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25 Mar 2003 : Column 164—continued
Mr. John Bercow (Buckingham): With reference to Government new clause 14(4) and the exercise of judicial power, is there an entitlement to appeal?
Mr. Ainsworth: There is entitlement to appeal against all decisions taken under part 1 and part 2. However, in part 1 countries—our European Union partners under the European arrest warrant procedures—a strict time limit is applied to how long can be taken to deal with those appeals. We are attempting to introduce a streamlined extradition system—particularly streamlined in relation to our EU partners—and to prevent to the maximum possible degree the lengthy proceedings that take place under our current, totally unacceptable extradition arrangements. That is the purpose of new clauses 14 and 15: to bring part 2 into line with part 1, so that the cases can be adjourned, and so that there is not the unnecessary requirement to continue to the end knowing that the proceedings will have to be stopped in the final analysis.
Having looked at the new clauses and some of the associated amendments in this group, I shall now deal with amendments Nos. 20 and 18, tabled by Conservative Members, which refer to clause 2. I do not believe that there is much difference between the Government's position and that of the Opposition. That was reflected in the constructive discussion that we had on these issues in Committee. I said that I would go away and consider some of the points raised in Committee, and having done so, I am pleased to have the opportunity to set out the conclusions that we have reached.
With regard to accusation cases, both sides of the House are agreed that extradition should only be possible for the purpose of putting a person on trial. It should not be possible for the purpose of interrogation or for the purposes of evidence gathering. Similarly, in conviction cases, the purpose of extradition should be that a person serves the sentence that has been imposed, or, if he has escaped before the sentencing process, that he can be sentenced. If Opposition Members examine the Bill, they will see that it already achieves that. A part 1 warrant is an arrest warrant that contains two key elements: the statement and the information. The contents of the statement and the information vary slightly depending on whether it is an accusation or conviction case. The information includes such details as the particulars of the person's identity or any other warrant, the circumstances of the offence, the particulars of the sentence that would be available to the court, or, in a conviction case, the sentence that has already been imposed.
Of more importance for present purposes, however, is what is contained in the statement. If hon. Members look at clause 2(3), they will see that what is required, first, with conviction cases, is that not only must a person be accused of an offence in a requesting state, but the warrant must have been issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence. That is unambiguous language: it is not about interrogation, and it does not allow extradition for the purpose of evidence gathering or fishing expeditions; it is about putting a person on trial. No other meaning can be attached to those words.
I know that that position is supported by the hon. Member for Stratford-on-Avon (Mr. Maples), who said in Committee:
- "I would be happy to use the words in the framework document, which are 'for the purpose of conducting a criminal prosecution'."—[Official Report, Standing Committee D, 9 January 2003; c. 53.]
- "for the purpose of being prosecuted for the offence"
- "for the purpose of conducting a criminal prosecution".
Similarly, in conviction cases, the Bill provides that the statement must say that the
- "warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
Having set out why I believe that the Bill in its present form achieves what we want, I shall say a few words about the Opposition amendments.
Mr. George Howarth (Knowsley, North and Sefton, East): Having checked clause 2(3), I can see that it is in fairly unambiguous language. I wonder whether my hon. Friend could clarify one matter. In some systems, for example in Spain and Italy, where there are investigating magistrates, the process between arrest, investigation and standing trial is not as clear as in our system. How would the provision apply in those circumstances?
Mr. Ainsworth: We already extradite people, and have done so for a long time, to those jurisdictions. We do so for the purposes of their being put on trial, and not for the purposes of investigation taking place. A clear statement will be required in the warrant, the exact wording of which I have just read out, and the judicial authority that makes that request will have had to sign up to that statement. The National Criminal Intelligence Service, which will be the designated authority that will look at those incoming requests, will examine that statement, and if it is not in compliance with that requirement, it will say so, and will effectively stop the extradition proceedings before they even commence. We have a record in this area: although there are many other problems in relation to extradition, I have yet to hear of a situation in which the arrangements for requests from states that are our regular extradition partners have caused problems in the past, and I do not expect the system to change or problems to be caused in the future.
