My Lords, I now seek to move Amendment 82 and will speak to Amendment 93. The background to these amendments is the existence of two different types of European arrest warrant: a prosecution warrant where a person is to be prosecuted for a crime, and a conviction warrant where a person has been convicted and has fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality check for prosecution warrants but not for conviction warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs.
Fair Trials sees many cases where suspended prison sentences imposed in respect of minor offences have been reactivated, several years after the person left the category 1 territory, with an EAW then being issued on that basis. This leads to the drastic measure of extradition being used inappropriately in respect of minor offences. There is the case of Natalia Gorczowska, who was convicted of possession of 4 grams of amphetamines and given a 10-month suspended sentence. She left to begin a new life; several years later, with no apparent reason for the delay, the sentence was reactivated and, still later, an EAW was issued, leading to significant expense and very nearly to a drastic impact upon her young son’s life. The Committee might like to note that, had the same conduct been the subject of a prosecution EAW, it would probably have fallen to be considered as one of minor gravity and unlikely to attract a lengthy prison sentence in application of the specified matters relating to proportionality to be considered before granting a prosecution EAW but not in the case of considering a conviction warrant.
This rather lengthy amendment to Section 21 allows a proportionality analysis, including a broad range of factors tailored to conviction EAWs. Applying the proposed test, the judge would be able to take into account the person’s conduct and other circumstances when addressing proportionality—for instance, whether the person deliberately evaded onerous community obligations by leaving the country, or whether the sentence was reactivated systematically, long after the person left the country and without his or her knowledge.
Amendment 93 provides discretion to refuse a conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person under a conviction EAW if that person is a British resident or national, and if it is possible for them to serve their sentence in the UK. It is worded in similar terms to Section 3(1) of the Repatriation of Prisoners Act 1984, which also provides for the issue of a warrant to authorise a person’s detention to serve or complete in the UK a sentence imposed by a foreign court.
Currently, UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted in a number of Fair Trials cases. Individuals have been extradited from the UK following conviction in another jurisdiction yet, following surrender, have been transferred back to the United Kingdom after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. Other member states including Belgium, Denmark, Italy and Poland have included this ground for refusal in their implementing legislation.
In the announcement that my noble friend referred to earlier, the Home Secretary stated:
“Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask”,
the issuing state’s,
“permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, 9/7/13; col. 179.]
The flaw in this approach is the possibility that the issuing state will simply not grant permission.
This amendment establishes a legal basis for the judge to refuse extradition and order that the person serves the sentence in the UK. This possibility is provided for in the EAW framework decision, in which paragraph 6 of Article 4 provides that the executing judicial authority may refuse to execute the EAW,
“if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.
Given this clear legal basis to provide the judge with discretion to refuse extradition and allow the person to serve the sentence in the UK, it is disappointing that the Government have opted for a slightly different policy, which is not placed on a statutory footing.
The reference to UK nationals in the Home Secretary’s announcement suggests that this reluctance may be because the Government wish the policy to benefit only UK nationals and not non-national residents. It follows clearly from the case law of the Court of Justice that, if the UK implemented paragraph 6 of Article 4 of the EAW framework decision, which applies to both nationals and those staying in or resident of the executing member state, it would not be able to reserve the benefit of this provision to UK nationals only. The drafting in the Bill appears to be a way of avoiding that constraint. However, the policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether or not it is placed on a statutory footing.
The policy adopted in lieu of implementation of paragraph 6 of Article 4 of the EAW framework decision is also an ineffective protection. If the issuing state refuses to use the prisoner transfer arrangements,
there is no recourse and the person has to be extradited in any event. As the Home Secretary said in her announcement, the proposed change,
“could have prevented the extraditions of Michael Binnington and Luke Atkinson”,
UK nationals who,
“were sent to Cyprus only to be returned to the UK six months later”.—[Official Report, Commons, 9/7/13; col. 179.]
to serve the rest of their sentences. However, this would have been dependent on the Cypriot authorities co-operating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had any legal ground on which to refuse extradition.
It would make more sense for the Government to put the policy on a statutory footing, providing proper protection for UK nationals and other residents whose social reintegration would be served by their serving their sentences in the UK, in line with the relevant provisions of the framework decision. These amendments allow the judge to identify residents on a discretionary basis; equally, Parliament could set reasonable statutory criteria. By example, I understand that Dutch law provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the European Union. I beg to move.