Anti-social Behaviour, Crime and Policing Bill Debate
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Lord Taylor of Holbeach
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Anti-social Behaviour, Crime and Policing Bill
Lord Taylor of Holbeach Excerpts(11 years ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I thank the noble Baroness, Lady Smith, for the way in which she has contributed to the debate. All noble Lords have recognised the seriousness of this issue. I understand that all noble Lords who have spoken have tried to exercise their best judgment in this particularly sensitive area. My noble friends Lady Hamwee and Lord Avebury, the noble Baroness, Lady Kennedy, and my noble friend Lord Lester—I am sure we all wish him a speedy recovery in his absence—have all raised a number of issues through their amendments.
As has been pointed out, the independent reviewer of terrorism legislation, David Anderson QC, has recently made some recommendations for further reforms to the powers contained in Schedule 7 to the Terrorism Act. These recommendations, as my right honourable friend Damian Green reported, are being considered by Ministers. We are grateful to the independent reviewer of terrorism legislation for his report.
I have to say that, as Mr Anderson has also observed, there is a limit to how far these matters can be considered before the conclusion of the judicial review proceedings in the case of David Miranda. That being the position, while I welcome the opportunity to air these important issues in debate now, I propose only to set out the Government’s preliminary view of the amendments before us today. Subject to the timing of a judgment in the Miranda case, I hope to give a more definitive view before the Bill moves on to Report—I will make sure that noble Lords are aware as soon as we are in that position.
As the noble Baroness, Lady Smith, invited me to do, I begin by touching on Amendments 56YJ and 56YK, which deal with some complex issues. The first of these is around safeguards for legally privileged and related material and the use of admissions in criminal proceedings. It is right that the Government are considering these matters and they are doing so now. There is no need for the Bill to require that consideration in future.
I would like to be clear that the current compulsion under Schedule 7 to the 2000 Act to answer questions means that admissions made in an examination would not normally be considered admissible in criminal proceedings. Both the High Court and the independent reviewer of terrorism legislation have suggested that a statutory bar be introduced to this effect, and this is something that we are examining carefully.
It is right that the independent reviewer of terrorism legislation makes recommendations, but Amendments 56YK and 100A seek to tie the hands of the Secretary of State by, in effect, requiring her to implement the recommendations of the independent reviewer. It is for the Government and Parliament to decide what legislative changes should flow from the independent reviewer’s recommendations. Given the importance of these issues, any such legislative proposals should be subject to full parliamentary scrutiny—as with the provisions in this Bill—rather than implemented through secondary legislation, as my noble friend has suggested in Amendments 56YK and 100A.
Amendments 57 and 58 deal with fundamental principles of the powers. First, Amendment 57 seeks to qualify the definition of the purpose for which these powers can be used. The legislation is already clear: they are for the purpose of determining whether a person appears to be someone who has been concerned in the commission, preparation or instigation of acts of terrorism.
The noble Baroness, Lady Kennedy, has expressed concern that the powers may be used in a discriminatory way. Accordingly, Amendment 57 also includes requirements on collecting data. Requiring examining officers to collect data on all protected characteristics from all individuals examined under Schedule 7 would be both very intrusive and extremely bureaucratic. It would also prolong the majority of examinations, of which 63% are completed within 15 minutes. There is a question as to how useful such data would be.
Direct comparison with the UK population is not really relevant here. A significant proportion of those who travel through ports are not UK residents. The use of the powers is based on the current terrorist threat to the United Kingdom, meaning that certain routes are given greater focus. Consequently, some ethnic groups may be more likely to be examined, but not because the powers are being used inappropriately. As the independent reviewer of terrorism legislation reported in his recent annual report:
“If the power is being properly exercised ... one would expect”
that those examined, in terms of breakdown, would,
“correlate not to the ethnic breakdown of the travelling population, but rather to the ethnic breakdown of the terrorist population”.
He went on:
“Police are however entitled and indeed required to exercise their Schedule 7 power in a manner aligned to the terrorist threat. As in previous years, I have seen no evidence, either at ports or from the statistics, that Schedule 7 powers are exercised in a racially discriminatory manner”
That said, we are working with the police and the Equality and Human Rights Commission to find a balance between increasing transparency without increasing the bureaucratic burden. I would also like to reassure the noble Baroness that the statutory code of practice for examining officers makes clear that someone cannot be examined based solely on their ethnicity or their religion.
The final element of Amendment 57 would remove the compulsion on individuals examined at ports and airports to provide information. This would fundamentally undermine the whole purpose of the legislation. Schedule 7 examinations have led to individuals being convicted for terrorist-related offences and have produced information which has contributed to long and complex intelligence-based counterterrorist investigations and the disruption of terrorist activity. If someone could simply refuse to answer questions, the utility of the provision would be fundamentally brought into question.
Amendment 58 seeks to introduce a reasonable suspicion test to be met before an examining officer may detain a person under Schedule 7. Again, this would undermine the capability of the police to identify individuals who are involved in terrorism as they passed through our ports and borders. Examinations are not simply about the police talking to people who they know or already suspect are involved in terrorism. They are also about talking to people travelling to and from places where terrorist activity is taking place or emerging to determine whether those individuals appear to be involved in terrorism, whether that is because they are or have been involved, are going to become involved or are at risk of becoming involved either knowingly or unknowingly.
