Select Committee on Home Affairs Appendices to the Minutes of Evidence



Replies from the Home Office to Written Questions from the Home Affairs Committee on the draft Extradition Bill


1.   Why are the 32 offences listed in the European Arrest Warrant not listed on the face of the draft Extradition Bill? What information does the Home Office have about how these offences are defined in other countries?

  The 32 generic offence categories are set out in Article 2.2 of the Framework Decision on the European arrest warrant. Clause 47 of the draft 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. While we do not know of any plans to amend the list, we believe that it would be unnecessary to require further primary legislation, were any change to the list to be proposed.

  The Home Office does not have detailed definitions of offences in the criminal justice systems of other EU Member States. However, we have made inquiries about what offences in other countries might fall within the generic category of racism and xenophobia and swindling, since it is apparent that this is an area of particular concern. Details are set out in Annex A to this note.

2.   Why does the draft Bill reduce the protection specified in the article 2.2 of the EAW framework decision, of a maximum sentence of at least three years, to a maximum sentence of at least 12 months? Are other countries implementing the EAW with the same penalty threshold?

  The European arrest warrant is based on the principle of mutual recognition and that implies trust in other EU Member States' criminal justice systems.

  In respect of offences falling within the generic offence categories listed in Article 2.2 of the Framework Decision on European arrest warrant, we believe that applying a 12 month threshold is appropriate. This level is sufficient to ensure that the conduct in question must be regarded as a matter of some seriousness in the criminal justice system of the country making the request and a three year threshold has never previously featured in extradition law.

  So far as we are aware, no other EU Member State is as well advanced in preparing its implementing legislation so we do not know what their intentions are in this regard.

3.   Why is it necessary to include in the Bill clause 12(2) as an exception to the bar on extradition of people to countries where the death penalty may apply, given that no category 1 territory currently provides for the death penalty as a form of punishment? Is it intended to add other territories to category 1, in future, which may provide for the death penalty as a form of punishment?

  It is correct to say that no EU Member State imposes the death penalty. However, it will be possible for Parliament to designate non-EU countries as category 1 countries and it is conceivable that such a country may retain the death penalty on its statute book.

  The Government has no current plans to invite Parliament to designate any country which still retains the death penalty as a category 1 country but it seems a sensible precaution to include this provision.

4.   What is the legal effectiveness of written assurances, given presumably by a state's executive branch and purporting to bind a state's judicial branch, made in accordance with clauses 12(2) and 70(2) of the draft Bill?

  We have for a number of years extradited to countries (notably the United States) in potential death penalty cases on the basis of assurances received that a death sentence will not be carried out. Clearly such an assurance must come from a person who is competent to issue it and it must bind the bodies which impose and carry out the sentence.

  This will continue to be the case under the Bill and the District Judge will need to be satisfied that any such assurance that is given is indeed binding. There is no reason why an assurance must automatically come from a state's executive branch. Rather it could come from, say, the prosecutor concerned who has discretion whether or not to seek the death penalty.

  There have not been any problems in recent years in regard to death penalty assurances and we see no reason why the new provisions should give rise to any difficulties.

5.   Why is it intended that people against whom extradition warrants have been withdrawn should be able to be detained for up to a further seven days? Would this be potentially in breach of the ECHR?

  The draft Bill provides in clauses 32, 34 and 35 that, in the event that the extradition request is withdrawn, the fugitive must be discharged. We would expect this to happen immediately. As an additional safeguard if the fugitive has not been discharged, he must be taken to be discharged after seven days. It is certainly not the purpose of these clauses to provide for the fugitive to be detained for an additional seven days once the warrant has been withdrawn. We appreciate that our intent may have been misunderstood and we are considering whether the drafting could be amended to make matters clearer.

6.   Why, in relation to category 2 territories, does the draft Bill provide that a suspect's mental and physical health may act as a bar to extradition, while it makes no such provision in relation to category 1 territories? What is the significance of this distinction?

