(2) For subsections (2) and (3) substitute
(2) The person must be brought before the appropriate judge within 48 hours starting with the time when the person is arrested.
(2A) The documents specified in subsection (4) must be produced to the judge within 48 hours starting with the time when the person is arrested but this is subject to any extension under subsection (3B).
(2B) Subsection (3) applies if
(a) the person has been brought before the judge in compliance with subsection (2); but
(b) documents have not been produced to the judge in compliance with subsection (2A).
(3) The person must be brought before the judge when the documents are produced to the judge..
The amendment deals with provisional arrest. I should like to make some introductory remarks and then respond to questions that hon. Members may have. Provisional arrest is an important tool in the fight against serious and organised crime. There are cases, although rare, in which the urgency of the situation and the complexity of the case, lead member states to ask one another to arrest someone before the full European arrest warrant has been issued. Where the UK receives such a request, and there are reasonable grounds for believing that the full European arrest warrant has been or will be issued, it is open to UK law enforcement officials to arrest the person in question.
When someone is arrested under the provisional arrest powers found in section 5 of the Extradition Act 2003, section 6 requires that the person be brought before a court and a full European arrest warrant provided to the judge within 48 hours of arrest. While in the vast majority of cases this will prove unproblematic, there are two scenarios where the right time limits contained in the Act can cause problems. The first of these is where the 48-hour period runs over a weekend or a public holiday. In that situation no court would be open before which the person in question can be brought. This could result in a serious criminal being able to avoid extradition simply because of the date on which they were arrested.
The second problem with the current provisions arises in very complex cases where the member state seeking extradition is simply unable to get the formal documents justifying extradition in order within that 48-hour period. Clause 58, as drafted, sought to address these problems by allowing an application for an extension of 48 hours to be sought to both the period within which the full documents must be provided and the period in which the person must be brought before the court.
On reflection I feel that there is better and fairer solution to these problems which Government amendment 230 and Government amendments 231 to 238 seek to provide. The first change to note is that it is no longer open to the requesting state to apply for an extension of the 48-hour period within which the person in question must be brought before a UK court as the sole problem we are addressing here is that arising where the 48-hour period falls over a weekend or a public holiday. I feel that the better approach is simply to exclude these days from the calculation of the 48-hour period. We see no reason why the person arrested should not be brought before a UK court within the original 48-hour period where it does not fall on a weekend or a public holiday. I hope that that is helpful because I certainly think it is a better way of doing it.
That change and the terms of the other amendments also mean that it is absolutely clear that in the very rare cases where there is a need to apply for an extension of the period for supplying the documents justifying extradition, such an application will always be made while the person who is arrested is present in court, whether in person or by live link, so that they may resist the application and be in a position to apply for bail. Again, I think that is a significant improvement on the clause as drafted. I hope that the Committee will feel that these amendments represent a careful and considered attempt to reduce the scope of the provisional arrest amendments so as to make absolutely sure that they strike the right balance between the need to safeguard the liberty of the subject while ensuring that the UK does everything possible to fight serious international crime.
The Ministers comments on the amendments are helpful. He will know that Liberty expressed concerns about why the clause was necessary and the proportionality of the provisions. His suggestion to clarify and restrict the ambit of the clause is helpful in addressing some of those issues.
It would be helpful for the Minister to address one further point. It is worth putting the concerns of Justice on the record. It states:
A warrant can be transmitted electronically pursuant to section 204, thereby instantaneously and with the introduction of SISII, this will be the normal means of transmission. We consider it inconceivable that any scenario could justify an arrest without warrant, on reasonable belief that a warrant will arrive rather than an offence having been committed, and remand for 96 hours.
Justice suggests that it should be more instantaneous. The Minister has explained that circumstances may arise that fall outside Justices concern that the instantaneous electronic transmission of warrants might lead to situations where documentation is awaited. It would be helpful to consider that. Any further clarification that the Minister can provide on Justices concerns over the additional time would be welcome.
If there is an increase in the speed of transmission through the Schengen information system or other forms of electronic transmission of appropriate documentation, it would be appropriate to make it clear that in one way we are moving in one direction and in another way we are moving in another.
I echo the hon. Gentlemans view. He recognises, as do Justice and Liberty, the importance of article 5 of the European convention on human rights. Even though the Minister gave a good explanation of where we will be after we accept the amendments, as I am sure we will, those will also be subject to scrutiny against article 5. The hon. Member for Hornchurch made a good fist of analysing the areas that we will have to look at further. That said, I too welcome the amendments.
I have tried with the amendments to address some of the points that have been made. Like everybody else, I do not like the idea of provisional arrests. We all agree that if we are not careful, such procedures might lead to an unacceptable erosion of liberty. There is a balance to be struck between the role of the state in protecting the public and the need for citizens to be protected against the encroachment of the state.
In answer to the hon. Member for Hornchurch, the issue is not the time taken to transmit the warrant, but the time taken to get the case together to make the request to the court in the member state. In any case, a UK court would grant an extension only when the documents could not reasonably have been provided within the original 48-hour period. If the requesting state had things sorted they would clearly be able to get the documents there. I think that I have answered his questions. I hope that the Committee will support the Government amendments.
Amendments made: 231, in clause 58, page 71, line 20, at beginning insert
While the person is before the judge in pursuance of subsection (2),.
232, in clause 58, page 71, line 21, leave out (3) and insert (2A).
233, in clause 58, page 71, line 24, leave out (2) and insert (2A).
234, in clause 58, page 71, line 28, leave out subsection (3D).
235, in clause 58, page 71, line 31, at end insert
(3A) After subsection (5) insert
(5A) Subsection (5B) applies if
(a) the person is before the judge in pursuance of subsection (2); and
(b) the documents specified in subsection (4) have not been produced to the judge.
(5B) The judge must remand the person in custody or on bail (subject to subsection (6)).
(3B) In subsection (6) after subsection (2) insert , (2A) or (3)..
236, in clause 58, page 71, line 32, leave out subsection (4).
237, in clause 58, page 71, line 33, at end insert
(5) After subsection (8) insert
(8A) In calculating a period of 48 hours for the purposes of this section no account is to be taken of
(a) any Saturday or Sunday;
(b) Christmas Day;
(c) Good Friday; or
(d) any day falling within subsection (8B).
(8B) The following days fall within this subsection
(a) in Scotland, any day prescribed under section 8(2) of the Criminal Procedure (Scotland) Act 1995 as a court holiday in the court of the appropriate judge;
(b) in any part of the United Kingdom, any day that is a bank holiday under the Banking and Financial Dealings Act 1971 in that part of the United Kingdom..
238, in clause 58, page 71, line 33, at end insert
(6) In section 7(1)(b) of the Extradition Act 2003 (application of provisions for verifying the identity of the person arrested) for is arrested under section 5 and section 6(2) substitute arrested under section 5 is brought before the appropriate judge under section 6 and section 6(2A)..(Mr. Coaker.)