Examination of Witnesses (Questions 80
WEDNESDAY 4 JUNE 2003
MP, MR CLIVE
80. I see. No matter whether it is a jury decision
(Mr Regan) We believe there are some states where
for murders of certain categories, murder of a police officer
for example, the court has to impose the death penalty. It is
then discretionary whether or not it is carried out.
81. And as the Minister commented, we have been
having extraditions to the United States for a considerable number
of years. Have assurances of this sort occurred, drawing the distinction
between the death penalty imposed and the death penalty carried
(Mr Regan) Yes. The assurance we get will be, depending
on the state in question, either in the form of the Prosecutor
saying he will not seek the death penalty or from the Attorney
General or the Governor saying that if the death penalty is imposed
they guarantee it will not be carried out. That has been the case
for many years and there has never been a case where the assurance
given has not been honoured absolutely.
82. Constitutionally these assurances bind the
successors of those who give them, do they? Governments do not
normally bind their successors.
(Mr Ainsworth) In the cases where it has not been
carried out we need it from an executive body that is capable
of honouring the commitment that is given.
Lord Lester of Herne Hill
83. And the extradited person knows that this
assurance has been given before he is transferred?
(Mr Regan) Yes, it is public. It is made
available in the extradition hearing and clearly he would otherwise
be able to argue that his extradition was barred for ECHR grounds,
so it would have to be disclosed to him for those reasons.
84. Are there any practical problems that you
are aware of that have arisen in this connection from past history?
(Mr Welsh) No. In relation to the terrorist
offenders where we had requests a year or so ago, we politely
reminded the United States of the obligation and they were fairly
upset that we felt the need to. They were aware, quite clearly,
that they would have to provide the assurances in those cases
85. We have already been looking at Article
17 and there is a reference there to constitutional principles
which may impose an impediment to fulfil its obligation to extradite.
The ECHR was mentioned as constituting constitutional principles.
Are there any other constitutional principles that this is intended
to refer to? Was there a reason for not referring this expressly
and implicitly either to the European Convention or to the Charter?
Do some Member States have their own special constitutional principles?
(Mr Welsh) Yes.
86. Such as?
(Mr Welsh) Portugal has a particular constitutional
principle in relation even to mandatory life sentences and so
there is a particular problem there.
87. They cannot extradite someone to face a
mandatory life sentence, can they?
(Mr Welsh) Not one without review.
88. That would apply to Lord Plant's example
of two strikes and you are out.
(Mr Welsh) Indeed, and here is their safeguard. Portugal
is seeking to ensure that there are other safeguards, but their
safeguard is here if they are unable to extradite.
89. But so far as the United Kingdom is concerned,
we have broadly an unwritten constitution, the ECHR is part of
(Mr Welsh) And the agreement is based on Article 6
of the TEU.
90. Would we be in the same position as Portugal
if we felt as strongly about two strikes and you are out as they
feel about mandatory life sentences? Do we need to have more constitutional
principles in writing?
(Mr Ainsworth) We cannot invent constitutional principles
for the purposes of extradition. If we had a long-standing practice
in this country of not imposing life sentences then one would
assume that we would have entered into exactly the same arrangements
with other countries when it came to extradition as Portugal does
now. We do have a long-standing objection to the death penalty
here and that is why we ensure that situation.
91. Do we not also have a constitutional practice,
perhaps it has not become a principle yet, whereby life sentences
without the possibility of review are not passed?
(Mr Regan) Yes. Clearly that is how we operate in
that context. We have never sought in our Extradition Treaties
to put that principle in whereas the Portuguese, by contrast,
because of what is in their written constitution, have always
sought to include it in extradition agreements.
Lord Lester of Herne Hill
92. There would be nothing to stop us putting
that safeguard into the Extradition Bill as part of our specific
legislation, to prevent extradition to the United States in those
(Mr Regan) Clearly Parliament can put
whatever it likes into the Extradition Bill, that is a matter
93. That is how it would be done in Britain,
because we do not have a written constitution, it would have to
be written into the Extradition Bill by Lord Wedderburn and others
that are present today rather than in some other way. I think
that is the answer.
(Mr Regan) Yes.
94. Minister, Article 11 provides for a simplified
extradition procedure with the consent of the individual concerned
and says that the consents can include the waiver of the protection
of speciality. The point has been made that the European arrest
warrant framework decision includes the express requirement that
the consent must be given voluntarily and in awareness of the
consequences. That does not appear here. Is there a reason for
that distinction? Is it not a rather unsatisfactory distinction
(Mr Ainsworth) Article 11 of the EU-US
Extradition Agreement does not apply to the UK because the bilateral
treaty that we have already contains provisions on consent to
95. So then one goes to the bilateral treaty
for the purposes of comparison, it is Article 17, but that contains
no such provision either.
(Mr Ainsworth) The Extradition Bill contains provisions
stating that consent may only be given in writing before an appropriate
judge and that the person sought is the right person to be legally
represented at the time of given consent.
96. And that is in the Bill?
(Mr Ainsworth) That is in the Bill.
97. So far as waiver of protection of the Rule
of Speciality is concerned, the way in which the Rule of Speciality
is dealt with in the proposed agreement between the European Union
and the United States is that if there is to be an extradition
there can be added, once the individual arrives in the extraditing
country, in the United States, other charges against him for which
he could have been extradited. What is the position in regard
to the death penalty where those are concerned? The point would
not have been raised, would it, at the time the extradition was
being considered here because the charges would not have been
added at that point? What stops the United States, once an individual
has been extradited to face a charge for which imprisonment is
the appropriate sentence, having added a death penalty charge?
(Mr Ainsworth) The provisions in the EU-US Agreement
are not as comprehensive as they could be and that is a reason
why we have to have our own Extradition Treaty with the US. Speciality
is covered in that and we would always seek assurances from the
US in cases where a crime can attach a death penalty sentence.
98. He is extradited on a charge of serious
assault, but of course if the victim subsequently dies a murder
charge could be added. Yes?
(Mr Ainsworth) But our assurances would seem to cover
99. That would be a matter of invariable practice,
(Mr Regan) More often murder becomes manslaughter
rather than vice versa, but in order to construct that scenario
you have to work on the assumption that the United States would
wilfully and deliberately act in bad faith and to get round what
they know to be our strongly held concerns on this point. There
is no indication that they have acted in that way in the past
or have any intention of doing so. I would have thought in those
circumstances they would come back to us and say, "We would
now like to press a charge of murder. That may attract the death
penalty. How do you feel about that?" and we would say we
would want the assurance and there is no reason to believe it
would not be forthcoming.