, the devil's advocate point of
(Mr Nicholls) Yes. I think if a person wants to appeal
by way of habeas corpus to the High Court, he ought to have that
appeal. If it is totally meritless, probably the best penalty
is for the court to say so and penalise not only the applicant
but possibly even counsel for bringing a meritless casewhich
most of us hope we do not.
(Mr Crossman) Just on clarification of numbers, for
the figures I have unfortunately I cannot cite a source for them,
although I think they might be Home Office. There are about 800
extraditions annually. Of these, about 500 are contested and,
of those 500, 400 are to European countries and 100 are to non-European
<fo1> Note by witness: These figures
have been checked by Liberty and are incorrect. Home Office figures
for 2000 show only 78 requests for extradition in that year (of
which 47 were granted) Source: Home Office, The Law on
Extradition: A Review, March 2001, p 65).
117. Obviously that would clog up the High Court,
would it not?
(Mr Nicholls) Yes. I am amazed at those figures. They
118. Perhaps we could say the category 2 cases,
which is about 100.
(Mr Crossman) That is the figure I have, although
119. Perhaps one could say they should start
in the High Court. Would that address your point?
(Mr Nicholls) I am not sure you can really distinguish
it in that way, because once you get on to human rights cases
they are going to be, by their nature, complex, I think.