Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 100-119)



  100. How do you think that would work?
  (Mr Nicholls) I would have thought that designation would simply be by an Order in Council, in which case it does not have to be, as I understand it, laid before parliament. It certainly does not have to be approved, so there is no control by the legislature at all on the designation. When one thinks of countries of the former Soviet Union, there are the gravest worries. With no disrespect to them and all their aspirations, their values are not the same and, even if they might be on paper, in reality it is an extremely disturbing state of affairs. You only have to think in another context there, especially the designation, that you have many prosecutions that have been launched from those countries against their people that certainly on the face of it appear to be for political purposes. For example, the request for the extradition of Vladimir Gusinsky, the Russian media mogul. Another classic example was the pursuit by Kuchma of Lazarenko, the former prime minister of the Ukraine. Normally these requests are launched on, so to speak, the eve of elections in order to destabilise and damage their chances. I think there ought to be some sort of procedure whereby the legislature at least has a say in relation to designation. If I can just give an example of that. A few years ago there were a lot of Venezuelan bankers that were wanted by the authorities in Venezuela. They were in this country and parts of Europe. The Venezuelans wanted them extradited. As I say, some were in this country. We had no extradition arrangement with Venezuela. There were fears on the part of the bankers that the United Kingdom and Venezuela would have an ad hoc arrangement of bringing extradition into being. I personally was concerned in drafting lengthy representations to the Secretary of State as to why there ought not to be an ad hoc arrangement and in particular drawing attention to Venezuela's human rights record and the fact that a fair trial could not be guaranteed. But it seems to be crying out for a provision that designation should not simply be an act of government, it ought to be reviewed.

  101. Do you agree with that?
  (Ms Alegre) I do agree. On the point of designation and the intention, I imagine that this is to a degree connected to what will be on-going negotiations on bilateral agreements, as opposed to the sort of European agreements, and the issue of the prima facie case is still a very important point. The case of Raisi that Mr Nicholls mentioned earlier, I think that was discharged on the basis that evidence was not forthcoming.
  (Mr Nicholls) Yes, there was no evidence.
  (Ms Alegre) So I think the prima facie case is very important, and particularly in a post-September 11 atmosphere.

  Chairman: Moving now to delegated law-making powers in the Bill. Clause 165 is the relevant clause.

Mr Prosser

  102. Clause 165 seems to allow the Home Secretary or the Government to amend or repeal the Extradition Act 1989 just by use of Orders in Council without going back to parliament, without debate on very important policy matters and a very important Bill. What is your view on that particular degree of delegation?
  (Mr Nicholls) I must say I am rather surprised at a mechanism as an Order in Council because usually the provisions in relation to existing legislation are to be found in the Bill itself, in which case parliament can express its approval or disapproval. It seems to me to be too large a power to leave to delegated legislation.


  103. Do you consider it appropriate for extradition cases to be heard in the Bow Street Magistrates' Court in the first instance or would it be preferable to be in the High Court?
  (Mr Nicholls) I have always thought that extradition cases are sufficiently serious and difficult that they ought all to be heard in the High Court. That might have an effect on the manpower as far as the judges are concerned. Another good reason for them being in the High Court is that you get rid of a duplication of function. If you take an example here: What is going to be the most used weapon for the defence? The most used weapon is going to be the Human Rights Act—incredibly complex—and we are at an early stage of our own jurisprudence in that area. Why leave it to a district judge? I ask the question: Are you ever going to have a district judge who is sufficiently experienced and of sufficient standing really to determine these matters? If you went straight to the High Court and had all these cases done in the High Court, I know it would need manpower but, nevertheless, the whole complaint about delay would in fact be reduced. Certainly I have had it in my mind over the years. I have never understood why these matters have been heard in Bow Street. I did one case which over an 18-month period took no less than six months to be heard at Bow Street. This is the case that went on for nine and a half years. That case could have been dealt with straight in the High Court and would have been far better: all the complex issues would have been properly canvassed and the judge would have kept proper control on the case itself. I think, yes, one should have considered having the High Court and not a magistrates' court. If you ask me the question: If it has to be a district judge, does it have to be Bow Street? the answer again must be yes, because the position is that they have a rota of experienced magistrates or magistrates who specialise in extradition.

  104. The stipendiary magistrates?
  (Mr Nicholls) Well, not just stipendiaries. There are stipendiaries who actually deal with extradition. Traditionally always the senior magistrate always did the extradition cases. There might be two more after that, so that you have possibly three doing them.

