Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Lamont of Lerwick: My Lords, I am grateful to the noble Lord for giving way. He has outlined why all these provisions are important and he has outlined much of the history behind the European arrest warrant. Will he confirm that it is open to this House to amend the provisions of the Bill and that it is not merely a fait accompli, however convenient it would be for the Government? Will he confirm that it is open to this House to amend the provisions of the arrest warrant?

Lord Filkin: My Lords, the constitutional position is clear. On framework agreements to which the Government have been a party and have signed with other member states, there is an expectation that member states will put them into effective law in their own countries. However, as I am sure the noble Lord, Lord Lamont, knows, the position is that Parliament is sovereign and Parliament can do what it wishes in this respect. Clearly, if there were to be a discontinuity between our treaty obligations and our own law, that is another issue that goes further. But Parliament is sovereign.

Finally, Part 5 contains miscellaneous and general provisions. I do not believe that I need say more, although I have no doubt your Lordships will find much of interest when we reach the Committee stage.

That is a brief summary of what the Bill contains and, I hope, a brief explanation of the significant advantages it brings. Extradition is a classic balancing act. The rights and protections of those who are the subject of extradition requests must be set against the needs of society and of victims of crime to see justice done and done swiftly and effectively. Our present extradition system clearly fails to achieve that balance. In no other area of criminal law would we be prepared to tolerate a situation in which a person can frustrate the judicial process by repeatedly raising the same, often spurious, point. The six years' delay before a person comes to trial in a domestic case would be seen as outrageous. It is equally unacceptable in an extradition case.

I believe that the Bill represents a sensible way forward. It safeguards the rights of those who are subject to extradition requests while ensuring that such requests are dealt with using simplified and streamlined procedures. It will ensure that the victims of crime have a chance of seeing justice done swiftly. And far from having been foisted on us by the European Union, it is an important step towards our mutual recognition agenda, of which the UK has been one of the leading advocates. In a world where travel and movement are so cheap and easy, especially within the EU, we have to recognise that crime, particularly organised crime, is much more trans-national and we need the mechanisms to cope with that if we are to be serious about combating crime in our country and society.

1 May 2003 : Column 859

The Government would be opposed to full-scale harmonisation of criminal justice systems across Europe as, I suspect, would most of your Lordships. That being so, the only option is mutual recognition. The Bill will modernise our extradition arrangements, large parts of which date from 1870. It will ensure that we can extradite people within a reasonable time-scale while still ensuring that those people have a right to a hearing and an appeal before the UK judiciary. This is a necessary and worthwhile measure. It will bring quicker justice and is an effective measure in the fight against serious and organised crime. I therefore have great pleasure in commending the Bill to your Lordships.

Moved, That the Bill be now read a second time.—(Lord Filkin.)

3.50 p.m.

Baroness Anelay of St Johns: My Lords, it is clear that we should improve our extradition procedures. We should not allow people to raise the same spurious points time and again, simply as a means of delaying the process of extradition for serious offences. So the Government are right to put reform of extradition law on the agenda, but their plan for a two-tier system is wrong.

Part 2 of the Bill is a practical and sensible way forward but Part 1 makes inroads into the civil liberties of British citizens that are both unacceptable and unnecessary. It goes too far by eroding the principle of dual criminality and removing the backstop power of the executive to make the final decision. We support measures to improve co-operation with other countries to fight crime—we always have—but we oppose the Government's proposals to harmonise our judicial processes with those of other EU states.

I was intrigued, as were other noble Lords, to receive from the noble Lord, Lord Filkin, this week a letter purporting to set out the myths and facts on the Bill. I look forward to putting to the test his assertions when we reach Committee. He states, for example, that mutual recognition of criminal justice systems within the EU is the only alternative to a harmonised criminal justice system.

The problem is that in the hands of this Government, their version of mutual recognition is not the alternative to the introduction of corpus juris. It is its friend and facilitator; that will not do. So, we shall vigorously oppose new Part 1 powers to arrest and deport British citizens for activities that are not crimes here. We shall oppose measures that compromise the presumption of innocence or undermine our right to challenge the basis on which we are arrested. The right way forward is simple—we should remove Part 1 from the Bill.

