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Baroness Carnegy of Lour: I wish to make one point. Does the noble Baroness realise that, among the limited number of members of the public who understand the European arrest warrant—we hope that more people will do so by the time the Bill leaves this House—the single point that frightens them most is that, if someone from this country goes to Greece, Hungary or wherever and commits a crime by mistake they might be extradited? In arguing about the levels of crime, the Minister said that only trivial crimes would be committed by mistake. But, over the summer, could she look at the situation in the countries that will be part of the system to see whether, above the threshold that the Government want, it would be impossible for someone to commit an offence by mistake?

That will be the political point that the Government must beat in the longer run. People will understand the advantages to this country of being able to get people back. The Minister states that we must not lose the advantages, but it is the disadvantages that will frighten people. It is in the political interests of the Government and of everyone that they look at those crimes to see whether they have got the approach right. A number of legal people do not seem to think so.

Baroness Scotland of Asthal: I reassure the noble Baroness that I understand people's worries about committing an offence that they had no idea existed. It is a very real issue. If I can use anecdotally the

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information that I acquired from being a Minister in the Foreign Office responsible for consular affairs, regrettably, many of our citizens who go abroad think that the law stops at Dover. They think that any act committed outside this country does not count and is not an offence, and that behaviours change. So we have a cultural requirement to try to make people understand that they must obey the law regardless of whether they are in this country or another.

The only dual criminality issue that we have identified is the point made by the noble Viscount, Lord Bledisloe, about Holocaust denial. The noble Lord, Lord Lamont, says that that is the way it is now but we do not know about other offences. In the main, all the offences identified in other countries are reflected in our own law. Perhaps they are called something different, but the kernel of the offence is the same. I take on board what the noble Baroness, Lady Carnegy, says.

Lord Stoddart of Swindon: I do not wish to contribute to the debate, as there have been so many well-made contributions. But there is a question that puzzles me. Presumably, the framework agreement was reached under the inter-governmental pillar. If so, there must have been unanimity. If there was unanimity on all the clauses, why are the Government now trying to do something different?

Baroness Scotland of Asthal: The whole point of having a framework document is that it is not a straitjacket. It sets the parameters within which we agree to work. But it enables us, within that, to fashion and craft arrangements that best fit our own needs or those in dealing with others. It is a broad framework; that is why it is called a framework decision. It is not as prescriptive as the other forms that we could have agreed on. It gives us a level of flexibility. If I might say so, I would have anticipated that the noble Lord, Lord Stoddart, would rather approve of framework documents.

Lord Stoddart of Swindon: Yes, indeed. Did our representatives attempt to persuade those of other countries that three years was better than one in this case?

Baroness Scotland of Asthal: I really cannot say. I did not have the privilege of representing us in those negotiations, although I have done so for others. If the noble Lord so wishes, I shall make enquiries. He indicates that he does not. The framework is open to us to choose another benchmark, as we would have known when we negotiated it. We have chosen another benchmark. Of course I hear all that is said about it. We will continue to reflect, but, at present, we have rested at this point and we think it fits our system.

Lord Goodhart: I shall try to be brief in making my winding-up speech. It is clear that there is a fundamental difference between the supporters of the amendment and the Government. There is little point in discussing the differences at any length.

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The Minister suggested that the changes that we propose to make through this amendment would help serious criminals and deprive victims of crime, on occasion, of the chance of seeing criminals brought to justice. I do not believe that either of those is true. So far as serious crime is concerned, the kind of crimes for which serious professional criminals go in—major fraud, large-scale drug dealing and so on—are almost inevitably crimes in both the requesting country and the requested country. The requirement of the abolition of dual criminality will be of no assistance to them.

So far as victims of crime are concerned, one has to say that the kind of crime that causes cumulatively the most distress—local street-based crime—is by and large wholly outside the list of 32 crimes. For example, that list does not include theft, sex offences short of rape or paedophilia, or personal violence short of grievous bodily injury. The number of cases in which victims will lose the ability to see offenders brought to justice for such crimes as a result of the amendment is absolutely nil.

The cases where there is no dual criminality are, by the nature of the event, matters on the borders of criminality. They are something thought to be a crime in one country but reasonably thought in other countries not to be a crime. That is not the kind of offence likely either to be widely exploited by serious criminals— sometimes in the past they may have used tax exemptions for that—or to be particularly upsetting to individuals. I do not see any problem with that.

The noble Baroness criticised my party for on the one hand supporting the principle behind the Bill, but on the other hand tabling such amendments. I do not accept that. As I said, we accept the principle behind the European arrest warrant, but the fact that we do so does not reduce the need for us to scrutinise with great care the details of how the Government will bring that warrant in. If we find some of those proposals objectionable, we shall object to them, as we do in this case. The noble Baroness can rest assured that this amendment will come back but, for today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

[Amendments Nos. 116 and 117 not moved.]

Baroness Anelay of St Johns moved Amendment No. 117A:


    Page 32, line 22, after "Kingdom" insert "punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment"

The noble Baroness said: We now turn to Clause 63(3). Some of what I am going to say has been foreshadowed by remarks made by the noble Viscount, Lord Bledisloe, in the previous debate. I want to look at changes to our current dual criminality rules. Although of course the clause is complicated in itself, we think that there may be an unintended loophole in subsection (3) which our amendment is designed to eliminate.

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I was alerted to the matter by one of the most distinguished practitioners in the extradition world, Mr Clive Nicholls QC. He advises me that, having looked further at the Bill, he notices what he considers to be an omission. As we know, Clause 63 deals with the whole definition of extradition offences. Subsection (3) covers offences for which there is dual criminality. We are leaving subsection (2) and its list behind. Subsection (3) covers cases where the conduct is an offence in both the category 1 territory that has issued the warrant and in the UK. However, Mr Nicholls says,


    "whereas existing extradition arrangements define double criminality as conduct which carries a penalty of more than 12 months imprisonment in both countries (section 2 1989 Act), clause 63(3) merely requires that . . . the conduct occurs in the category 1 territory . . . would constitute an offence under the law of the relevant part of the UK if it occurred in that part of the UK",

and,


    "is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment".

Under that third condition, it is only in the category 1 territory that the 12 months apply.

Mr Nicholls states:


    "This provision is of grave concern since it would allow a person to be extradited pursuant to the simplified procedures of Part 1 where, although the conduct which took place in the category 1 territory amounts to an offence in both countries"—

that is fine—


    "it need only be punishable by 12 months imprisonment (or more) in the foreign state (i.e. not in the UK). This will not restrict extradition to the most serious of offences from the UK viewpoint and will amount to a fundamental change to",

our current dual criminality rule in the UK. We wonder whether that is the Government's intention. I beg to move.

Baroness Scotland of Asthal: The noble Baroness is right in that we went over much of the background in relation to the amendment on the previous debate, and I shall not repeat all that I said. The positions of the Government and Her Majesty's Opposition seem different. I can understand their position, even if we do not agree with it. I suspect that there will be those who say that there is real difficulty in putting forward a position different from that which I have already advocated.

I want to be clear about Clause 63(3), as that is what we are really dealing with. We are talking about offences that occur in the requesting state, so there are no issues about extra territoriality or the conduct that might have occurred in the United Kingdom. We are also talking about conduct that, as the noble Baroness said, is regarded as criminal in both the United Kingdom and the requesting state, so there is no question of the person being unaware that he was engaging in illegal activity.

In those circumstances, I am not sure whether the noble Baroness is saying that a person should not be extradited, not because the conduct is legal in this

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country, but because it is not capable of resulting in at least a year's imprisonment in the other country. That is what I think I understood.


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