Examination of Witnesses (Questions 100 -
THURSDAY 8 NOVEMBER 2001
100. May I agree with my colleague Mr Cameron
and say that I understand the thrust of what you are saying and
support it by and large. I should like to ask the Government a
question. Pretend you are the Government just for a moment.
(John Wadham) I do that every morning.
101. What conduct must we criminalise that is
not currently a criminal offence? I wonder how they would answer
that, given not only sections 18 and 19 of the Public Order Act,
but equally importantly sections 4, 4a and 5 of the Public Order
Act. Do you agree with me when I find that effectively all the
conduct which I abhor is covered by existing criminal penalties?
(John Wadham) In the mornings after I
have pretended to be the Government I get out the criminal law
volume of Halsbury's statute, which has all the criminal law in
it and I count how many pages there have been since about 1970.
In counting those pages, I then assess how much criminal law we
have created since 1970 compared with how much we had before and
two thirds of the book is actually new criminal law since 1970
and it is getting worse. It is very easy for governments of all
persuasions to decide when there is a problem to make a new criminal
offence. That is the wrong approach, particularly in areas where
there are issues of fundamental human rights. Often it is the
case that a combination of greater resources, a greater will and
a more and imaginative use of the current criminal law, will solve
99.9 per cent of the problems and to create laws creates more
(Professor Gearty) To look for conduct would be a
tremendous advance. We were talking earlier about other kinds
of situation where it is past record which leads to internment.
We would say that once you force into the open the need for conduct
before you exercise state power against a person you have made
a tremendous liberal advance.
Chairman: Can we turn now to extradition? The
Government has plans for simplifying or revising the procedures
for extradition and those proposals are not limited to extradition
for offences relating to terrorism but in relation to all crimes
which are extraditable.
102. When the reasonable man, the man on the
Clapham omnibus, reads all the reports about the complexities
and the values and the difficulties of extradition and sees how
many extradition cases fail, he shakes his head in disbelief and
there is the danger of the whole issue of international co-operation
and international law coming into disrepute in my view. It is
pretty obvious that the Government is determined to accelerate
and fast track extradition. Based on what we have seen so farand
we do not have the Billwhat we have seen so far in the
proposed changes, do you think it will still provide a framework
which provides due process?
(Nicola Rogers) We are not opposed to
streamlining of procedures providedand this is a very strong
caveatthere is in fact a procedure left at the end
of the day. Proposals have been put on the table by the European
Commission which would do away with the procedure altogether and
effectively make it an administrative decision. There must be
safeguards in place to ensure that the individual in question,
not just in general but the individual in question, will receive
a fair trial and will be dealt with with fairness in the receiving
country. That is fundamental to the procedure. Provided there
is that safeguard and an opportunity for the individual to bring
it within the proceedings, then that would be all right. Streamlining
in itself is not a problem. Indeed there is already a degree of
streamlining between European member states. To that extent, that
is not a problem, it is when you do away with procedures altogether
that it would become a problem and when there are inadequate safeguards
that would be a problem.
103. I know it is an important protection but
is that the only qualification you would have with regard to changes.
(Nicola Rogers) No, there would also
have to be defences in certain circumstances to extradition and
you have from the extradition convention a political offence exception
and a military offence exception where they fall outside normal
extradition proceedings. That has to be right. Those have to be
protected. It cannot be the case that for instance a person could
be sent to a country and it is dressed up as a prosecution of
some kind when in fact it is a form of persecution of them for
their ideas or some other thing. The extradition proceeding cannot
be a window dressing, it has to be able to protect the individual
where another countryI am not suggesting this countryis
abusing the process.
104. How far would your tentative support for
accelerating that scheme stretch to the international powers of
arrest across the European Union countries?
(Nicola Rogers) I should be very, very
concerned about any procedure which effectively boiled down to
an administrative procedure which had no judicial control. That
is really at the fundamental core of my objection to what is on
the table as far as European arrest warrants are concerned. As
far as I could see, it is simply an administrative decision by
one country, which is passed round saying, by the way, we have
made that decision and you will all agree with it and carry it
out. There must be safeguards and there must be an opportunity
for judicial control. If there were no judicial control I am afraid
that kind of procedure would be unacceptable.
105. Is the first view you expressed about accelerated
streamlined extradition shared by all of the witnesses?
