Schedule
23
Repeals
and
revocations
Amendments
made: No. 58, in schedule 23, page 232,
line 15, at end
insert—
|
‘Social
Work (Scotland) Act 1968 (c.
49)
|
In
section 94(1), in the definition of “supervision order”,
the words “the Powers of Criminal Courts (Sentencing) Act 2000
or”.’.
|
No.
59, in
schedule 23, page 232, line 16, column
2, at beginning
insert—
No.
60, in
schedule 23, page 232, line 17, at
end
insert—
|
‘Northern
Ireland (Modification of Enactments — No. 1) Order 1973 (S.I.
1973/2163)
|
In
Schedule 1, the entry relating to section 25(2) of the Children and
Young Persons Act
1969.
|
|
Transfer
of Functions (Local Government, etc.) (Northern Ireland) Order 1973
(S.R. & O. 1973 No.
256)
|
In Schedule
2, the entry relating to section 25 of the Children and Young Persons
Act
1969.’.
|
No.
61, in
schedule 23, page 233, line 2, column
2, leave out ‘paragraph’ and insert
‘paragraphs 15(b)
and’.
No.
62, in
schedule 23, page 233, line 11, column
2, at end
insert—
|
‘In
Schedule 13, paragraph
35(3).’.
|
No.
63, in
schedule 23, page 233, line 19, at
end
insert—
|
‘Children
(Prescribed Orders — Northern Ireland, Guernsey and Isle of Man)
Regulations 1991 (S.I. 1991/
2032)
|
In
regulation 8(1)—
(a)
sub-paragraph (a)(ii);
(b)
sub-paragraph (b)(i), (ii), (iv) and (v);
and
(c)
sub-paragraph (c)(ii) and
(iii).’.
|
No.
64, in
schedule 23, page 233, line 20, column
2, leave out ‘2(2)(b)’ and insert
‘2(2)’.
No.
65, in
schedule 23, page 233, line 21, at
end
insert—
|
‘Children
(Northern Ireland Consequential Amendments) Order 1995 (S.I. 1995/
756)
|
Article 7(2)
and
(3).’.
|
No.
66, in
schedule 23, page 234, line 42, column
2, after ‘33,’ insert ‘,
34(b)’.
No. 67,
in
schedule 23, page 234, line 42, column
2, after ‘33,’ insert ‘,
39’.
No. 68, in
schedule 23, page 234, column
2, leave out line 43 and insert ‘, 131 and
132’.
No.
69, in
schedule 23, page 235, line 8, column
2, after ‘paragraphs’ insert
‘37(b),’.
No.
70, in
schedule 23, page 235, line 40, column
2, at end insert
‘14,’.
No.
71, in
schedule 23, page 235, line 41, column
2, after ‘64(3)(a)(ii),’ insert ‘70(5)(a)
and
(7),’.
No.
72, in
schedule 23, page 235, line 42, column
2, after ‘129’ insert ‘,
131(3)’.
No.
73, in
schedule 23, page 236, line 18, column
2, at end
insert—
No.
181, in
schedule 23, page 236, line 46, at
end
insert—
|
‘Criminal
Justice Act 2003 (Commencement No. 8 and Transitional and Saving
Provisions) Order 2005 (S.I.
2005/950
|
Paragraph
30 of Schedule
2.’.
|
Maria
Eagle:
I beg to move amendment No. 374, in
schedule 23, page 236, line 46, at
end
insert—
‘Part
2A
Appeals
|
Title
|
Extent
of
repeal
|
|
Criminal
Appeal Act 1968
(c. 19)
|
In
section 4(2), the words “for the offence of which he remains
convicted on that
count”.
|
|
In
section
6—
|
|
(a)
subsection
(5);
|
|
(b)
in subsection (7), the definition of interim hospital
order.
|
|
Section
11(6).
|
|
In
section
14—
|
|
(a)
subsection
(5);
|
|
(b)
in subsection (7), the definition of interim hospital
order.
|
|
Section
16B(3).
|
|
In
section 31, in the heading, the words “under Part
1”.
|
|
Section
31C(1) and
(2).
