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Standing Committee A
Tuesday 17 June 2003
(Afternoon)
[Mr. Joe Benton in the Chair]
Clause 47
Transfer of UK prisoner to assist investigation abroad
Amendment proposed [this day]: No. 103, in
clause 47, page 27, line 28, leave out 'competent' and insert 'relevant judicial'.—[Mr. Paice.]
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Question again proposed, That the amendment be made.
The Parliamentary Under-Secretary of State for the Home Department (Caroline Flint): I welcome you to the proceedings this afternoon, Mr. Benton. We shared a short time serving together on the Select Committee on Education and Employment when I was first elected to the House and I am privileged to serve under your chairmanship this afternoon.
Clause 47 deals with outgoing requests from the United Kingdom for prisoners to be transferred from the UK to another country. In transfer cases, the competent authority making the transfer might not be a judicial authority in one of the countries involved. It need not even be a judicial authority. The mutual legal assistance convention requires that type of request to be transmitted between central authorities, not directly between judicial authorities.
When a prisoner is to be transferred from the UK under the clause, the request will be made by the prosecuting authority. The authority making the request will depend on the circumstances of the case. In a police investigation, the Crown Prosecution Service will issue the request on their behalf; in a Customs investigation, Customs will issue its own request as it is designated as a prosecuting authority. When a prisoner is transferred to the United Kingdom at the request of another state under clause 48, the request and practical arrangements will be handled by the UK central authority and the Prison Service, which will liaise with the prison in which the prisoner is held. There is no involvement of a judicial authority at the UK end.
While the authority at the requesting end of the process will be a competent judicial authority, a different non-judicial authority could—and, in the case of the UK, does—deal with the request at the executing end. It will therefore not be appropriate to refer only to judicial authorities for that reason.
We have not sought to define ''competent authority'' because we do not wish to exclude appropriate authorities that have the authority to deal with such transfers. We are satisfied that that will not lead to a situation in which we execute requests from inappropriate authorities. All such requests must
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be routed by the central authority, the Secretary of State, in the requesting and the requested state, providing a check at both ends of the process that the request comes from a valid and appropriate authority. I hope that I have reassured the hon. Member for South-East Cambridgeshire (Mr. Paice).
Mr. James Paice (South-East Cambridgeshire): Will the Minister confirm that the request will come from another country via the Government of that country before it reaches our Secretary of State? Clause 47 states that the Secretary of State
''pursuant to an agreement with the competent authority of a participating country'',
as though it is the authority that will make the request. The hon. Lady seems to be saying that that is not so, but that it will come via the Government of that country, so that we will know that it is a genuine request.
Caroline Flint: My understanding is that the central authority of the country concerned would be responsible for authorising the order. I shall seek further information on that point from my officials, who are writing quickly as I speak. I shall clarify the situation.
Mr. David Heath (Somerton and Frome): While the Minister is considering her response to the hon. Gentleman, perhaps she can answer this question. What would the situation be in the case of a federal authority when the prison system, or the prosecuting authority is under the control not of central Government, but of the Länder or whatever?
Caroline Flint: My officials suggest that if a request were issued by a judicial authority, it would come via the Government. The arrangement will be with a competent authority, although not necessarily the Government, and the initial request will be sent via the central authority. I hope that that clarifies matters. If it does not, I shall write to the hon. Gentleman to clarify for all Committee members what that means.
We are keen to ensure that things are dealt with properly, whether by the judicial authority or a competent authority, for example, the Prison Service. We would not want anything to prejudice either a case or the outcomes we want from the Bill.
Mr. Paice: I, too, welcome you to the Chair, Mr. Benton.
I am grateful to the Minister and I congratulate her on her quick learning and nifty footwork in the ministerial role. I think that she has answered the question, but I am still a little bit confused. She was, of course, unable to answer the intervention from the hon. Member for Somerton and Frome (Mr. Heath).
I share the Minister's objective. We do not want things to go wrong. Similarly, as I explained on introducing the amendment briefly before we broke for lunch, I am concerned—just on the off-chance—about a request from an authority that was not genuine being properly checked. That was why I sought an explanation of the definition of the word ''competent''. Perhaps the Minister could consider that matter again and write to the Committee with a clear explanation of how it would operate and who
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might be the authorities. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Heath: I beg to move amendment No. 144, in
I welcome you to the Chair, Mr. Benton.
I fear that this might fall into the class of amendments that I have tabled, to which officials respond, ''I do not know what he is talking about.'' That happened to the previous amendment and elicited quite a useful debate. Therefore, let me explain. I am simply probing the Minister on a serious point, rather than seeking an amendment to the Bill in the specific form that I have used.
