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Lord Goodhart: On the Minister's final point about the question of mutuality, I point out that Article 5 of the European framework decision states:


Paragraph 2 then states that,


    "if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure".

As regards category 1 states, it is clear that other members of the European Union may impose such a condition on extradition to this country under the terms of the European framework decision. So I do not regard that argument as a particularly serious one.

The amendment, which applies to category 2 territories, is less far-reaching than that which would be permitted under Article 5 of the European framework decision. Therefore, I do not believe that it is unreasonable on the grounds that other countries might take a different view. However, I shall consider what the Minister has said on the subject and decide whether I wish to bring the matter back for further debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 210:


    Page 48, line 13, leave out subsection (3).

The noble Lord said: The amendment seeks to remove subsection (3) from Clause 93 of the Bill, which states that subsection (1)—that is, the ban on extradition to a country where the death penalty might be imposed—

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    "does not apply if the person has consented to his extradition under section 125".

I believe that, in principle, the United Kingdom should never assist in the sending of someone to face a trial that might result in the death penalty. It is clear that if a person is determined to go home to face trial there is nothing that this country could, or should, do to stop him doing so. That is both his decision and his action in removing himself to that country. I therefore believe that subsection (3) is, first, unnecessary and, secondly, inappropriate—because one would have to consider the nature of the consent that had been given. As I said, I believe that, as a matter of principle, the Government of the United Kingdom should not assist a person who has consented to being extradited to face the death penalty and should leave that decision and its implementation to that person himself or herself. I beg to move.

Baroness Anelay of St Johns: My noble friend Lord Bridgeman has added his name to the amendment. He is not present because he is bravely taking the Unstarred Question on the Floor of the House and is preparing for that. That is one of the problems that we have when a Grand Committee clashes with other business.

I can be brief. I support the proposition advanced by the noble Lord, Lord Goodhart. I am always concerned when there is a question of consent, because consent can be given for many reasons. It may be that the person has not arrived at the decision in the proper or most advisable manner. As the noble Lord, Lord Goodhart, said, we should not in this Bill be assisting people to be removed in those circumstances. If it is entirely their decision, then obviously they have to face that; however, I believe that subsection (3) should be removed from the Bill as currently drafted.

Lord Filkin: As I signalled privately to one or two Members of the Committee previously, in discussions and preparation for today's debates we were considering the potential mischief and the potential benefits of removing the provision. Such matters are never black and white. I was minded to see a situation in which someone might consent to his removal while still being of sound mind. People could, for example, be in a situation where they were so depressed that they thought that it was not worth pursuing the matter any further. We had a debate with ourselves as to whether in that situation the state should support such a process. We then considered the reverse—circumstances in which guarantees might not be given and where the person himself wanted to go. It is possible to construct an argument where there might be some such person, but it is a fairly remote set of circumstances.

Therefore, I have signalled that we are minded to take the amendment away and to reflect positively on it. We will examine the situation further to see whether there would be any significant mischief as a consequence of the removal of the subsection. There

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are many arguments which, if I had not signalled them, would have been made in fuller detail as to why there are risks with the proposal as it stands.

I hope that, given what I have said in good faith, the three noble Lords who have put their names to the amendment will be minded to withdraw it at this point.

Lord Carlisle of Bucklow: Before the noble Lord sits down, if he is to reconsider this matter, I do not know whether it might be helpful to remind him of what is in some ways almost an analogy; namely, when we had the death penalty in this country a prisoner could not consent to his own death by pleading guilty unless the judge was satisfied. In other words, the judge had the power to overrule a guilty plea and say no, he must be tried. If there was a doubt, a prisoner could not consent to his own death.

Lord Clinton-Davis: I added my name to this amendment, but my noble friend has been very fair as regards the Committee. He said, without any obligation, that his civil servants—I assume that he, too—will look very carefully at the position. I do not think that anything divides members of the Government or the Opposition as far as the intention is concerned. I thank my noble friend for what he said. He is being entirely fair with this Committee.

5 p.m.

Lord Goodhart: I am most grateful to the Minister for what he said. We welcome his undertaking to look at this matter again with a likelihood of taking some action. Therefore, in due course I hope that this amendment will be replaced by a government amendment. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 agreed to.

Clauses 94 to 97 agreed to.

Clause 98 [Time limit for order for extradition or discharge]:

[Amendments Nos. 211 and 212 not moved.]

Clause 98 agreed to.

Clause 99 [Information]:

[Amendment No. 213 not moved.]

Clause 99 agreed to.

Clauses 100 and 101 agreed to.

Clause 102 [Court's powers on appeal under section 101]:

[Amendments Nos. 214 and 215 not moved.]

Clause 102 agreed to.

Clauses 103 to 123 agreed to.

Clause 124 [Competing extradition requests]:

The Earl of Mar and Kellie moved Amendment No. 216:


    Page 64, line 2, at end insert—


"( ) the date on which each offence was committed (or was alleged to have been committed);"

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The noble Earl said: Amendment No. 216 was inspired by the Law Society of Scotland, yet again. Simply, it extends the consideration of the Secretary of State when completing an extradition request by one extra factor; namely, the question "when". The Bill calls for consideration of how serious, where, the date of the request and whether the person is being convicted in absentia or merely stands accused. The amendment adds a fifth consideration; that is, when was the offence, or the alleged offence, committed? As there are limits, that seems to be a relevant consideration. The limits are, of course, both statutory and common sense.

