Examination of Witnesses(Questions 1-19)
MS SUSIE
ALEGRE, MR
GARETH CROSSMAN
AND MR
CLIVE NICHOLLS,
QC
TUESDAY 29 OCTOBER 2002
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 Cameron
1. Good morning. I would like to start, if I
may, with the list of the 32 offences in the European Arrest Warrant
that are also in the Bill and ask you—because from your
evidence it looks as though you think these are too broadly drawn—why
you think that is the case, and then we will go on to what possible
remedies there are.
(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.
2. The Minister said, in the European Affairs
Scrutiny Committee, that the warrant will have to be framed in
terms of a specific offence that falls under one of those general
categories. Would that make you feel more easy about it?
(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 designated 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—
3. I am sorry. Let us take examples, as this
is all so complicated. Let us assume Mr Bloggs goes to France,
commits a crime that comes under one of these categories, and
comes back to England. The issuing magistrate is in France? Is
that it? They then issue a warrant with the category written on
the bit of paper. That is then served in England on the individual
and they then go in front of a district judge. That is the process?
(Ms Alegre) Yes.
4. So your suggestion for making that better
is what exactly?
(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.
5. So your remedy is to put on the face of the
Bill that the UK justice can say "We would like more detail
on that specific offence", and that specific offence should
be on the warrant?
(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.
6. Is this not the whole problem? In a way,
is not the problem not the list of 32 offences and trying to make
that more specific but that when Mr Bloggs goes in front of the
district judge the district judge, as the European Arrest Warrant
and the Extradition Act is written, is not allowed to look at
the evidence? Is that not the real problem? In terms of protecting
his rights, is that not really what we should be concerned about
here?
(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.
7. In the past?
(Ms Alegre) In the past, on which maybe Mr Nicholls
will be able to help you further.
8. I am trying to get at the root of what the
real change is here, for the offence committed by Mr Bloggs in
France, coming back to England. What is actually going to change
in terms of the rights that he has in front of the extraditing
authority in the UK?
(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.
9. Dual criminality. We will be coming on to
that, and I do not want to go into that.
(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—
10. Your answer is not to reduce the number
of categories it is to try to make them more specific. Is that
right?
(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—
11. You are saying "We cannot change the
categories because they have been agreed in the Council of Ministers".
Putting that aside, are there some of the 32 you think should
not be there?
(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.
12. One of my questions was amending those parts
of the Bill that relate to the European Arrest Warrant. You cannot
take out a category, really. Is that what you are saying?
(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.
13. Mr Crossman, is there anything you are burning
to mention?
(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 come 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.
14. I have one last point. I do not want to
get into dual criminality because that is coming in a minute but
I want to ask: would it be helpful if for each category 1 territory
they were actually required to maintain a list of which laws fell
into the 32 offences? There is a danger, is there not, that you
have got something like racism, xenophobia, where we all sign
up to it, we pass the law and then four or five years down the
line Lithuania (which is just about to join the EU) writes a slightly
batty law. Is that the concern?
(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.
15. Would it be a good idea if each territory
1 country was required to have a list that it published of which
offences fell into which category?
(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.
16. It is a bit unsatisfactory, really, is it
not, that here we are discussing these quite fundamental rights
and a lot of your answers to questions are to the effect that
the dog has barked and the caravan has moved on? It is all a bit
late.
(Ms Alegre) Yes, it is unsatisfactory.
Chairman
17. In practice, however, no judge is going
to authorise an extradition unless he has got some details of
what the offence is so he can see whether it is an offence in
this country, whatever is on the face of the Bill. Is that not
right?
(Ms Alegre) Well, no, he does not need to see whether
it is an offence in this country, according to this.
18. I am talking about in practice, not whether
he needs to or not.
(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
lack of 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.
19. So the solution, we agree then, is to write
on the face of the Bill "more details required", rather
than just hope for it?
(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.
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