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The Deputy Speaker (Lord Tordoff): My Lords, if the noble Lord on the Woolsack was entitled and allowed to speak on matters of order, he might do so. But as the rubric states that he is not, I cannot answer that.
Clause 2 [Part 1 warrant and certificate]:
Lord Bassam of Brighton moved Amendment No. 8:
- Page 1, line 15, leave out second "an" and insert "a judicial"
The noble Lord said: My Lords, I can be brief in moving this amendment and speaking to the other amendments in the group. I say that for two reasons: first, they are very simple amendments; secondly, I anticipate that they will be welcomed by all sides of the House.
The amendments arise from points raised in Grand Committee, which were strongly put by the noble Lord, Lord Stoddart of Swindon, my noble friend Lord Wedderburn and the principal opposition spokespersons from the Liberal Democrat and Conservative Parties—a fairly formidable team of opponents.
The Government like to show that we see the sense and force of good argument in debate. For those reasons, we have brought forward our own amendments, which we are confident are robust and will do the job that they set out to do. We recognise the force of the argument and that is why I am bringing forward these amendments today. I beg to move.
On Question, amendment agreed to.
6 p.m.
Baroness Anelay of St Johns moved Amendment No. 9:
- Page 2, line 4, leave out "is accused" and insert "faces charges"
The noble Baroness said: My Lords, in moving Amendment No. 9, I shall also speak to Amendment No. 15, and my noble friend Lord Lamont will speak to Amendments Nos. 11, 12 and 13.
These amendments address another issue that has been of the utmost importance to noble Lords during our discussions at Second Reading and in Grand Committee. The question is whether someone can be extradited to a category 1 territory for the purpose of interrogation after merely being accused rather than for the purpose of prosecution when there is already substantive evidence to warrant a trial. I note that in another place the Government and all other groups are on the same side on this matter. The Government tabled amendments to this clause which sought to clarify that a person should be extradited only if there was a case to answer if they were to be prosecuted. Our difficulty is that we feel that the clarification is not yet sufficient.
The Minister has tried to assure us that the drafting of the Bill already guarantees that a person can be extradited only for the purposes of prosecution and not for evidence gathering. I will not repeat the matters discussed in Grand Committee, particularly at col. GC 24 of Hansard. There were objections from around the Committee pointing out that as the noble and learned Lord, Lord Donaldson, and my noble friend Lord Carlisle, said earlier today, other jurisdictions differ considerably in the manner in which they take forward their criminal cases.
Our other difficulty is that we feel there is a danger that our citizens could be extradited to jurisdictions where, instead of facing a trial immediately, as we would expect in this country, there could be some investigation or fishing expedition. Our amendments put the matter beyond all doubt by replacing "is accused" with "faces charges" and by expanding and defining the phrase,
- "for the purpose of being prosecuted".
I believe that these amendments—mine in particular—deserve to be on the face of the Bill. I beg to move.
Lord Lamont of Lerwick: My Lords, I shall speak to Amendments Nos. 11, 12 and 13 in my name, while
supporting those of my noble friend Lady Anelay. The purpose of my amendments, as with hers, is to deal with what I think is a well known situation, whereby foreign magistrates have been known, quite frequently, to detain people purely for the purposes of questioning. They may detain people for quite long periods—no charges are ever laid and people are released. These amendments would make it clear that nobody should be extradited and fall victim to this practice in Europe. I would be grateful for the Minister's attention.That this is the practice is, I think, widely accepted. John Mortimer QC, a supporter of the party opposite, went out of his way in a recent article to warn people not to be arrested in Belgium, Italy or Spain because they might find themselves locked up and interrogated until a judge decided he had applied enough pressure to get out of them the information he wanted.
This point is of concern not just to me and my noble friend—it has been highlighted by Justice, Liberty, the Law Society and Fair Trials Abroad. The situation arises where there are juges d'instruction, magistrates who are both investigators and prosecutors. A person may be accused of a crime but that does not mean that they will ever stand trial. Investigation can continue while the person is accused, held in prison and then dropped. This may go on for many, many months.
The point was very succinctly and more clearly expressed by Mr Leolin Price QC in his comments on the code of practice on extradition. He said:
- "In some member states, arrest—although the legal system of that state may regard arrest as the beginning of the process of prosecution—is the beginning of an investigation; and the decision whether to charge the arrested person, or release him without taking the case to trial, will occur while the arrested person is in custody, perhaps for many months. In those circumstances the arrested person may never be, in our common law language, accused of the offence or any offence, and there may never be a charge clearly formulated".