|
|
Judicature
(Northern Ireland) Act 1978
(c. 23)
|
In
section 49—
(a) in
subsection (2), the words from “or, where subsection (3)
applies” to the end;
(b)
subsection
(3).
|
|
Criminal
Appeal (Northern Ireland) Act 1980
(c. 47)
|
Section
10(6).
|
|
Mental
Health Act 1983
(c. 20)
|
In
Schedule 4, paragraph
23(d)(ii).
|
|
Criminal
Justice Act 1988
(c. 33)
|
In
section 36(9), the word “and” at the end of paragraph
(ab).
|
|
Powers
of Criminal Courts (Sentencing) Act 2000
(c. 6)
|
In
section 155—
(a) in
subsection (1), the words from “or, where subsection (2) below
applies” to the end;
(b)
subsections (2) and
(3).
|
|
Criminal
Justice Act 2003
(c. 44)
|
Section
272(1).’.
|
The
Chairman:
With this it will be convenient to discuss the
following: Government new clause 84 — Further
amendments relating to appeals in criminal
cases.
Government
new schedule 10—‘Appeals in criminal
cases.
Maria
Eagle:
The amendments introduced by new schedule 10 are
mainly to the Criminal Appeal Act 1968, with corresponding changes to
the legislation for Northern Ireland. They are minor and technical
amendments to various procedures affecting appeals. The changes have
been formulated at the request of the senior judiciary and in
consultation with it. Their aim is to assist the efficient functioning
of the Court of Appeal criminal division, and to resolve anomalies and
minor difficulties to which the existing provisions have given
rise.
In summary, the
changes will impose a time limit on the trial judge’s power to
grant a certificate of fitness for appeal and empower the Court of
Appeal, when it
quashes a conviction, to resentence the appellant for any other offence
for which he was sentenced at the same time by the court below. They
will transfer to the Court of Appeal certain powers relating to interim
hospital orders that are currently exercised by the courts below, and
allow a single judge to exercise some of those powers. They will extend
the powers of the Court of Appeal to compel the production of documents
and the attendance of witnesses; allow a single judge to exercise the
power to give leave to appeal in certain interlocutory appeals; and
allow a single judge to issue directions that cannot be appealed to a
full Court of Appeal. They will ensure that, when the prosecution
appeals successfully to the House of Lords, the offender can be
compelled to serve out any remainder of his sentence unless the court
below has made an order to the contrary, and they will extend the time
during which a sentence imposed by the Crown court can be altered by
that court. If members
of the Committee wish me to go into more detail about the changes, I
will be happy to do so. On that basis, I commend those worthwhile
changes to the
Committee.
Amendment
agreed
to.
Amendments
made: No. 250, in schedule 23, page 237,
line 18, column 2, at beginning
insert—
|
‘Section
86(4).
|
|
Section
87(6).’.
|
No.
251, in schedule 23, page 237, column
2, leave out lines 18 to
20.
No. 252, in
schedule 23, page 237, line 36, at
end
insert—
|
‘Public
Order Act 1986 (c.
64)
|
Section
29B(3).
|
|
In
section
29H—
|
|
(a)
in subsection (1), the words “in England and Wales”;
and
|
|
(b)
subsection
(2).
|
|
In
section
29I—
|
|
(a)
in subsection (2)(a), the words “in the case of an order made in
proceedings in England and Wales,”;
and
|
|
(b)
subsections (2)(b) and
(4).
|
|
In
section 29L(1) and (2), the words “in England and
Wales”.’.—[Maria
Eagle.]
|
Mr.
Coaker:
I beg to move amendment No. 253, in
schedule 23, page 237, line 37, column
2, at end
insert—
|
‘In
Schedule 2, in paragraph 1(d), the words “in relation to a
photograph or pseudo-photograph showing a child under
16”.’.
|
The
Chairman:
With this it will be convenient to discuss the
following: Government amendment No.
222
Government
new clause 35—Sexual offences committed outside the United
Kingdom.
Government new
clause 36—Sexual offences: grooming and
adoption.
