Examination of Witnesses(Questions 80-99)|
TUESDAY 29 OCTOBER 2002
80. Supposing it is discovered during the course
of proceedings that the warrant is defective, and it is a technical
matter that can be put right fairly quickly, is it not a good
idea to hang on to the suspect, if you have him in custody, while
the defect is remedied?
(Mr Nicholls) There are two things here. One is the
request; the other is the warrant. A person has appeared before
the appropriate judge and the person is either on bail or has
been remanded. If he is told or informed the request has been
withdrawn, one cannot see any circumstances where there would
be a defective request, or, if there were, you would just hold
for a while and redraft your request. And the same in relation
to a warrant: if it is a defective warrant, you put it right straight
81. It might have to go back to the country
from which the warranted emanated.
(Mr Nicholls) But the warrant that was used in England
for the purposes of arrest would remain valid, and the custody,
so long as the judge had not been informed that it had been withdrawn.
If the request is withdrawn for some defect, some reason like
that, one would expect that you would not inform the magistrate
that it was withdrawn until such time as you had another one to
put in its place. Commonly fugitives have been released, for example,
at Bow Street, under the present system and as they left the court
there was another warrant and they were immediately re-arrested.
82. We did see some time ago, in relation to
the extradition of terrorists from Ireland to here, a whole series
of cases in which there were alleged to be defective warrants
and those people walking out of the front door of the Irish courts.
(Mr Nicholls) I think the reason for that is the very
strict rules imposed by the Backing of Warrants Act, 1965, and
particularly on the Irish side, because it is a young country
with a young constitution, they were very strict as to the adherence
to the rulesif anything, I suppose, over-strictand
the same reaction in this country. I do not think it is a fair
comparison you can make between this legislation and the Backing
of Warrants legislation between England and Ireland.
(Ms Alegre) I would agree that I can see no justification
for keeping the person for seven days after the warrant
83. If not seven days, how long?
(Ms Alegre) I cannot see any justification for keeping
somebody in custody following the withdrawal of a warrant. There
is no reason why. Once you know that the warrant is defective,
you redraft it before you withdraw it and you pick them up as
they are walking out of the court, exactly as Mr Nicholls says.
I think that this provision is entirely against the Human Rights
Act and Article 5 of the European Convention on Human Rights.
It absolutely does not comply with any of the reasons for detention
and deprivation of liberty. There is no justificationcertainly
no legal justification, and, even beyond that, I cannot see a
84. What would you insert instead, "As
soon as practicable?"
(Ms Alegre) Absolutely: "A person should be taken
to be discharged on withdrawal of the warrant as soon as practicable."
85. Would you go along with that?
(Mr Nicholls) Yes, I would go along with that.
86. On withdrawal of the warrant or as soon
(Mr Nicholls) On withdrawal of the warrant. I think
it is a pretty serious act for a country to say, "We are
going to withdraw either a request or a warrant," and if
they are going to take that serious act, if there is some defect
you would have expected them to put a new warrant into effect
immediately so that it can simply take its place.
87. Is there any provision in the draft Bill
that requires that the arrested person should have access to legal
advice? I am sorry, it relates to consent: before they consent
to be extradited.
(Mr Nicholls) It is clause 36, is it not?
88. Yes, it is.
(Ms Alegre) I think on this issue it is not put highly
enough, particularly given that once consent has been given it
is irrevocable. I think that there needs to be a higher protection
on legal assistance. I think certainly there needs to be a guarantee
that the judge is certain that a person consenting to extradition
has had legal advice and is consenting.
89. That needs to be written into the Bill,
(Ms Alegre) Yes, I think it does.
90. You all agree with that, I take it.
(Mr Nicholls) Yes, of course.
91. As regards the question of being held for
seven days once the warrant is withdrawn, you may be aware that
the Metropolitan Police Service is also critical and argues that
the subject's "human rights would be breached if the person
were to be detained unreasonably beyond the moment that the official
withdrawal notice was received." They do say "unreasonably",
so they qualify it somewhat, but basically they seem to agree.
(Mr Nicholls) I think the person should in fact be
entitled to be discharged, having regard to the fact that the
act of withdrawal must be a serious act, and need not be implemented
until such time as they have other mechanisms in place.
92. Going to clause 62 now, which relates to
the existing requirement that a requesting state must establish
a prima facie case to answer. Apparently in the Bill this
safeguard is maintained only in relation to category 2 territories.
Do you think that is right?
(Mr Nicholls) I think clause 62(3) ought to go. It
is a dilution of the prima facie case rule and if you are
going to retain the prima facie case rule I think you should
maintain it in all its strictness because it covers all other
countries in the world apart from those who come within category
1. So it would cover Brazil and the Ukraine.
93. I am sorry, these are not category 1 countries
(Mr Nicholls) No, category 2.
94. It covers all those already, does it not?
(Mr Nicholls) Clause 62 is in relation to category
2 and it then deals with the question of a prima facie
case in 62(1). Then, in relation to 62(2), it is dealing effectively
with the admissibility of the evidence; in other words, the statement
does not have to be taken before a foreign judge, it is sufficient
if it is made to a police officer or person charged with the duty
of investigating. But it is 62(3) that we object to: "A summary
in a document of a statement by a person must be treated as a
statement by the person in the document for the purposes of the
subsection." What that really comes to is this: it allows
something to come before the court which is not effectively evidence
at all. One of the things about a prima facie case is that
you have a statement by a witness. What this is permitting
95. Sworn before a lawyer in the appropriate
(Mr Nicholls) Yes, by a lawyer. Actually it is less
than that because it is sufficient that it is a statement made
96. No, I mean the existing situation is that
you must swear an affidavit. Is that right?
(Mr Nicholls) Yes.
97. Which must be sent over here or . . .
(Mr Nicholls) That is right and authenticated. The
existing situation is generally speaking that the witness statements
are in fact statements made to judges. For example, in the United
States you would have the depositions that were taken before a
grand jury, so you know somebody is actually giving evidence and
you know precisely what it is that they have said. But the trouble
about 62(3) is this: it means that any summary, as I see it, in
a document of something that has been said by someone else is
going to be treated as if it was said by that person. It effectively
has, I would have thought, no authenticity whatsoever. I think
this can be very disturbing because many other countries do not
have our common law system, either as to procedure or as to substantive
law, and certainly in my experience, in prosecuting and preparing
cases for extradition for countries from all sorts of parts of
the world, things slip in which in our system I do not think would
be allowed to slip in
(Ms Alegre) Perhaps I can assist just on the distinction
between the category 1 and category 2. The current situation is
that the prima facie case is not required in European Convention
on Extradition cases, so if category 1 territories are to be understood
as being European Union and/or potentially Council of Europe,
if that is really what we are talking about, there is no change
in the status quo on the prima facie case. If, howeverwhich
was the worry about the death penalty issuewe are talking
about potentially other countries being category 1 countries,
then that is slightly a different matter. But I assume that the
distinction is made on the basis of the situation as it is now
and as it will continue to be. There is no requirement currently
for what we expect to be category 1 territories for prima facie
98. Would you go along with withdrawing clause
(Ms Alegre) Yes, I would agree with withdrawing 62(3)
as well on that point.
99. Then on this business of the proposed delegation
of power to allow the Government to designate certain category
2 territories as being exempt from the requirement to demonstrate
a prima facie case, presumably that is not a very
good idea either, is it?
(Ms Alegre) No.
(Mr Nicholls) No. Terrifying.