We believe that the Government should apply the Part 2 procedures to all applications for extradition. If Part 2 is applied effectively and thoroughly and is good enough for the rest of the world, including our Commonwealth colleagues, why is it so repugnant to the EU? I listened carefully to the case made—as always, persuasively and clearly by the Minister today but I am afraid that he has not persuaded me—with

1 May 2003 : Column 860

regard to the need for the European arrest warrant above all other procedures. Listening to his mathematics of saying three months from France and six months from other countries it appears that he was arguing—we shall have a chance to examine it later—that we are sacrificing our civil liberties for the case for three-months extradition. We believe that we simply do not need the European arrest warrant and its hidden agenda of the framework list. Even the list is hidden from the face of the Bill at present.

I note that the report of the Select Committee on the Constitution recommends that the list should be included on the face of the Bill in a schedule. What is the Government's response to that? If the Government are determined to force through the arrest warrant, we believe it should be at least confined to terrorist offences only. We shall listen to the argument that the unique threat of terrorism alone could justify the extreme measures in Part 1.

If the Government are determined, as they seem to be, to turn their face against our proposals for Part 1, they should at least accept amendments we shall table which will ensure that Part 1 does what the Government claim it should do—no more and no less. As currently drafted the Bill does not deliver the safeguards the Government claim. Myth or fact, the Government still have some myths of their own.

First, as the Minister said today, the Government claim that extradition will be permissible only for the prosecution and not for the investigation of a person. But that is not what Clause 2 achieves despite the Government's best attempts at some amendments in another place. That is simply because of the way in which the inquisitorial system works within the EU.

The noble and learned Lord, Lord Scott of Foscote, explained the problem behind all this in our debate on the European arrest warrant last April when he said,

    "under continental procedures, the dividing line between investigation of a crime and the point at which there is enough material for a prosecution is not always easy to draw. The investigation will be under the control of an investigating magistrate—a judicial figure. It is presumably he who authorised the . . . warrant. That seems to me a risk that the extradition of a suspected offender will be sought in order that the investigating magistrate may complete his investigation by interrogating, or authorising the interrogation of, the suspect, rather than for the purpose of a prosecution in respect of which he already has sufficient material to start".—[Official Report, 23/4/02; col. 210.]

Secondly, the Home Office website says that a person who has been convicted in his absence is guaranteed a full retrial. At present he is not. There is no guarantee that, once returned, the person will have a full retrial, not just a review, with all that we would expect that to entail—the full rights of defence and legal representation.

Thirdly, as the Minister stated, there should be safeguards against our being prosecuted as a result of our race, religion or political views. It is a case of do we or do we not have that safeguard. We are left in limbo. What does a judge do when faced with the need to decide whether a person who is accused of a xenophobic offence should or should not be extradited when the

1 May 2003 : Column 861

very nature of that xenophobic offence is rooted in that person's political opinions? How does the judge decide whether a person can have the protection of Clause 13(a) or should be exposed to extradition under Clause 63(2)? Which part of the Bill is paramount?

To make matters even worse, the Bill gives the Government the power to extend Part 1 procedures by "mission creep" to other countries that are currently in the Part 2 category. Part 1 could become the norm. How? Part 1 and the European arrest warrant apply initially to requests from other EU member states and Gibraltar but that could be extended to other countries by Order in Council subject only to negative procedure. That is not, we believe, sufficient parliamentary accountability.

Indeed, to make matters worse, countries can slither from one part of the Bill to another at the requirement of the Government by the same inadequate procedure. And there are no criteria on the face of the Bill stating how a country should be allocated to either Part 1 or Part 2.

The list of offences for which dual criminality has been surrendered can be extended later by agreements within the EU governments. Can the Minister confirm that no parliamentary approval at all would need to be sought for that? To cap it all, there are provisions that would permit the Government to remove from certain countries in Part 2 the prima facie requirement that does survive there at the moment.

Effectively, we could end up with Part 1 being extended little by little to other countries. I would hope and expect that the Minister will say that that is not at all their intention. If so, I welcome it and say let him prove that by supporting our amendments when we table them in Committee and beyond. We intend to ensure that there is effective and strong parliamentary scrutiny of any future extension of Part 1 procedures.

Overall, in the past the Government have said in another place and elsewhere, "Don't worry about all this because really there are no major changes of principle at all". Yes, we know that under existing extradition conventions in Europe the prima facie rule has already been surrendered for EU countries' applications. We know that an extradition offence is generally one where the minimum sentence is 12 months rather than the three years stipulated in the framework document. We have seen all that.

