APPENDIX
GOVERNMENT RESPONSE TO THE FIRST REPORT
FROM THE HOME
AFFAIRS SELECT COMMITTEE, SESSION 2002-03:
EXTRADITION BILL
Introduction
The Government welcomes the Home Affairs Committee's
report on the Extradition Bill.
The need for reform of the extradition process is
widely accepted. The current system allows those facing extradition
to delay their return way beyond what is necessary to ensure they
are not being unfairly treated. In extreme cases it can take more
than five years to send someone to another EU country. That is
not in the interests of justice or the victims of crime.
The Extradition Bill therefore aims to remove the
possibilities for delay by removing the many, overlapping opportunities
for appeal. In relation to our EU partners the Bill introduces
the European arrest warrant, which will greatly simplify the extradition
process. For other countries the most significant change is to
the appeal process.
However, the Government is aware of the need to balance
reform with the protection of those facing extradition. We have
been open about the changes we intend to make and published the
draft Bill for consultation in June 2002. We are particularly
grateful to the Home Affairs Committee for its response and suggested
improvements, a number of which we have accepted.
A detailed response to each of the Committee's recommendations
follows.
Response to recommendations
1. We recommend that, in order to provide some
safeguard against clear abuses of the new procedure introduced
under the framework decision, the Home Secretary give consideration
to the following proposal: that in each case the district judge
should look at the terms of the offence specified in the EAW and
make a statement as to whether dual criminality applies. In cases
where the alleged offence is not a crime in the UK a separate
decision about whether to extradite should then be made by the
Home Secretary, who is responsible to Parliament (paragraph 31).
The Government believes that where a person goes
abroad and breaks the law of another EU country he should expect
to face justice, irrespective of whether the conduct would constitute
a crime in his home country. The fact that the person has managed
to cross a border before being apprehended should not allow him
to escape justice.
The Government therefore has no objection of principle
to the removal of the dual criminality requirement in the circumstances
envisaged by the framework decision nor do we believe that the
new procedure will lead to "clear abuses".
The Government does not see what useful role the
Secretary of State could play in these cases nor on what basis
he would be expected to take a decision. However, involving the
Secretary of State would complicate the procedure and would create
additional opportunities for delay—any decision taken by
the Secretary of State would be subject to separate challenge
and appeal.
2. We recommend that Clause 1(1) be amended to
specify that only countries that are signatories to the framework
decision may be designated territories for the purposes of Part
1 of the Bill, and that Clause 68(1) be amended to specify that
only those countries with which the UK has general extradition
arrangements may be designated territories for the purposes of
Part 2 of the Bill (paragraph 41).
It is the Government's intention to designate all
existing and future EU Member States as Part 1 countries. In common
with other EU Member States we also intend to designate Norway
and Iceland as category 1 countries operating the EAW. Beyond
that there are no plans to add any other country to Part 1.
However, it is possible that at some point in the
future it would be desirable to add another country—perhaps
a trusted Commonwealth or bilateral treaty partner—to Part
1 and the Government does not believe that we should remove the
flexibility to allow for this. Any such decision would, of course,
be subject to Parliamentary approval.
Similarly, in relation to what will become Part 2,
it is currently possible for any country with which we do not
have standing extradition relations to make an ad hoc extradition
request to the UK. We would not want to lose that facility, not
least because the reciprocal nature of extradition means that
to do so would put in doubt the UK's ability to make ad hoc outgoing
requests.
3. If the previous recommendation is not accepted,
then Clause 205 should be amended to provide that Orders in Council
made under clauses 1(1) and 68(1) may not be made unless a draft
of the order has been laid before Parliament and approved by a
resolution of each House (Paragraph 43).
4. We do not accept that Parliament should be
constrained by the precedent of the Extradition Act 1989 from
requiring an appropriate degree of parliamentary scrutiny for
delegated legislation that may have the effect of removing the
significant safeguards for individuals subject to extradition
requests (paragraph 43).
This matter was discussed extensively during Committee
Stage of the Extradition Bill. During those debates the Government
indicated that it was prepared to consider making this change
if a very strong case could be made for doing so. The Government
has yet to be persuaded of the merits of this change.
