Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 40-59)




  40. The draft Bill reduces to twelve months the length of sentence that would have to apply in order for an extradition, instead of the three years which I think the European Framework recommends. Do you think that is acceptable?
  (Mr Nicholls) I would have thought it was acceptable. Twelve months has been common for years in the extradition process. Two years is the highest I have ever known. I have never known three years.
  (Ms Alegre) I think the difference is that the three years only applies for the dual criminality exception. So given that we do not really know what the laws are in other Member States, I think it is safer to say there is a three year limit, because a three-year limit is certainly what is considered at a European level to be a serious crime. United Kingdom sentencing practice is very different from most other countries.

  41. Given that ours has been twelve months, as Mr Nicholls has said, what is the problem?
  (Ms Alegre) The problem is that when we are talking about losing the dual criminality requirement we do not know what laws—for example, relating to racism and xenophobia—in other countries carry, for example, a one-year sentence or a three-year sentence. Certainly, in France until very recently there were defamation cases which did carry a potential one-year sentence. Although that one-year sentence was never handed out there is no reason why a request could not be made and then a fine given. Whereas, if you extend it to the three-year level, you are likely to be dealing with more serious offences and you are likely to get rid of arbitrary questions, particularly in the racism, xenophobia, freedom of expression type offence.

  42. What do you say to that, Mr Nicholls?
  (Mr Nicholls) I do not have any comment on that. I can see the point of three years if there is no dual criminality. On the other hand, I do not see why the penalty is necessarily a protection. Either you are going to have dual criminality or you are not. If you decide not to have it, why have a three-year limit? Then there are problems as to the penalty in a foreign state.

  43. Can we do away with dual criminality?
  (Mr Nicholls) No, I think we should have dual criminality. I cannot see any really logical reason for not having dual criminality. Why should we extradite people whose conduct does not amount to an offence if it was committed here? One can think of many sorts of circumstances and types of conduct which are regarded as criminal in one country but not in another.

Mr Prosser

  44. Continuing the theme of the effect of abolition of dual criminality, you have raised some of your concerns about it. However, we have had this assurance that a judge would be able to take into account the Convention on Human Rights when making these decisions on extradition. If there was a conflict in terms of a law not being in place in one country but being in place in another, we could come down to a pretty fundamental human right that there is no punishment for that law. Is that enough protection or not?
  (Mr Nicholls) I am not sure it would operate because the punishment would be in accordance with the law of the requesting state. I am not sure that the Human Rights Act will operate in those circumstances. The greatest protection of the citizen, and it was said as long ago as the century before last, in extradition was, in fact, the discretion of a secretary of state. I know it is a huge burden on him but that discretion enabled him to take into account almost anything. It was unfettered and very often it might be information which the fugitive had no knowledge of at all. It could relate to political matters or matters peculiar within government knowledge in a state that was making a request. What remains to be seen is whether, having scrapped the secretary of state's discretion the Human Rights Act will provide the same sort of protection. The other thing that, perhaps, is a matter for concern is that if one says one is simplifying the system, if you have the district judge having to have regard to Human Rights Act considerations, you are going to build up a huge body of case law built up on different situations as they come before the court. I think it may make extradition a great deal more complex.
  (Ms Alegre) I would agree that in general I do not think the article 7 question would come in because the extradition itself is not the punishment; the punishment is according to the law of the country once you get there. It is debatable whether, if it is applied retrospectively, there could be an article 7 point on the basis that at the time you could not have been extradited from the UK because we still had dual criminality. It is a debatable point and it may well be debated. That is why we have asked that, like some other Member States (I think France, but I cannot remember exactly which ones) who have made a declaration as to the date from which the European Arrest Warrant would apply, so that it would not apply to acts committed in the past.

  45. At the beginning of the Bill the Home Secretary will be required to confirm that the Bill is compatible with the Convention on Human Rights. In this particular issue of dual criminality effectively being abolished, do you think he can rightfully do that?
  (Ms Alegre) I think that he can, particularly given that he has put a positive obligation on the judge to ensure that the extradition is Human Rights Act compliant. As I said, I do not think there is an article 7 issue with the extradition per se without dual criminality.

  46. Although the effect would flow from that decision. Punishment could come from the law of the land.
  (Ms Alegre) That punishment would be applied in accordance with the law of the land where it was applied, because the extradition is not the punishment; the punishment would be what would happen in the country where it was law. So there is some case law on article 7 to say that extradition is not a punishment in itself.

Mr Watson

  47. Can I take you to clause 61 of the Bill? The draft currently allows a suspect's mental and physical health to act as a potential bar to extradition in a category 2 country, yet the distinction is not currently made in category 1 countries. Could you give us your opinion on what seems to be an anomaly?
  (Mr Nicholls) I must confess I had not spotted it. It does seem to be an anomaly and without giving any further thought it seems to be illogical.

  48. Is that the general view?
  (Ms Alegre) Yes. I would agree with that, on a first look.
  (Mr Nicholls) I do not know whether that point has not been spotted by the draftsman. There is another point I noticed when standing outside, which is that in relation to bail provisions, the bail applications will be made before the district judge. Certainly, from experience, one knows, from appearing before district judges, very often it is difficult, even where there is a right of bail, to achieve bail for a fugitive. There is no provision whatsoever for appeal against the district judge's decision. That seems to me to be inherently wrong. My experience has shown that on many occasions where a district judge has refused bail, on appeal to the High Court and judge in chambers bail is granted.

