HL Deb 16 December 2003 vol 655 cc1075-9

4.12 p.m.

Baroness Scotland of Asthal

rose to move, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].

The noble Baroness said: My Lords, I shall speak to this order together with the following two orders. I hope that I can be relatively brief as I believe that, unlike the order that we have just discussed, they do not contain anything very difficult or contentious. However, I shall respond specifically to the questions that have been indicated to me by the noble Baroness, Lady Anelay of St Johns, so I may speak more fully than I would otherwise have done.

As I mentioned, our aim is to bring the Extradition Act into force for 1st January 2004 to enable us to bring in the European arrest warrant on that date. The first of these orders is concerned with the designation of the UK's extradition partners under Part 1 of the Act; that is, those countries that will be operating the European arrest warrant from 1st January 2004.

As your Lordships will see, it contains seven names rather than the 14 that your Lordships might expect. Those seven countries are the countries that have confirmed that they will definitely be able to operate the European arrest warrant from the start of next year.

Your Lordships may find it helpful to know the latest state of play on implementation in the seven countries which will not make the 1st January deadline. France and the Netherlands expect to be ready by the end of January 2004 and Austria, Germany, Greece and Luxembourg expect to be ready by 1st April 2004 at the latest. Italy is also saying the same, although whether it will actually be able to achieve that remains to be seen.

We have put those countries that are able to operate the European arrest warrant from the first day of next year into category 1. The remaining EU countries are designated as category 2 countries in the order that we have just debated and will be moved up into category 1 when they begin operating the European arrest warrant.

The second order brings into force the codes of practice governing the exercise of police powers in extradition cases. The powers are very closely modelled on those in PACE, although with the necessary modifications to reflect the fact that the police are not actually investigating the offence.

As in PACE, there is a requirement to produce codes of practice; and these are they. We put them out for consultation over the summer. We are grateful to all those who took the trouble to respond. Your Lordships might find it helpful to have an outline of the changes that have been made as a result of the consultation exercise.

In addition to taking on board many of the detailed and helpful suggestions made by respondents, we have made the following key amendments. At the suggestion of the Metropolitan Police Service, we have restructured the codes to follow the structure and format of the revised PACE codes of practice. We hope that this will make the extradition codes of practice easier for police officers to follow. We also think that this format makes it easier to see where procedures in extradition cases differ from those in domestic cases.

The Law Reform Committee of the General Council of the Bar and the Metropolitan Police Service both suggested that the wording of the new caution was ambiguous and could call into question the admissibility of evidence seized in this country in proceedings abroad. We have therefore amended the wording of the new caution to follow the formulation of the caution in PACE Code C, Annex C, which contains a restriction on drawing adverse inferences from silence.

We believe that this formulation is familiar enough to officers to meet the concerns of those who felt the alternative extradition caution would be difficult to remember. We also believe that this caution is appropriate for use in extradition cases, where we cannot speak for the criminal justice system of the requesting country, and where the police will not question the person about the extradition offence.

At the suggestion of the Information Commissioner, we have made a number of changes to the sections relating to the use, retention, disclosure and destruction of photographs, fingerprints and DNA samples. We have also set out the person's rights in a fair processing notice. This is contained in the written extradition notice—Annex D to Code C—and will be given to every detained person by the custody officer.

At the suggestion of 95 per cent of respondents, including the Magistrates' Association and the Law Reform Committee of the General Council of the Bar, we have revised the section of the codes which prohibits officers using their search powers to investigate the extradition offence on behalf of the requesting country. We considered the alternative formulations proposed by the Metropolitan Police Service, the Bar Council and the Magistrates' Association and have amended the text.

Code B, Paragraph 1.3 now states: Searches conducted under powers in the Extradition Act 2003 may only be undertaken for the purpose of obtaining evidence of the extradition offence for use in the prosecution of the person accused of the extradition offence. Officers may not investigate crimes on behalf of the requesting authority or territory, other than to speak to persons for the purpose of assisting establishing ownership or connection to the property. Items relating to a person's identity and offences other than the extradition offence, may, if found, be seized in accordance with the provisions of the Act and this Code". We think that this formulation makes clear that officers may not undertake investigation of the extradition offence. We have taken care to ensure that this policy is reflected throughout the codes of practice. Code B contains detailed guidance on the information required before a judge may issue a search warrant, and Code C states explicitly that officers may not interview individuals arrested for extradition.

The final order designates those people who can apply to a UK magistrate for an outgoing European arrest warrant. As well as the police and a procurator fiscal, who are catered for on the face of the Act, we are giving this facility to the Crown Prosecution Service, the Inland Revenue, Her Majesty's Customs and Excise and the Serious Fraud Office. I cannot believe that there can be any serious objection to that.

I apologise for having spoken at some length, but three significant orders are before us, and I was anxious to answer as fully as I could the questions properly put to us by the noble Baroness, Lady Anelay. I hope that I have done that as comprehensively as she would require. With that explanation, I hope that your Lordships will agree to the three orders. I beg to move.

