Extradition: UK Law and Practice (Extradition Law Committee Report)

Lord Hart of Chilton Excerpts

Wednesday 16th September 2015 Grand Committee

[Lord Hart of Chilton (Lab)]

My Lords, I had the good fortune to be a member of the Select Committee on Extradition Law, under the extremely able chairmanship of the noble Lord, Lord Inglewood, and with the fine assistance of the clerk and the legal team, who gave us advice and directed our attention to the large number of issues that arose. I have no hesitation in recommending the report to the Committee, because it contains a clear exposition of law, policy and practice, and discusses the important issues that it raises. As the noble Lord, Lord Inglewood, said, we were much assisted by the report of Sir Scott Baker, published in 2011.

Subject to necessary protections and safeguards, extradition is in the public interest because, first, it is essential that those accused of crimes should be brought to trial, and those convicted of crimes should serve their sentences in the place of conviction. Secondly, the United Kingdom should honour its treaty obligations. Thirdly, it is in the public interest to avoid this country becoming a safe haven for criminals.

When considering this subject, it is important to remember that extradition is not about establishing guilt or innocence. We looked in detail at the extradition process and the bars to extradition. We talked to people who had undergone that process, and some of their accounts were very moving. We became aware of the fact that although in cases of murder or theft it was easy to see that a person charged should be referred to the state where the offence occurred, it was less obvious in cases of fraud on global markets, or crime involving the internet. In such cases there are often different individuals playing different parts in different countries, or simply someone operating behind a computer in one country, with dire consequences for victims in other states.

In those cases, difficult questions arise as to where the prosecution should take place. We looked at the guidelines for choosing the appropriate forum—taking into account, for example, the location of the witnesses and their ability to give evidence, the location of the accused and his or her connections with the UK, the location of co-defendants, the availability of extradition and the prospect of proceedings being successful—and, of course, the place where most of the criminality, or loss or harm, occurred.

The aspect of our report that gave me most pause for thought lay in the UK’s extradition arrangements with the United States, even though extraditions to the United States account for a very small proportion of the total number of extraditions. A new treaty was concluded with the US in 2003 but not ratified by its Senate until April 2007 after a visit from the noble and learned Baroness, Lady Scotland.

It has been alleged for some time that the arrangements between the United States and the United Kingdom are unbalanced, but in fact 14 requests from the United States have been refused in this country, whereas in the same period the United States has rejected none of ours. There was much argument about the evidence needed to support extradition to the United States and vice versa—probable cause and reasonable suspicion were the two terms under the microscope. We concluded that although the terms were different, functionally they were the same. What was not the same, however, were certain aspects of the United States justice system which seemed to us unduly harsh—not least those being extradited being shackled in chains on the plane on their outbound journey.

We heard much about the United States plea bargaining system. While it is true that a plea of guilty in our system can achieve a sentence discount, in the United States plea bargaining has become notorious, with some alleging that 90% to 95% of state and federal court cases were resolved through plea bargaining, which has led some to conclude that as a result many people in prison were in fact innocent.

A number of witnesses pointed out that plea bargaining placed a great power in the hands of the prosecutor—I shall come back to that in a moment. The evidence we heard emphasised the fact that extradition often removes individuals to places far from home, without support, facing an alien justice system. Who would not, in those circumstances, it was asked, accept a plea bargain however innocent they felt? The certainty was to be much preferred to the uncertainty of a much longer sentence in a foreign jail. As for human rights, this House, in its judicial capacity, ruled that only in a wholly extreme case would plea bargaining be regarded as an absolute abuse of process. The United States Supreme Court and the European Court of Human Rights also declined to intervene on that basis.

Another aspect for concern was the United States courts’ tendency to refuse bail to those who had fought extradition. In such cases, such conduct—when combined with the fact that an extraditee was not a United States citizen and had no property or family ties in the community—was thus regarded as a flight risk, and bail was refused. Similarly, it was said that some United States prison conditions were so appalling that extradition to the US was extremely harsh. The conditions in some supermax prisons were dreadful. While British prisons are not exactly five star hotels, the lengthy wait for trial in a supermax prison in the United States—particularly for those who have been assessed in the United Kingdom as “low risk” for violence or absconding—seems unduly harsh. As with plea bargaining, the Equality and Human Rights Commission has not found US prison conditions to be in breach of human rights.

Unlike our own prosecuting service, many US prosecutors are drawn from the law engines of the top law firms in Washington and New York, having given up a few years of their career to gain experience and expertise in the US prosecution service before resuming their careers in private practice. They are determined to succeed and take a broad and enthusiastic view of their jurisdiction. Unlike our prosecutors, who rely on police investigation, US prosecutors have investigatory powers and therefore drive the prosecution from its inception.

As the chairman has said, notwithstanding these reservations, we concluded on balance in our report that the United States was not a special case and that its processes and interpretation of jurisdiction were not inappropriate. While the United States is clearly more active in prosecuting cross-border crimes than many others, we did not find that its interpretation of its jurisdiction was excessive. Nevertheless, we did make a recommendation, which Lord Inglewood has referred to, that the UK Government should make representations to the US with particular regard to the transfer of prisoners—that is, the transfer in chains—pre-trial detention and bail for those extradited.

Our recommendation has been rejected and, like Lord Inglewood, I would like the Minister to explain to the House, on the record, the reasons for rejecting our suggestions, because they seem to me extremely practical and sensible and would relieve some of the harshness of the conditions in which extraditees find themselves.