Having said what the Bill clearly requires and prevents, let me turn to amendment No. 20, which requires that any warrant should conform to the model warrant attached to the framework decision. The simple point to make is that that will happen already. The requirements of the Bill mean that all the information included in the model warrant has to be supplied if extradition is to take place.
I consider amendment No. 18 unnecessary, but we should not let it pass without comment. It states that if a court abroad has not acted in accordance with the wishes of a British judge, a fugitive held abroad shall be released and returned to Britain on the order of a British judge. I do not know whether Conservative Members can imagine that operating in reverse, and how we would we feel about a German or French judge being able to order the release of somebody who was in front of a court in the UK. I find it astonishing: it harks back to empire days when we sent a gunboat round to ensure that people did things in the British way. I am not sure that it is in any way workable, and it is certainly not needed. In the light of that explanation of how the Bill will work with its current wording, I ask Conservative Members not to press the amendments to a Division.
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I trust that all hon. Members will welcome Government amendments Nos. 35 to 37. They should be appreciated by Conservative and Liberal Democrat Members because they respond to a point raised by representatives of both parties in Committee. My hon.
Friend the Member for Sunderland, South (Mr. Mullin) and other members of the Select Committee on Home Affairs should also welcome them because they raised the same concern. The amendments will make a European arrest warrant acceptable only if it is issued by a judicial authority in a requesting state. If the warrant came from any other source, the UK designated authority would be unable to certify it and no further action could be taken on it. The stipulation that the warrant must be issued by a judicial authority is already in the framework document, so the amendments will make little difference in practice. Nevertheless, we thought it right to respond to the wishes of those who raised the issue and to make the guarantee explicit in the Bill.Government amendment No. 37 will create a power to disapply the judicial requirement in respect of requests from certain countries that were issued before January 2004, which is when the European arrest warrant regime is due to come into effect. It is a transitional measure to enable the UK to deal with requests that are already on the Schengen information system when the UK becomes a party to the system in 2004. Pre-existing requests require a judicial authority to issue a domestic arrest warrant and a judge's permission would normally be required before requests were placed on the Schengen information system. However, some countries might put information on the system at the instigation of a police officer. In such circumstances, a person for whom extradition is sought may try to delay proceedings by claiming that the request did not come from a judicial authority. Given that a judicial authority must have backed the warrant in the first place, such arguments may well not succeed but we want to pre-empt attempts to delay and frustrate the extradition process. The problem will not arise after countries begin to operate a system of European arrest warrants, so we require only a limited short-term measure.
Government amendments Nos. 43 and 63 respond to a concern raised in Committee. A person's identity is an important aspect of the extradition process and no hon. Member would want the Bill to allow the extradition of a person other than a person for whom extradition was sought. The Bill provides that, at the initial hearing that is held almost immediately after a person is arrested, the judge must decide whether the person before him is the person for whom the extradition request has been made. That process is not to determine whether extradition should occur and still less about determining whether a person is guilty of the crime for which his extradition is sought, but to ensure that the right person has been caught.
The question of identity might be disputed in several cases. The Bill's current drafting requires the judge at the initial hearing to be satisfied that the person in court is the person for whom the warrant was issued. If the judge is not satisfied of that, the person must be discharged. It was suggested in Committee that the Bill should specify the standard of proof that would be required to determine that. That is a sensible suggestion and the amendments introduce the civil test of the balance of probabilities.
There are several reasons why we opted for the civil test rather than the criminal test. Extradition is not a prosecution and thus there is no need to apply the criminal test slavishly. However, it is an important fact that people who are subject to extradition requests are usually serious criminals, including terrorists, and such people are often adept at making their identity ambiguous or having multiple identities. If we had decided to use the criminal standard of proof beyond all reasonable doubt, we might be unable to be certain of people's identity, which would allow them to walk free irrespective of the seriousness of the crime of which they were accused. The civil test, which is regularly used in, and understood by, British courts, is an appropriate way to ensure that a judge may reach a reasonable decision about a person's identity.