For those reasons, I am not persuaded that it would be right to introduce a test of reasonable suspicion. I am pleased that my noble friend Lord Faulks has been able to explain that the Joint Committee on Human Rights has supported this position. However, the independent reviewer of terrorism legislation has recently recommended that detention be permitted and continue on periodic review only when an officer is satisfied that there are grounds for suspecting that the person appears to be a person concerned with terrorism. We are reflecting on this recommendation ahead of Report.
Amendments 59, 60 and 61 would further reduce the maximum period of detention. The police need time to carry out checks and questioning. The person may have a lot to say, detailed or complex questioning may be required, inconsistencies in the person’s account or documentation may need to be understood, or time may be needed to allow the person to consult privately with a legal adviser or to allow for interpretation. We are already reducing the maximum period by a third but there is a balance to be struck, and for that reason I do not believe that it should be reduced further.
Amendments 57A, 61A, 61B and 62 seek to restrict examining officers’ powers in respect of the property of people who are examined. The power to search for and examine property, including on personal electronic devices, is an essential part of the Schedule 7 powers. As the independent reviewer of terrorism legislation has observed,
“it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable”.
New paragraph 11A of Schedule 7 to the 2000 Act, by clarifying the law, meets a requirement of the European Convention on Human Rights that interference with convention rights be in accordance with law that is adequately accessible and foreseeable. Amendment 62 would take away that clarification.
On Amendment 62A, noble Lords will understand that ports, airports and international rail terminals are quite different from police stations, and, as such, recording facilities are not always going to be available. If recording were mandatory, more individuals would be liable to being transported from the port to a police station where facilities are available, extending the duration of the examination. The questioning of any person detained for examination under Schedule 7 at a police station already falls under a code of practice for the video recording of interviews.
Amendments 63, 64 and 64ZA relate to areas where we are already introducing reforms through the Bill. While the Bill ensures that all persons detained under these powers will have a right to consult a lawyer and to have someone informed of their detention, Amendment 63 would extend those rights to everyone examined. As I have explained, some 63% of examinations last less than 15 minutes. More than 96% are concluded within an hour. Extending statutory rights to all those being examined, even briefly, would create an unnecessary burden and could well lead to longer examinations than are necessary. I would also like to remind noble Lords that the Bill already ensures that anyone examined for more than an hour must be formally detained, so there is no question of prolonged examination without these rights applying.
“Powers of community support officers
Schedule (Powers of community support officers) (which amends Part 1 of Schedule 4 to the Police Reform Act 2002) has effect.”
Lord Rosser
We indicated at Second Reading that we intended to propose a new clause on this issue since it was clear that action had to be taken to address how covert policing operations were authorised and managed. Of course, we support undercover policing, since such operations are a vital part of the fight against organised crime and terrorism and are essential in keeping communities safe. We recognise the dedication and bravery of those officers who undertake this work. However, any such operations must be subject to the highest ethical and operational standards. That is essential for both their operational effectiveness and public confidence. Our amendment today, therefore, seeks to deal with the issue of accountability.
There are two cases that highlight how important it is that changes of the kind that we are proposing are made. The first is the case of Mark Kennedy who, as a police officer, infiltrated—I think that is the word—protest groups over a period of years: groups which said that they were involved in lawful demonstrations, rather than crime. The former policeman, it appears, had relationships with women in the protest movement and travelled to eco-protests across Europe. He later told a Channel 4 documentary of his remorse, including his regrets about and feelings for a woman with whom he had had a long affair. HMIC reviewed the activities of Mark Kennedy and other undercover officers and stated that his actions had led to the collapse of a trial of environmental protesters and that he had “defied” management instructions. The report found that Mr Kennedy had helped to unearth “serious criminality”. However, Mr Kennedy said that, while the subject had never been broached directly, it was “impossible” that his superiors had not known he was having a sexual relationship with some protesters. The report suggested that an independent body might be required to authorise such undercover operations. It also said that Mr Kennedy was inadequately supervised and that oversight of undercover officers needed to be strengthened.
The second case is that of the Lawrence family. Twenty years ago, Stephen Lawrence was murdered at the age of 18. He was, of course, the son of Neville and Doreen, who is now my noble friend Lady Lawrence of Clarendon, a Member of your Lordships’ House. Stephen was cruelly murdered by racists and there was evidence of racism in the way the police inquiry was conducted. Serious allegations have now been made that the police spied on the Lawrence family with a view to discrediting them. Peter Francis, a former undercover police officer and a member of the somewhat controversial Special Demonstration Squad, has spoken of his activities as part of an operation to spy on and attempt to smear the Lawrence family.
These two cases and other incidents have led to serious concerns about the accountability of the undercover police operations that were undertaken and raised questions about the accountability of future undercover police operations. Our amendment seeks to ensure that all long-term undercover operations are signed off by a relevant independent body, to ensure that, where needed, covert operations are used proportionately, sensitively, only when necessary and with clear and improved accountability arrangements. Additionally, we do not currently have effective oversight of these operations. There are various options we can explore and we hope that the Government will look at these options carefully. Judicial oversight is just one that could be considered.
There also appears to be an anomaly, because currently, if the police or security services want to enter—perhaps to break in, to bug a room or to intercept a phone call—they need justification that to do so is in the interests of national security in order to get a warrant. Attaining a warrant requires judicial approval. However, those undercover police officers who entered into relationships in an attempt to retrieve certain information needed no warrant.
