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Official Report of the Grand Committee on the

Extradition Bill

Thursday, 26th June 2003.

(Fifth Day)

The Committee met at a quarter before four of the clock.

[The Principal Deputy Chairman of Committees (Lord Grenfell) in the Chair.]

The Principal Deputy Chairman of Committees (Lord Grenfell): Before we start on our business, I remind the Committee that, if a Division is called in the Chamber, we shall have a short suspension, lasting 10 minutes from the time when the bells are rung, before we resume our business.

Clause 17 [Speciality]:

Baroness Anelay of St Johns moved Amendment No. 74:

    Page 9, line 7, leave out paragraphs (d) and (e).

The noble Baroness said: Amendment No. 74, which stands in my name, is also supported by the noble Lords, Lord Goodhart and Lord Clinton-Davis. It may be for the convenience of the Committee if I remind it at this stage that, when Amendment No. 76 is called, in the fourth group, I will not move it. That was agreed in order to save some time. The leader of the Bill team was able to furnish me with satisfactory information, which means that I need not move that amendment.

Amendment No. 74 probes the Government on the detail in Clause 17, which deals with the complex issue of speciality. Speciality prohibits a person from being prosecuted after his extradition for an offence committed before his extradition. Clause 17 enforces that bar, except in situations in which there are speciality provisions as set out in subsection (3), or where subsection (4) is satisfied.

It is the list of offences in subsection (3) that worries me. Paragraphs (d) and (e) read as follows:

    "(d) an offence which is not punishable with imprisonment or another form of detention;

    (e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal".

Both paragraphs seem to aim at offences that attract financial penalties. My attention was drawn to the potential problem posed by those paragraphs by a briefing from the Law Society, for which I am grateful. The point is that offences that fall within subsection (3) can be charged without the protections contained in the extradition procedures. For example, there is no mechanism or protection to guard against prosecution of those further offences on the extraneous considerations set out in Clause 13.

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The community or financial penalty may be extremely burdensome. Indeed, their imposition may be the primary objective of the requesting state and the procedure could thus be open to abuse, especially with regard to the freezing of assets and financial penalties. We are told that that is increasingly likely given the growing emphasis on civil remedies. Such unassociated proceedings may last a considerable time, causing prolonged disruption to the suspect's life and career. It is wrong in principle to allow procedures and proceedings in by the back door, rather than be honest about them and have them addressed as offences that might give rise to a warrant for arrest.

In addition, there is no provision or safeguard to ensure that there is no risk of detention or imprisonment for non-payment of financial penalties. While I was considering how the list of offences under subsection (3) might have come into being, I looked at the framework decision. Paragraphs (d) and (e) appear similar in format to Article 27.3(b), (c) and (d). The last of those is particularly significant: speciality is waived,

    "when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty".

I find it curious that the framework decision should draw attention to the possibility that a financial penalty might give rise to a restriction of personal liberty, yet it allows speciality to be waived in such circumstances.

It seems to be an odd situation, and the amendment has been tabled to probe the Government on their intent. I beg to move.

Lord Goodhart: I start by welcoming the noble Baroness, Lady Scotland of Asthal, to the hot seat in this matter in place of the noble Lord, Lord Filkin. May she enjoy it.

As the noble Baroness, Lady Anelay of St Johns, said, my name is also on the amendment. I am concerned about the possible abuse of financial penalties to impose what can be serious consequences on people who have been deported to a country. It is not a wholly imaginary or theoretical possibility. Although by no means on all fours, there have been examples of cases in which authoritarian governments—I have in mind Singapore and Malaysia—have found it too difficult to prosecute awkward political opponents and send them to gaol, so they have sought to knock them out of politics by bringing claims for enormous damages for defamation against them. The consequence has been to make the defendants bankrupt.

It is possible that a government who were determined to do something of that kind might choose, rather than using civil actions, to bring people back for a trial in their jurisdiction and try to impose on them a financial penalty that might make them bankrupt. With that in mind, I would prefer to see a more tightly

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drawn exemption from the speciality rule that would exclude cases in which there were potentially large fines, even if there was no liability to imprisonment.

Lord Bassam of Brighton: I too welcome my noble friend Lady Scotland of Asthal to the Committee. I am sure that her arrival will enliven proceedings and speed us along. We certainly need to make some progress. I have drawn the short straw and must respond to the amendment. I am grateful to the noble Baroness, Lady Anelay of St Johns, for tabling it. It will help us to explain how we see the system operating.

The amendment refers to the area of speciality, as the noble Baroness said. It is important to understand how we see it working. A person's extradition to a Part 1 country is barred by reason of speciality if there are no arrangements for that provision within that country. That is the first point to remember. Speciality provides that an individual cannot be proceeded against once surrendered for offences committed prior to surrender, for which they were not extradited, unless the consent of the requested state is obtained or the person has had the opportunity to leave the country to which they were extradited.

The rule, however, is not absolute, as has been explained this afternoon. The Bill provides that a person extradited from the UK can also be prosecuted, without our consent, for additional offences that do not attract a custodial sentence. Those are, by definition, the most minor of crimes. On a practical level, if we extradite Mr X—or Ms X—to France for bank robbery and it is discovered after his return that he has outstanding parking tickets or fines, the French will be allowed to prosecute him in respect of those. We see no objection to that. I hope that it is common ground between all of us that it is desirable that as many crimes as possible are cleared up and the perpetrator brought to justice. That principle must apply to all crimes, even minor ones.

I accept that, in the grand scheme of things, that, as in the example I gave, a few outstanding parking tickets or fines may not be of the highest importance, but I hope that the Committee will agree that it is more desirable that those offences should be dealt with than that they should not be.

We have a choice. We can leave the Bill as it is—allowing the French authorities to prosecute the person for his parking or other minor misdemeanours in the knowledge that, under the terms of the Bill, those offences cannot result in any loss of liberty for the person concerned—or we could make the amendment. We would then present the French authorities with a choice. They could decide not to pursue the minor offences, even though they knew who was responsible—that goes against the fundamental principles of justice—or they could seek the United Kingdom's consent to prosecute the person for the additional minor offences. That raises questions of proportionality.

The procedures for dealing with post-extradition requests are set out in detail in Clauses 53 and 54. In particular, there must be a full hearing before a district

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judge, with both parties represented. The judge must consider whether each of the bars to extradition applies. Is that what we want for dealing with minor offences such as parking tickets? I cannot believe that that is what we want to do or that the Committee would deem that to be appropriate in the circumstances.

I repeat that we are talking mostly about genuinely minor offences that do not and cannot attract any form of custodial penalty. Given that the liberty of the person who has been extradited is not at stake, we see no reason why we should not allow for prosecution for such offences without the full rigmarole of a consent hearing. We are allowing for further prosecution only for minor offences. The country concerned must still follow due judicial processes in order to convict the person.

I can see that some noble Lords might have some difficulty with this, but we must take a proportionate view of the issue. The cases concerned will be of a minor and generally inconsequential nature. The arrangements will help to clear up crimes that we would wish to see cleared up, even though they are of a minor nature. I hope that, having probed the issue, the noble Baroness will feel able to withdraw the amendment.

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