The UK currently designates our extradition partners
by the negative resolution procedure and while the Government
accepts the Committee's assertion that we should not always be
bound by precedent we think we should only depart from it where
good reason is shown. The present designation procedure has existed
for many years and has not given rise to any problems. Given that
Parliamentary time is inevitably limited we see no reason to depart
from the present arrangements. The Government does not accept
that in designating countries under clauses 1 and 68 we will be
"removing the significant safeguards for individuals subject
to extradition requests".
5. In relation to the dual criminality requirement,
we can see no justification for eroding the basic level of protection
provided by the framework decision, by removing the protection
in relation to offences carrying a maximum penalty of 12 months
or more where the framework decision requires the UK to do so
only in relation to offences with a maximum penalty of at least
three years, and we are dismayed that the Home Office is seeking
to do so (paragraph 51).
6. We recommend that the threeyear limit
specified in the framework decision should be retained in UK domestic
law (paragraph 51).
The framework decision requires us to remove the
dual criminality requirement for all list offences which attract
a maximum penalty of at least three years in the requesting state.
However, thresholds in extradition have always been
based on 12 months and we believe introducing a threeyear
threshold would be a novel departure and could lead to confusion.
The Extradition Bill therefore seeks to remove the dual criminality
requirement for all list offences which attract a 12month
penalty or more in the requesting state.
The 'list' is a list of serious types of crime. Within
those headings there are a large number of serious crimes that
have a minimum threshold somewhere between one and three years.
The Government does not see why they should be excluded from the
simplified procedure applying to list offences.
During Committee Stage the Government sent Members
of the Committee a list (attached at annex A) of some of the UK
offences which attract a maximum penalty of 1-3 years. This includes
some serious crimes. It is also worth noting that UK sentence
thresholds tend to be higher than those of our EU partners so
an offence attracting a maximum penalty of 1-3 years in another
EU Member State might well attract a maximum penalty of over three
years in the UK.
As important as the practical arguments, however,
is the Government's commitment to the principle of mutual recognition
and our determination to play a leading role in the development
of that principle in preference to fullblown harmonisation.
We do not believe that our approach should be characterised by
doing the bare minimum necessary to comply with our obligations
under the framework decision. Rather, where it is in the UK's
interests and in the interests of justice, we should be prepared
to go further and set an example to our EU partners.
7. We consider it highly undesirable that Parliament
should have no say in regard to future changes to the 32 categories
of offence listed in the framework decision. We therefore recommend
that the list of offences be imported directly into the Bill.
Clause 65(3) should be amended to refer, not as at present to
the list of conduct set out in article 2.2 of the European framework
decision but rather to the list of conduct set out in a specified
schedule to the Bill (paragraph 55).
8. We further recommend that the Bill should delegate
a power to amend this list only in so far as is necessary to reflect
any extensions or amendments made to Article 2.2 of the framework
decision by the EU Justice and Home Affairs Council (paragraph
56).
9. The Bill should also provide that any statutory
instrument made under this delegated power should be subject to
the affirmative resolution procedure (paragraph 56).
The 32 generic offence categories are set out in
Article 2.2 of the framework decision on the European arrest warrant.
Clause 63 of the Bill, which defines an "extradition offence",
refers specifically to the list in Article 2.2 of the framework
decision.
Article 2.3 of the framework decision allows for
the list to be amended. This can only happen with the unanimous
agreement of all Member States.
The Government does not know of any plans to amend
the list but we believe that we must retain the flexibility to
deal with any such changes.
10. We agree with the European Scrutiny Committee
that the European arrest warrant should be able to be issued only
by a judicial authority exercising recognisably judicial functions
in an independent manner. We consider that this requirement should
apply to all Part 1 warrants. We therefore recommend that Clause
2(5) be amended to provide that the UK judicial authority may
not issue a Clause 2 certificate unless it believes that the Part
1 warrant was issued by such a judicial authority (paragraph 63).
As was explained in Committee, the Government believes
that the fears which have been expressed are misplaced. The framework
decision makes it quite clear that an EAW can only be issued by
a judicial authority and we expect the same people who currently
make extradition requests to us to do so in future.
