UK Extradition Arrangements

Charlie Elphicke Excerpts

Monday 5th December 2011 Commons Chamber

[Mr Blunkett]

That is often undertaken—albeit not to the degree that has just been described—in our court system to ensure that people can enter a plea bargain, so it is not unfamiliar to any of us.

[Charlie Elphicke (Dover) (Con)]

Will the right hon. Gentleman give way?

[Mr Blunkett]

I will not give way any more, because I will lose time.

On the American treaty, there is therefore room for negotiation on the side to take account of my central point: we live in an entirely different world with cyber- attacks. Cyber-attacks from our country on installations in our country can easily be dealt with, but cyber-attacks from a country on the installations or businesses of another country, such as the Pentagon, raise all sorts of issues about how we go forward.

There are rogue and emerging states in terms of cyber-attack and cyber-terrorism to which we would certainly not want to say, “Please would you try the individual in the state from which the attack took place,” and, as such attacks are trans-border and affect installations throughout the world, we need to sit down and work out how we deal with that entirely new eventuality, which affects people across the globe. If we do not, we will rue the day.

With an agreement between prosecuting authorities, it would be perfectly feasible to use video conferencing so that the accused could not only take part in the trial and be questioned, but view the trial and, if found guilty, serve their sentence in a friendly state, where everyone agreed that conditions were acceptable. Let us have the further review on the back of Scott Baker. We have had the review that people wanted, and they do not like it. By all means let us keep reviewing it, but let us do so with a degree of common sense and balance, in the spirit of this debate.

I am aware that there will not be a vote this evening. I know that the Government will take this seriously, but I also know that they will have to govern and they will have to do business with a friendly state where the judicial system is free, open and based on rights, and we should respect it as such.

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[Mike Crockart (Edinburgh West) (LD)]

I, too, begin by welcoming the debate and congratulating my hon. Friend the Member for Esher and Walton (Mr Raab) on securing it. Last week’s debate in Westminster Hall and the number of hon. Members present tonight show the strength of feeling on this important issue. It is absolutely right that it is debated on the Floor of the House.

Some 140,538 individuals have added their signature to the “Free Babar Ahmad” e-petition, which is rightly the catalyst for this debate, although the problem is much wider, as has been shown. I am glad that such cross-party support exists—even the Daily Mail, which I do not normally read, supports the campaign—but it was not always so. The Liberal Democrats have been vocal in our criticism of the lopsided extradition arrangements between Britain and the US for many years. Indeed, my hon. Friends the Members for Somerton and Frome (Mr Heath) and for Southport (John Pugh) were the only Members to vote against it in a scrutiny Committee. In 2006, we proposed amendments to the Extradition Act 2003 to protect the freedom and fair judicial treatment of British citizens, but, sadly, the previous Government refused to accept them.

I am pleased that the Liberal Democrats are acting on this issue in government and that my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell) will lead a Liberal Democrat review of UK-US extradition arrangements. I await the findings of his report with interest.

No one is denying that extradition remains a necessary process in pursuing the ends of justice. It is rightly founded on the concepts of reciprocity and mutual respect among jurisdictions, although it recognises differences between them. However, extradition also deals with the most basic human right—that of liberty—and as such we must ensure that it is not entered into lightly or without proper process and oversight.

The affect of extradition on that basic right has been examined in detail regularly and recently by the Joint Committee on Human Rights and other Committees of both Houses. Reform is now advocated by Members on both sides of the House, which is to be welcomed. Both in the House and outside, it is recognised that extradition has changed. The process altered significantly in the wake of 9/11, as my hon. Friend the Member for Esher and Walton said. Although the aim of such change was undoubtedly positive, the reality is that arrangements continue to be open to abuse.

A few high-profile cases have demonstrated that to all. The lack of discretion to allow the UK to decline extradition when the case should be prosecuted in the UK has become synonymous with the case of Gary McKinnon; problems with the European arrest warrant and trust in suitably high standards of justice in Europe are synonymous with the case of the British student Andrew Symeou; and the lack of a prima facie safeguard, previously an integral part of UK extradition law, is synonymous with the case of Babar Ahmad. High Court rulings even today give examples of further concerns, on, first, the definition of a “judicial authority” and whether that authority is truly independent; and, secondly, on whether extradition should be allowed when no charges have been laid, or whether it should be limited to being for the purpose of trial or sentence.

