Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 100 - 119)



Mr Malins

100.  May I agree with my colleague Mr Cameron and say that I understand the thrust of what you are saying and support it by and large. I should like to ask the Government a question. Pretend you are the Government just for a moment.

  (John Wadham) I do that every morning.

101.  What conduct must we criminalise that is not currently a criminal offence? I wonder how they would answer that, given not only sections 18 and 19 of the Public Order Act, but equally importantly sections 4, 4a and 5 of the Public Order Act. Do you agree with me when I find that effectively all the conduct which I abhor is covered by existing criminal penalties?

  (John Wadham) In the mornings after I have pretended to be the Government I get out the criminal law volume of Halsbury's statute, which has all the criminal law in it and I count how many pages there have been since about 1970. In counting those pages, I then assess how much criminal law we have created since 1970 compared with how much we had before and two thirds of the book is actually new criminal law since 1970 and it is getting worse. It is very easy for governments of all persuasions to decide when there is a problem to make a new criminal offence. That is the wrong approach, particularly in areas where there are issues of fundamental human rights. Often it is the case that a combination of greater resources, a greater will and a more and imaginative use of the current criminal law, will solve 99.9 per cent of the problems and to create laws creates more problems.
  (Professor Gearty) To look for conduct would be a tremendous advance. We were talking earlier about other kinds of situation where it is past record which leads to internment. We would say that once you force into the open the need for conduct before you exercise state power against a person you have made a tremendous liberal advance.

  Chairman: Can we turn now to extradition? The Government has plans for simplifying or revising the procedures for extradition and those proposals are not limited to extradition for offences relating to terrorism but in relation to all crimes which are extraditable.

Mr Prosser

102.  When the reasonable man, the man on the Clapham omnibus, reads all the reports about the complexities and the values and the difficulties of extradition and sees how many extradition cases fail, he shakes his head in disbelief and there is the danger of the whole issue of international co-operation and international law coming into disrepute in my view. It is pretty obvious that the Government is determined to accelerate and fast track extradition. Based on what we have seen so far—and we do not have the Bill—what we have seen so far in the proposed changes, do you think it will still provide a framework which provides due process?

  (Nicola Rogers) We are not opposed to streamlining of procedures provided—and this is a very strong caveat—there is in fact a procedure left at the end of the day. Proposals have been put on the table by the European Commission which would do away with the procedure altogether and effectively make it an administrative decision. There must be safeguards in place to ensure that the individual in question, not just in general but the individual in question, will receive a fair trial and will be dealt with with fairness in the receiving country. That is fundamental to the procedure. Provided there is that safeguard and an opportunity for the individual to bring it within the proceedings, then that would be all right. Streamlining in itself is not a problem. Indeed there is already a degree of streamlining between European member states. To that extent, that is not a problem, it is when you do away with procedures altogether that it would become a problem and when there are inadequate safeguards that would be a problem.

103.  I know it is an important protection but is that the only qualification you would have with regard to changes.

  (Nicola Rogers) No, there would also have to be defences in certain circumstances to extradition and you have from the extradition convention a political offence exception and a military offence exception where they fall outside normal extradition proceedings. That has to be right. Those have to be protected. It cannot be the case that for instance a person could be sent to a country and it is dressed up as a prosecution of some kind when in fact it is a form of persecution of them for their ideas or some other thing. The extradition proceeding cannot be a window dressing, it has to be able to protect the individual where another country—I am not suggesting this country—is abusing the process.

104.  How far would your tentative support for accelerating that scheme stretch to the international powers of arrest across the European Union countries?

  (Nicola Rogers) I should be very, very concerned about any procedure which effectively boiled down to an administrative procedure which had no judicial control. That is really at the fundamental core of my objection to what is on the table as far as European arrest warrants are concerned. As far as I could see, it is simply an administrative decision by one country, which is passed round saying, by the way, we have made that decision and you will all agree with it and carry it out. There must be safeguards and there must be an opportunity for judicial control. If there were no judicial control I am afraid that kind of procedure would be unacceptable.

