Lord Goodhart (Liberal Democrat)
My Lords, this is an amendment which I believe is of great importance. Article 2.1 of the framework decision allows extradition for offences punishable by a maximum sentence of 12 months or more. We accept that; it represents broadly the present law. Under Article 2.1, that applies where the dual criminality rule applies.
What is novel about the European framework decision in particular is Article 2.2 which removes the requirement of dual criminality for the more serious offences—those which carry a maximum sentence of three years or more in the requesting state. That is an essential part of the European framework decision. Although noble Lords on these Benches had concerns about whether the dual criminality rule ought to be preserved in full force, ultimately we accepted the arguments for some degree of relaxation of it. However, Article 31.2 of the framework decision provides that the threshold for applying Article 2.2, and thereby removing the dual criminality requirement, may be reduced by bilateral or multilateral agreements between some or all of the states which have signed up to the framework decision.
The Government have chosen to rely on Article 31.2 and to permit a reduction of the threshold at which Article 2.2 operates—with the dual criminality rule being removed—to include offences that carry a maximum sentence of 12 months or more. We believe that that is effectively gold plating the framework decision and that it is wrong. The proposal has been criticised by Justice, Liberty, and the Home Affairs Select Committee in the other place. The Home Affairs Select Committee stated at paragraph 51 of its first report of the Current Session on the Bill:
"We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so".
The dual criminality rule is, of course, not pointless. The original idea no doubt was that some countries imposed harsh and repressive laws prohibiting, say, freedom of speech or freedom of assembly, which would not have been recognised in this country. There is a second reason for the dual criminality rule; namely, that a stranger to a country may not realise that what is lawful at home is not lawful abroad.
We have accepted that the dual criminality rule should be modified for the European Union. That was not an easy decision; we felt that it came close to the borderline. However, we recognise that European Union member states are parties to the European Convention on Human Rights and broadly comply with it. Therefore, the idea of a dual criminality rule as a defence against harsh and repressive laws that breach human rights is not necessary in relation to other countries in the European Union.
Of course we accept and support the principle that visitors to other countries should obey the local laws. However, people should not be extradited for relatively minor offences in the absence of a dual criminality rule. Where penalties are minor—where the maximum sentence is less than 12 months—most offences will be on the borderline of criminality. Offences committed by serious criminals such as major frauds, large-scale drug dealing and so on are almost always crimes in both the requesting and requested countries.
In those circumstances, there is no sufficient justification for the removal of the dual criminality rule. The problem of people not understanding the local law is that the risk is clearly greater with relatively minor offences where practices may vary a great deal. Something recognised in one country as legitimate, or at most subject to an action for civil damages, may be a criminal offence leading to a short prison sentence in another. For more serious offences, it is much more likely to sensible people that the activities might be regarded as crimes in another country.
The fact that we are willing to accept the exclusion of dual criminality for serious crimes does not mean that we should exclude it for lesser crimes falling within the same category. Some offences on the list can cover a very wide spectrum. For example, the 12th offence is environmental crime, which could include offences that in this country at any rate would be regarded as quite minor. Something that might come within the definition of environmental crime might carry a maximum sentence of 12 months but would not be a crime in this country.
Therefore, we should not gold-plate the European arrest warrant, but should stick to the basic requirement that the dual criminality rule is only excluded if the maximum sentence is three years or more. Lesser crimes would of course still be subject to extradition if the dual criminality rule applied.
Amendment No. 170 deals with extradition not to face charges but to complete a sentence. Articles 2.2 and 31.2 of the framework decision do not differentiate between extradition to face charges and to serve a sentence that has already been imposed. In our view, the same principle applies. Where there is dual criminality in both countries, we accept that extradition is appropriate to serve or complete a sentence of at least four months. Where there is no dual criminality, however, people should not return to serve sentences of four months. In such cases, we suggest that extradition should be imposed only when there is an actual sentence of at least 12 months.
The nature of cases where there is no dual criminality is that those matters are on the border of criminality. They are thought to be a crime in one country, but reasonably thought in other countries not to be a crime. That is not the kind of offence likely to be exploited widely by serious criminals, or to be particularly disturbing to individuals. I do not see any problem with that.
The amendment is of considerable importance. It does not involve anything inconsistent with the terms of the framework decision. We quite see that it is desirable to keep within them. The amendment would involve no breach of those terms whatever. The framework decision provides a substantial reduction of the effect of a long-standing rule applying to international extradition, and that is in itself enough.
If the removal of dual criminality for the more serious offences proves to have no problems, we could go forward to that in future. However, it is too early to take that step. At this point, we should confine ourselves only to the step provided for in Article 2.2 of the framework decision, and say that we have to be limited to that and cannot go below the maximum three-year sentence for an offence charged or a sentence of at least 12 months' imprisonment where there is a return in order to serve or complete a sentence. I beg to move.