Of course—and we appreciate this—undercover operations vary. Some will be as short as an hour or so and may involve relatively minor matters; it would be impractical to ask for independent approval for all such operations. However, our proposed new clause is intended to target long-term covert police operations, and these can span from six months to 12 months or even several years. When such operations are undertaken, there needs to be clarity about the goals, the methods and the priorities. Therefore, there should be independent approval prior to any such lengthy operation. It does not necessarily have to come from a judge, but it must be truly independent, and the very process of seeking such approval would help to ensure proportionality, and clarity of objectives and methods. Our proposed new clause would help to ensure that operations such as the hugely inappropriate and totally wrong campaign against the Lawrence family cannot take place again. That campaign and operation against the Lawrence family showed appallingly bad judgment. Surely, we all want to ensure that any operation undertaken is accountable, justifiable and in the wider public interest.
On Report in the other place, the Minister Damian Green stated that it was the Government’s,
“intention to legislate to enhance oversight of undercover law enforcement officer deployments”,
and this could,
“be done through secondary legislation”.
He outlined the Government’s proposals to increase accountability and oversight. However, proper scrutiny is necessary and we need the opportunity to scrutinise those proposals as part of this Bill. Damian Green promised in the House of Commons that he would,
“lay the appropriate order before the House shortly”.—[Official Report, Commons, 15/10/13; col. 634]
As I understand it, we have not yet seen the order, although I may be wrong in saying that. However, we feel that it would be much better to deal with an issue of this importance in what the Government regard as a flagship Bill on crime and policing. I hope the Minister, when he replies, will be able to give a helpful response.
Lord Taylor of Holbeach
My Lords, I am very grateful to the noble Lord, Lord Rosser, for tabling this amendment because I agree with him that the whole question of undercover policing is very important. I do not think that any noble Lord should be in doubt that covert techniques, including undercover policing, are an important weapon in the fight against terrorism and other serious and organised crime. Undercover police officers play a crucial role in keeping us all safe. It is difficult and dangerous work and I welcome this opportunity to pay tribute to all who undertake it.
The new clause proposed by the noble Lord seeks to introduce a system of independent authorisation for undercover policing operations. I do not believe there is any great difference of view between the noble Lord and me on this point. We both believe that there must be proper safeguards to ensure that these covert techniques are used only where appropriate and that the mechanisms for approving all such deployments are fit for purpose. However, I hope that it will help noble Lords if I set out why I do not believe that this amendment is required, not least because the Government have already instigated changes that are designed to meet the concerns that have arisen in the light of some allegations of past misconduct, which were sympathetically described by the noble Lord, Lord Rosser.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000, commonly known as RIPA, which stipulates that the use of an undercover deployment can be authorised only at a senior level within the police force or other law enforcement agency concerned. In giving an authorisation, the authorising officer must balance the seriousness of the crime being investigated, and the value of the evidence likely to be gathered, against the right to privacy of the person under investigation and of those others who are likely to have their privacy intruded upon, such as family, friends and other associates.
Her Majesty’s Inspectorate of Constabulary conducted a rigorous and independent review of undercover policing last year and made a number of recommendations to improve the way authorisations and deployments are made. Earlier this year, the inspectorate reported on the progress made in implementing its 2012 report and was generally positive about the work already done. The noble Lord referred to the role played by my ministerial colleague, the Minister for Policing, Criminal Justice and Victims, the right honourable Damian Green, who announced to the Home Affairs Select Committee our intention to strengthen this regime to enhance oversight of undercover law enforcement officer deployments. I am pleased to say that the order to give effect to this commitment was laid in October and is due to take effect on 1 January next year.
I will set out the effect of the changes that the Government are bringing forward. First, law enforcement agencies will need to notify the surveillance commissioners —all retired judges—of undercover deployments. In practice, what will happen is that a surveillance commissioner will see the same papers that were presented to the authorising officer and will have the opportunity to raise any concerns. Noble Lords will appreciate that most deployments are short-term in nature and, in many cases, last no more than a few hours. However, some are long-term, and these may give rise to the greatest concern. Initial authorisations last for a maximum of 12 months. Accordingly, the second change we are putting in place is that an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner—who, I remind your Lordships, is someone who has held a senior judicial office.
In addition, we are increasing the rank of the authorising officer. Deployments of undercover law enforcement officers will henceforth need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent, as well as by a surveillance commissioner, as I have already explained. The seniority of those who will now be required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. We believe that these changes will promote the highest standards of professionalism and excellence in this most sensitive area of policing. We also believe that they will achieve the aims of this proposed new clause by ensuring judicial scrutiny of long-term deployments while preserving the flexibility of law enforcement agencies to act swiftly where necessary.
Covert activity is a necessary part of the armoury of law enforcement but it is absolutely right, as is the intention behind this amendment, that it must be properly controlled and regulated. That is why the Government are making the changes that I have described. In the light of these changes and the new regime that we are now putting in place, I do not believe that this amendment is required and I hope the noble Lord will withdraw it.
Lord Rosser
I shall of course withdraw the amendment but, before I do, I have one question for the noble Lord. Does the proposal that is to be implemented in relation to the role of the surveillance commissioners also include, for particularly lengthy covert operations lasting many months, any sort of regular oversight of the operation by the surveillance commissioners, or is it a case of getting their approval beforehand and, once that prior approval has been given, that is the end of the independent oversight?
