Members present:

Mr Chris Mullin, in the Chair
Mr David Cameron
Bridget Prentice
Mr Gwyn Prosser
Bob Russell
Mr Tom Watson
David Winnick


MS SUSIE ALEGRE, Legal Officer - EU Criminal Officer, Justice; MR GARETH CROSSMAN, MR CLIVE NICHOLLS QC, Liberty, examined.

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.
  2. (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.

  3. 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?
  4. (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 defined 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 ----

  5. 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?
  6. (Ms Alegre) Yes.

  7. So your suggestion for making that better is what exactly?
  8. (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.

  9. 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?
  10. (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.

  11. 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?
  12. (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.

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

  15. 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?
  16. (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.

  17. Dual criminality. We will be coming on to that, and I do not want to go into that.
  18. (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 ----

  19. Your answer is not to reduce the number of categories it is to try to make them more specific. Is that right?
  20. (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 ---

  21. 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?
  22. (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.

  23. 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?
  24. (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.

  25. Mr Crossman, is there anything you are burning to mention?
  26. (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 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.

  27. 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?
  28. (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.

  29. 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?
  30. (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.

  31. 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.
  32. (Ms Alegre) Yes, it is unsatisfactory.


  33. 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?
  34. (Ms Alegre) Well, no, he does not need to see whether it is an offence in this country, according to this.

  35. I am talking about in practice, not whether he needs to or not.
  36. (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 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.

  37. So the solution, we agree then, is to write on the face of the Bill "more details required", rather than just hope for it?
  38. (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.

    Bridget Prentice.

  39. Is your last comment that it does not have to be an offence in the UK because it has already been decided at a European level rather than because of the way the Bill has been drafted?
  40. (Ms Alegre) The European Arrest Warrant, basically, abolishes the dual criminality principle, which is that it must be an offence in the requesting country and the requested country.

  41. In other words, there is nothing specifically that you could improve within this Bill to stop that problem that you have raised?
  42. (Ms Alegre) There are improvements. There is not a basic change as to whether or not it could be an offence in the UK. There are differences in the level, for example, of sentencing that needs to be required before you abolish the dual criminality principle. So there are detailed differences, but if the European Arrest Warrant is going to be implemented then there will be an erosion of that principle.


  43. Do you agree, Mr Nicholls, that the best we can do is to call, on the face of the Bill, for more detail?
  44. (Mr Nicholls) Yes, I think so. For example, the European Commission for a Framework Decision actually has a model arrest warrant and that model - which is not referred to in the Bill at all - includes all sorts of details that have to be provided. For example, the nature and legal classification of the offence that is in the foreign state and, also, a description of the circumstances in which the offence was committed. One would expect - and it is common of extradition systems throughout the world - that you do have in the very least, even where you do not have the evidence rule, a proper description of the offence. If it is not properly described the case goes back for more detail. One of the things that really worries me, too, is clause 47, which is the interpretation section of the Bill, which defines extradition offences. Can I just make a comment before ----

  45. Before you move on, is this going to apply to us? All these things are dealt with in the model extradition warrant. What are you worried about?
  46. (Mr Nicholls) I was going on to the point that if you look in relation to the definition of extradition offences, which is the absolute sine que non of extradition, the definition provides that it is an extradition offence, for example, if the conduct amounts to an offence in the foreign state, full stop. Then it is also an extradition offence if the conduct amounts to an extradition offence if it had occurred in this country. Now those are two separate definitions. So they do not build in the dual criminality requirement which has always been the essential on extradition, right up to modern times.

  47. It is an either/or?
  48. (Mr Nicholls) It is an either/or. In other words, you could have a person extradited for what was an offence in the foreign state but was not, in fact, an offence here.

    Mr Cameron

  49. They could commit it here?
  50. (Mr Nicholls) It would not be committed here, the offence would be committed in a foreign state. If the district judge is satisfied that it was an offence in that foreign state it does not have to be an offence here. I think I will be corrected if I am wrong about that.

    (Ms Alegre) The only thing I would add is that in the drafting as it is, it does appear that potentially the offence could be committed partly in the UK. I suspect that there may be changes to that drafting, but on the drafting as it is that is the case, although in the European Arrest Warrant there is an optional bar, which is where the conduct is committed in whole or in part in the requested country - so in the UK.


