TUESDAY 29 OCTOBER 2002
Mr Chris Mullin, in the Chair
MS SUSIE ALEGRE, Legal Officer - EU Criminal Officer, Justice; MR GARETH CROSSMAN, MR CLIVE NICHOLLS QC, Liberty, examined.
Chairman: Good morning to our witnesses. Thank you very much for coming. I apologise for keeping you waiting. This is the only hearing we are doing on the Draft Extradition Bill. An enormous amount of legislation is pending, some of which, as you will be aware, gets published only a few days before second reading, whereas in this case we have the advantage that it was put out to consultation some months ago, and we have had the advantage of seeing the responses to that. We have invited you along to help us home in on just the three or four main points where you would like to see changes. We are fishing in territory which we are slightly unfamiliar with. That is why we have invited you experts along. Can I ask Mr Cameron to start the ball rolling.
(Mr Nicholls) Can I just make some comment by way of introduction? The Liberty paper was not drafted by me (that does not mean to say that derogates from its force) and I was only asked to assist in relation to Liberty's proposal last Friday. So there may be some shortcomings in my expertise, and my colleague Ms Alegre may have far greater experience than me in this field. Just coming to your question and the description of the offences, I have only looked at them very briefly and it does seem to me that they are very widely drawn. The question is how one would decide whether or not an offence would fall into a particular category. As I understand the structure of the Bill, the designation is in fact left not to a district justice in this country but, in fact, to the authority in the requesting state. It seems to me that if you are going to have categories of offences they should be strictly drawn so that you can decide whether a thing comes in a category or not. For example, I think in the Liberty paper there is an illustration in relation to, say, computer crime and the idea of an assault occasioning actual bodily harm when someone throws a laptop at another person. Does that come into the category of computer crime or not? So if you are going to have categories of this kind they should, in fact, be tightly drawn so that they can be properly construed.
(Ms Alegre) Maybe I can help. With the warrant there is a list of types of crime which are not defined, as Mr Nicholls has said, but they are defined by the issuing magistrate. What we were suggesting was that there are possibilities within the framework of the warrant to ask for a certain level of detail in the conduct that is being covered, so that there is a possibility, potentially, under the ----
(Ms Alegre) Yes.
(Ms Alegre) It is saying that as well as the French magistrate stating the type of crime that it is, there should be a degree of detail in the actual conduct that has been alleged. If they say, for example, it is a computer related crime and we are talking about the example of somebody being hit with a computer - or, if you like, you are talking about kidnapping and there has clearly been no conduct that could possibly be construed as kidnapping -- you can at least send the warrant back to question whether they would like to re-frame it. If you have no details at all of the conduct, then you have no way of knowing whether it is a totally arbitrary request.
(Ms Alegre) As I understand it, not necessarily the specific offence but the actual conduct that has been alleged, rather than necessarily defining the offence. However, my interpretation of the European Arrest Warrant is that there is not a difficulty in saying that you need a certain amount of detail, just explaining what the conduct is rather than just saying "This is a request for swindling" without saying anything further.
(Ms Alegre) The issue of a prima facie case does not apply to European cases now, so that has not changed. What we are talking about with a description of the conduct is not a description of the evidence of the conduct; we are still just talking about saying what it is that is alleged. The issue of evidence is something that has been changed.
(Ms Alegre) In the past, on which maybe Mr Nicholls will be able to help you further.
(Ms Alegre) The main change is that there is no need to demonstrate that it would have been a crime in the UK or that it is a crime in the UK.
(Ms Alegre) That, basically, is what the list of offences is about. In a sense, the arrest warrant is already there and the definitions are going to be up to the judges in each country and the governments in each country. In a sense, that argument has been done with the arrest warrant. It is really about dual criminality and it is about looking at the reality of the conduct and seeing whether it is just a totally arbitrary suggestion that this is swindling when actually we are talking about an expression ----
(Ms Alegre) The categories themselves cannot necessarily be changed. In the European framework they are there, so in implementing it I think the categories are there. What you can ask for is greater detail in order to see whether you are talking about an arbitrary set of ---
(Ms Alegre) Things like the example of computer related crime. Computer related crime is such a vague notion and, frankly, in that sense, I do not understand why it was not changed at least to cyber crime, which does have an international legal notion. Computer related crime seems to be so broad as to be almost meaningless.
(Ms Alegre) I think that is the case, but if what is happening is implementation of the European Arrest Warrant then those categories are there. But I do think there is scope for asking for more detail just to ensure that we are not talking about absolutely random identification of list crimes.
(Mr Crossman) No. I should possibly clarify that the reason why I have been silent is because my personal background is not in extradition (although I have been working for Liberty) which is why Mr Nicholls has kindly along to speak on Liberty's behalf, as his expertise in extradition is far greater than mine, and I would defer to him on every issue. Essentially, everything that Mr Nicholls says would be the position of Liberty.
(Ms Alegre) That was the concern. That was the concern about the question of whether initially there should be a positive list of offences or whether there should be a negative list, if you like, where you make a list of things that you say you will not extradite for. That was the debate at European level. It is difficult at this stage, and that is really the big problem with it, that there is no way of knowing what will be made law in any other European Union country tomorrow.
(Ms Alegre) It would be very helpful, but on a UK level the UK could, I suppose, unilaterally do that for requests that were made from the UK. However, the discussion about whether or not those lists should exist was had at European Union level, and it has not happened.
(Ms Alegre) Yes, it is unsatisfactory.
(Ms Alegre) Well, no, he does not need to see whether it is an offence in this country, according to this.
