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Baroness Anelay of St Johns: The amendment that the Minister introduced goes a long way to satisfy our concerns. My only disappointment is that she perpetuated the rather stuff and nonsense accusation put forward in another place that somehow we are keen to see people who have committed crimes abroad skip the country and get away with it. If that were the case, we would not want Part 2 of the Bill. We are trying to obtain a fair and equitable system of ensuring that there is swift extradition where it is right and proper. We are certainly trying to co-operate on that basis.
One issue that I should like to consider over the summer concerns broadsheets such as the Daily Mail and the Daily Express which I have enjoyed reading on holiday in Spain. As Members of the Committee who have read those newspapers when abroad will know, the newsprint is extremely fuzzy as they are printed on site in the Canary Islands, Spain or wherever. They are printed from copy that is partly sent by electronic communication from this country. There is some input from this country but there is also editorial input overseas. I should be grateful if the noble Baroness and her officials would also consider whether or not we are adequately protecting those broadsheets from any action that might be taken against them. I hope that the response would be that the part of the copy that is sent from this country by electronic means would provide that part of any alleged offence had been committed in this country.
The noble Lord, Lord Stoddart, was right to raise the issue of corporate manslaughter. As we know from debates in another place at Third Reading, the Home Secretary said that the Government would be considering corporate manslaughter as an offence, but he would not specifyquite rightlywhen it would come in. I noticed that last week there was a Written Answer in another place with regard to the nature of corporate liability that might be introduced and where the loophole in current law exists. That is an issue which we still have to resolve.
There is one remaining issue to which I shall return when we reach my amendments about the Olympics and sports events in general. It is an issue which equally affects the editors of our newspapers. If, in this country, an editor commits an offence of xenophobiaHolocaust denial is the only one we can think of at the moment; God forbid that they should ever do thatwhat would happen if he went on holiday overseas? Is he subject to arrest in that country? The offence was committed here but, as other Members of the Committee suggested, newspapers were circulated abroad, publisheda word I should perhaps not use because I am asking for troubleabroad and sold abroad. If the editor of the Sun were to go to Germany, for example, having done something it judges to be Holocaust denial, could he be arrested for that offence? Can the Minister answer that?
The Government have given us a great deal to think about to ensure that as we progress through this stage of the Bill and, ultimately, Report, we have closed off any avenues by which people could be, in our view, improperly extradited.
Baroness Scotland of Asthal: Perhaps I should respond to the last matter first because the noble Baroness made the clear distinction between those who commit an offence in another country and those about whom a request is made for extradition. They
Lord Lamont of Lerwick: Perhaps the noble Baroness will give way. Let me take the example of Holocaust denial or xenophobia. If the editor of a newspaper was in a third country and none of the offence was committed in that country but the extraditing countrylet us say France or Germanypresumably one could extradite the person from, let us say, Greece to Germany on the grounds that while the British might say that part of the offence was committed in Britain, Germany was wanting to extradite a Briton from Greece. That presumably is something which cannot be prevented by the amendmentwhich I agree is good and generousthat the noble Baroness is suggesting. That danger would still remain, would it not?
Baroness Scotland of Asthal: One of the issues that would need to be clarified is whether the country concerned takes extra-territorial jurisdiction. I am not sure whether this scenario is correct or not but let us say, for example, that if Germany were to take extra-territorial jurisdiction over Holocaust denial and a person who is guilty of that offence in terms of the German construction of its law goes to Germany, of course that person would be liable to arrest. But, it would depend on what Germany's rules are in relation to extra-territoriality; we cannot determine that in any given country because it depends upon what it does.
Therefore, I do not know the precise answer of the example given by the noble Lord. I would have to know whether Greece accepted extra-territoriality as a basis. I would then have to know whether Germany had extra-territoriality. If neither did, they could not do it. I think that I would need to know the precise details of what the position of each country was before I could assist Members of the Committee in saying whether a person would be extradited in those circumstances. What we can do is have control over what happens in this country, who we extradite and who we refuse to extradite.
Lord Lamont of Lerwick: I have put it very badly. As was previously argued, supposing copies of the Sun had been sold in Germany, Germany would not need to claim extra-territoriality in order to extradite someone from Greece to Germany, would it? I accept that that may be the position now, but, presumably, that could happen.
In relation to that over which we have control, we would not extradite in those circumstances because, in part, the offence will have been committed here and unless the dual-criminality criterion has been satisfied, we would not extradite someone. That is very clear. The way in which another country deals with issues that it deems an offence contrary to its law is outwith that over which I have control. I beg to move.