Nevertheless, we recognise that there is very real
concern about this point and we therefore intend to bring forward
amendments to make it clear that requests can only be issued by
a judicial authority.
However, we will also create a power to disapply
the requirement in respect of requests from certain countries
which have been issued before 1 January 2004 (when the EAW regime
comes into effect). This is a transitional measure to enable the
UK to deal with requests already on the Schengen Information System
(SIS) at the point in 2004 when the UK becomes a party to that
system.
Requests on the SIS require there to be a preexisting
judicially issued domestic arrest warrant and normally require
the judge's permission to be placed on the SIS. However, there
may be occasions in some countries when the information is put
on the SIS at the instigation of police officers. In such circumstances
the person whose extradition is sought may seek to delay proceedings
by claiming that such requests have not come from a judicial authority
and we want to be able to preempt such arguments. This problem
will not arise once countries begin operating the EAW so this
will be a limited shortterm measure.
11. We recommend that Part 1 of the Bill be amended
to specify that information that must be provided on the face
of a Part 1 warrant, including a European arrest warrant (paragraph
68).
During Committee Stage the Government brought forward
amendments to clause 2 of the Bill which have given effect to
this recommendation.
12. We strongly urge the Government to reconsider
its intention to give notification, under Article 27.1 of the
framework decision, that it may be presumed to have consented
to another EU member state taking proceedings against a suspect,
where the other member state has also given such a notification
under article 27.1. We recommend that Clause 53 be deleted from
the Bill (paragraph 75).
The Government accepts that there is legitimate concern
about the UK taking the higher position as regards specialty protection.
While the Government continues to think that our EU partners are
to be trusted in this regard, we accept the Committee's recommendation
and will bring forward appropriate amendments to the Bill.
13. We consider that the power delegated by Clause
83(6) is too broadly defined. As currently drafted, Clause 83(6)
would allow any territory whatsoever to be designated as exempt
from the prima facie case requirement (paragraph 82).
14. We recommend that the power delegated by Clause
83(6) should be specifically limited to a power to make Orders
in Council to exempt from the prima facie case requirement only:
- those European states that are signatories
to the European Convention on Extradition but that are not EU
members
- any other state with which the UK has a bilateral
agreement which requires that state, in making an extradition
request, to meet evidential requirements equivalent to those set
out in the Convention (paragraph 82).
The Government first consulted on proposals to reform
our extradition system in March 2001 following a Home Office review.
We suggested that it should be possible to bring some of our key
partners into line with the evidential requirements placed on
members of the European Convention on Extradition (ECE). ECE countries
do not need to provide prima facie evidence when they seek a person's
extradition. The proposal was supported by threequarters
of respondents.
It cannot be right to ask our closest and most trusted
international partners-countries such as Australia and Canada-to
meet a higher evidential standard than we require from nonEU
signatories to the ECE.
The Bill therefore allows for the prima facie evidential
requirement to be removed, by Order, from Category 2 countries.
We intend that, as now nonEU signatories to the ECE should
not be required to provide prima facie evidence. In addition we
intend to remove that requirement for a small number of Commonwealth
and bilateral treaty partners.
However, the Government is keen to reassure the Committee
that we do not intend to use this power widely. It will be reserved
for our closest partners: countries with wellestablished
democracies and robust and respected criminal judicial systems.
The Government understands the motives behind the
Committee's recommendation 14 but cannot accept it. This is because
it would prevent us removing the prima facie requirement from
countries like Australia and Canada because our extradition relations
with them are governed by the multilateral Commonwealth
Scheme, rather than a bilateral treaty.
- We recommend that Clause 83(3) be deleted
from the Bill, so that a summary of a statement will not be admissible
evidence for the purposes of Clause 83(2) (paragraph 86).
Clause 83 deals with the evidence that is admissible
in Part 2 cases. Subsection (3) allows statements, and summaries
of such statements, made to investigating officers to be treated
as evidence of fact. This has been included so, for example, a
foreign police officer's account of what a witness told him would
be admissible rather than requiring the witness to come to the
UK to give evidence in person.
