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Lord Hodgson of Astley Abbotts: I am grateful to the noble Lord, Lord Goodhart, for his practical contribution in support of what we are trying to achieve. The Government set some very ambitious objectives for the Bill, on Second Reading here and in the other place, as to how we would radically transform the extradition procedure and the reasons for doing so. It is not unreasonable for us to see to what extent we have achieved those objectives. The noble Lord's points about simplicity, time and so on are issues well worth pursuing.

My second point is that the Minister has said several times during our debates that there is a balance between what we get and what we give up. We want to be able to check that the balance is maintained. Of course there are worthwhile objectives in the legislation that we should pursue, but we are giving some things up as a result—that is in the order of things—and we want to make sure that the balance works properly.

Thirdly, the Minister talked about cost implications and said that something should not go on for ever and a day. I said at the end of my remarks that the report was not meant to be for ever and a day. I can see how the provisions would bed down and the report would then drop away once we had some confidence in how the system was operating. That said, he was kind enough to offer half a loaf—perhaps a quarter of a loaf, or a slice or two—and on that basis, and promising that I will not quote his words to him, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 201 to 205 agreed to.

Lord Filkin moved Amendment No. 256A:



"AMENDMENTS
Schedule (Amendments) contains miscellaneous and consequential amendments."

On Question, amendment agreed to.

Clause 206 agreed to.

Clause 207 [Commencement]:

Lord Goodhart moved Amendment No. 257:


    Page 114, line 25, at end insert—


"( ) This Act shall only apply to requests relating to acts committed after 7th August 2002."

The noble Lord said: For the first and only time today, I have moved an amendment. I am afraid that I have to start with an apology. It is entirely my fault that the drafting of the amendment is defective. It was intended to read:


    "( ) Sections 63(2) and 64(2) of this Act shall only apply to requests relating to acts committed after 7th August 2002".

Sections 63(2) and 64(2) are, of course, the subsections that apply the abolition of the dual criminality rule for the 32 listed offences. I have notified the Minister and the noble Baroness, Lady Anelay, of the intended

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wording, and I hope that I will be excused. I have discussed it with the Bill Office, which says that given that this is a Grand Committee it is not necessary to table a manuscript amendment.

We believe that it is wrong in principle to allow extradition for an offence that was not extraditable when it was committed because of the absence of dual criminality, which was a requirement at that time but had subsequently ceased to be a requirement. Under Article 32 of the framework decision, the European arrest warrant is required to come into force on 1st January 2004. However, Article 32 provided that, at the time of the adoption of the framework decision by the Council in June 2002, any member state might make a statement indicating that it would continue to deal with requests relating to acts committed before a specified date in accordance with the extradition systems applicable before 1st January 2004. The specified date had to be not later than 7th August 2002.

Had the United Kingdom made a statement in June 2002 to that effect, therefore, the result would have been that the dual criminality rule would have continued to apply to offences on the list if committed before 7th August 2002. So far as I am aware, the United Kingdom did not make such a statement and it is now too late to make it. I strongly believe that the Government should have made such a statement. I would have had no objection to backdating the restriction to the 7th August 2002, which is the latest date up to which such a restriction could have been applied. By that date the framework decision had already been adopted, so any offenders, if they chose to take legal advice on this, could have been on notice of a prospective change in the law. Of course, that principle does not apply to offences committed before the date of the adoption in 2002.

Given the failure to make the statement, I recognise that the amendment is now inconsistent with the framework decision and I realise that the Government will not be willing to accept it. Nevertheless I move the amendment as I believe that this is an issue on which the Government should have taken action. Retrospective legislation creating a new criminal offence, of course, is forbidden by Article 7 of the European Convention on Human Rights. The retrospective extension of the power to extradite is not itself a breach of Article 7, but in my view it comes pretty close to it. For that reason I regret that the Government have not taken the option offered to them by Article 32 of the framework decision. I beg to move.

6.30 p.m.

The Deputy Chairman of Committees (Lord Haskel): Page 114, line 25, at end insert—


    "( ) Sections 63(2) and 64(2) of this Act shall only apply to requests relating to acts committed after 7th August 2002".

That wording is slightly different from the wording in the Marshalled List.

Lord Hodgson of Astley Abbotts: In this group we have Amendments Nos. 259 and 260. We have a good deal of sympathy with the amendment moved by the noble Lord, Lord Goodhart. Having just been told

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about the change when I arrived this afternoon, I am not sure that I have understood the full import of it all, but as he explained it, it seemed to have a good deal to commend it.

Amendments Nos. 259 and 260 would require that any commencement order made by the Secretary of State that applied the provisions of the Bill to extradition proceedings which had already been commenced under the Extradition Act 1989 should be approved under the affirmative resolution procedure.

