WEDNESDAY 4 JUNE 2003

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

  100. There is nothing in the bill or the treaty which would take care of that at all, is there? It would not be in bad faith if the person used grievous bodily harm and then the victim died, they would say the charge now goes up to murder and capital punishment awaits if you are found guilty of that, would they not?

  (Mr Regan) Yes. I think it would be bad faith given that the Americans know full well what our view is on the death penalty, but it is also worth pointing out that nothing in the treaty changes that, that is the position under the existing bilateral treaty in respect of assurances. The scenario you posit, if you assume that the Americans would behave in that way, can happen now, but it never has.

  101. We are talking about avoiding the consequence of a sentence of capital punishment, but there is a preliminary stage to that and that is to try and protect people against the risk of being exposed to such a sentence and they are convicted as a result of being represented by incompetent lawyers because the state in which they are tried does not provide an adequate system of legal aid or, if it claims to, does not provide adequate lawyers, that is what most of the Supreme Court cases seem to involve in America. My concern on this point is it is open to the defendant in UK proceedings to try and bring evidence on his own behalf, but under Article 6 of the Convention he would not have a fair trial in the state because the lawyers could not be guaranteed to be of reasonable competence. What about the requested State? Will the UK Government in its extradition dealings with America seek any assurances that in capital punishment cases the defendant who is extradited can expect to be given reasonable legal aid?

  (Mr Regan) The Extradition Bill provides that extradition is barred where it would breach a fugitive's ECHR rights. He will no doubt, seek and produce evidence, to show that his extradition should be barred on precisely those grounds. Those who are representing the requesting State, normally the Crown Prosecution Service but not automatically so, will no doubt seek to adduce counter evidence to show that the person's ECHR rights will be respected. It will be the district judge who will have to adjudicate on the competing evidence that is placed before him.

  102. So the Government do not propose to get involved in that?
  (Mr Regan) We are not a party to extradition, it is a fugitive against the requesting State.

  103. So it is open to you to ask of the American Government, if you are seeking extradition for a capital punishment case, what assurances they are going to give the requested State that reasonable representation will be given, is it not?
  (Mr Regan) It may be done through the diplomatic channels, but it is open to those representing the requesting State to seek evidence which they could put before the court to ensure that the case will not be thrown out on ECHR grounds.

  104. Minister, I am just reading the new Article 10, I am trying to work out how competition between applications for extradition under the European arrest warrant legislation and applications for extradition under the agreement with the United States are concerned will work together, how the priority will work out. I am not sure that I have really mastered the effect of the new Article 10(2). What is the status? Has this now been agreed as an amendment to the original text?

  (Mr Ainsworth) There has been some discussion about the primacy or otherwise of European extradition requests, whereas the position now is that the decision will be taken by the requested State taking account of those list items as to which should take primacy effectively. That is not totally settled yet.
  (Mr Welsh) Your Lordship asked the question about the French position and I think it would be fair to say that the minor amendment is designed to convince the French that should the European Union in the future decide that European arrest warrants should take primacy, we would not be bound by this agreement to set aside that primacy in the case of a serious request from the United States. So the review system in a sense is put into place in case at some stage in the future the European Union decides that the EAW will take precedence over any other request.

  105. What is the status of this? Has this been agreed subject to scrutiny?
  (Mr Welsh) That is the latest presidential draft.

  106. So it is a proposal?
  (Mr Welsh) Yes.
  (Mr Ainsworth) Which we are hoping will be agreed.

  107. It has gone through the negotiating channels so far as the Council is concerned, has it?
  (Mr Welsh) My assumption is the Presidency would not be putting it to Council unless they had checked it with the Americans first, yes.

  108. Thank you. I wanted to move on to the Mutual Legal Assistance Agreement unless any members of the Committee have got any further questions to ask on the Extradition Agreement. I wanted to ask a question about the application of this in capital punishment cases. If America is asking for mutual legal assistance for the purposes of a capital punishment case being tried in America then as I understand it we would have to co-operate. Is that not right?
  (Mr Ainsworth) We do not have to co-operate. We can take a decision on a case by case basis.

  109. Is there a reason for not expressly referring to and accepting capital punishment cases rather than leaving it to the case by case basis?
  (Mr Welsh) I think the American side found that difficult to accept.

  110. They found it difficult to accept that we should decline to help them in capital punishment cases. Could we not ask for the same assurances as a matter of practice?
  (Mr Ainsworth) We could do what we wish to do at the end of the day. This is a difficult area. Do we refuse, where the Americas are dealing with a capital punishment case, to offer any assistance in any circumstances whatsoever? Let us take an horrendous terrorist offence within the United States. Yes, potentially people committed a crime there, they have the death penalty, but before even thinking about the individual case presented to us are we going to flatly refuse in any circumstances to assist in that case whatsoever? I do not think that is a position that we would want to get ourselves into, but we do need to reserve the situation so that we can judge the merits of the individual circumstances.

  111. Case by case as you said?
  (Mr Ainsworth) Yes.

  112. Thank you. Article 4(1)(b)) of the mutual legal assistance provision has the expression "otherwise involved in a criminal offence, non-banks and transactions unrelated to accounts". These are rather broadly expressed concepts. Is there any clear meaning which has been agreed between negotiating parties as to what is meant by these terms or are they going to be dealt with on a case by case basis?
  (Mr Ainsworth) We take "otherwise involved" to mean someone who is under investigation.

  113. So it is limited to someone who is under investigation and "otherwise involved" would not be given a wider meaning than that?
  (Mr Ainsworth) We would require some assurance that there was an actual investigation going on.

  114. Of the individual?
  (Mr Ainsworth) We would not be allowing fishing expeditions to take place without the jurisdiction.
  (Mr Clayton) An innocent third party may be involved, my Lord, because their account might be used for money laundering without their knowledge and it would cover such a person.

  115. So it would not necessarily be an investigation in the criminal sense?
  (Mr Clayton) It is a broader investigation, but the person may not be the person being investigated.

  116. What about non-bank financial institutions?
  (Mr Ainsworth) Building societies?

  117. Most of them are banks now, are they not?
  (Mr Ainsworth) Bureaux de Change.

  118. "Financial transactions unrelated to accounts", I found that the most puzzling of all. What accounts?
  (Mr Ainsworth) Bureaux de Change. There are no accounts.

  119. Article 4(1)(b) of this agreement is drafted in discretionary terms so that Member States can, but need not, provide assistance under its terms. Does the Government have any particular intentions about this?
  (Mr Ainsworth) Where it is possible under UK law to identify account transactions which are held by institutions other than banks we would wish to provide assistance so long as there were proper grounds for the request and the assistance that is requested is proportionate and the capacity of different Member States and of the US in this regard is not identical and the provision is not mandatory on any of the states.