The Government believes that this is a sensible step,
not least because such evidence will often be uncontested. The
bill will not oblige the person whose extradition is sought to
give evidence in summary nor will it prevent the person from challenging
evidence given in summary form on behalf of the requesting state.
Nevertheless we appreciate the concerns of the Committee.
We therefore intend to bring forward amendments to the Bill to
give the judge greater discretion not to accept such evidence.
This will allow the judge to accept such evidence when its provenance
or credibility is not in doubt but will allow him the freedom
to require evidence be given in person in other scenarios.
- We are concerned that Clause 134(3) appears
to undermine the rigorous evidential standards that we consider
should be required to establish the existence of a prima facie
case. We draw Clause 134 to the attention of the House (paragraph
87).
Clause 134 is a technical clause which largely replicates
section 26 of the Extradition Act 1989. It provides that duly
authenticated documents issued in Part 2 countries can be received
in evidence in UK extradition proceedings. It also sets out how
a document may achieve the status of being duly authenticated.
The purpose of Subsection (3) is to allow the judge
to admit material that has not been duly authenticated. He will
not be compelled to accept this material but we believe that it
should be possible for him to exercise discretion and decide whether
to accept or give weight to such documents.
*(There are no recommendations numbered 15-18
in the Committee's report)*
19. We consider that there is no justification
for extending Part 1 of the Bill to include countries that maintain
the death penalty (paragraph 92).
20. We recommend that clause 1(1) be amended to
specify that any country which provides for the death penalty
as a form of punishment is prohibited from being designated a
territory for the purposes of Part 1 of the Bill. If this is done,
then Clause 15 [death penalty as a bar to extradition] can be
deleted from the Bill as otiose (paragraph 92).
The Committee raises an important point of principle.
While the Government has made it clear that it is highly unlikely
that a country that maintained the death penalty would ever be
allowed to join Part 1 we accept that the existence of this provision
leaves sufficient room for legitimate concerns to be raised. Nor
does the Government want to do anything that could be construed
as a retreat from its opposition to the death penalty. We therefore
accept the Committee's recommendation and will be bringing forward
appropriate amendments to the Bill.
21. We recommend that Clause 15 be amended to
require that, if the judge receives a written assurance that a
death sentence will not be imposed or carried out, then the judge
must send the assurance to the Secretary of State for him to determine
whether the assurance can be considered adequate (paragraph 96).
22. We endorse the comments of the Joint Committee
on Human Rights on the adequacy of written assurances that the
death sentence will either not be imposed or, if imposed, will
not be carried out. We urge the Government to give an indication
of how it proposes that the adequacy of a written assurance that
a death sentence will not be imposed or carried out should be
assessed (paragraph 99).
Since the Government plans to remove the possibility
of a country that retains the death penalty joining Category 1
the Extradition Bill makes no change to existing practice regarding
cases where the death penalty may be an issue. This has served
us well and has not caused any problems.
Any assurances received on the death penalty have
to come from someone who has the power to ensure that the assurances
are upheld. The Secretary of State has judged the adequacy of
these in the past and will continue to do so under the Bill.
23. We consider that Clauses 3(3) and 5(2) should
explicitly limit the scope of the Secretary of State's delegated
power by defining who may constitute an "appropriate person".
Clearly, officers of HM Customs and Excise could be so specified;
the House should consider whether there are any other categories
of officer whom it may be appropriate to specify (paragraph 104).
This is an area where the Government's intentions
appear to have been misunderstood. It has never been the Government's
intention to allow foreign police officers the power of arrest
in the UK under the EAW. However, we accept that there is a desire
to put this matter beyond all doubt. The Government is therefore
going to amend the Bill to specify who constitutes an appropriate
person.
24. We recommend that Clauses 4(2) and 71(2) be
amended. We consider that, if it is not possible for the arresting
officer to be in possession of the warrant at the time of the
arrest, then the officer (or some other appropriate officer) should
be required to show the warrant to the arrested
person as soon as practicable after the arrest. We can see no
justification for placing the onus on the arrested person to ask
to see the warrant, rather than on the appropriate law enforcement
officials (paragraph 106).