So why do we complain now about these safeguards and limitations being surrendered under Part 1? It is because this is a whole new ball game. The extent and effect of the European arrest warrant combined with the loss of dual criminality for a list that includes vague and ill-defined offences such as xenophobia and computer-related crime, combined with the loss of executive authority and unprecedented trust being placed in jurisdictions across Europe and possibly beyond make this a new procedure requiring at the very least very strong safeguards.

1 May 2003 : Column 862

The crux of the matter is indeed how far we have confidence in the judicial process and police systems of other countries which will be party to the reciprocal agreements enshrined in Part 1. Liberty pointed out in its helpful briefing to this House that,

    "the Eurowarrant is based on the presumption that EU countries all have fair and equal systems of justice which should remove the need for any other country to scrutinise the fairness of extradition to such a country. This presumption is seriously open to question".

I agree with it. Are we so confident of the systems of all countries that we can jettison so comprehensively the traditional safeguards? I think not.

As the Bill progresses, we shall take a constructive and determined approach in our amendments. We shall need to hear from the Government what is in the new UK/US and EU/US treaties on extradition and how they will impact on the provisions of this Bill. At present, those provisions are hidden from this House. We hope that the Government make sure that they are revealed.

For a variety of reasons another place scrutinised only 25 per cent of the Bill. Scotland received spectacularly short shrift. With the assistance of my noble friend Lady Carnegy I am sure that we shall do better here. My noble friend regrets that she is unable to participate today but, as one would anticipate, she is in Scotland engaging in the Scottish parliamentary elections. I thank the Minister for setting up a meeting with both my noble friend and myself to discuss the operation of this Bill in Scotland. That is very helpful and I welcome it.

We believe that it is in the interests of the public here and across the EU that we co-operate effectively in judicial and police matters in the fight against crime and terrorism. Criminals do not care about what is right. We do, and so we fight them with the restrictions imposed upon ourselves by our commitment to democracy, freedom and human rights—everything that underpins our civil liberties. We abandon those at our peril. Of course extradition procedures must ensure that criminals are prosecuted but, just as important, is that justice should actually be done.

4.2 p.m.

Lord Goodhart: My Lords, before I start the substance of my speech I should like to say a couple of things. First, I have interests to declare. I am a vice-chairman of the Council of Justice and a trustee of Fair Trials Abroad—both organisations very much involved with the issues being debated today. Secondly, I am pleased to see that the noble Lord, Lord Kingsland, is not only present in the House today but is returning to battle and will be addressing your Lordships later.

The United Kingdom law on extradition is plainly archaic. Although most of it is contained in the Extradition Act 1989, that Act re-enacted large parts of the Extradition Act 1870—more than 130 years ago. Our procedure is complicated and gives far too many opportunities for a determined objector to delay extradition until the cows come home. On the whole, the speed of the criminal process in United Kingdom courts is comparatively good. But extradition is very

1 May 2003 : Column 863

much an exception to that rule. As the Minister said, there have been notorious cases where extradition proceedings have taken some six or seven years before the defendant was sent to trial.

There are surprisingly few cases of extradition. In the years 1999–2001, taken together, the United Kingdom extradited only 139 people—an average of fewer than 50 people a year. That must be many fewer than the number of people in the United Kingdom who have committed extraditable offences elsewhere and it suggests that the difficulty and expense of extradition processes means that there are many people in the United Kingdom who are escaping justice in other countries. And, of course, equally, vice versa. There are many people abroad who are escaping justice in the United Kingdom. For many years, the Spanish costa del crime was notorious as offering sanctuary to United Kingdom criminals, although the situation has improved notably in recent years.

Part 1 of the Bill implements the European arrest warrant. Unlike the Conservatives, we on these Benches support and welcome the European arrest warrant in principle. It greatly simplifies procedure. It eliminates the involvement of the Minister in decision taking and the consequent opportunities for delay. We believe that that is all to the good. We also welcome the improvements made by the Government to the Bill since its original publication in draft—for example, the tightening up of the rules about extradition to countries which apply the death penalty and the acceptance that the "specialty rule" should continue in force.