(John Wadham) The key issues are that
there should be a judicial process where the courts in this country
can protect individuals from being sent to another country where
they might not have a fair trial or might be tortured or where
there are circumstances where the evidence for instance is insufficient
to send that person to another country. If you are going to be
arrested in the middle of the night by a British police officer
with perhaps a police officer from Sicily and taken off to Sicily
and you have to deal with foreign laws and foreign languages and
where there perhaps is not sufficient evidencebecause these
proposals might not just apply to terrorism, they might apply
to the fact that you were on holiday in Sicily and there was some
traffic offence and you are whisked off there and you are having
to deal with all that process. We think there should be a protection
to ensure that there is a minimum level of evidence against you
before any of that process occurs. That needs to be a British
court making that decision and not just hoping that the courts
in some other country will be able to protect you. Often they
will but sometimes they will not. That seems to me a key issue.
The other thing I should just like to say, and this is a matter
for the parliamentarians rather than for me, is that I am concerned
about the way in which this may go through Parliament. So far
as I understand the process, because it may be a Euro directive,
it may be taken under the European Communities Act which will
mean that you will have 90 minutes to debate this and will not
be able to amend it. That is what I have heard. I do not know
whether it is true or not. If that is the case, fundamental changes
like this should never occur in that way. I would hope that there
is a way in which we can build in a proper parliamentary debate
on these issues so that if there are proposals that parliamentarians
want to put to amend the procedures, then they can do so in a
sensible way. Perhaps we have to wait for next week to see whether
that is in fact how the Government intends to proceed.
(Nicola Rogers) One has to remember that this is not
necessarily just restricted to terrorist offences and may be extended
to other criminal offences. The number of times that British embassies
abroad are called in to deal with situations where people believe
they are not receiving or could not be receiving a fair trial
must be very frequent. The number of times my organisation receives
calls about that must be very frequent. Part of it is being lumped
into a system you do not understand and you do not know what is
going on and there must be safeguards to ensure that people are
not just parachuted into a system when there is no evidence against
106. Can anyone think of examples where extradition
has been properly refused in the past but which might not be refused
under the accelerated or streamlined system.
(John Wadham) Yes. I have some information
from a colleague. He tells me about this case which was reported
in The Times newspaper on 9 October. This was a case involving
the Government of Portugal. Mrs Gale was arrested in the UK and
pending a request for extradition by the Portuguese Government.
Her husband was arrested and accused of drug trafficking and she
was accused of laundering her husband's alleged profits. However,
Mr Gale was found not guilty in Portugal, making it a legal impossibility
for his wife to be guilty of money laundering. Relatively obvious.
The Portuguese Government however pressed ahead with its extradition
request, even though both sides agreed that Mrs Gale was guaranteed
an acquittal if she was ever tried in Portugal. Then her case
came to the High Court and Lord Justice Laws held that to extradite
her in such circumstances where she was bound to be acquitted
would be unjust and oppressive. The difficulty is that if that
occurred without there being some judicial process she would have
been extradited to another country, have had to deal with all
that process, in her case she would then have been acquitted,
but nevertheless that would be too late for her. That seems to
be a good example where you need to have some kind of mechanisms
to ensure that people's human rights are in fact protected.
107. Conspiracy. Talking not just about those
who have actually done the deadly deed but the organisers, what
is the case against an extension of powers in relation to conspiracy
in order to catch those who are not directly engaged in terrorism,
but those who facilitate it?
(John Wadham) From my point of view there
is no principled reason why those people involved in conspiracy
to commit offences should not be prosecuted merely for their agreement
and that is currently the state of English law in general. The
problem with conspiracy in practice is getting evidence against
individuals. Obviously if people agree to commit offences, they
rarely write down minutes of this. In a lot of conspiracy trials
in this country, we have had problems because in fact the way
that the prosecution have tried to prove guilt of the agreement
to commit the offence is to analyse people's political activities,
trawl through life in general and to try to encourage the jury
to jump from the circumstantial evidence that there must have
been an agreement. There are practical fair trial problems about
it, but there is nothing in principle wrong with conspiracy being
108. So the organisers are as guilty as those
who actually carry out the crime.
(John Wadham) Absolutely.
Bob Russell: Fair enough. I just wanted to clarify
109. Can you just help us on the present state
of the law? There is already an offence of conspiracy to cause
explosions, is there not? Is that a yes?
(John Wadham) It is not something we
are as well prepared for as we were for other areas, only because
it is quite complex. I hope that my speech will have allowed Professor
Gearty to find the page in the Terrorism Act.
(Professor Gearty) Mr Wadham has a vast bureaucracy
behind him and he cannot answer. I can only point to section 59
of the Terrorism Act which is on inciting terrorism. There is
a conspiracy to commit an explosives crime.
(John Wadham) That was in the 1998 Act.