Moved, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)

Baroness Anelay of St Johns

My Lords, I am grateful to the noble Baroness for not only dealing with the orders but for expanding on them further than was possible yesterday in another place. I am grateful to her for answering fully the questions of which I gave her advance notice.

I notice that the noble Baroness took the orders in a different order from that on the Order Paper; I shall follow her lead. I understand why she did so; the order of printing has varied overnight from that which we anticipated.

The noble Baroness dealt first with the designation of Part 1 territories where the countries so listed will be able to implement the European arrest warrant. As she knows, that is a controversial matter in our eyes because we were concerned about which countries would be ready to be up and running with what we consider to be an unacceptable procedure in itself. I note that she was diplomatic in her reference to those of our current EU partners that will not be able to be on the list now, but which the Government hope will join the club later.

It must be disappointing for the Government that those EU partners have not all been able to comply. I note that the noble Baroness gave some possible start dates: the end of January for France and the Netherlands; for Austria, Germany, Greece and Luxembourg, 1 st April; for Italy the Government are aiming at 1st April, but that, she says, remains to be seen. That is disappointing for the EU when the presidency has been in Italy's hands for the past few months. Of course, my underlying feeling must be that if those countries are going to get systems right, it is better to wait for that to ensure that they operate correctly what can be the draconian procedure of the European arrest warrant.

The noble Baroness was generous in her response to my questions on the next order, which brings into effect the code of practice. When we debated the Bill in Grand Committee and at Report, I had been concerned about possible ambiguity, especially about whether there was a distinction between investigation of the extradition offence and obtaining evidence for the prosecution of the extradition offence. I am grateful to her for pointing out where amendments have been made to that and how. Having read the draft code of practice, I agree that the redrafting is indeed much more acceptable than the original.

I am also grateful to her for explaining which other parts of the codes have been redrafted. I shall not refer to those, because I welcome the redrafts and consider them perfectly proper. My only final remark concerns Part 3 designation, which designates those people who will be able to apply for a Part 3 warrant. We accept that the list is appropriate and we support that order.

Lord Goodhart

My Lords, I am happy to support these three orders. I entirely understand why only seven states are designated under Part 1. The Government have gone the right way about dealing with that. Perhaps I should add that I am sorry that they did not use the same procedure for the United States and defer that order until the treaty had been ratified by the American Senate.

We also have no objection to the designation under Part 3. We are glad that the Government have taken into account the various representations made about the draft code of practice. It has undoubtedly been improved as a result.

I should like to raise one point. When scanning through the code, I came across one paragraph that leaves me completely befogged. I do not suppose that the noble Baroness will be able to provide an immediate answer, but perhaps she could write to me about it, because it is extremely difficult to understand. Paragraph 2.6 of code B states: This Code does not apply to the exercise of a statutory power to enter premises or to inspect goods, equipment or procedures if the exercise of that power is not dependent on the existence of grounds for suspecting that an offence may have been committed and the person exercising the power has no reasonable grounds for such suspicion". I should be interested to know exactly what is the meaning of that paragraph. However, that is not a ground for any fundamental objection to the order; we are therefore happy to agree to the making of the orders.

Baroness Carnegy of Lour

My Lords, from the order itself, noble Lords who have not followed closely the passage of the Bill will probably not realise that the order does not apply to Scotland. In Committee and at Report, we discussed that matter in detail. The Government, with the support of the Lord Advocate in Scotland, were of the view that, although it is a Westminster, United Kingdom Bill—a Great Britain Bill—it was not appropriate for the Westminster Parliament to require the Crown Office in Scotland to produce a code of practice.

I do not think that the noble Baroness takes the matter as seriously as I do. Having heard her full fleshing out of the contents of the codes of practice, I am anxious that the Scots police, who will be performing precisely the same task as police south of the Border, have the support of a proper code to guide them. The people of Scotland deserve that.

Has the Lord Advocate decided to issue a code of practice? If the noble Baroness does not know, perhaps she could find out and let me know, because this is a Westminster responsibility under a Westminster Act. We should be sure that the people of Scotland are protected in the same way from wrongful action by the police.

Baroness Scotland of Asthal

My Lords, first, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, for their fulsome support for these orders. I am tempted to give the noble Lord, Lord Goodhart, a full explanation, but he may be teasing me. He will know that paragraph 2.6 has been drawn precisely from the equivalent passage in the main PACE codes. Notwithstanding that, it will be my privilege and pleasure to give him a full written response, so that noble Lords need not be detained overlong with the matter.

I am in a less comfortable position with the noble Baroness, Lady Carnegy. I do not know whether the Lord Advocate has yet made a decision about the code of practice; I shall certainly inquire. I hope that the noble Baroness has noticed that the Procurator Fiscal has been included in the code as one person who can make appropriate orders. I will certainly write to the noble Baroness about the matter.

On Question, Motion agreed to.