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On new clause 3, schedule 3 to the Sexual Offences Act 2003 lists the offences for which a conviction, finding or caution will, subject to certain sentencing thresholds being met, result in the offender being made subject to the notification requirements of part 2 of the 2003 Act—more commonly known as the sex offenders
register. When schedule 3 was drawn up, we decided not to include the offences under sections 48 to 50 of the 2003 Act because we were of the view that such offences could be motivated by factors such as greed. We did, however, include the offences in schedule 5 to the 2003 Act. Inclusion in schedule 5 means that if there is a demonstrable risk of serious sexual harm from the offenders, courts can make a sexual offences prevention order either when dealing with such an offender or on subsequent application from the police. That order has the effect of placing the offender on to the sex offenders register as well as making him subject to the prohibitions imposed by the order itself.
I am, however, extremely sympathetic to the view of the hon. Member for Mole Valley that, while offences in sections 48 to 50 are not strictly sexual offences, those who perpetrate them demonstrate, at the very least, a callous disregard of the sexual well-being of children, pose a threat, and may require the monitoring that registration brings. My officials will therefore review the content of schedules 3 and 5 over the summer. I can assure the hon. Gentleman that his proposals will be central to that review. Changes to schedules 3 and 5 do not require primary legislation and can be made by order subject to affirmative resolution. Instead of making piecemeal changes today, we should await the results of the review and look to make all necessary changes through an order to be laid in the autumn. This morning, after we spoke, I explored precisely what order-making powers are available under section 130 of the 2003 Act.
New clause 9 introduces a new power for the police to enter and search the home address of offenders who are subject to the notification requirements of part 2 of the Sexual Offences Act 2003. On that point, I associate myself with the sentiments expressed by the hon. Member for Beaconsfield. I also pay tribute to the hon. Member for Mole Valley for the work that he has undertaken. In 2005, he dedicated his private Member’s Bill to this issue, and I very much appreciate the thought that he has given to it. In March, my hon. Friend the Member for Wythenshawe and Sale, East said that although we had previously rejected measures similar to those contained in the new clause, we must keep our position open and under review.
In recent months, several developments have caused the Government to review that position. Professor Irving’s report for the Scottish Executive looked carefully at the way in which offenders are managed in the community to minimise the risk that they pose. Professor Irving concluded that a power of entry for the police was necessary. Officials at the Home Office conducted a review of the effectiveness of the Sexual Offences Act 2003, taking into account the views of law enforcement professionals, prosecutors and the courts, and reached a similar conclusion. As the hon. Member for Mole Valley is aware, officials have been working on drafting an appropriate clause, and we are seeking an appropriate legislative vehicle to make the change. I assure him that we are giving these issues very serious consideration, and we hope to be in a position to put something before Parliament in the near future. Government conventions prevent me from going any further at this stage, but I know that he will be aware of programmes in another place.
Finally, I want to say a few words about new clause 10. Hon. Members will be aware that the Criminal Justice Act 2003 provides the statutory framework for inter-agency co-operation in assessing and managing violent offenders and sex offenders under arrangements known as multi-agency public protection arrangements. I should like to offer the House officials’ first view of the new clauses drafted by the hon. Member for Mole Valley, which may need further reflection. Under the arrangements, the police and probation services and the Prison Service, supported by additional agencies, work together to manage the risk posed by dangerous offenders to the public. The “critical few” offenders who pose the highest risk are referred to a multi-agency public protection panel—MAPPP—where their cases are regularly scrutinised by senior representatives of local agencies.
As I understand it, new clause 10 tries to introduce a requirement on all such offenders to “co-operate” with any “reasonable steps” imposed on them by any responsible authority. That would include the probation and police services and the Prison Service. Failure to do that would be a criminal offence. However, we believe that the new clause may need further reflection because, in a great many cases, MAPPA offenders will be subject to the sex offenders register, a community penalty and/or release from imprisonment on licence. That means that there will already be clear requirements on the offenders, with repercussions if they fail to comply. We would therefore like the opportunity to give the matter further consideration.
In the light of those comments, I hope that my assurances will provide sufficient comfort for hon. Members to agree to withdraw the motion but to work with us on implementing their ambitions.
Bob Spink: I am grateful to the Minister for considering the amendments. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
‘(1) The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. 2003/3334 is amended as follows.
(2) In the list of territories in paragraph 3(2) “The United States of America” is omitted.'. — [Mr. Grieve.]
Brought up, and read the First time.
Mr. Grieve: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 114, in page 125, line 3 [Schedule 14], at end insert—
‘ “(j) forum”.'.No. 115, in page 125, line 5 [Schedule 14], leave out ‘19A' and insert ‘19B'.