Government
new schedule 3—‘Sexual offences: grooming and
adoption.
Mr.
Coaker:
This is another group of important amendments to
improve the protection of our children. The Sexual Offences Act 2003,
introduced in May 2004, provided a new and comprehensive legislative
framework for sexual offences. It has undoubtedly provided law
enforcement agencies with more effective tools for tackling sex
offenders, but improvements can be
made.
The Sexual
Offences Act allows for the prosecution of UK citizens and residents
for sex offences against children that are committed abroad. We are
seeking to strengthen those provisions for UK nationals by removing the
condition that the act must be criminalised in the country where it was
committed. As hon. Members will know, the condition is known as dual
criminality. At present, the extra-territorial provisions extend only
to offences against children under the age of 16, even when the UK
offence applies to victims under 18. New clause 35 extends the relevant
age for the provisions to under 18.
3.15
pm
In drafting the
new clause, it was felt appropriate to redraft much of the section to
make the drafting consistent with other provisions relating to
extra-territorial prosecutions. Removing dual criminality and extending
the relevant age will help to implement some of the Council of Europe
convention on the protection of children against sexual exploitation
and abuse. I am pleased that this change to the law will allow us to
sign and ratify that convention. However, it is a significant change in
its own right; it will mean that British nationals who travel abroad to
exploit children will not be able to evade justice by targeting certain
countries whose laws offer less protection to children. It will act as
a significant deterrent for British offenders who contemplate
travelling abroad for the purposes of sexually exploiting
children.
Mr.
Hollobone:
It would be helpful if the Minister could give
us a list of those countries, as the public would like to know the
extent to which the Bill will close the existing
loophole.
Mr.
Coaker:
That is a very good question. If I do not have the
list of those countries in the next few minutes, I will write to the
Committee with the information. I do not want to speculate but the hon.
Gentleman, like me, could probably think of a few countries that would
fall into that category. However, I would rather be certain of my facts
than say something
inaccurate.
The
proposal will act as a significant deterrent for British offenders who
contemplate travelling abroad for the purposes of sexually exploiting
children. They will know that they will not be able to take refuge from
British laws and British justice.
The Council of Europe convention
is the first international instrument that obliges states to remove the
requirement of dual criminality in relation to the extra-territorial
prosecution of certain sex offences
against children. However, removing that requirement is also included as
an optional measure in the protocol to the United Nations convention on
the rights of the child on the sale of children, child prostitution and
child pornography and the EU framework decision on combating the sexual
exploitation of children and child
pornography. Removing
dual criminality has been identified by the G8 as an element of good
practice in combating travelling sex offenders, a practice that all
hon. Members deplore. The change in the law is supported by the
Association of Chief Police Officers, the Child Exploitation and Online
Protection Centre and several children’s organisations. We are
grateful for their support for the change and recognise the
international consensus.
We are proud to join other
countries in taking steps to remove dual criminality for UK nationals.
We want to take responsibility, when necessary, for those of our
citizens who travel abroad to exploit children and the amendment will
be a significant UK contribution to the fight against travelling sex
offenders.
In respect
of new schedule 3, in reviewing the implementation of the 2003 Act we
have also identified how the offence of meeting a child following
sexual grooming created by section 15 could be strengthened in order to
allow police to apprehend offenders at an earlier stage in the process
of grooming. The primary aim of the offence is the protection of
children and that is what underpins new schedule 3.
Section 15 makes it an offence
for a person aged 18 or over to meet intentionally or to travel with
the intention of meeting a child under the age of 16 in any part of the
world if he has met or communicated with that child on at least two
prior occasions and intends to commit a relevant offence against that
child either at the time of the meeting or on a subsequent occasion.
Relevant offences are offences under part 1 of the Sexual Offences Act
2003.
The amendment to
section 15(1)(a) of the 2003 Act will make it an offence to arrange to
meet a child, having met or communicated on at least two earlier
occasions, if at the time of that meeting he intends to commit a
relevant offence. In addition, an offence will have been committed if
an adult invites a child to his house and the child takes steps to
travel there following two earlier communications. That partly
replicates the equivalent Scottish offence. That will ensure that the
police are able to intervene in certain cases where a child has
travelled to meet an offender who is waiting for them at home without
the meeting actually taking place.