  51. Suppose the British plane spotters had been back here in the UK and we had supported a policy to extradite them. We would have been obliged to do so even though they had not committed an offence in the UK. Is that right?
  52. (Mr Nicholls) That is right.

    (Ms Alegre) We would have been if it came under one of the list of offences or if it was an offence which would have also constituted an offence here.

    Chairman: Therefore, we agree, that would not constitute an offence here. So does plane spotting - I suppose you would call it spying - come under any of these offences? I cannot see it actually.

    Mr Cameron

  53. If you call it "facilitation of an unauthorised entry".
  54. (Ms Alegre) Or "participating in a criminal organisation."


  55. No. So actually the Greek plane spotters could not have been extradited.
  56. (Ms Alegre) I do not know the details of what they were charged with. Unless it could come under this list, or it was also something that would have been an offence here.

    David Winnick

  57. We have had various responses which the Home Office have published, including of course Liberty. However, I notice that in the memorandum submitted by one of your colleagues Mr Nicholls, Mr Price, he is more critical than Liberty, which is unusual on matters concerning civil liberties. He talks, in the conclusion of his memorandum, about the "atrocious legislative exercise" and goes on to say that if our law is to be changed in this manner, confidence in those who negotiate, draft and enact our laws will be severely undermined. Do you think he is going too far, or would that, to a large extent, be your view?
  58. (Mr Nicholls) I am not sure I fully understand the point that he is seeking to make.

  59. He virtually, in this memorandum, tears to pieces every part of the Bill.
  60. (Mr Nicholls) Can I respond in this way: when I first read this Bill I was horrified. What really horrified me was this: that here we were trying to streamline the legislative process and make it simple, yet we have 169 clauses. The 1870 Act existed for over 100 years. That, in fact, only had 27 sections. The Fugitive Offenders Act (because, of course, the Commonwealth was different from foreign states) had 41 sections; changes in 1967 to the Fugitive Offenders Act, 23; legislation in other countries - Canada, the 1985 Act has 40 sections and the Canadian Fugitive Offenders Act, 28 sections. The most recent legislation in the Commonwealth, the Australian Extradition Act, has 55 sections, but that includes backing of warrants - that is between New Zealand and Australia - and this legislation does not include the backing of warrants special system between the United Kingdom and Ireland. What really horrifies me is that you have to have a Bill with 169 sections.


  61. To what do you attribute this legislative diarrhoea?
  62. (Mr Nicholls) I have not gone through it in detail but there is a huge amount of repetition. You find time and time again provisions being repeated. It seems to me that what you want is, really, a much more consolidated Bill. I have not gone through the exercise, but I think the whole thing is structurally wrong. It is almost like a game of monopoly: the dice shows six, you move six and it says "go back to Go". It is almost like an instruction manual because throughout you see "If in the affirmative, do this", "If in the negative do this". I must confess, in my experience I have never ever seen a Bill drafted in that way. You have clear-cut provisions.

  63. I am told the number of clauses is yet destined to increase.
  64. (Mr Nicholls) One of the things that worries me is that the legislation is so rushed and nobody has sat down and thought "Let's have a simple, streamlined system". My personal view is that the system worked pretty well before. I know there were huge delays.

  65. That was the point, was it not?
  66. (Mr Nicholls) There were notorious cases, but they were exceptional. The longest in history was nine-and-a-half years in relation to Larraine Osman (?) being returned, and I can think of even a European Convention case, Khuoggi, which was five-and-a-half years. That was appalling, but the reason for that was because, in fact, there were so many bites at the cherry. For example, you had a hearing before a magistrate; after the hearing before a magistrate you had habeas corpus before the High Court - possibly going to the House of Lords; after the House of Lords, representations to the secretary of state; after those representations a judicial review, which meant that the secretary of state was considering the same matters as had been considered by the High Court and, perhaps, the House of Lords, and some additional matters.