But there are issues that still remain and a number of them are important. The first comes at the beginning of the Bill in Clause 1(1). This provides that category 1 territories will be designated by an Order in Council. The difference between category 1 and category 2 is of enormous importance. For example, in category 1 there is no need to show a prima facie case, whereas, in general, in category 2 there will be such a need. As I indicated, in category 1 there is no ministerial involvement; in category 2 there is.

Therefore, we believe that designation of a category 1 state should require an affirmative resolution which ensures that there is formal parliamentary approval for this step and not merely reliance on someone praying against an order if they notice it happening. In deciding to go for the negative procedure, the Government claim to be relying on a precedent in the Extradition Act 1989. That raises a somewhat different issue. In any event, we should not rely on a precedent if it is a bad one. I shall be very surprised if the Select Committee on Delegated Powers and Regulatory Reform does not press for the affirmative resolution procedure in this case.

Which states will be in category 1? The Government say that they intend to designate all EU states as category 1 states. That is understandable and appropriate. The Home Affairs Select Committee of the House of Commons suggested that membership of category 1 should be limited to signatories of the framework decision so that countries which were not

1 May 2003 : Column 864

parties to that decision could not get the benefit of the removal of the dual criminality rule. That is a fair point, although perhaps the Home Affairs Select Committee has gone too far in its solution. We have no objection to Norway and Iceland becoming category 1 countries, as has been specifically suggested. We can imagine a number of other countries which could appropriately be included in category 1, although not, I have to say emphatically, the United States of America.

The way of dealing with the point made by the Home Affairs Select Committee may be to provide that the present rule on dual criminality should continue to apply to all countries in category 1, except those which are signatories to the framework decision. I think that it is at least possible that we should also impose some statutory restriction on the right to become a category 1 state. An appropriate test would be the acceptance of some form of oversight on human rights issues by an international tribunal. This would include acceptance of the jurisdiction of the European Court of Human Rights and for non-European countries the ratification of the optional protocol of the International Covenant on Civil and Political Rights which gives individuals the right to refer complaints to the international covenant's human rights committee.

I turn now to the most controversial element in the Bill—the removal of the dual criminality requirement for offences on the European framework list. The importance of this issue has been exaggerated. I fully accept that people ought to comply with the laws of the country in which they are at any given time, even if they are not residents or citizens of that country. I also believe that in the case of an offence carrying a penalty of at least three years imprisonment in another member state, it is nearly certain that there will be a corresponding offence in the United Kingdom.

I recognise that the abolition of the need to identify a specific United Kingdom offence to match the offence in the requesting state will simplify matters procedurally, but I have concerns. First, the gold-plating of the requirement of the framework decision by extending the removal of dual criminality down to offences carrying only a one-year maximum penalty increases the possibility of extradition for offences which genuinely do not match United Kingdom offences. I believe that it creates a real possibility that an offence might be committed without the knowledge that an offence was being committed. Of course, even in cases of offences of this kind, the great majority of extradition offences will be clearly matched by a UK offence and there will be no problem about extradition. I believe that we should limit the removal of the dual criminality rule to cases in which we are actually required to do so by the framework decision.

The next concern on this issue is the lack of parliamentary control over additions to the European framework list. I believe there plainly should be such control, perhaps by putting the list in a schedule and then requiring a change to the list to be made by Order in Council under the affirmative procedure.

1 May 2003 : Column 865

Finally, on this issue, there is the inclusion of racism and xenophobia on the list. I see no reason why serious racism offences should not be on the list. Incitement to racial hatred, as the Minister mentioned, is an offence in the United Kingdom, and a serious offence. Protection is given by Clause 21: anyone charged with an offence that is, for example, incompatible with freedom of expression under Article 10 of the European convention would be protected from extradition. But I feel still a residual problem with the vagueness of the expression "racism and xenophobia". I understand that a framework decision on racism and xenophobia is under negotiation within the European Union. I accept that it is the definition in the requesting state which matters, but the framework decision will create a benchmark against which national definitions can be tested. I believe that it would be best if racism and xenophobia were not treated as part of the European framework list until the framework decision on that subject has been adopted.

