Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 1-19)



  Chairman: Good morning to our witnesses. Thank you very much for coming. I apologise for keeping you waiting. This is the only hearing we are doing on the Draft Extradition Bill. An enormous amount of legislation is pending, some of which, as you will be aware, gets published only a few days before second reading, whereas in this case we have the advantage that it was put out to consultation some months ago, and we have had the advantage of seeing the responses to that. We have invited you along to help us home in on just the three or four main points where you would like to see changes. We are fishing in territory which we are slightly unfamiliar with. That is why we have invited you experts along. Can I ask Mr Cameron to start the ball rolling.

Mr Cameron

  1. Good morning. I would like to start, if I may, with the list of the 32 offences in the European Arrest Warrant that are also in the Bill and ask you—because from your evidence it looks as though you think these are too broadly drawn—why you think that is the case, and then we will go on to what possible remedies there are.

  (Mr Nicholls) Can I just make some comment by way of introduction? The Liberty paper was not drafted by me (that does not mean to say that derogates from its force) and I was only asked to assist in relation to Liberty's proposal last Friday. So there may be some shortcomings in my expertise, and my colleague Ms Alegre may have far greater experience than me in this field. Just coming to your question and the description of the offences, I have only looked at them very briefly and it does seem to me that they are very widely drawn. The question is how one would decide whether or not an offence would fall into a particular category. As I understand the structure of the Bill, the designation is in fact left not to a district justice in this country but, in fact, to the authority in the requesting state. It seems to me that if you are going to have categories of offences they should be strictly drawn so that you can decide whether a thing comes in a category or not. For example, I think in the Liberty paper there is an illustration in relation to, say, computer crime and the idea of an assault occasioning actual bodily harm when someone throws a laptop at another person. Does that come into the category of computer crime or not? So if you are going to have categories of this kind they should, in fact, be tightly drawn so that they can be properly construed.

  2. The Minister said, in the European Affairs Scrutiny Committee, that the warrant will have to be framed in terms of a specific offence that falls under one of those general categories. Would that make you feel more easy about it?
  (Ms Alegre) Maybe I can help. With the warrant there is a list of types of crime which are not defined, as Mr Nicholls has said, but they are designated by the issuing magistrate. What we were suggesting was that there are possibilities within the framework of the warrant to ask for a certain level of detail in the conduct that is being covered, so that there is a possibility, potentially, under the—

  3. I am sorry. Let us take examples, as this is all so complicated. Let us assume Mr Bloggs goes to France, commits a crime that comes under one of these categories, and comes back to England. The issuing magistrate is in France? Is that it? They then issue a warrant with the category written on the bit of paper. That is then served in England on the individual and they then go in front of a district judge. That is the process?
  (Ms Alegre) Yes.

  4. So your suggestion for making that better is what exactly?
  (Ms Alegre) It is saying that as well as the French magistrate stating the type of crime that it is, there should be a degree of detail in the actual conduct that has been alleged. If they say, for example, it is a computer related crime and we are talking about the example of somebody being hit with a computer—or, if you like, you are talking about kidnapping and there has clearly been no conduct that could possibly be construed as kidnapping—you can at least send the warrant back to question whether they would like to re-frame it. If you have no details at all of the conduct, then you have no way of knowing whether it is a totally arbitrary request.

  5. So your remedy is to put on the face of the Bill that the UK justice can say "We would like more detail on that specific offence", and that specific offence should be on the warrant?
  (Ms Alegre) As I understand it, not necessarily the specific offence but the actual conduct that has been alleged, rather than necessarily defining the offence. However, my interpretation of the European Arrest Warrant is that there is not a difficulty in saying that you need a certain amount of detail, just explaining what the conduct is rather than just saying "This is a request for swindling" without saying anything further.

  6. Is this not the whole problem? In a way, is not the problem not the list of 32 offences and trying to make that more specific but that when Mr Bloggs goes in front of the district judge the district judge, as the European Arrest Warrant and the Extradition Act is written, is not allowed to look at the evidence? Is that not the real problem? In terms of protecting his rights, is that not really what we should be concerned about here?
  (Ms Alegre) The issue of a prima facie case does not apply to European cases now, so that has not changed. What we are talking about with a description of the conduct is not a description of the evidence of the conduct; we are still just talking about saying what it is that is alleged. The issue of evidence is something that has been changed.

