Examination of Witnesses(Questions 60-79)|
TUESDAY 29 OCTOBER 2002
60. Yet we have just been given an example of
Spain where that can happen.
(Mr Nicholls) Spain is category 1, so it could happen.
I would have thought and would have hoped that if you did have
a request of that kind the European convention might be invoked.
I am not sure.
(Ms Alegre) I think it is difficult to say. Surely
the European convention probably would be invoked. Whether or
not there would be an argument is a different matter.
61. I think the exchange we have just had indicates
that the people who draft the Bill and those who consider the
legislation need to revisit, to see exactly what can happen in
certain circumstances, particularly in the light of Spain and
the Basques. If I could move on to a further question, which is
to do with the likely effect of the UK giving a notification to
article 27.1 of the European Arrest Warrant framework decision,
which would effectively mean that the UK would be presumed to
have consented to an extradited person being proceeded against
for a crime other than that for which he or she was extradited;
in other words, once they have got them, they can bring other
charges. How seriously would you consider the consequences of
such a notification could be?
(Mr Nicholls) We are talking here about specialty.
Let me deal with specialty generally. A person is only to be tried
for the offence for which they are returned or for any offence
disclosed by the facts supporting their return. That is where
a person is, so to speak, being extradited. I have only ever known
one case in England, and it is only just coming before the courts,
may come before the courts. The situation is where a person has
in fact been extradited but after they have been extradited there
is a request for them to be tried for another offence. That arises
in a particular case at the moment, where, for example, a person
was extradited in 1989 and a Commonwealth government has said,
as he comes to the end of his sentence, "We want to try him
for another offence," for which he was not returned. That
is very exceptional. There are a few cases in Canada but there
is only one, ever, in England and it has not yet, if it ever does,
come before the court. The situation used to be in the hands of
the secretary of state and is at present. The idea now, as to
whether or not to give consent to another offence of this kind,
is that that is put in the hands of the district judge. I do not
complain about that at all. It could always be subject to review
if his decision is disagreed to, but I do not understand why you
need to have some particular arrangement between some states and
not all states of there being a presumed consent. It seems to
me that the matter ought to be dealt with not by presumptions
of this kind but that it ought to be done in public and it ought
to be transparent and it also ought to relate to the particular
case rather than being a general rule.
(Ms Alegre) I would agree that the issue of specialty
in general only comes up in a couple of cases, but I think that
if you have a declaration which is in effect a carte blanche,
that if you get anybody back to the country you can then proceed
against them on any basis, you know that when you are making the
request and I think you are then likely to find that those cases
are much more common. It is very different if you have to make
a request. I cannot really see a justification for making such
62. You would like to see it removed.
(Ms Alegre) Yes.
63. Suppose that someone is extradited for murder
and when they get back investigation reveals that they have been
involved in a number of other murders. Can they be charged?
(Ms Alegre) They could then request consent.
64. I see, they would come back to the judge
here and say, "These new facts have emerged."
(Ms Alegre) Yes.
65. That would resolve that problem.
(Ms Alegre) Yes.
(Mr Nicholls) Yes, the secretary of state used to
do it or does it up to now, but, as I say, I only know of one
case where it has ever actually happened. But I cannot see that
there would ever be a problem about it. In fact the district justice
has to decide: If the person were not where he is now but he was
actually here and it was a request for extradition, are all the
conditions complied with? It seems to me to be perfectly sensible.
66. Under Part 1 it says that the arrest may
be carried out by a constable or an "appropriate person".
What is your view on that part of the legislation?
(Mr Nicholls) I must confess, I had not spotted that.
I do not know who an appropriate person would be.
(Ms Alegre) I think that is a concern. I cannot imagine
what the appropriate person that they have in mind is. That should
(Mr Nicholls) It seems to me to be, in a sense, rather
sloppy draftsmanship. If you have a phrase like "appropriate
person", it is like an "appropriate authority",
you would expect it to appear in the interpretation section and
it does not. Who does execute a warrant or an authority of arrest
67. Customs & Excise, I would have thought
would be a pretty obvious example of somebody who might be designated
an appropriate person. Our concern is whether it would be wider
than such an example. Presumably police officers from the extradited
countries might be considered appropriate persons. That is what
I am asking you.
(Mr Nicholls) I think that shows the danger, because
I do not know of any legislation that permits foreign police authorities
to execute warrants in this country.
(Ms Alegre) That could change at a future date.
(Mr Nicholls) Yes. I agree.
68. Given your concern about that, do you think
it is appropriate that parliament will under this Bill allow the
Home Secretary that very obvious, very open-ended power, to designate
who is an appropriate person and especially given that the person
can arrest without being in possession of a warrant?
