Reply from the Lord Filkin, Parliamentary
Under-Secretary of State, Home Office
Thank you for your letter of 28 February to the Home
Secretary about the Extradition Bill. We have encouraged as much
discussion as possible about the Bill you referred to
the fact that we published it in draft in your letter
so I was pleased to learn that the Constitution Committee is taking
an interest in it.
You asked what our intentions are in respect of designating
countries as either part 1 or part 2 extradition partners. Our
plan is that all EU Member States together with, probably, Norway
and Iceland will be in Part 1. All of our other extradition partners
will be in Part 2.
You also asked why the procedure in the Bill for
designating countries was subject to the negative resolution procedure.
The answer is simply that that is the procedure that applies at
the moment (see, for example, Section 4 of the Extradition Act
During Committee Stage in the House of Commons, my
Ministerial colleague, Bob Ainsworth, indicated that the Government
was prepared to consider moving to the affirmative resolution
procedure if a very strong case for doing so could be made but
that for the moment we saw no need to depart from a precedent
that has operated for many years and which has not given rise
to any problems.
List of Generic Offence Categories
In your letter you stated that the first task of
the judge at the extradition hearing is to determine whether the
conduct in respect of which extradition is sought is an extradition
offence in the requesting state. For the sake of accuracy I should
point out that the Judge is, in fact, required to determine whether
the conduct is extraditable under UK law (as set out in clauses
63 and 64).
You asked why the list of 32 generic offence categories
is not on the face of the Bill. The 32 categories are set out
in Article 2.2 of the Framework Decision on the European Arrest
Warrant. Clause 63 of the Bill, which defines an "extradition
offence", refers specifically to the list in Article 2.2
of the Framework Decision.
Article 2.3 of the Framework Decision allows for
the list to be amended. This can only happen with the unanimous
agreement of all Member States.
The Government does not know of any plans to amend
the list but we believe that we must retain the flexibility to
deal with any such changes. This would be lost if the list were
to be included on the face of the Bill.
Dual Criminality Requirement
The Framework Decision requires us to remove the
dual criminality requirement for all list offences which attract
a maximum penalty of at least three years in the requesting state.
The Extradition Bill, however, removes the dual criminality
requirement for all list offences which attract a 12-month penalty
or more in the requesting state and you asked for the reason for
The basic threshold in extradition has always been
based on 12 months and no one has suggested that it should be
changed. However, if it is accepted that 12 months is the threshold
for extradition we do not believe that it would be sensible to
set a different threshold for the application of the dual criminality
Apart from the confusion that could be caused by
having two thresholds, there could be perverse consequences. If
we were to follow exactly the terms of the Framework Decision
we would have the situation that a request in respect of list
offence attracting a penalty of 1-3 years in the requesting state
would be subject to a dual criminality test but that a request
in respect of a more serious list offence and one for
which the person could potentially be imprisoned for much longer
would not be subject to such a test. We believe that this
would be an illogical position which could not be justified.
As important as the practical arguments, however,
is the Government's commitment to the principle of mutual recognition
and our determination to play a leading role in the development
of that principle in preference to full-blown harmonisation. We
do not believe that our approach should be characterised by doing
the bare minimum necessary to comply with our obligations under
the Framework Decision. Rather, where it is in the UK's interests
and in the interests of justice, we should be prepared to go further
and set an example to our EU partners.
In answer to your final question, we do not know
what other EU Member States intend to do we are more advanced
than most in drawing up our implementing legislation but
we hope that they will be encouraged to follow our example. Given
that there are a number of UK offences which have no parallel
in some other EU states, there would be clear advantages for the
UK if other EU Member States go beyond the Framework Decision
in respect of dual criminality.
I hope this is helpful, I would be happy to meet
you to discuss this if you would find that useful.
6 March 2003