Lord Taylor of Holbeach
The prior approval is of course designed to make sure that there is no extension without the surveillance commissioner being a party to the decision. I cannot give the noble Lord a clear answer on this but I would suspect that the surveillance commissioner could make his approval dependent on an update at some point during the extended 12-month period. I will write to the noble Lord and give him some indication of how this would operate. I understand entirely what he is getting at and am quite happy to investigate and provide that to him.
Lord Rosser
I thank the noble Lord for his reply and for his offer to write to me on the issue that I have just raised. I will obviously want to reflect on the reply that we have received but I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, I am grateful to my noble friend Lord Hodgson for giving us a chance to debate these issues. He has tabled a number of amendments—some in this group and some to follow—and it was good that he was able to put the different groups in context of the overall value of the European arrest warrant. The Government attach great value to this facility but are seeking to improve its operation by provisions in the Bill.
As the Committee will be aware, the Home Secretary announced in July that she would introduce legislation to reform the operation of the European arrest warrant in the UK and increase the protections offered to those wanted for extradition, particularly British citizens. My noble friend has drawn attention to circumstances in which the system did not operate as we would have wished. His amendments would revise the resulting provisions in the Bill.
Clause 137 will require the UK courts to bar surrender of the requested person where the issuing state has not taken both a decision to charge and a decision to try the person, except where the sole reason that such decisions have not been taken is that the person’s presence in the country is required in order for those decisions to be taken. This will have the same effect as that intended by my noble friend’s Amendments 65 to 67, 69 and 70 and 73 to 75; that is, a person will not be surrendered before the issuing state is ready to try the person. However, the clause has the added benefit of requiring the issuing state to prove that both a decision to charge and a decision to try the person have been made, if the judge has any doubt that either—or both—of those decisions has been taken. This provides greater protection for the requested person.
I can also reassure noble Lords that when deciding whether there are reasonable grounds for believing that the issuing state has not taken these decisions, the judge can consider any factors or external evidence that could inform his or her decision. We do not believe it is necessary to set this out in explicit terms, as Amendment 72 would.
Finally, Amendments 68 and 71 seek to add a further restriction, so that extradition could not occur where the person’s presence was required in the issuing state for the required decisions to be made, if that could have been achieved by temporary transfer or video-conferencing. I understand my noble friend’s concern about the need for safeguards. However, I do not believe that this additional restriction is necessary. As I have explained, Clause 137 already ensures that extradition cannot occur in the early stages of an investigation when the issuing state is nowhere near a decision to try.
In addition, if the judge is satisfied that the sole reason that a decision to charge and a decision to try have not been taken is the fact that the person is absent from the issuing state, there is no reason why the person should not be extradited so that those decisions can be taken and the case proceed to trial. In these circumstances, requiring temporary transfer simply to charge does not seem to us to achieve anything in terms of safeguards and seems unnecessary.
Having heard these explanations and assurances and the explanation of how Clause 137 is designed to meet my noble friend’s concerns, I hope he will be able to withdraw his amendment.
Lord Taylor of Holbeach
My Lords, as my noble friend Lord Faulks has just said, Clause 138 is dedicated to addressing this issue and bringing the fundamental concept of proportionality into extradition matters. Much of what my noble friend Lord Hodgson of Astley Abbots proposes has already been included within the Extradition Act 2003, as it will be amended by the Bill.
It is important to recognise that the judge will consider proportionality in addition to the existing bars to extradition, such as the passage of time and human rights considerations, including any impact on family and private life. Consequently, new paragraphs (d) and (e) as provided for in Amendment 78, which seek to merge these existing considerations into the proportionality bar, are unnecessary and would have little practical impact.
Turning to the proposed new paragraphs (f) and (g), which relate to the cost of proceedings in the UK and the duration and cost of proceedings in the issuing state, I do not believe that those considerations are relevant. The proportionality bar is designed to provide additional protection to those whose extradition is sought. It is appropriate that the matters concerned should relate to the alleged crime and the potential impact on the person concerned. Of course, costs are an issue for us all, and that is why the totality of our proposals is designed to improve the workings of the Extradition Act, including reducing unnecessary delays. However, costs to the UK arising from the extradition process should not mean a denial of justice where it is right that a person is extradited. On new paragraph (g), the costs and the duration of proceedings in the issuing state are a matter for the issuing state.
New paragraph (h) would require a consideration of the public interest. That is implicit in any consideration of extradition by the courts, which look at a range of factors alongside the proportionality bar. Taken together, the statutory bars to extradition provide a broad public interest test, so it is not necessary to include a separate test here in the Bill.
Finally, new paragraph (i), which refers to other matters that the judge believes relevant, is too open-ended and leaves too many issues that could be considered. It could lead to duplication and potential delay as a result of proportionality considerations overlapping with other considerations. My noble friend Lord Faulks talked about the complexity of these issues and the opportunity that he believed the provisions give for judicial consideration, deliberation and challenges. I think that the proposals in the amendment would complicate the matter further. I must emphasise that the proportionality bar is one among a number which must be considered already, not least whether extradition would be compatible with the requested person’s human rights.
Let me assure my noble friend that, in addition to the provisions in Clause 138, we will also take a more pragmatic approach to our administrative processes when an EAW is received. This will ensure that the most trivial requests are identified and, where appropriate, dealt with administratively before even getting to the courts. The aim will be to work practically with other member states to identify alternative solutions for trivial requests.