  67. All of those stages will be ruled out in this Bill. Is that right?
  68. (Mr Nicholls) Ruled out, because what they have done is they have very simply - forgetting the European Arrest Warrant - said "There will be a hearing before a district judge and a habeas corpus hearing, and the whole business of the representations to the secretary of state will have gone" - the huge burden which the secretary of state and his officials have at the moment. In my experience, I put in representations as to why a person ought not to be returned. The secretary of state has a huge discretion and, sometimes, those representations may be three ring-binder files, and it has not been exceptional - certainly in my experience - for the secretary of state to consider those representations for something like 18 months. That is one huge burden which is now - thankfully, I am sure, for the secretary of state - going to be removed. In any event, it is far better that these matters are considered judicially and not as an executive function.

  69. So we do not disagree with the objective of this Bill?
  70. (Mr Nicholls) No, I certainly do not disagree with it.

  71. We agree there has been a problem because it can take many years, as we saw with General Pinochet.
  72. (Mr Nicholls) Yes. Can I just say that, as far as Pinochet is concerned, I know - because I appeared for Pinochet - it is wrong to use that case as a reason for it all taking too long. In fact, it was quite quick; Pinochet was exceptional because there were so many important proceedings before the House of Lords - three hearings before the House of Lords. That dragged things out. That is not a notorious example. One is, and that is the Osman case which took nine-and-a-half years.

  73. What would you consider a reasonable length of time to be considering an extradition application?
  74. (Mr Nicholls) On a European Arrest Warrant I would have thought something like three months. In the case of where a prima facie case is required, I would have thought something like nine months to a year, but it would depend upon the complexity of the case. If it is a massive fraud and they have got to decide if there is sufficient evidence, obviously that is going to take more time than, say, a simple case of murder.

    David Winnick

  75. This is, to a large extent, post-September 11. The meeting which took place of the EU Justice and Home Affairs Ministers was on 19 September, so presumably, to a large extent, this was a reaction to the atrocity which took place.
  76. (Mr Nicholls) Yes, and it is a very worrying reaction when you think that the one person who was arrested, a man by the name of Raisi, the magistrate discharged him. There was no evidence, and there were other cases, I understand, also in the pipeline - terrorist cases - where the cases are almost non-existent. One must not be in such a hurry if you destroy the fundamental protection.

  77. Would it be fair, therefore, to say that the horror which took place in the United States was, if not an excuse, a reason why the EU ministers decided to cover a number of other topics (which as we know have nothing to do with terrorism) in order to bring forward the measure which we are now discussing? Would that be a fair description?
  78. (Mr Nicholls) I think that is right. Things are being slipped in in the hope they might just pass without being noticed.

    (Ms Alegre) Maybe I could respond, firstly, to your initial question, just to clarify that I represent Justice, not Liberty. I have not read the document that you referred to but possibly one of the reasons for the approach that we have taken is that we were working on the European Arrest Warrant from the start, so on many of the points that may be being made now we have already made representations, so we are dealing with really how the European Arrest Warrant is being implemented rather than necessarily questioning the basis of the Arrest Warrant itself. As to the September 11 point, the European Arrest Warrant is something that has been in the pipeline at European level. I think it is true that it was agreed much more quickly than perhaps it would have been as a result of the rush post-September 11, at European level, to be seen to be doing something about terrorism. I think it is also true that it goes way beyond terrorism, but, as I say, given that it was initially intended to put into place the principle of mutual recognition between European Member States, it was not initially thought of as being an anti-terrorist measure. That is also some explanation of why it goes further. That is not to say I necessarily agree with the list as it stands, or the way it has finally been done, but I do not think it is entirely a response to September 11. The Raisi case was a case to the United States, so if we are dealing with the European Arrest Warrant it would not actually be affected.


  79. 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?
  80. (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.

  81. Given that ours has been twelve months, as Mr Nicholls has said, what is the problem?
  82. (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.

  83. What do you say to that, Mr Nicholls?
  84. (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.

  85. Can we do away with dual criminality?
  86. (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

  87. 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?
  88. (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.

  89. 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?
  90. (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.

  91. Although the effect would flow from that decision. Punishment could come from the law of the land.
  92. (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

  93. 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?
  94. (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.

  95. Is that the general view?
  96. (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

  97. That is probably why it has been drafted in that way then.
  98. (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

  99. 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?
  100. (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.