  105. How many cases a year are we talking about? Do you have any idea?
  (Mr Nicholls) I really do not know.

  106. Tens, hundreds?
  (Ms Alegre) I think it is about 100.
  (Mr Nicholls) Yes, it is just under 100, I would have thought. But of course most of these cases go on up. It is a ladder: you are forever regurgitating the same old arguments before a different tribunal.

  107. I think ministers would argue that is one of the things that this Bill was intended to stop.
  (Mr Nicholls) Which is exactly what should happen. That is why, for example, I said if you had it dealt with before the High Court that would be a very good thing. But the judges would say: "We cannot tie up our judicial manpower in such things as extradition cases."

  108. There is no way of distinguishing between the more serious and the less serious.
  (Mr Nicholls) I think it could be worked out. I mean, obviously if you take the European Arrest Warrant, that may be fairly simple unless you come on to the ECHR issues. If you come into prima facie case category 2, then those are probably going to be more serious.

David Winnick

  109. The Pinochet case, perhaps you will remind me, started off in the court of first instance, Bow Street, and ended up inevitably, as it would do, in the Lords.
  (Mr Nicholls) May I correct that. Forgive me, please. The position was that there was an arrest warrant for the senator.

  110. From Spain, yes.
  (Mr Nicholls) It had not even reached Bow Street at all. The position was that there was an immediate challenge, that he could not be amenable to the criminal process in this country because, as a former head of state, he was immune. There was then a challenge to the legality—it was a provisional arrest warrant. This is why it is so exceptional; it is not a good example of delay. There followed a challenge before the High Court, before Lord Bingham, Chief Justice, in which he said that Pinochet was immune. After that the case went to the House of Lords, which was effectively an appeal against that decision, and the House of Lords held by three to two that he was not immune. It then went back to the House of Lord again because the House of Lords' own decision was impugned on the grounds of bias—apparent, not real bias—by Lord Hoffmann, and it then had to have yet another hearing. Between the first House of Lords' hearing and the second one, which was the bias one, there were only eight days, so there was no real delay, but then you had, exceptionally, the final decision in the House of Lords and then the case. Up to there, no had extradition started at all; it was simply a challenge as to warrant. Then back you go and start properly, and you start in the magistrates' court.

  111. It went back to court.
  (Mr Nicholls) It went back to the magistrates' court. There were huge delays in the case being heard in the magistrates' court, the reason being that originally one magistrate was going to do it, then the chief magistrate said he was going to do it and he was not well, and there was a good six months' delay before we actually got into Bow Street proper.


  112. We should not get too bogged down in that case, I think.
  (Mr Nicholls) No, I am sorry.

  113. Because it was an exceptional case.
  (Mr Nicholls) Yes. Totally exceptional.

David Winnick

  114. If it starts off in Bow Street, if the defendant has sufficient resources and it is controversial and all the rest of it, it will go from Bow Street, will it not?
  (Mr Nicholls) Yes, it will.

  115. It will not end up there.
  (Mr Nicholls) It will go from Bow Street on a habeas corpus to the High Court and then from the High Court with leave to the House of Lords. But not many cases in fact do go to the House of Lords.

  116. Taking up the Chairman's point again, if a case is not controversial and is considered more minor—perhaps not by the defendant, but it certainly is not a controversial case—should it really go to the High Court and take up the judge's time when it can quite likely be decided by the magistrates at Bow Street—if you like, the devil's advocate point of view.
  (Mr Nicholls) Yes. I think if a person wants to appeal by way of habeas corpus to the High Court, he ought to have that appeal. If it is totally meritless, probably the best penalty is for the court to say so and penalise not only the applicant but possibly even counsel for bringing a meritless case—which most of us hope we do not.
  (Mr Crossman) Just on clarification of numbers, for the figures I have unfortunately I cannot cite a source for them, although I think they might be Home Office. There are about 800 extraditions annually. Of these, about 500 are contested and, of those 500, 400 are to European countries and 100 are to non-European countries.<fu1>

<fo1>  Note by witness: These figures have been checked by Liberty and are incorrect. Home Office figures for 2000 show only 78 requests for extradition in that year (of which 47 were granted) Source: Home Office, The Law on Extradition: A Review, March 2001, p 65).


  117. Obviously that would clog up the High Court, would it not?
  (Mr Nicholls) Yes. I am amazed at those figures. They are fantastic.

  118. Perhaps we could say the category 2 cases, which is about 100.
  (Mr Crossman) That is the figure I have, although—

  119. Perhaps one could say they should start in the High Court. Would that address your point?
  (Mr Nicholls) I am not sure you can really distinguish it in that way, because once you get on to human rights cases they are going to be, by their nature, complex, I think.

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