For that purpose, I asked a Written Question of the Foreign Office. It asked:
- "Whether they will publish a table showing the total number of British citizens in prison in each country in the European Union; and how many, if any, in each country have been held in custody for longer than three months (a) without being given bail and (b) without being charged".—[Official Report, 20/6/03; col. WA 200.]
I tabled a further Question for Written Answer asking the Minister what was the definition of being charged. Did it simply mean that the person was accused or did it mean that the person had been told they would stand trial? The Answer I was given was that the Foreign Office
was not aware of anyone having been held in gaol for three months without being charged. That is hardly an answer to the question, "What is the definition of being charged?". All I was given as an Answer was a repetition of the Answer I had already been given. In view of the seriousness of this issue—I will be surprised if other people do not, to some extent, share that belief—not giving the definition of "charged" was very inadequate.I then tabled a further Written Question, asking for an expansion of the table, whose figures apply to 31st March this year. I asked how many people had subsequently been released without being charged. That would have been a very good indicator of the definition of the word "accused" or "charged". The reply was that the expense of answering the Question would be disproportionate. I put it to the House that when we have such an important issue coming up in the Bill, that is not an adequate Answer. I know the Foreign Office is very busy, arranging the Queen's birthday party and attending EU functions, but it is not above answering very important questions.
I then asked a further Question about whether we could have some information on the 12 people held in Belgium for longer than three months and what they had been charged with. Again, I was told that to find that out for 12 people would incur disproportionate cost. I question whether the Foreign Office can be carrying out its consular function if it does not have that information. I repeat that I regard that as a highly unsatisfactory Answer.
That it is important whether someone is actually charged or just accused is indicated by the fact that the Irish have attached a declaration in relation to the European arrest warrant in Article 1(1). It states that the issuing authority with an arrest warrant must either give an undertaking that surrender is only sought for the purpose of charging the person with, and trying him or her for, the offence concerned, or a statement in writing that the person has been charged and a decision to try him or her for the offence concerned has been made.
I hope that we can have a serious answer to a serious question, and I hope that the Minister accepts that I am asking it in a genuine spirit of trying to ensure that there are no miscarriages of justice.
In Committee, the Government stated repeatedly that they were not aware of such an event happening. The noble Lord, Lord Filkin, said that he had not been aware of any problems of someone since 1999 being extradited and not being prosecuted. He said:
- "I would be open to being educated if any Members of the Committee know of any examples of that being the case".—[Official Report, 9/6/03; col. GC 22.]
As Members of the Committee know, I have been interested in extradition for some time, and have been interested in the whole concept of the European arrest warrant. I first wrote an article about it in the Daily Telegraph in 2001. Having described what I saw as the dangers of extradition and its procedures, and the risk
of being accused without being charged, it never occurred to me that someone I knew very well would actually get into that very situation. I would not want anyone in the House or elsewhere to feel that in making these remarks I was motivated by a financial interest or some special factor.I wish to refer to the case of a Mr Vahid Alaghband—someone who is known to the Government and has from time to time advised the Government and the Cabinet Office. He is a citizen of this country, and a dual citizen; he is an Anglo-Iranian, and has given advice to the Government on several occasions. When Mrs Mowlam was Secretary of State for Northern Ireland, he gave some advice to the Cabinet Office on her visit there. He has also given advice to the British Embassy in Teheran, and given considerable help. He is a prominent businessman in this country, and at one stage employed nearly 20,000 people. He appears in the Sunday Times rich list.
I said that I would not wish my motives to be misunderstood. I have declared in the Register of Lords' Interests that I am a director of a company that Mr Alaghband owns. He is the chairman of it, but it is not a company that is involved in any way in the matter that is the subject of the legal dispute to which I wish to refer. I have no connection with those events beyond my connection with him. I am uneasy about raising this case, but I simply felt that it made no sense for me to speak in these debates without referring to something that, by a terrible coincidence, I have witnessed and watched, and which absolutely exemplifies what has worried me about the proposals from the word "go".
Mr Alaghband was arrested in Switzerland, at the request of a German magistrate, when he was one of the main speakers at the Davos Conference in January. He was accused in connection with the take-over of an unquoted company in Germany, a company of which he owned 95 per cent. He is accused of breaking German law in the take-over of the company, on two grounds: a breach of fiduciary duty and fraud. Those are the two precise accusations that have also been made against Mr Ackermann, the chairman of the Deutsche Bank, in relation to the take-over of Mannesmann by Vodaphone. Indeed, the magistracy in the Dusseldorf area has been extremely active in commercial law and in indicting large numbers of prominent German businessmen.