  The Joint Committee on Human Rights also commented on this point.

  The Bill is being amended to provide that mental and physical incapacity appears in both part 1 and part 2 of the Bill.

7.   Who might be designated as "appropriate persons" to arrest people under clause 3 and 4 of the Bill? If the Government has particular categories of person in mind, why are these not stated on the face of the Bill, as a means of limiting what is currently an entirely open-ended order-making power?

  It is the Government's intention that, in the first instance, as well as police officers, officers of HM Customs and Excise should be empowered to execute European arrest warrants.

  I can confirm that, contrary to some of the speculation that has arisen, there are no plans to extend the power to execute European arrest warrants in this country to foreign law enforcement officials.

  I also do not believe that it is justified to describe the power as "open-ended". Clause 3(7) of the draft Bill, when read with clause 167(5), provides that designation of an appropriate person is subject to the affirmative resolution procedure.

8.   Why does clause 3 of the draft Bill provide that an arrest under a Part 1 warrant should be able to be carried out without the arresting officer being in possession of a warrant, given that the EAW framework decision requires the arrested person to be informed of the "contents" of the warrant? Why does clause 4 of the draft Bill provide that an arrest under a Part 1 warrant can be made where no warrant has yet been issued, provided the arresting officer has reason to believe that a warrant has been or will be issued?

  Provisional arrest before an extradition request has been formally received has been possible for many years and is provided for in the Extradition Act 1989.

  A British police officer may stop a person for an unrelated matter, such as a road traffic offence. If a computer check reveals that a European arrest warrant exists for the person concerned we would clearly want the police officer to arrest him there and then even though he is not physically in possession of the warrant at that time.

  It is also perfectly possible to conceive of circumstances where a foreign police force are in pursuit of a suspect who manages to board a ship or plane to the UK before he can be apprehended. In this case we would expect the foreign police force to alert the UK authorities so the suspect can be arrested on arrival even though this might be before the foreign police force have managed to obtain and transmit the European arrest warrant.

9.   To what extent will the Bill apply retrospectively to offences committed before enactment and to applications made before enactment? Are all other countries to which the EAW applies introducing it with the same provision as to retrospection?

  In principle the new arrangements will apply to all European arrest warrants received after the new Act has been brought into force even if the conduct to which the warrant relates occurred before that date.

  However, the Bill also contains a power to transfer existing cases to the new arrangements. It is the Government's intention that this power should be used only very sparingly and only if it is justified and there would be clear benefits in doing so.

  France, Italy and Austria have all made declarations that they will handle incoming requests relating to conduct which occurred before specified dates under their existing extradition arrangements. Beyond that, all EU Member States will be bound by the provisions of Article 32 of the Framework Decision on the European arrest warrant which provides that all requests received after 1 January 2004 must be handled under the new arrangements, irrespective of the date of the conduct in question.

  The UK has not made a declaration of the kind made by the three countries listed above as we consider that what should determine how a request is handled is the date when it is received rather than the date of the conduct to which it relates, particularly as the conduct might straddle the cut-off date.

10.   To what extent will a refusal or grant of bail be subject to appeal?

  Bail decisions under the Extradition Bill will attract the provisions of the Bail Act 1976. This means that an arrested person will have the same rights to bail and to appeal against bail decisions as they would in a domestic case. They could appeal a refusal of bail to the Crown Court or the High Court.

11.   Why does the draft Bill not require that an arrested person should have access to free and adequate legal advice before giving consent to being extradited, and why does it not require the judge to satisfy him or herself that the person has had access to such advice and has fully understood the implications of consenting to extradition, before accepting any such consent?

  The Police and Criminal Evidence Act 1984 gives all of those who are arrested the right to free legal advice. That will include those arrested under the new extradition arrangements immediately after their arrest which will be before they have the opportunity to consent to their extradition.

