Reference
CODE 18-77
responsibility of HMG under Article 2. Therefore, provided the assistance provided is strictly limited in the ways described in TUR, it is unlikely to result in breaches of international legal obligations by the UK.
3.
You also requested advice on the legal position regarding extradition in cases where a death penalty might be imposed. One essential difference between MLA and extradition requests, is that in the case of the latter, the individual is by definition within UK territory and subject to our jurisdiction. Therefore, our legal responsibility for the treatment of that person is engaged under Article 2 of the ICCPR. Handing over that person to another State whose courts might impose a death sentence is not a breach of the ICCPR in itself; retention of the death penalty is permitted under Article 6 of the ICCPR. But Article 6 only permits it to be imposed (a) "for the most serious crimes"; (b) "in accordance with the law in force at the time of commission of the crime"; and (c) "not contrary to the provisions of the present Covenant". If we were to hand over a person to another State knowing that the death penalty is likely to be imposed, coupled with other treatment inconsistent with the ICCPR such as an unfair trial, or degrading treatment or punishment, that would constitute a breach by the UK of Article 7 of the ICCPR. We therefore do not conclude extradition treaties with States where such occurrences are commonplace (I cannot imagine we would consider one with China) and I would think that nowadays all new treaties would be designed to enable us to refuse extradition in particular cases on human rights grounds. will no doubt be able to provide further enlightenment.
4.
NTCD
A
While the legal considerations applicable to MLA and extradition requests are thus very different, I doubt that the distinction would be seen so clearly in political terms. number of aspects of HK's proposals require careful consideration on policy grounds. Our tel 1464, para 2, indicates that were the UK to receive a request through Interpol in similar circumstances the assistance would probably not be granted without a death penalty assurance. (In the case of China, I wonder whether we would grant any assistance even with such an assurance?). It would be helpful to know which FCO department is consulted in relation to Interpol requests, and what criteria they apply. I regret I do not know the answer to your question 3(b), and suggest you try NTCD. (I should be interested to see any comments Mr Dinsdale may have). Where requests for obtaining evidence in the UK in connection with criminal proceedings overseas are made under the Criminal Justice (International Co-operation) Act 1990, the Home Secretary decides whether the request should be granted, and if it is, the evidence is obtained by a court. Last year I discussed with the HO legal adviser how and to what extent human rights criteria would be applied, and was told that a central authority would be established within the HO for handling all requests, and that there would be an FCO secondee there whose job would be to assess the human
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