If an offender travels to meet a
child, having communicated with that child on two previous occasions,
he has committed an offence and can be apprehended. However, if he
invites the child to his home, he does not commit an offence until he
has actually met the child. In our view, it is not desirable to allow
events to go that far, particularly when we bear it in mind that the
offender might be situated abroad. New schedule 3 would allow police to
intervene at an earlier stage and apprehend an offender once a meeting
had been arranged if that arrangement followed two earlier
communications and the offender intends to commit a sexual offence with
the child at that meeting. That proposal is supported by
ACPO.
Paragraph 2 of new schedule 3
will create an offence when an adoptive parent, but not other members
of the adopted family, has sex with their adopted child when they are
over the age of 18. That offence will apply to both the adoptive parent
and the adoptive child once they are over 18. We think that that will
further strengthen our laws and help to combat the so-called trade of
sex tourism, which we all deplore. It is a despicable act. By
strengthening the law in this way, we look to ensure that many more of
those who seek to abuse children will be captured and put where they
need to be—in
prison.
Amendment
agreed to.
Amendments
made: No. 254, in schedule 23, page 238,
line 15, column 2, at end
insert—
|
‘In
section 54(2), the words “and the Central Police Training and
Development
Authority”.’.
|
No.
255, in schedule 23, page 238, leave out
line 31.
No.
256, in
schedule 23, page 239, line 20, column
2, leave out ‘paragraph 73’ and insert
‘paragraphs 73 and 119’.—[Mr.
Coaker.]
Mr.
Garnier:
I beg to move amendment No. 201, in
schedule 23, page 239, line 20, at
end
add—
‘Part
8
extradition
|
Title
|
Extent
of
Repeal
|
|
Police
and Justice Act 2006
(c.48)
|
Section
53(2)(b).
In
Schedule 13, paragraphs 4 to 6 together with the cross heading
immediately preceding
them.’.
|
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 199, in
clause 128, page 85, line 11, at
end insert—
‘(aa) section
[Restriction on extradition in cases where trial in United Kingdom more
appropriate];’.
New
clause 26—Restriction on extradition in cases where trial in
United Kingdom more
appropriate—
‘(1) The
Extradition Act 2003 (c. 41) is amended as
follows.
(2) In section 11
(bars to
extradition)—
(a) at the
end of subsection (1) there is
inserted—
“(j)
forum.”;
(b) in
subsection (2), for the words from “12” to
“apply” there is substituted “12 to 19B
apply”.
(3) After
section 19A there is
inserted—
“19B
Forum
(1) A person’s
extradition to a category 1 territory (“the requesting
territory”) is barred by reason of forum if (and only if) it
appears that—
(a) a
significant part of the conduct alleged to constitute the extradition
offence is conduct in the United Kingdom,
and
(b) in view of that an all
the other circumstances, it would not be in the interests of justice
for the person to be tried for the offence in the requesting
territory.
(2) For the purposes of subsection (1)(b) the judge
must take into account whether the relevant prosecution authorities in
the United Kingdom have decided not to take proceedings against the
person in respect of the conduct in
question.
(3) This section does
not apply if the person is alleged to be unlawfully at large after
conviction of the extradition
offence.”
(4) In section
79 (bars to
extradition)—
(a) at the
end of subsection (1) there is
inserted—
“(e)
forum.”;
(f) in
subsection (2), for “Sections 80 to 83” there is
substituted “Sections 80 to
83A”.
(5) After section
83 there is
inserted—
“83A
Forum
(1) A person’s
extradition to a category 2 territory (“the requesting
territory”) is barred by reason of forum if (and only if) it
appears that—
(a) a
significant part of the conduct alleged to constitute the extradition
offence is conduct in the United Kingdom,
and
(b) in view of that and all
the other circumstances, it would not be in the interests of justice
for the person to be tried for the offence in the requesting
territory.
