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The Earl of Onslow: My Lords, perhaps the noble Lord, Lord Goodhart, will help me on this issue. I should have thought that the phrase,


is considerably wider than "being charged with". It could involve interrogation or investigation and those would result in prosecution. Surely, "being charged with"—a charge—is a different thing. The words,


    "for the purpose of being prosecuted",

strike me, as a complete layman, as being much more vague than the words "being charged with".

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Lord Goodhart: My Lords, perhaps I may just reply to that. Of course, the charge is an event that happens at one particular point in time. It is possible, therefore, that someone is extradited who has already been charged. It is also possible that someone might be extradited for the purposes of a prosecution for which they have not yet been charged because the requesting country has never been in a position to further process the charge on them. So I do not think that "charge" is an appropriate word.

Certainly, "prosecution" appears to be perfectly adequate. Investigation prior to a decision whether to go ahead with a prosecution is not sufficient.

Lord Lamont of Lerwick: My Lords, I am very interested obviously in what the noble Lord says and I can see the logic of what he has said against my amendment. Given that he agreed that there is a potential problem, does he have a better amendment in mind?

Lord Goodhart: My Lords, no. On this particular point I do not. I think that the problem will arise only if it turns out that countries have been seeking extradition and when they achieve it they do not proceed to prosecution. Of course, for some years now it has not been necessary to produce a prima facie case before extradition is achieved under the Council of Europe convention. So far as I am aware, there is no evidence that this problem has raised its head.

Lord Filkin: My Lords, I am grateful to the noble Lord, Lord Lamont, for tabling his amendments and for his kindness in welcoming me back yet again to the Bill. I said goodbye so many times that even I got bored with apologising for returning. Regretfully, I do not think that I shall necessarily make him rejoice with my remarks.

We all know what we want the clause to do: to allow extradition to take place only where there will be a prosecution. Clearly, we are talking about accusation not conviction cases. We believe that the clause as drafted has this effect. I add that the Extradition Act 1989 provides for extradition where a person "is accused" of an offence. We currently operate under legislation which has the same terminology and thrust. The Extradition Act 1989 goes no further than that.

Our present legislation uses the term "is accused". That has not given rise to a problem. However, the Bill goes further than the 1989 Act.

Lord Lamont of Lerwick: My Lords, perhaps I may intervene. Does the noble Lord agree that the whole purpose of the Bill is to expedite extradition? He gave illustrations of the reduction in the average length of time for future extraditions. Does it not follow, therefore, that there are likely to be more extradition cases in the future? The fact that this has not happened in the past is not a guide to what will happen if there is a considerable increase in the number of extradition cases.

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5.15 p.m.

Lord Filkin: My Lords, it may do. We do not know. The Bill certainly intends to try to do two things. I am at risk of going back to a Second Reading speech at Third Reading. It is essentially trying to ensure that procedural reasons for avoiding extradition and facing trial for a properly laid charge can no longer be allowed to frustrate justice. We have heard the argument for that many times. It is important because international crime is increasing and to combat it there must be an effective means for extradition between civilised societies.

However, as I shall develop in a moment when I speak to the issue in more detail, the Bill also puts in place powerful safeguards. So it does not seek to ride roughshod over the rights of someone who is sought for extradition; if anything, the power of the courts in this respect is strengthened. But the Bill actually says that the procedural delays that have been used—naturally enough by people who do not want to face trial, and that is what one would expect they should do—will be curtailed because it is not in the interests of justice that they are allowed to continue.

So, as I was signalling, our present legislation uses the term "is accused". Notwithstanding that, the Bill goes further than the 1989 Act in saying that a warrant must have been issued,


    "for the purpose of being prosecuted for the offence".

I do not see how that can be ambiguous in any way. Of course the court, which makes the decision, must be satisfied that that is the case.

We do not anticipate any difficulties regarding fishing trips or warrants issued for investigatory purposes. Extradition in accusation cases is for prosecution. That is the basis on which extradition is currently run with our international partners and that was the basis on which the European arrest warrant framework decision was agreed.

If a warrant was issued for the purpose of investigation, it could not be certified or executed in the UK. It would not be a Part 1 warrant as defined in the Bill. For those reasons we believe that the Bill is correctly drafted. We are not being obdurate for the sake of it. My approach on Bills is always to give if we can actually abbreviate our purposes. But we do not see a flaw here: we do not see a problem.

Viscount Bledisloe: My Lords, the noble Lord said that a warrant which is issued not for the purpose of trial but for the purpose of questioning will not be a Part 1 warrant. Is that really right? One requirement of a Part 1 warrant is that it contains a statement by the foreign authority as to the purpose for which it has been issued. The English court, surely, has no power to go behind that statement and investigate whether it is in fact true. That was the point I sought to make.

Lord Filkin: My Lords, the noble Viscount is right on one level. In international and mutual recognition arrangements between civilised societies certain things have to be taken on trust until there is a basis for having doubts about them.