I turn to an issue which I believe to be far more serious than anything to do with the European framework list—the defects in criminal procedure in some European Union states. Some of the criticism on this ground goes too far. I am greatly surprised by the number of articles about the European arrest warrant which repeat the old fantasy about defendants in European criminal trials being presumed guilty until proved innocent. That is complete nonsense. Article 6.2 of the European convention says—and this recognises and repeats what is general law throughout the European Union—that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

However, Article 6.3 of the convention contains important provisions which are not always observed. These are the right of a defendant to free legal assistance when the interests of justice so require and the right to have the free assistance of an interpreter if the defendant cannot understand or speak the language used in court. The experience in particular of Fair Trials Abroad shows serious problems in some countries in getting assistance from competent lawyers and interpreters, even in some of the European Union countries which are already members, such as Greece. This problem will undoubtedly become worse following accession.

This will cause a serious problem. Some people will seek to challenge extradition on human rights grounds based on defects in the criminal process in the requesting state. What evidence will be needed to support that challenge? Will a decision in one case be binding in other cases relating to the same state? I wonder whether it would be desirable, in cases where there are doubts about the availability of legal and interpretation assistance, to give a judge power to require assurances that the defendant to the extradition hearing will be given the necessary assistance comparable to the assurances which are required under Part 2 that the death penalty will not be applied.

1 May 2003 : Column 866

Another problem not limited to extradition cases but including them is discrimination against non-residents for the grant of bail. In some countries, it is far harder for foreigners to get bail than for national residents. Refusal of bail can be the cause of extreme hardship. There is a danger that discrimination in the grant of bail may also be grounds for objection under Clause 21. There is, I believe, a strong need to develop a Eurobail system under which a person granted bail in one country can be rapidly returned to that country if he refuses to go of his own will. That would make it much easier to obtain bail.

Part 2 of the Bill also speeds up proceedings. We welcome the fact that the power of the Home Secretary to exercise discretion is much reduced, with a likely reduction in the opportunities for judicial review. I note that under Clause 106 the decision of the Home Secretary will be subject to appeal to the High Court rather than to judicial review. That is a welcome step. I wonder whether it will be possible to require an appeal to the High Court from the decision of the judge under Clause 101 to be combined with an appeal to the High Court from the Home Secretary's decision under Clause 106 in a single set of proceedings. That could speed up proceedings greatly.

On perhaps a more important point, Clause 83 gives power, once again by Order in Council, to designate some category 2 territories as exempt from the need to present prima facie evidence of a case to answer before extradition can be ordered. That power already exists; it has been used to exempt signatories of the European convention on extradition. That convention is sponsored by the European Council, not the European Union, so its parties include many non-EU states. I believe that a further extension should require proper parliamentary control through an Order in Council, once again approved by both Houses under the affirmative procedure. The exemption from the need to show a prima facie case provides an intermediate case somewhere between category 1 and category 2. I can imagine a number of states where it would be appropriate to exclude the need to show a prima facie case. Once again, those would not include the United States of America, a country where there are 51 different jurisdictions—one federal and 50 state jurisdictions. None is under the control of another and standards are wildly different. I would have no problems with procedure in Massachusetts; I would have enormous problems with procedure in, for example, Texas.

In conclusion, I welcome the Bill in principle. I believe that the European arrest warrant is a useful weapon in bringing cross-border criminals to justice. It is far from being the threat to the English legal system that its enemies portray it as being. But the Bill needs a good deal of improvement. I hope that we shall be able to make those improvements in your Lordships' House.

4.18 p.m.

Lord Donaldson of Lymington: My Lords, I would be very far from suggesting that the present law of extradition does not require major reform, particularly to get rid of delays. But I have some

1 May 2003 : Column 867

experience of getting rid of delays in the judicial context. It can be done by strong judicial management and by putting in requirements, which in my day were called leave and I think are now called permission or something else newfangled. The use of those two instruments will cut down delay immeasurably, but I do not think that the way in which the Bill seeks to do it is right. I agree that a lot of the claims of eroding the rights of the British public may be overblown, but they are considerable, and this is a very serious Bill from that point of view.

Faced with an extradition request under Part 1 of the Bill, the courts are concerned solely with form and not with substance. If the warrant looks all right, the "extraditee" might just as well pack his bags and get on with it. I am reminded of the apocryphal story of the accused in a British court, who had the perfect alibi; namely, that he was the guest of Her Majesty in a prison at the time when the offence was alleged to have been committed by him. He refused to take that point, because he thought that it might prejudice the jury against him. That does not arise in this form in the Bill, but the fact is that if someone was in that position, he could tell the judge about it till he was blue in the face, and the judge would not be prejudiced against him—the judge would simply say, "Tell that to the Greek judge". I do not regard that as satisfactory.

