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

Lord Keen of Elie Excerpts

Wednesday 16th September 2015 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am pleased to be here to speak for the Government on the matter of extradition, in which I know the House has taken a close interest over recent years. I will seek to reply to all the points made during what has been an illuminating debate.

I start by thanking my noble friend Lord Inglewood for leading this debate and extend my thanks to the Select Committee members for their thorough analysis of our extradition law and practice.

Of course, this is not the first time that our extradition laws and practices have been reviewed. In recent years, we have seen the independent Baker review and reports from the Home Affairs Committee and the Joint Committee on Human Rights, among others. The Government always read these reports with great interest.

The Extradition Law Committee’s report was particularly timely, with the newer provisions inserted into the Extradition Act 2003 in the last Parliament—such as the forum and proportionality bars—having begun to operate only quite recently. The committee’s review and scrutiny of those reforms have been of help to the Government, and we are grateful for that.

Like the committee, the Government believe that the changes made in recent years to UK extradition law mean that the process now operates more fairly and in a way in which the rights of persons are effectively balanced against the interests of justice. It was under the present Home Secretary that a number of important reforms to the system were made: for example, the introduction of the forum bar and the removal of the Secretary of State’s consideration of human rights issues in favour of that of the courts. Furthermore, the reforms of the European arrest warrant go some way, I believe, to meeting criticisms which have been made of its operation in the past. I will attempt to look at each of the points which have been raised, Should I omit any, I undertake to write to your Lordships on those matters.

I begin by mentioning, by way of background, some very basic statistics. We should remember that, in the context of extradition, we are dealing not just with persons liable to trial but with persons who have already been convicted of criminal offences. In the period between 2009 and 2014, for which figures are available, the United Kingdom received in excess of 29,000 requests for arrest warrants. Of those, fewer than 5% pertained to British nationals. So far as Part 2 requests are concerned—that is, those that fall outwith the European arrest warrant system—there were, in the same period, only 336 requests. That is a tiny proportion of the total. The United States has been repeatedly referred to, and I have just noticed that in the same period, 82 requests were received from the United States and 67 people were surrendered in consequence of those requests. On the other hand, as has already been noted, the United States responded to each and every extradition request which was submitted to it by the United Kingdom. That is an attempt to put the matter into context.

My noble friend Lord Inglewood raised a series of issues—such as assurances, sensitive information being dealt with by counsel, qualified solicitors and legal aid—all of which, to a greater or lesser extent, were touched upon by other noble Lords. I will take some of these matters in turn.

The matter of legal aid was raised by a number of your Lordships. The position of the Government remains as stated in their response to the report. It is considered inappropriate for extradition cases to form an exception to the normal provisions with regard to means testing for legal aid. There is no justification for such a position to be adopted, in our view. In the past year, 1,586 persons were the subject of a European arrest warrant, of whom just in excess of 1,000 made an application for legal aid. In 90% of those cases where legal aid was applied for, the completed application for extradition proceedings to be legally aided was processed within two working days. There are exceptions, and there may be cases where someone refused legal aid seeks a review and further documentary evidence is requested with regard to their means, which can be time consuming. But we are talking about a tiny proportion of a small number of cases. That does not, on the face of it, account for any three-month delays in the extradition process.

Connected to legal aid is the requirement for expert advice to be available to persons who are going to be the subject of extradition proceedings. The noble Lord, Lord Bach, noted that it is not the Government’s position that some form of test or certification should be required in the context of the matter of extradition. I quote from the oral evidence of the district judges which was given to the committee in October 2014:

“There is the duty solicitor situation, which is at the first hearing. We are enormously reliant on our duty solicitors, and our view is that, with one or two possible exceptions, they perform their task extremely well. I am not able to give you, and I do not think either of my colleagues here is able to give you, any example of where we thought that an individual was let down by the duty solicitor”.

Given that evidence, in our view as a Government it is difficult to justify the potentially considerable cost and inconvenience of seeking to introduce a certification system in regard to extradition. Accordingly, it remains the Government’s position that we will not go down that route.

My noble friend Lady Wilcox alluded to the provision of personal support units in the matter of civil cases before the courts and inquired whether it might be possible to extend such a provision to cases of extradition. It is a point that we notice and a point of interest, and I will undertake to write to her on the subject to see whether that matter can be taken forward. It is a novel suggestion, and one that we are willing to consider very seriously.

On assurances, matters are still the subject of inquiry. We are asked when it is likely that the Government will complete their analysis of this matter. They have undertaken to do so before the end of the year. As the noble Lord, Lord Bach, will be aware, winter comes early in Scotland, and so when we refer to “autumn” we may be there already. We are concerned that that should be done thoroughly and carefully rather than quickly. I can assure your Lordships that once that inquiry has been completed, we will seek to make your Lordships aware of its terms.

A further matter arose from the context of the United States so far as assurances are concerned. It is the position of the Government that courts are best positioned to determine what assurances may be required in each individual case of extradition. That extends to the matter of how a person is to be transferred, how the risk is to be assessed so far as their transfer is concerned, and what demands might be sought by way of assurances for bail; remembering, of course, that extradition can proceed only in trial-ready cases. However, of course, that may nevertheless involve delay before a trial commences.

