TRANSFER OF UK PRISONER TO ASSIST INVESTIGATION ABROAD (Hansard, 14 October 2003)

§ Mr. Carmichael
I beg to move amendment No. 44, in page 28, line 9, leave out, 'cannot be withdrawn after the issue of the warrant' and insert 'can only be withdrawn on cause shown and with the consent of the court.'
As with previous amendments, the genesis of the amendment is the Law Society of Scotland. I had hoped that the hon. Member for Perth (Annabelle Ewing) would be in her place. Earlier, she chided Labour Back Benchers who represent Scottish constituencies for their absence. The hon. Lady, who always tells us that she is prepared to stand up for Scotland, has presumably gone to have her tea for Scotland.

§ Mr. Heath
At the Scotland Office.

§ Mr. Carmichael
Indeed, she may be having her tea at the Scotland Office tonight.
The amendment is simple. Clause 47 provides that once a prisoner has given his or her consent in writing to be transferred to another country to help with a criminal investigation, it cannot be withdrawn. The amendment would provide for opportunities to withdraw that consent on cause shown and with the consent of the court. It appears draconian that, once written consent has been given and a warrant has been issued, there is no point of return. Surely the Minister accepts that a change of circumstances in the foreign jurisdiction might mean that it is appropriate for consent to be withdrawn. It may also become apparent that consent was given on the basis of false, misunderstood or misleading information.
The reason for withdrawing consent would have to be of the nature that I outlined because the test of "cause shown" is exacting and consent could not be withdrawn willy-nilly. It would require a substantial reason, and the opportunity would be available in few circumstances 61 because it is not simply a question of fulfilling the test of "cause shown"; there will be only a short time between issuing the warrant and departure to the foreign jurisdiction. The amendment does not therefore open the gate especially wide, but it includes an important safeguard. I commend it to the Minister.

§ Mr. Paice
I support the hon. Member for Orkney and Shetland (Mr. Carmichael). We supported the thrust of the amendment in Committee when we discussed the need for a safeguard. In my experience, it is rare for legislation to contain such a bold and bald provision, without ifs, buts or caveats, that consent cannot be withdrawn after the issue of the warrant. That appears slightly dogmatic, especially when circumstances could change, both in the country to which the person is about to be extradited and for the individual.
Under clause 47(4)(a), "the prisoner" may give the necessary written consent to being transferred, but subsequently suffer an extreme illness such as a mental breakdown. We may therefore find not only that the individual's circumstances have changed but that subsection (4)(b), which provides for someone else to act on the prisoner's behalf applies. In the extreme circumstances of someone suffering a mental breakdown, other illness or serious accident—one assumes that the latter will not happen to those in custody, but it is possible—it is unreasonable that there is no mechanism for review.
As the hon. Member for Orkney and Shetland said, the amendment would not open the door to abuse of the system or drive a coach and horses through the option to transfer prisoners abroad. I would not support it if that were its effect. However, there is a need for a safeguard in the event of circumstances changing so dramatically that it could be shown that, at the time of transfer, the consent might be unreasonable and that the individual might not have given it in the altered circumstances. The person who gave consent on the prisoner's behalf under subsection (4)(b) might have taken a different stance in the different circumstances. I hope that the Minister appreciates the need for some, albeit small, safeguards. As a non-lawyer, the proposal of the Law Society of Scotland appears to me suitable in providing an opportunity for review in extremis. I hope that the Minister will support it.

§ Caroline Flint
We debated this issue on several occasions in Committee. We have considered the matter further, but we remain firmly of the opinion that amendment to the clause is not necessary. I hope that I can explain practically our intentions and our reasons for wanting to transfer a prisoner to another European country to help with a UK investigation.
Clause 47 deals with circumstances in which a transfer is arranged from the UK, at its request, when UK investigations require a UK prisoner's presence, generally in the capacity of witness, in another country to assist with investigations into an offence committed here. For example, a prisoner might have been involved with or known about other people who had offended in the UK by, for example, being party to human trafficking or drug smuggling. Perhaps that prisoner could identify people known to him or her by attending an identity parade in, for example, France. Prisoners might also be able to identify a property that they had 62 visited and at which those who had offended in the UK were present. Such events do not happen every day but, given that crime knows no national boundaries and that we are trying to deal with that through co-operation, we need to be prepared for them. I have tried to give a practical example to show reasons for wanting to transfer a prisoner abroad to assist with a UK investigation. I hope that it gives hon. Members, people in the Gallery or those listening outside the Chamber an idea of what we are talking about.
We envisage that such circumstances will be rare and the provision does not deal with giving evidence abroad in relation to overseas investigations. Section 5 of the 1990 Act will continue to cover that.

§ Mr. Carmichael
Would it be competent to raise a bill of suspension in respect of a warrant issued under clause 47?

