Examination of Witnesses (Questions 100
WEDNESDAY 4 JUNE 2003
MP, MR CLIVE
Lord Neill of Bladen
100. There is nothing in the bill or the treaty
which would take care of that at all, is there? It would not be
in bad faith if the person used grievous bodily harm and then
the victim died, they would say the charge now goes up to murder
and capital punishment awaits if you are found guilty of that,
would they not?
(Mr Regan) Yes. I think it would be bad
faith given that the Americans know full well what our view is
on the death penalty, but it is also worth pointing out that nothing
in the treaty changes that, that is the position under the existing
bilateral treaty in respect of assurances. The scenario you posit,
if you assume that the Americans would behave in that way, can
happen now, but it never has.
101. We are talking about avoiding the consequence
of a sentence of capital punishment, but there is a preliminary
stage to that and that is to try and protect people against the
risk of being exposed to such a sentence and they are convicted
as a result of being represented by incompetent lawyers because
the state in which they are tried does not provide an adequate
system of legal aid or, if it claims to, does not provide adequate
lawyers, that is what most of the Supreme Court cases seem to
involve in America. My concern on this point is it is open to
the defendant in UK proceedings to try and bring evidence on his
own behalf, but under Article 6 of the Convention he would not
have a fair trial in the state because the lawyers could not be
guaranteed to be of reasonable competence. What about the requested
State? Will the UK Government in its extradition dealings with
America seek any assurances that in capital punishment cases the
defendant who is extradited can expect to be given reasonable
(Mr Regan) The Extradition Bill provides
that extradition is barred where it would breach a fugitive's
ECHR rights. He will no doubt, seek and produce evidence, to show
that his extradition should be barred on precisely those grounds.
Those who are representing the requesting State, normally the
Crown Prosecution Service but not automatically so, will no doubt
seek to adduce counter evidence to show that the person's ECHR
rights will be respected. It will be the district judge who will
have to adjudicate on the competing evidence that is placed before
102. So the Government do not propose to get
involved in that?
(Mr Regan) We are not a party to extradition, it is
a fugitive against the requesting State.
103. So it is open to you to ask of the American
Government, if you are seeking extradition for a capital punishment
case, what assurances they are going to give the requested State
that reasonable representation will be given, is it not?
(Mr Regan) It may be done through the diplomatic channels,
but it is open to those representing the requesting State to seek
evidence which they could put before the court to ensure that
the case will not be thrown out on ECHR grounds.
104. Minister, I am just reading the new Article
10, I am trying to work out how competition between applications
for extradition under the European arrest warrant legislation
and applications for extradition under the agreement with the
United States are concerned will work together, how the priority
will work out. I am not sure that I have really mastered the effect
of the new Article 10(2). What is the status? Has this now been
agreed as an amendment to the original text?
(Mr Ainsworth) There has been some discussion
about the primacy or otherwise of European extradition requests,
whereas the position now is that the decision will be taken by
the requested State taking account of those list items as to which
should take primacy effectively. That is not totally settled yet.
(Mr Welsh) Your Lordship asked the question about
the French position and I think it would be fair to say that the
minor amendment is designed to convince the French that should
the European Union in the future decide that European arrest warrants
should take primacy, we would not be bound by this agreement to
set aside that primacy in the case of a serious request from the
United States. So the review system in a sense is put into place
in case at some stage in the future the European Union decides
that the EAW will take precedence over any other request.
105. What is the status of this? Has this been
agreed subject to scrutiny?
(Mr Welsh) That is the latest presidential draft.
106. So it is a proposal?
(Mr Welsh) Yes.
(Mr Ainsworth) Which we are hoping will be agreed.
107. It has gone through the negotiating channels
so far as the Council is concerned, has it?
(Mr Welsh) My assumption is the Presidency would not
be putting it to Council unless they had checked it with the Americans
108. Thank you. I wanted to move on to the Mutual
Legal Assistance Agreement unless any members of the Committee
have got any further questions to ask on the Extradition Agreement.
I wanted to ask a question about the application of this in capital
punishment cases. If America is asking for mutual legal assistance
for the purposes of a capital punishment case being tried in America
then as I understand it we would have to co-operate. Is that not
(Mr Ainsworth) We do not have to co-operate. We can
take a decision on a case by case basis.
109. Is there a reason for not expressly referring
to and accepting capital punishment cases rather than leaving
it to the case by case basis?
(Mr Welsh) I think the American side found that difficult
110. They found it difficult to accept that
we should decline to help them in capital punishment cases. Could
we not ask for the same assurances as a matter of practice?
(Mr Ainsworth) We could do what we wish to do at the
end of the day. This is a difficult area. Do we refuse, where
the Americas are dealing with a capital punishment case, to offer
any assistance in any circumstances whatsoever? Let us take an
horrendous terrorist offence within the United States. Yes, potentially
people committed a crime there, they have the death penalty, but
before even thinking about the individual case presented to us
are we going to flatly refuse in any circumstances to assist in
that case whatsoever? I do not think that is a position that we
would want to get ourselves into, but we do need to reserve the
situation so that we can judge the merits of the individual circumstances.
111. Case by case as you said?
(Mr Ainsworth) Yes.
112. Thank you. Article 4(1)(b)) of the mutual
legal assistance provision has the expression "otherwise
involved in a criminal offence, non-banks and transactions unrelated
to accounts". These are rather broadly expressed concepts.
Is there any clear meaning which has been agreed between negotiating
parties as to what is meant by these terms or are they going to
be dealt with on a case by case basis?
(Mr Ainsworth) We take "otherwise involved"
to mean someone who is under investigation.
113. So it is limited to someone who is under
investigation and "otherwise involved" would not be
given a wider meaning than that?
(Mr Ainsworth) We would require some assurance that
there was an actual investigation going on.
114. Of the individual?
(Mr Ainsworth) We would not be allowing fishing expeditions
to take place without the jurisdiction.
(Mr Clayton) An innocent third party may be involved,
my Lord, because their account might be used for money laundering
without their knowledge and it would cover such a person.
115. So it would not necessarily be an investigation
in the criminal sense?
(Mr Clayton) It is a broader investigation, but the
person may not be the person being investigated.
116. What about non-bank financial institutions?
(Mr Ainsworth) Building societies?
117. Most of them are banks now, are they not?
(Mr Ainsworth) Bureaux de Change.
118. "Financial transactions unrelated
to accounts", I found that the most puzzling of all. What
(Mr Ainsworth) Bureaux de Change. There are no accounts.
119. Article 4(1)(b) of this agreement is drafted
in discretionary terms so that Member States can, but need not,
provide assistance under its terms. Does the Government have any
particular intentions about this?
(Mr Ainsworth) Where it is possible under UK law to
identify account transactions which are held by institutions other
than banks we would wish to provide assistance so long as there
were proper grounds for the request and the assistance that is
requested is proportionate and the capacity of different Member
States and of the US in this regard is not identical and the provision
is not mandatory on any of the states.