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Lord Carlisle of Bucklow: My Lords, I made it clear in Committee and earlier at Report stage that I am concerned about doing away with the rule of dual criminality. As I understand it, my noble friend's amendment would—while accepting that the House has accepted Part 1, relating to the European arrest warrant—require that the safeguard of dual criminality should still apply to any application from a category 1 country.
My concern has always been that the list of 32 is very wide. Although it may be argued that the Bill should cover matters such as terrorism and murder, there are the lesser offences, and someone may be extradited back to a country for committing an act that would not have been a crime in this country. That is wrong. My noble friend Lady Anelay of St Johns is taking a fallback position, but the Government should seriously consider providing for the continuation of the safeguard of dual criminality.
5.30 p.m.
Viscount Bledisloe: My Lords, I confess to being puzzled about the procedure intended by the amendment. Perhaps I may go through the amendment and the noble Baroness could interrupt me if I have got it wrong. The warrant is received from abroad by the particular magistrates' or sheriff's court designated to receive it. That court automatically makes an application to the High Court—let us consider England because I know rather more about it. Quite how it does that, I do not know. The concept of one court applying to another is unusual. Does it instruct counsel to make the application on its behalf? Anyhow, the warrant gets to the High Court.
The High Court asks whether it is a dual criminality case. As I understand it, if it is, the High Court sends the warrant back to the magistrates' court to go through the remaining hoops in the act. If the High Court says that the case is not one of dual criminality, it then has to decide whether it is satisfied, in the interests of justice for the warrant to be proceeded with. Does that mean that the High Court then does the same procedure as happens at the moment; that is,
it looks at all the evidence, decides whether the case is suitable for trial, looks at whether the man may be unfairly treated and looks at the stability of the case?If the High Court decides that it is in the interests of justice to do so, it sends the warrant back to the magistrates' court, which goes through the same hoops in the act. Seemingly, this is a matter which can go to any judge in the High Court. Whereas, under the present system, specialist magistrates deal with such cases, there will be varying judges who may come to different approaches on law. Since these cases are not subject to appeal, no one will ever be able to resolve those differences of approach. Could the noble Baroness, Lady Anelay, indicate whether I have accurately summarised the effect of her amendment?
Baroness Anelay of St Johns: My Lords, with the leave of the House, it seems that I must break the rules, but only because I am looking directly at the Woolsack. The rules state that on Report I may not speak. I can only introduce the amendment, then I can respond to it. Therefore, perhaps I may enlighten the Committee as to the procedure rather than answering the questions, which I shall be delighted to do when I am allowed to do so.
The Earl of Mar and Kellie: My Lords, despite the advocacy of the noble Baroness, we remain unable to support the amendment.
Baroness Carnegy of Lour: My Lords, I think that it is worth repeating what I said in Grand Committee. My fear is, I think, the fear of many ordinary people in this country who have studied the Bill. A citizen from this country could go abroad and inadvertently commit a crime which he or she did not know was a crime in that country. It is possible that that could happen. The person would return home and there would be no way in which Ministers could defend them. They would be extradited; possibly simply to be held in a cell for some weeks while being interrogated. That is a worst-case scenario, but it could happen.
The dual criminality rule is there to protect people when they have done something in another country, which is not a crime in this country, and that they were unaware was a crime. I must make that point as it is a very ordinary one which lawyers do not always enjoy because of all the technicalities involved.
Viscount Bledisloe: My Lords, before the noble Baroness sits down, does she not realise that if a person goes abroad and innocently commits an offence and gets arrested out there, he or she will be tried for it? What difference does it make if a person gets on an aeroplane and comes back here before being arrested? In either case, on going to another country a person should find out its laws before disobeying them.
Baroness Carnegy of Lour: My Lords, quite simply, the difference is what happens to the person, who cannot be protected by their own country. I do not think that this big, happy family of Europe, which I
hope will become bigger and happier, should have that effect. People simply cannot be protected politically by their own Ministers. That is the point. It is a big difference.