When at school I was taught to answer history questions with the formula: who, what, when, where, why, how and results. The Minister will recognise why I am attracted therefore to this amendment. I beg to move.

Baroness Carnegy of Lour: I shall be very interested to hear what the Minister has to say about this amendment. It seems that the Law Society of Scotland may have a point, although it is not a specifically Scots point. The quality of evidence that can be received may grow less with time. For that reason, it may be important, if there are competing requests for extradition, to go for the oldest first. Alternatively, it could operate the other way around. A second or further offence, committed after a person has been charged for a first offence, could be more heinous. It would be more extraordinary to be committing a second or third offence if a first has already been committed. There seems to be some sense in putting the date of each competing offence before the Secretary of State when he makes his decision. I shall be very interested to hear what the Minister has to say.

Lord Davies of Oldham: I am grateful for this short debate on an interesting concept. I was an historian too, but I cannot remember being able to answer any of the question which the noble Earl, Lord Mar and Kellie, so correctly identified as key issues for the historian. Of course, I recognise that the question of time is important in certain contexts. With regard to this issue, I shall try to establish that nothing precludes the judge, if it is Part 1, or the Secretary of State, if it is Part 2, or a combination, from taking any relevant factors into account. In fact, it is quite the opposite. We would expect all relevant factors to be taken into account. Within the framework of the Bill, we have sought to specify four factors. I should like to identify why they are there, as well as to indicate why it is quite difficult to see how the concept of time can be put foursquare with existing factors and adds to the Bill.

Competing requests—where we receive two extradition requests for the same individual—are, mercifully, relatively rare. None the less, we need to be able to deal with such circumstances. That is why the Bill contains provisions in this respect. Where two Part 1 requests are received, the district judge deals with those. Where two competing Part 2 requests are received, the Secretary of State makes the adjudication. If one request is under Part 1 and the other under Part 2, the Secretary of State adjudicates.

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In each case the Bill specifies the factors that have to be borne in mind. But I reiterate that other relevant factors can and should be taken into account.

The four factors identified can be readily understood. I do not need to detain Members of the Committee a great deal on them. Surely, the single most important factor is whether one offence is significantly more serious than another. That is bound to be the most important consideration in competing cases. Similarly, there is a good reason why the place where the offences took place should be considered. The United Kingdom preference always has been that people should be tried in the place where they committed the crime. Again, that is a good reason, which is why the UK has always been willing—unlike some EU countries—to extradite its nationals.

If there is a choice between a territorial request and an extra-territorial request, we believe the territorial one—the place where the crime took place—should take priority. That is particularly important if, as is theoretically possible, both requests could relate to the same person. Imagine that a German commits a serious offence while on holiday in France and then comes to Britain. France might request the person's extradition, but equally so might Germany, as it takes extra-territorial jurisdiction over the acts of its citizens. In such circumstances, we would give preference to the French request because we prefer people to be put on trial where the crime has been committed.

The third factor to be taken into account when deciding competing requests is when the respective requests are received. That is important because one request might be well advanced in procedures before the second is received. One case already might have had its full extradition hearing and even possibly the appeal hearing at the High Court before the second request is received. All things being equal, the request which is well advanced along the judicial system should take precedence, rather than starting the whole process from scratch for the new request. Finally, the fourth factor to be taken into account is whether the requests are accusation cases or conviction cases. I am sure that Members of the Committee will understand why that should be so.

Extradition is a significant step which has profound consequences for the person who is subject to it. It is preferable to extradite in a case where the person has already been tried and found guilty in a court of law than in a case where the person has yet to be put on trial and, perhaps, may be found not guilty. That is what the Bill currently states.

The amendment would add another factor to be considered in every case where there were competing requests—the date on which the offences in question are alleged to have taken place. There may be some circumstances in which it would be entirely irrelevant, but the amendment would make it obligatory in every case. I have some difficulties on this. I am not sure how the dates for the offences should be taken into account. Should priority be given to the most recent offence, or to the less recent offence? On the one hand, it could be

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argued that the most recent offence should take priority because those responsible for the other requests might have been dilatory in their proceedings. On the other hand, it could be argued that the less recent offence should take priority because there is a greater danger that the memories of witnesses to the crime will fade unless the person is brought rapidly to justice.

When faced with two requests which are otherwise roughly equal, one of which relates to conduct two years ago and one which relates to conduct six months ago, which should be given priority? I do not think that there is an easy answer to that question. But unless we are prepared to answer it and put instructions clearly on the face of the Bill, I do not think that we can support the amendment because that is what the amendment actually requests. It puts this concept foursquare with the existing four specifications in the Bill.

The list of factors which I have just gone through is not exhaustive. Of course, if it is appropriate, the concept which the noble Earl introduces in his amendment could and should be taken into account. In a case where the dates of the respective offences clearly point to one or other of them being given priority, the person concerned can take that into account. But, for the reason I have given, I do not see that we should require the person making the judgment, in every case of competing requests, to have regard to this factor foursquare with the ones listed in the Bill. That is the reason why there is some merit in the proposal made by the noble Earl, which, on some occasions, would be relevant and should be considered. But we do not think that it fits foursquare with the four major considerations in the Bill


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