Those concerns add to the feeling that there is no reciprocal arrangement in practice. For every person extradited to Britain from the EU, we surrender nine back. We have surrendered 50% more of our citizens than the US. Today’s motion would implement the JCHR recommendations, which offer basic safeguards to prevent miscarriages of justice and deal explicitly with the concerns highlighted by those cases. The Committee suggests a forum clause that would allow UK courts to refuse extradition when an individual should be tried in our country; a requirement for any requesting country to show a prima facie case; and proportionality checks to ensure that EAWs are not issued for minor offences.

As well as proportionality, the presumption that human rights are respected equally in EU member states is another significant issue with EAWs. The JCHR was minded to agree that judges are reluctant to refuse extradition on human rights grounds because of that presumption. As such, we agreed with evidence given by Liberty that highlighted the clear difference between equal protection of all rights in practice and protection in law, which means that there is a need to give defendants the ability to rebut the presumption of equality.

The Committee is clear that we need to deal with significant EAW issues, even if that means renegotiation of the framework decision. I am heartened by the Government’s willingness to act on that.

[Charlie Elphicke]

My hon. Friend is making an excellent speech. Does he support the principle of renegotiating things in Europe to get the right balance in our relations with the EU?

[Mike Crockart]

I do indeed. That is exactly what the JCHR report asks for. It supports that unequivocally, as do I—[Hon. Members: “Hear, hear!”] That does not make me anti-European, however.

I am not saying that the use of EAWs has not been beneficial to the UK and Europe in the fight against serious and organised crime, or, to a certain degree, helpful in establishing a common area of freedom, security and justice, but we should not ignore the problems to support such advances.

The independent Baker review focused on five areas of extradition. Although I disagree with many of its findings, I share many of its points. On the Home Secretary’s power to extradite, I instinctively have grave reservations in giving Ministers further powers when the distinction between state and judiciary becomes blurred. I believe that human rights considerations are more appropriately examined by the judiciary rather than a Minister, with proper consideration of relevant case law.

The Baker review also calls for a strengthening of legal representation in both issuing and executing states; an improvement in the process for the removal of EAW alerts, which was highlighted by the dreadful treatment received by Deborah Dark; and the prevention of excessive pre-trial detention. As a side comment, I would say that seven years is almost certainly excessive. There is a degree of unanimity on the need to act on those points.

One fundamental consideration is lost in the detail: whether our constituents—British citizens—have sufficient protection in respect of their safety and human rights. As Liberty eloquently wrote in its 11 November letter to the Home Secretary, that is a balancing act:

“There is, of course, a balance to be struck in any system of extradition between the public interest in expeditious extradition to enable prosecution of crime and the provision of essential safeguards to ensure procedural fairness for the accused…the Extradition Act 2003 secures the former at the dangerous expense of the latter.”

I agree that the balance is wrong, and commend the Government’s willingness to re-address it and secure the fundamental rights of the nation’s citizens. However, I trust that the Minister will put a time scale on the willingness to act that is more precise than the one he articulated in last week’s debate. Such affronts to justice have waited too long. We must put them right and do so soon.

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[Michael Ellis]

I agree. As I said, I acknowledge that there are some serious defects with the European arrest warrant, but the motion conflates the European arrest warrant with the UK-US arrangements and I want to inject an important observation about those arrangements into the debate.

The law enforcement relationship between our two countries is predicated on trust, mutual respect, protecting our peoples and removing safe havens as options for those people who seek to evade justice. It is also important to remember that the United States is, as the Baker report illuminated for those who might not otherwise agree, a rights-based democracy in which accused persons have fundamental protections provided by the constitution to ensure that they are able to participate effectively in a criminal trial process that is conducted fairly. It is important to emphasise that our Anglo-American relations are predicated on those facts and on our acceptance that the United States system of jurisprudence provides a very advanced state of rights-based democracy for accused persons.

[Charlie Elphicke]

My hon. Friend is making a powerful speech, but let me ask him a question. If I were facing a Texas jury having been extradited from my homeland here in the United Kingdom under the extradition treaty to face trial, would I have recourse to legal aid or something analogous to it under the wonderful rights-based system in the United States?

[Michael Ellis]

The systems provided by the United States are accepted by the international community as being perfectly amenable to the interests of democracy and the rights of the individual within the state of Texas and other states of the American union.