Government amendments Nos. 44, 59 and 62 relate to an issue that was discussed at length in Committee. They will require the judge at the initial hearing to make the requested person aware of the contents of the warrant for arrest and extradition. The fugitive will already be aware of the contents of the warrant in the vast majority of cases because the police will generally show such people the contents of the warrant at the time of arrest or shortly after. In addition, the amendments will allow a fugitive or his legal representative to demand to see the warrant at any time. The new provisions make little difference in practice, but we hope that they represent a useful additional safeguard and that Opposition Members will welcome them.
Amendment No. 4 has been tabled by the Conservative party, and we have tried long and hard to work out its rationale. Clause 39 provides that no person who has claimed asylum shall be extradited until a decision has been reached on that claim. The Government are all too aware that the asylum system has been subject to abuse and has been used to delay and frustrate the extradition process. That is why we included provisions to address that difficult situation and spurious asylum claims and appeals. If it is considered that an asylum claim is clearly unfounded, it can be certified as such by the Secretary of State when he refuses the claim. That certificate will mean that a person will be able to appeal against the asylum refusal only after extradition. The amendment would delete the entire clause and undo our attempt to provide a solution to such potential abuse.
I hope that the Opposition will welcome Government amendments Nos. 50 and 67 to 69. The right to representation at a trial and the right to legal aid remain the cornerstones of our judicial system. We tabled the amendments to ensure that the right to legal aid that is enshrined in the Access to Justice Act 1999 applies to the issue of consenting to extradition. They provide that, before a judge accepts a fugitive's consent to extradition, he must check that that person had the opportunity to receive independent legal advice. In some cases, the fugitive would have declined to apply for legal aid after he had been advised that he was entitled to it. The underlying principle is that nobody should consent to extradition unless the opportunity for legal advice has been made available to them.
Although amendment No. 92 is well intentioned, it is not needed and does not add anything to the safeguards in the Bill. Under clause 2, the UK's designated authority—which will be the National Criminal
Intelligence Service or the Crown Office in Scotland—can certify an incoming European arrest warrant only if it believes that the request has come from an appropriate judicial authority. Clauses 63 to 65 deal with what constitutes an extradition offence in order for the dual criminality requirement not to apply. I cannot therefore see what purpose would be served by trying to link clauses 2 and 65, as the amendment would. The definition is already identical, so the point is fully covered.Government amendments Nos. 53 to 56 and 70 to 73 are purely drafting amendments. Unless somebody insists that I go into them, I shall not detain the House.
I turn to amendments Nos. 93 and 94 and Government amendments Nos. 65 and 66, which were tabled in response to concerns that have been raised. I hope that the House agrees that the Government amendments are a constructive answer. Requests from part 2 countries will often need to be accompanied by prima facie evidence. The amendments are concerned with the provisions that allow for documentary or summary evidence to be admitted in court. At present, evidence in those forms is not generally admissible. That might mean that we have to require, for example, a foreign witness to give evidence in person rather than accepting a police officer's account of what the witness had told him. That is particularly wasteful and cumbersome in cases where evidence is uncontested. Accordingly, the Bill provides for hearsay evidence to be admitted.
There were concerns raised in Committee surrounding a case where the judge did not have the discretion to refuse to accept documentary or summary evidence if he had reason to believe that the evidence was faulty or flawed. We have listened to those arguments and given the district judge much greater discretion not to accept such evidence if he so chooses. I should add the reassurance that the Bill does not oblige the person whose extradition is sought to give evidence in summary; nor will it prevent the person from challenging any evidence that is given in summary or on behalf of the requesting state. I know that that was a particular concern of my hon. Friend the Member for Doncaster, North (Mr. Hughes). I hope that it is clear that those circumstances do not apply. There is no way that the defendant in such cases will be prevented from giving evidence in person.
Government amendments Nos. 14 and 6 clarify the role of Scottish Ministers to order the extradition or discharge of a person arrested under part 2. Amendment No. 6 makes it clear that Scottish Ministers will be able to make a deferral order only when they are considering competing requests.
The House may know that the Bill deals with a situation where two or more competing requests are received in respect of the same person. It provides that proceedings are deferred until a decision is taken on which should be given priority. It also provides for matters to be picked up again once that decision has been taken. Government amendments Nos. 76, 77 and 11 rectify an omission by specifying the appropriate judge in the deferred case.
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