FW: The draft Extradition Bill - QC's viewFrom Chris Pounder
From:10 Old Square, Lincoln's Inn, London WC2A 3SU Telephone 020 7405
0758, Fax: 020 7831 8237, LDE Box No: 306 www.tenoldsquare.com, Email:
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To: The Right Hon. David Blunkett MP,
H. M. Secretary of State for Home Affairs,
Home Office,
50 Queen Anne's Gate,
London SW1H 9AT.
4th October 2002
draft Extradition Bill - consultation
I enclose a Memorandum which presents my contribution to the consultation
invited by your paper CM 5545.
If this should be addressed to the Team in Room 1176, no doubt it will be
passed on quickly to that Team.
I realise that we are now past 30 September 2002, the "last day" for
consultation responses (para. 38 in the Introduction to the consultation
White Paper); but I hope my response will nevertheless be accepted and
considered. It does not deal with the whole of the draft Bill, because I
did not have more time. For the same reason it does not cover all of Part
I of the draft Bill; but my response is directed to the very important new
European Arrest Warrant.
Leolin Price CBE QC
------------------------------------------------ 4th October 2002
The draft Extradition Bill - Consultation
Memorandum by Leolin Price CBE QC
Preliminary historical and general comments on this exercise in law-making.
1. In the immediate aftermath of the terrorist attacks of 11 September
2001 an urgent meeting of EU Justice and Home Affairs Ministers attended by
our Home Secretary arranged, as their reaction to those outrageous acts of
terrorism in the United States, what quickly became a Commission Proposal
for a Framework Decision (19 September 2001, amended on 26 September 2001)
under which an arrest warrant issued in a Member State would be executed in
another Member State and the person arrested would be transported to the
originating Member State, without the protections of ordinary extradition
procedure, for investigation and trial of the offence charged. This new
EU-wide Arrest Warrant was to apply to a number of offences, from an early
date 32 in number.
2. Until the Laeken Summit in December 2001, or very shortly before
that Summit, Italy was not willing to agree unless the relevant offences
were restricted to 7 offences plainly of terrorist character.
3. Very shortly before the Laeken Summit a newspaper report referring
to the proposal and the proposed 32 offences prompted a telephone enquiry
to the Commission's London office at Storey's Gate. Could that office
please provide details of the proposal? The office could not help. It had
no documentation. The enquirer should ask one of the Community's
"documentation centres" and a telephone number for that was provided. The
"documentation centre" was unable to help. It had no information. After
much delay and explanation, all it could suggest was the enquirer should
apply to Storey's Gate! Reverting to Storey's Gate the enquirer was met
with repeated assertions of inability to help; but eventually someone at
that Office said that they had a relevant document and agreed to post a
copy to the enquirer.
4. The document, when it arrived two days before the Laeken Summit,
was the Commission's Proposal of 19/26 September 2001; and it did not refer
to the 32 arrestable offences (but provided instead for each Member State
to lodge a list of offences in respect of which it would not execute EU
Arrest Warrants). A further call to Storey's Gate produced no explanation
of this but eventually a lady (?the Librarian) said she would see what she
could do, and very quickly there arrived by post a list of the 32 offences
(albeit without any indication of their relationship to the 19/26 September
Proposal).
5. On examination of the list provided it was clear that the 32
offences were not all being introduced as part of the "war" against
terrorism. What appeared to be happening was the introduction of part of
the Corpus Juris which our Government had hitherto (in particular at the
then recent Helsinki Summit) rejected as unacceptably contrary to our
Common Law traditions.
6. At this point it is relevant to contrast the ready availability of
proposals for primary legislation at Westminster with the extraordinary
difficulty in obtaining information about proposals for EU
legislation. The EU lawmaking processes are unacceptably secretive.
7. After the Laeken Summit it was not at all easy to follow closely
the progress of the Arrest Warrant towards adoption as law which Member
States must adopt, and to understand - and perhaps influence - the
selection and definition of the 32 offences.