Approximately a year ago, Her Majesty’s Government commissioned a report—the Baker report—to which several colleagues have referred and which I am holding. It is 500 pages long, it took one year to complete and it was conducted by three eminent jurists: Sir Scott Baker, who was called to the Bar some 50 years ago, and two eminent lawyers, both of whom have acted for Governments and for requested persons and have therefore dealt with this issue on many occasions and from both sides of the fence. They came to the conclusion that there was no significant difference or imbalance between the extradition arrangements in the United States and the United Kingdom. That is the crux of this matter. Many of the previous speakers seemed to assume that there were imbalances, which they criticised, but they did not address those alleged imbalances.

I have heard no evidence, and the Baker report came up with no evidence, pinpointing where there is imbalance. There is different terminology, with “reasonable suspicion” being used often in the UK arrangements in relation to the evidential burden that is required, whereas “probable cause” is used by the United States. Those two terms may be slightly different in phraseology but they mean very much the same thing, and those who have analysed the position in some detail, either in the Baker report or elsewhere, have come to that clear conclusion.

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[Charlie Elphicke (Dover) (Con)]

It is a pleasure to follow my hon. Friend the Member for Northampton North (Michael Ellis), who made a passionate defence of the current arrangements between the United Kingdom and the United States. I regret that although I agree with him on so very much, on this rare occasion we will have to part company in our legal and political analysis of the situation.

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing the debate. It is good to have the debate on the Floor of the House and to see a measure of consensus emerging as the debate has gone on. I have looked at the extradition treaty between the United States and the United Kingdom, so boldly defended by the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) who, sadly, is no longer in his place. As a former Home Secretary entering into that agreement, one would expect that.

I have some difficulties with the treaty. The first of those, which has vexed many, is on the issue of reasonable suspicion versus probable cause. As everyone who has read the Scott Baker report will know, probable cause is reviewed on page 239, paragraph 7.35, where it is defined as

“a reasonable belief that a person has committed a crime”.

There is a difference between a reasonable suspicion, which is the arresting standard in our jurisprudence, and America, where probable cause is a reasonable belief that a person has committed a crime. Belief is clearly a higher test than suspicion. As I know from my time in my books, a suspicion that someone has committed a crime is a sense that that might be the case. Belief is a higher level than suspicion. Suspicion is maybe, maybe not; belief is “I’m pretty sure.” I think we should be careful about that. Indeed, the Scott Baker report discusses the difference at some length but later glosses over it.

This error, which in my opinion results from the use of different legal definitions in our two systems, has crept into the defence of the treaty. Indeed, His Excellency the American ambassador to the Court of St James, Louis Susman, has decided to take an interest in our internal affairs and wrote in The Daily Telegraph today that there is no real difference. I think that in a deep sense there is a difference. He states:

“In all extradition cases, the UK authorities always begin by considering whether an individual can and should be tried in the UK instead of being extradited. Once the UK authorities decide that the case should be tried in the US, all extradition hearings are then held in UK courts”,

and then off the person goes. My difficulty with that argument is that I see nothing in the treaty that makes that the case. There is a provision in the treaty that states clearly, in my humble opinion, that just because no action is being taken in the UK the person can be extradited. Nothing states that. Paragraph 4 of article 2 states:

“If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances.”

It also seems clear, in the paragraph relating to no prosecution, that if charges are not made in the UK the person can be extradited, but even if charges were laid in the UK, my reading of article 5 is that there is no bar on extradition being sought from the United States in that case either.

My fundamental trouble with the support being given to the US-UK treaty in its current format is very simple: if a crime is committed or alleged to have been committed on British soil so that the act of the crime, what lawyers call the actus reus, was in the UK, meaning that the deed was done in the UK, surely the proper forum is the UK. Many of the cases that we have discussed tonight and that have caused so much ire are cases where people in the UK have allegedly committed crimes for which the foreign requesting jurisdiction, typically the US, is asking for them, and we know that if a crime has been committed it has been committed in the UK. Surely the right place for that person to be tried is the UK, for all the reasons my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has given. For example, they have their friends, family and loved ones around one, they have a house, they do not have to pay to maintain themselves and they have access to legal aid.

If people are shipped over to face a jury in Texas, as the NatWest Three or Enron Three were, they will know very well that they will have to maintain themselves, that they are far from their loved ones and best advisers and that they will have to pay all the fees if they want to see the court case through. When someone faces the massive likelihood of a conviction because there is a Texas jury and they are not from Texas, which regrettably can be the case, they will accept a plea bargain that is made to look very enticing and attractive. They can have a massively long sentence of multiple years on the one hand or a very short sentence on the other. What will they do? Of course they will accept the plea-bargain. I think that that is incredibly unfair. If people in that situation have committed a crime, it was in the UK and they should have been prosecuted in the UK.

