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Baroness Scotland of Asthal: One of the advantages of having legal representation for persons in this position is that in the ordinary way the individual would be expected to raise this sensitive issue first with
the legal representative who is bound by confidentiality. It would be through that route that the most likely appropriate authority could be addressed in order to ensure that those matters are dealt with.
Lord Hodgson of Astley Abbotts: That is reassuring. In the past, there have been cases in which people have been taken on by the security services and then left on their own in a way that is unsatisfactory and unhelpful. I further accept that we shall not get clarity into this rather murky area of our national life in a Bill such as this. With the assurances that the Minister has given, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 87B:
- After Clause 24, insert the following new clause—
The noble Lord said: This amendment has been tabled very recently. It is a point which has been raised within the past few days by Justice. Under Article 18 of the framework decision, a judicial authority in the executing state may agree to the temporary transfer of the requested person to the requesting state.
Article 18 seems to be somewhat obscure because, as drafted, Articles 18.1(a) and (b) seem to be alternatives. Either the court agrees to a temporary transfer or it agrees that the requested person should be heard under Article 19. It is clear from Article 18.3 that the hearing on the decision whether to enforce a warrant continues in spite of the temporary transfer. It certainly looks as though sub-paragraphs (a) and (b) are not alternatives but that the hearing continues to operate even if there is a temporary transfer.
The first problem is that the Bill does not deal at all with the issue of temporary transfer. Therefore, to a considerable extent, this is a probing amendment because the purpose is to elucidate the intention of the Government about temporary transfers. It could be
At the same time, it seems that a temporary transfer— except in the very rare case where someone has, for some personal reason, agreed to it—is dangerous. It could lead to people being extradited, in effect, in circumstances where they will be investigated or interrogated. Obviously, I can understand the possible attractions of temporary transfer from the point of view of the Government because they save the cost of keeping people in detention if that is what they have to do. I certainly think that it is undesirable to transfer a person whose extradition is being sought under the European arrest warrant except in the very exceptional case where they consent to it. We believe that that is a restriction which should be on the face of the Bill. I beg to move.
Lord Hodgson of Astley Abbotts: I have added my name to Amendment No. 87B in support of the noble Lord, Lord Goodhart, and I am very happy to do so. He put his finger on the two critical issues here. First, we have no response to the requirements of Articles 18 and 19 in the European arrest warrant built into the Bill. Therefore, we have no way of knowing how this will be dealt with. In order that the noble Lord, Lord Bassam, does not accuse us of being paranoid, I must use my words very carefully.
Article 18(1), read by the noble Lord, Lord Goodhart, states:
There is a big issue here. It is very important that the Government make it clear, either by accepting these types of amendments or by producing their own, how the requirements of Articles 18 and 19 will be dealt with within the legislation as presently drafted.
Baroness Scotland of Asthal: I hope that I am not being too ambitious when I say that I hope I shall satisfy Members of the Committee in relation to this matter. I shall not have the temerity to suggest that in this or in any case the noble Lord, Lord Hodgson, is being paranoid. I think that I can deal with it briefly.
As has been pointed out, Article 18 of the framework decision on the European arrest warrant allows for requesting states to ask for one of two things to happen while the requested state is considering whether it should surrender the person. Clause 18(a) and (b) are alternatives, but in either case the substantive extradition procedure continues. Either the person should be temporarily surrendered or arrangements should be made to take evidence or statements in the requested state.
The first point is that we would expect such requests to be very rare indeed. If our new procedures work swiftly and effectively, as we believe they will, there should be no cause for any such requests to be made to the United Kingdom. However, we clearly cannot rule out the possibility that a request of this kind might be made in an exceptional case which was taking a very long time to complete. If that were to happen, this amendment suggests that we should go for the evidence-taking option rather than temporary surrender.
The Government agree absolutely. However, I can probably go further; legally that is the only possible option. There is nothing in this Bill or any other law on the statute book which would allow for temporary surrender in these circumstances. No judge could make the necessary surrender order, nor would we have the power to remove the person. The Bill contains provisions on temporary extradition but I should like to make it absolutely clear that these relate only to the narrow circumstances where we receive an extradition request. They also provide that such temporary extradition can only take place after a full extradition hearing. They certainly do not allow for temporary surrender of the kind envisaged in Article 18 of the framework decision. I repeat that there is no legislation that does.
Finally, I turn briefly to hearings for the purpose of taking evidence or statements. Our existing legislation on mutual legal assistance, the Criminal Justice (International Co-operation) Act 1990 already contains detailed provisions on how this should be done. We see no need for the Order in Council suggested in the amendment. I hope that Members of the Committee are reassured and that noble Lords will feel content to withdraw the amendment.
Lord Goodhart: I am still slightly puzzled. The noble Baroness suggested that the hearing referred to in Article 19 was one at which the person whose extradition was being claimed could be questioned for the purposes of a trial in the requesting country. I may be wrong, but that is what she appeared to say. Article 14 states:
Having said that, I am certainly encouraged by what the noble Baroness said. My impression is that she is correct to say that, as a framework decision is a kind of treaty, it is not self-active in this country but needs primary legislation to authorise a United Kingdom court to order the temporary return of someone whose extradition hearing had not been completed.
I will consider what the Bill states about the circumstances in which a temporary extradition can be ordered, but unless anything in particular arises—
"SITUATION PENDING DECISION
(1) This section applies if at any time during the extradition hearing, or prior to extradition, the judge is informed that the requesting judicial authority has made a request under Article 18 of the Council Framework Decision on the European arrest warrant and surrender procedures between Member States.
(2) The judge must not agree to the temporary transfer of the requested person.
(3) The judge may arrange for a hearing to be held under Article 19 of the Council Framework Decision on the European arrest warrant and surrender procedures between Member States; and such hearing should be in accordance with procedures prescribed by Order in Council."
"1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must:
(a) either agree that the requested person should be heard according to Article 19;
(b) or agree to the temporary transfer of the requested person.
2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities.
3. In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure".
"Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution".
We are nervous that we are back into fishing expeditions. It is
not about prosecuting someone; it is for the purposes of
conducting a criminal investigation. We are away for
investigation and fishing, not for carrying out the
prosecution of a crime, which is a matter we are trying to
speed up.
6.45 p.m.
"Where the arrested person does not consent to his or her surrender . . . he or she shall be entitled to be heard by the executing judicial authority".
In other words, the person whose extradition is sought is
entitled to be heard to present his or her objections to
extradition. Nothing suggests that the hearing referred to in
Article 19 is different in any way.
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