Clause 193 - National security

Part of Extradition Bill – in a Public Bill Committee at 9:25 pm on 21st January 2003.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 9:25 pm, 21st January 2003

First, I apologise to the Committee. As Members will tell from my voice, I am recovering from a heavy cold. I hope that my voice will hold up, but I may not find it as easy to speak at length, as I would normally do. Having said that, this is perhaps the most substantial debate that we have left in Committee, so I hope that I will be forgiven if I go into a little detail.

I associate myself with every word said by my hon. Friend the Member for Stratford-on-Avon (Mr. Maples). I agree with each of his three points, and will listen in detail to the Minister's response, although other members of the Committee may want to contribute before we come to that. I want to amplify some of the issues, as well as introduce our new clauses. We tabled the new clauses with great assistance from the helpful Committee Clerk. The new clause on trivial offences would include a de minimis provision in the Bill, and the other two new clauses relate to political reasons, which was mentioned by my hon. Friend, and unconscionable delay.

I must stress the point made by my hon. Friend that we are not trying to damage the Bill. We understand entirely what the Government are trying to do, so I hope that the Minister will not say that we are trying to drive a coach and horses through the Bill. I will be happy if he tells us that our proposals are the wrong way to act, because they would open up the loopholes that Ramda has used, but the Government will examine these issues to see whether there is another way to deal with them. I hope that they will take the proposed new clauses in the spirit in which they were intended, which is seriously, and that the Minister will tell us say that he and his officials will continue to examine these matters. We are not trying to weaken the Bill, but there are substantive points to address, and I agree entirely with everything that my hon. Friend said.

I want to make some points additional to those made my hon. Friend about manifest injustice. Like the debates on part 1, this debate on clause 193 stand part and associated new clauses goes to the heart of the Bill. We are always indebted to individuals and organisations that send us briefing material, and it is particularly helpful when former hon. Members, who

know how Committee procedures work, take an interest and offer advice.

Yesterday, I received an urgent briefing from the former hon. Member for Ludlow, Mr. Christopher Gill, who, after long and distinguished service here, retired at the last election. He is now chairman of the Freedom Association, which has provided useful material relating to the manifest injustice issue. I hope that the Minister and his officials will listen carefully to what I say and reflect further on it before Report. I do not expect a detailed answer today.

This issue affects our new clause because the fairness or otherwise of other jurisdictions could count as a political reason to act. My hon. Friend the Member for Stratford-on-Avon spoke about the possibility of a Greek magistrate attempting to arrest a former Minister or an official. The way in which the procedures of other part 1 countries work is important. We need to assess the risks in order to decide whether to widen the Secretary of State's discretion to act for political reasons.

I shall present a detailed case involving the operation of procedures in Italy. I am indebted not only to Mr. Gill, but to Mr. Torquil Dick-Erikson, an expert on continental legal procedures, and Leolin Price, QC, a distinguished jurist and lawyer. Those three experts point to the Government's genuine misunderstanding of how Italian investigatory procedures work, which bears significantly on the European arrest warrant.

The Government said on Second Reading and in Committee that the European arrest warrant could not operate in Britain for interrogation or evidence gathering. We were assured that a continental jurisdiction would be unable to go on a fishing expedition. However, as laid down in Italy's criminal law, suspects accused of serious crimes are customarily arrested at the start of an investigation before any interrogation takes place. The concern is that, unless we widen the Secretary of State's discretion, the Bill will not prevent the Italians from having British people arrested in Britain and transported to Italy for investigative purposes.

According to the expert jurists, the Bill is currently drafted with a view to English or perhaps Scottish criminal law. In our procedures, if a crime has been committed, suspicions may be formed against an individual or individuals, but the position is not formalised, as the investigators—usually police officers—view the person only as a possible suspect. During the investigation, the gathering of evidence and the questioning of the suspect, witnesses or others, people are said to be helping the police with their inquiries. If, and only if, sufficient evidence against the suspect has been gathered during the first step will a formal accusation, charge and arrest take place. Shortly afterwards, the defendant will appear in a public hearing before a magistrates court, be charged with an offence and the prosecution will have to produce prima facie evidence to assist the court to decide on bail, whether to remand the accused in custody or commit him for trial. Enough evidence has

to be produced to establish whether there is a case to answer.