  101. 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?
  102. (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.

  103. Can you furnish us with the countries that have got a mind to ----
  104. (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

  105. 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?
  106. (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 9/11 - 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.


  107. 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?
  108. (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

  109. 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?
  110. (Mr Nicholls) Section 6.1 of the 1989 Act had these provisions in relation to political notification, 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.

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

  113. So those who have suggested that perhaps there will not be protections are mistaken?
  114. (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.

  115. They would argue they are a political organisation.
  116. (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.

  117. 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.
  118. (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.

  119. Yet we have just been given an example of Spain where that can happen.
  120. (Mr Nicholls) Spain is category 1, so it could happen. I would have thought and would have hoped that if you did have a request of that kind the European convention might be invoked. I am not sure.

    (Ms Alegre) I think it is difficult to say. Surely the European convention probably would be invoked. Whether or not there would be an argument is a different matter.

  121. I think the exchange we have just had indicates that the people who draft the Bill and those who consider the legislation need to revisit, to see exactly what can happen in certain circumstances, particularly in the light of Spain and the basques. If I could move on to a further question, which is to do with the likely effect of the UK giving a notification to article 27.1 of the European Arrest Warrant framework decision, which would effectively mean that the UK would be presumed to have consented to an extradited person being proceeded against for a crime other than that for which he or she was extradited; in other words, once they have got them, they can bring other charges. How seriously would you consider the consequences of such a notification could be?
  122. (Mr Nicholls) We are talking here about specialty. Let me deal with specialty generally. A person is only to be tried for the offence for which they are returned or for any offence disclosed by the facts supporting their return. That is where a person is, so to speak, being extradited. I have only ever known one case in England, and it is only just coming before the courts, may come before the courts. The situation is where a person has in fact been extradited but after they have been extradited there is a request for them to be tried for another offence. That arises in a particular case at the moment, where, for example, a person was extradited in 1989 and a Commonwealth government has said, as he comes to the end of his sentence, "We want to try him for another offence," for which he was not returned. That is very exceptional. There are a few cases in Canada but there is only one, ever, in England and it has not yet, if it ever does, come before the court. The situation used to be in the hands of the secretary of state and is at present. The idea now, as to whether or not to give consent to another offence of this kind, is that that is put in the hands of the district judge. I do not complain about that at all. It could always be subject to review if his decision is disagreed to, but I do not understand why you need to have some particular arrangement between some states and not all states of their being a presumed consent. It seems to me that the matter ought to be dealt with not by presumptions of this kind but that it ought to be done in public and it ought to be transparent and it also ought to relate to the particular case rather than being a general rule.

    (Ms Alegre) I would agree that the issue of specialty in general only comes up in a couple of cases, but I think that if you have a declaration which is in effect a carte blanche, that if you get anybody back to the country you can then proceed against them on any basis, you know that when you are making the request and I think you are then likely to find that those cases are much more common. It is very different if you have to make a request. I cannot really see a justification for making such a declaration.

  123. You would like to see it removed.
  124. (Ms Alegre) Yes.


  125. Suppose that someone is extradited for murder and when they get back investigation reveals that they have been involved in a number of other murders. Can they be charged?
  126. (Ms Alegre) They could then request consent.

  127. I see, they would come back to the judge here and say, "These new facts have emerged."
  128. (Ms Alegre) Yes.

  129. That would resolve that problem.
  130. (Ms Alegre) Yes.

    (Mr Nicholls) Yes, the secretary of state used to do it or does it up to now, but, as I say, I only know of one case where it has ever actually happened. But I cannot see that there would ever be a problem about it. In fact the district justice has to decide: If the person were not where he is now but he was actually here and it was a request for extradition, are all the conditions complied with? It seems to me to be perfectly sensible.

    Bridget Prentice

  131. Under Part 1 it says that the arrest may be carried out by a constable or an "appropriate person". What is your view on that part of the legislation?
  132. (Mr Nicholls) I must confess, I had not spotted that. I do not know who an appropriate person would be.

    (Ms Alegre) I think that is a concern. I cannot imagine what the appropriate person that they have in mind is. That should be specified.