My noble friend Lord Faulks asked: why not merge proportionality and human rights? The proportionality bar deals specifically with the proportionality of extradition as a way to deal with the conduct alleged. Proportionality is indeed a factor when considering interferences with various rights under the ECHR, but it is considered when examining the specific rights one at a time. Our bar adds to that, but deals with the wider issue of human rights within the EAW.
I hope that both my noble friends are happy with the reassurances that I have given them and that my noble friend Lord Hodgson of Astley Abbots will be content to withdraw his amendment.
Lord Hodgson of Astley Abbotts
I am grateful to my noble friend. He rightly chided me about the list of matters in Amendment 78 and the wide-ranging nature of my proposed new paragraph (i), which would insert the text,
“any other matter which the judge considers relevant”.
Although I entirely accept that, I do not understand why three matters are chosen in subsection (3) and why a judge must not take any other matters into account. That seems to me to be erring on the other side of the argument. I hope that he will forgive me if I say that, when I hear Ministers say, “We should be pragmatic about this”, it does not reassure me, because in this area, where we are dealing with people’s liberty and livelihoods, pragmatism can go awry.
Lord Taylor of Holbeach
I understand the complexity of the issues that my noble friend is attempting to address in the amendments. If he feels it helpful for me to write a fuller explanation than I am able to give the Committee today, I would be very happy to do so. It may be easier if I do that; I hope that my noble friend will accept that.
Lord Hodgson of Astley Abbotts
Of course I would be delighted to receive a letter from my noble friend. That would also enable me to reflect fully on what has been said, take expert advice on the technical matters which we are discussing this evening and decide whether to take the matter further. In the mean time, I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, in moving Amendment 77, I shall also speak to Amendments 79, 80, 81 and 87. This set of amendments keeps us in the area we have just been talking about: one of the three specified matters. The amendments emphasise the importance of less coercive, less disruptive measures than a full European arrest warrant. Where a state issuing an EAW refuses to use them, the judge could take that refusal into account before granting an EAW.
New subsection (3)(c), which sets out the third of the three matters we have just been discussing, currently reads,
“the possibility of the relevant foreign authorities taking measures that would be less coercive”.
Amendment 77 replaces “possibility of”—a pretty low test, in my view—with “availability of”. Amendments 80 and 81 are essentially consequential.
The assumption underlying the provision relating to less coercive measures is that the severely restrictive measure of extradition, involving deprivation of liberty and the physical transport of a person away from home and family, should be used only as a last resort. The issuing state should therefore use that mechanism only when other, less restrictive measures are unavailable. If other such measures are available—for instance, because of the existence of mutual legal assistance mechanisms or, once it is negotiated, the European investigation order—extradition should be refused if they have not been used. The reference to the possibility of using such alternative measures may result in an issuing state avoiding their use due to a lack of resources and/or bureaucratic difficulties in liaison between the competent authorities of the issuing state and the judicial authority that issued the EAW.
I argue that, although the EAW system provides for extradition between judicial authorities, the physical transfer of a person under an EAW is still a process between two EU member states which are, as a whole, bound to observe the principle of proportionality. All their authorities, such as ministries of justice or the interior—where these are responsible for mutual legal assistance requests—should, therefore, be jointly expected to search for alternative solutions before choosing the heavy-handed option of extradition. Accordingly, if an alternative is available, under bilateral or multilateral arrangements between member states, this should be used before the EAW.
Amendment 79 would ensure that, if there are alternative mechanisms available to the issuing state, its failure to use them will always result in the refusal of the EAW, irrespective of the gravity of the offence or any other matter. The inclusion of the less coercive measures test appears to rest on the assumption that the step of issuing an EAW—which involves deprivation of liberty and serious human impact—should be taken as a last resort. The responsibility is on the issuing state to use less coercive measures if these are available. In the handbook on how to issue an EAW, to which I referred, the section on proportionality encourages the authority considering an EAW to use alternatives, including mutual legal assistance, videoconferencing or a summons. The logic that less restrictive alternatives should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The amendment therefore ensures that extradition is always considered disproportionate if other measures are available.
The case of Andrew Symeou demonstrates the need for it to be made clear that alternatives should be used in preference to the EAW, irrespective of the offence at issue. The Greek police and prosecution authorities could have made use of mutual legal assistance; for instance by asking UK authorities to obtain evidence from the witnesses who had allegedly incriminated Andrew. These witnesses would have been able to explain that they had been subject to police brutality and did not stand by their earlier evidence, which had been taken under pressure and without the assistance of an interpreter. Instead, the Greek authorities opted to have an EAW issued, requiring Andrew’s extradition to Greece to face trial for allegations which might have been found to be without basis much earlier if MLA had been used. The English court should have been able to refuse Andrew’s extradition on the ground that alternative measures were available. I beg to move.
Lord Taylor of Holbeach
My Lords, as my noble friend explained, his amendments in this group seek to widen yet further the proportionality bar to extradition in Part 1 cases. As I have already indicated, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which, as I have already said, is a fundamental principle of EU law.
Amendments 77, 79, 80 and 81 would require a judge to consider whether the requesting state has less coercive measures available to it. If so, the judge must bar extradition on proportionality grounds. However, even where such measures may exist, they may not be appropriate in each case, depending on the nature of the crime and other factors such as relevant previous criminal history. It would not be right to require a judge to bar extradition wherever less coercive measures are available. I therefore prefer the existing subsection (3)(c) of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality.