Lord Bassam of Brighton: My Lords, as ever, I am grateful for the courteous way in which the noble Baroness, Lady Anelay, argued her amendment with her customary clarity. The noble Viscount, Lord Bledisloe, got to the bottom of that clarity rather well and deconstructed the noble Baroness's amendment rather well too.
We need to focus on what the amendment proposes. As we understand it, it would provide that whenever we receive a Part 1 extradition request, there must be a court hearing before the High Court or its territorial equivalent. That would be in addition to the main extradition hearing. From the outset, the Government's intention to simplify and speed up extradition procedures would be harmed. The noble Baroness made the point that she did not consider that a hefty task—there are approximately 100 extradition requests every year. That is not the point. It is not about volume; it is the length of proceedings with which we are concerned. We want to simplify and truncate the proceedings, but leave all the important protections in place.
In effect, we would have not just one single hearing, we would have two separate hearings. We cannot see the advantage in that. Indeed, one of the weaknesses of the present system, which we are seeking to remedy, is that the authority to proceed stage requires the Secretary of State to consider each case twice for no good reason.
At the extra hearing, the High Court would be required to determine whether the extradition request is concerned with conduct which would constitute an offence if it had occurred in the United Kingdom or over which the United Kingdom takes extra-territorial jurisdiction; that is, whether the dual criminality test is satisfied. That may sound simple. Clearly, for certain conduct—say, murder or rape—it is a relatively easy matter to determine that the United Kingdom has an exact equivalent offence. But that is by no means always the case.
Noble Lords who have attended an extradition hearing—I know that the noble Baroness, Lady Anelay, has done exactly that as part of her preparation—would concede that, currently, a great deal of time is devoted to arguments about dual criminality. Questions about whether certain types of conduct—say, computer fraud—would be criminal in this country, and, if so, by virtue of which particular section of the Computer Misuse Act, can, and do, give rise to a great deal of argument.
From the start, the extra new hearing could become long and complex. Certainly, both the requesting state and the person whose extradition has been sought would want to be represented at that hearing and to advance legal arguments. At the conclusion of the hearing, the High Court would be required to reach a conclusion as to whether the dual criminality test has been satisfied. That is obviously an important decision, so it is somewhat surprising to discover that there is no possibility of appeal.
If the High Court decides that the dual criminality test is satisfied, all well and good; the case can proceed as normal. If the High Court concludes that the conduct would not constitute a United Kingdom offence, it has to decide whether the case should proceed. It does that by deciding whether it would be "in the interests of justice".
Precisely how the court is meant to perform this test is not made clear. Courts exist to interpret the law and to adjudicate on disputes about it. How a court would determine where the interests of justice lay when it comes to bringing a person to justice who is accused of a crime in another country, I do not know. Again, it seems to be a crucial decision which warrants the right of appeal.
For all those practical reasons we cannot support the amendment, which would prolong the extradition process and add time and expense. I am unsure what benefits would be achieved as a consequence.
Perhaps I should say something about the broader issue of dual criminality because it has been a matter of concern for many noble Lords taking part in this short debate and, of course, it is one of the key aspects of the Bill. I think we need to be clear about what the Bill does and does not say. No one will be extradited in respect of conduct which occurs in the United Kingdom which is not contrary to our law. So those comments that have been made about people being extradited for writing a ludicrous article in the Sun newspaper or reading books about Biggles are fanciful in the extreme. What the Bill does provide is that if a person goes to another EU country and while there breaks the law of that country, they can expect to face justice, even if the United Kingdom would not regard the particular conduct as criminal.
To be frank, I do not see how anyone can logically object to that. If a person breaks the law of another EU country and is arrested there and then, no one would complain about it. Why should such a person escape justice simply because they have fled across a border before being apprehended?
This has to work both ways. We rightly expect all those in the United Kingdom to abide by our laws while they are here. Our courts would never accept as a valid defence the fact that the conduct in question was not criminal in the person's native country or the fact that the person did not know that the conduct was illegal here. So if a person from another country breaks our laws and then conveniently disappears, we would want to be able to bring that person back to stand trial.
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