My Lords, in moving Amendment 65, I will speak at the same time to Amendments 66 to 75. With this group, we come to Part 12 of the Bill, which is concerned with extradition. As this is the first time I have spoken at this stage of the Bill, I need to remind the Committee of my interest as a trustee of Fair Trials International. I am very grateful to that organisation for many of the real-life examples that underlie the amendments that I shall move to this part of the Bill in the next hour or so. I also acknowledge the help that I have had from Justice and several other interested parties.
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I spoke about my general concerns about Part 12 at Second Reading and I do not wish to make a Second Reading speech tonight. But I hope that the Committee will forgive me if on this first group of amendments I explain some of the more detailed background factors that underlie my concerns and that have led to my tabling these amendments. They are the framework into which the seven groups of specific amendments that follow will fit, like pieces in a jigsaw.
These amendments are concerned with what is known as a Part 1 warrant, more familiarly known as a European arrest warrant, or an EAW. While the EAW has had some undoubted successes, there have been concerns about its practical application. To their credit,
the Government asked Sir Scott Baker to undertake a review of the country’s general extradition arrangements, including specifically the operation of the EAW. Sir Scott Baker produced a report containing a set of recommendations. To their credit, the Government accepted some of them and to their additional credit they have gone beyond Sir Scott Baker’s recommendations in certain areas, such as the introduction of a forum bar. However, the Government did not accept all the Baker proposals and meanwhile the continuing operation of the EAW has led to further concerns about the way in which it is being practically applied.
A few minutes ago I referred to the successes of the EAW. It is incontrovertible that it has led to some very nasty people being returned to face justice in EU member states far faster than was possible under the legislation prevailing before the EAW was introduced. Nowhere is this more important and relevant than in this country’s relationship with the Republic of Ireland and its implication for the border in Northern Ireland. No doubt that is why the Government, having exercised their general opt-out over justice and security under the Lisbon treaty, have decided to opt back into the EAW directives, a decision I strongly support.
Understandably, governments of every persuasion have focused on the achievements that concern terrorists, serious criminals, paedophiles and so on. The overwhelming majority of our fellow citizens who become involved with the EAW do not fall into these high-profile categories. As I will attempt to illustrate with real-life examples, too often they concern what Edmund Burke called the “little platoons”: people who are caught up in a process that their knowledge, experience and contacts—unlike, for example, Members of your Lordships’ House—do not equip them to challenge.
What is the scale of this issue? Every day, about four of our fellow citizens are served with an EAW, and about three of these will be surrendered. It is with this group in mind that I have tabled these amendments. If we are to deprive one of our fellow citizens of his or her liberty and hand him or her over to another state for trial and possible imprisonment, which by any yardstick is a very fundamental decision, we need to be sure that the appropriate level of safeguards is in place. While safeguards undoubtedly exist, they do not yet provide a sufficiently balanced position. As many noble Lords are aware, I am not a lawyer, so some of my arguments may seem to those Members in your Lordships’ House who are learned in the law to be legally clumsy. On this occasion, I am afraid that I am the man on the Clapham omnibus, or at least the man in the saloon bar of the Dog and Duck.
In so far as the man on the Clapham omnibus is concerned about these matters he is reassured by the fact that there are two hearings before British judges as part of the EAW process. He has a touching faith in the British judicial system. Unfortunately, in large measure this confidence is misplaced, because the hands of a British judge, in hearing an EAW, are substantially tied. The first hearing that takes place within 48 hours of arrest is essentially entirely procedural: it concerns issues of identity and whether the person arrested is the right one, a point I shall return to in the
debate on my Amendment 94. It sets the date for the second hearing, normally within 21 days, and it decides whether to remand a person in custody or on bail, or to accept surrender if the person accepts the charge.
The second hearing is also highly restricted on the matters that the judge can take into account in determining whether the warrant should be executed. Here, there are some technical issues including double jeopardy and specialty, considerations of age and passage of time since the alleged offence was committed, and concerns about the physical and mental condition of the subjected person. What is not discussed are the facts of the case. So in as little as 35 days a person can be on their way to another jurisdiction, with all that that means for their family, their employment and indeed their whole life. In short, that is why I believe that proper safeguards need to be in place.
As I said at Second Reading, similar amendments were tabled at the Committee stage of this Bill in the other place. Not one was debated, because of the operation of the guillotine. Procedurally, the Government should have the chance to explain their thinking on this important issue of public policy.
With that perhaps overelaborate explanation of the background to my amendments I turn to the substance of this first group. As can be seen from the wording, Amendments 65, 66 and 67 seek simply to change the words “prosecution decision” to “decision to try” in that part of Clause 137 entitled “Absence of prosecution decision”. Amendments 70, 73, 74 and 75 are consequential amendments to the later parts of the clause.
