Anti-Social Behaviour, Crime and Policing Bill

Written evidence from the Home Office (ASB 43)

ANTI-SOCIAL BEHAVIOUR, CRIME AND POLICING BILL: GOVERNMENT AMENDMENTS FOR COMMONS COMMITTEE STAGE

I am writing to let you have details of a second and final tranche of Government amendments to the Bill which I have tabled today.

Extradition

The Bill includes a number of largely technical amendments to the Extradition Act 2003 (the 2003 Act) to improve the operation of our extradition arrangements, including in response to recommendations made in Sir Scott Baker’s review of those arrangements. As the Home Secretary set out in her oral statement yesterday on the 2014 opt-out, the Government now proposes a number of additional changes to the 2003 Act to strengthen further the operation of the European Arrest Warrant (EAW), particularly around the issues of proportionality, pre-trial detention and dual criminality.

Introducing a ground of refusal in the 2003 Act on the basis that execution of a EAW would be disproportionate (new clause Proportionality and amendments to Schedule 7 (amending section 21 of and Schedule 1 to the 2003 Act)

Proportionality has long been identified as a problem with the EAW. Significant concerns have been expressed by the European Council and the European Parliament on proportionality, and both have recognised that improvement is needed in this respect. There have also been a number of reports and studies undertaken on the principle of proportionality and, notably, Sir Scott Baker’s review recommended that the EAW Framework Decision be amended in future to ensure that proportionality was a mandatory requirement in issuing an EAW.

The UK receives a high number of EAWs annually and many of these relate to minor offences. Action to remedy this problem has been undertaken both bi-laterally and at EU level, for example via guidance in the EAW handbook. However, such guidance places no legal obligation on Member States. Accordingly, such measures have not had the required impact in terms of reducing volumes and the UK continues to receive many requests for relatively minor offences.

However, proportionality is a fundamental principle of EU law – it therefore should underpin the operation of the EAW. In particular, Article 1(3) of the Framework Decision expressly provides that the instrument shall not have the effect of modifying the obligation to respect fundamental rights and principles as enshrined in Article 6 of the Treaty on the European Union. In addition, Article 52(1) of the Charter of Fundamental Rights makes clear that limitations on rights enshrined in the Charter are "subject to the principle of proportionality". For that reason, we believe the proposed provision is consistent with EU law.

This new provision will require the courts to consider whether execution of an incoming EAW request would be disproportionate, and is tied closely to existing human rights considerations under section 21 of the 2003 Act. The factors which the court must consider have been limited to an exhaustive list of the most obviously relevant factors, such as seriousness of the conduct and likely length of sentence. This will help to address concerns that all EAW cases will be challenged on grounds of proportionality. The outcome of this new clause should be a reduced burden on the wider criminal justice system in the processing of disproportionate requests. This statutory provision will be complemented by an administrative proportionality check that will look to weed out the most trivial requests when they are first received.

Preventing the execution of EAWs where the requesting State is not ready to charge and try the person (new clause Extradition barred if no decision to charge and to try in requesting territory)

Concerns have also been expressed about the lengthy pre-trial detention of people following surrender on an EAW. Such concerns have been raised by the European Parliament and NGOs like Fair Trials International (including in their oral evidence to the Committee), as well as the UK Parliament. This issue has arisen in several notable cases involving UK nationals and, in part, is a consequence of surrendering individuals under an EAW when the case is still at the investigative stage.

To address these concerns, we intend to clarify that no surrender can take place unless a decision to charge and a decision to try that person has been made. Where it appears (but only where it appears) to the judge that there are reasonable grounds for believing that these decisions have not been made (or one of them has not been made), it will then be for those representing the issuing State to prove that the decision or decisions have been made. This will ensure the correct balance between providing the requested person with a meaningful safeguard and taking into account the mutual recognition principle which lies at the heart of the EAW Framework Decision. We believe this is consistent with Article 1(1) of the EAW Framework Decision, which says that an EAW may only be issued "for the purposes of conducting a criminal prosecution".

However, if our courts are satisfied that the only reason a decision to charge the person and a decision to try the person have not been taken is because the person has not been physically present in the issuing State, then the person may be extradited to enable that to happen. It is acknowledged that the systems and legal requirements of other Member States differ from the UK; this is therefore a pragmatic solution which reflects the clear limitation on when EAWs can be issued.

Temporary transfer etc (new clause Request for temporary transfer etc and amendments to Schedule 7 (amending section 197 of the 2003 Act))

This amendment will allow the person to be temporarily transferred to the issuing State, pending extradition, if both the person and the issuing State agree. We understand many other EU Member States already have this provision in national law. Similarly, this new clause will allow the person to speak with the authorities in the issuing State (for example, by videoconference) pending extradition, if both the person and the issuing State agree. This should lead to a reduction in pre-trial detention times, or in some cases, to the person not being extradited at all.

