Joint Committee On Human Rights Twentieth Report


TWENTIETH REPORT


The Joint Committee on Human Rights has agreed to the following Report:

DRAFT EXTRADITION BILL

The Background to and Structure of the Draft Bill

BACKGROUND

1. The Draft Extradition Bill was published, in the same volume as an introduction to and explanatory notes on the draft Bill, on 27 June 2002.[1] It builds on the Home Office paper, The Law of Extradition: A Review, published in March 2001, and on the EU Framework Decision on the European Arrest Warrant,[2] agreed by the Justice and Home Affairs Council at its meeting on 13 June 2002. The draft Bill has a number of objectives, but the main ones are to provide for fast-track extradition to EU Member States, Norway, Iceland and Gibraltar (which would be designated as 'category 1 territories' by Order in Council made under clause 1 of the Bill) which have issued arrest warrants for people accused of offences covered by the Framework Decision,[3] and to streamline procedures for extradition to other countries with which the United Kingdom has extradition treaties (which would be designated as 'category 2 territories' by Order in Council made under clause 51). The main effect of the proposals in relation to requests from category 2 territories would be to speed up the process, and to require people to use a statutory appeal process rather than the sometimes lengthier and less effective procedures of judicial review and habeas corpus. Substituting a statutory appeal for the inherent jurisdiction of the High Court to grant habeas corpus or judicial review would raise constitutional issues, which might in due course be considered by the House of Lords Select Committee on the Constitution. However, as the statutory appeal proposed in the draft Bill appears to offer protection for human rights at least as strong as that provided by judicial review and habeas corpus, we do not consider that it gives rise to concern on human rights grounds, for reasons explained in paragraph 14 below. The principle of "double criminality" would still apply: the suspect's alleged conduct would have to constitute an offence under the general law of both the requesting territory and the jurisdiction in the United Kingdom in which the application was being considered. A judge would still have to consider whether there was sufficient evidence to justify extradition to a category 2 territory, and some protection against prejudice and discrimination on and political grounds would remain (although, as we note below, paragraphs 20-22, there would be no express rule preventing extradition in respect of political offences). There would be far greater changes in respect of extradition to category 1 territories. In these cases, courts would no longer be able to refuse the request on the ground of insufficiency of evidence against the suspect; the principle of double criminality would not apply if the conduct fell within the list in article 2.2 of the Framework Directive;[4] and some other protections against being subject to political charges would cease to operate. We consider these matters further below.

2. It is important to subject these proposals to the most careful scrutiny. Extradition to another territory is a process whereby a person may well be innocent of any offence, is present in the United Kingdom, and (if not an enemy alien) is therefore entitled to the protection of the Crown, but is removed to another country, without the need for his or her consent and possibly by force, to face the threat of a potentially severe criminal penalty. This self-evidently interferes with the right to liberty and security of the person under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR'). It may interfere with the person's private and family life. It may put him or her at risk of prosecution, discrimination or prejudice on account of nationality, race, religion or political opinion. Depending on the alleged offence, it may also threaten the individual's very right to hold and express political opinions. It is essential to ensure that there are properly rigorous procedures in place which safeguard people against an improper use of this procedure, which may threaten their human rights, and uphold the Rule of Law. We note the words of Justice Stevens, of the United States Supreme Court, dissenting in United States v. Humberto Alvarez-Machain

For every Nation that has an interest in preserving the Rule of Law is affected, directly or indirectly, by a decision of this character. As Thomas Paine warned, an "avidity to punish is always dangerous to liberty" because it leads a Nation "to stretch, to misinterpret, and to misapply even the best of laws." To counter that tendency, he reminds us: "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."[5]

We approach our examination of the draft Bill in that spirit, while stressing that our remit relates only to the human rights implications of the draft Bill in the United Kingdom. Other Committees of both Houses will be better placed than we are to consider the wider policy implications of the draft Bill, and the extent to which it meets the requirements of European Union law.

STRUCTURE OF THE BILL

3. We start with a general point about the intended relationship between the draft Bill and the existing statutory provisions relating to extradition. The current law is contained in the Extradition Act 1989 ('the 1989 Act'). The draft Bill and its associated documentation do not explain which parts of the 1989 Act would be repealed or amended by virtue of the draft Bill. It is clear that the procedures for dealing with extradition to category 1 and category 2 territories would supersede those under the 1989 Act, but the draft Bill does not contain a list of the provisions of the 1989 Act which would be repealed. Instead, it contains a power in clauses 165 and 168 for provisions in the 1989 Act, and the Backing of Warrants (Republic of Ireland) Act 1965, to be repealed by an Order in Council, which would be subject to the negative resolution procedure. This is significant, because there are important provisions in the 1989 Act which are not replicated in the draft Bill, including provisions relating to extradition for political offences. We consider that the use of delegated legislation to amend the 1989 Act would be inappropriate. Any proposed amendments to the 1989 Act should be expressly included on the face of the Bill, so that their impact on human rights may be properly assessed and debated in the context of the general scheme which the Bill would establish.

EXTRADITION PROCEDURES

4. The proposed Bill would represent a fundamental change in the philosophy underpinning the UK's approach to extradition. In relation to our European partners, the Bill effects a pooling of judicial sovereignty-the UK would no longer, in cases relating to extradition to these countries, seek to examine whether there is prima facie evidence that the suspect was guilty of the alleged offence, or to question the compatibility of the requesting territory's criminal code or criminal justice system with that of the UK. Balanced against this would be an acceptance that all those countries are bound to observe Convention rights. But in respect of countries other than EU Member States, Norway, Iceland and Gibraltar, the safeguards previously applied in determining extradition applications under bilateral arrangements would, by and large, continue to apply. Not all members of this Committee are content that the decision to pool judicial sovereignty in this way is the right one, but we recognise that this is a matter of political judgment which lies outside the remit of the Committee.