8. Eventually on 13 June 2002 the Arrest Warrant was formally adopted
at a meeting of the EU Justice and Home Affairs Council. Article 34.2(b)
of the (Maastricht) Treaty of Union enabled the Council to adopt the
Framework Decision "acting unanimously on an initiative of any Member State
or the Commission". (The proposal was by the Commission). As the Arrest
Warrant appears to implement part of the Corpus Juris, and the UK had
previously opposed the Corpus Juris, it is curious that the UK agreed to
the adoption of this Framework Decision. That partial surrender to the
promoters of the Corpus Juris is relevant (perhaps only marginally
relevant) to the matters considered in this paper, but it might have been
expected that the UK Minister involved (the Home Secretary) would have been
particularly insistent, both in the drafting of the Decision and in the
form of its adoption into UK law (Part 1 of the draft Extradition Bill) on
clarity, certainty and understandability, and on a minimum of encroachment
upon our distinctive law and legal traditions which had previously been
thought incompatible with the Corpus Juris. Such insistence is not
apparent in either document.
9. Because of its adoption in Council, Parliament must transpose the
Arrest Warrant Decision into English law. Failure to do so would
contravene EU law and, as in the invidious Factortame litigation [1990] 2
AC 85 (HL); [1991] AC 603 (ECJ and HL); [1992] QB 650 (ECJ); [1996] QB 404
(ECJ); [2000] 1 AC 524, the EU Court of Justice could be expected to issue
a ruling to that effect.
10. Adoption by the Council on 13 June 2002 was at a time when the
Arrest Warrant was under "Scrutiny Reserve" at Westminster. Scrutiny
Reserve, applicable to proposals for EU legislation, requires that our
Ministers do not agree in Council to proposals for EU legislation which are
still under scrutiny by our Westminster Parliament. The scrutiny
arrangements do not always work well; but the adoption was in contempt of
our parliamentary arrangements. Parliament is thus marginalized and
apparently disabled from exercising constitutional power which it derives
from our electorate at each election.
11. The Council Framework Decision of 13 June 2002 requires (Article
34.1) Member States to take the necessary measures to comply with the
Decision by 31 December 2003. The UK's chosen means of compliance is the
Extradition Bill (a draft of which was published in the "Extradition" White
Paper of June 2002, CM5544, £18.75) and it seems that the Government would
like this Bill to be enacted and in force well before that deadline
date. The Bill is of great importance and its provisions are a proper
cause for anxious consideration. The Consultation White Paper of June 2002
invites responses to the consultation by 30 September 2002 - too short a
period for the ordinary interested citizen and for interested bodies.
12. The White Paper says that Part 1 of the Bill "implements the
Framework Decision on the European arrest warrant by putting in place fast
track arrangements for extradition to what will be known as category one
territories and which will include all EU member states".
The Arrest Warrant and the list of 32 arrestable offences 13. The draft
Bill does not include in any section or Schedule a list of the 32
arrestable offences prescribed by the Framework Decision; and under the
Bill the form of the Arrest Warrant is that set out in the Annex to the
Framework Decision, as prescribed by Article 8.
14. Box (e) in the Warrant form requires statements in response to the
following:
"Description of the circumstances in which the offence(s) was(were)
committed, including the time, place and degree of participation in the
offence(s) by the requested person"
and
"Nature and legal classification of the offence(s) and the applicable
statutory provision code"
15. But it is plain that, whatever is required in response to those
requirements, a full description of the offence(s) is not required at that
point in the form. This appears from the remainder of Box (e) which has 2
sections marked I and II:
"I If applicable, tick one or more of the following offences
punishable in the issuing Member State by a custodial sentence or detention
order of at least 3 years as defined by the laws of the issuing Member
State" [and 32 boxes follow for the 32 specially arrestable offences]"
"II Full description of offences not covered by section I above".