§ Caroline Flint
I shall refer to that point shortly.
Let me consider the amendment, which deals with the warrant and whether, once a warrant has been authorised, someone can go back on an agreement to be transferred. I stress that the warrant authorises but does not require the prisoner's transfer. It enables the transfer to happen, making it legal. It also enables the prisoner to be held in legal custody for the duration of the transfer.
There is a process whereby the authorities engage a prisoner in the whys and wherefores of seeking that person's co-operation. It can take several months for the warrant to be authorised. At any point until the warrant is authorised, the relevant individual can refuse to take part. Police officers in such cases deal with prisoners in the same way as they deal with witnesses or suspects in a purely domestic investigation. They would interview a prisoner whose transfer was desirable in the same way as they would interview members of the public with a view to their providing evidence in a UK proceeding. Prisoners who are purely witnesses would be treated like any other witness; they would be interviewed by an officer and asked to sign a written statement. Suspects would be cautioned like any other suspect. The fact that they are prisoners does not result in different treatment.
The clause requires prisoners, or someone acting on their behalf, to provide written consent to any transfer before it takes place. They will sign a consent form, witnessed by a prison official. Although they are not automatically entitled to legal advice—we discussed that in Committee—prisoners are entitled to seek it before agreeing to a transfer. Indeed, the standard consent form contains a statement which confirms that prisoners have been given the opportunity to seek legal advice. I can provide hon. Members with a copy of the form if that is helpful.
Once consent has been granted, the practical arrangements for the transfer will be put in place by the authorities concerned. When these arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer of the prisoner a few days before the transfer is scheduled to happen. Once that warrant has been issued, the prisoner will be unable to withdraw his consent. There is a process to be gone through in which a person is entitled to change their mind, but the warrant authorises the activity. It provides the 63 framework in writing for proceeding with the transfer. As I have said, the prisoner may change his mind before the warrant is issued.

§ Mr. Paice
I appreciate that the process will take only a few days, as the Minister has reminded us. Will she not accept, however, that a prisoner's health could change dramatically, even in a few days? They could have a mental breakdown, or suffer a serious stroke or heart attack. Something could happen quite suddenly that would dramatically change their circumstances, which could jeopardise their ability to make decisions for themselves. Their conditions would therefore not be the same when the warrant was executed as when they gave their consent.

§ Caroline Flint
We discussed this matter in Committee. If someone has had a heart attack, broken a leg or had a mental breakdown, the people facilitating the transfer would hardly be in a position to take that person in those circumstances. I mentioned the example of a national emergency in the country of destination. We would not necessarily want to transfer a prisoner into such a situation; indeed, we might not want to send the people taking the prisoner into such a situation either. In Committee, I said that in the event of a national emergency in the country of destination or a person being unwell and unfit to travel … there is an opportunity for the Secretary of State to act. We want to ensure that at the end of the process there is a safeguard, so that we do not undermine all the work that has been done preceding the warrant's authorisation."—[Official Report, Standing Committee A. 17 June 2003; c. 203.]
There is nothing to be gained by the people investigating a UK offence if the person in question is unable to take part because of ill health or for other reasons. There would be no point in the investigating officers pursuing a case to that end. In refusing to accept the amendment, we are trying to safeguard against a cat-and-mouse game ensuing, at the end of a process which contains built-in safeguards, and work that has been legitimately pursued—including the signing of a form—not being adhered to.

§ Mr. Paice
I would like to pursue this matter a little further. I understand the Minister's point that it would not be in the interest of the investigating authority to take someone who would be unable to participate in their investigation. I would point out, however, that clause 47(5) defines the circumstances in which it appears to the Secretary of State to be inappropriate for the prisoner to act for himself, by reason of his physical or mental condition or his youth. The fact that the Government have put this in the Bill, and that under clause 47(4)(b), someone else could give consent on behalf of the person in question, implies that the Government are envisaging situations in which a prisoner could be transferred abroad despite a physical or mental condition that might reduce his ability to participate in the investigation. We seem to have that eventuality covered if it arises before consent is given, but if the prisoner's condition should change after 64 consent was given, the situation could not be readdressed. A change to that provision is all the hon. Member for Orkney and Shetland and I are asking for.

§ Caroline Flint
My understanding of clause 47(5) is that it acknowledges that the Secretary of State may find it inappropriate that a person should be transferred, by reason of his physical or mental condition or his youth. That provision is in the Bill as a safeguard in terms of the proceedings.

§ Mr. Paice
I am sorry to have to say this to the Minister, but that is not what subsection 5 says. It defines the circumstances in which the Secretary of State believes that, if the individual cannot make the decision for himself, he can allow another person to give consent on his behalf. It is not to do with a decision that the person would be no use to the investigation, as the Minister suggests.