    (Mr Nicholls) It seems to me to be, in a sense, rather sloppy draftsmanship. If you have a phrase like "appropriate person", it is like an "appropriate authority", you would expect it to appear in the interpretation section and it does not. Who does execute a warrant or an authority of arrest other than -----

  133. Customs & Excise, I would have thought would be a pretty obvious example of somebody who might be designated an appropriate person. Our concern is whether it would be wider than such an example. Presumably police officers from the extradited countries might be considered appropriate persons. That is what I am asking you.
  134. (Mr Nicholls) I think that shows the danger, because I do not know of any legislation that permits foreign police authorities to execute warrants in this country.

    (Ms Alegre) That could change at a future date.

    (Mr Nicholls) Yes. I agree.

  135. Given your concern about that, do you think it is appropriate that parliament will under this Bill allow the Home Secretary that very obvious, very open-ended power, to designate who is an appropriate person and especially given that the person can arrest without being in possession of a warrant?
  136. (Ms Alegre) I think there should be a statement of who the appropriate person is on the face of the Act.

    (Mr Nicholls) I think that is right.

  137. Moving on now to the fact that they do not necessarily have to have the warrant on them when they make the arrest, is that an appropriate thing to have in a Bill of this nature? Also, there is the fact that they only need to inform the person arrested if the person arrested asks to see the warrant. How do you feel about the fact that somebody can be arrested without a warrant being in the possession of the arresting officer?
  138. (Mr Nicholls) I cannot say I am very happy about it but I see that it does say, "A copy of the warrant must be shown to the person arrested as soon as practicable afterwards ..."

    (Mr Crossman) "... and if requested."

    (Mr Nicholls) Yes, "... and if requested." I think it should be shown in any event.

    (Mr Crossman) I am wondering whether or not this might in some way be tying in with the provisions of the Nationality, Immigration and Asylum Bill and Regulation to the need to show a warrant when entering premises. I am not exactly certain, but it does seem to me unusual that they do not say there is a need for a warrant to be shown at the time.

    (Ms Alegre) I think it may also, I am not sure, be connected to the possibilities of transmission of the European Arrest Warrants where the country of residence is not known - so, where it is being transmitted through the chain information system. That may be the reason. That does not justify the need for a request on behalf the person to see the arrest warrant as soon as practicable but it may be related to language issues and transmission issues.

  139. So a delay is acceptable if there is that kind of complication.
  140. (Ms Alegre) Certainly it should not be only on request.

  141. They do not actually have the arrest warrant in their pockets all the time.
  142. (Ms Alegre) It may be impracticable in those cases that they would have to have the warrant in their pockets at all time.

    (Mr Crossman) But there should be a duty to produce the warrant at the earliest opportunity without request.

  143. The duty to produce it without it being requested
  144. (Mr Crossman) Yes, without requirement of request.

    David Winnick

  145. An "appropriate person" (as it is described), should we consider that in any way as a sinister factor which we should be on our guard about?
  146. (Ms Alegre) I do not know whether "sinister" is quite the right word but it would raise the questions of what one might be considering as the future developments in terms of who is able to execute arrest warrants on British territory.

    (Mr Nicholls) There must be somehow a simple answer as to who is entitled to execute a warrant apart from a constable.


  147. We shall ask.
  148. (Mr Nicholls) Yes.

    David Winnick

  149. I suppose the most obvious one would be the immigration officer.
  150. (Mr Crossman) Anyone who has a power of arrest under the general law. That, I imagine, would be the easiest way. Unless it has been done intentionally with a view to leaving it open-ended for future provisions. As Mr Nicholls has just pointed out to me, in fact a general power of arrest does exist to members of the public, so that probably would not be an ideal answer.

    David Winnick: But, whatever the position, it should be tightened up so there should be a more defined explanation of what is meant.

    Bridget Prentice

  151. I want to ask a final question about the constable or the appropriate person being able to make an arrest in the belief that a warrant will be issued. That seems to be a very, very flexible power to give, certainly to someone other than a constable.
  152. (Ms Alegre) I would agree with that. I think it needs to be absolutely clear who the appropriate person is. I would agree that that seems to be a very wide power that should be tightened.

