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Baroness Scotland of Asthal moved Amendment No. 152:

On Question, amendment agreed to.

[Amendment No. 153 not moved.]

Baroness Scotland of Asthal moved Amendment No. 154:

    Transpose Clause 62 to after Clause 204.

On Question, amendment agreed to.

Clause 63 [Part 1 warrant: transmission by other electronic means]:

[Amendment No. 155 not moved.]

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Baroness Scotland of Asthal moved Amendment No. 156:

    Transpose Clause 63 to after Clause 204.

On Question, amendment agreed to.

Clause 64 [Persons serving sentences outside territory where convicted]:

Baroness Scotland of Asthal moved Amendment No. 157:

    Page 32, line 38, leave out from "section" to "after" and insert "20(5) has effect as if"

On Question, amendment agreed to.

[Amendment No. 158 not moved.]

Clause 65 [Extradition offences: person not sentenced for offence]:

Lord Goodhart moved Amendment No. 159:

    Page 33, line 18, at end insert—

"( ) the category 1 territory is a party to the European framework decision;"

The noble Lord said: My Lords, in speaking to Amendment No. 159, I wish to speak also to Amendment No. 169. The amendment provides that the exclusion of dual criminality applies only to territories party to the European framework decision. Other states would then be able to get the benefits of the fast-track procedure described by Part 1, but would be subject to the dual criminality rule.

There are two reasons for proposing the amendment. First, other states will have no say in the amendments to the European framework decision, but will be bound by them—so they are not simply looking at it as it is now. Secondly, the abolition of the dual criminality requirement is, of course, controversial and, therefore, may act as a barrier rather than as an encouragement to other states wishing to move to category 1, which the United Kingdom would be willing to admit to category 1 if able to do so.

We would not object to a provision that would enable non-European-Union states to accept the abolition of the dual criminality list for all or some of the offences in the schedule. However, they should not be required to accept the entire list as a condition for admission to category 1 status. I beg to move.

Baroness Anelay of St Johns: My Lords, I rise to support these amendments to which I added my name. As the noble Lord, Lord Goodhart, made clear, we have considerable reservations about the appropriateness of designating new states as category 1 territories, and so relaxing the controversial issue of dual criminality—as he referred to it—for the European framework list, when those countries have not signed up to the framework decision. It is certainly controversial for these Benches.

In Committee, the Minister stated that she did not see why we felt that our Commonwealth countries, Australia, New Zealand and Canada, might not at some stage in the future be appropriate category 1 countries. We do not dispute the possibility that they may indeed be appropriately category 1 countries in the future; we are not at variance with the Government on that, particularly when the Government brought

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forward on the first day of Report amendments which made the designation of countries subject to the affirmative procedure and moved from the Orders in Council procedure to the Secretary of State procedure. We consider that is the appropriate parliamentary process. That is a significant step forward. However, here we are asking the Government to justify the advisability of allowing non-EU countries to be party to the relaxation of dual criminality which is part of a framework decision to which they are not themselves party. I argued this point when speaking to earlier amendments of mine which were grouped with the Government's when they made the change from negative to affirmative orders. Therefore, I shall not press the point further.

6.15 p.m.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Goodhart, and the noble Baroness for drafting the amendment in the way that they did as it clarifies the areas which need to be addressed.

We believe that those countries which are justified in expecting to move from category 2 to category 1 should have the advantage of all the benefits of category 1 status, or not be so moved. The advantage of category 1 status is a relaxation, a coming together and being in comity with one another on those principles. It would only be when those countries are in an alignment—similar to the alignment that we have with our EU partners—that we would be likely to say that they would be entitled to move to category 1. Thereafter, we would return to both Houses to relate the changes that had taken place and to explain the way in which those countries had aligned themselves with us. As a result, they would justify a movement from category 2 to category 1. Once they are in category 1, they should share the same benefits as all the other category 1 partners; otherwise, we would have category "1A". Having created a new premier division, I suppose that category 1 countries would be first division and category 2 countries would be second division. However, that is not how we view the position: either countries should join us and be in comity with us to such an extent that we think classification in category l is merited, or no.

That is the truncated answer to that question and I hope that noble Lords will be content with it. I know that the noble Lord, Lord Goodhart, would prefer the framework decision to be preserved so that only those who are signatories to the framework decision could participate in all those benefits, but that in effect would be tantamount to saying that no country which is outside the framework decision could or should ever be able to have the full benefit of category 1 categorisation. We do not think that is right. As I have said on a number of occasions, we do not anticipate that Australia, Canada or New Zealand will seek to be in alignment with us, but they may do so. If and when that occurs, we believe that if they justify category 1 status they should have the full benefits of that status or stay where they are currently, which is category 2.

Lord Goodhart: My Lords, I am grateful to the noble Baroness. I regret that the Government are not

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prepared to move on this matter. However, this is not currently a live issue and will not be unless and until a consideration arises about another country outside the EU transferring from category 2 to category 1, or wishing to do so.