In essence, the amendments seek clarification from the Government on the way in which they propose to manage the transition from the procedures set out by Parliament in the Extradition Act 1989 to those that are in the Bill. Will extradition proceedings that have already started when the Act comes into force continue under the provisions of the 1989 Act, or will the provisions of this Bill be applied to such proceedings in any way, with or without modifications? Do the Government propose any kind of specified cut-off date, as envisaged in Amendment No. 257, and will that be in relation to the date on which extradition proceedings commenced or to the date on which the extradition offence was alleged to have been committed?

We do not seem to be able to find any provisions in the Bill setting out the arrangements that will govern this transitional period other than the traditional Henry VIII provision that orders made by the Secretary of State, including commencement orders, may,


    "include supplementary, incidental, saving or transitional provisions".

The Minister will be aware that this is not always the case, and that the Government often set out on the face of Bills, in some detail, the way in which they intend transitional arrangements to operate. For example, Schedule 18 of the Criminal Justice Bill, which we are currently discussing, sets out the transitional arrangements that will apply when the new sentencing regime for murder is introduced. Given that extradition law and procedures can be quite complex, even the streamlined procedures introduced by the Bill—the operation of the European arrest warrant is potentially controversial, particularly until the procedure has bedded down—can the Minister explain to the Committee why the Government do not appear to have placed any such clear transitional provisions on the face of the Bill? I hope that the Minister will be able to provide clarification on those points as well as dealing with the important point raised by the noble Lord, Lord Goodhart.

Lord Filkin: I shall do my best, but I do not believe that it will necessarily be easy, given the complexity of some of these issues. If I do not fully satisfy both Opposition Front Benches, my noble friend Lady Scotland will have an opportunity at a later stage in the passage of the Bill when I am no longer here.

The amendments are concerned with the important question of to which particular cases the new arrangements, for which the Bill provides, should

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apply. Clearly, the new legislation should apply to all requests received after the point when the new Act is brought into force. There is a slight gloss on that to which I shall return shortly.

So if the new Act comes into force on 1st January 2004, for example, a request received on 31st December 2003 will be handled under the 1989 Act procedures while a request received on 2nd January 2004 will be handled under the new procedures. We think it is much better, and less confusing, that the procedures to be used should be determined by when the request was made rather than by reference to when the alleged offence took place, as I trailed earlier in our discussions.

The reason for that is that it is not always apparent at precisely what point an offence was committed. Earlier I referred to a new Act coming into force on 1st January. Imagine that a person has gone away for a few days over New Year and comes back to find that his house has been burgled. In those circumstances it might not be clear whether the crime had taken place on or before 31st December or after 1st January, in which case the new procedures would apply. Similarly, a complicated fraud case might straddle the cut off date. The other difficulty with determining what procedures should be used by virtue of the date of the offence is that we may get requests many years after the event.

The amendment standing in the name of the noble Lord, Lord Goodhart, provides that Sections 63(2) and 64(2) of the new Act's procedures will apply only to acts committed after 7th August 2002, although we had not spotted the significance of that date about which he enlightened us. We understand that the effect of this amendment would be that someone wanted for a "list" offence in another EU country could not be extradited where the conduct occurred prior to 7th August 2002 and where the dual criminality test is not met.

I appreciate the position from which the noble Lord proposes this amendment and his concern for the rights of those who are the subjects of extradition requests. However, the fundamental principle remains that, regardless of when the conduct occurred, it is incumbent upon the individual to act within the laws of the country where he is present. As we have previously explained from these Benches, the Government do not believe that a person should be able to escape prosecution simply by crossing a border within the EU, whether the conduct occurred before or after 7th August 2002. I hope that the Committee will see why this is not desirable and instead agree that the date of the request is what should determine which procedures are used.

I now turn to the two amendments standing in the name of the Official Opposition. Those seek to provide that any order that has the effect of transferring existing cases already in the system to the new arrangements should be subject to the affirmative resolution procedure. Perhaps I can set out the Government's position on the whole issue of transferring existing cases to the new arrangements. I

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do not believe that I can do any better than to quote from the Government's response to questions that were posed by the Home Affairs Committee in another place in its first report of 2002–03. The response is appended to the committee's report on the Bill. The Government's response stated:


    "In principle the new arrangements will apply to all European arrest warrants received after the new Act has been brought into force even if the conduct to which the warrant relates occurred before that date. However, the Bill also contains a power to transfer existing cases to the new arrangements. It is the Government's intention that this power should only be used very sparingly and only if it is justified and there would be clear benefits in doing so".

For the avoidance of doubt I should make it clear that the passage I have quoted referred to the EAW simply because the question to which it was a response did so. Exactly the same principle applies to Part 2 of the Bill. So the position is, I hope, clear. The power to transfer cases, if it is used at all, will be used only sparingly and if it is in the interests of justice.

Fugitives whose cases are transferred will no doubt seek to challenge the transfer through judicial review and I am sure that the courts would be very alive to any abuse of process arguments. If they felt that the fugitive was being seriously disadvantaged they would no doubt uphold his challenge.


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