No. 116, in page 125, line 23 [Schedule 14], at end insert—
(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interests of justice that the person should be tried in the category 1 territory.
(2) In deciding whether extradition is in the interests of justice the judge shall take into account whether the competent UK authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.”.'.
No. 117, in page 133, line 8 [Schedule 14], at end insert—
15A (1) Section 79 (bars to extradition) is amended as follows.
(2) After subsection (1)(d) there is inserted—
“(e) forum”.(3) In subsection (2) “83” is omitted and “83A” inserted.
(4) After section 83 there is inserted—
(1) If the conduct constituting the offence was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interests of justice that the person should be tried in the category 2 territory.
(2) In deciding whether extradition is in the interests of justice the judge shall take into account whether the competent UK authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.”.'.
No. 118, in page 133, line 8 [Schedule 14], at end insert—
‘Case where person has not been convicted
15B In section 84 (case where person has not been convicted) after subsection (7)(b) there is inserted—
“(c) The Secretary of State may not designate under this subsection if to do so would be inconsistent with any obligation set out in an extradition treaty or other extradition arrangements in force between the United Kingdom and a category 2 territory.”.'.
Government amendments Nos. 67 to 71, 78 and 79
Mr. Grieve: It is clear from early-day motions, which numerous Members of Parliament of all parties signed—the last one I saw contained 154 signatures—that the amendments cover a matter of serious concern. The new clause deals with the Extradition Act 2003, especially its operation in relation to the United States of America, but also more generally, and whether it is a fair and reasonable way to proceed.
If new clause 8 were accepted, it would omit the United States of America from the list of designated territories in category 2 of the 2003 Act. The United States could not therefore continue to enjoy its current privileged status in securing extradition without producing evidence. That is linked to amendment No. 118, which would prevent any redesignation until the ratification of the United Kingdom-United States extradition treaty, which was concluded in 2003, on both sides of the Atlantic. Ratification has taken place here but, as yet, there has been no reciprocity from the United States.
Amendments Nos. 116 and 117 try to cover a separate but related issue. If they were accepted, they would introduce into European extradition proceedings, under
the European extradition warrant, and into extradition to a category 2 territory, the possibility of the court’s examining whether the conduct disclosed by a request or constituting the offence was committed partly in the United Kingdom. No order for extradition would be made unless it appeared, in the light of all the circumstances, that it was in the interests of justice for the person to be tried in the territory that sought extradition. Moreover, under subsection (2), in deciding whether the interests of justice required extradition, the judge would be entitled to look at whether the competent United Kingdom authorities had decided to refrain from prosecuting the person whose surrender was sought, and for whom the extradition was requested.
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I shall try to be brief, but it is important to understand the background to these matters. Before 1 January 2004 and the implementation of the Extradition Act 2003, extradition to many countries outside Europe—the United States in particular—was governed by a treaty entered into in 1972. There was reciprocity under that treaty. If we wished to extradite someone from the United States, it was necessary to show probable cause of an offence having been committed. If the United States wished to extradite someone from the United Kingdom, a prima facie case had to be established. Some play has been made of the fact that it might be easier to show probable cause than to establish a prima facie case. However, both requirements responded to national legal principles and, in reality, very little turns on the distinction.
There were problems with the 1972 treaty. It was suggested that it took a long time to get extradition from this country, although I believe that that says more about the problems with our court procedure than anything else. In addition, there were further blocks on extradition that presented a real problem. They included the fact that certain offences were not covered at all. For example, a person could not be extradited from the United States for child pornography, which we have just discussed. Indeed, that still applies. The statute of limitations was also frequently invoked in the United States, placing a bar on some offences for which we sought extradition. Speciality claims were made, and some offences became incapable of extradition. There were also problems when someone was in prison in the United States for a minor offence but was wanted in this country for a major one.
I welcome the fact that a new treaty was negotiated between this country and the United States of America. It went a long way towards solving those problems. However, although we have signed and ratified the treaty, and allowed the United States to operate a procedure for extradition that is akin to that of our European neighbours and requires no evidence whatever to be produced, no reciprocity has been provided by the United States at all.
The treaty was signed on 31 March 2003. On 16 December, Baroness Scotland gave assurances in another place that ratification was due to take place in the United States in early 2004. On 16 June 2005, she expressed
“genuine disappointment that the United States’ authorities have not found the time or energy to ratify the provision.”—[ Official Report, House of Lords, 16 June 2005; Vol. 672, c. 1198.]
Twelve months later, we are still waiting. There is considerable evidence in the United States that there are many bodies—including civil rights groups and the senators linked to them—that intend to prevent ratification from taking place if possible.