  153. Are you aware of such powers being available in any of the other category 1 countries?
  154. (Ms Alegre) As far as I am aware, it has not been implemented elsewhere . At the moment we are actually looking at how other countries are implementing it and what the politics and legal issues in other countries have been. I am not aware of that but it is certainly something that we have been looking at generally, because clearly how it is implemented elsewhere also affects people being extradited to the UK.

  155. Would your general view be that in this area we should try to be on all fours, that all the category 1 countries should have a very similar forum of extradition law?
  156. (Ms Alegre) That would be the idea. That is a difficult European constitutional question, which I think is probably being dealt with in the Convention on the Future of Europe at the moment, that the problem is with the framework decision, that there is no guarantee that the countries will all implement it in the same way at all. It is impossible to tell.


  157. Clauses 32, 34 and 35 address the situation where a warrant is withdrawn while extradition proceedings are underway and gives the authority power to detain someone for another seven days after the warrant has been withdrawn. Can you think of a reason why that might be necessary?
  158. (Mr Nicholls) I cannot see any reason at all. A warrant would only be withdrawn and a request withdrawn when a firm decision you would expect to be made by the foreign authority. Once that decision is made, I do not see any reason why a person should be held for seven days, other than the thought that perhaps the country would say, "We made a mistake."

  159. Supposing it is discovered during the course of proceedings that the warrant is defective, and it is a technical matter that can be put right fairly quickly, is it not a good idea to hang on to the suspect, if you have him in custody, while the defect is remedied?
  160. (Mr Nicholls) There are two things here. One is the request; the other is the warrant. A person has appeared before the appropriate judge and the person is either on bail or has been remanded. If he is told or informed the request has been withdrawn, one cannot see any circumstances where there would be a defective request, or, if there were, you would just hold for a while and redraft your request. And the same in relation to a warrant: if it is a defective warrant, you put it right straight away.

  161. It might have to go back to the country from which the warranted emanated.
  162. (Mr Nicholls) But the warrant that was used in England for the purposes of arrest would remain valid, and the custody, so long as the judge had not been informed that it had been withdrawn. If the request is withdrawn for some defect, some reason like that, one would expect that you would not inform the magistrate that it was withdrawn until such time as you had another one to put in its place. Commonly fugitives have been released, for example, at Bow Street, under the present system and as they left the court there was another warrant and they were immediately re-arrested.

  163. We did see some time ago, in relation to the extradition of terrorists from Ireland to here, a whole series of cases in which there were alleged to be defective warrants and those people walking out of the front door of the Irish courts.
  164. (Mr Nicholls) I think the reason for that is the very strict rules imposed by the Backing of Warrants Act, 1965, and particularly on the Irish side, because it is a young country with a young constitution, they were very strict as to the adherence to the rules - if anything, I suppose, over-strict - and the same reaction in this country. I do not think it is a fair comparison you can make between this legislation and the Backing of Warrants legislation between England and Ireland.

    (Ms Alegre) I would agree that I can see no justification for keeping the person for seven days after the warrant ------

  165. If not seven days, how long?
  166. (Ms Alegre) I cannot see any justification for keeping somebody in custody following the withdrawal of a warrant. There is no reason why. Once you know that the warrant is defective, you redraft it before you withdraw it and you pick them up as they are walking out of the court, exactly as Mr Nicholls says. I think that this provision is entirely against the Human Rights Act and Article 5 of the European Convention on Human Rights. It absolutely does not comply with any of the reasons for detention and deprivation of liberty. There is no justification - certainly no legal justification, and, even beyond that, I cannot see a practical justification.

  167. What would you insert instead, "As soon as practicable?"
  168. (Ms Alegre) Absolutely: "A person should be taken to be discharged on withdrawal of the warrant as soon as practicable."

  169. Would you go along with that?
  170. (Mr Nicholls) Yes, I would go along with that.

  171. On withdrawal of the warrant or as soon as practicable?
  172. (Mr Nicholls) On withdrawal of the warrant. I think it is a pretty serious act for a country to say, "We are going to withdraw either a request or a warrant," and if they are going to take that serious act, if there is some defect you would have expected them to put a new warrant into effect immediately so that it can simply take its place.

