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Baroness Anelay of St Johns: I am grateful to the Minister for giving way. I must not have completed the picture. The problem is that in some circumstances, the fraud perpetrated is that the credit card is used beyond the limit—for example, if it is used several times during the day. As the Minister will be aware, at present there is not the same protection in this country as there is in the rest of Europe, so someone—not the Minister, I am sure—could, although he had not used the card, be accused of and summonsed for fraud.
Lord Filkin: I am grateful to the noble Baroness for her clarification, but in the circumstances that she describes, if my credit card had been stolen and used on several occasions that exceeded the frequency or total credit limit, that would be for transactions not made by me or with my consent and would therefore be a fraud against me. If I checked my credit card details regularly, I would identify those transactions
and draw them to the attention of my bank to say, "My credit card has been used fraudulently". So in those circumstances, I would initiate the action.If I had not noticed and my bank raised it with me, I would say, "Hang on, I see that my card has been used four times for sums of £3,000 a time. I was not in that town". My experience—and that of most people, I think—is that credit card companies are aware of the level of fraud in such circumstances and pursue it vigorously. They usually put a stop on the account while they pursue it.
So I respect the issue raised by the noble Baroness of the frequency of such events, but they do not seem to me likely to be the stuff of Part 1 extradition warrants.
Viscount Bledisloe: I am grateful both to those Members of the Committee who spoke in favour of the amendment and the Minister for his careful answer. First, on paragraph (b), with which he dealt first, with respect, his answer does not deal with the point.
Let us say that the warrant is addressed to Mr Andrew Smith of 4 Railway Cuttings. The person in the dock is asked: "Are you Mr Andrew Smith of 4 Railway Cuttings?" He says, "Yes". He is then asked: "Are you the only Mr Andrew Smith of 4 Railway Cuttings? Then you are the person named in the warrant". But the person in the dock—this happened in a major trial that was all over the German newspapers with photographs of the accused being taken to court every day—said, "But that was my father. He used to be Mr Andrew Smith of 4 Railway Cuttings, but he fled to Panama in the middle of the trial. He has been there ever since and it is he who was convicted, not me". So he was the person named in the warrant but not the person who had been convicted.
Turning to paragraph (a), which is, as I said, probably more important, the Minister recognised that in unusual cases such as I suggested, it was unfair on people that they were being taken back to be tried, but said that that unfairness paled into insignificance compared to the inconvenience of the risk that numerous fugitives would use that defence as a method to delay extradition, although they could not in the end satisfy the conditions within it. I fully accept that that is a problem, and that many extraditees will use any weapon to hand to try to postpone the evil day.
But it is surely not beyond the bounds of the ingenuity of the serried ranks behind the Minister to devise words that exclude such cases, except where the matter is really beyond doubt. The burden of proof may be placed high; there could be a requirement that before anyone could submit such a case, he had to submit to the judge a statement of the grounds on which he was patently innocent; and the judge could say, "Even if you established all that, that is not enough". Surely that should debar the relatively rare case when, as I suggested, it is absolutely plain on the evidence that that evidence could not possibly be contradicted.
I cannot conceive how any evidence given by the issuing country could convince someone that the noble and learned Lord, Lord Irvine of Lairg, was not sitting
on the Woolsack on a day on which 500 people had seen him there. My example of the crippled and disabled person is similar. I ask the Minister to take the matter away and consider whether there is a way to deal with such a case, but, for the moment, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 65:
- Page 7, line 13, at end insert—
The noble Baroness said: I shall speak also to Amendment No. 77. The amendment deals with the matter of territorial bar. I am of course aware that in response to the previous amendment moved by the noble Viscount, Lord Bledisloe, the Minister pointed out that if a bar exists, fugitives will seek to use it. So I make plain from the start that I am trying to probe some of the more complex parts of the Bill regarding where and when offences occur in the Part 1 country, and how that interacts with the existence of dual criminality.
I raise those issues as a result of a briefing from Justice. It pointed out that the amendments are designed to implement Article 4.7 of the European arrest warrant. Article 4 is entitled,
I am aware that the Minister has tabled a new amendment to Clause 63—Amendment No. 112—that will address a similar point. However, I should be grateful if the Minister would respond to this amendment, because there must be some protection in the Bill to ensure that requests for extradition can be deflected on territorial grounds. I beg to move.