Such a "full description" of Section II offences is meant to be provided
there and not at either of the preliminary statements mentioned in
paragraph 14 above. So, for the 32 offences, only a tick - not a full
description - is required. Only for section II offences is a full
description required! That is astonishing, more accurately it is
outrageous. Why should anyone be arrested here and deported for
investigation and trial in a strange country with entirely different
traditions and procedures for investigation and trial of alleged offences
and with a readiness to hold an accused in custody for long periods during
the investigation?
16. The Section II offences referred to in the Warrant form agreed by
our Home Secretary refer back to Article 2.1 in the Framework
Decision: "acts punishable by the law of the issuing Member State by a
custodial sentence or a detention order for a maximum period of at least 12
months".
17. Section 47 is a masterpiece of confused and unsatisfactory
drafting; but if the certificate "shows that the conduct falls within the
European framework list" there is no requirement that the conduct would be
an offence under UK law and punishable in the UK with a relevant period of
imprisonment or detention "or greater punishment". Both Clause 47(1)(b)
and Clause 47(5)(b) refer to "the European framework list" and under
s.47(12)(b) that is "the list of conduct set out in article 2.2 of the
European framework decision" i.e. conduct constituting any of the 32
offences mentioned in Article 2.2 and for which "ticking boxes" are
provided in the Arrest Warrant form. In the terminology of the annexed
Warrant form these are Section I offences, not Section II offences.
Executing the Warrant: unsatisfactory arresting arrangements
18. According to Clause 3(2)(c) of the draft Bill the certified
Warrant may be executed -
"even if neither the Warrant nor a copy of it is in the possession of the
person executing it at the time of the arrest"
If that is the situation at the time of the arrest, Clause 3(3) requires
that -
"(3) A copy of the warrant must be shown to the person as soon as
possible after his arrest"
but only if -
"(b) the person arrested so requests"
Why should the burden of asking fall on the person arrested? He or she is
likely to be particularly stressed, anxious and confused. The burden of
compliance with Clause 3(3) ought fairly to apply without any
qualification, and (b) should be struck out. It might be suggested that
(b) should be re-written as -
"(b) the person arrested so requests after being told by the person
executing the Warrant (i) that he is not in possession of the Warrant or a
copy of it and (ii) the person arrested is entitled to ask for a copy and
will be provided with it as soon as possible"
That re-writing of (b) is, however, too complicated. Condition (b) should
be struck out leaving the person executing the Warrant with the obligation
to provide a copy.
19. Those Clause 3 provisions do not, however, comply with Article 11.1
of the Framework Decision even if allowance is made for the scope of a
Member State's "choice of form and methods" (Article 34.2(b) of the Treaty
of Union). Article 11.1 provides:
"1. When [which means at the time when, and not at some subsequent
time] a requested person is arrested, the executing competent judicial
authority shall, in accordance with the national law, inform that person of
the European arrest warrant and of its contents"
In my copy of the Warrant form, the "contents" extend to 6 A4 pages,
including 11 boxes, one of which occupies a whole page. How is an arrested
person to be informed of all that material [and "the contents" means all
the contents] if neither the warrant nor a copy is in the arresting
person's possession at the time of the arrest?
20. Proper information obviously requires, and the only satisfactory
and fair rule is that the arresting person must have in his possession the
warrant or a copy, that the person arrested must, at the time of arrest, be
given a copy of the Warrant, and allowed time to read it and to listen to
the arresting officer's explanation of its contents.
21. Clause 3(2)(b) of the Bill allows the Warrant to "be executed by a
constable or by an appropriate person"; and under clause 3(7) "an
appropriate person is a person of a description specified in an order made
by the Secretary of State for the purposes of [s.3]". A draft of such an
order has to be laid before Parliament and approved by a resolution of each
House: see clause 167(5) of the Bill; but the explanatory notes
accompanying the bill do not say what are the descriptions of persons which
the Secretary of State is minded to specify.
22. Who may be an "appropriate person" is potentially of great
importance. A constable making the arrest is likely to be trusted by the
arrested person (even if not under Article 11 an "executing competent
judicial authority") if only because in our society the power to make
arrest is a recognised part of police officers' functions. But a
supposedly "appropriate" person who is not generally recognised as having
power to arrest, especially if he does not have in his possession the
Warrant or a copy, is likely to meet mistrust, disbelief, suspicion and
non-co-operation on the part of the person to be arrested.