110. But it does not apply to fund raising, organising
or inciting terrorism, does it, by other means than explosives?
(Professor Gearty) I do not know. We
could look into it for you.
111. Send out a search party on that. I was going
to ask whether there was a gap in the law which needs closing,
which I think is what the Government is arguing.
(John Wadham) I am sure that the Government
is right to say there are gaps in the law. The question is, because
of the problems of obtaining evidence from other countries in
relation to this process as well we have to be sure that people
will have a fair trial. If, for instance, evidence comes from
other countries it will come from the law enforcement agencies
in other countries. Some law enforcement agencies will be correct
and honest and truthful and some will not be. There is a real
danger that people who may be dissident in this country and fighting
politically for human rights and democracy in other countries
will not be very well liked by the country they are criticising.
In those circumstances it may well be that other country will
create evidence to try to ensure that those people are prosecuted
or deported or whatever else. There are real issues about any
112. It is largely about the quality of the evidence.
(John Wadham) In some circumstances that
may mean that some trials should not go ahead, but it does not
mean there is necessarily anything wrong with those kinds of offences,
provided the protections are adequate.
113. There has been quite a lot of publicity
about hoaxers, but the Home Secretary is planning to apply the
hoax offences retrospectively. Are you happy with that? Does it
comply with the Human Rights Act?
(John Wadham) Our press office was contacted
on a Thursday or Friday and told by Sunday newspapers that it
was going to be announced on that Sunday because the Prime Minister
or his office had briefed Sunday newspapers on what the announcement
was going to be. The announcement was going to be that the law
was going to be retrospective and retrospective from that day.
In fact on that day there was very little coverage of this for
other reasons. I assumed that the Government felt that if they
told people in advance in a very public way, somehow the retrospective
nature of their proposals would be more acceptable. I do not think
it is. I think it is presumptuous of the Government to think that
Parliament will pass all its measures. I am sure I do not need
to tell members of this Committee about why that is problematic.
It is problematic in other senses. First, there is a tradition
in this country that retrospective penalties, retrospective criminal
offences, will not be initiated and it is contrary to Article
7 of the European Convention.
114. Surely the spirit has been complied with,
has it, by the public announcement? After all hoaxers are very
worrying for all concerned.
(John Wadham) They are; of course there
is a real problem about hoaxes. Whether or not people should get
seven years for a hoax compared with the other things you might
get seven years for, a very serious grievous bodily harm kind
of offence or a rape, whether hoaxes actually reach that standard
is a matter we could all debate. To say that because they have
told a few Sunday newspapers . . . I am afraid to say that those
people who are going to be involved in hoax calls, probably do
not know that the law was changed. Even if they do know it was
changed, it is still wrong in principle and what I cannot understand
is how the Government thinks it is going to get around Article
7 of the European Convention because that seems to be an absolute
provision that you should not increase penalties retrospectively.
This is not such a serious issue that it should be dealt with
in this way. If the Government felt it was so serious, then on
the Monday there should have been a Bill in Parliament and that
should have been debated and passed that day or the day after,
which has been possible in the past.
(Professor Gearty) It is about as fundamental a principle
as you can get in our organised system of government that you
only punish as a consequence of laws which exist and civil wars
have been fought to stop the executive from imposing its desires
by way of punishment.
115. We hope that does not happen with this one.
The proposed legislation suggests that power be given to police
and customs services to demand removal of facial covering and
gloves. You have no problem with that, do you?
(Nicola Rogers) In principle we have
no problem with that, subject to certain safeguards. One would
be cultural sensitivity and that this takes place in a secure
environment; if a woman, for instance, is asked to remove her
face clothes that it is done with the cultural sensitivity which
116. Subject to that reservation, which I obviously
understand, there is no problem in that principle.
(Nicola Rogers) No, there is not.
117. May I move to another principle which may
not have so much support? Is there any reason why the proposed
extension of powers relating to identification and fingerprinting
should not be introduced? This is where the fingerprints which
are taken can be kept for up to ten years.
(Nicola Rogers) The current position
is that they can be kept for ten years in respect of certain persons
anyway. I am not entirely sure why this legislative change would
118. As I understand it, it is for immigration
and asylum cases.
(Nicola Rogers) That is precisely the
legislation to which I referred. Section 143 of the 1999 Act deals
with the destruction of fingerprints and where no time period
is specified, allows for fingerprints to be kept for up to ten
119. You have no problem with that.
(Nicola Rogers) But not where they are
recognised as a refugee.
(John Wadham) Will there be two minutes to talk about
sunset clauses and other things?