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It is not possible to look behind the statement of another country, which is a signatory to the ECHR, when it says, "This is what we want the person to do". It is not possible to do that now. There is no difference in what we are talking about now from the current law of the land in this respect. In order to show where there is a difference in this legislation let us take an example that was touched on. If a member state of the European Union, despite its obligations under ECHR, on a sequence of occasions sought to flout the explicit intent and meaning of the framework agreement, one would expect a defence advocate to make those arguments before the judge in any extradition request put before a court. They would clearly point to whether there was doubt or dubiety at all in those respects.

However, generally—as I think that situation is unlikely to happen—certain things have to be taken on trust between civilised societies. Otherwise the consequence is that one could never expedite someone to another country—or they to us—to face trial. That is a very serious mischief. I do not need to spell it out.

The second and third amendments tabled by the noble Lord would introduce a requirement that the requesting territory guarantee that the person will be prosecuted within six months of his extradition. The framework agreement does not include that requirement—nor does our current law or procedure. It would therefore be highly unlikely that any warrant would contain such a guarantee. Were those amendments to be passed, given that a request from another EU member state would not contain such a guarantee, that would mean that we could never extradite someone to another EU member state. That must be a massive mischief.

Basically, if someone were sought for prosecution in France for an offence that he committed in France, because there was not exact synchronicity, he could never be extradited to France. That is not our current law and the Government's position is that such a law would be against the interests of justice and international efforts to combat criminality.

The third amendment goes one step further. It would provide that the statement would have to say that the person would be prosecuted within six months of his extradition. Again, that would unilaterally impose extra conditions on other European Union states and then unilaterally impose a sanction on the requesting state.

Far from strengthening the Bill, that would weaken it beyond all recognition. There may be reasons why the prosecution may legitimately take longer than six months to begin—for example, if the person is suffering from an extended illness or has sought extra time to prepare his defence. Writing such a provision into the Bill would give an opportunity to string out and delay the case.

I am grateful to the noble Lord, Lord Lamont, for his signal; I shall not labour the point.

I turn to some of the practical points that have been raised. I confirm that we are continuing to work with other member states on the operation of the European arrest warrant system, including the rights of arrested and extradited people. By that I mean no more than

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putting the framework agreement into law in member states; we have no reason to believe that other member states will not do so. It is also important that we try to ensure through inter-ministerial discussions and work through officials that the practice of the operation is as good as it should be in all member states.

I now turn briefly to the amendment tabled by the noble Baroness, Lady Anelay: Amendment No. 33. I am sympathetic to the principle behind it and do not think that there is a great deal of difference between our positions on the matter. However, the amendment is unnecessary. Let me explain why.

Clause 157 provides that a magistrate may issue a search warrant for material believed to be evidence of the extradition offence for which the person is sought. The amendment rightly picks up on a concern discussed in the House that searches should be carried out only for the purpose of obtaining specific evidence for use in the prosecution of a person wanted for an extradition offence. Searches should not be used as an excuse for wider "fishing trips" for evidence on behalf of the requesting country.

We agree that extradition should be sought only for the purposes of prosecution and that the conduct of any search and seizure operation under the Bill must support that principle. That is why we included a section in the draft extradition code of practice—which the noble Baroness has adopted as the basis for the amendment—advising officers that searches should not constitute investigation of the extradition offence. I am pleased to accept that we shall redraft the code of practice; we are considering which of the suggested formulations to adopt. We want to make that as clear as possible, so that the distinction between investigating an offence and gathering evidence for the prosecution is understood by everyone. We take that point, but the code of practice is where that should be focused.

As drafted, Clause 157 provides that an officer applying for a search and seizure warrant must explicitly state the material sought and the premises where that material is believed to be. We therefore believe that the clause provides sufficient safeguards, buttressed by a clear code of practice, on which we commit to work. Officers searching under Clause 157 will be authorised to search for and seize only material specified in the warrant.

I turn to some of the many interesting and important points raised in the debate. I have discussed "fishing trips". The noble Lord, Lord Pearson of Rannoch, is right; he has got me there; my Italian does not go much further than what I have learnt from Mozart and Verdi. Of course, that is not the point; he asked how other countries incorporate international agreements into their law to ensure that they have encapsulated their spirit. I am not an expert on that, but I know that there are such experts—I am not sure whether they are called jurists—who, between them, have detailed knowledge of the meaning of international law.

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While I am discussing Italy, as for Signor Castelli, whom I have met several times in my present and future roles, I have not heard that the Italians have any doubts about the issue. I should be surprised were they not to sign, given that they have the presidency. They have already agreed it; so they are already on charge to legislate to do so. They already have an international commitment to do so. If the point that the noble Lord was making—this is at third hand—was that there are concerns, the fact that signatories to it are all signatories to the ECHR gives fairly strong buttresses on bail, rights to translation, and so on. I need not continue.

I have covered most of the issues—if not to everyone's satisfaction. I return to the emphasis. We seek to continue extradition with other member states and to strip out only time-wasting delays that have sought to frustrate people being brought to justice. We have stronger protection in the Bill than in current legislation, by giving the judge powers to be satisfied that someone taken to trial will be met with ECHR conditions. That is progress, not reversal; that is why, with regret, I cannot support the amendments.


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