23. Clause 3(7) does not set out any criteria for the specification of
"appropriate person", and the Home Secretary or a future Home Secretary
might think it appropriate to specify an officer of the Member State where
the Warrant is issued. Arrest for deportation without the general
protection of extradition procedures is an alarming novelty in this
country. If it were to be made by an officer of the Member State where the
warrant is issued the novelty and the alarm would be worse. It is
difficult to see why the Home Secretary should have an open-ended
discretion to specify "appropriate persons"; and it is not easy to see why
the descriptions are not set out in the draft Bill, perhaps with some
restricted power for the Home Secretary to add new descriptions or amend
descriptions in the Bill. It is an unacceptably lazy legislative method
which leaves to subordinate legislation what ought to be in the Bill; and
it is no defence to point to Clause 167(5) and say that laying the
statutory instrument in draft before both Houses of Parliament and
requiring a positive approving vote in each House provides the
protection. Such statutory instruments commonly do not achieve much or any
debate and are nodded through.
24. The Home Secretary and his advisers must have in mind what
categories of people are to be specified as "appropriate persons". Let
what is proposed be included in the Bill and, when the Bill is enacted, in
the Act, perhaps with some restricted provision for subsequent variation by
statutory instrument, although for this important matter subsequent
variation really ought to be by amending statute.
25. Remember that an "appropriate person" may carry out this novel and
stressful form of arrest and may even do so without having in his
possession the Warrant or a copy! The draft Bill is where the proposed
descriptions should appear: otherwise Clause 3(7) and the reference to
"appropriate person" in Clause 3(2)(b) should be struck out of the Bill; so
that if, for example, the Home Secretary and his advisers think of
specifying "any officer of the Member State in which the particular Warrant
has been issued" that is something to be considered in the debate about
this controversial Bill. Such an officer should not be able to make an
arrest in this country. It may be said that the Home Secretary does not
intend to specify such a person; if so he does not speak for future Home
Secretaries, and the proper constitutional process for excluding this and
other unacceptable possibilities is in the debate before the Bill becomes
an Act and not after that debate is over. The Home Secretary should tell
us now, in the Bill, who are to be his "appropriate persons" to make these
extraordinary new arrests.
26. That unsatisfactory failure of the draft Bill raises the suspicion
that inappropriate arresting persons are intended to be specified and this
is to be disclosed only after the Bill has become an Act. Such suspicion
can easily be removed by setting out in the Bill what descriptions of
"appropriate person" are intended.
27. Better still, strike out of Clauses 3 and 4 all reference to an
"appropriate person" as the person to make the arrest.
28. The failure of the draft Bill (and the consultation Paper) to be
more informative about this fundamentally important and sensitive matter of
the persons to exercise these novel arresting powers may be contrasted with
the consultation Paper's treatment of Clause 2(7). Clause 2(7) indicates
that the "designated authority" with the function of receiving and
certifying the novel European Arrest Warrants is to be specified by Order
in Council. The commentary says that the intention is to specify, for
England and Wales and Northern Ireland, the National Criminal Intelligence
Service, and for Scotland the Crown Office in Scotland. Neither the
Service nor the Office is, within Article 11 of the Framework Decision, an
"executing competent judicial authority"; and in the ensuing debate the
reasons for this departure from the Framework Decision should be explained
and justified.
29. Criticism of the arresting arrangements in Clause 3 applies even
more strongly to Clause 4. Under Clause 4 a "constable or an appropriate
person may arrest a person without a Warrant ... if he has reason to
believe - "(a) that a Part 1 warrant has been or will be issued in
respect of the person by an authority of a category 1 territory and
(b) that the authority has the function of issuing arrest warrants in
the category 1 territory"
Clause 4(7) empowers the Home Secretary to specify descriptions of
"appropriate persons"; and there is no indication about what descriptions
of persons are intended. Of course, as with specifications under Clause
3(7), the draft Bill is where the proposed descriptions should appear.
