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Baroness Carnegy of Lour: In view of the Minister's remarks on ordinary language and the fact that the issuing authority issues the warrant, who is to decide whether the warrant is all right according to this
Lord Filkin: It is clear that a Part 1 warrant under Clause 2(3)(b) can be valid only if it is for the purpose of a prosecution. A request from a member state to this country for extradition for the purpose of investigation or interrogation would not be lawful.
I said previously in another debate that there are two early procedural stages of testing, even before we get to the substantive hearing, when the matter is considered in its full merits. The first stage is the National Criminal Intelligence Service, which would expect to see in English on the face of the warrant a clear statement that it was an extradition request for the particular offence that had been committed in the opinion of the requesting state. If on the initial application, whereby the judge was essentially testing the issues under Clause (2)(4)(a) to (d), there was then a doubt in the district judge's mind that the request was for a prosecution caseif he believed that it might be for a fishing trip or an interrogationI should have thought that he had the power to strike out the application. If I am wrong on this matter, I shall write to Members of the Committee.
Lord Carlisle of Bucklow: As I understand it, the whole purpose of changing the law on category 1 extradition is so that, for example, one does not have to prove a prima facie case. However, I am not sure how that fits in with what the Minister has just said. Surely, the judicial process in this country is limited to accepting the word of the other territory that the request is for a prosecution rather than an accusation. The Minister implied that the judge would not grant the extradition if the judge felt that it might be that the individual was merely being accused rather than tried. I do not know how the judge can be sure that there is insufficient evidence and so on, if there is to be no need to prove prima facie evidence in this country.
Lord Filkin: I have two responses to that intervention. That has been the situation since 1991, which is 12 years ago. I am not making a debating pointI would be pleased to know whether there have been any areas of difficulty. We are not aware of any in the Home Office, although that does not mean to say that there will never be any. However, at least there do not appear to have been frequent difficulties.
The fact that since 1991 there has been no requirement to have prima facie evidence that sets out the case in full does not mean that there is not a requirement that the extradition should be for a trial as a result of a charge that has been levied. Therefore, if either NCIS or the judge decides that the warrant
Lord Wedderburn of Charlton: I hope that the Minister will forgive me if I pursue the matter. After all, it is what we ought to do in Committee where issues of human liberty are concerned. This is not a proper discussion for Report stage.
Will the Minister consider what the amendment raisesthat is, the wording of subsection (3)? The subsequent subsections do not solve the problem. Subsection (3)(a) says that the statement must be one where,
Lord Filkin: I believe that I have understood the thrust of the point made by my noble friend Lord Wedderburn about subsection (3), which returns us to his worry that there was an ambiguity in the framework agreement that is repeated in the legislation. I say that in good faith, as that is what I understood about his comments on the framework agreementthat it was potentially open to a misinterpretation allowing for the possibility that someone could be sought for extradition for interrogation, with the view that it might help a subsequent prosecution when it had not yet been decided to prosecute.
I do not wish to spend time debating the matter now, as it is better that we get our lawyers to consider it, but if I am wrong we will change the legislation. If I am not wrong, we will explain either in a letter before Report stage or in the Report debate itself why we believe that the point is safe. It is a good challengethe Government are being asked, "Is this point safe?"
Baroness Anelay of St Johns: I am grateful to the noble Baroness, Lady Turner, and the noble Lords, Lord Stoddart and Lord Wedderburn, for their support and for their forensic examination of the purpose behind my amendment. I agree entirely with the noble Baroness, Lady Turner, who said that it might be possible to find different wording to mine to achieve the right objective. Like the Minister, I shall undertake to reflect carefully on the drafting of the amendments between now and Report stage.
The combination of the arguments made by the noble Lords, Lord Stoddart and Lord Wedderburn, went to the heart of the matter. People need to be assured that the way in which they will be treated by a jurisdiction in Europe where corpus juris comes into play is fair and clearly laid out in the Bill. The noble and learned Lord, Lord Wedderburn, was particularly concerned about ambiguity, and there remains a level of ambiguity in the Bill.
The Minister made two points. First, he said that in another place my honourable friend John Maples had accepted the government amendments and made no further amendments of his own later on. My amendment simply reflects the fact that we have been talking to our friends in another place between the Bill leaving there and arriving here. We decided that there was a remaining ambiguity that needed to be resolved and that we should table these amendments, which are rather different from those debated in another place.
The Minister also repeated the comment that he has made in many occasions in the pastand will no doubt continue to make in futurewith regard to the 1989 Act and the prima facie rule being dropped. Our riposte is always to say that this is a different animal. In Part 1, other concessions are being made by the Government as part of the framework decision. They are giving up safeguards, which makes our approach to Part 1 necessarily different from that to the loss of the prima facie rule in the past.
I am grateful for the way in which the Minister responded to my noble friend Lord Carlisle, who asked how a judge could knock out an application if he thought that it was for a fishing trip. The Minister's response was to explain that there should be sufficient information on the warrant for the judge to be able to make an appropriate decision as to whether it was a fishing trip that was involved. That was an important comment, and I shall consider it carefully.
I should put on record my thanks for the courtesy of a body outwith this Housethe Bow Street magistrates' court. It has been made possible for me to attend an extradition case tomorrow so that I may see what the current status is under the 1989 Act before I make any further pronouncements on that particular piece of legislation.
Amendment No. 18 was tabled in response to representations from Liberty, which is particularly concerned that there is currently no need to establish a case against those facing extradition to category 1 countries. As I have just said, that may well be in line with current practice under the 1989 Act where no prima facie evidence is required from those signed up to the European Convention on extradition. We had quite a debate on that at Second Reading which I shall certainly not seek to repeat. However, we feel that there should at the very least be a statement of facts that establishes more than simply the identity of the accused and that the offence is an extradition offence. That is vital. Having heard the Minister's response to the previous group of amendments, I hope that he may well be able to flesh out his response to those amendments and place on the record assurances that may resolve our concerns.
In most extradition cases, it would be little more than a formality to identify those cases where there was a concern about the legitimacy of the extraditionfor example, if extradition should be barred on account of political prosecution under the extraneous considerations provisions. It is similar to a "tick box" exercise.
In Committee in another place, Clause 2(4) was introduced. It requires some level of detail. The Government responded to concerns that had been expressed in that regard. However, the framework decision on the European arrest warrant contains an annex model of the warrant. In the interests of legal certainty and clarity, the Bill should explicitly state the details required on the warrant to allow the judge to reach a reasoned decision. In particular, the details of the offence must include sufficient detail of the legal basis of the offence and the specifics of the conduct alleged in order for the judge to establish a reasoned connection between the offence or type of offence and the alleged conduct.
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