§ Caroline Flint
I think that the provision states that a prisoner may ask someone to act on their behalf in such circumstances. The clause as drafted requires the prisoner—or, as the hon. Gentleman says, someone acting on his behalf—to provide written consent to any transfer before it takes place. I can provide copies of the forms that are currently available for this purpose, which should allay some of the fears that hon. Members raised in Committee about whether people would be informed about what was happening, and whether they would have the opportunity to resist certain procedures if they did not want to take part. They have that right, up to the point at which the warrant is authorised. There are enough safeguards to ensure that the system operates in a full manner which will give the individual rights and which recognises that there might be circumstances such as ill health or events in the country of destination that would make the transfer inappropriate.
As I have said, when the arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer, a few days before it is scheduled to happen. Once the warrant has been issued, the prisoner will be unable to withdraw his consent, but he may change his mind before the warrant is issued.
Prisoners in these circumstances are being transferred in order to be of assistance to a domestic investigation, so there would be no merit in transferring a prisoner who was unwilling to co-operate, for whatever reason. It would cost the investigating force a large amount of money, with no benefit to the investigation. Prisoners would not be transferred if ill or otherwise unfit to travel.

§ Sir Robert Smith
The implication of what the Minister has just said is that, although she does not want to place in the Bill any process by which the prisoner could change their mind, even after this stage had been reached the authorities could decide that the prisoner was not going to co-operate and that it would not be worth the effort of transferring them.

§ Caroline Flint
The suggestion would be that, in order to transfer a prisoner, there would have to be a voluntary agreement to do so. There would be no merit in the investigating officers pursuing such an action if the 65 person were unwilling to take part. We want to avoid a situation in which, after months of work, someone decides at the last minute and for no good reason that they do not want a transfer.

§ Sir Robert Smith
rose—

§ Mr. Paice
rose—

§ Caroline Flint
I shall not give way, because I have answered the question on this matter.
We want a process that is understood by the investigating officers and the prisoners concerned. These provisions are used in other parts of UK law relating to the transfer of prisoners. Under sections 5 and 6 of the Criminal Justice (International Co-operation) Act 1990, the UK can request that a prisoner held overseas be transferred to the UK, and it can transfer prisoners out of the UK when other countries make requests for prisoners here to be transferred to that country. Clauses 47 and 48 of the Bill implement different arrangements, enabling a country to make a request to transfer a prisoner from its own territory when its own investigations require the presence of the prisoner in another country. These clauses reflect the terms used not only in the 1990 Act, but in the Repatriation of Prisoners Act 1984, section 1(6) of that which prohibits a prisoner from withdrawing consent once granted. That provision is therefore contained in another piece of UK legislation.
Repatriation—permanently transferring a prisoner from one country to another to serve the remainder of their sentence—is a much more definite and final act than the one that we are talking about in this Bill, which simply deals with the temporary transfer of a prisoner to assist with a specific aspect of an investigation. Having different arrangements in this Bill would call into question the basis of existing related legislation. Finally, the warrant in this section is issued by the Secretary of State, not by a court, so the amendment is incorrect in referring to a power of the court that does not exist. For these reasons, we cannot accept the amendments, and I urge the House to resist them.

§ Mr. Carmichael
I would disagree with very little that the Minister has said. She spoke at some length about the safeguards that are in place prior to the granting of the warrant, and I commend her on the thoroughness of her approach to that. Had I had any quibble with the provisions in the clause, I would have tabled an amendment, but I did not. Instead, I tabled a tightly framed amendment relating to the withdrawal of consent after the issue of a warrant.
I asked the Minister in an intervention whether a warrant issued by the Secretary of State could be the subject of a bill of suspension. Those who advise the Minister did not pick up on that intervention, so I do not expect her to be able to answer it off pat. An answer may be forthcoming even as I speak. It is not unknown for bolts of lightening to hit Ministers in these circumstances.
If it is possible to suspend a warrant, it is still possible to get round this provision. The bill of suspension is an unnecessarily cumbersome procedure in these circumstances. Is it still a remedy available to citizens 66 affected by this provision? I do not know whether the Minister has an answer for me. One can never say never, but I suspect that if a bill of suspension were not competent, a petition to nobile officium would remain competent. In Scots law at least, there is always a means by which one can find a remedy when no other exists.

§ Caroline Flint
The question which the hon. Gentleman alludes to involves a complicated part of Scottish law and I do not have the answer to hand. We may have to consult further on that point to see how it would fit in with the exercise of a warrant to transfer a prisoner. I shall get back to him on that point if that is helpful to him.

§ Mr. Carmichael
That would be helpful to me and, no doubt, to others who will deal with this legislation in the courts if and when it makes its way on to the statute book. However, even under subsection (6) as it stands, a prisoner could avoid being transferred. The procedure is exceptionally lengthy, cumbersome and expensive. Surely the sensible thing would be to allow the amendment in the terms that we have proposed to enable consent to be withdrawn on cause shown.
I cannot say that the Minister has put any argument for refusing the amendment. However, we will clearly not make any progress with it, so with some reluctance and disappointment, and with all the questions that we have at the start of the debate still unanswered, I beg to ask leave to withdraw the amendment.