Amendment 87 to Clause 140 is consequential on the amendments to Clause 138. It would require a judge to conclude that less coercive measures were available if a person had made a request for temporary transfer, as envisaged by Clause 140, but the issuing state had refused that request unreasonably. This would mean that the judge would have to bar extradition on proportionality grounds. This would require our courts to make an assessment of the rationale of a decision made by the authorities in another member state. Given this, we do not think it appropriate automatically to link a decision not to agree to a temporary transfer with the consideration of proportionality. The EAW framework decision is clear that temporary transfer must be agreed by mutual consent, and it is therefore open to the issuing state to refuse a request, including the UK where we are seeking someone’s extradition to the UK.
“( ) In section 2 of that Act (Part 1 warrant and certificate), after subsection (7) there is inserted—
“(7A) But in the case of a Part 1 warrant containing the statement referred to in subsection (3), the designated authority must not issue a certificate under this section if it is clear to the designated authority that a judge proceeding under section 21A would be required to order the person’s discharge on the basis that extradition would be disproportionate.
In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection.(7B) Any guidance under subsection (7A) may be revised, withdrawn or replaced.
(7C) The function of issuing guidance under subsection (7A), or of revising, withdrawing or replacing any such guidance, is exercisable by the Lord Chief Justice of England and Wales with the concurrence of—
(a) the Lord Justice General of Scotland, and(b) the Lord Chief Justice of Northern Ireland.””
Lord Rosser
My Lords, I will be brief with what has been described as my blunt instrument on Clause 141. I will not repeat the detailed arguments put by the noble Lord, Lord Hodgson of Astley Abbots. As he said, Amendments 88 and 90 seek to preserve the automatic right to appeal against an extradition order by deleting provisions in the clause that would make the ability to appeal against an order subject to obtaining the permission of the High Court. Essentially, it appears that the Government are now proposing to remove a key safeguard for individuals at risk of extradition by repealing the automatic right of appeal. We have real concerns about this change, which of course removes safeguards for UK citizens.
The automatic right of appeal is a key safeguard against the wrongful extradition of individuals, which allows them to raise new evidence that was not available at the time of the extradition hearing or to challenge the decision of the original judgment. It was surely this automatic right of appeal that allowed Gary McKinnon and his family to challenge the initial decision to extradite him to the US, leading ultimately to the decision not to extradite him at all. Without the right of appeal, he might have been extradited without any further consideration of the evidence, old or new, showing that extradition posed a serious risk to his right to life. Indeed, in the Statement that the Home Secretary made on 16 October 2012, she specifically referred to this issue when she said:
“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights”.—[Official Report, Commons, 16/10/12; col. 164.]
Yet, subject to what the Minister may say, the Government appear to be introducing changes to the Act that would mean that if a similar case occurred after this Bill had been passed, the Home Secretary would not be able to make the same decision.
Clause 141 amends Sections 26 and 108 of the 2003 Act to provide that an appeal will lie only with permission from the High Court, and no indication is given in the Bill of what criteria will be used to decide whether permission should be granted. I hope that the Minister will be able to indicate the reason for the Bill being so vague over an issue—namely, the criteria—that could have significant human rights consequences. What in fact do the Government expect the criteria to be, do they expect them to be evidence-based and will they be available for scrutiny? What impact do the Government believe any likely criteria will have on the number of cases able to be appealed?
Once an individual has been extradited, of course, there is virtually nothing that can be done if new evidence arises to show that that was not the appropriate or fair decision and was contrary to the interests of justice or their human rights. Does the Minister not agree that, because of that, it is crucial that people effectively have an automatic right to appeal against a decision to be extradited, or at least some other means of ensuring that justice is done, and that we do not end up in a situation which, frankly, does our own extradition system no credit?
I cannot vouch for this personally, but Liberty says that extradition experts are of the view that a large number of cases that have been successful on appeal probably would not have been granted leave under the Bill. Removing the right of automatic appeal will potentially have considerable human rights and legal implications. If the Minister cannot offer some movement on this issue when he replies tonight, I hope that he will at least be able to explain why the Government appear to be taking such a major backwards step, having previously placed such emphasis on their concern for Gary MacKinnon’s human rights.
Lord Taylor of Holbeach
My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.
The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.
As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.
My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.
That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.
My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.
What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.
The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.
Lord Hodgson of Astley Abbotts
I am grateful to my noble friend for that fulsome reply. I am disappointed that the Government have not seen fit to follow up the Scott Baker proposal for 14 days instead of seven days, given the complexity of the appeal process, particularly when linked to the additional steps that the Government are taking to introduce prohibitions on and difficulties in getting an appeal process going in the first place. Obviously, however, this is not the time to take the argument further. I look forward to reading with care in Hansard tomorrow what the Minister has said. I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, Amendment 94, which is concerned with mistaken identity, and Amendment 95 would insert two new clauses into the Bill. Amendment 94 would enable the judge at the extradition hearing—whether it is a prosecution or a conviction warrant—to request more information where there is a real doubt as to whether the person sought is actually the person suspected or convicted. This would be particularly valuable in cases where there is a reasonable belief that the person sought has had his or her identity stolen or where there is a clear case of mistaken identity. In these days of cybercrime, the former is an increasingly common occurrence.