There are of course varying standards of prisons, and various standards are applied in the matter of bail as between different jurisdictions. As a matter of comity, we have to be prepared to accept that in order that the extradition system can operate. There has to be a degree of reciprocity.

The noble Lord, Lord Jones, alluded to the shock and fear of persons facing a foreign court. I can appreciate that. Equally, there is the shock and fear of persons facing a British court when charged with serious criminal offences. I might go further and speak by way of personal experience of the shock and fear faced by advocates sometimes facing British courts. However, it does not understate the problem. One understands that anyone who is faced with serious criminal charges will be shocked and fearful for their future, and all the more so when they are placed in a foreign jurisdiction. Nevertheless, these issues are incident to the comity that applies in the context of extradition.

If we wish to ensure that we are not a haven for criminals, we must maintain a civilised and suitable system of extradition. If we wish to secure the return of those who have committed serious criminal offences in this country, we must be prepared to allow for some degree of give and take over standards of bail, imprisonment and sentencing.

That brings me to the issue of plea bargaining. Much is said about that in the context of the United States, but at the end of the day, it is not accepted by any court that the plea bargain system is not convention-compliant. We have to acknowledge that. It may not be something that we would wish to embrace; it may not be a system we admire—but again, as a matter of comity, there has to be a degree of give and take if the extradition system is to function effectively and properly.

The noble Lord, Lord Rowlands, asked about the effectiveness of the European arrest warrant in its present form. We are confident that, with the addition of the proportionality issue and the forum issue, we now have an effective system for the European arrest warrant. There were difficulties in the past, but we believe that we have moved on from there. Going back to the subject of the United States, it is again important to bear in mind the question of forum. It will be for a British court to determine where, essentially, a crime is considered to have been committed. We live in an internet age and a joined-up world. An act in one country can have its effect in another, many miles away. Nevertheless, the introduction of the forum defence—or the forum issue—gives us a further lever to ensure that appropriate cases are dealt with in British courts and are not the subject of extradition.

In that context, I would add that we still regard the arrest warrant as the final step to be taken. I reassure your Lordships that that remains the Government’s view: it is a matter of last resort.

[Lord Rowlands]

I apologise for interrupting the Minister, but could he advise us what stage has been reached with the Commission’s revised handbook, in which the Government have said they want to embed the principle of last resort?

--- Later in debate ---

[Lord Keen of Elie]

I understand that we are working with other EU states and the Commission on this matter. One of the aims is to ensure that appropriate consideration is given to other instruments, but there is no clear idea of when that work will be concluded.

I have been given a two-minute warning, so I will endeavour to deal with the other matters that have been raised now, if I can. I have talked about legal aid and accreditation, and proportionality. As for certification, as I have said, we hope to publish the review before the end of the year, and I would be happy to write to my noble friend Lord Inglewood and the Home Affairs Select Committee when it is available, so that it may be given consideration.

The noble Lord, Lord Bach, raised the question of liaison with family courts in the context of extradition. I can advise that there is ongoing discussion with the profession and the courts over that issue. We understand its importance, and we are seeking to explore it and come to a view, so there is ongoing work there.

My noble friend Lord Inglewood raised a further point about proportionality. I will just make it clear that, as matters now operate with the European arrest warrant, consideration will only be given to cases where, subject to trial, a sentence of at least three years’ imprisonment would be imposed. In the context of a convicted party, a sentence of at least four months should have been imposed before extradition will be considered. That has to be borne in mind. Consequently, we are in a position to avoid the sort of trivial cases—or cases that were claimed to be trivial—that were made in the past. However, the Government do not consider that it would be possible to go further than this when dealing with cases of conviction without potentially breaching the framework decision that underpins the arrest warrant itself. That is why we feel it would be difficult to go further in that context.

I have some figures among my many notes that I want to mention in answer to the question which I think the noble Lord, Lord Rowlands, asked about proportionality. Since the introduction of the proportionality bar in July 2014, the National Crime Agency has refused to certify 224 European arrest warrants on the basis of the bar and other discretionary grounds. I hope that figure assists the noble Lord.

The Government are confident that the extradition process now operates in an effective and appropriate manner, balancing the interests of justice with those of the individual. The necessary protection is provided by the courts, which have the means to seek assurances from other jurisdictions in particular circumstances and according to individual cases. Of course, the question of policing those assurances is a difficult one, but the Government do not believe that a memorandum of understanding is the way forward, as that would simply raise the question of how we police the memorandum of understanding. As I say, that matter is still the subject of further inquiry.

In closing, I once again thank my noble friend Lord Inglewood, the members of the committee and all those who have spoken today. I only hope that in replying, I have done justice to the debate.

[Lord Empey]

My Lords, before the Minister sits down, could he update us on the Polish situation, which was producing such a vast number of cases at the time we were investigating?

[Lord Keen of Elie]

I am aware that, according to the statistics over the past five years, a very large proportion of European arrest warrant requests—in excess of 30%—did emanate from Poland. I will write to the noble Lord with updated figures, as I do not have them to hand at present.