Previous SectionIndexHome Page

Mr. Carmichael: Would it be competent to raise a bill of suspension in respect of a warrant issued under clause 47?

Caroline Flint: I shall refer to that point shortly.

Let me consider the amendment, which deals with the warrant and whether, once a warrant has been authorised, someone can go back on an agreement to be transferred. I stress that the warrant authorises but does not require the prisoner's transfer. It enables the transfer to happen, making it legal. It also enables the prisoner to be held in legal custody for the duration of the transfer.

There is a process whereby the authorities engage a prisoner in the whys and wherefores of seeking that person's co-operation. It can take several months for the warrant to be authorised. At any point until the warrant is authorised, the relevant individual can refuse to take part. Police officers in such cases deal with prisoners in the same way as they deal with witnesses or suspects in a purely domestic investigation. They would interview a prisoner whose transfer was desirable in the same way as they would interview members of the public with a view to their providing evidence in a UK proceeding. Prisoners who are purely witnesses would be treated like any other witness; they would be interviewed by an officer and asked to sign a written statement. Suspects would be cautioned like any other suspect. The fact that they are prisoners does not result in different treatment.

The clause requires prisoners, or someone acting on their behalf, to provide written consent to any transfer before it takes place. They will sign a consent form, witnessed by a prison official. Although they are not automatically entitled to legal advice—we discussed that in Committee—prisoners are entitled to seek it before agreeing to a transfer. Indeed, the standard consent form contains a statement which confirms that prisoners have been given the opportunity to seek legal advice. I can provide hon. Members with a copy of the form if that is helpful.

Once consent has been granted, the practical arrangements for the transfer will be put in place by the authorities concerned. When these arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer of the prisoner a few days before the transfer is scheduled to happen. Once that warrant has been issued, the prisoner will be unable to withdraw his consent. There is a process to be gone through in which a person is entitled to change their mind, but the warrant authorises the activity. It provides the

14 Oct 2003 : Column 63

framework in writing for proceeding with the transfer. As I have said, the prisoner may change his mind before the warrant is issued.

Mr. Paice: I appreciate that the process will take only a few days, as the Minister has reminded us. Will she not accept, however, that a prisoner's health could change dramatically, even in a few days? They could have a mental breakdown, or suffer a serious stroke or heart attack. Something could happen quite suddenly that would dramatically change their circumstances, which could jeopardise their ability to make decisions for themselves. Their conditions would therefore not be the same when the warrant was executed as when they gave their consent.

Caroline Flint: We discussed this matter in Committee. If someone has had a heart attack, broken a leg or had a mental breakdown, the people facilitating the transfer would hardly be in a position to take that person in those circumstances. I mentioned the example of a national emergency in the country of destination. We would not necessarily want to transfer a prisoner into such a situation; indeed, we might not want to send the people taking the prisoner into such a situation either. In Committee, I said that in the event of

There is nothing to be gained by the people investigating a UK offence if the person in question is unable to take part because of ill health or for other reasons. There would be no point in the investigating officers pursuing a case to that end. In refusing to accept the amendment, we are trying to safeguard against a cat-and-mouse game ensuing, at the end of a process which contains built-in safeguards, and work that has been legitimately pursued—including the signing of a form—not being adhered to.

Mr. Paice: I would like to pursue this matter a little further. I understand the Minister's point that it would not be in the interest of the investigating authority to take someone who would be unable to participate in their investigation. I would point out, however, that clause 47(5) defines the circumstances in which

The fact that the Government have put this in the Bill, and that under clause 47(4)(b), someone else could give consent on behalf of the person in question, implies that the Government are envisaging situations in which a prisoner could be transferred abroad despite a physical or mental condition that might reduce his ability to participate in the investigation. We seem to have that eventuality covered if it arises before consent is given, but if the prisoner's condition should change after

14 Oct 2003 : Column 64

consent was given, the situation could not be re-addressed. A change to that provision is all the hon. Member for Orkney and Shetland and I are asking for.

