Examination of Witnesses (Questions 360-379)
Senior District Judge Timothy Workman
23 MAY 2007
Q360 Chairman: I see. Is this a reported
case now?
District Judge Workman: Yes, it is.
Q361 Chairman: I think that probably
deals with the consultation area of questioning, but looking at
recognition and enforcement, first recognition, have there been
equivalent problems in the European Arrest Warrant area with recognition
to those that are envisaged here?
District Judge Workman: There have been cases
where the warrant itself has been challenged and it has been said
that it is not a warrant under Part 1. There has been a number
of cases where that has arisen. There are certain defects in the
completion of the form, basically, and that is regarded as mandatory
and therefore a failure to do that correctly means that the process
fails, but I think that is the limit of it.
Q362 Chairman: Are there the sorts
of equivalent grounds for non-recognition? I cannot remember,
and I ought to, what is the European Arrest Warrant regulation.
District Judge Workman: It comes under the Extradition
Act.
Q363 Chairman: That is right, of
course it does. Has it got this ne bis in idem provision
and all the rest of it?
District Judge Workman: Yes, it does. The basic
principle is we look first of all to see whether the warrant is
valid, then whether it is an extradition offence, and then we
move to the bars which are actually in the Act, which are rather
wider than the framework decision, and from the bars you move
to human rights and then health, mental and physical condition.
Q364 Chairman: Yes, but this is rather
narrower, is it not?
District Judge Workman: Oh, yes.
Q365 Chairman: There is the double
jeopardy rule.
District Judge Workman: Double jeopardy, yes.
Q366 Chairman: Then there is a discretion
to refuse. One ground of giving a discretion is age. If you are
asked, for example, to execute a warrant in respect of somebody
who is younger than your own minimum criminal age of responsibility
you have got a discretion to say no, but of course the consequence
of exercising that discretion to say no is that this luckless
young person will in fact therefore remain in custody in the other
state, which recognises a lower age of criminal responsibility.
So on the face of it, it is not a very good idea, but on the other
hand there are, as I understand it, considerations of principle.
You do not want to lend yourself to a process which prosecutes
people whom you regard as under age?
District Judge Workman: Yes. There is a similar
provision in the Extradition Act, but of course that works to
the advantage of the child.
Q367 Chairman: Exactly. That is the
great contrast to be made.
District Judge Workman: Yes, and I think that
is an important distinction.
Q368 Chairman: Absolutely. The other
discretionary grounds for non-recognition are, I daresay, ones
you would not expect to find very often. Immunity or privilege
under the law, what is that? I suppose things like diplomatic
privilege?
District Judge Workman: I suppose so, yes.
Lord Lucas: Whoever the Member is for France
at the time.
Q369 Chairman: The head of state,
quite, and diplomatic. Well, we had better pass quickly on from
there. Amnesty—I suppose we do have amnesties, do we, from
time to time?
District Judge Workman: I am not sure that we
ever had a statutory amnesty. We have a police decision that they
will not prosecute cases where you hand your knife in, and that
sort of thing, but it is not really an amnesty.
Chairman: With an assurance you will not be
arrested for doing it.
Lord Burnett: There is supposed to be a tax
amnesty, which has been very widely advertised, which is going
to run out very shortly, if that is of any help to Members of
the Committee!
Chairman: Quite!
Lord Burnett: Overseas bank accounts.
Q370 Chairman: Can we pass then to
enforcement, because a number of our witnesses, I think, have
envisaged that there may be problems there. How do you see that?
District Judge Workman: Yes. Could I rather
rudely just interrupt in relation to the bars? I am concerned
about sending somebody back who may be seriously ill and I think
it would be useful to have some provision to give discretion to
the court if somebody needs to be returned under the supervision
order where they are seriously ill. A power to defer, or something
of that sort, would be sufficient, but I think it would be quite
difficult at times, if somebody was seriously ill, to have to
make the journey.