  At the initial hearing the judge is required not only to explain to the fugitive that it is possible to consent to his extradition, but also to explain the effect of consent, the procedure that will apply in the event of consent and also the fact that consent is irrevocable. This is precisely to ensure that people do not inadvertently give consent without appreciating the full consequences.


12.   In what circumstances might the Government designate certain category 2 territories as being exempt from the requirement to demonstrate a prima facie case? What would be the benefits of being able to do so? If the intention is to allow the Government to give effect to possible future bilateral treaty arrangements, why is this not stated on the face of the Bill, as a means of limiting what is currently an entirely open-ended order-making power?

  Extradition within Europe is currently governed by the European Convention on Extradition (ECE) and that instrument will continue to be the basis for extradition with the non-EU members of the Council of Europe.

  Those countries will be in category two. The ECE does not allow for prima facie evidence to be required which is why we need the ability not to impose the requirement to supply prima facie evidence with their extradition requests on certain category two countries.

  Beyond that, as the review of Extradition Law published in March 2001 made clear, the Government believes there is a case for removing the prima facie evidential requirement from certain Commonwealth countries and bilateral treaty partners.

  There are no current plans to negotiate bilateral extradition treaties with any new countries. However, should a new bilateral treaty be negotiated one of the issues that it would need to include would be the evidential requirement. That would in turn determine whether Parliament was asked to designate as a category 2 country required to provide prima facie evidence or as a category 2 country which was exempt from the prima facie evidential requirement.

  Countries which do not have to provide prima facie evidence have to meet the evidential requirements set out in the ECE.

13.   What is the UK's current position in relation to giving a notification to article 27.1 of the EAW framework decision? If the UK were to give such a notification, are you concerned that the disapplication of the rule of speciality would remove an important protection from any person extradited from the UK to another state which has also given an article 27.1 notification?

  The Government does intend to give notification under Article 27.1 of the Framework Decision on the European arrest warrant that it intends to adopt the "higher" position on speciality in respect of any other EU Member State that reciprocates.

  As the evidence given to the Home Affairs Committee by the representatives of Justice and Liberty indicated, the issue of speciality does not often arise. However, we believe that when it does arise our position should be guided by the principles of mutual trust and mutual recognition and that adopting the higher position is consistent with this.


14.   Should the order-making power designating category 1 and category 2 countries be subject to the affirmative procedure for delegated legislation? Should it be exercised in relation to only one country on each order? Are there circumstances in which such designation would have to be made in a hurry?

  We believe that the negative resolution procedure is the appropriate one to use for orders designating countries as either category 1 or category 2 extradition partners. This follows the precedent of the Extradition Act 1989—see, for example, Section 5 of that Act.

  We see no reason why a designation should not include more than one country. For example, we will want to designate all other EU Member States as category one countries at the time when the Bill comes into force and we see no reason why this should not be done in a single order.

  We propose to designate all our extradition partners at the time when the Bill comes into force. Further designation orders will normally only be required when additional countries ratify international agreements or if we conclude further bilateral treaties. There should be plenty of warning for this so, in principle, there should be no need for hurried designations.


15.   Why is it not possible to include on the face of the new Bill, as is the usual practice, the parts of the Extradition Act 1989 and the Backing of Warrants (Republic of Ireland) Act 1965 which will be repealed or amended when the new Bill is fully in force?

  It is our intention that the new arrangements for which the Bill will provide will apply to all extradition requests received after the new legislation comes into force.

  It is therefore the Government's intention to repeal both the Extradition Act 1989 and the Backing of Warrants Act 1965 in their entirety. However, this can not happen until all cases in the system at the time when the new arrangements come into force have been finally disposed of which is why the power to repeal by Order has been included in the Bill.

16.   What are your intentions in relation to the future repeal or amendment of section 6(1) of the Extradition Act 1989? If you intend to repeal section 6(1), are you concerned that this would create a serious risk that people could be extradited for political offences, or subject to extradition requests that are motivated by race, religion, nationality or political opinions? Do you consider the draft Bill should provide protection for these types of circumstances?