  7. In the past?
  (Ms Alegre) In the past, on which maybe Mr Nicholls will be able to help you further.

  8. I am trying to get at the root of what the real change is here, for the offence committed by Mr Bloggs in France, coming back to England. What is actually going to change in terms of the rights that he has in front of the extraditing authority in the UK?
  (Ms Alegre) The main change is that there is no need to demonstrate that it would have been a crime in the UK or that it is a crime in the UK.

  9. Dual criminality. We will be coming on to that, and I do not want to go into that.
  (Ms Alegre) That, basically, is what the list of offences is about. In a sense, the arrest warrant is already there and the definitions are going to be up to the judges in each country and the governments in each country. In a sense, that argument has been done with the arrest warrant. It is really about dual criminality and it is about looking at the reality of the conduct and seeing whether it is just a totally arbitrary suggestion that this is swindling when actually we are talking about an expression—

  10. Your answer is not to reduce the number of categories it is to try to make them more specific. Is that right?
  (Ms Alegre) The categories themselves cannot necessarily be changed. In the European framework they are there, so in implementing it I think the categories are there. What you can ask for is greater detail in order to see whether you are talking about an arbitrary set of—

  11. You are saying "We cannot change the categories because they have been agreed in the Council of Ministers". Putting that aside, are there some of the 32 you think should not be there?
  (Ms Alegre) Things like the example of computer related crime. Computer related crime is such a vague notion and, frankly, in that sense, I do not understand why it was not changed at least to cyber crime, which does have an international legal notion. Computer related crime seems to be so broad as to be almost meaningless.

  12. One of my questions was amending those parts of the Bill that relate to the European Arrest Warrant. You cannot take out a category, really. Is that what you are saying?
  (Ms Alegre) I think that is the case, but if what is happening is implementation of the European Arrest Warrant then those categories are there. But I do think there is scope for asking for more detail just to ensure that we are not talking about absolutely random identification of list crimes.

  13. Mr Crossman, is there anything you are burning to mention?
  (Mr Crossman) No. I should possibly clarify that the reason why I have been silent is because my personal background is not in extradition (although I have been working for Liberty) which is why Mr Nicholls has kindly come along to speak on Liberty's behalf, as his expertise in extradition is far greater than mine, and I would defer to him on every issue. Essentially, everything that Mr Nicholls says would be the position of Liberty.

  14. I have one last point. I do not want to get into dual criminality because that is coming in a minute but I want to ask: would it be helpful if for each category 1 territory they were actually required to maintain a list of which laws fell into the 32 offences? There is a danger, is there not, that you have got something like racism, xenophobia, where we all sign up to it, we pass the law and then four or five years down the line Lithuania (which is just about to join the EU) writes a slightly batty law. Is that the concern?
  (Ms Alegre) That was the concern. That was the concern about the question of whether initially there should be a positive list of offences or whether there should be a negative list, if you like, where you make a list of things that you say you will not extradite for. That was the debate at European level. It is difficult at this stage, and that is really the big problem with it, that there is no way of knowing what will be made law in any other European Union country tomorrow.

  15. Would it be a good idea if each territory 1 country was required to have a list that it published of which offences fell into which category?
  (Ms Alegre) It would be very helpful, but on a UK level the UK could, I suppose, unilaterally do that for requests that were made from the UK. However, the discussion about whether or not those lists should exist was had at European Union level, and it has not happened.

  16. It is a bit unsatisfactory, really, is it not, that here we are discussing these quite fundamental rights and a lot of your answers to questions are to the effect that the dog has barked and the caravan has moved on? It is all a bit late.
  (Ms Alegre) Yes, it is unsatisfactory.


  17. In practice, however, no judge is going to authorise an extradition unless he has got some details of what the offence is so he can see whether it is an offence in this country, whatever is on the face of the Bill. Is that not right?
  (Ms Alegre) Well, no, he does not need to see whether it is an offence in this country, according to this.

  18. I am talking about in practice, not whether he needs to or not.
  (Ms Alegre) No. In practice he cannot refuse on the basis that it is not an offence in this country. He could refuse on human rights grounds or on whether there is arbitrariness or lack of proportionality, but he could not refuse purely on the basis that it is not an offence in this country, if it is within this list.

  19. So the solution, we agree then, is to write on the face of the Bill "more details required", rather than just hope for it?
  (Ms Alegre) To put it on the face of the Bill to check that the conduct, at least, could be construed as one of these types of offence. That still will not change the fact that it will not have to be an offence in the UK.

  Chairman: No, I understand that. Thank you.

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