It is unfortunate that the Bill comes before the House on this particular day, as I am sure that many of your Lordships are out on other activities. I do not mean the sort of activity that is causing a Metropolitan Police helicopter to hover overhead, but the activity of encouraging a reluctant and uninterested public to take part in local government elections. It is doubly unfortunate in that the pearls of wisdom that fall from the lips of other speakers here today will go entirely unnoticed, as everyone does their sums in tomorrow's newspapers about the number of seats that have been won and lost.

I found the Explanatory Notes provided by the Home Office immensely helpful. Nothing in the Bill told me what was an extradition offence and, not being as steeped in matters European as no doubt I should be, I simply did not know. However, the Explanatory Notes helpfully drew my attention to what Clause 65 refers to.

Attention has already been drawn to the problems of racism, xenophobia and swindling. I accept the point made by the Minister that these are categories rather than specific offences, but they are very wide categories.

I find it slightly regrettable that paragraphs 6 to 11 of the Explanatory Notes seem to be promotional material. When I wrote Explanatory Notes for a Private Member's Bill, I hit against the fact that paragraph 6.21 of the Companion told me that I could not use the Explanatory Notes to promote my Bill, although I thought that its merits justified promotion. Well, I would, would I not? However, the Home Office should have complied with the rules if I have understood them correctly.

1 May 2003 : Column 868

The Bill consists of three major parts: extradition from the UK to a category 1 country; extradition from the UK to a category 2 country; and extradition to the UK. I gather from the Explanatory Notes that there is enthusiastic support for this Bill from,

    "the Crown Prosecution Service . . . Metropolitan Police, Foreign and Commonwealth Office",

the Bow Street court—although I am not sure how a court could have an opinion—and others, whoever they may be. I am not surprised. I am sure that people from those bodies all read Part 3, relating to extradition to the United Kingdom. I shall say nothing about that aspect of the Bill, as I want to put the spotlight on category 1.

The first that Joe Citizen knows that he is to be arrested on a foreign warrant is when the constable taps him on the shoulder and says, "I have a warrant here, please come with me". The constable knows nothing about the warrant, either. It is true that he has to give it to the accused, if he has it—but I would query to what extent it informs the citizen, who knows only that someone has arrived in his home, interrupted his television programme and told him that he must start forthwith on a journey to the toe of Italy, or wherever.

The citizen then appears before a judge. The question that the judge has to decide in the first instance is whether the arrested man is the person named in the warrant. However, that is not really what matters. What matters is whether the arrested man is the person who actually committed the offence, or even who is alleged to have committed the offence. The country seeking the extradition knows only the identity that was acquired from the evidence.

The easiest way of explaining the situation is to draw attention to the South African case, in which the identity of a British subject was stolen and used by a criminal in the course of committing his offence. It is true that the warrant did not come to this country. However, the warrant issued by the United States authorities to the South African authorities called for the arrest of Mr X, and it was a Mr X that the United States authorities wanted arrested. That was the man who was arrested by the South African authorities.

There would be no opportunity under the category 1 system for him to say, "I have never been to this country, or wherever the offence was alleged to have been committed. Clearly, my identity has been stolen". The judge then has to decide a crucial and fundamental question on the balance of probabilities. Is that good enough? Surely, although it is not the right question, the judge should at least be sure of the answer to the wrong question. The right question is, "Was the accused the person who is truly alleged to have committed the crime?" not "Was he the person named in the warrant?"

The consequences of an arrest warrant are far too serious to be dealt with on a civil basis. The citizen is taken abroad even if he can prove a complete alibi. He does not have the cost of the journey out, but he will have the cost of the journey back whether he is convicted or not. If he is granted bail, he will have the double cost of returning here and then going back to the country concerned.

1 May 2003 : Column 869

Mention has already been made of the problems of language, of being faced with a strange system of law, of getting adequate legal advice and assistance and so on, but I shall focus on the question of bail. If I may be anecdotal for a moment, I ran into a problem over bail in the context of the difference between English and Scottish law. A Scottish trawler put into Grimsby and, when the sailors had celebrated their arrival unduly, they proceeded to cause a great deal of damage in that town. They were all, very properly, arrested and told that they could have bail in the sum of 500 each, or whatever. That was perfectly all right, given that under English law it is unnecessary to produce the money. However, under Scottish law it was necessary, and real family hardship was caused as the families tore madly round trying to raise what were to them enormous sums. Happily, the matter came to the High Court, and it was easily resolved by the High Court saying that there should be no monetary bail.