I am somewhat concerned that there is not some degree of flexibility here—that the state will be required absolutely to sign up to everything in the schedule although it is not bound by the framework decision. However, although I regret that, it may or may not become material in the future. That said, it is not something that I wish to press this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 160 not moved.]

Lord Goodhart moved Amendment No. 161:

    Page 33, line 26, leave out "12 months" and insert "3 years"

The noble Lord said: My Lords, this is an amendment which I believe is of great importance. Article 2.1 of the framework decision allows extradition for offences punishable by a maximum sentence of 12 months or more. We accept that; it represents broadly the present law. Under Article 2.1, that applies where the dual criminality rule applies.

What is novel about the European framework decision in particular is Article 2.2 which removes the requirement of dual criminality for the more serious offences—those which carry a maximum sentence of three years or more in the requesting state. That is an essential part of the European framework decision. Although noble Lords on these Benches had concerns about whether the dual criminality rule ought to be preserved in full force, ultimately we accepted the arguments for some degree of relaxation of it. However, Article 31.2 of the framework decision provides that the threshold for applying Article 2.2, and thereby removing the dual criminality requirement, may be reduced by bilateral or multilateral agreements between some or all of the states which have signed up to the framework decision.

The Government have chosen to rely on Article 31.2 and to permit a reduction of the threshold at which Article 2.2 operates—with the dual criminality rule being removed—to include offences that carry a maximum sentence of 12 months or more. We believe that that is effectively gold plating the framework decision and that it is wrong. The proposal has been criticised by Justice, Liberty, and the Home Affairs Select Committee in the other place. The Home Affairs Select Committee stated at paragraph 51 of its first report of the Current Session on the Bill:

    "We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so".

The dual criminality rule is, of course, not pointless. The original idea no doubt was that some countries imposed harsh and repressive laws prohibiting, say, freedom of speech or freedom of assembly, which would not have been recognised in this country. There

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is a second reason for the dual criminality rule; namely, that a stranger to a country may not realise that what is lawful at home is not lawful abroad.

We have accepted that the dual criminality rule should be modified for the European Union. That was not an easy decision; we felt that it came close to the borderline. However, we recognise that European Union member states are parties to the European Convention on Human Rights and broadly comply with it. Therefore, the idea of a dual criminality rule as a defence against harsh and repressive laws that breach human rights is not necessary in relation to other countries in the European Union.

Of course we accept and support the principle that visitors to other countries should obey the local laws. However, people should not be extradited for relatively minor offences in the absence of a dual criminality rule. Where penalties are minor—where the maximum sentence is less than 12 months—most offences will be on the borderline of criminality. Offences committed by serious criminals such as major frauds, large-scale drug dealing and so on are almost always crimes in both the requesting and requested countries.

In those circumstances, there is no sufficient justification for the removal of the dual criminality rule. The problem of people not understanding the local law is that the risk is clearly greater with relatively minor offences where practices may vary a great deal. Something recognised in one country as legitimate, or at most subject to an action for civil damages, may be a criminal offence leading to a short prison sentence in another. For more serious offences, it is much more likely to sensible people that the activities might be regarded as crimes in another country.

The fact that we are willing to accept the 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 very wide spectrum. For example, the 12th offence is environmental crime, which could include offences that in this country at any rate would be regarded as quite minor. Something that might come within the definition of environmental crime might carry a maximum sentence of 12 months but would not be a crime in this country.

Therefore, we should not gold-plate the European arrest warrant, but should stick to the basic requirement that the dual criminality rule is only excluded if the maximum sentence is three years or more. Lesser crimes would of course still be subject to extradition if the dual criminality rule applied.

Amendment No. 170 deals with extradition not to face charges but to complete a sentence. Articles 2.2 and 31.2 of the framework decision do not differentiate between extradition to face charges and to serve a sentence that has already been imposed. In our view, the same principle applies. Where there is dual criminality in both countries, we accept that extradition is appropriate to serve or complete a sentence of at least four months. Where there is no

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dual criminality, however, people should not return to serve sentences of four months. In such cases, we suggest that extradition should be imposed only when there is an actual sentence of at least 12 months.

The nature of cases where there is no dual criminality is that those matters are on the border of criminality. They are thought to be a crime in one country, but reasonably thought in other countries not to be a crime. That is not the kind of offence likely to be exploited widely by serious criminals, or to be particularly disturbing to individuals. I do not see any problem with that.

The amendment is of considerable importance. It does not involve anything inconsistent with the terms of the framework decision. We quite see that it is desirable to keep within them. The amendment would involve no breach of those terms whatever. The framework decision provides a substantial reduction of the effect of a long-standing rule applying to international extradition, and that is in itself enough.

If the removal of dual criminality for the more serious offences proves to have no problems, we could go forward to that in future. However, it is too early to take that step. At this point, we should confine ourselves only to the step provided for in Article 2.2 of the framework decision, and say that we have to be limited to that and cannot go below the maximum three-year sentence for an offence charged or a sentence of at least 12 months' imprisonment where there is a return in order to serve or complete a sentence. I beg to move.

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