Select Committee on Constitution Sixth Report

Appendix 2

Reply from the Lord Filkin, Parliamentary Under-Secretary of State, Home Office

Thank you for your letter of 28 February to the Home Secretary about the Extradition Bill. We have encouraged as much discussion as possible about the Bill — you referred to the fact that we published it in draft in your letter — so I was pleased to learn that the Constitution Committee is taking an interest in it.

Designation Orders

You asked what our intentions are in respect of designating countries as either part 1 or part 2 extradition partners. Our plan is that all EU Member States together with, probably, Norway and Iceland will be in Part 1. All of our other extradition partners will be in Part 2.

You also asked why the procedure in the Bill for designating countries was subject to the negative resolution procedure. The answer is simply that that is the procedure that applies at the moment (see, for example, Section 4 of the Extradition Act 1989).

During Committee Stage in the House of Commons, my Ministerial colleague, Bob Ainsworth, indicated that the Government was prepared to consider moving to the affirmative resolution procedure if a very strong case for doing so could be made but that for the moment we saw no need to depart from a precedent that has operated for many years and which has not given rise to any problems.

List of Generic Offence Categories

In your letter you stated that the first task of the judge at the extradition hearing is to determine whether the conduct in respect of which extradition is sought is an extradition offence in the requesting state. For the sake of accuracy I should point out that the Judge is, in fact, required to determine whether the conduct is extraditable under UK law (as set out in clauses 63 and 64).

You asked why the list of 32 generic offence categories is not on the face of the Bill. The 32 categories are set out in Article 2.2 of the Framework Decision on the European Arrest Warrant. Clause 63 of the Bill, which defines an "extradition offence", refers specifically to the list in Article 2.2 of the Framework Decision.

Article 2.3 of the Framework Decision allows for the list to be amended. This can only happen with the unanimous agreement of all Member States.

The Government does not know of any plans to amend the list but we believe that we must retain the flexibility to deal with any such changes. This would be lost if the list were to be included on the face of the Bill.

Dual Criminality Requirement

The Framework Decision requires us to remove the dual criminality requirement for all list offences which attract a maximum penalty of at least three years in the requesting state.

The Extradition Bill, however, removes the dual criminality requirement for all list offences which attract a 12-month penalty or more in the requesting state and you asked for the reason for this difference.

The basic threshold in extradition has always been based on 12 months and no one has suggested that it should be changed. However, if it is accepted that 12 months is the threshold for extradition we do not believe that it would be sensible to set a different threshold for the application of the dual criminality rule.

Apart from the confusion that could be caused by having two thresholds, there could be perverse consequences. If we were to follow exactly the terms of the Framework Decision we would have the situation that a request in respect of list offence attracting a penalty of 1-3 years in the requesting state would be subject to a dual criminality test but that a request in respect of a more serious list offence — and one for which the person could potentially be imprisoned for much longer — would not be subject to such a test. We believe that this would be an illogical position which could not be justified.

As important as the practical arguments, however, is the Government's commitment to the principle of mutual recognition and our determination to play a leading role in the development of that principle in preference to full-blown harmonisation. We do not believe that our approach should be characterised by doing the bare minimum necessary to comply with our obligations under the Framework Decision. Rather, where it is in the UK's interests and in the interests of justice, we should be prepared to go further and set an example to our EU partners.

In answer to your final question, we do not know what other EU Member States intend to do — we are more advanced than most in drawing up our implementing legislation — but we hope that they will be encouraged to follow our example. Given that there are a number of UK offences which have no parallel in some other EU states, there would be clear advantages for the UK if other EU Member States go beyond the Framework Decision in respect of dual criminality.

I hope this is helpful, I would be happy to meet you to discuss this if you would find that useful.

6 March 2003

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