Q371 Chairman: On the face of it,
there is nothing to deal with that at all. There it is, you have
got this person under supervision and he has been loyally abiding
by the various requirements put upon him, and then suddenly the
issuing state says, "Right, we want to try him next week."
District Judge Workman: Yes, and he is in hospital.
Q372 Chairman: In the ordinary way
you would simply say, "Right, off you go." I am not
sure how it does work actually. What happens in that situation
ordinarily in the scheme?
District Judge Workman: I do not know quite
how it does work, actually. It is not really clear from the framework
decision, but I think you could envisage the situation where there
is a breach of condition and he comes back before the court and
is then going to be transferred back. If at that point somebody
is admitted to hospital with a heart attack, or something of that
sort, you would not want to start making an immediate order, you
would want to defer it until he was well enough to go.
Q373 Chairman: That might happen
either because he has breached a condition and therefore, as you
say, it is during the course, or it might happen at the end when
he is simply summoned?
District Judge Workman: Yes.
Q374 Lord Lester of Herne Hill: In
the asylum jurisdiction, an asylum judge would obviously look
at the Human Rights Act and decide that someone suffering from
AIDS, for example, facing a return to a country where he could
not get treatment even if he was a failed asylum seeker might
not be returned to that country because it would breach the Human
Rights Convention. Presumably in an extreme case that kind of
consideration would inform your own jurisdiction, would it not,
because it would be inhuman to deprive someone of medical attention
where he needed it here and could not get it there and the effect
of the order would be to kill him or to subject him to some absolutely
gross inhumanity?
District Judge Workman: Yes. I think the extreme
cases would be covered by the Human Rights Act, but I think in
the less extreme cases, somebody who is temporarily ill but it
is not life-threatening and who could probably receive treatment
in the country he was going to anyway, the situation is slightly
different and I think most courts would like to have the discretion
to be able to say, "We will defer the decision for a week
or two until you are well enough to travel," but that is
just a personal view.
Q375 Chairman: It may be that that
would just be expected to be worked out between two civilised
nations, but certainly there is nothing in the framework decision
which appears to address it. Beyond that, there seems to us to
be a number of problems, not least the question of how one decides
the issue as to whether or not there has been a breach of the
obligations. Articles 16 and 17 appear to have been drafted upon
the supposition that that will be self-evident, either there will
have been a breach or there will not, but there may be a possibility
of a breach, an alleged breach, but a disputed breach as to whether
somebody has gone within a prohibited area or whether he has failed
to attend the police where he has some perfectly good excuse,
and all the rest of it?
District Judge Workman: Yes.
Q376 Chairman: How do you envisage
those alleged breaches being dealt with?
District Judge Workman: I am afraid I would,
I think, apply the principles we use now, which is that if someone
is arrested for a breach of the conditions he is brought before
the court—and he has to be brought before the court within
24 hours, to the minute—and if he denies the breach of condition
then evidence, representations, are heard and a decision made.
Q377 Chairman: Within 24 hours of
what?
District Judge Workman: Of arrest. That is the
way it operates at the moment. I am bound to say that, on my reading
of Article 16, I do not think it is workable because, taking a
rather absurd example, if a defendant in England, having been
bailed by the French court, is seen to be getting on a plane to
South America, it would be no use us reporting the matter to the
French Court because by then he will have gone.
Q378 Chairman: You do not read this
framework decision as allowing the executing state any power,
so to speak, to arrest preparatory to gaining the instruction
of the issuing state?
District Judge Workman: It does not appear on
the face of it, no.
Chairman: I follow. I think Lord Bowness has
a question on this.
Lord Bowness: I think the question has just
been asked and answered, thank you.
Q379 Chairman: So you do not actually
think that there is any power at the moment to do anything to
prevent an apprehended breach of condition?
District Judge Workman: It is not contained
in the wording which I have. Obviously at some point if this framework
decision is ratified and then embodied into our law, it may well
be that our law would contain a provision.
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