Lord Filkin: The two limbs of the optional bar in Article 4.7, to which the noble Baroness spoke and
A quick example may show how. If a major drugs trafficker—without exciting the noble Lord, Lord Lamont, major drugs trafficking certainly constitutes a significant part of extradition cases—had committed serious crimes in Denmark, but a small part of his offences in the UK, under this new bar, his extradition would be barred, despite the fact that it would be much more sensible in terms of justice for him to be extradited to the place where the majority of his crime took place, where the majority of his victims were and where, probably, the most solid evidence existed to bring him to justice.
What if there was not a strong enough case in the UK to prosecute the person for the small part of the offence in the UK, but there was overwhelming evidence in the requesting state? We would not want to let those potential criminals have a get out of any obligation to face trial for the offences for which they were charged in those circumstances. We do not want to open a loophole for the professional criminal who wilfully commits crimes, knowing that his extradition will be barred if he is canny enough to commit part of it in the UK. That is clearly unacceptable to both the Government and the victims of crime and, I suspect, the Committee.
As the Committee will be aware, the Government have tabled amendments—Amendments Nos. 112 and 126, to which the noble Baroness referred—to strengthen Clauses 63 and 64. Their effect will be that if any part of the conduct that constitutes the offence occurs in the UK, we will be able to extradite only if the dual criminality requirement is satisfied. In other words, to put it at its crudest, if someone denied the holocaust in the UK by whatever means, it would not be possible to extradite that person for that action, even though it might be an offence in Germany.
These amendments will put beyond any shadow of doubt that no one will be extradited for conduct which takes place in the UK which is not contrary to our law. I apologise for labouring the point, but it is a sensitive issue and it is important to put it clearly on the record.
On the other hand, we cannot really see why a serious criminal who happens to have undertaken some of his activities in the UK—activities which we consider to be criminal—should escape extradition. That is reinforced by the point that, as we have discussed in previous Bills—the Crime (International Co-operation) Bill—so much of the serious crime about drugs and so forth is the nature of international crime. Therefore, this is not necessarily a remote or hypothetical example. Nor, I suspect, do the Opposition believe that that is what they will want to happen.
I hope therefore to see that the Government's policy delivers the outcomes that we all surely want; the protection of British citizens as well as the enforcement of justice on a cross-border basis.
The second limb of the new bar proposed by the Opposition relates to extra-territorial jurisdiction and, again, can be found in the framework decision as part of one of the optional bars to extradition. This limb of the amendment would mean that any warrant received by the UK for an offence committed extra-territorially, that is not in the requesting state, could be proceeded with only if the UK also claims extra-territorial jurisdiction over the conduct in question.
This seems more than reasonable and it is why I would ask Members of the Committee to look at Clauses 63 and 64 of the Bill. They contain the definitions of extradition offences for the purposes of Part 1 of the Bill. In each case, subsection (4) is concerned with
In other words, the Bill as drafted already provides that in extra-territorial cases the offence has to be a UK offence and that if any part of the offence has occurred in the UK we can extradite only if we too take extra-territorial jurisdiction.
Under Clause 10(2), the judge at the very beginning of the extradition hearing must decide whether the offence specified in the Part 1 warrant is an extradition offence. If it does not meet the requirements of either Clauses 63 or 64, proceedings must be halted and the person discharged.
We believe that the definition of extradition offences in the Bill, with the amendments that we have tabled, strike the right balance in protecting those who have acted lawfully while in the United Kingdom, while allowing for the extradition of those who have transgressed both our own laws and those of the requesting state.
I have spoken at length, but I hope that the reply was helpful to explain our resistance to the amendments.
"( ) territorial bar."
"Grounds for optional non-execution of the European Arrest Warrant",
and states:
"(the executing judicial authority may refuse to execute the EAW . . . Where the EAW relates to offences which: . . . are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or . . . have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory".
The new clause would effectively bar extradition on territorial grounds if any part of the extradition offence had taken place in the territory of the United Kingdom. That safeguard is optional, as set out in the European arrest warrant, but we should of course welcome the incorporation into the Bill of any part of the arrest warrant which gives added protection. Our amendments would make that a mandatory consideration by the judge in the extradition hearing. It would effectively ensure that extradition could not take place where the individual was to face prosecution for acts carried out in the United Kingdom which do not constitute offences in that part of the United Kingdom.
7 p.m.
"conduct [which] occurs outside the category 1 territory".
In such instances, the conduct will constitute and extradition offence, and therefore be extraditable, only if,
"in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom".
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