WEDNESDAY 4 JUNE 2003

BOB AINSWORTH MP, MR CLIVE WELSH, MR RICHARD CLAYTON AND MR PAUL REGAN

  80. I see. No matter whether it is a jury decision or whether—
  (Mr Regan) We believe there are some states where for murders of certain categories, murder of a police officer for example, the court has to impose the death penalty. It is then discretionary whether or not it is carried out.

  81. And as the Minister commented, we have been having extraditions to the United States for a considerable number of years. Have assurances of this sort occurred, drawing the distinction between the death penalty imposed and the death penalty carried out?
  (Mr Regan) Yes. The assurance we get will be, depending on the state in question, either in the form of the Prosecutor saying he will not seek the death penalty or from the Attorney General or the Governor saying that if the death penalty is imposed they guarantee it will not be carried out. That has been the case for many years and there has never been a case where the assurance given has not been honoured absolutely.

  82. Constitutionally these assurances bind the successors of those who give them, do they? Governments do not normally bind their successors.
  (Mr Ainsworth) In the cases where it has not been carried out we need it from an executive body that is capable of honouring the commitment that is given.

  83. And the extradited person knows that this assurance has been given before he is transferred?

  (Mr Regan) Yes, it is public. It is made available in the extradition hearing and clearly he would otherwise be able to argue that his extradition was barred for ECHR grounds, so it would have to be disclosed to him for those reasons.

  84. Are there any practical problems that you are aware of that have arisen in this connection from past history?

  (Mr Welsh) No. In relation to the terrorist offenders where we had requests a year or so ago, we politely reminded the United States of the obligation and they were fairly upset that we felt the need to. They were aware, quite clearly, that they would have to provide the assurances in those cases as well.

  85. We have already been looking at Article 17 and there is a reference there to constitutional principles which may impose an impediment to fulfil its obligation to extradite. The ECHR was mentioned as constituting constitutional principles. Are there any other constitutional principles that this is intended to refer to? Was there a reason for not referring this expressly and implicitly either to the European Convention or to the Charter? Do some Member States have their own special constitutional principles?
  (Mr Welsh) Yes.

  86. Such as?
  (Mr Welsh) Portugal has a particular constitutional principle in relation even to mandatory life sentences and so there is a particular problem there.

  87. They cannot extradite someone to face a mandatory life sentence, can they?
  (Mr Welsh) Not one without review.

  88. That would apply to Lord Plant's example of two strikes and you are out.
  (Mr Welsh) Indeed, and here is their safeguard. Portugal is seeking to ensure that there are other safeguards, but their safeguard is here if they are unable to extradite.

  89. But so far as the United Kingdom is concerned, we have broadly an unwritten constitution, the ECHR is part of our constitution—
  (Mr Welsh) And the agreement is based on Article 6 of the TEU.

  90. Would we be in the same position as Portugal if we felt as strongly about two strikes and you are out as they feel about mandatory life sentences? Do we need to have more constitutional principles in writing?
  (Mr Ainsworth) We cannot invent constitutional principles for the purposes of extradition. If we had a long-standing practice in this country of not imposing life sentences then one would assume that we would have entered into exactly the same arrangements with other countries when it came to extradition as Portugal does now. We do have a long-standing objection to the death penalty here and that is why we ensure that situation.

  91. Do we not also have a constitutional practice, perhaps it has not become a principle yet, whereby life sentences without the possibility of review are not passed?
  (Mr Regan) Yes. Clearly that is how we operate in that context. We have never sought in our Extradition Treaties to put that principle in whereas the Portuguese, by contrast, because of what is in their written constitution, have always sought to include it in extradition agreements.

  92. There would be nothing to stop us putting that safeguard into the Extradition Bill as part of our specific legislation, to prevent extradition to the United States in those circumstances?

  (Mr Regan) Clearly Parliament can put whatever it likes into the Extradition Bill, that is a matter for Parliament.

  93. That is how it would be done in Britain, because we do not have a written constitution, it would have to be written into the Extradition Bill by Lord Wedderburn and others that are present today rather than in some other way. I think that is the answer.
  (Mr Regan) Yes.

  94. Minister, Article 11 provides for a simplified extradition procedure with the consent of the individual concerned and says that the consents can include the waiver of the protection of speciality. The point has been made that the European arrest warrant framework decision includes the express requirement that the consent must be given voluntarily and in awareness of the consequences. That does not appear here. Is there a reason for that distinction? Is it not a rather unsatisfactory distinction to have?

  (Mr Ainsworth) Article 11 of the EU-US Extradition Agreement does not apply to the UK because the bilateral treaty that we have already contains provisions on consent to extradition.

  95. So then one goes to the bilateral treaty for the purposes of comparison, it is Article 17, but that contains no such provision either.
  (Mr Ainsworth) The Extradition Bill contains provisions stating that consent may only be given in writing before an appropriate judge and that the person sought is the right person to be legally represented at the time of given consent.

  96. And that is in the Bill?
  (Mr Ainsworth) That is in the Bill.

  97. So far as waiver of protection of the Rule of Speciality is concerned, the way in which the Rule of Speciality is dealt with in the proposed agreement between the European Union and the United States is that if there is to be an extradition there can be added, once the individual arrives in the extraditing country, in the United States, other charges against him for which he could have been extradited. What is the position in regard to the death penalty where those are concerned? The point would not have been raised, would it, at the time the extradition was being considered here because the charges would not have been added at that point? What stops the United States, once an individual has been extradited to face a charge for which imprisonment is the appropriate sentence, having added a death penalty charge?
  (Mr Ainsworth) The provisions in the EU-US Agreement are not as comprehensive as they could be and that is a reason why we have to have our own Extradition Treaty with the US. Speciality is covered in that and we would always seek assurances from the US in cases where a crime can attach a death penalty sentence.

  98. He is extradited on a charge of serious assault, but of course if the victim subsequently dies a murder charge could be added. Yes?
  (Mr Ainsworth) But our assurances would seem to cover that situation.

  99. That would be a matter of invariable practice, would it?
  (Mr Regan) More often murder becomes manslaughter rather than vice versa, but in order to construct that scenario you have to work on the assumption that the United States would wilfully and deliberately act in bad faith and to get round what they know to be our strongly held concerns on this point. There is no indication that they have acted in that way in the past or have any intention of doing so. I would have thought in those circumstances they would come back to us and say, "We would now like to press a charge of murder. That may attract the death penalty. How do you feel about that?" and we would say we would want the assurance and there is no reason to believe it would not be forthcoming.