  173. Is there any provision in the draft Bill that requires that the arrested person should have access to legal advice? I am sorry, it relates to consent: before they consent to be extradited.
  174. (Mr Nicholls) It is clause 36, is it not?

  175. Yes, it is.
  176. (Ms Alegre) I think on this issue it is not put highly enough, particularly given that once consent has been given it is irrevocable. I think that there needs to b e a higher protection on legal assistance. I think certainly there needs to be a guarantee that the judge is certain that a person consenting to extradition has had legal advice and is consenting.

  177. That needs to be written into the Bill, does it?
  178. (Ms Alegre) Yes, I think it does.

  179. You all agree with that, I take it.
  180. (Mr Nicholls) Yes, of course.

    David Winnick

  181. As regards the question of being held for seven days once the warrant is withdrawn, you may be aware that the Metropolitan Police Service is also critical and argues that the subject's "human rights would be breached if the person were to be detained unreasonably beyond the moment that the official withdrawal notice was received." They do say "unreasonably", so they qualify it somewhat, but basically they seem to agree.
  182. (Mr Nicholls) I think the person should in fact be entitled to be discharged, having regard to the fact that the act of withdrawal must be a serious act, and need not be implemented until such time as they have other mechanisms in place.


  183. Going to clause 62 now, which relates to the existing requirement that a requesting state must establish a prima facie case to answer. Apparently in the Bill this safeguard is maintained only in relation to category 2 territories. Do you think that is right?
  184. (Mr Nicholls) I think clause 62(3) ought to go. It is a dilution of the prima facie case rule and if you are going to retain the prima facie case rule I think you should maintain it in all its strictness because it covers all other countries in the world apart from those who come within category 1. So it would cover Brazil and the Ukraine.

  185. I am sorry, these are not category 1 countries are they?
  186. (Mr Nicholls) No, category 2.

  187. It covers all those already, does it not?
  188. (Mr Nicholls) Clause 62 is in relation to category 2 and it then deals with the question of a prima facie case in 62(1). Then, in relation to 62(2), it is dealing effectively with the admissibility of the evidence; in other words, the statement does not have to be taken before a foreign judge, it is sufficient if it is made to a police officer or person charged with the duty of investigating. But it is 62(3) that we object to: "A summary in a document of a statement by a person must be treated as a statement by the person in the document for the purposes of the subsection." What that really comes to is this: it allows something to come before the court which is not effectively evidence at all. One of the things about a prima facie case is that you have a statement by a witness. What this is permitting ----

  189. Sworn before a lawyer in the appropriate country.
  190. (Mr Nicholls) Yes, by a lawyer. Actually it is less than that because it is sufficient that it is a statement made to a -----

  191. No, I mean the existing situation is that you must swear an affidavit. Is that right?
  192. (Mr Nicholls) Yes.

  193. Which must be sent over here or ...
  194. (Mr Nicholls) That is right and authenticated. The existing situation is generally speaking that the witness statements are in fact statements made to judges. For example, in the United States you would have the depositions that were taken before a grand jury, so you know somebody is actually giving evidence and you know precisely what it is that they have said. But the trouble about 62(3) is this: it means that any summary, as I see it, in a document of something that has been said by someone else is going to be treated as if it was said by that person. It effectively has, I would have thought, no authenticity whatsoever. I think this can be very disturbing because many other countries do not have our common law system, either as to procedure or as to substantive law, and certainly in my experience, in prosecuting and preparing cases for extradition for countries from all sorts of parts of the world, things slip in which in our system I do not think would be allowed to slip in

    (Ms Alegre) Perhaps I can assist just on the distinction between the category 1 and category 2. The current situation is that the prima facie case is not required in European Convention on extradition cases, so if category 1 territories are to be understood as being European Union and/or potentially Council of Europe, if that is really what we are talking about, there is no change in the status quo on the prima facie case. If, however - which was the worry about the death penalty issue - we are talking about potentially other countries being category 1 countries, then that is slightly a different matter. But I assume that the distinction is made on the basis of the situation as it is now and as it will continue to be. There is no requirement currently for what we expect to be category 1 territories for prima facie case.