What Mr Alaghband is alleged to have done—and indeed did—was to borrow money to buy a company and then use cash within the company to repay the loan. That is known as a leveraged buyout, which is largely not an offence in British or American law, but can be an offence in German law. None of that surfaced until there was a move by the company to make some redundancies and to move the headquarters of the company out of Germany to London, when allegations about breaking the law arose.
I emphasise that I do not know the facts of the case, or the rights or wrongs; I have not been involved in any way and am not part of the company that was
involved. I personally believe in Mr Alaghband; he is someone whom I deeply admire and respect. He is known to quite a number of people in this House. I was perfectly content and happy to write a letter supporting his application for bail in Switzerland, and a Labour Peer did exactly the same—believing, as I do, that he is an honourable man. I am not suggesting on this matter that the Government should do anything, or that they have failed to do anything. I simply wish to describe the legal procedures in this case. That is what concerns me at this point—not whether Mr Alaghband is innocent or guilty.Mr Alaghband was arrested in Switzerland. The British ambassador, who knew him personally, to try to facilitate bail said that he was prepared to guarantee that British embassies and consulates would not issue him another passport and that he would surrender his passport. That was not enough, and he was refused bail. He was then extradited to Germany, in conditions that I shall not describe as they are not relevant to what we are discussing, but which are highly alarming. He was taken to Germany and has now been there, in prison, for four months, having been six months in Switzerland. He has been in gaol for more than 10 months, and has not been charged. He has been accused, but the prosecutor has not made up his mind whether to recommend charges to the judge, and the judge has made no decision about whether he should be prosecuted.
The important point is that Mr Alaghband has only been accused; that is the language that is used in the Bill. The word is "accused". In tabling our amendments, my noble friend Lady Anelay and I believe that a person should be extradited only if he is definitely going to be prosecuted. I know that the Minister will say that it is impractical to propose that people should be extradited only if they are going to be charged and stand trial within six months, and that if they do not stand trial within six months they should be returned. I can understand why she would say that would be impractical. However, regardless of that, the issue of someone simply being accused and not being charged is a very real one.
The noble Lord, Lord Filkin, said that he would be educated if someone could provide an example, and I believe that I have provided an example of someone who has been in prison for a long time without actually being charged, and with no indication that he will be charged. The term has been extended for six months—and then possibly there will be another six months.
An interesting point arising from the case, which is very relevant to the issue of extradition, is the contrast between the treatment of Mr Alaghband and the treatment of the chairman of Deutsche Bank, Mr Ackermann—a case that aroused enormous publicity and fears in the German business community. Mr Ackermann is also accused of fraud and breach of fiduciary duty, but he is a Swiss citizen resident in Germany. He is not detained, because he is a well-known figure in Germany. A foreigner in Germany is in a much more difficult position; he is at a disadvantageous position because of the risk of flight.
I put it to the noble Baroness that it is very unsatisfactory that someone can be detained in such circumstances. The Minister—not the noble Baroness, but the noble Lord, Lord Filkin—challenged us to come up with a single example, and I was horrified that I knew of one from my own experience. I think that the case illustrates that there is a very real problem in that people can be detained without being charged. The Answer to my Written Questions was, frankly, deplorable. The Foreign Office should have answered those Questions and indicated to me whether there are other situations like this in other EU countries. The case raises a fundamental question of civil liberties. Answering, or not answering, in such a cavalier manner is an abuse of Parliament. It shows that Parliament is being treated in a highly cavalier manner.
I have discussed this case with a number of lawyers who say that this situation is not uncommon. One Queen's Counsel said to me, "If the Government think that there are no people in that situation they just ought to ask a few British lorry drivers, plenty of whom are languishing in prison while they are investigated for drugs or smuggling immigrants". What often happens in these cases, I am told, is that the accused—having been accused but not actually charged in our sense, and having been detained for many months—are given a sentence for the time they have already been in prison, in order to avoid their taking legal action against those who accused them. Enormous pressure is therefore put on people to strike a bargain with the judicial authorities.
For all those reasons I believe that, if not the precise words in my amendments, some such provision should be included in the legislation, to ensure that people cannot be extradited from this country for the purpose of questioning. It would be all too easy for the extraditing country to use the word "accused" to indicate that it is operating "with a view to" a prosecution, as the Bill states, when they do not know whether they will prosecute. They may think they will prosecute, but they do not know. As Mr Leolin Price QC said in his evidence, that is the common way in which these investigating magistrates proceed, by continuing to investigate while detaining someone. If that someone is a foreigner, he is at a very considerable disadvantage compared with the locals of those countries.
On the basis of their Answers when we have raised this issue, the Foreign Office and the Government seem not to be aware of this real and serious problem. I hope that the noble Baroness will reflect and come up with a more satisfactory approach.
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