(Ms Alegre) No. In practice he cannot refuse on the basis that it is not an offence in this country. He could refuse on human rights' grounds or on whether there is arbitrariness or proportionality, but he could not refuse purely on the basis that it is not an offence in this country, if it is within this list.
(Ms Alegre) To put it on the face of the Bill to check that the conduct, at least, could be construed as one of these types of offence. That still will not change the fact that it will not have to be an offence in the UK.
Chairman: No, I understand that. Thank you.
(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.
(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.
(Mr Nicholls) Yes, I think so. For example, the European Commission for a 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 ----
(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 que 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 the essential on extradition, right up to modern times.
(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 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.
(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.
(Ms Alegre) Or "participating in a criminal organisation."
(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.
(Mr Nicholls) I am not sure I fully understand the point that he is seeking to make.
(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.
(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.
(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.
(Mr Nicholls) There were notorious cases, but they were exceptional. The longest in history was nine-and-a-half years in relation to Larraine Osman (?) being returned, and I can think of even a European Convention case, Khuoggi, 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.
(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.
(Mr Nicholls) No, I certainly do not disagree with it.
(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.
(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.
(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.
(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.
(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 three years.
(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.
(Ms Alegre) The problem is that when we are talking about losing the dual criminality requirement we do not know what laws - for example, relating to racism and xenophobia - in 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.
(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 state.
(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.
(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.
(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.
(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.
(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.
(Ms Alegre) Yes. I would agree with that, on a first look.
(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.
(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 question - that 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.
(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.
(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.
(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.
(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 9/11 - 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.
(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 it before.
(Mr Nicholls) Section 6.1 of the 1989 Act had these provisions in relation to political notification, 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.
(Mr Nicholls) Yes, it will. I cannot remember which they are now, but I know they are marked at some stage.
(Mr Nicholls) I think that is wrong, as I have read it.
(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.
(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.
(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.
(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.
(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 their 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.
(Ms Alegre) Yes.
(Ms Alegre) They could then request consent.
(Ms Alegre) Yes.
(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.
(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 -----
(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.
(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.
(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.
(Ms Alegre) Certainly it should not be only on request.
(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.
(Mr Crossman) Yes, without requirement of request.
(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.
(Mr Nicholls) Yes.
(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.
(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.
(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.
(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.
(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."
(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.
(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.
(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 ------
(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.
(Ms Alegre) Absolutely: "A person should be taken to be discharged on withdrawal of the warrant as soon as practicable."
(Mr Nicholls) Yes, I would go along with that.
(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.
(Mr Nicholls) It is clause 36, is it not?
(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 b e 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.
(Ms Alegre) Yes, I think it does.
(Mr Nicholls) Yes, of course.
(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.
(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.
(Mr Nicholls) No, category 2.
(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 ----
(Mr Nicholls) Yes, by a lawyer. Actually it is less than that because it is sufficient that it is a statement made to a -----
(Mr Nicholls) Yes.
(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.
(Ms Alegre) Yes, I would agree with withdrawing 62(3) as well on that point.
(Ms Alegre) No.
(Mr Nicholls) No. Terrifying.
(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 Kichma 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.
(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.
(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.
(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 Act - incredibly complex - and 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.
(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.
(Mr Nicholls) I really do not know.
(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 different tribunal.
(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."
(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.
(Mr Nicholls) May I correct that. Forgive me, please. The position was that there was an arrest warrant for the senator.
(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 legality - it 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 bias - apparent, not real bias - by 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.
(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.
(Mr Nicholls) No, I am sorry.
(Mr Nicholls) Yes. Totally exceptional.
(Mr Nicholls) Yes, it will.
(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.
(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 case - which 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 countries.
(Mr Nicholls) Yes. I am amazed at those figures. They are fantastic.
(Mr Crossman) That is the figure I have, although ----
(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.
(Mr Nicholls) Yes. One way you could do it - and I had not thought any of this through, and I apologise - is to permit a case to go to the High Court with leave. In other words, you would have to get leave from the magistrate; if refused, leave to the High Court, and it could be dealt with on paper.
Chairman: We will reflect on that. In conclusion, if there were one change you wanted to see to this Bill, what would it be?
(Mr Nicholls) I would like to see, going back to the older legislation, a prima facie case; I would want the rules in relation to evidence seriously relaxed; I would want dual criminality; and I would want the "too many bites of the cherry" eliminated. But that is, I accept, unfashionable.
(Ms Alegre) If I am allowed only one, then the seven day discretion after withdrawal of the warrant.
(Ms Alegre) Presumably you are being kept another seven days on the basis that something else might turn up in order not to release you, which is arbitrary detention.
(Ms Alegre) The second point I would say would be the declaration on speciality, but I would not want the UK to make a declaration that consent was presumed to have been given for proceedings on other bases. Thirdly, I would say the issue of retrospective effect, the article 7 point that we raised earlier, that the European Arrest Warrant provisions should only be applied from a specific date and not continued back into the past indefinitely. A final one would be on the death penalty, that I think there should be an absolute bar in category 1 cases.
(Mr Crossman) I have nothing further to add.
(Ms Alegre) It would not implement the European Arrest Warrant. That is what the Bill is intended to do.
(Ms Alegre) It would not be implementing what I think the intention is.
(Ms Alegre) That would amount to the same. It is impossible to tell what the law is in what will be 25 countries.
(Ms Alegre) Not if the arrest warrant is to be implemented.
(Ms Alegre) Yes.
Chairman: We will reflect on those points and certainly propose some amendments in due course. Mr Nicholls, Mr Crossman and Ms Alegre, I am extremely grateful to you for coming. You have been extremely helpful in illuminating what is a area of darkness for most people. Thank you very much.