  As noted above, it is the Government's intention that the Extradition Act 1989 should be repealed in its entirety and that future extradition requests should be handled under the new arrangements.

  Clause 61(3) of the draft Bill provides that a person can not be extradited if the extradition request is made for the purpose of punishing a person on account of his race, religion, nationality or political opinions or if he is likely to be prejudiced at his trial on account of these factors. This provision applies to part 2 of the Bill but, at the suggestion of the Joint Committee on Human Rights, we will be including a similar provision in part 1.


17.   Has the assessment of the effect of the Bill on public sector manpower and finances been revised upwards since publication, not least in view of the Metropolitan Police's comments on the resource implications of the draft Bill?

  We note the comments of the Metropolitan Police Service (MPS). We do not believe that the new extradition regime for which the Bill will provide will have a significant impact on MPS resources. However, any increase in MPS expenditure would be offset by reduction in court costs and HM Prison Service expenditure. The Government, therefore, remains of the view that the overall effect of the Bill on public sector expenditure and manpower will be neutral.

18.   What are the procedures for amending those parts of the Bill that relate to the European Arrest Warrant?

  The Bill will be presented to Parliament in the same way as any other Bill and it will be open to Parliament to amend any part of it.

November 2002

Annex A



  Such laws are new to Finland and have not yet been fully developed. It is envisaged that the following will fall under the heading racism & xenophobia:

Genocide—Chapter 11, Sections 6 & 7

    —  Genocide—Punishable with 4 years to life imprisonment,

    —  Preparation of genocide—punishable with 4 months to 4 years

Warmongering—Chapter 12, Section 2

  It is an offence, if, during an ongoing or imminent military or international political crisis, for the purpose of causing Finland to be at war of the target of a military operation, to:

    —  publicly disseminate statements or other propaganda intended to turn the public opinion in favour of the carrying out of offensives;

    —  unlawfully commit a violent act against a foreign state or the representative, territory or property of a foreign state.


  There is no specific offence of xenophobia in French law. The following have elements of racist conduct or motivation:

Genocide (Article 211-1)

  Genocide occurs where, in the enforcement of a concerted plan aimed at the partial or total destruction of a national, ethnic, racial or religious group, or of a group determined by any other arbitrary criterion, one of the following actions are committed or caused to be committed against members of that group:

    —  wilful attack on life; serious attack on psychic or physical integrity; subjection to living conditions likely to entail the partial or total destruction of that group; measures aimed at preventing births; enforced child transfers.

Other crimes against humanity (Article 211-2)

  Deportation, reduction to slavery or the massive and systematic practice of summary executions, of abduction of persons followed by their disappearance, of torture or inhuman acts, inspired by political, philosophical, racial or religious motives, and organised in pursuit of a concerted plan against a group of a civil population.

Offences against the dignity of persons

Discrimination (Article 225-1)

  Discrimination comprises any distinction applied between natural persons by reason of their origin . . . or their membership or non-membership, true or supposed, of a given ethnic group, nation, race or religion.

  In addition, there are certain offences that constitute "contraventions", that is, more minor offences. The relevant offences are:

  Making defamatory comments to a person or group of people on the basis of their origin or their membership or non-membership (whether real or supposed) of a particular ethnic group, nation, race or religion (Article R624-3);

  Insulting a person or group of people on the basis of their origin or their membership or non-membership (whether real or supposed) of a particular ethnic group, nation, race or religion (Article R624-4);

  Inciting discrimination or hatred or violence towards a person or group of people on the basis of their origin or their membership or non-membership (whether real or supposed) of a particular ethnic group, nation, race or religion (Article R625-7).


Dissemination of Propaganda of Unconstitutional Organisations—Section 86

  This includes material in support of unconstitutional or banned organisations, even if the organisation is abroad but supports the goals of a German organisation that has been banned or declared to be unconstitutional. It also includes Nazi propaganda. The person can be sentenced to three years in prison or a fine.