There are currently no grounds in domestic law on which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has identified someone else as the person who committed the offence.
This is demonstrated by the case of Edmond Arapi, who was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy, despite clear proof that he was at work in the UK on the day of the alleged offence. On the day that the High Court was due to hear his appeal against extradition, the Italian authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. This amendment is needed to give courts greater discretion to request further information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.
Amendment 95 seeks to clarify the approach that a judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute an EAW on human rights grounds. Many have argued that the underlying assumption of the EAW system—that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited—rests on shaky foundations. For instance, it has been reported that in the years 2007 to 2012, Greece violated Article 6(1) of the ECHR 93 times in criminal cases.
Garry Mann, giving evidence to the Home Affairs Committee, described his 2004 trial in Portugal as follows, stating that,
“the police … just told me it was some kind of public order offence … we went into court and there were 12 of us … we had one interpreter … she would try to say something and pass it down the line of 12, but we did not understand what was going on at all … They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night … They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV”.
An English court later called on to issue a football banning order against Garry refused, finding that the trial had not complied with Article 6 of the ECHR.
The courts have, however, given very short shrift to arguments alleging that extradition would lead to a violation of human rights. In accordance with the concept of mutual trust, on which the operation of the EAW is based, the courts assume that the issuing state will protect the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. A person must show that they are at risk of a “flagrant” breach of their fair trial rights in order to resist extradition. The approach is difficult to sustain when there are ongoing systematic deficiencies in a justice system, which are liable to impact upon an extradited person. For instance, the European Court of Human Rights recently found Italy in violation of Article 3 of the ECHR and applied its pilot judgment procedure, recognising that widespread overcrowding was leading to systematic infringements of Article 3. The concept of mutual trust is difficult to defend in such circumstances. If an extradited person is going to be detained in the same prison, it is plainly likely that their human rights will be infringed.
The Government have taken the view that the EAW framework decision implicitly allows refusal to execute an EAW on human rights grounds, relying on recital 12 and Article 1(3) of the framework decision, which affirm that the latter shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as recognised by Article 6 of the Treaty on European Union and reflected in the European Charter of Fundamental Rights. However, the precise content of those fundamental rights obligations is not clear. In her opinion on the Radu case, Advocate-General Sharpston suggested that, under the charter, the test was whether there was a “substantially well founded risk” of a violation which would,
“fundamentally destroy the fairness of the trial”,
a slightly different test from the ECHR flagrancy test. However, for the time being, the precise requirements of fundamental rights are not defined in EU legislation. Accordingly the member states enjoy some discretion to apply fundamental rights as they understand them, provided that this does not compromise the unity and effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAW framework decision. I beg to move.
Lord Taylor of Holbeach
My Lords, the additional safeguards that my noble friend has proposed through Amendment 94 seek to introduce matters of mistaken identity. It is not something that we believe is necessary. Clearly, we do not want the wrong people to be extradited; the wider issues relating to identity were carefully considered during the review of the UK’s extradition arrangements. Sir Scott Baker did not find any evidence that a person who was subjected to mistaken identity had actually been surrendered to stand trial. He concluded that there was no need to amend the Act to require a judge to request further information concerning the requesting person’s identity. Nor did the Metropolitan Police, the Crown Prosecution Service or the Crown Office raise concerns about the issue.
I agree with expert opinion and I am not persuaded that a change is needed here. My noble friend asked about the case of Mr Arapi—I will try to avoid talking about particular cases—but, as my noble friend will be aware, Mr Arapi was not extradited and the Italian authorities admitted their error in making the request for him rather than another person of the same name. In his review, Sir Scott Baker found that no amendment was needed to the protections already afforded in the Act with regard to identity as there are already sufficient procedures in place to protect people who are sought as a result of mistaken identity.
The amendment raises the particular issue of a judge being clear that the person who has been arrested and appears in court is the person who is alleged to have committed the crime. This goes to the heart of the trial in the issuing stage. It is not a matter for the UK courts. The courts’ consideration of an extradition request is not one of guilt or innocence but of whether any of the statutory bars to extradition apply.
Turning to Amendment 95, my noble friend seeks to make changes to a judge’s consideration of human rights in EAW cases, including expanding the matters to which the judge should have regard when considering whether extradition would breach a person’s human rights.
We believe that there are already sufficient safeguards in the Extradition Act to allow a judge to bar extradition on human rights grounds. The 2003 Act is drafted to allow the courts to give the fullest possible consideration to human rights issues. We discussed this matter in earlier deliberations in Committee. In all cases, the judge must decide whether extradition would be compatible with the convention rights and must discharge the person if he or she decides that it would not be compatible.
In his review of the UK’s extradition procedures, Sir Scott Baker found that the human rights bar to extradition did not need amending. The review found that the bar did not permit injustice or oppression, and the Government agree with that assessment. We do not accept that a judge’s approach to human rights needs to be changed.
In conclusion, I am very grateful to my noble friend for giving the Committee this opportunity to consider various aspects of Part 12 of the Bill.
Lord Lamont of Lerwick (Con)
Am I not right in saying that the European Commission has been quite critical of some of the new entrants into the EU’s legal systems and has instanced poor training of judges and problems of corruption? As long as the criticisms continue to be made, does not my noble friend’s amendment have a real point, or is the Minister saying that the human rights considerations that he has been talking about would cover that instance?