30. Clause 4 contemplates an arrest although a European Arrest Warrant
has not been issued. Whoever is the arresting person, why should there be
power to arrest merely because the arresting person "has reason to believe"
that an Arrest Warrant "has been or will be" issued in another Member
State? The person exposed to arrest in such circumstances will not be able
to judge whether the arresting person has reason to believe; and the
arresting person will be totally unable, as contemplated by Article 11 of
the Framework Decision, to inform the arrested person of the European
arrest warrant or of its contents. The arrested person faces an
astonishingly novel procedure: arrest for deportation, without ordinary
extradition protections, for investigation and trial of an alleged offence
in a foreign country under an alien and unfamiliar system of law. Clause 4
can properly be categorised as outrageous.
Fast track procedure: no substantial protections 31. A person arrested
under Clause 3 or Clause 4 must be brought before a judge, under Clause 3
"as soon as practicable"; under Clause 4 "within 48 hours starting with the
time of the arrest; but the judge (probably a district judge: see s.48),
and on appeal the Court of Appeal and House of Lords, will have, as regards
any of the 32 listed offences, very limited power. The object of the
European Arrest Warrant and the draft Bill is deportation to the issuing
Member State without any investigation and without questioning on
traditional grounds the appropriateness of deportation to face
investigation and trial in that State. There are formalities to be
complied and there are some bars to extradition, but the purpose is an
essentially unquestioning deportation to the issuing State for
investigation, trial and sentence.
32. Detailed consideration of the 32 Framework List offences is
therefore an essential part of the debate about Part I (the European Arrest
Warrant part) of the draft Bill. These offences are referred to in Clause
47 ("Extradition offences") by reference to ("the European framework list")
but without any further definition. It is therefore necessary to refer to
the Framework Decision Article 2.2.
33. Double criminality is irrelevant. The conduct referred to need not
constitute an offence under our law. It is sufficient that it constitutes
an offence as defined by the law of the Member State issuing the warrant
and is punishable in that State "by a custodial sentence or a detention
order for a maximum period of at least 3 years".
Muddle 34. Clause 47(1) of the draft Bill confusingly refers to "the
European framework list" in relation to "conduct punishable under the law
of the category 1 territory with imprisonment or another form of detention
for a term of 12 months or a greater punishment". That is confusing
because Article 2.2 and the annexed Arrest Warrant form refer to 3 years;
and the Arrest Warrant in any of the 32 listed cases will refer to 3 years
not to 12 months. I do not understand why Clause 47(1) does not refer to 3
years.
35. For the Warrant to refer to 3 years and the Act (if the draft Bill
is enacted as drafted) to refer to "12 months or a greater punishment" is
unexplained and unsatisfactory.
36. There is also a noticeable absence from the draft Bill of any
requirement that the arresting person must establish with the arrested
person that he really is vested with authority to make the arrest.
The 32 offences 37. It appears that what are listed are 32 categories
of conduct which are or may be offences in some Member States. Although
Article 2.2 and the annexed Arrest Warrant form refer to them all as
"offences", the lack of definition and generality of some of them indicate
that they are not intended as definitions of crimes but only as categories
within which different Member States may have defined offences, not
necessarily with the same definitions in each State. This also explains,
or partially explains, why in Box (c) of the Warrant form the required
preliminaries include a statement of the nature and legal classification of
the offences with reference to the issuing states' "statutory
provision/code" (although, as explained earlier in this Memorandum, a full
description of any of the 32 offences is not required).
38. Faced with the novel and alarming possibility of being arrested
here for deportation to another country without the usual protections, the
UK resident ought to be provided with ready access to each Member State's
definition of the crimes falling within each category. A UK citizen
visiting other Member States or doing something which has operative effect
in other Member States ought to be entitled to have knowledge enabling him
to avoid being arrested here and deported without the usual extradition
protections. This means that he must fairly have access to knowledge which
provides him with the opportunity to avoid conduct which may not be an
offence under our UK law but involves the risk of such arrest and
deportation; and the responsibility for making that knowledge available
must reasonably fall on the Home Secretary and his advisers.