In English and Scottish procedures, various safeguards, such as rules against hearsay evidence, apply, but they do not necessarily apply in foreign jurisdictions. The procedure in Italy is very different. The first step is to establish that a crime has been committed. A suspicion is formed against someone—or more than one person—who is considered a suspect. That position is formalised and notified to the person concerned. The investigators are not police officers, but members of a career judiciary. The policemen merely carry out the orders of the career judiciary.

Suspects are considered suspects on the basis of ''indizi'', an Italian word that corresponds roughly to the areas of meaning covered by the English words ''clue'' and ''evidence'', although not strong evidence. For that, the Italian word ''prova'' is used, although it also means ''proof''. Therefore, Italian has only the two words ''indizio'' and ''prova'' whereas English has three, ''clue'', ''evidence'' and ''proof''.

A person against whom the investigators have some ''indizi'' is formally notified that he is ''indiziato di reato'', which roughly means that he is suspected with evidence, ''indizi'', of having committed a crime, ''reato''. The verb ''indiziare'' could be translated as ''accuse'', on the basis of ''indizi'', and consequently the person is to be ''indagato'', which means investigated. The suspect is invited to name a defending lawyer. If he does not, one will be chosen by the prosecutor and appointed for him. However, the defendant will have to pay that person if he wants to be defended properly. That is the opposite of our system, in which the defendant can choose and the state pays under legal aid.

Let us say that the charge on which the person is being investigated is serious—for example, an offence that might lead to a European arrest warrant—and that the ''indizi'' against him are serious and not mutually contradictory. The Italian procedural law says ''indizi gravi e concordanti'', but they do not need to have acquired the status of ''prova'', which is formed at a much later stage. Let us also say that it is considered in an arbitrary assessment, made then and there by the issuing authority, that the person may try to abscond, commit more offences or tamper with the evidence. If all those conditions are fulfilled, the formal notification is given to him, together with a warrant for his arrest, so he will be arrested at this stage and put straight into prison.

In an earlier sitting I talked about the danger of people languishing in Italian prisons for months. Some of us have had constituents who have suffered that in the past, and we have asked the Government to make representations. It is one of the differences between our procedure and the Italian procedure. Someone may be merely a suspect on what is very bare evidence or a bare suspicion. At the point that I have described, the Italian investigating judicial authority will write out an arrest warrant, and if the suspect is in the United Kingdom, the UK will receive a European warrant for his arrest. When the UK receives the

EAW—the request—it will in effect ask Italy, ''Has the prisoner been accused and do you want him in order to prosecute him?''

My next point explains how the Bill is defective and why we may need a wider discretion for the Secretary of State. The Italian judicial authority will translate ''accuse'' as ''indiziare di reato'' and so reply, ''Yes, he has been accused of a crime''—that is, criminal proceedings have been opened against him. As for the aim of prosecuting him, that will be translated as ''perseguire penalmente''. That term covers the whole procedure, from the formal notification to the individual that he is an ''indiziato di reato—a suspect—to his final conviction or acquittal.

This is where clause 193, and the new clauses that we suggest should be incorporated into the Bill as a protection, overlap with part 1, in particular clause 2(3). The experts advising me say that the Italian system will undoubtedly translate and interpret the Bill as drafted in the way that I have described.

In recent Italian judicial history, clues considered sufficient to arrest someone have included the say-so of a confessed criminal who was being questioned elsewhere. However, Italian law says that although that is enough to arrest someone, it is not enough to convict. For that, corroborating evidence—''riscontri oggettivi''—must be found. Sometimes the say-so of a second criminal who has turned state's evidence is considered sufficient evidence to corroborate that of the first.

Investigation, gathering of evidence and questioning of people who may be able to give useful information take place in an attempt to gather sufficient ''prove''—the Italian word for evidence. The major difference from the UK procedure is that that gathering of evidence normally takes place with the suspect already in custody, so that is what would happen to someone who was taken away from this country under a European arrest warrant and put in an Italian prison.

Another major difference is that, before interviewing anyone, the investigating magistrate must tell them whether they are being interviewed as a suspect or a witness, because different procedures apply. That ''freezing in advance'' of the positions of all those involved with a crime makes the investigation much more difficult than it is using British methods.

The suspect, while in prison, may be interrogated again. The Italian legal procedure is based on the hope that the suspect in prison may be persuaded to confess. Italian law schools teach the maxim ''La confessione e' la regina delle prove''—confession is the queen of evidence.