The point of that story is that one can have those problems. In other countries where one does have to produce the money, there could be considerable problems in raising it and transferring it to that country. If the Greek plane-spotters' case is any criterion, there are even greater difficulties in getting it back afterwards.

The further stages seem to follow what I would describe as a flow chart or board game. The judge is at each stage faced with a very limited question that has to be answered "Yes" or "No". Usually the answer is "No", and then the next question comes. It is only in the rare cases when the answer is "Yes" that the accused is discharged. That method of drafting confines the judge to a narrow question. He cannot look at the issue in the round. There are some bars to extradition which allow him to exercise his mind. The only discretionary elements under Clause 11 are "passage of time", where the issue is too stale to be properly tried, and "extraneous considerations"; in other words, where the country seeking extradition is cheating.

Clause 20 relates to conviction in absentia. I have no particular objection to it. It merely illustrates that there is a case where the judge can exercise some discretion, just as he can in the case of physical and mental states objections in Clause 25.

Clause 21 relates to the Human Rights Act. I believe that each extradition request will be fought out under that clause. A very real question will arise if an accused person chooses to say: "I am sure that all the paperwork is right and I do not doubt that I am the person in the warrant. I obviously cannot say anything about the way in which my case will be handled, because it has not been handled at all, but it is well known that the courts of Ruritania do this, that and the other". A mass of evidence will be put before the court that is designed to deal not with a particular case but with the generality of justice systems abroad. That is not a sensible approach, although I frankly admit that I do not quite know how one would get around it. If there were other, lesser objections to the system, it might be possible to do so.

1 May 2003 : Column 870

Turning to the question of appeals, I was heartened to see in the Explanatory Notes that the judge would have all the powers of a magistrates' court. The notes added that that meant that he would be able to adjourn the case on any day—I should jolly well hope so. He would not need any extra powers to do that. I looked a little more carefully at what that meant. It does not mean that the judge has the extended jurisdiction of a magistrates' court, which could always dismiss a case straightaway. Oh no, he cannot do that. It relates only to the very narrow issues with which he is concerned.

I agree that dual criminality is a problem. If there is no dual criminality, the situation becomes vague. A situation could arise where everybody in this country agreed that there is no turpitude or culpability involved, irrespective of whether there is a criminal offence. There is also the problem of people not realising what they are doing. I assume that if I were to say in France what I have said so often here—namely, that the French regard international obligations as something to be taken à la carte—I might risk falling foul of French law; I do not know.

I draw attention to one minor injustice, although I do not wish to divide the House on it. It is that, under Clause 58(4) in Part 1 and Clause 130(4) in Part 2, if one is an extraditee who is serving a sentence of imprisonment in the United Kingdom and who is extradited and eventually returns here—perhaps after having been acquitted—that person's absence would not count towards serving his sentence in this country. That is monstrous. He did not ask to be extradited; he would no doubt have resisted it. Why should imprisonment abroad not be counted in any way?

I return to my original point. I am not asking for the inclusion in the Bill of a prima facie case provision but I am asking—without any confidence—that the Bill be altered in some way to enable the accused to provide proof in this regard, so that the judge is sure that the person did not commit the offence.

4.34 p.m.

Lord Clinton-Davis: My Lords, it is a great privilege to follow the noble and learned Lord, Lord Donaldson. He made some fundamental points which we can consider at a later stage rather than now. I hope that he will not go to France because I do not want to visit him in a prison there.

I am delighted, as was the noble Lord, Lord Goodhart, to see the noble Lord, Lord Kingsland, here today and to note that he will speak in this debate. The noble Lord served in the European Parliament during the time that I was a commissioner. We have always had a very good relationship. Long may that survive.

As the Minister pointed out in his initial remarks, the important thing about the Bill is that we should get it right. It should not be a party matter because extradition is far too important for that.

My regret about the comments of the noble Baroness, Lady Anelay, on Part 1 is that, much as I admire her, I do not believe that she put anything in its

1 May 2003 : Column 871

place. There cannot be a vacuum in this regard. What does she suggest should be applied so far as concerns Part 1?

Next Section Back to Table of Contents Lords Hansard Home Page