39. The Home Secretary in his consultation Paper or by reference to a
separate readily accessible publication, might reasonably have provided
each Member State's definition of offences falling within each of the 32
categories: definitions translated into English. That has not been
done. It must be done; and the draft Bill must be amended by a provision
making it the duty of the Home Secretary to ensure that this information,
updated from time to time, is at all times available in readily accessible
and well publicised form. Failure to provide this information at this
stage inhibits comprehensive discussion of this extraordinary measure and
devalues the intended consultation. Failure to include in the draft Bill
provision for making this information properly available indicates in the
Home Secretary an authoritarian carelessness about the impact of this EU
legislation on us and our individual rights. The Home Secretary agreed to
the European Arrest Warrant and its disturbing novelties in respect of the
32 offences for which we may be arrested and deported. Let him tell us
exactly what are the offences for which this sensational new and unfair
procedure will apply. I now turn to consider each of the 32 "offences" as
they appear in the Arrest Warrant form:-
40. "participation in a criminal organisation" What in each Member
State is a "criminal organisation"? And that State may change the
definition from time to time! Suppose a Member State outlaws any
organisation which advocates secession of part of that State and a member
of Plaid Cymru writes an article for a newspaper in that State supporting
that organisation's object as generally applicable to minority areas in
each Member State; is he "participating in a criminal organisation"? What
exactly does this mean in the law of each Member State? Definitions
(translated) are essential.
41. "terrorism" Is "terrorism" defined in each Member State as in our
law? It need not be. Is advocacy of violence included? or only acts of
violence? Is being present at a "terrorist" demonstration (however
"terrorism" is defined) included? These are not idle questions. The
content of the offence in each Member State will determine whether arrest
and unprotected deportation will be available here in respect of that
offence.
42. "trafficking in human beings" There is the same need for English
translation of each Member State's offence(s) under this category. This is
not part of the reaction to terrorism or 11 September. Its presence in the
Framework Decision list of 32 offences is simply an opportunistic
introduction of Europe-wide criminal law outside that field. Why was it
agreed?
43. "sexual exploitation of children and child pornography" There is
the same need for translated definitions. Including this category in the
Framework list of 32 offences is not anti-terrorism but is another
opportunistic introduction of Europe-wide criminal law.
44. "illicit trafficking in narcotic drugs and psychotropic substances"
This has nothing to do with terrorism. Why is it included? Translated
definitions are essential.
45. "illicit trafficking in weapons, munitions and explosives"
Definitions (translated) of each Member State's offence(s) under this
category are essential.
46. "corruption" Definitions (translated) of each Member State's
offence(s) under this category are essential. But why has this been agreed
in reaction to terrorism and 11 September? Its inclusion in the list is
another opportunistic introduction of Europe-wide criminal law.
47. "fraud, including that affecting the financial interest of the
European Communities within the meaning of the Convention of 26 July 1995
on the protection of the European Communities"
As defined in the Convention, Article 1, this offence does not fall within
the words in Article 2.2 of the Framework Decision which introduce the list
of 32 offences. Of course a Member State may have defined the offence so
as to fall within those words.
Definitions (translated) are therefore essential But inclusion of this
offence in the list has nothing to do with terrorism or 11 September. It
is an intrusive opportunistic extension of EU law to make the Arrest
Warrant apply to this offence. Why was its inclusion in the list agreed?
48. "laundering of the proceeds of crime" Definitions (translated) are
essential. EU Money Laundering Protocol and Joint Action date from 1997 and
1999. Making the European Arrest Warrant available is just an
opportunistic extension of EU law enforcement. Why was this agreed?
49. "counterfeiting currency, including the euro" But why was this
inclusion in the list agreed? It is not a reaction to terrorism or 11
September. It is an opportunistic extension of the Europe-wide arrest
warrant. Definitions (translated) are essential.