(2) For the purposes
of subsection (1)(b) the judge must take into account whether the
relevant prosecution authorities in the United Kingdom have decided not
to take proceedings against the person in respect of the conduct in
question.
(3) This section does
not apply if the person is alleged to be unlawfully at large after
conviction of the extradition
offence.”’.
Amendment
No. 200, in title, line 8, after
‘criminality;’, insert ‘to amend the Extradition
Act
2003;’.
Mr.
Garnier:
Amendments Nos. 199 to 201 essentially tidy up
the wording of the Bill to reflect the substantive amendment of new
clause 26, which deals with extradition. For example, amendment No. 200
deals with a long title.
The Committee will perhaps
remember that a great deal of heat was generated in a previous sitting,
as well as a certain amount of light, when amendments were made to the
Extradition Act 2003 that related to the extradition of people who had
allegedly committed offences in the United States but who had little
connection with the US. Those amendments render them liable for
extradition to the US from the UK.
It is coincidental, but I
understand from today’s news that the NatWest three have pleaded
guilty to a single count that relates to a number of counts alleged
against them for various forms of dishonest financial
activity.
I
do not intend to say anything at all about that case, although it does
illustrate the principles that we should think about today. I will not
say anything about it because we do not know why the defendants pleaded
guilty on that count, although we could guess. At this stage, I do not
want either to discuss the relative merits or demerits of the way in
which fraud and white-collar crime are dealt with by the British
jurisdiction and either the United States or the Texan jurisdiction.
Suffice to say that in the United States, following the collapse of
Enron and the resulting fallout, the courts are much more severe in
their prison sentencing than I suspect that British courts would be in
similar circumstances.
What I want is to do is ask the
Committee to revisit the question of forum. I do not wish to discuss
the different tests that apply in Britain and the United
States. From my memory of speaking in the debates on extradition
relating to the 2006 Act, my understanding is that, in order to
establish the basis of application for extradition, in the United
States it is simply necessary to assert that a crime has been
committed, whereas in the United Kingdom one needs to overcome the
higher hurdle of establishing that there is an arguable case, which is
fit to go to the jury. However, that is not part of this discussion
which relates to the issue of forum. I hope that anybody who has taken
the trouble to look at new clause 26 will see that the arguments make
themselves off the face of the page; however, I will briefly recite my
arguments in respect of the new clause. On page 723 of the amendment
paper, it can be seen that we wish to amend the law so that a British
judge considering an extradition application to remove a person in this
country who is suspected of a crime in another jurisdiction should take
into account that factors that we have set out. I do not need to
discuss whether it is a category 1 or 2 country—the principles
are the same. We propose that a person’s extradition to either
category of territory should be barred by reason of forum if, and only
if, it appears
that,
“(a) a
significant part of the conduct alleged to constitute the extradition
offence is conducted in the United Kingdom,
and
(b) in view of that
and all the other circumstances, it would not be in the interests of
justice for the person to be tried for the offence in the requesting
territory.”
In
support of subsection (1)(b) of proposed new section 83A to the
Extradition Act 2003, subsection (2) says that,
“the judge must take into account
whether the relevant prosecution authorities in the United Kingdom have
decided not to take proceedings against the person in respect of the
conduct in question.”
I said that I would not get
involved with the NatWest three, but let me raise one point. There will
be cases, particularly in the financial services industry where
communications take place electronically. It may be
that a number of financial service houses in this
country use American e-mail servers. Although the alleged fraud may
take place in this country—it may be planned and executed
here—and the victim may be an individual or a corporation wholly
or largely resident in this country, the mere fact that the electronic
signals go via an American internet server means that the United
States, either federally or by means of state jurisdictions, can claim
jurisdiction over the alleged criminality.
3.30
pm
That
brings with it tremendous worries. I suggest that the United Kingdom
should not release defendants in those circumstances where there is
only a flimsy or tangential relationship between the claimant country
and the UK. That must be reinforced, surely, if the prosecuting
authorities in this country, or in Scotland and Northern Ireland, have
not taken any steps to launch prosecution proceedings themselves, or
indeed have considered them and have made a positive decision not to
prosecute, particularly where the victim of the alleged fraud has made
a positive decision not to complain or not to complain to the level of
inviting the police or the Serious Fraud Office or any of the other
prosecuting authorities—HMRC, perhaps—to do anything
about it.