This group brings us to an important issue raised by the different nature of the UK’s judicial system from most of those of our European partners. Along with Ireland and Malta, this country has a common law system, with a familiar adversarial judicial system where prosecution and defence parade their arguments before a judge and jury for them to determine. Other European states have an investigative system. This is not better or worse; it is just different. It does mean, however, that a decision to prosecute can mean a decision to continue to collect evidence that may or may not lead to a trial.
The current drafting is ambiguous and could be interpreted as allowing the execution of an EAW where a decision to prosecute has been taken, but a decision to try has not been. I am aware that under Section 2 of the 2003 Act and Article 1.1 of the EAW framework decision, an EAW is defined as a decision issued for the purpose of prosecution. However, I argue that the test for execution of an EAW should be whether the case is trial-ready in the issuing state. Concerns have been consistently raised about the lengthy pre-trial detention of those extradited prematurely as a result of EAWs being issued before the case is trial-ready.
A well known case is that of Andrew Symeou, a British student who was extradited to Greece in July 2009 to face charges in connection with the death of a young man on a Greek island. Andrew was extradited long before the Greek court was ready to try him and endured a year in appalling prison conditions before being granted local bail in Greece. Andrew was finally
cleared by a Greek court in June 2011, almost four years after the events in question, during which time he had not been able to continue his university studies and his family had had their lives turned upside down. The fact that a decision is taken at some stage to charge may mean that the issuing state intends to proceed to trial, but as Andrew’s case showed, what matters is whether the issuing state is ready to do so. Accordingly, these amendments set the test for executing the EAW as trial-ready.
Amendments 68 and 71 address the problem of too-early extradition by putting pressure on the requesting state to make use of other less disruptive measures, such as videoconferencing and temporary transfers. These amendments would ensure that the issuing state could not rely on its own refusal to use alternative arrangements, such as videolinks or temporary transfers, to justify extraditing the person in order to charge them. I have already referred to the different legal investigative and adversarial approaches. The Government’s objective in the proposed Section 12A(1)(a)(ii) and 12A(1)(b)(ii) is to cater for the situation in which a decision has not been made formally to charge the person, but only because their presence is required in order to do so. In some countries, such as Sweden, it is a basic defence right for the person to be charged in person. Thus the English and Irish courts have accepted that an EAW issued in such cases can nevertheless be considered to be for prosecution even though it may include a decision to charge taken in the future. However, I repeat that one of the dangers of the EAW system is that people may be extradited too early in the process, when the case is not trial-ready, resulting in prolonged pre-trial detention and uncertainty.
I have already mentioned Andrew Symeou. Equally, Michael Turner was extradited to Hungary in November 2009 and was held in a high-security prison for four months before being allowed to return home. He then had to bear the cost of repeated trips to Hungary while the case was investigated further. He was finally tried in October 2012, three years later.
The issuing authority might legitimately insist that the person be present in order to be charged but I am concerned that this might simply begin a protracted process between charge and trial. In these circumstances, the use of a temporary transfer under proposed new Section 21B would be more appropriate, enabling the person to attend and be charged and then return to UK while the case is readied for trial. Equally, if the law of the issuing state allows the remote attendance of a suspect using video technology, and this does not risk prejudicing the suspect by reason of poor quality or lack of recording, this option should be used. These amendments allow the judge to refuse extradition where the issuing state unreasonably refuses to consent to use either method.
Amendment 72 requires the judge to consider external evidence when determining whether there are “reasonable grounds” to believe that no decision has been taken to charge or try the person wanted on an accusation EAW. Section 2(3) of the 2003 Act already requires the Part 1 warrant to contain the statement that the person is accused of the offence, and it is possible to raise the issue of whether the EAW has been issued as an aid to
investigation. However, at present the courts will assume that if the EAW contains the statement in Section 2(3) of the 2003 Act that the person is accused, and is unambiguous in this wording, this correctly reflects the state of proceedings and external evidence will not normally be taken into account.
This approach is based on the mutual trust that needs to exist between judicial authorities, and the need to ensure that proceedings are swift and uncomplicated. There are concerns that under the current drafting of proposed new Section 12A no change to existing practice will result. It may be difficult for the requested person to establish that there are reasonable grounds for believing that no decision to prosecute has been taken if the EAW states unambiguously that the person is the accused and that the EAW was issued for the purpose of prosecution. In order to fulfil the intention behind the amendment, it should be specified that the judge should take into account external evidence, which might include documents from the case file or expert evidence on the state of the proceedings in the requesting state. The judge should also have sufficiently broad direction to be able to take into account evidence such as the past record of issuing states in this regard, as evidenced by other documented cases involving the same country.
To conclude, the Government’s proposed amendment of Section 11 of the Extradition Act by referring to a “prosecution decision” in Clause 137(1) has moved the game on, and I am grateful for that. But for the reasons explained, I do not think it goes far enough. In this very critical area, the decision to try must surely be the gold standard and these amendments will ensure this. I beg to move.