50. "computer-related crime" This has nothing to do with
terrorism. Why is it included? Why is the European Arrest Warrant
appropriate? Definitions (translated) are essential.
51. "environmental crime, including illicit trafficking in endangered
animal species and in endangered plant species"
This has nothing to do with terrorism. Why is it included? Why is the
European Arrest Warrant appropriate? Definitions (translated) are essential.
52. "facilitation of unauthorised entry and residence" Whatever does
this mean? Is it about immigration? or about burglary or squatting?"
Definitions (translated) are essential.
53. "murder, grievous bodily injury" This heading is not restricted to
murder or injury as part of or in the pursuit of terrorism! Definitions
(translated) are essential.
54. "illicit trade in human organs and tissue" This has nothing to do
with combatting terrorism. Why is it included? Definitions (translated) are
essential.
55. "kidnapping, illegal restraint and hostage-taking" This heading is
not restricted to acts as part of or in the pursuit of terrorism. Why is it
included? Definitions and translations are essential.
56. "racism and xenophobia" Without translated definitions this heading
is absurdly and dangerously wide. What is "racism"? What is
"xenophobia"? Is it restricted to "racist" or "xenophobic" acts? or to
acts which reflect or incite hatred of some race or of foreigners? or to
acts or written or spoken words which may offend members of some race or
some foreigners? But, while this is a very special case for comment, it has
nothing to do with combatting terrorism. It should be excluded.
Definitions (translated) are essential.
57. "organised or armed robbery" This heading is not restricted to
robbery as part of or in the pursuit of terrorism! Why not? Definitions
(translated) are essential.
58. "illicit trafficking in cultural goods, including antiques and
works of art"
This heading is not restricted to such illicit trafficking as part of or in
pursuit of terrorism. Why not? But it has nothing to do with terrorism. Why
is the European Arrest Warrant appropriate? Definitions (translated) are
essential.
59. "swindling" This has nothing to do with terrorism. Why is it
included? Why is the European Arrest Warrant appropriate? Definitions
(translated) are essential.
60. "racketeering and extortion" This heading is not restricted to
racketeering (whatever that means and whatever the definitions in various
Member States) and extortion as part of or in pursuit of terrorism. Why
not? Why is it included? Why is the European Arrest Warrant appropriate?
Definitions (translated) are essential.
61. "counterfeiting and piracy of products" What has this to do with
terrorism? Why is it included? Why is the European Arrest Warrant
appropriate? Definitions (translated) are essential.
62. "forgery of administrative documents and trafficking therein" This
heading is not restricted by reference to terrorism. Why not? It appears to
have nothing to do with terrorism. Why is it included? Why is the European
Arrest Warrant appropriate? Definitions (translated) are essential.
63. "forgery of means of payment" This heading has nothing to do with
terrorism. Why is it included? Why is the European Arrest Warrant
appropriate? Definitions (translated) are essential.
64. "illicit trafficking in hormonal substances and other growth
promoters"
Why is this included?
It has nothing to do with terrorism. Why is the European Arrest Warrant
appropriate? Definitions (translated) are essential.
65. "illicit trafficking in nuclear or radioactive materials"
Definitions (translated) are essential. This may be anti-terrorism in
design, but (as with other "offences") the detailed content of the offence
or offences as defined in each Member State's law ought to be presented as
part of the presentation of the draft Bill.
66. "trafficking in stolen vehicles" Why is this included? Why is the
European Arrest Warrant appropriate? Definitions (translated) are essential.
67. "rape" What has this to do with terrorism? Why is it included?
Definitions (translated) are essential unless in every State the content of
this crime is the same.
68. "arson" Why is this not restricted to arson as part of or in
pursuit of terrorism? Definitions (translated) are essential.
69. "crimes within the jurisdiction of the International Criminal Court"
This has no reference to terrorism. The Court is not a member state. How
does each Member State define these crimes? Why is the European Arrest
Warrant appropriate? Definitions (translated) are essential.