I suspect that
it is a view widely held on the Opposition Benches, if not completely
on the Government Benches, that our signing of the extradition
agreement with the United States, which led to the amendments to the
Extradition Act 2003, did not produce an even bargain. I suggest that a
number of British citizens or residents of the United Kingdom have
been, or could be, gravely disadvantaged by the current extradition
arrangements. It therefore seems that we should do what the Irish and a
number of other European jurisdictions have done, and make provision to
enter into the judge’s considerations the issue of forums, as
described in the new clause.
I hope that I have painted the
case sufficiently clearly for the Government to be able to explain why
they should not accept it. If I may say so, on the last occasion that I
discussed this in the days of the old Home Office, the then
Under-Secretary, who is no longer in that post, did not respond
terribly effectively on behalf of the Government. I look forward to
hearing whichever of the Ministers it is who has the grave and weighty
duty to reply to this debate doing so rather more
effectively.
Mr.
Heath:
I have debated matters relating to our
extraordinarily one-sided extradition agreement with the United States
more often than I care to think of over the last few years. As it
happens, I was speaking from this Bench—literally this Bench, I
think—when the matter was first debated by a Statutory
Instrument Committee, when my hon. Friend the Member for Southport (Dr.
Pugh) and I were the only ones to oppose the initial statutory
instrument that brought into effect the treaty, after it had been
signed. We went on to encourage our right hon. and hon. Friends to
oppose it as well, when it was put before the House, so we have a
unique position of opposition in that respect.
I have some sympathy
for those who, at the first instance, took the words of the Government
at face value because they were told by the then Minster that it was a
necessary defence against terrorism; that it would only be used for
terrorist offences; that it certainly would not apply to white-collar
offences, and that in any case it was a balanced agreement.
Transparently, it was not. Since then, what has been elucidated on the
several occasions that we have discussed the matter is that we are
unique as a nation in accepting such an unbalanced position. The other
states that have a similar treaty obligation in terms of the evidential
requirement for extradition have safeguards: for example, France has
constitutional safeguards that it will never extradite a French
citizen—a fairly convincing safeguard—and as the hon. and
learned Member for Harborough said, the Republic of Ireland has a forum
provision, as proposed in new clause 26, to which my hon. Friends and I
have added our names.
The issue is relevant this week
because of the guilty plea of the NatWest three. It is not for us in
the Committee to debate the whys and wherefores of that case, other
than to say that the current position is a result of plea bargaining.
One may be reasonably well assured that, if the guilty plea had not
been entered on that one count and they had been found guilty of the
several other counts on which they were arraigned before the court in
Texas, they would have been given substantial jail sentences.
The key issue is that not only do
we have a one-sided treaty with the United States,
whereby we are required to show a different standard of proof for the
extradition of United States citizens to the UK from that which is
required for the extradition of UK citizens to the United States, but
the United States is unique in its federal and state jurisdictions in
assuming a high degree of extraterritorial—indeed,
universal—jurisdiction on many matters. That has enormous
consequences for our sovereignty of jurisdiction, because, in effect,
the United States judicial authorities can extradite British citizens
to an American court to stand trial for offences that have no
geographical connection with the United States. A person who is
extradited does not need ever to have visited the United States or to
have had direct business dealings with a person there to be subject to
an extradition request. It is very difficult for the authorities in
this country to refuse a request, because the terms of evidential proof
are little more than an identity assessment and the fact that a law
enforcement officer—perhaps a sheriff—has asked for
extradition. That puts British citizens in a very difficult
position.
The hon. and
learned Member for Harborough, in his new clause, has quite rightly
stated that it would apply not to a particular country but to any
country. However, it would apply particularly to the United States
because of that assumed universal jurisdiction, which is the norm for
so many of their offences and
jurisdictions.
Mr.
