Select Committee on Home Affairs First Report



20. Before proceeding to discuss those provisions of the Bill about which we have particular concerns, we wish to make some general comments about the European Arrest Warrant framework decision and the Government's decision to agree to it.

21. As discussed in paragraph 16 above, article 2.2 of the framework decision provides that surrender of a suspect under a European Arrest Warrant will not be subject to the dual criminality requirement where the offence for which extradition is sought:

  • falls into the list of 32 offences, and

  • carries a maximum penalty of at least three years' imprisonment in the issuing state.

Dual criminality is the principle that the offence for which extradition is sought must also constitute an offence under the law of the state from which extradition is sought. Currently, the dual criminality principle applies to all extradition requests made to the UK. Article 2.2 would limit the principle's application. It would mean that any extradition offence that falls under it need not constitute an offence under UK law; it would be sufficient that it constitutes an offence as defined by the law of the issuing category 1 territory.

22. Speaking in December 2001, the Parliamentary Under-Secretary at the Home Office, Mr Bob Ainsworth MP, said that:

"It is right that we should approach our European neighbours, all of which have incorporated the European Convention on Human Rights, on the basis of mutual trust. We should not assume that our criminal justice system is infinitely superior to that of other countries...We are accepting for the first time that our European partners should be able to frame their charges according to their national law...and we would not try to double-guess each detail of such issues. Extradition proceedings are not a mini-trial, and when the trial is to be held in Europe, we should not be looking under every stone to find out how it may allegedly be inaccurate".[12]

23. We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be as blithely confident as the Parliamentary Under-Secretary that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the UK.

24. Our sense of unease is heightened when we look at the list of 32 offences specified by article 2.2 of the framework decision. The text of article 2.2 is set out in Appendix 69. It is apparent that these offences are defined in generic terms and are probably better described as "categories of offence". As noted above, the UK Parliament has no power to amend them.

25. We asked the Home Office what information it has about how these offences are defined in other countries. The Home Office responded that it "does not have detailed definitions of offences in the criminal justice systems of other EU member states". As a result of our query, however, the Home Office did make inquiries about what offences in other EU member states might fall within the offences of "racism and xenophobia" and "swindling"; the results of that inquiry are printed in an appendix to the Minutes of Evidence.[13]

26. Not only does it appear to be largely unknown how the categories of offence will be defined by the current law of other EU member states, there is no way of knowing how those offences may be defined by the future law of member states. The types of offence that could be classified as falling within such categories as "participation in a criminal organisation", "terrorism", "corruption", "fraud", "computer-related crime", "environmental crime", "racism and xenophobia", "swindling" or "sabotage" appear to us to be extremely broad.

27. The European Scrutiny Committee has commented that many of these offences are not defined at EU level.[14] Where this is the case, the Committee considers that the precise scope of the offence will vary from member state to member state, and that the legal classification of the offence will be a matter for each individual state. If the UK is asked to execute a European Arrest Warrant, it will not be able to refuse to execute the warrant on the grounds that it disagrees with the issuing state's legal classification of the offence. The UK will, in effect, be bound by the classification made by the issuing authority.[15]

28. We are concerned about the generic nature of some of the 32 offences in relation to which dual criminality will be excluded. We consider that the effect of the framework decision is such that there is nothing to prevent another member state from classifying an offence as falling into, say, "participation in a criminal organisation", "racism and xenophobia" or "sabotage" where the UK would consider such a classification inappropriate. To use the example of the recent case of the British "plane-spotters" charged with spying in Greece, under the new arrangements there would be nothing to prevent the Greek authorities from determining that such conduct amounted to "sabotage" or, if the plane-spotters had recorded their observations on a laptop computer, "computer-related crime". If the Greek authorities were to classify the offences with which the plane-spotters were charged as falling into one of the 32 offences listed in article 2.2, then the UK would not be able to refuse to extradite them on the grounds that their conduct would not constitute an offence in the UK.

29. Notwithstanding these concerns, in June 2002 the British Government agreed to the framework decision and the UK is thus irrevocably committed to its provisions, including the abolition of the dual criminality safeguard in relation to extradition requests from fellow members of the EU and the list of 32 offences, or categories of offences, in respect of which dual criminality will no longer apply.

30. This being so, it is worth reviewing the extent of parliamentary scrutiny of the framework decision. The draft decision was proposed by the EU Justice and Home Affairs Council in September 2001. It was considered by the House of Commons European Scrutiny Committee which made several reports on the subject in October and November 2001.[16] These expressed concern over aspects of the decision, and recommended that a debate be held on the floor of the House.[17] In fact the matter was debated not on the floor but in European Standing Committee B, which held two meetings on this subject in December 2001. The Committee agreed, on division, to a Government motion "support[ing] the Government's active participation in the debate on the draft Framework Decision and the Government's intention to ensure that extradition within the European Union takes place on the basis of the principles of mutual recognition".[18] This resolution was subsequently approved by the House, on division, on 12 December 2001. The European Scrutiny Committee returned to the subject and took oral evidence in January 2002, producing a further report the following month.[19] In this they stated that "the safeguard of dual criminality has been too lightly discarded", and made further criticisms of the draft framework decision.[20] The human rights implications of the draft decision were considered by Sub-Committee E of the House of Lords Select Committee on the European Union in February 2002.[21] The framework decision was finally approved by the Justice and Home Affairs Council, with the assent of the UK Government, on 13 June 2002.

31. We note that, notwithstanding the recommendation of the European Scrutiny Committee, this very important issue has not been debated on the floor of the House of Commons. However, we recognise that the House gave formal assent in December 2001 to the proposition that extradition within the EU should take place "on the basis of the principles of mutual recognition", and that the Government has taken this as conferring authority for it to give binding UK assent to the framework decision. The relaxation of dual criminality represents a significant reduction in the rights of UK citizens. Individuals could be extradited for alleged offences that are not crimes in the UK. We recommend that, in order to provide some safeguard against clear abuses of this new procedure, the Home Secretary give consideration to the following proposal: that in each case the district judge should look at the terms of the offence specified in the European Arrest Warrant and make a statement as to whether dual criminality applies. In cases where the alleged offence is not a crime in the UK a separate decision about whether to extradite should then be made by the Home Secretary, who is responsible to Parliament.

32. In the remainder of this report we concentrate on the details of implementation of the framework decision as embodied in the Extradition Bill.

12   Stg Co Deb, European Standing Committee B, European Arrest Warrant and Surrender Procedures between Member States, 3 December 2001, col 1. Back

13   Appendix 1, Ev 15, 19-23. Back

14   The Committee states that offences such as terrorism, money-laundering and trafficking in drugs or human beings are defined at EU level or are the subject of proposals for framework decisions. Other offences, such as murder or grievous bodily injury, are referred to in the Europol Convention. See HC (2001-02) 152-xvii, para 15. Back

15   Ibid, para 19. Back

16   See note 2 above. Back

17   HC (2001-02) 152-viii, para 1.15. Back

18   Stg Co Deb, European Standing Committee B, European Arrest Warrant and Surrender Procedures between Member States, 10 December 2001, col 54. Back

19   HC (2001-02) 152-viii. Back

20   Ibid, para 20. Back

21   House of Lords, Sixteenth Report of the Select Committee on the European Union, Session 2001-02, The European Arrest Warrant, HL Paper 89. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 5 December 2002