70. "unlawful seizure of aircraft/ships" Definitions translated) are
essential.
71. "sabotage" Could the trainspotters in Greece have been charged with
an offence which falls under this heading? Would someone who joins an
"anti-nuclear" demonstration at a French nuclear power station be charged
in France with a crime under this heading? Definitions (translated) are
essential.
Concluding observations 72. I end this Memorandum without further
detailed comments on Part I of the draft Bill although in that Part as well
as in the rest of the draft Bill there is much else which cries out for:
clarification re-drafting re-consideration of the provisions about
subordinate legislation and discretionary powers and their proper
relationship to what will become the statute.
73. I curtail my exercise without apology because I have already spent
on this exercise more of my time than was reasonably available. I am also
content that what I have managed to do is concentrate upon Part I and in
particular the European Arrest Warrant and its application to the 32
categories of offence.
74. The European Arrest Warrant is much too important for there to be
any acceptable restriction upon the scope of the consultation comments
which are now invited. Its novelty and oppressive operation - arrest
here and deportation to face charges, investigation, detention during the
investigation, trial and sentence in a foreign country, without the
ordinary protections applicable to extradition, - is a truly astonishing
introduction into our law.
75. The origin of this development was in the immediate aftermath of 11
September; but reaction to that outrage was quickly hijacked by a desire to
extend the grasp and novel reach of Europe-wide law enforcement procedures;
and the result is that the new Arrest Warrant is not restricted to what was
needed to combat terrorism. The list of 32 haphazardly chosen categories
of offence appeared very quickly, and it is a remarkable selection of
"offences" selected without any obvious or apparent connecting character or
principle.
76. The Council's Framework Decision which Part I of the draft Bill is
intended to implement, and the draft Bill itself, are conspicuous examples
of bad drafting in relation to fundamentally important matters of principle
and liberty.
77. The impression of unseemly haste and inattention; the confusion;
the disregard of the need for understandability; the invasion and
overturning of what have been regarded here as "rights"; the exposure of
our people to laws, courts, procedures that do not reflect, and officials
who do not have, the same attitude to those "rights"; the carelessness
about making proper arrangements for arrest under the new Warrant; the
slap-happiness of leaving fundamentally important matters to be determined
in subordinate legislation instead of in the proposed statute, and without
any indication about the determination that is likely (and may already have
been decided although not now disclosed): everything about the European
Arrest Warrant, its history since September 2001, the Framework Decision,
and now Part I of the draft Bill is unsatisfactory. Those responsible for
the dramatic, ill-considered, poorly prepared introduction into our law of
the European Arrest Warrant demonstrate an acceptance of a dangerous new
illusion. The illusion is that government of our people need no longer be
for them, nor consistent with their traditions and their understanding of
the relationship between government and the governed; but can be remodelled
to subject them unnecessarily to uncomfortably different arrangements. To
present that dramatic change so ineptly also indicates an arrogant
assumption that Government can do as it likes, however incompetently, and
that we can trust Government to see that what is inefficiently prepared and
established will not be allowed to work unjustly. In respect of this
matter there is no room or justification for any such trust.
78. There is a further danger. Selection of the 32 categories of
offence to which the European Arrest Warrant applies is haphazard, not
based on any apparent connecting principle. That would not have been so if
the originators of the list had been content with a smaller number of
offences, each of them clearly designed to play a part in combatting
terrorism. At a very early stage that linking criterion was abandoned. A
future busybody, looking at this haphazardly selected list, may well ask
why other offences as defined by the law of any Member State (subject to
the Article 2.2. rule about relevant punishment) should not also qualify
for the Arrest Warrant procedure: indeed why not all offences (subject to
that Article 2.2 rule)? This atrocious legislative exercise may then prove
to be the thin end of a Corpus Juris wedge.
79. If our law is to be changed in this manner, confidence in those who
negotiate, draft and enact our laws will be severely undermined.
LEOLIN PRICE CBE QC
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