Lord Taylor of Holbeach
The European arrest warrant provisions are indeed Europe-wide, so they cover a number of different jurisdictions. None the less, proportionality and human rights considerations are written throughout these particular parts of the Bill. As I said, Sir Scott Baker investigated this. He felt that the human rights bar to extradition did not permit injustice, if it was believed to exist, or oppression, and the Government agree with that assessment. I hope that I have satisfied my noble friend and that he will accept that the Government are not operating this mutual extradition facility which the European arrest warrant provides for in a way which is unreasonable to people who are subject to extradition requests.
Lord Hope of Craighead (CB)
Perhaps I may assist the Minister in replying to the question that has been raised. Recently, the Supreme Court had to consider a case where an individual was being sought to be extradited to Albania. The court was told that there was a high degree of corruption among the judges and the extradition was stayed so that the degree of corruption could be investigated further. The matter is now in the hands of the Lord Advocate in Scotland. That is an example of the kind of phenomenon to which the noble Lord referred—where the standards in one of the new countries are not up to the standards that one might expect. However, I suggest that the courts are very astute in ensuring that the human rights protection in relation to a fair trial is preserved. That is a very recent example which I think meets the point that the noble Lord, Lord Lawson, had in mind.
Lord Taylor of Holbeach
Not for the first time, I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for his intervention in this matter. I should say that Albania is not a member of the European Union at this stage. However, the principle applies, as the noble and learned Lord said. Section 21 of the existing Act already requires the judge to be satisfied that extradition is compatible with the human rights convention, and that includes the right to a fair trial. Therefore, that already exists in law.
In conclusion, I am grateful to my noble friend for giving the Committee an opportunity to consider various aspects of Part 12 of the Bill. On a number of the issues he has raised, I think that we share the same policy objectives, and in such cases where we have differences between us, they may well simply be a matter of drafting. Having had this important debate and in the light of my comments, I hope that my noble friend will agree to withdraw his amendment. If, on reading the record, he finds that there are still aspects with which he is concerned, I hope that he will not hesitate to raise them with me.
“Discount on sentence for time spent in custody awaiting extradition: Scotland
(1) Section 210 of the Criminal Procedure (Scotland) Act 1995 (consideration of time spent in custody) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a), after “United Kingdom” there is inserted “otherwise than from a category 1 territory”;(b) in paragraph (c)(ii), for “for the purposes of this section” there is substituted “who was extradited to the United Kingdom otherwise than from a category 1 territory”.(3) After subsection (1) there is inserted—
“(1A) Subsection (1B) applies where—
(a) a court is passing a sentence of imprisonment or detention on a person for an offence, and(b) the person is an extradited prisoner who was extradited to the United Kingdom from a category 1 territory.(1B) The court shall specify—
(a) the period of time spent in custody awaiting extradition, and(b) the date of commencement of the sentence in accordance with subsection (1C). (1C) The date of commencement of the sentence is to be a date the relevant number of days earlier than the date the sentence would have commenced had the person not spent time in custody awaiting extradition.
(1D) In subsection (1C), “the relevant number of days” means the number of days in the period specified under subsection (1B)(a).”
(4) After subsection (2) there is inserted—
“(2A) In this section, “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.”
(5) Subsection (3) is repealed.”
“(8) But subsection (7) does not apply if the statutory instrument only adjusts a fee to reflect changes in the value of money.”
“Police and Criminal Evidence Act 1984 (c. 60)(1) Schedule 2A to the Police and Criminal Evidence Act 1984 (fingerprinting and samples: power to require attendance at police station) is amended as follows.
(2) In paragraph 1 (fingerprinting: persons arrested and released)—
(a) in sub-paragraph (2), for “section 61(5A)(b)” there is substituted “section 61(5A)(b)(i)”;(b) after sub-paragraph (3) there is inserted—“(4) The power under sub-paragraph (1) above may not be exercised in a case falling within section 61(5A)(b)(ii) (fingerprints destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.” (3) In paragraph 2 (fingerprinting: persons charged etc)—
(a) in sub-paragraph (2)(b), for “section 61(5B)(b)” there is substituted “section 61(5B)(b)(i)”;(b) at the end of sub-paragraph (2) there is inserted “, or(c) in a case falling within section 61(5B)(b)(ii) (fingerprints destroyed where investigation interrupted), the day on which the investigation was resumed.”(4) In paragraph 9 (non-intimate samples: persons arrested and released)—
(a) in sub-paragraph (2), for “within section 63(3ZA)(b)” there is substituted “within section 63(3ZA)(b)(i) or (ii)”;(b) after sub-paragraph (3) there is inserted—“(4) The power under sub-paragraph (1) above may not be exercised in a case falling within section 63(3ZA)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.”(5) In paragraph 10 (non-intimate samples: persons charged etc)—
(a) in sub-paragraph (3), for “within section 63(3A)(b)” there is substituted “within section 63(3A)(b)(i) or (ii)”;(b) after sub-paragraph (4) there is inserted—“(5) The power under sub-paragraph (1) above may not be exercised in a case falling within section 63(3A)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.””
( ) an order under section 4(5),( ) an order under section 50(4), or( ) an”
“( ) sections (Information about guests at hotels believed to be used for child sexual exploitation) to (Offences);”