Police and Justice Bill

This group of amendments were briefly alluded to in our debate on the previous group, but the arguments were not developed. It is our view that these two groups are significantly different from each other. In order to complete those arguments, it may be right for me to put on record our fuller contentions. Bearing in mind the previous vote, I appreciate that a Division on this amendment is likely to have the same result. So, to complete the slap which this House wishes to give the other place, I want to make it plain that on behalf of the Government I did justice to the arguments that were put. The effect of the amendments would be to require the district judge in an extradition hearing to decide whether the wanted person should be tried in the United Kingdom if the person is not to be let free. I would suggest that that would not be practicable in the United Kingdom, as it is not required of judgesin any other context. It is the prosecuting authorities in the United Kingdom which decide whether to bring a prosecution, basing their decision on the usual public interest test. When a person is sought for extradition, there is right now no legal bar to stop the prosecuting authorities from deciding to launch a domestic prosecution for the extradition offences, provided there is the jurisdiction to do that. If a domestic prosecution was launched, the extradition request would be adjourned. It would almost always be terminated if the person was later acquitted or convicted of the offence. That part of the amendment which requires the judge to take into account whether the competent UK authorities have decided not to prosecute would introduce a possible cause of delay to extradition proceedings, as judges might have to adjourn to ascertain the position of those authorities which may not even be aware of the allegation. If the authorities decline to take a decision on these matters, to what extent would that help the judge decide whether it is in the interest of justice that a person should be tried in the requesting state? Those matters were not dealt with by the noble Lord, Lord Kingsland. Even if the judge had such a thing as a clear decision before him, would that really assist him? A decision not to prosecute domestically might bean indication that the circumstances favoured prosecution taking place in the requesting state; but that is not a test which our prosecuting authorities are required to apply. Nor could a judge take such a decision as an indication that no prosecution should take place, even in the requesting state. A decision on that basis would risk breaching our international obligations to the state which has decided that it is able to try the wanted person. In summary, this part of the amendment would not have the effect that the noble Lord anticipates. It would not provide the necessary assistance to the judge. Although both the framework decision onthe European arrest warrant and the European Convention on Extradition have an optional ground for refusal of extradition where the offence was committed in whole or in part in the territory of the requested state, the United Kingdom has chosen not to implement this ground for refusal explicitly inits law. The United Kingdom has in the 1989 and the 2003 Extradition Acts implemented a slightly different ground for refusal. It is based on dual criminality where the offences for the wanted person were committed outside the requesting state. In the interests of justice, the United Kingdom took the view when enacting both Acts, that extradition could proceed where the person was wanted for conduct committed at least partly in the United Kingdom, providing that the UK had the same jurisdiction to try the conduct if it had occurred outside the UK. That degree of flexibility is important in many extradition cases where the person is wanted for complex cross-border crimes concerning, for example, people trafficking, drugs trafficking and money-laundering, and where in theory a number of states had jurisdiction to try the case. An example, of course, is the Enron Three case where the court, in reviewing the decision by the Serious Fraud Office not to prosecute, came to the conclusion that this was an American case and that the prosecution should take place in that country. Finally, if there was to be any way forward on the issue of forum, it would have to take into account the need not to fetter the discretion of our independent prosecuting authorities. It would have to be a solution that would not introduce unnecessary delays in the system. It would have to meet our international obligations; and it would indeed have to operate in the interests of justice. We have a proud history of our prosecutors being able to make independent decisions free from the Executive and free from any other improper influence. I therefore urge your Lordships not to confuse the two amendments—they are separate and distinct—and not to press this amendment at this time. Having had a resounding success, I invite the noble Lord, Lord Kingsland, to be content with that and not to press this amendment at this stage.