The purpose of the clause is to allow people who are held by the British judicial system whose assistance is required in an overseas investigation or proceedings to go to that country in order to help. The prisoner, who may be on remand, has to agree to that request, after which the transfer would take place.
There could be instances in which somebody who was required to assist with an investigation abroad would be held in the UK, not by virtue of being in detention in a prison, but by other legal instruments now available to the sentencing authorities. For example, certain categories of offenders may have had their passports confiscated, or they could be in custody plus, which is being debated as part of the Criminal Justice Bill. There might be restrictions on their movements, or reporting requirements, that would prevent them from travelling abroad. They are not free agents. They cannot themselves answer a request to assist in an investigation abroad, but neither are they in the classes defined in clause 47(2)—a person serving a sentence, awaiting trial, or incarcerated for being in default of payment of a fine. I may be wrong, but I understand that there is currently no provision for British judicial authorities to accommodate such circumstances. It would be sensible if there were. If there were a request from overseas for someone who was prevented, by virtue of a sentence, from travelling abroad to assist with an investigation, there ought to be some way of temporarily setting aside that sentence, in the same way as is suggested for the transfer of prisoners, in order for that mutual assistance to be made.
I do not know whether alternatives are already in statute—if they are, I am not aware of them—and this has not been debated in the context of the Criminal Justice Bill where, as I have said, a new range of sentencing measures has been discussed. This is the obvious place for a provision to be made to allow a sentence to be temporarily suspended for the purpose of giving assistance abroad.
I hope that I have made a constructive suggestion to the Minister, because we should at least think about this.
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Lady Hermon (North Down): The hon. Gentleman raises a valid point. I rise to ask him to address one category of prisoner—those who were released under licence and strict conditions under the Belfast agreement. Could the Republic of Ireland call things into question and require one of those prisoners to go to the Republic of Ireland?
Mr. Heath: As always, I am grateful to the hon. Lady for bringing her experience in Northern Ireland to bear. I do not know the answer to that, and I wonder whether the Minister will have one to hand because it is a more complex issue than it might at first appear to be.
I hope that this is a helpful amendment in terms of eliciting a debate. It might be necessary to return at a later stage with proposals to fill in the lacuna in the present arrangements.
Caroline Flint: It will be useful to try to clarify this situation. In preparing for this afternoon's exchange, I and my colleagues were trying to think of examples that would be relevant to the points that the hon. Member for Somerton and Frome raises. One such example that we came up with was if someone has been found guilty of football hooliganism, and is therefore barred from leaving the country. However, during our discussions on that, we felt that if someone were in custody—for example, they could be a prisoner and already have that restriction placed upon them—the fact that they would be in custody would mean that there would not be free access to travel and travel would be under supervision and in a custody situation.
Clause 47 provides for us to transfer prisoners abroad to assist with UK investigations into an offence that has been committed in the UK. It is unlikely to be used frequently, but it could be used where, for example, a prisoner is required to identify a site or participate in an identification parade overseas. Existing provisions under the Criminal Justice (International Co-operation) Act 1990 provide for prisoners to be transferred from the UK to another state at that state's request and from other states to the UK at our request. This new provision—along with clause 48—implements new obligations under the mutual legal assistance convention that build on and extend those existing arrangements for the transfer of prisoners.
This amendment is unnecessary. For the transfer to take place, the competent authorities of both participating countries need to agree the terms of the transfer so that custodial provision can be made in the requesting state. To safeguard the rights of the prisoner, subsection (4) specifies that a prisoner, or someone acting on their behalf, must provide written consent to agree to be transferred in this way.
Amendment No. 144 would impose a limitation that the subsection applies to a prisoner
''subject to any other restriction applied by a court in the United Kingdom that might prevent him from travelling''.
That is unnecessary. For any prisoner to be transferred, there must be an agreement between the competent authorities here and in the country to which they are to be transferred. Furthermore, these outgoing transfers will be made at the request of the
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UK authorities. If a prisoner were not allowed to travel, it is clear that they could not be transferred—that would be a breach of the order. It is difficult to envisage the circumstances in which someone in custody will be subject to specific restrictions on travel, as they will clearly be unable to travel as they are in custody anyway. I hope that that has clarified our position.
The provision covers a specific requirement under the mutual legal assistance convention and the Council of Europe's second additional protocol to transfer prisoners. There may be other categories of persons who are not allowed to travel, but we cannot request their transfer overseas on the basis of the agreements that we are implementing.
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