5. The procedures proposed in the draft Bill would involve a number of steps in cases where the person whose extradition is sought did not consent to being extradited. The draft Bill would authorise the setting of strict time limits for each step in the process by way of subordinate legislation. All the procedures in respect of requests from both category 1 and category 2 territories could be by-passed if the person whose extradition is sought consented to being extradited.

Category 1: EU Member States, Norway, Iceland and Gibraltar

6. The general structure of the procedure when a request is received from a category 1 territory would normally[6] be as follows. There would be an initial hearing at which the senior district judge (chief magistrate), or a district judge (magistrates' court) designated by the senior district judge (clause 48), would decide whether the person brought before the court is the person named in the arrest warrant. If not, the person would be discharged: clause 5. If satisfied that the person before the court is the person named in the warrant, the judge would fix a date for a hearing, and remand the person either on bail or in custody. (Any decision to refuse bail would have to meet the requirements of ECHR Article 5.) At the full hearing, the judge would have to decide whether the offence in respect of which extradition is sought was an extradition offence. If not, the judge would have to order the person to be discharged (clause 8). If it is an extradition offence, the judge must decide whether extradition is barred by reason of double jeopardy, the person's incapacity through age, the death penalty, the absence of speciality arrangements with the territory in question, or the person's earlier extradition to the United Kingdom (clause 9). The draft Bill does not, however, require the judge to consider whether the suspect has the mental and physical capacity to stand trial. We consider that a lack of such capacity ought to be included among the express bars to extradition. If any of the bars applies, the judge must order the person to be discharged. In any event, the district judge would be prevented from ordering extradition if that would threaten to violate any Convention right (including the right to a fair trial under ECHR Article 6(1)) either in the United Kingdom or in the requesting territory,[7] a matter considered further in paragraphs 13-23 below. Otherwise, the judge would have to order extradition, subject to an appeal to the High Court and, with leave, the House of Lords on points of law. Other remedies, including judicial review and habeas corpus, would not be available to challenge the decision.[8]

7. There are several differences between this regime and the current rules on extradition. There would be no requirement that the extradition offence in the requesting territory would also have been a criminal offence if it had been committed in the United Kingdom (the 'double criminality' requirement): if it is an extradition offence within the meaning of the Framework Directive (including, for example, racism or xenophobia,[9] environmental crime, or illicit trafficking in cultural goods) and the other conditions are satisfied, it would be necessary to order extradition. However, in our view, this would not engage any Convention right, as the double criminality requirement stems from treaties rather than being a general principle of international or Community law such as might give rise to an individual right in the law of the UK. Furthermore, Article 2.4 of the Framework Decision would allow the United Kingdom to retain the principle of double criminality for offences not falling within the list in Article 2.2, although the draft Bill is silent on the matter.

8. Nor would there be scope for the judge to consider the adequacy of the evidence forming the basis for the European arrest warrant. This causes us concern, and could, potentially, engage the right to be free of arbitrary arrest and detention and the right to take proceedings whereby the lawfulness of the detention can be decided speedily, under ECHR Article 5(1) and (4), and we consider it below (paragraph 13).


1   Extradition: Consultation on Draft Legislation, Cm. 5545 (London: The Stationery Office, 2002) Back

2   2002/584/JHA, OJ L 190, 18.7.2002 (hereafter 'Framework Decision'), p. 1. The human rights implications of a draft of the Framework Decision were considered by Sub-Committee E of the House of Lords Select Committee on the European Union in February 2002: see Select Committee on the European Union, 16th Report of 2001-02, The European Arrest Warrant, HL Paper 89, pp. 6-7, paras. 6-9 Back

3   Article 2.2 of the Framework Decision provides: 'The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: participation in a criminal organisation; terrorism; trafficking in human beings; sexual exploitation of children and child pornography; illicit trafficking in narcotic drugs and psychotropic substances; illicit trafficking in weapons, munitions and explosives; corruption; fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the Communities' financial interests; laundering of the proceeds of crime; counterfeiting currency, including of the euro; computer-related crime; environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties; facilitation of unauthorised entry and residence; murder, grievous bodily injury; illicit trade in human organs and tissue; kidnapping, illegal restraint and hostage-taking; racism and xenophobia; organised or armed robbery; illicit trafficking in cultural goods, including antiques and works of art; swindling; racketeering and extortion; counterfeiting and piracy of products; forgery of administrative documents and trafficking therein; forgery of means of payment; illicit trafficking in hormonal substances and other growth promoters; illicit trafficking in nuclear or radioactive materials; trafficking in stolen vehicles; rape; arson; crimes within the jurisdiction of the International Criminal Court; unlawful seizure of aircraft/ships; sabotage.' Back

4   Art. 2.4 of the Framework Decision would allow executing states to insist on double criminality in respect of other offences, but the draft Bill is silent on this matter Back

5   112 S. Ct. 2188 (1992) (footnotes omitted) Back

6   This paragraph does not consider unusual cases, such as where a person's extradition is requested by a category 2 territory as well as a category 1 territory Back

7   Clause 17. Paragraph (12) of the Preamble to the Framework Decision asserts that it respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union, which include the human rights and fundamental freedoms guaranteed by the ECHR and forming part of the common constitutional traditions of Member States, and reflected in the Charter of Fundamental Rights of the European Union Back

8   Clause 29 Back

9   Sub-Committee E of the House of Lords Select Committee on the European Union has recently been examining the relationship between the definition of racism and xenophobia in EU law and the operation of the EU arrest warrant, and is expected to report shortly Back


 
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