It is not surprising that this state of affairs has come about. Why should the United States Government be bothered? As Baroness Scotland candidly explained, in a debate in the other place last year,
“the Extradition Act 2003 effectively implemented the provisions of the new UK/US extradition treaty.”—[ Official Report, House of Lords, 30 June 2005; Vol. 673, c. 408.]
She failed to add that this had happened on an entirely one-sided basis. The statutory instrument that was passed designated the United States under category 2. Extradition has become easy, and virtually all scrutiny has been removed. Bizarrely, this is completely contrary to article 9 of the treaty, which is still legally in force.
When the Government proceeded to include the United States as a category 2 designation under the Extradition Act, they told us that this was essential for the prevention of terrorism and for bringing suspected terrorists to justice. That is plainly an important consideration, of which the House must be mindful. That being said, in the case of Mr. Lotfi Raissi, the Algerian national and airline pilot whose extradition from this country was sought after 9/11 on the grounds that he had failed to disclose information to the US authorities that might have prevented that attack, the United States Government had to operate under the old system of showing a prima facie case. As was graphically described to the Home Affairs Committee by the district judge who handled that matter, it became apparent in the course of proceedings that there was no case against him whatever, and there was a complete mistake as to his identity, who he was and what his involvement had been. Under the Extradition Act provisions as they currently stand, Mr. Raissi would have been extradited to the United States without more ado.
Perhaps more relevantly, when anxiety was being expressed about the operation of the Extradition Act, the Government gave assurances that it would not extend to financial crime. Those were the very words of the hon. Member for Don Valley (Caroline Flint), then a Home Office Minister. She was responding to a Financial Times article expressing specific concern that offences such as price fixing, which were not offences in the United Kingdom but might have been offences in the United States in the past in parallel, could become extraditable. She said:
“We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times— such as price fixing—would not apply. Dual criminality would have to exist.”—[ Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 26.]
It has become apparent that what she told the House on that occasion was completely erroneous.
United States district attorneys, discovering—to their considerable pleasure, I am sure—that extradition has become a mere mechanistic procedure in this country, have found ways of side-stepping problems with the lack of dual criminality. My constituent, Mr. Ian Norris, managing director of Morgan Crucible, is currently facing extradition for price fixing
at a time when it was completely legal in the United Kingdom and all the decisions were taken here. The allegations have been changed to conspiracy to defraud, on the basis that that was the outcome as it affected the United States, thus getting round the dual criminality provisions. The Minister will be able to provide us with more information, but I understand that such examples are becoming numerous.
In addition, the United States has also asserted jurisdiction in cases in which every bit of common sense dictates that the connection with the United States is extremely tenuous. The mere passage of an e-mail through a United States server is sufficient for the purposes of jurisdiction. In theoretical terms, that must give the USA almost universal worldwide jurisdiction over every crime. In the Enron case, extradition is being applied for in relation to defendants whose alleged crime is to have defrauded—a serious offence—a British bank of many millions of pounds in this country, when the bank has never alleged fraud and no proceedings have ever been brought here.
Mark Pritchard: My hon. Friend mentions the Enron case, which involves serious amounts of money. Is he aware, however, that the powers extend to citizens who may have committed offences, however serious, involving no more than £1,000.01?
Mr. Grieve: Yes, I am aware of that. The lowest threshold for such extradition to operate is £1,000. My hon. Friend is right to highlight the fact that it can apply to individuals whose criminality may not appear high at all.
No system is perfect, and I fully acknowledge that there are strong reasons why countries should co-operate to combat crime: there is nothing wrong with that. In allowing for extradition and securing the reciprocity that is so desirable, we must sometimes accept minor concerns about the operation of other countries’ criminal justice systems, as long as we know that justice is the aim that they strive to achieve. However, we could have done very much better in the Extradition Act to prevent abuses such as those involved in the cases that I have described.
Even if the United States does ratify the new treaty, there is a compelling case for our extending greater protection to defendants in extradition proceedings involving offences that are wholly unrelated to the United States. As I said at the outset, that is what amendments Nos. 116 and 117 seek to achieve.
The Government have suggested that all this is a figment of the Opposition’s imagination—or of that of their own Back Benchers who signed the early-day motion. They have suggested that we are all getting worked up about nothing, and that the system is perfectly sensible. It is worth pointing out that many other countries provide exactly the protection that the British Government chose to avoid in the Extradition Act. Article III of the Irish-USA treaty provides for refusal of extradition when the alleged offence is regarded under the law of the requested state as having been committed in its territory. Article V of the treaty provides for no extradition when the requested state has decided to refrain from prosecuting, or has discontinued proceedings.
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