Bob Russell

  49. That is probably why it has been drafted in that way then.
  (Mr Nicholls) If that is right then that is a classic example of a protection to the subject which has, in fact, been taken away and ought not to have been because the extradition process is not a punishment in itself.
  (Ms Alegre) On bail the one thing that they have done is actually brought it into line with domestic practice, so that may answer the appeal question—that bail in extradition cases will be dealt with in exactly the same way as domestic cases.
  (Mr Nicholls) That is only in relation to the right to bail, that is not in relation to the right to appeal. It is the right to appeal that concerns me.
  (Ms Alegre) That may need clarification.

Mr Watson

  50. Can I move you on to another area, the death penalty? How seriously do you regard the draft Bill's omission of the death penalty as an absolute bar to extradition?
  (Ms Alegre) In terms of the category 1 area, I regard that as a very serious omission because it is clear that the death penalty does not apply in the European Union, or in the candidate countries or, indeed, I think, in any Council of Europe countries, at the moment. That, therefore, begs the question of what potentially the category 1 territories are envisaged as being, finally. I cannot see any good reason for having the option of extraditing with the death penalty.

  51. Even if there is an assurance in writing that the death penalty will not be either imposed or—because, at the moment, there could be a sentence to death—carried out? Do you see that as a proposition?
  (Ms Alegre) There are two different issues. One is that if we are talking about category 1 territories, what territories are we talking about if we are talking about the death penalty, because on what one would imagine we were talking about there is no issue on the death penalty. If one of those particular countries brings the death penalty back in I can see no real justification in holding that out as a future option. The second issue about a written guarantee is where that guarantee comes from. That guarantee, presumably, comes from the state. Whether the state can bind a supposedly independent judiciary is another question. Specifically, in relation to the category 1 countries, I just cannot see any justification for having that fine line. There are other countries where they have an absolute bar on extradition in death penalty cases precisely because they say the state cannot give an adequate guarantee that a death penalty will not be imposed. That is particularly the case in federal versus state law.

  52. Can you furnish us with the countries that have got a mind to—
  (Ms Alegre) I think it is Italy and I think Spain, possibly, as well.

  Mr Watson: Perhaps we could look that up at a later date.

Bob Russell

  53. As the evidence has gone on, I wonder if you would, in a few words, indicate what is in your view the driving force behind this legislation?
  (Mr Nicholls) I certainly think it was influenced by the Pinochet case. I think the Pinochet case brought extradition into the public eye. One of the concerns of the Pinochet case, I think wrongly, was the delays in the system and the need to simplify it, and what I described as too many bites at the cherry. So I think Pinochet got it under way. I think the other matter that has now, so to speak, propelled it to the stage we have got now, is unquestionably September 11. My own concern is that everything is in far too much of a hurry and you should not need legislation as lengthy as this.


  54. One second, Mr Russell. Is the reason why the Bill is so lengthy because many of the clauses have to be repeated for category 2 countries as well as category 1 countries? If that is the case, does it matter very much?
  (Mr Nicholls) I think, from a lawyer's point of view, you could simplify that. I do not think you need to keep repeating and repeating; you do not have to say "This is a category 1 state, I will look at category 1 and, possibly, if it is category 2 I will look at category 2 too". I think that the old schemes were pretty successful; they had faults and flaws, and so did the 1989 scheme, but I just do not understand why you have to have anything so lengthy as this. I do not like this phrase "If in the affirmative do this, if in the negative do that". It is an extraordinary legislative technique. I have never seen it before.

Bob Russell

  55. If we stay with the Extradition Act 1989 and, particularly, section 6.1, I believe it is possibly being repealed. Do you agree with me this would create a serious risk that people could be extradited for political offences, or that extradition requests could be motivated by race, religion, nationality or political opinions?
  (Mr Nicholls) Section 6.1 of the 1989 Act had these provisions in relation to political motivation, etc. That also continues in relation to the present Bill but does not apply in relation, as I understand it, to a European Arrest Warrant.

  56. Are you saying that the draft Bill will still provide protection for those types of circumstances?
  (Mr Nicholls) Yes, it will. I cannot remember which they are now, but I know they are marked at some stage.

  57. So those who have suggested that perhaps there will not be protections are mistaken?
  (Mr Nicholls) I think that is wrong, as I have read it.
  (Ms Alegre) I think there is a degree of concern, and I have outlined it in our paper, particularly with reference to participation in a criminal organisation. A criminal organisation is a criminal organisation because it has been declared a criminal organisation in any country. So we now have the example of Spain having made the party Batasuna illegal despite the fact that at European Union level it was refused from the list of terrorist organisations. In fact, now, with the European Arrest Warrant, if you are a member of Batasuna in the UK requested by Spain you will be sent back for participation in a criminal organisation, or you could be.

  58. They would argue they are a political organisation.
  (Ms Alegre) They could argue. It is a question of degree, what you consider a political offence. The reason, according to Spain, that they made them illegal is because of their links with terrorism. However, the point is you do not know tomorrow what is going to be made a criminal organisation here or elsewhere.

  59. If this legislation had been in power a year ago, that organisation would not have been deemed to be a criminal organisation, and the person could not be extradited. Because Spain has now made them a criminal organisation they can be extradited.
  (Ms Alegre) They could have been extradited for specific terrorist offences, if they have links, but not for simply being a member of Batasuna.
  (Mr Nicholls) Can I correct what I said? You asked me about a prosecution on a count of race, religion, nationality, political opinions, or prejudice resulting from that. That does not apply to category 1 but it does apply to category 2. So, I suppose, in relation to category 1 it is, in a sense, being assumed that category 1 states, being parties to the European Convention on Human Rights, would not make a request in this fashion.

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