  Section 86a outlaws the distribution of the symbols of unconstitutional organisations, this includes using them in their writing or at meetings and includes forms of greeting as well as physical items like flags, insignia, etc. The person can be sentenced to three years or a fine.

Incitement—Section 130

  If it could cause a breach of the peace it is illegal (and punishable with between three months and five years in prison or a fine) to:

    —  Incite hatred against segments of the population or call for violent or arbitrary measures against them; or

    —  Assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population.

  In addition the following crimes attract a punishment of up to three years or a fine:

    —  to disseminate, publicly display, offer to under 18's or produce written material that incites hatred against segments of the population or a national, racial or religious group.

    —  to broadcast such content on the radio.

  Finally, it is an offence, punishable with up to five years in prison or a fine, to:

    —  deny or render harmless, publicly, in a meeting or in written material, an act committed under the rule of National Socialism of the type indicated in Section 220a subsection (1) in a manner capable of disturbing the public piece.


  Law 927 (1979) outlaws:

    —  Public actions, including oral or written, which knowingly instigate discrimination, hatred or violence against a person or a group of persons, based on their racial or national origin or religion.

    —  The participation in organisations, or encouraging others to join such organisations, that propagate and instigate discrimination on racial or national grounds;

    —  Public expression, including oral and written, of offensive ideas against a person or a group of persons, based on their racial or national origin or religion.

    —  Refusal to provide services or sell goods based on the racial or national origin or religion of the customer.


  There are two crimes under the Portuguese penal code that could be linked with racism and xenophobia:

    —  Genocide (art. 239)

    —  Racial or religious discrimination (art. 240)

  In addition racial hatred constitutes an aggravating circumstance for the crime of murder (art.132)


Discrimination—under Article 510

  It is an offence for racist, anti-Semitic or other reasons relating to—religion or beliefs,—membership of an ethnic group or race, national origin to:

    —  incite discrimination, hatred or violence against groups or associations, or

    —  knowing it to be false or with a reckless disregard for the truth disseminate harmful information about groups or associations

  Both offences are punishable with between one and three years and a fine.

Discrimination by public servant—under Article 511

  On the same basis it is an offence for any person entrusted with providing a public service to:

    —  Deny another person, association, foundation, firm or corporation or members of such a benefit to which he/they is/are entitled.

  Anyone found guilty of such an offence is liable to imprisonment from six months to two years and a fine and to be disqualified from public office or employment for a period of one to three years. A public servant guilty would be more severely punished.

Discrimination by business—Article 512

  This is a similar clause in relation to any person who discriminates in his business or professional life. If they are found guilty they will be disqualified from exercising that profession, office trade or business for a period of one to four years.

Racism as an aggravating factor—Article 22.4

  Under this Article it is an aggravating factor to commit a crime for "racist or anti-Semitic reasons or for any other type of discrimination relating to ...religion or beliefs ... membership of an ethnic group or race, national origin ..."


  Racist motivation is considered by Swedish law to be an aggravating circumstance. More specifically:

Incitement—Chapter 16, Section 8

  A person who threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin or religious belief shall be sentenced for incitement against a national or ethnic group to imprisonment for up to two years, or a fine. This covers the internet and other written or drawn material. In 1996 the Supreme Court held it also extended to the wearing of Nazi memorabilia.

Chapter 16, Section 9

  A businessman, public servant, organiser or a public assembly, who discriminates in the delivery of their service on grounds of race, etc. can be imprisoned for up to one year.

Act on Responsibility for Electronic Bulletin Boards

  Whoever provides an electronic bulletin board must exercise reasonable supervision over the service. They are obliged to remove racist messages. Anyone who does not may be liable to a maximum of two years imprisonment.



Chapter 16—offences against the public authorities

  It is an offence to cause a legally relevant error by providing false information to a public authority in order to gain a benefit. Punishable by up to three years.