Coaker:
I hesitate to dip into these waters, but does the
hon. Gentleman think that the evidential test is an absolute principle
for extradition? I have started to examine different extradition
treaties and arrangements, and there is considerable variation. In the
1972 treaty, which preceded the current treaty, we had probable cause
and the US had prima facie, so although I take the point that he tries
to make, one can argue that there never has been absolute parity.
Surely the issue is about the process used to ensure that people
receive fair and due process.
Mr.
Heath:
The Minister makes a fair point that has been made
many times. In return, I have many times said, no, there is not
absolute parity in many of our arrangements. However, it does not
prevent me from stating that the negative parity we now have with the
United States is a singular disparity—one that I do not accept.
It is quite wrong. If the claim of extraterritorial jurisdiction did
not exist, it would be bad enough. If that claim did not exist, we
would be dealing with offences committed in the territory of the United
States or one of its dependencies, or against a US person—an
individual or company. But we are not. It is the combination of the two
makes us uniquely vulnerable now, in comparison with any other country
in the world. Not only are we uniquely vulnerable to extradition to the
United States, but the fact that it is not reciprocated simply adds
insult to injury. That is why so many of us are convinced that the
arrangement needs to be
changed.
The
provisions proposed by the hon. and learned Member for Harborough,
which I do not need to spell out again as he has already done so,
provide a safeguard
against the capricious use of the extradition powers in circumstances
where a British court would not convict, or where the British legal
authorities would not indict. That seems a sensible precaution, which
simply avoids any abuse within the American jurisdiction of the
arrangement. I think
that we should renegotiate the treaty and put safeguards into it, but
that is not a matter for this Committee. The new clause is a matter for
this Committee, because it provides an essential safeguard that is
within our powers. Accepting the new clause would bring us into at
least the same sort of relationship that other countries that have
agreed bilateral arrangements with the United States on non-reciprocal
evidential tests have achieved for their own jurisdictions. It is right
that we should do so for the protection of the British citizen and of
the British judicial system which, at the moment, is open to predation
by the
Americans.
Mr.
Coaker:
I thank Opposition Members again for the measured
way in which they have spoken to their amendments. It appears to me, as
someone who is not legally trained, that there are different opinions
on this serious matter. That is why I made the point about absolute
principle. I appreciate the measured way in which the hon. Member for
Somerton and Frome responded to me and accepted that there is a debate.
If you look at the extradition treaties that people have negotiated
between each other, across the world, there is not absolute parity in
the evidential test in all the
arrangements.
Even
within the legal profession, there are different opinions. When I
re-read the House of Lords debate, I also re-read some of the remarks
made during the debate in the House of Commons. It was interesting to
see what some of the Law Lords had said. In respect of amendments
tabled on the need for a judge to determine in which jurisdiction the
prosecution should take place, I found that, rather than taking the
same view as the Government—that it is a matter for the
prosecution authorities to determine, based on where the best chances
of successful prosecution can be had—Lord Dilhorne, a
distinguished judge,
stated:
“The
judge must keep out of this area. He should not have or appear to have
any responsibility for the institution of
prosecution.”
I appreciate
that that is not a universal view. People could quote another
distinguished Law Lord from Hansard expressing a completely
different
view.
Mr.
Garnier:
I am just wondering which Lord
Dilhorne it was. Some Lord Dilhornes are better lawyers than
others.
Mr.
Coaker:
Whichever Lord Dilhorne I am referring to, I shall
let the hon. Gentleman know.
3.45
pm
I come to the
matter as a non-lawyer. The hon. Member for Somerton and Frome, and the
hon. and learned Member for Harborough, are trying to ensure that the
process is fair, that it does not disadvantage anyone and that justice
is seen to be done. I decided to look at the extradition
process—what somebody would
have to go through before they were extradited, notwithstanding the
forum question. It seemed to me to be a fair process in which the
interests of justice are served. Prosecutors have to decide whether or
not to support an extradition, and the requesting authority has to make
a request to us. It is a considerable process and, if the Committee
does not mind, I shall run through
it. The
CPS acts as the representative authority for the
requesting territory. All extradition cases are considered at Bow
Street magistrates court, which may make a provisional arrest. There is
an initial hearing in front of a district judge, who must inform the
person about the content of the extradition request, explain what is
going on and say whether or not they will grant bail—all the
various things that one would expect due process to include. The
district judge can discharge the person if the certified request is not
received by the court within the required time. Then there is an
extradition hearing. Everything that the district judge must do in that
hearing is laid out: the judge decides whether the documentation is in
order and the individual is the person who is named; he also examines
the credibility of the offence and whether any of the bars to
extradition apply. The bars listed in the Extradition Act 2003 include
dual criminality, problems with evidence, requests made for improper
reason, double jeopardy, injustice due to ill health or passage of
time, and human
rights.
