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Lord Donaldson of Lymington: My Lords, before the Minister sits down, perhaps I may ask a question. As I understand what she says, if another EU country honestly issues a warrant in the terminology of the Bill, but it can be shown that in practice the words have a different meaning to that used by its judicial authorities and that someone is being arrested with a view to seeing whether it is possible to prosecute him, it would not in the eyes of the Government be a European arrest warrant. If that is right, will it be open to the British courts, faced with the document which prima facie complies, to investigate whether it does comply on the ground?
Baroness Scotland of Asthal: My Lords, I hear what the noble and learned Lord says and perhaps in reply I may explain how the system will work. The arrest warrant will come through the usual official channels, as has been the case for the past n-number of years. Two methods of working are conducted between ourselves and our European partners. The first is in relation to investigative and other work where we co-operate and work together. The second is when approved warrants come through the correct channels and it is clear that they are compliant. If such a warrant has come through the proper channels and is compliant, it will be safe and satisfactory for the courts to work on the premise that it is a proper warrant issued pursuant to the proper procedures.
Furthermore, there was concern in relation to a number of countries about how the European arrest warrant would work in practice. For instance, while I was in the Lord Chancellor's Department I worked with
Viscount Bledisloe: My Lords, is not the short answer to the noble and learned Lord that if the warrant makes the statement in the words of the clause, it will not be open to the court to question what the issuing court meant by them and what its intention was?
Baroness Anelay of St Johns: My Lords, I will indicate immediately that much has been said by noble Lords which causes me to believe that I must take this whole group of amendments seriously. I shall look at them between now and Third Reading to decide which to bring back for the House to consider.
I also give the Government a little more leeway for another reason. In Grand Committee I asked them specific questions about the code of practice and its drafting. That drew attention to the Government's concern that there might be confusion when the police tried to exercise their duties in relation to these powers. At col. GC9 of Hansard for 10th September, the noble Lord, Lord Filkin, the then Minister, said that he would take away the thrust of my questioning and return to the matter when the Government were able to produce a draft in response to all the replies to their consultation. I appreciate that that consultation concluded only in September and that in October we now have some of the replies in print. Therefore, I do not in any way criticise the Government for failing to come forward today with a response.
However, there is an underlying concern about the effectiveness of these powers. I intend to give the Government every opportunity at Third Reading to persuade the House that there is sufficient clarity for it not to be concerned. We are all on the same side with regard to that.
The Minister asked me why we accept that the 1989 Act, which deals with, for instance, procedures on placing charges, prima facie requirements and abolition, works. As she knows, I expatiated at Second Reading and in Grand Committee on why knocking away all the major supports and safeguards in Part 1 meant that it was not acceptable also to knock away the support of prima facie requirement.
The noble Baroness said: My Lords, Amendment No. 16 is supported by the noble Lord, Lord Goodhart. It focuses on the information which must be contained in the arrest warrant as set out in Clause 2(4)(c). When we put forward the amendment in Grand Committee, we did so together with an alternative proposal that the content of a warrant must conform to the model arrest warrant appended in the framework decision. Since then, we have not only listened carefully to what noble Lords have said but we have had discussions outside the House. In particular, we listened to the Minister's examples of how the Bill already incorporates requirements to be contained in the model warrant. I had particular discussions with the noble Lord, Lord Goodhart, before bringing forward this joint amendment, which we consider should be the best way forward.
Subsection (4)(c), as was pointed out to us by Liberty, paraphrases Article 8(1) of the framework decision. We agree with Liberty that there are dangerous consequences in paraphrasing the article, especially as certain criteria are omitted from the list of what should be included on the warrant. The framework decision states at Article 8(1) that the warrant should contain information such as the following: the identity and nationality of the requested person; the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; the nature and legal classification of the offence, particularly in respect of Article 2; a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; the penalty imposed if there is a final judgment or the prescribed scale of penalties for the offence under the law of the issuing member state if there is no judgment just yet; and, if possible, other consequences of the offence.
Our objection is that the Bill itself requests scant information. It asks for the person's identity, details of any other warrant for his arrest, how long his sentence would be if convicted, and thenthe catch-all
Why should that cause a problem? We have something that is explained in ordinary language. Is it not better to use those words rather than paraphrase the words in subsection (4)(c)? In trying to legalise the language, the Government, as has rightly been pointed out, have missed out certain parts of the wordingparticularly those relating to the legal basis. We backed this issue in an amendment in Grand Committee and we back it again.
I read very carefully the reply given in Grand Committee by the noble Lord, Lord Filkin. He may have complied with the framework decision but perhaps I may spell out what he said. He said that the matter of identity is covered by virtue of Clause 2(4)(a) and that the matter of judicial information is covered by Clause 2(4)(b). He then said that the sentence which may be imposed is covered by virtue of Clause 2(4)(d). He went on to refer to information about convictions in absentia being supplied in Clause 20, and he then went on to talk about information on 32 generic offence categories being supplied to comply with Clauses 10 and 63.
Is that all necessary? In the amendment we ask only that all the requirements be included. I believe that most people find this legalised jargon difficult to understand. Perhaps I may suggest to the noble Baroness that she reconsiders the matter carefully. I feel that the amendment deals with much of the problem and it is very much in line with the framework document.
Baroness Scotland of Asthal: My Lords, I always take to heart accusations from the noble Lord about legalised jargon. If I may respectfully say so, one striking aspect of this Bill is that the draftsman has been rather clear and the drafting is simple.
I am very grateful to the noble Lord and the noble Baroness for tabling this amendment so that we can explore the interesting area of what information should be contained in an incoming Part 1 warrant. Clause 2(4) of the Bill sets outin Part 1 accusation caseswhat information an incoming warrant needs to contain, as the noble Baroness and the noble Lord both made clear. However, the information in question is: details of the identity of the person whose extradition has been sought; particulars of the domestic arrest warrant that has been issued for the person in question; details of the offence of which the person is accused, including details of the time and place where the offence was committed; and details of the penalty that could be imposed.
However, your Lordships will see that, in trying to craft the Bill, we have not simply filleted the framework document and put it straight into our law. We have had to frame it so that it is consistent with our own structure and understanding of the law to try to make it clear. We thought that the draftsman had been rather successful. Indeed, phrases such as "the degree of participation" of the wanted person in the offence and the "legal classification" of the offence do not sit very neatly in a piece of UK legislation because it is outwith the way that we would normally deal with these matters. As I said, we are not obliged to copy the wording of the framework decision.
I listened carefully to what both the noble Baroness and the noble Lord said. I think that we have probably got it right. But I am happy to take away the matter and look at it again, particularly in relation to the details of the law of the requesting country which the person is alleged to have broken.
To be absolutely frank, I am not sure that we shall return with an improvement to the wording because I tend to think that this is, if I may say so somewhat colloquially, fine. If the noble Lord and the noble Baroness really want us to reconsider the matter, we shall do so. However, I anticipate that I may come back saying that we have done our homework in the best way that we can and that we have marked it 10 out of 10, although others may take a different view.
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