25. We recommend that the Bill be amended to require
the judge before whom the arrested person is initially brought
to inform the person of the European arrest warrant and of its
contents (paragraph 109).
In the vast majority of cases the Government would
expect the warrant to be shown to the person at the time of his
arrest or shortly thereafter. However, when this does not happen
the Government does not believe that there should be a requirement
for the police to show the person the warrant in the absence of
a request from the person or his legal adviser.
There is no corresponding requirement in domestic
law for the arrested person to be shown the warrant if he has
not been shown it at the time of his arrest, unless he requests
to see it, and this has not caused difficulties. So far as is
possible procedure in extradition cases should be kept in line
with that for domestic cases.
Anyone who is arrested in an extradition case is
entitled to legal aid and it is likely that one of the first things
that the person's legal adviser will do is to ask to see the arrest
warrant if it has not already been produced to the person.
A proportion of those arrested in extradition cases
may not speak English or be familiar with the UK's legal and judicial
processes. It therefore seems much more sensible for the warrant
to be made available at a time of the person's legal adviser's
choosing rather than at a time of the police's choosing.
It is clear from the Bill that the extradition hearing
could not take place without the relevant judge having seen the
contents of the warrant. In deciding the questions which are for
resolution at the initial hearing, and in giving the person the
required information about consent, the district judge will inevitably
have to convey to the person, or to his legal representative,
the contents of the warrant.
However, to be certain of this, considering the comments
made by the Committee, we intend to bring forward amendments to
place a positive duty on the judge to check that the person has
seen the warrant or a copy of it. This will be in all cases, not
just when it was not possible to show the person the warrant at
the time of his arrest. Since the initial hearing must take place
within 48 hours of someone being provisionally arrested the Government
hopes that the Committee will accept that this is a sensible way
of meeting their concerns.
26. We consider that the requirement of article
11.1 of the framework decision, that an arrested person must be
informed of the possibility of consenting to surrender to the
issuing judicial authority, would appear to be satisfied if the
judge is required to give only that information specified in paragraphs
(a) and (c) of Clause 8(3) and paragraphs (a) and (c) of Clause
71(7). We recommend that the Bill is amended accordingly (paragraph
112).
Technically the Committee is correct that to comply
with Article 11.1 of the framework decision only paragraphs (a)
and (c) of the relevant clauses in the Extradition Bill are needed.
However, the Government believes that as giving consent
to extradition is such a significant step the judge should also
be under a duty to explain its implications, most notably the
effect on the person's rights to specialty protection once returned,
and the procedures that will follow consent.
27. We recommend that where an arrested person
consents to be extradited, the judge or, in some Part 2 cases,
the Secretary of State, should be required to satisfy him or herself
that
- the arrested person has been offered access
to free legal advice before giving consent to be extradited;
- access to such legal advice was made available
to the person, and
- the person has understood the implications
of giving consent to extradition (paragraph 114).
We are persuaded by the argument of the Committee
and those that raised the same point during Committee Stage. It
is our intention therefore to place a duty on the district judges
to satisfy themselves that a person who consents to extradition
has had access to legal advice.
28. We recommend that Clause 202 should be deleted
and that the repeal of the 1989 and 1965 Acts should be provided
for on the face of the Bill itself. We do not consider that such
a provision repealing the 1989 and 1965 Acts would be incompatible
with the needs for these Acts to continue to apply to any extradition
requests made prior to the Bill coming into force. We consider
that appropriate provisions can be drafted for this eventuality
without needing to delegate to the Government the power to repeal
the Acts (paragraph 116).
We are grateful for the Committee's suggestion in
this regard. It is now the Government's intention to provide for
the repeal of existing legislation on the face of the Extradition
Bill.
29. We recommend that central statistics on extradition
to and from the Republic of Ireland should henceforth be maintained
(paragraph 8).
In future the Republic of Ireland will be treated
in the same way as all other EU countries and will be subject
to the same recordkeeping regime and once they implement
the European arrest warrant records for extradition to the Republic
of Ireland will be identifiable.
Bob Ainsworth MP
Parliamentary Under Secretary of State for Antidrugs
Coordination and Organised Crime
Home Office
February 2003
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