There is a provision set out in paragraphs 4 and 5 of schedule 13 to the Police and Justice Act 2006 that does not seem to have been commenced, and I wonder whether the Minister for Immigration might be able to enlighten the House on whether it is likely to be commenced, and if so when, so that there can be the kind of forum bar, which I and so many Members have spoken about this evening, to right that balance so that there will not be the lingering feeling of injustice.

The other issue is the European arrest warrant, and I was glad to hear my hon. Friend the Liberal Democrat Member for Edinburgh West (Mike Crockart) say that it was an area for righteous renegotiation with our friends in Europe. I agree. We should renegotiate in the national interest and, indeed, in the interests of the people of this country, when it is right to do so, and that area should be looked at, if only because it has been so massively abused—for fishing expeditions, for investigating crimes and for wrongful processes. We therefore need to rebalance that and to get the balance right.

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[Chris Bryant]

It was partly because Russia has made a large number of extradition requests to this country to which we have said no because Timothy Workman, the judge in charge, has decided on each occasion that they were being advanced merely for political reasons, whereas when we make extradition requests, such as for Mr Lugovoy, who is sought for the murder of Alexander Litvinenko, the Russian state simply says that no Russian national will be extradited. I do not think that there should be a distinction between different nationalities.

My second minor point is that I suspect that statistics throw far less light on the matter than one might think. It is true, for instance, as the hon. Member for Esher and Walton mentioned, that the number of extraditions from the UK has risen dramatically since 1975, but then so has international travel. Moreover, although there was just one extradition to Spain in the decade up to 1973 compared with 61 in the past seven years, I suspect that that had more to do with the relations with Franco’s regime than with anything to do with the extradition system.

The same is true, I believe, of the US-UK extraditions to which the hon. Gentleman referred. Since 2004 there have been 73 extraditions to the United States from this country, and just 38 to the UK from the US, yet 70% of UK requests for extradition have been successful compared with just 54% of US requests to the UK. In other words, a US request is less likely to succeed than a UK one. Moreover, far more British nationals go to the US every year than the other way around. I know that that seems counter-intuitive, but the Library’s figures suggest that roughly 4.5 million British people go to the US every year, and fewer than 2 million come from the US to the UK.

Thirdly, cybercrime almost inevitably crosses borders, whether we are talking about conspiracy to fund terrorism, illegal file sharing or industrial espionage. Consequently, I agree with hon. Members who have said today that we have to ensure that we have a better way of dealing with the question of where individual matters may be resolved.

[Charlie Elphicke]

I thank the hon. Gentleman for being so generous in taking interventions. I put it to him that the original arrangements with the United States were entered into under the cloud of the history of 9/11 and terrorism, and now we are hearing cybercrime as the latest excuse. Is there not always another excuse to worry people about why we should go further in taking away their rights and protections?

[Chris Bryant]

I was actually agreeing with the hon. Gentleman in my remarks about cybercrime. I think it is legitimate for there to be a point at which we decide where is the right place for something to be tried. I believe that was the point that he was trying to make earlier, so I am grateful to him for his support for my argument.

Having dealt with the minor issues, I want to turn to the more significant ones, and first the operation of the European arrest warrant. It is true that there have been several cases in which the justice system in other countries included in the European arrest warrant has been far from ideal. Several hon. Members have mentioned those cases today. We are all mindful of the horrific experiences of some people who have been held for considerable periods for crimes that, as it turns out, they never committed. Incidentally, that is of course sometimes true in the United Kingdom as well.

Although I believe the EAW operates successfully in the main, there is one key matter that I believe needs to be addressed—the question of proportionality. Between 2004 and the end of March 2011, Poland accounted for 1,659 and Lithuania 355 of the UK’s 3,107 EAW surrenders. In part, that was because of the prosecutorial system in each of those two countries, but in many cases the warrants were for relatively minor offences. We believe that a proportionality test should apply. Indeed, I believe that the majority of members of the European Union would prefer to see some form of proportionality clause inserted into the provisions. It is important, of course, to bear it in mind that in many cases the UK imposes longer sentences than other countries in Europe, so there is a danger that if proportionality is introduced some countries will retaliate in the wrong direction. However, I believe that such a clause should be included.