105.  Is the first view you expressed about accelerated streamlined extradition shared by all of the witnesses?

  (John Wadham) The key issues are that there should be a judicial process where the courts in this country can protect individuals from being sent to another country where they might not have a fair trial or might be tortured or where there are circumstances where the evidence for instance is insufficient to send that person to another country. If you are going to be arrested in the middle of the night by a British police officer with perhaps a police officer from Sicily and taken off to Sicily and you have to deal with foreign laws and foreign languages and where there perhaps is not sufficient evidence—because these proposals might not just apply to terrorism, they might apply to the fact that you were on holiday in Sicily and there was some traffic offence and you are whisked off there and you are having to deal with all that process. We think there should be a protection to ensure that there is a minimum level of evidence against you before any of that process occurs. That needs to be a British court making that decision and not just hoping that the courts in some other country will be able to protect you. Often they will but sometimes they will not. That seems to me a key issue. The other thing I should just like to say, and this is a matter for the parliamentarians rather than for me, is that I am concerned about the way in which this may go through Parliament. So far as I understand the process, because it may be a Euro directive, it may be taken under the European Communities Act which will mean that you will have 90 minutes to debate this and will not be able to amend it. That is what I have heard. I do not know whether it is true or not. If that is the case, fundamental changes like this should never occur in that way. I would hope that there is a way in which we can build in a proper parliamentary debate on these issues so that if there are proposals that parliamentarians want to put to amend the procedures, then they can do so in a sensible way. Perhaps we have to wait for next week to see whether that is in fact how the Government intends to proceed.
  (Nicola Rogers) One has to remember that this is not necessarily just restricted to terrorist offences and may be extended to other criminal offences. The number of times that British embassies abroad are called in to deal with situations where people believe they are not receiving or could not be receiving a fair trial must be very frequent. The number of times my organisation receives calls about that must be very frequent. Part of it is being lumped into a system you do not understand and you do not know what is going on and there must be safeguards to ensure that people are not just parachuted into a system when there is no evidence against them.

106.  Can anyone think of examples where extradition has been properly refused in the past but which might not be refused under the accelerated or streamlined system.

  (John Wadham) Yes. I have some information from a colleague. He tells me about this case which was reported in The Times newspaper on 9 October. This was a case involving the Government of Portugal. Mrs Gale was arrested in the UK and pending a request for extradition by the Portuguese Government. Her husband was arrested and accused of drug trafficking and she was accused of laundering her husband's alleged profits. However, Mr Gale was found not guilty in Portugal, making it a legal impossibility for his wife to be guilty of money laundering. Relatively obvious. The Portuguese Government however pressed ahead with its extradition request, even though both sides agreed that Mrs Gale was guaranteed an acquittal if she was ever tried in Portugal. Then her case came to the High Court and Lord Justice Laws held that to extradite her in such circumstances where she was bound to be acquitted would be unjust and oppressive. The difficulty is that if that occurred without there being some judicial process she would have been extradited to another country, have had to deal with all that process, in her case she would then have been acquitted, but nevertheless that would be too late for her. That seems to be a good example where you need to have some kind of mechanisms to ensure that people's human rights are in fact protected.

Bob Russell

107.  Conspiracy. Talking not just about those who have actually done the deadly deed but the organisers, what is the case against an extension of powers in relation to conspiracy in order to catch those who are not directly engaged in terrorism, but those who facilitate it?

  (John Wadham) From my point of view there is no principled reason why those people involved in conspiracy to commit offences should not be prosecuted merely for their agreement and that is currently the state of English law in general. The problem with conspiracy in practice is getting evidence against individuals. Obviously if people agree to commit offences, they rarely write down minutes of this. In a lot of conspiracy trials in this country, we have had problems because in fact the way that the prosecution have tried to prove guilt of the agreement to commit the offence is to analyse people's political activities, trawl through life in general and to try to encourage the jury to jump from the circumstantial evidence that there must have been an agreement. There are practical fair trial problems about it, but there is nothing in principle wrong with conspiracy being a crime.

108.  So the organisers are as guilty as those who actually carry out the crime.

  (John Wadham) Absolutely.

  Bob Russell: Fair enough. I just wanted to clarify that one.


109.  Can you just help us on the present state of the law? There is already an offence of conspiracy to cause explosions, is there not? Is that a yes?

  (John Wadham) It is not something we are as well prepared for as we were for other areas, only because it is quite complex. I hope that my speech will have allowed Professor Gearty to find the page in the Terrorism Act.
  (Professor Gearty) Mr Wadham has a vast bureaucracy behind him and he cannot answer. I can only point to section 59 of the Terrorism Act which is on inciting terrorism. There is a conspiracy to commit an explosives crime.
  (John Wadham) That was in the 1998 Act.

