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Baroness Anelay of St Johns: The explanation of the noble Baroness certainly has satisfied me. As she mentioned this concerns the difference between "a" and "the" and the importance of "the" being the distinguishing factor in this respect. I beg leave to withdraw the amendment.
The noble Baroness said: I am most grateful for the elevation. I believe I shall remain a Minister of State for some considerable time. I hope that I can be brief in moving this group of amendments as they have been extensively trailed.
These amendments are concerned with conduct that may have taken place in the United Kingdom and with ensuring that where such conduct is regarded as lawful here extradition cannot take place. The Government believe that those who go to another EU country and break the laws there should expect to face justice and should, therefore, be extradited even if the UK happens not to have an exact equivalent offence.
Our position is very different from that which appears to be taken by noble Lords opposite. As we have made clear in other debates, the Opposition appear to believe that people who break the law of another EU country should be safe from prosecution so long as they can cross a border into a country where the conduct is not considered criminal prior to arrest. That remains a fundamental difference between us and, I suspect that it will continue to divide us, although I have hopes for the noble Baroness, Lady Anelay, in this regard.
However, one thing we are all agreed on is that it would be quite unjust and improper for anyone to be extradited for conduct which took place in the United Kingdom which was quite lawful here. It has been the Government's firm view all along that the Bill, in its present form, would prevent that happening. Nevertheless, we recognise that very real concerns have been expressed in that regard and that we should address them if we possibly can. Accordingly, my noble friend, Lord Filkin, announced when he appeared before the European Scrutiny Committee chaired by the noble and learned Lord, Lord Scott of Foscote, on 30th April that we would be bringing forward amendments on this point. My noble friend re-iterated the point in a letter to the noble Baroness, Lady Anelay, of 12th May which was copied to a number of your Lordships and which may well now be in the Library.
The amendments that we are now discussing give effect to the commitments that we have made. Their effect is to put beyond any possible doubt that the provisions in Part 1 of the Bill allowing for extradition without dual criminality cannot apply if any part of the conduct that forms the extradition request has occurred in the United Kingdom.
The noble Baroness, Lady Anelay, in her usual courteous manner very kindly indicated that there was a special point with which she has some concern. I hope that I shall be able to set her mind at rest about that. Doubtless the noble Baroness will correct me if I
The position is straightforward. The individual employee whose action had resulted in the unfortunate consequence would be extraditable, as he or she would be under current law, and I do not think that any noble Lords would quibble with that. The basis on which the company directors were being sought would presumably be because they had set the direction and corporate culture of the company which had caused the individual to be negligent or to cut corners and led to the resulting death. If the company were based in Britain, then the corporate ethos and indeed any specific directives will have been issued from here. So it is quite clear that in such a case, part of the conduct that constitutes what the requesting state believes to be an offence will have occurred in the UK.
These amendments, as I have indicated, put it beyond any doubt that where any part of the conduct has occurred in the UK, we can extradite only if the dual criminality requirement has been satisfied. At the moment the UK does not have an offence of corporate manslaughter so in the circumstances that I have just described, the dual criminality requirement would not be satisfied and the board of directors could not be extradited.
Viscount Bledisloe: I very much welcome the intent behind the amendment. It is intended to meet points which I made on Second Reading. I am, however, worried as to whether, technically, it achieves that which the noble Baroness set out.
Let us suppose that a publication in this country contains an article which constitutes in Germany Holocaust denial and a few copies are sold in Germany. The offence with which the magazine publishers would be confronted would be that of selling in the main streets of Berlin a copy of the Spectator magazine containing the article in questionthat act took place wholly in Germany. The article was written in England and was largely circulated in England but the indictment would concern the offence of selling in W H Smith Belinstrasse, if such a thing exists, copies of the magazine containing the offending article. Is there not a risk that in those circumstances this highly well intentioned amendment would not fully succeed in achieving the end for which it is so desirably designed?
The hypothetical magazine mentioned by the noble Viscount was published in this country but some copies were distributed in Germany. The physical act of selling those copies of the magazine occurred in Germany. The argument would arise as to whether the German authorities could deal with the German supplier, or the German seller or purveyor of the magazine, as those people knowingly supplied or sold the magazine within Germany, and what access there would be to those who were responsible for editing and publishing the article in this country.
As the relevant article was published in the United Kingdom, we would say that the offence was in part committed here and we would not be able to extradite the people concerned. One could construct a number of interesting and delicate arguments around the alleged offences but in order to obtain a clear view of the matter one would have to look at the precise nature of each and every alleged offence.
The noble Viscount alights upon Holocaust denial because he has probably found that it is the only offence that is outwith those which are caught by our legislation. That is the only such offence that I have discovered; namely, Holocaust denial. It is a very particular offence. We would say that those engaging in that endeavour in part in this country would not be capable of being extradited as the offence would in part have allegedly been committed in this country, and in this country it is not an offence. So we would not extradite those involved in it.
Viscount Bledisloe: I ask the noble Baroness to take the matter away and reconsider it. If one draws the analogy with the law of libel, each separate magazine that is sold constitutes the publication of the libel contained in it. Publication does not have in that sense the common meaning that it has in this country of the act of printing the magazine and running it off. I am not saying that the noble Baroness is not right but I do not think the matter is necessarily as straightforward as she thinks. I should be grateful if she would ask her officials to consider the matter further and then write to me.
Baroness Scotland of Asthal: I am very happy to write to the noble Viscount. Of course I shall reconsider the matter but I believe that Clause 63 is clear as it refers to the case where no part of the relevant conduct occurs in the United Kingdom.
As regards the hypothetical case that the noble Viscount mentioned, the production and publication of the magazine occurred in this country but some copies were distributed elsewhere. Therefore, it would be caught by Clause 63 because clearly part of the hypothetical offence occurred in this country. Dual criminality would apply. Those responsible for the acts in question would be capable of being extradited only if Holocaust denial were also an offence in this
Lord Stoddart of Swindon: I listened to what the noble Baroness said. I should like to be reassured by what she said but I am afraid that I am not. She mentioned Holocaust denial as the only instance that she can find of the offence that we are discussing. However, that is the only instance that she can find at the moment. The great problem is that once the legislation is enacted, all sorts of instances which one cannot think of at this time suddenly appear. It is that which worries so many of us. I believe, perhaps wrongly, that freedom of speech is absolute in this country. That is not necessarily the case in other countries. Other countries may have a law which criminalises anyone for criticising the head of state. I should like to knowperhaps we cannot say at this point in timewhether anyone in this country who criticises and insults President Chirac may be liable for extradition. All kinds of things may occur.
Indeed, perhaps there is another question I should ask on the point which was raised earlier, by, I believe, the noble Baroness, Lady Anelay, regarding the question of corporate responsibility. Could the employers in this country of an employee who, through his or her negligence, causes the death of a person abroad be extradited on criminal charges of manslaughter?
Under present circumstances I understand that that would not be possible. But in the offing, as I understand it, there is possible legislation on corporate criminality which may well enable managing directors to be prosecuted for the death or injury of their employees through the negligence of another of their employees. That is already in the wings, is it not? Perhaps I am wrong and perhaps I have misinterpreted the Government's intention in that regard and how it would impinge upon the Bill if they intend, as I believe, to introduce a crime of corporate criminality.
Although, like other Members of the Committee, I understand what the Minister is saying and, indeed, believe that she believes what she is saying is the correct response, events have a nasty habit of turning out contrary to what we believe is the position at this particular time.
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