Examination of Witnesses (Questions 40-49)|
WEDNESDAY 30 APRIL 2003
CBE, MR RICHARD
40. So that would apply also, for example, to
broadcasting? Something broadcast by ITV or BBC from this country
but receivable in a number of European countries as well, could
not be the basis of a racism and xenophobic charge in the other
country that was not a criminal offence in this country?
(Lord Filkin) Exactly so.
Lord Lester of Herne Hill: I think that is directly
contrary to the trend of other aspects of European legislation
on civil liability for torts, where the whole movement has been
towards a place of harm being the place which really matters.
Apparently we will be permitted to ignore that.
Chairman: I think civil law and criminal law
do not have to follow the same rules.
Lord Lester of Herne Hill: I am not saying I
am in any way disagreeing with you but it is interesting.
41. The attitude that you have expressed in
answer to the question is entirely consistent with the very clear
assurances which have been given by a number of Ministers as to
what the position would be in that sort of situation.
(Lord Filkin) Yes. We intend to put it
utterly beyond doubt by that amendment.
42. Thank you. It had occurred to me and to
many others that the Extradition Bill in its present form left
some chinks open.
(Lord Filkin) That is right.
Lord Neill of Bladen
43. Just on the Lord Chairman's question, I
have just received yesterday the Home Office Myths and Facts
about Extradition and number two was directly in point. Myth:
people will be extradited for acts committed in the UK which are
perfectly legal in our law. Fact: no. No-one will be extradited
for conduct which takes place in the UK but is not an offence
in the UK. I was just wondering whether that language was not
rather carefully drafted"takes place". It might
be read as, it has an effect, but it might not be the best of
examples, where the recipient it used to arise in conflict
of law, if you fire a gun in state A or province B and the bullet
lands in state B or province B. Is it "which takes place
in"? Are those the key words in this?
(Lord Filkin) Yes. I was questioned on
this at some length in another place, as to what defined action
in the United Kingdom for these purposes. I suppose I really gave
two answers: one which was the layman's answer, common sense in
many ways, which defines that if I sit here in this room and place
something on a UK server or even on a German server, I am at least
in part committing that act in the United Kingdom. I was then
pressed into boundary territories and ultimately, of course, the
courts will decide on difficult issues. Some Members found that
unsatisfactory but I did not particularly want to usurp the judiciary
in that respect. The courts will decide on a matter of fact as
to whether it did actually take place in the United Kingdom or
not. The common sense in most cases, I think, will be clear. Does
44. I think it does.
(Lord Filkin) At the risk of tedium, on the Extradition
Bill as currently drafted, clause 63(6) states: "The conduct
also constitutes an extradition offence in relationship to the
category 1 territory if these conditions are satisfied(a)
the conduct occurs outside the category 1 territory and no part
of it occurs in the United Kingdom; . . ."
(Mr Regan) It is the phrase "no part of it occurs
in the United Kingdom". That is the phrase that Parliamentary
Counsel has already put in the Bill and, without wishing to trespass
on Parliamentary Counsel's territory, we envisage words similar
to that appearing in the Bill on this point. It is the latter
part of it. It is "and no part of it occurs in the United
Kingdom" which would be the words that we would be adding
in elsewhere in the Bill.
45. The expression here in this proposed measure
is "a significant part". Does the adjective need to
(Mr Regan) For the purpose of the Extradition
Bill, the effect of the change that Lord Filkin has just announced,
the amendment we will be bringing forward, subject, as I say,
to the drafting chosen by Parliamentary Counsel, will be that
if any part of the conduct occurs in the United Kingdom extradition
will only be possible if it would also constitute an offence in
the United Kingdom.
46. So dual criminality would then be retained?
(Mr Regan) Yes. The only circumstances where dual
criminality will not apply is if the offence occurred solely in
the requesting state.
47. I think also that will require some amendment
to 8(3) in order to make the two consistent.
(Lord Filkin) We do not support 8(3) in its current
form. We think that needs to be amended.
48. Can I ask you a short question on Article
10(1), the jurisdiction Article? Article 10(1) says, "Each
Member State shall take . . . jurisdiction where the conduct .
. . has been committed", (a) in its own territory in whole
or in partyes, obviouslythen (b) by one of its nationals,
or (c) for the benefit of a legal person that has its head office
in the territory of that Member State. Sub-clauses (b) and (c)
raise a number of questions and 10(4) says that a Member State
"may decide not to apply, or to apply only in specific cases
or circumstances, the jurisdiction rule set out in paragraphs
1(b) and (c)". What is the UK Government attitude to this?
(Mr Bradley) The UK does not have extra-territorial
jurisdiction for offences of incitement to race hatred in general,
so the Government's position would be that we would not make use
of the jurisdiction referred to in paragraphs (b) and (c).
49. So you would use the option under 4?
(Mr Bradley) We would use the option under paragraph
4, exactly so.
Chairman: Lord Filkin, Mr Bradley and Mr Regan,
thank you all very much indeed for the help you have given us.
Your answers to our questions have been very clear and very concise
and will be of great assistance to us.