110.  But it does not apply to fund raising, organising or inciting terrorism, does it, by other means than explosives?

  (Professor Gearty) I do not know. We could look into it for you.

111.  Send out a search party on that. I was going to ask whether there was a gap in the law which needs closing, which I think is what the Government is arguing.

  (John Wadham) I am sure that the Government is right to say there are gaps in the law. The question is, because of the problems of obtaining evidence from other countries in relation to this process as well we have to be sure that people will have a fair trial. If, for instance, evidence comes from other countries it will come from the law enforcement agencies in other countries. Some law enforcement agencies will be correct and honest and truthful and some will not be. There is a real danger that people who may be dissident in this country and fighting politically for human rights and democracy in other countries will not be very well liked by the country they are criticising. In those circumstances it may well be that other country will create evidence to try to ensure that those people are prosecuted or deported or whatever else. There are real issues about any trial.

112.  It is largely about the quality of the evidence.

  (John Wadham) In some circumstances that may mean that some trials should not go ahead, but it does not mean there is necessarily anything wrong with those kinds of offences, provided the protections are adequate.

Bob Russell

113.  There has been quite a lot of publicity about hoaxers, but the Home Secretary is planning to apply the hoax offences retrospectively. Are you happy with that? Does it comply with the Human Rights Act?

  (John Wadham) Our press office was contacted on a Thursday or Friday and told by Sunday newspapers that it was going to be announced on that Sunday because the Prime Minister or his office had briefed Sunday newspapers on what the announcement was going to be. The announcement was going to be that the law was going to be retrospective and retrospective from that day. In fact on that day there was very little coverage of this for other reasons. I assumed that the Government felt that if they told people in advance in a very public way, somehow the retrospective nature of their proposals would be more acceptable. I do not think it is. I think it is presumptuous of the Government to think that Parliament will pass all its measures. I am sure I do not need to tell members of this Committee about why that is problematic. It is problematic in other senses. First, there is a tradition in this country that retrospective penalties, retrospective criminal offences, will not be initiated and it is contrary to Article 7 of the European Convention.

114.  Surely the spirit has been complied with, has it, by the public announcement? After all hoaxers are very worrying for all concerned.

  (John Wadham) They are; of course there is a real problem about hoaxes. Whether or not people should get seven years for a hoax compared with the other things you might get seven years for, a very serious grievous bodily harm kind of offence or a rape, whether hoaxes actually reach that standard is a matter we could all debate. To say that because they have told a few Sunday newspapers . . . I am afraid to say that those people who are going to be involved in hoax calls, probably do not know that the law was changed. Even if they do know it was changed, it is still wrong in principle and what I cannot understand is how the Government thinks it is going to get around Article 7 of the European Convention because that seems to be an absolute provision that you should not increase penalties retrospectively. This is not such a serious issue that it should be dealt with in this way. If the Government felt it was so serious, then on the Monday there should have been a Bill in Parliament and that should have been debated and passed that day or the day after, which has been possible in the past.
  (Professor Gearty) It is about as fundamental a principle as you can get in our organised system of government that you only punish as a consequence of laws which exist and civil wars have been fought to stop the executive from imposing its desires by way of punishment.

115.  We hope that does not happen with this one. The proposed legislation suggests that power be given to police and customs services to demand removal of facial covering and gloves. You have no problem with that, do you?

  (Nicola Rogers) In principle we have no problem with that, subject to certain safeguards. One would be cultural sensitivity and that this takes place in a secure environment; if a woman, for instance, is asked to remove her face clothes that it is done with the cultural sensitivity which is required.

116.  Subject to that reservation, which I obviously understand, there is no problem in that principle.

  (Nicola Rogers) No, there is not.

117.  May I move to another principle which may not have so much support? Is there any reason why the proposed extension of powers relating to identification and fingerprinting should not be introduced? This is where the fingerprints which are taken can be kept for up to ten years.

  (Nicola Rogers) The current position is that they can be kept for ten years in respect of certain persons anyway. I am not entirely sure why this legislative change would be needed.

118.  As I understand it, it is for immigration and asylum cases.

  (Nicola Rogers) That is precisely the legislation to which I referred. Section 143 of the 1999 Act deals with the destruction of fingerprints and where no time period is specified, allows for fingerprints to be kept for up to ten years.

119.  You have no problem with that.

  (Nicola Rogers) But not where they are recognised as a refugee.
  (John Wadham) Will there be two minutes to talk about sunset clauses and other things?

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