  195. Would you go along with withdrawing clause 62(3).
  196. (Ms Alegre) Yes, I would agree with withdrawing 62(3) as well on that point.

  197. Then on this business of the proposed delegation of power to allow the Government to designate certain category 2 territories as being exempt from the requirement to demonstrate a prima facie case, presumably that is not a very good idea either, is it?
  198. (Ms Alegre) No.

    (Mr Nicholls) No. Terrifying.

  199. How do you think that would work?
  200. (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 Kichma 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.

  201. Do you agree with that?
  202. (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

  203. 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?
  204. (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.


  205. 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?
  206. (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.

  207. The stipendiary magistrates?
  208. (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.

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

  211. Tens, hundreds?
  212. (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.

  213. I think ministers would argue that is one of the things that this Bill was intended to stop.
  214. (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."

  215. There is no way of distinguishing between the more serious and the less serious.
  216. (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

  217. 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.
  218. (Mr Nicholls) May I correct that. Forgive me, please. The position was that there was an arrest warrant for the senator.

  219. From Spain, yes.
  220. (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.

  221. It went back to court.
  222. (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.


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

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

    David Winnick

  227. 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?
  228. (Mr Nicholls) Yes, it will.

  229. It will not end up there.
  230. (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.

  231. Taking up the Chairman's point again, if a case is not controversial and is considered more minor - by the defendant, perhaps not, 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.
  232. (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.


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

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

  237. Perhaps one could say they should start in the High Court. Would that address your point?
  238. (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.

  239. You can certainly see a problem from the Lord Chancellor's point of view.
  240. (Mr Nicholls) Yes. One way you could do it - and I had not thought any of this through, and I apologise - is to permit a case to go to the High Court with leave. In other words, you would have to get leave from the magistrate; if refused, leave to the High Court, and it could be dealt with on paper.

    Chairman: We will reflect on that. In conclusion, if there were one change you wanted to see to this Bill, what would it be?

    David Winnick

  241. Drop it.
  242. (Mr Nicholls) I would like to see, going back to the older legislation, a prima facie case; I would want the rules in relation to evidence seriously relaxed; I would want dual criminality; and I would want the "too many bites of the cherry" eliminated. But that is, I accept, unfashionable.


  243. Ms Alegre?
  244. (Ms Alegre) If I am allowed only one, then the seven day discretion after withdrawal of the warrant.

  245. That seems to me to be a relatively minor point.
  246. (Ms Alegre) Presumably you are being kept another seven days on the basis that something else might turn up in order not to release you, which is arbitrary detention.

  247. You are allowed more than one point.
  248. (Ms Alegre) The second point I would say would be the declaration on speciality, but I would not want the UK to make a declaration that consent was presumed to have been given for proceedings on other bases. Thirdly, I would say the issue of retrospective effect, the article 7 point that we raised earlier, that the European Arrest Warrant provisions should only be applied from a specific date and not continued back into the past indefinitely. A final one would be on the death penalty, that I think there should be an absolute bar in category 1 cases.

  249. Mr Crossman?
  250. (Mr Crossman) I have nothing further to add.

  251. On dual criminality, would an amendment saying, "We will not extradite unless the offence is a crime in our country" do?
  252. (Ms Alegre) It would not implement the European Arrest Warrant. That is what the Bill is intended to do.

  253. They are not very likely to go along with that.
  254. (Ms Alegre) It would not be implementing what I think the intention is.

  255. Another way would be a strictly limited list of offences or grades of offences which are highly likely to be offences in EU countries. I suppose that means pruning the list, does it not?
  256. (Ms Alegre) That would amount to the same. It is impossible to tell what the law is in what will be 25 countries.

  257. You are saying it is not likely to be resolvable, that point.
  258. (Ms Alegre) Not if the arrest warrant is to be implemented.

  259. I think it is the Government's intention that it should be implemented!

(Ms Alegre) Yes.

Chairman: We will reflect on those points and certainly propose some amendments in due course. Mr Nicholls, Mr Crossman and Ms Alegre, I am extremely grateful to you for coming. You have been extremely helpful in illuminating what is a area of darkness for most people. Thank you very much.