The noble Lord said: In speaking to Amendment No. 115, I shall speak also to Amendment No. 129. These amendments are of great importance. Indeed, they are the most important amendments that we have yet reached today. Under present law, extradition orders may be made for an offence punishable by at least 12 months imprisonment in the requesting state. That existing rule is repeated for parties to the European framework decision by Article 2.1 of the decision. Article 2.2 excludes dual criminality for offences on the famous list, but only if the maximum sentence is three years or more.
However, under Article 31.2 of the decision, member states can enter into bilateral or group agreements, reducing the three-year threshold for Article 2.2. In exercise of that power, the United Kingdom Government propose to set the threshold for removing the requirement of dual criminality for offences under the list that carry a maximum sentence of not less than 12 months. That is plainly gold-plating. Why are the Government doing that?
The proposal has been criticised by Justice, by Liberty and, perhaps most notably, by the Home Affairs Select Committee in the Commons. The Home Affairs Select Committee stated at paragraph 51 of its first report for the current Session:
The dual criminality rule is not pointless. The original idea was probably because some countries impose harsh and repressive lawsfor example, laws which prohibit freedom of speech or assembly or, perhaps, freedom for trade unions to operate. Plainly, we would not wish to extradite for that, but it should not cause a problem with the European arrest warrant because all member states accept the European Convention of Human Rights and, broadlyalthough not entirelycomply with it.
A secondary reason for the dual-criminality rule is that a stranger to a country may not realise that what is lawful at home may not be lawful abroad. Not only do I accept but I also support the principle that visitors to other countries should observe the laws of that country. It is obvious that strangers are not necessarily familiar with the laws of the country they visit. If they are not familiar, a good working rule is that if something is illegal at home, it is best to assume that it is also illegal abroad. But what if it is not illegal at home? There is undoubtedly a risk that visitors may not realise that what they are doing is illegal abroad.
The problem is that that risk is clearly greater with relatively minor offences where practices may vary a great deal. Something recognised as legitimate in one country, or at most subject to an action for civil damages, may be a criminal offence leading to prison in another. I am told in the briefing by Justice that Article 405 of the Italian criminal code imposes a maximum sentence of 16 months for,
For more serious offences, it is much more likely to be clear to sensible people that they are activities which might be regarded as a crime in another country. The fact therefore that we are prepared to accept exclusion of dual criminality for serious crimes does not mean that we should exclude it for lesser crimes falling within the same category. Some offences on the list can cover a wide spectrum. For example, offence No. 12 is environmental crime, which could include the breach of a tree preservation orderalthough I should point out that that is not an offence which is subject to imprisonment in the United Kingdom; it is subject only to a fine.
Offence No. 13 is facilitation of unauthorised entry and residence. I am not quite sure what it means but I suspect that it covers the act of squatting which, in this country in an unoccupied building, is not in itself an offence. Therefore, we should not gold-plate the European arrest warrant; we should stick to the basic requirement that the dual-criminality rule is excluded only if the maximum sentence is not less than three years. Lesser crimes will still be subject to extradition if the dual-criminality rule applies. That is the purpose of Amendment No. 115.
Amendment No. 129 applies the same principle to cases where extradition is sought for the return of a person who has already been convicted for the purpose of serving their sentence. Under Article 2.1, the general power of extradition is given where sentences are imposed for a term of not less than four months.
Article 2.2 does not differentiate between extradition for trial and extradition to serve a sentence. In both cases, the dual criminality is eliminated only if the maximum penaltynot the sentenceis not less than three years. I have some concerns that Clause 64(2)(c) may be defective in that it excludes the dual-criminality rule by reference to the length of the actual sentence, not to the length of the maximum sentence, which seems to be what is required under Article 31.2.
This raises very serious issues and while the dual-criminality rule, as such, can be legitimately relaxed in relation to dealings with other countries where we have trust, the framework decision in this case actually got it right in Article 2.2. I do not think that we should seek to reduce that in agreements between ourselves and other member states which take the same view to a period of 12 months. I would apply the same principle to extradition for sentence. There should be no extradition for sentence for an offence which does not carry dual criminality unless the sentence is at least 12 months. I beg to move.
Baroness Anelay of St Johns: I have added my name to these amendments which I strongly support. The noble Lord, Lord Goodhart, encapsulated the issue well when he said that Article 2.2 of the framework decision does the job properly and that we ought not to gold-plate beyond that. I hope that the Minister has not been advised to respond with the riposte which we have had in the past from the Governmentnamely, that the three-year threshold has never previously featured in extradition law.
The noble Lord, Lord Goodhart, stated exactly why it would be improper to go for the three years to 12 months reduction in this case. The Home Affairs Select Committee was very concerned about this measure. At one point, it stated that,
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