Caroline Flint: My understanding of clause 47(5) is that it acknowledges that the Secretary of State may find it inappropriate that a person should be transferred, by reason of his physical or mental condition or his youth. That provision is in the Bill as a safeguard in terms of the proceedings.

6.15 pm

Mr. Paice: I am sorry to have to say this to the Minister, but that is not what subsection 5 says. It defines the circumstances in which the Secretary of State believes that, if the individual cannot make the decision for himself, he can allow another person to give consent on his behalf. It is not to do with a decision that the person would be no use to the investigation, as the Minister suggests.

Caroline Flint: I think that the provision states that a prisoner may ask someone to act on their behalf in such circumstances. The clause as drafted requires the prisoner—or, as the hon. Gentleman says, someone acting on his behalf—to provide written consent to any transfer before it takes place. I can provide copies of the forms that are currently available for this purpose, which should allay some of the fears that hon. Members raised in Committee about whether people would be informed about what was happening, and whether they would have the opportunity to resist certain procedures if they did not want to take part. They have that right, up to the point at which the warrant is authorised. There are enough safeguards to ensure that the system operates in a full manner which will give the individual rights and which recognises that there might be circumstances such as ill health or events in the country of destination that would make the transfer inappropriate.

As I have said, when the arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer, a few days before it is scheduled to happen. Once the warrant has been issued, the prisoner will be unable to withdraw his consent, but he may change his mind before the warrant is issued.

Prisoners in these circumstances are being transferred in order to be of assistance to a domestic investigation, so there would be no merit in transferring a prisoner who was unwilling to co-operate, for whatever reason. It would cost the investigating force a large amount of money, with no benefit to the investigation. Prisoners would not be transferred if ill or otherwise unfit to travel.

Sir Robert Smith: The implication of what the Minister has just said is that, although she does not want to place in the Bill any process by which the prisoner could change their mind, even after this stage had been reached the authorities could decide that the prisoner was not going to co-operate and that it would not be worth the effort of transferring them.

Caroline Flint: The suggestion would be that, in order to transfer a prisoner, there would have to be a voluntary agreement to do so. There would be no merit in the investigating officers pursuing such an action if the

14 Oct 2003 : Column 65

person were unwilling to take part. We want to avoid a situation in which, after months of work, someone decides at the last minute and for no good reason that they do not want a transfer.

Sir Robert Smith rose—

Mr. Paice rose—

Caroline Flint: I shall not give way, because I have answered the question on this matter.

We want a process that is understood by the investigating officers and the prisoners concerned. These provisions are used in other parts of UK law relating to the transfer of prisoners. Under sections 5 and 6 of the Criminal Justice (International Co-operation) Act 1990, the UK can request that a prisoner held overseas be transferred to the UK, and it can transfer prisoners out of the UK when other countries make requests for prisoners here to be transferred to that country. Clauses 47 and 48 of the Bill implement different arrangements, enabling a country to make a request to transfer a prisoner from its own territory when its own investigations require the presence of the prisoner in another country. These clauses reflect the terms used not only in the 1990 Act, but in the Repatriation of Prisoners Act 1984, section 1(6) of that which prohibits a prisoner from withdrawing consent once granted. That provision is therefore contained in another piece of UK legislation.

Repatriation—permanently transferring a prisoner from one country to another to serve the remainder of their sentence—is a much more definite and final act than the one that we are talking about in this Bill, which simply deals with the temporary transfer of a prisoner to assist with a specific aspect of an investigation. Having different arrangements in this Bill would call into question the basis of existing related legislation. Finally, the warrant in this section is issued by the Secretary of State, not by a court, so the amendment is incorrect in referring to a power of the court that does not exist. For these reasons, we cannot accept the amendments, and I urge the House to resist them.

Next Section

IndexHome Page