New Clause 23 - Proportionality

Anti-social Behaviour, Crime and Policing Bill – in a Public Bill Committee at 9:15 am on 16th July 2013.

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‘(1) In section 11 of the Extradition Act 2003 (bars to extradition), in subsection (5), for “21” there is substituted “21A”.

(2) After section 21 of that Act there is inserted—

“21A Person not convicted: human rights and proportionality

(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person (“D”)—

(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(b) whether the extradition would be disproportionate.

(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

(4) The judge must order D’s discharge if the judge makes one or both of these decisions—

(a) that the extradition would not be compatible with the Convention rights;

(b) that the extradition would be disproportionate.

(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—

(a) that the extradition would be compatible with the Convention rights;

(b) that the extradition would not be disproportionate.

(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.

(7) If the person is remanded in custody, the appropriate judge may later grant bail.

(8) In this section “relevant foreign authorities” means the authorities in the territory to which D would be extradited if the extradition went ahead.”

(3) In deciding any question whether section 21A of the Extradition Act 2003 is compatible with European Union law, regard must be had (in particular) to Article 1(3) of the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA) (which provides that that decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union).

(4) In a case where the Part 1 warrant (within the meaning of the Extradition Act 2003) has been issued before the time when the amendments made by this section come into force, those amendments apply to the extradition concerned only if, at that time, the judge has not yet decided all of the questions in section 11(1) of that Act.’.—(Damian Green.)

Brought up, and read the First time.

Photo of Jim Dobbin Jim Dobbin Labour, Heywood and Middleton

With this it will be convenient to discuss the following:

Government new clause 24—Extradition barred if no prosecution decision in requesting territory.

Government new clause 25—Hostage-taking considerations.

Government new clause 26—Request for temporary transfer etc.

Government new clause 27—Judge informed after extradition hearing or order that person charged with offence or serving sentence in United Kingdom.

Government new clause 28—Consent to extradition not to be taken as waiver of speciality rights.

Government new clause 29—Definition of “extradition offence”.

Government new clause 30—Criminal Procedure Rules to apply to extradition proceedings etc.

Government amendments 148 to 155, 145 and 147.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I hope that the hon. Member for Ashfield was suitably helped by the short version of these measures that I sent her and the Committee. With 17 pages, I agree that in this case there was a lot to absorb.

The new clauses on extradition are a direct corollary of the statement on the 2014 opt-out made by my right hon. Friend the Home Secretary last Tuesday. As she explained to the House, the European arrest warrant has been successful in streamlining extradition processes and returning serious criminals to face justice. However, the Government are also clear that there are problems with its operation.

Particular concerns have been raised about the disproportionate use of the EAW for trivial offences, the lengthy pre-trial detention of some British citizens overseas and the use of the EAW for conduct that is not criminalised in the UK. The new clauses will provide much needed reform of the EAW and additional safeguards for those subject to EAWs.

New clause 23 means that UK courts will be able to deal with the long-standing issue of proportionality, which is a fundamental principle of EU law. It will require the judge at the extradition hearing to consider whether extradition would be disproportionate. In making that decision, the judge will have to take into account the seriousness of the conduct, the likely penalty and the possibility of the issuing state taking less coercive measures than extradition; for example issuing a court summons. Putting that proportionality bar in the legislation will ensure that extradition, which, of course, entails a person being sent to another country and being arrested and likely to be detained, happens only when the offence is serious enough to justify it.

New clause 24 contains provisions to deal with pre-trial detention. UK courts will be able to bar surrender of the subject of the EAW where the issuing state has not taken both a decision to charge and a decision to try the person, unless the person’s presence in that country is required in order to do so. It will ensure that extradition takes place only where the issuing state is truly ready to prosecute and, accordingly, it will help to prevent people from spending potentially long periods in pre-trial detention following their extradition while the issuing state continues to investigate the offence. It may very well have prevented the extradition of Andrew Symeou, at least at the stage when he was extradited, and quite possibly altogether.

In addition, under new clause 26, the requested person will now be able to speak with the authorities in the issuing state before extradition takes place, if they both consent. That will be made possible by either the temporary transfer of the person to the issuing state, or allowing the person to speak with the authorities in that state while he or she remains in the UK; for example, by video link. It could mean that in cases where extradition goes ahead, the person spends less time in pre-trial detention, as some of the processes that need to take place ahead of the trial could take place while the person is temporarily transferred to the issuing state. In some cases, the EAW may be withdrawn altogether; for example, where the issuing state decides that the requested person is not the person they seek, or that they did not in fact commit the offence at all.

New clause 29 clarifies that where part of the conduct for which extradition is sought took place in the UK, and that conduct is not criminalised here, the judge must refuse extradition. It is important that we make  clear the requirement for dual criminality—the conduct must be criminalised in both the issuing state and the UK.

Speciality protection, which prevents a person from being tried for offences other than those set out in the EAW, will now be retained in cases where the requested person consents to his or her extradition. That is provided for in new clause 28. It should result in more people consenting to extradition at the initial hearing, with consequent savings for the criminal justice system.

The remaining new clauses are largely technical in nature. New clause 25 will delete the hostage-taking bar from part 1 of the 2003 Act to bring our law fully into line with the EAW framework decision. At present, a person’s extradition is barred if the issuing state is a party to the international convention against the taking of hostages and the limited conditions of sections 16 to the 2003 Act are met. There is no equivalent ground for refusal in the framework decision.

