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Lord Mackie of Benshie: My Lords, I have a question before the noble Baroness sits down. I am very ignorant of these matters, but do I understand that if Albania wants to extradite a British citizen, it can do so without explanation?
Baroness Scotland of Asthal: My Lords, Albania will not have to provide prima facie evidence. When we debated these issues during the passage of the Extradition Bill, we went through all the safeguards relating to identity and all the matters that we shall put in place. Indeed, I hope that the noble Lord, Lord Goodhart, will be reassured by the fact that provisions are in place which would enable us not to extradite if the issues relating to human rights and other matters were breached.
Indeed, to comfort the noble Lord, Lord Goodhart, even further, I should say that the noble Lord, Lord Lester of Herne Hill, was very concerned about many issues, including what would happen in respect of the death penalty and how that would operate. At the request of the noble Lord, Lord Lester, the United Kingdom Government approached the United States Government for a definitive statement on the rights guaranteed to those who are extradited there. It may assist noble Lords if I read the response of the United States Government into the record:
- "Every person who is extradited to stand trial in the criminal justice system within the United States is entitled to the fundamental right of due process under the United States constitution. All extraditees have the right to a fair trial, before an impartial jury, and enjoy the right to counsel, the right to confront adverse witnesses, and the right to compulsory process to call witnesses favorable to the defense. No extraditee can be convicted except on the basis of proof beyond a reasonable doubt. Every extraditee has the right to appeal a conviction".
The promises that we have obtained from the Americans in the past, whether in relation to death penalty cases or otherwise, have, I believe without fail, always been adhered to. Therefore, history teaches us that, when dealing with specific cases, the Americans have made promises and can be relied upon to deliver what they say.
Earl Russell: My Lords, before the noble Baroness sits down, at the conclusion of my speech I asked her: if Guantanamo Bay is not an American system, whose is it? That question was not rhetorical; I should be very grateful for an answer.
Baroness Scotland of Asthal: My Lords, of course matters in relation to Guantanamo Bay are still very much in issue between a number of parties who are considering them. That does not cast aspersions upon those who are returned to mainland United States pursuant to the system of law that prevails in the United States of America and in each of the states. We accept, as noble Lords will know, that Guantanamo Bay is still an unresolved issue. It has not been settled in any way. I am afraid that that is about the best answer that I can give the noble Earl today.
On Question, Motion agreed to.
Lord Goodhart rose to move, That this House calls on Her Majesty's Government to withdraw the draft Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and lay a new draft order deleting the reference to the United States of America in paragraph 3 of the order.
The noble Lord said: My Lords, I have already spoken to this Motion. I beg to move.
Moved, That this House calls on Her Majesty's Government to withdraw the draft Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and lay a new draft order deleting the reference to the United States of America in paragraph 3 of the order.—(Lord Goodhart.)
4.1 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 120.
Addington, L.
Allenby of Megiddo, V.
Avebury, L.
Beaumont of Whitley, L.
Bridges, L.
Clement-Jones, L.
Cobbold, L.
Dholakia, L.
Emerton, B.
Ezra, L.
Falkland, V.
Fearn, L.
Finlay of Llandaff, B.
Geraint, L.
Goodhart, L. [Teller]
Harris of Richmond, B.
Joffe, L.
Livsey of Talgarth, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Mar and Kellie, E.
May of Oxford, L.
Miller of Chilthorne Domer, B.
Monson, L.
Naseby, L.
Northover, B.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Rodgers of Quarry Bank, L.
Roper, L. [Teller]
Russell, E.
Sandberg, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Wedderburn of Charlton, L.
Williams of Crosby, B.
Ahmed, L.
Allen of Abbeydale, L.
Alli, L.
Alton of Liverpool, L.
Amos, B. (Lord President)
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Bledisloe, V.
Boothroyd, B.
Boston of Faversham, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Gale, B.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Gray of Contin, L.
Grocott, L. [Teller]
Harrison, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hunt of Chesterton, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
King of West Bromwich, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Morris of Manchester, L.
Nicol, B.
O'Neill of Bengarve, B.
Ouseley, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Powell of Bayswater, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rees-Mogg, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Sainsbury of Turville, L.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Slim, V.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Strange, B.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tenby, V.
Tugendhat, L.
Turnberg, L.
Varley, L.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and Motion disagreed to accordingly.
4.12 p.m.
Baroness Scotland of Asthal rose to move, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].
The noble Baroness said: My Lords, I shall speak to this order together with the following two orders. I hope that I can be relatively brief as I believe that, unlike the order that we have just discussed, they do not contain anything very difficult or contentious. However, I shall respond specifically to the questions that have been indicated to me by the noble Baroness, Lady Anelay of St Johns, so I may speak more fully than I would otherwise have done.