Mr.
Garnier:
The one thing that the district judge cannot take
into account is the issue of forum, as we have outlined in our new
clause.
Mr.
Coaker:
What I am saying to the hon. and learned Gentleman
is that, in our view, the current process is fair and reasonable. It is
for the prosecuting authorities to determine in which jurisdiction
there is the best chance of a successful prosecution. Subject to that,
however, the actual process by which someone is removed from this
country and extradited to, for example, the United States is quite a
formal process in which due process of law can take place. There is a
hearing and then a decision, after which anyone subject to extradition
can appeal. Appeals against the decisions of the district judge or the
Home Secretary go to the administrative court. Notice of appeals must
be given within 14
days.
Mr.
Heath:
That is the point. The appeal is against the
procedure—it is based on the procedural elements being
incorrect. For example, a person has been incorrectly named, the
indictment has been incorrectly filled, or something along those lines.
It is no longer the evidence that is tested to see whether there is
prima facie
case.
Mr.
Coaker:
The court would have to determine some of the
points raised by the Gentleman; otherwise, it would contravene
convention rights within Human Rights Act 1998. That is another thing
that the court here explicitly has to do. Of course, on a point of law,
the appeal can ultimately go to the House of
Lords.
In respect of
the issue of forum, the Government’s view is that we do not wish
to blur the distinctions between the judges and the independent
prosecuting authorities. It is for the prosecution to determine the
appropriate jurisdiction. Alongside that, there is a due
process of extradition that protects the rights of the individual in the
way that I have briefly outlined. I ask the hon. Gentleman to withdraw
his
amendment.
Mr.
Garnier:
The Minister did not utter a single untruth in
his argument. He did not say anything that was false, and he correctly
stated what happens. But what does not happen is that the judge takes
into account the question whether the significant part of the conduct
that constitutes the extradition offence is committed in the United
Kingdom. He does not take into account whether the prosecution, let
alone the victim, had done anything about it. Everything that the hon.
Gentleman said is perfectly true. Yes, if people are subject to an
extradition request from another territory they go through that
process. The judge considers the assertions that are made against the
defendants and if they come within the Extradition Act 2003, off they
go and there is not much they can do about it, as the NatWest three
would be the first to tell him if they were here to do
so.
What we are
complaining about is that, unlike the Republic of Ireland and some
other perfectly respectable jurisdictions in the industrialised world,
we do not pay any attention to the flimsy connection between the other
territory and this one in relation to the facts of the crime. When
debating whether the British courts should try a civil or a criminal
case here when some other more convenient forum is available, we do the
reverse of current process: we look at the facts of the civil dispute
or the crime and ask if it has anything to do with us or very little to
do with us. If it has nothing or very little to do with us, our courts
do not permit the matter to be litigated or prosecuted in our courts,
civil or criminal. My point is that it is not fair to impose a burden
upon citizens in respect of an offence if there is very little
connection with the requesting territory.
The Minister dealt with all
sorts of points, but not with my arguments, which were supported by the
hon. Gentleman. Unless he can persuade me that he will change his
mind—I am happy to take an intervention—I regret that I
will press the new clause to a Division.
The
Chairman:
We are, in fact, debating amendment No. 201 and
the vote would be on that
amendment.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 5, Noes
10.
Division
No.
7
]
Question
accordingly negatived.
Schedule 23, as amended,
agreed
to.
Clause
126
ordered to stand part of the
Bill.
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