Chapter 36—Fraud and dishonesty

  Section 6 & 7—Usury—taking an economic benefit that is clearly disproportionate can attract up to two years in prison. An aggravated offence, (as before but on a larger scale and causing considerable loss to the victim) is punishable with up to four years in prison.

Chapter 51—Security market offences

  Section 3—market distortion by making misleading offers to buy or sell or providing misleading information. Punishable by a maximum of two years. The aggravated offence involves extensive economic loss or weakening the credibility of the markets and can be punished with up to four years imprisonment.


Fraudulently obtaining—Article 313-1

  Fraudulent obtaining is the act of deceiving a natural or legal person by the use of a false name or a false capacity, by the abuse of a truthful capacity, or by means of unlawful manoeuvres, and thus to lead such a person, to his prejudice or to the prejudice of a third party, to transfer funds, valuables or any property, to provide a service or to consent to an act incurring or discharging an obligation.

  This encompasses a number of English offences: making and using false instruments; obtaining property by deception; obtaining a money transfer by deception; procuring the execution of a valuable security by deception; obtaining services by deception.

Swindling—Article 313-5

  This is quite tightly defined in French law: It occurs when a person, knowing himself to be wholly unable to meet payment or being determined not to pay:

    —  orders food or drink in premises where food or drink are sold;

    —  books and effectively occupies one or more bedrooms in an establishment letting rooms, where the occupation does not exceed ten days;

    —  orders fuels or lubricants with which he has the tanks of a vehicle partly or completely filled by a professional distributor;

    —  causes himself to be transported by a taxi or rental vehicle.


Fraud—Section 263

  Whoever, with the intent, of obtaining for himself or a third person an unlawful material benefit, damages the assets of another, by provoking or affirming a mistake by pretending that false facts exist or by distorting or suppressing true facts, shall be punished by not more than five years or a fine.

  The sentence is increased to ten years if the acts are serious, this usually means if it is perpetrated professionally or a by a gang; or incurs a loss of great magnitude or to a great number of people.

Computer fraud—Section 263a

  Is punishable with up to five years.

Subsidy fraud—Section 264

  Whoever makes false statements about facts relevant to a subsidy for himself or another; uses a subsidy contrary to its purpose, etc. can be punished with up to five years imprisonment unless it is a serious case and then it can attract up to 10 years.

Capital Investment Fraud—Section 264a

  Whoever, in relation to the sale of securities, subscription rights or shares makes incorrect favourable statements or keeps unfavourable facts secret, to a considerable circle of persons is liable to up to three years in jail or a fine.

Abuse of insurance—Section 265

  Punishable with imprisonment for up to three years or a fine.

Obtaining benefits by devious means—Section 265a

  Whoever obtains the benefits of a telecommunications network serving public purposes, means of transport or entrance to an event to institution by devious means, with the intent of not paying, shall be punished with imprisonment with not more than one year or a fine.

Credit fraud—Section 265b

  Concerns deceit in relation to an application for a loan, grant or continuation of credit for a business. It is punishable with a maximum of three years imprisonment or a fine.


Articles 396—389

  If an individual harms another's property, with the intent of benefiting from that property by convincing that person to act, omit or abstain from acting, while knowingly presenting false facts or knowingly omitting to present true facts.

  The above also relates to altering data / information on computers.


  If someone damages something that is insured so as to benefit fraudulently from that insurance.


Swindling—Chapter 9, Section 9

  A person who publishes or otherwise disseminates misleading information among the public in order to influence the price of an article, a security or other property, shall be sentenced for swindling to imprisonment for at most two years or, if the crime is petty, to a fine or imprisonment for at most six months.

  A person who, because of his position ought to possess special knowledge about a firm, intentionally or through gross carelessness publishes or otherwise disseminates misleading information among the public or among those who have an interest in the form in order to influence the assessment of the firm, from a financial perspective, and thereby causes damage is also liable to up to two years in prison.

  If either of these crimes is defined as "gross" then the maximum sentence goes up to six years.

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