Dual criminality (new clause Definition of "extradition offence" and amendments to Schedule 7 (amending sections 66, 137 and 138 of the 2003 Act))

Dual criminality is a key consideration in EAW cases, with the exception of the list of 32 offence categories set out in the EAW Framework Decision.  However, given there are perceived concerns about the lack of dual criminality in EAW cases, we propose to make the 2003 Act much clearer as regards the existing requirement for dual criminality (where that is not prohibited by the Framework Decision), since it is currently buried in detailed provisions of the Act and could be made much more prominent. We also propose to make it very clear that in cases where all or part of the conduct occurred in the UK and the conduct is not criminalised here, the EAW must be refused for that conduct. This will require dual criminality to be present in cases where the offence was committed in whole or in part in the UK, which is in our view consistent with the terms of the Framework Decision.

Consent to extradition and speciality protection (new clause Consent to extradition not to be taken as waiver of speciality rights)

At present, the 2003 Act states that where a person consents to extradition, he or she must be taken to have waived any right he or she would otherwise have not to be dealt with in the requesting State for an offence committed before his or her extradition. This is known as speciality protection. This leads in practice to very few people consenting to extradition, even where they may otherwise have no objections. Removing this waiver will enable those who wish to be extradited speedily to be surrendered quickly without risking being tried for any other alleged offences. This change will apply to both Parts 1 and 2 of the 2003 Act. We believe this will increase the number of people who consent to extradition at their initial hearing, reducing the costs associated with onward legal challenge.

Hostage-taking (new clause Hostage-taking considerations)

Section 16 of the 2003 Act provides that a person's extradition is barred if the category 1 territory requesting extradition is a party to the 1979 International Convention against the Taking of Hostages and certain conditions apply . There is no equivalent ground for refusal in the Framework Decision and accordingly this new clause repeals section 16 to ensure consistency with the Framework Decision.

Deferral of Extradition proceedings (new clause Judge informed after extradition hearing or order that person charged with offence or serving sentence in United Kingdom and amendments to Schedule 7 (amending sections 11, 35, 36, 117 and 118 of the 2003 Act))

Consultation with the Crown Prosecution Service has identified an issue concerning cases where a person’s extradition has been ordered, but a domestic criminal matter then arises or comes to light before surrender takes place (e.g. the person commits a crime while on bail awaiting surrender or is charged with a crime that had been committed earlier but the individual’s involvement had not previously come to light). Normally, domestic criminal proceedings take precedence over extradition.  Under the 2003 Act, the judge must adjourn extradition proceedings where he or she is notified at the initial hearing or at any time during the main extradition hearing that the person is charged with an offence in the UK. However, there is at present nothing in the Act that allows surrender to be postponed because a person has been charged with an offence after the end of the extradition hearing.  In order to enable a domestic hearing to take place an extradition request would need to be issued by the UK after the person’s surrender so that the person could be returned from the country to which he or she had just been extradited. This new clause would require surrender to be deferred in these cases.

Criminal Procedure Rules (new clause Criminal Procedure Rules to apply to extradition proceedings etc)

At present, extradition proceedings in the magistrates’ court are governed by the Criminal Procedure Rules, whereas extradition proceedings on appeal in the High Court are governed by the Civil Procedure Rules.   In the interests of consistency, this new clause provides for the Criminal Procedure Rules to apply also in the High Court.

The amendments to clause 140 make consequential amendments to the extent provisions. As with the 2003 Act, these provisions, with one exception, will apply throughout the UK. The exception relates to new clause Criminal Procedure Rules to apply to extradition proceedings etc which will extend to England and Wales only reflecting the jurisdiction of the High Court.

Examination and seizure of invalid travel documents (new clause and new Schedule Powers to seize invalid passports etc and amendment to clause 140)

The criteria for exercising the Royal Prerogative power to refuse or withhold passport facilities on public interest grounds was updated in a Written Ministerial Statement on 25 April 2013.  The Royal Prerogative is an important tool in disrupting the travel of individuals who seek, for example, to engage in fighting, extremist activity or terrorist training outside the United Kingdom, and then return to the UK with enhanced capabilities.   At present, there is no statutory power to examine cancelled passports for the purpose of seizing them.  Therefore, in order to enhance the impact of the Prerogative power to disrupt activity that is not in the public interest, this new Schedule confers a statutory power on immigration, customs and police officers at ports to examine and seize cancelled passports and any other invalid travel documents which should not be in the individual’s possession.  The new Schedule also confers a similar power on the police to examine and seize cancelled passports and other invalid travel documents in country as there may not always be specific intelligence as to when and from which port a person with an invalid travel document intends to travel. 

I am copying this letter to all members of the Public Bill Committee, to Baroness Smith of Basildon, Keith Vaz (Chair, Home Affairs Select Committee), Dr Hywel Francis (Chair, Joint Committee on Human Rights) and Baroness Hamwee. I am also placing a copy in the Library of both Houses.

July 2013

Rt Hon Damian Green MP