Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 40-49)



  40. So that would apply also, for example, to broadcasting? Something broadcast by ITV or BBC from this country but receivable in a number of European countries as well, could not be the basis of a racism and xenophobic charge in the other country that was not a criminal offence in this country?
  (Lord Filkin) Exactly so.

  Lord Lester of Herne Hill: I think that is directly contrary to the trend of other aspects of European legislation on civil liability for torts, where the whole movement has been towards a place of harm being the place which really matters. Apparently we will be permitted to ignore that.

  Chairman: I think civil law and criminal law do not have to follow the same rules.

  Lord Lester of Herne Hill: I am not saying I am in any way disagreeing with you but it is interesting.


  41. The attitude that you have expressed in answer to the question is entirely consistent with the very clear assurances which have been given by a number of Ministers as to what the position would be in that sort of situation.

  (Lord Filkin) Yes. We intend to put it utterly beyond doubt by that amendment.

  42. Thank you. It had occurred to me and to many others that the Extradition Bill in its present form left some chinks open.
  (Lord Filkin) That is right.

Lord Neill of Bladen

  43. Just on the Lord Chairman's question, I have just received yesterday the Home Office Myths and Facts about Extradition and number two was directly in point. Myth: people will be extradited for acts committed in the UK which are perfectly legal in our law. Fact: no. No-one will be extradited for conduct which takes place in the UK but is not an offence in the UK. I was just wondering whether that language was not rather carefully drafted—"takes place". It might be read as, it has an effect, but it might not be the best of examples, where the recipient — it used to arise in conflict of law, if you fire a gun in state A or province B and the bullet lands in state B or province B. Is it "which takes place in"? Are those the key words in this?

  (Lord Filkin) Yes. I was questioned on this at some length in another place, as to what defined action in the United Kingdom for these purposes. I suppose I really gave two answers: one which was the layman's answer, common sense in many ways, which defines that if I sit here in this room and place something on a UK server or even on a German server, I am at least in part committing that act in the United Kingdom. I was then pressed into boundary territories and ultimately, of course, the courts will decide on difficult issues. Some Members found that unsatisfactory but I did not particularly want to usurp the judiciary in that respect. The courts will decide on a matter of fact as to whether it did actually take place in the United Kingdom or not. The common sense in most cases, I think, will be clear. Does that help?

  44. I think it does.
  (Lord Filkin) At the risk of tedium, on the Extradition Bill as currently drafted, clause 63(6) states: "The conduct also constitutes an extradition offence in relationship to the category 1 territory if these conditions are satisfied—(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom; . . ."
  (Mr Regan) It is the phrase "no part of it occurs in the United Kingdom". That is the phrase that Parliamentary Counsel has already put in the Bill and, without wishing to trespass on Parliamentary Counsel's territory, we envisage words similar to that appearing in the Bill on this point. It is the latter part of it. It is "and no part of it occurs in the United Kingdom" which would be the words that we would be adding in elsewhere in the Bill.


  45. The expression here in this proposed measure is "a significant part". Does the adjective need to go?

  (Mr Regan) For the purpose of the Extradition Bill, the effect of the change that Lord Filkin has just announced, the amendment we will be bringing forward, subject, as I say, to the drafting chosen by Parliamentary Counsel, will be that if any part of the conduct occurs in the United Kingdom extradition will only be possible if it would also constitute an offence in the United Kingdom.

  46. So dual criminality would then be retained?
  (Mr Regan) Yes. The only circumstances where dual criminality will not apply is if the offence occurred solely in the requesting state.

  47. I think also that will require some amendment to 8(3) in order to make the two consistent.
  (Lord Filkin) We do not support 8(3) in its current form. We think that needs to be amended.

  48. Can I ask you a short question on Article 10(1), the jurisdiction Article? Article 10(1) says, "Each Member State shall take . . . jurisdiction where the conduct . . . has been committed", (a) in its own territory in whole or in part—yes, obviously—then (b) by one of its nationals, or (c) for the benefit of a legal person that has its head office in the territory of that Member State. Sub-clauses (b) and (c) raise a number of questions and 10(4) says that a Member State "may decide not to apply, or to apply only in specific cases or circumstances, the jurisdiction rule set out in paragraphs 1(b) and (c)". What is the UK Government attitude to this?
  (Mr Bradley) The UK does not have extra-territorial jurisdiction for offences of incitement to race hatred in general, so the Government's position would be that we would not make use of the jurisdiction referred to in paragraphs (b) and (c).

  49. So you would use the option under 4?
  (Mr Bradley) We would use the option under paragraph 4, exactly so.

  Chairman: Lord Filkin, Mr Bradley and Mr Regan, thank you all very much indeed for the help you have given us. Your answers to our questions have been very clear and very concise and will be of great assistance to us.

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