APPENDICES TO THE MINUTES OF EVIDENCE
Replies from the Home Office to Written
Questions from the Home Affairs Committee on the draft Extradition
1 OF THE
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
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
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
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
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
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
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
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.
2 OF THE
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
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
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.
1 AND 2 OF
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 1989see, 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.
5 OF THE
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
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
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.
RACISM & XENOPHOBIA
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:
GenocideChapter 11, Sections 6 & 7
GenocidePunishable with 4
years to life imprisonment,
Preparation of genocidepunishable
with 4 months to 4 years
WarmongeringChapter 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,
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
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
Dissemination of Propaganda of Unconstitutional
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.
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
Assault the human dignity of others
by insulting, maliciously maligning or defaming segments of the
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
to broadcast such content on the
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
There are two crimes under the Portuguese penal
code that could be linked with racism and xenophobia:
Racial or religious discrimination
In addition racial hatred constitutes an aggravating
circumstance for the crime of murder (art.132)
Discriminationunder Article 510
It is an offence for racist, anti-Semitic or
other reasons relating toreligion 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 servantunder Article
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
Discrimination by businessArticle 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 factorArticle
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:
IncitementChapter 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
Act on Responsibility for Electronic Bulletin
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 16offences 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 36Fraud and dishonesty
Section 6 & 7Usurytaking 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 51Security market offences
Section 3market 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 obtainingArticle 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.
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
causes himself to be transported
by a taxi or rental vehicle.
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 fraudSection 263a
Is punishable with up to five years.
Subsidy fraudSection 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 FraudSection 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 insuranceSection 265
Punishable with imprisonment for up to three
years or a fine.
Obtaining benefits by devious meansSection
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 fraudSection 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
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
If someone damages something that is insured
so as to benefit fraudulently from that insurance.
SwindlingChapter 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
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.