(Ms Alegre) I think there should be a statement of
who the appropriate person is on the face of the Act.
(Mr Nicholls) I think that is right.
69. Moving on now to the fact that they do not
necessarily have to have the warrant on them when they make the
arrest, is that an appropriate thing to have in a Bill of this
nature? Also, there is the fact that they only need to inform
the person arrested if the person arrested asks to see the warrant.
How do you feel about the fact that somebody can be arrested without
a warrant being in the possession of the arresting officer?
(Mr Nicholls) I cannot say I am very happy about it
but I see that it does say, "A copy of the warrant must be
shown to the person arrested as soon as practicable afterwards
. . ."
(Mr Crossman) ". . . and if requested."
(Mr Nicholls) Yes, ". . . and if requested."
I think it should be shown in any event.
(Mr Crossman) I am wondering whether or not this might
in some way be tying in with the provisions of the Nationality,
Immigration and Asylum Bill and Regulation to the need to show
a warrant when entering premises. I am not exactly certain, but
it does seem to me unusual that they do not say there is a need
for a warrant to be shown at the time.
(Ms Alegre) I think it may also, I am not sure, be
connected to the possibilities of transmission of the European
Arrest Warrants where the country of residence is not knownso,
where it is being transmitted through the chain information system.
That may be the reason. That does not justify the need for a request
on behalf the person to see the arrest warrant as soon as practicable
but it may be related to language issues and transmission issues.
70. So a delay is acceptable if there is that
kind of complication.
(Ms Alegre) Certainly it should not be only on request.
71. They do not actually have the arrest warrant
in their pockets all the time.
(Ms Alegre) It may be impracticable in those cases
that they would have to have the warrant in their pockets at all
(Mr Crossman) But there should be a duty to produce
the warrant at the earliest opportunity without request.
72. The duty to produce it without it being
(Mr Crossman) Yes, without requirement of request.
73. An "appropriate person" (as it
is described), should we consider that in any way as a sinister
factor which we should be on our guard about?
(Ms Alegre) I do not know whether "sinister"
is quite the right word but it would raise the questions of what
one might be considering as the future developments in terms of
who is able to execute arrest warrants on British territory.
(Mr Nicholls) There must be somehow a simple answer
as to who is entitled to execute a warrant apart from a constable.
74. We shall ask.
(Mr Nicholls) Yes.
75. I suppose the most obvious one would be
the immigration officer.
(Mr Crossman) Anyone who has a power of arrest under
the general law. That, I imagine, would be the easiest way. Unless
it has been done intentionally with a view to leaving it open-ended
for future provisions. As Mr Nicholls has just pointed out to
me, in fact a general power of arrest does exist to members of
the public, so that probably would not be an ideal answer.
David Winnick: But, whatever the position,
it should be tightened up so there should be a more defined explanation
of what is meant.
76. I want to ask a final question about the
constable or the appropriate person being able to make an arrest
in the belief that a warrant will be issued. That seems to be
a very, very flexible power to give, certainly to someone other
than a constable.
(Ms Alegre) I would agree with that. I think it needs
to be absolutely clear who the appropriate person is. I would
agree that that seems to be a very wide power that should be tightened.
77. Are you aware of such powers being available
in any of the other category 1 countries?
(Ms Alegre) As far as I am aware, it has not been
implemented elsewhere. At the moment we are actually looking at
how other countries are implementing it and what the politics
and legal issues in other countries have been. I am not aware
of that but it is certainly something that we have been looking
at generally, because clearly how it is implemented elsewhere
also affects people being extradited to the UK.
78. Would your general view be that in this
area we should try to be on all fours, that all the category 1
countries should have a very similar forum of extradition law?
(Ms Alegre) That would be the idea. That is a difficult
European constitutional question, which I think is probably being
dealt with in the Convention on the Future of Europe at the moment,
that the problem is with the framework decision, that there is
no guarantee that the countries will all implement it in the same
way at all. It is impossible to tell.
79. Clauses 32, 34 and 35 address the situation
where a warrant is withdrawn while extradition proceedings are
underway and gives the authority power to detain someone for another
seven days after the warrant has been withdrawn. Can you think
of a reason why that might be necessary?
(Mr Nicholls) I cannot see any reason at all. A warrant
would only be withdrawn and a request withdrawn when a firm decision
you would expect to be made by the foreign authority. Once that
decision is made, I do not see any reason why a person should
be held for seven days, other than the thought that perhaps the
country would say, "We made a mistake."