New clause 30 makes appeals to the High Court in extradition cases subject to the criminal, rather than the civil, procedure rules. That makes sense as the criminal procedure rules currently govern the main extradition hearing. New clause 27 ensures that where the judge is informed after the end of the extradition hearing that the person has been charged with an offence in the UK, extradition must be postponed until the conclusion of the UK proceedings.

Finally, there are a number of amendments in the group to schedule 7 and clause 140. The former make consequential amendments to the 2003 Act arising from the substantive provisions in the new clauses, while the latter simply provide that the new clauses have UK extent, save for new clause 30, which will apply only in England and Wales, reflecting the jurisdiction of the High Court.

Together, these amendments to the 2003 Act will improve the operation of the EAW in the UK, and will help to ensure that the right balance is struck between necessary law enforcement action and civil liberties. The difficulties that I have referred to with the existing arrangements are long-standing concerns, and as my right hon. Friend the Home Secretary said in her recent statement to Parliament, the Government are taking corrective action to address those problems. I commend the new clauses and amendments to the Committee.

Photo of Gloria De Piero Gloria De Piero Shadow Minister (Home Affairs) 9:30 am, 16th July 2013

We support the new clauses and Government amendments concerning the EAW. However, I want to ask a few questions of the Minister. First, in new clause 23, proposed new section 21A(3) of the Extradition Act 2003 refers to

“the seriousness of the conduct alleged to constitute the extradition offence.”

Will the Minister explain to the Committee how a judge will make a decision based on seriousness?

New clause 24 seeks to ensure that people are not extradited when it is not certain they will be charged, so that they do not sit in a prison for months on end. Will the Minister explain what impact that provision would have on the Julian Assange case, for example, where he argued that he could answer questions without being extradited?

New clause 25 is about hostages. Will the Minister explain why the Government are repealing the 2003 provisions on hostage taking?

New clause 29 deals with dual criminality. Will the Minister give a bit more detail about how it will work in practice? I will give an example. If an individual is accused of holocaust denial by the German authorities as the result of publishing a book—[Interruption.] The Minister is nodding, so he is obviously familiar with the example and the complications. For example, if the person went on a book tour in Germany, made the same comments, and then returned to the UK, he could be extradited. Will the Minister give a bit more detail on new clause 29?

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I am grateful for the support of the hon. Lady and the Opposition for the purpose of the new clauses. I suspect the whole Committee will support them, as we have all observed problems with the European arrest warrant, and although it provides many vital safeguards for British law enforcement, we seek to address those issues with the new clauses.

The hon. Lady asked what a judge will be required to take note of with regard to new clause 23. In deciding whether extradition will not be disproportionate, a judge will have to take into account—obviously it will be for him or her to decide—not just the seriousness of the conduct, but the likely penalty and the possibility of the issuing state taking less coercive measures, for example issuing a court summons. Those will be the suite of issues that a judge will have to take into account. A judge will look at the conduct set out in the arrest warrant. The issuing state will be represented in court and can be asked questions and to give further details if necessary. The judge will be able to look at the individual case in the round and at the issuing state as well.

The hon. Lady asked about the international convention on hostage taking. Currently, a person’s extradition is barred if the issuing state is a party to that international convention. Clearly, it is a perverse effect of the current legislation. There is no equivalent ground for refusal in the framework decision that set up the EAW, and that is a more rational approach. We do not want to discourage countries from signing up to the international convention on hostage taking, and the new clause is simply a clearing-up measure.

The hon. Lady’s third question was about holocaust denial. The issue is whether any part of the offence took place in this country. That will be key, because if it did, dual criminality will be required. As holocaust denial is not a crime in the UK, unlike certain other member states that use EAWs, if any part of the offence took place in this country, extradition will not be available. If a person denies the holocaust in Austria and the UK, and Austria cites conduct in both Austria and the UK in the EAW, extradition must be refused, as the whole conduct is needed to make out the offence. That is the detail of the dual criminality aspect. I hope that answers the legitimate questions that she asked.

Photo of Gloria De Piero Gloria De Piero Shadow Minister (Home Affairs)

I am sorry if I have missed it, but did the Minister explain new clause 24, titled “Extradition barred if no prosecution decision in requesting territory”? [ Interruption. ] I think that may be about to arrive with him. It is the Minister’s judgment call, not mine.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

I thought that I might persuade the hon. Lady, who is entertaining the Committee so royally, to continue to do so.

New clause 24, again, deals with the technical issues that have prevented the appropriate issuing of EAWs in the past. That has been particularly emotive in the case of Andrew Symeou, who was held for many months in a foreign country. His case was the subject of a large amount of campaigning by parliamentarians in this country, and rightly so. The purpose of new clause 24 is to try to stop that.

The hon. Lady asked specifically about Julian Assange. Obviously it is difficult to apply clauses to past cases, which her question would do. However, looking at criminal cases ahead and to answer her question directly, the new clause will ensure that, where a decision to charge and try is not taken, extradition cannot take place. People will not be left in limbo, where they have been charged but a trial is not to take place. However, if the only reason for that situation is the fact that the person is not in the issuing state, extradition can take place to allow decisions to be taken. So the effect of the clause will be to stop people being in limbo for an indefinite period. If the trial is going to go ahead, extradition can take place. If it is not going ahead, extradition cannot take place. I hope that provides a sufficiently detailed explanation.

Question put and agreed to.

New clause 23 accordingly read a Second time, and added to the Bill.