As I mentioned, our aim is to bring the Extradition Act into force for 1st January 2004 to enable us to bring in the European arrest warrant on that date. The first of these orders is concerned with the designation of the UK's extradition partners under Part 1 of the Act; that is, those countries that will be operating the European arrest warrant from 1st January 2004.
As your Lordships will see, it contains seven names rather than the 14 that your Lordships might expect. Those seven countries are the countries that have confirmed that they will definitely be able to operate the European arrest warrant from the start of next year.
Your Lordships may find it helpful to know the latest state of play on implementation in the seven countries which will not make the 1st January deadline. France and the Netherlands expect to be ready by the end of January 2004 and Austria, Germany, Greece and Luxembourg expect to be ready by 1st April 2004 at the latest. Italy is also saying the same, although whether it will actually be able to achieve that remains to be seen.
We have put those countries that are able to operate the European arrest warrant from the first day of next year into category 1. The remaining EU countries are designated as category 2 countries in the order that we have just debated and will be moved up into category 1 when they begin operating the European arrest warrant.
The second order brings into force the codes of practice governing the exercise of police powers in extradition cases. The powers are very closely modelled on those in PACE, although with the necessary modifications to reflect the fact that the police are not actually investigating the offence.
As in PACE, there is a requirement to produce codes of practice; and these are they. We put them out for consultation over the summer. We are grateful to all
those who took the trouble to respond. Your Lordships might find it helpful to have an outline of the changes that have been made as a result of the consultation exercise.In addition to taking on board many of the detailed and helpful suggestions made by respondents, we have made the following key amendments. At the suggestion of the Metropolitan Police Service, we have restructured the codes to follow the structure and format of the revised PACE codes of practice. We hope that this will make the extradition codes of practice easier for police officers to follow. We also think that this format makes it easier to see where procedures in extradition cases differ from those in domestic cases.
The Law Reform Committee of the General Council of the Bar and the Metropolitan Police Service both suggested that the wording of the new caution was ambiguous and could call into question the admissibility of evidence seized in this country in proceedings abroad. We have therefore amended the wording of the new caution to follow the formulation of the caution in PACE Code C, Annex C, which contains a restriction on drawing adverse inferences from silence.
We believe that this formulation is familiar enough to officers to meet the concerns of those who felt the alternative extradition caution would be difficult to remember. We also believe that this caution is appropriate for use in extradition cases, where we cannot speak for the criminal justice system of the requesting country, and where the police will not question the person about the extradition offence.
At the suggestion of the Information Commissioner, we have made a number of changes to the sections relating to the use, retention, disclosure and destruction of photographs, fingerprints and DNA samples. We have also set out the person's rights in a fair processing notice. This is contained in the written extradition notice—Annex D to Code C—and will be given to every detained person by the custody officer.
At the suggestion of 95 per cent of respondents, including the Magistrates' Association and the Law Reform Committee of the General Council of the Bar, we have revised the section of the codes which prohibits officers using their search powers to investigate the extradition offence on behalf of the requesting country. We considered the alternative formulations proposed by the Metropolitan Police Service, the Bar Council and the Magistrates' Association and have amended the text.
Code B, Paragraph 1.3 now states:
- "Searches conducted under powers in the Extradition Act 2003 may only be undertaken for the purpose of obtaining evidence of the extradition offence for use in the prosecution of the person accused of the extradition offence. Officers may not investigate crimes on behalf of the requesting authority or territory, other than to speak to persons for the purpose of assisting establishing ownership or connection to the property. Items relating to a person's identity and offences other than the extradition offence, may, if found, be seized in accordance with the provisions of the Act and this Code".
We think that this formulation makes clear that officers may not undertake investigation of the extradition offence. We have taken care to ensure that this policy is reflected throughout the codes of practice. Code B contains detailed guidance on the information required before a judge may issue a search warrant, and Code C states explicitly that officers may not interview individuals arrested for extradition.
The final order designates those people who can apply to a UK magistrate for an outgoing European arrest warrant. As well as the police and a procurator fiscal, who are catered for on the face of the Act, we are giving this facility to the Crown Prosecution Service, the Inland Revenue, Her Majesty's Customs and Excise and the Serious Fraud Office. I cannot believe that there can be any serious objection to that.
I apologise for having spoken at some length, but three significant orders are before us, and I was anxious to answer as fully as I could the questions properly put to us by the noble Baroness, Lady Anelay. I hope that I have done that as comprehensively as she would require. With that explanation, I hope that your Lordships will agree to the three orders. I beg to move.
Moved, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)
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