Prison conditions may often be an inducement for a suspect to confess and to collaborate with the investigators. While the suspect remains in prison, the investigation can continue, for six months or more in serious cases, and extensions of that time limit can be requested by the investigators. That period is reflected in the time limit laid down by the original proposals for corpus juris that we discussed at an earlier stage in the Bill. Up till the framework decision that led to the Bill, the UK Government had always

objected to similar proposals. In 1999, a report by a House of Lords Committee rejected the proposals for corpus juris, and the hon. Member for Vauxhall (Kate Hoey), who was a Minister at that time, promised to veto any corpus juris proposals as incompatible with British systems and traditions.

As the Italian equivalent of the British charging of a suspect will already have taken place by that stage in the procedure, albeit on the basis of far flimsier evidence, the decision will then be taken as to whether there should be committal for trial. The Italian phrase for that is ''rinvio a giudizio.'' The person responsible for that, the ''Pubblico Ministero'', could be described in English as an investigating and prosecuting judge. That judge continues to collect evidence—''prove''—against the suspect until he thinks that he has enough evidence to try the defendant in a public court.

Unlike in British magistrates courts, the committal decision is taken in a private hearing, behind closed doors, by a colleague of the prosecutor, known as the judge of the preliminary investigation. The investigation is referred to as ''preliminary'' even if it takes place six months after the arrest and imprisonment of the suspect, because it brings to an end the first part of the investigative process. The investigation then continues with what the Italians call a public debate phase, which is what we would call the trial proper. The Italians regard the investigation and the trial as a single procedure—the Italian word for ''trial'' is ''processo'', meaning process—even though that procedure may take months or longer.

Apart from the recording clerk and other attendants, the only other persons present at the preliminary hearing, which is not held in public, are the defendant and his lawyer. The latter belongs to a separate profession from the prosecutor and the judge, but the prosecutor and the judge are colleagues from the same career path and may work in tandem on case after case. They can swap functions, and their offices may be in the same corridor. It is because of such potential for injustice due to the differences between our procedure and that of Italy or other part 1 countries that have different judicial traditions that we stress the need for the Secretary of State's decision to have wider scope.

I am sorry to have taken a little while on this complex point, but it is important for all this information to be on the record. The three commentators who have sent me this brief quote what the Minister said earlier in the proceedings of this Standing Committee:

''We are both clear that in an accusation case, which is a case where a person has yet to be convicted, extradition should be possible only for the purpose of putting the person on trial. It should not be possible for the purpose of interrogation or evidence gathering. Clause 2(3) is drafted to achieve that result. It does not talk about a person being ''suspected'' of an offence or of having evidence to give about the offence. It is quite clear that the person must be accused of the offence.''—[Official Report, Standing Committee D, 9 January 2003; c. 054.]

The Italian procedure is, of course, merely one example. My hon. Friend the Member for Stratford-on-Avon points out there are many other countries with procedures that are completely different from ours, and possibly more similar to those of Italy.

The commentators who briefed me say that it is clear that the Minister has not been sufficiently briefed about the details of Italian criminal procedure, if we take that as an example of the 13 current part 1 countries. They say that the current wording of the Bill will not achieve the outcome that the Minister says that he is expecting, and that he wants hon. Members to believe may be expected, when people are taken to Italy from Britain under the terms of the Bill.

The distinction between an arrest ordered by a police authority and arrest by a judicial authority, which members on both sides of the Committee were keen to establish, becomes meaningless when faced with a system such as that in Italy, in which a judicial authority directly carries out police functions in a criminal investigation—in effect, policemen wear judges' robes. We have always had that concern about the Bill, which is why it is essential to introduce the wider discretion to prevent manifest injustice to our citizens, but without driving a coach and horses through the legislation.

I want to deal with the other two aspects of the new clause. Many of us—Liberal Democrats as well as the official Opposition—have talked about the need for a de minimis provision to prevent people from being extradited for trivial matters. Again with great help from the Clerk, we tabled a new clause that would mirror clause 193 but would apply it to trivial cases, which I hope the Minister will be prepared to consider. We talked about the need to ensure that people will not be extradited for offences that carry a sentence or period of detention of, say, only four months.

There are political exceptions. My hon. Friend the Member for Stratford-on-Avon rightly outlined, probably better than I could, the need to ensure that in an equivalent of the Pinochet case, in which Senator Pinochet was—