UK Extradition Arrangements

David Burrowes Excerpts

Monday 5th December 2011 Commons Chamber

[Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab)]

I congratulate the hon. Member for Esher and Walton (Mr Raab) on obtaining the debate. I shall try to respond briefly in the spirit of accord that we have created over the past few days, including on the broadcast media.

I had the unenviable task of agreeing the framework agreement on the European arrest warrant and the renewed treaty with the United States. When someone has Baroness Helena Kennedy and the Daily Mail on their back, they really do need to be on the ball, so I have re-read a lot of material, including Justice Scott Baker’s review, and it is worth those who follow parliamentary debates getting on the website and taking a good look at it.

The review may have flaws, but it is an extraordinarily good examination of precisely what was agreed, what has happened and, therefore, the reality of decisions taken and how they compare, for instance, with the Extradition Act 1989 and European convention rights, which are currently being tested by Babar Ahmad, because his case has gone to Strasbourg. In the case of Gary McKinnon, a review of the medical evidence is taking place for a report back to the Home Secretary, so high-profile cases are being dealt with almost outside, and in addition to, the procedure that we are debating tonight. In other words, the process is being exhausted and carried further, as it should be in cases of controversy and in extenuating circumstances.

[Mr David Burrowes (Enfield, Southgate) (Con)]

The right hon. Gentleman raises the issue of Gary McKinnon, my constituent, and makes a new point, because I understand that he made representations for Mr McKinnon to stand trial via a TV link from this country and, if convicted, to serve his sentence here. Does that not make the case for a forum bar, which would enable such considerations to be transparent, rather than conducted perhaps privately, as the previous Home Secretary did?

[Mr Blunkett]

The forum bar carries forward convention rights and changes the balance, as Scott Baker’s review indicates. Although I do not disagree with a great deal of the report by the Joint Committee on Human Rights, I note that elements of it would not only prolong the process—it has been mentioned already that some people have been awaiting extradition for a very long time—but alter the balance that we are trying to achieve.

If I were negotiating the 2003 treaty and the accompanying Extradition Act 2003 again, I would want a codicil, detailing alongside the treaty the nature of the process in order to assure people that there was a clear balance between the processes adopted in the United States and here.

In 2009 and 2010, I had the opportunity, which I took up privately, to visit the US Department of Justice. I kept it private for two years, because, in reporting back to the Home and Justice Secretaries under the previous and current Governments, I felt that there was some progress to be made by stating the views of the Department of Justice, as indicated to me, on the possibility of taking decisions about any trial, the nature of any sentence and whether, if applied, it might be served in this country.

Those are difficult issues, because we should not presume that somebody would be found guilty. The hon. Member for Enfield, Southgate (Mr Burrowes) is close to Mr McKinnon’s case, so he will be familiar with Lord Justice Stanley Burnton’s commentary on it, and there is undoubtedly the major issue of medical evidence, which is under examination.

Let me deal briefly with where we should be going. We should return to the issues relating to the European arrest warrant, because, as we have just heard spelt out, extradition arrangements have been distorted in cases from eastern Europe to Greece, partly because there has not been a de minimis rule on sentences and, therefore, whether it applies; because people have been returned to—rather than dealt with originally—years after the case arose; and because EAWs have been presented to people outside the United Kingdom when no attempt has been made to serve a warrant inside. All those matters need reviewing for the sake of the sensible application of justice, because once people feel that justice is not being applied, as we have seen from campaigns and in tonight’s debate, justice is questioned.

On the American issue, however, I shall talk about not just balance, but the rule of law, because we must have sensible arrangements that do not rest on whether we think an individual’s case is a good one. The Americans quite rightly put to me, “What about Abu Hamza? Whose hands are going up for a type 1 diabetic who is a double amputee, and for his associate, who is alleged to be bipolar? Who feels they ought to run such campaigns on their behalf to stop extradition?” How do the United States see the issue when they are trying to ensure that principles are applied and a precedent not set which would then create complete havoc in the justice system? The rule of law has to apply equally and sensitively, but it has to include rules to which we can all adhere.

The NatWest three, or the Enron three as the Americans prefer to call them, were totally innocent according to their campaigns, and even I began to be convinced that they were, until of course they reached the United States and pleaded guilty.

--- Later in debate ---

[Mr David Burrowes (Enfield, Southgate) (Con)]

I join other Members in congratulating my hon. Friend the Member for Esher and Walton (Mr Raab) on securing the debate.

We usually describe debates of this sort as timely, but, although this evening’s debate is timely in the context of the Government’s current consideration of the Baker review, it would be hard for my constituent Gary McKinnon, who has been living a nightmare, and who now faces his 10th Christmas awaiting extradition, to see it in those terms, especially given that the outcome for him will be determined not retrospectively through the reform of extradition laws, which I support, but by medical evidence that is before the Home Secretary as we speak.

Parliament has given time to debate the issue of Gary McKinnon and extradition. We had a vote on forum in 2006 during the passage of the Bill that became the Police and Justice Act 2006. We have also had urgent questions, Opposition day debates, the report from the Joint Committee on Human Rights and Westminster Hall debates—and here we are having this debate today. What has not been in short supply is parliamentary attention. What has been in short supply is responsibility—responsibility for the plight of constituents such as Gary McKinnon, and for the injustice that has been done to them. The motion, which is welcome, seeks the restoration, at long last, of responsibility where it should lie.

I want to tell the House about an individual who was blamed for causing the biggest computer hack to hit the United States with an electronic attack on America’s biggest port, Houston, in 2001. He was a young British man with Asperger’s syndrome. He was not Gary McKinnon, but Aaron Caffrey. He was not extradited to the United States, but was tried in this country and found not guilty.

Then there was the man who was said to be doing

“more harm than the KGB”

and to be the

“No. 1 threat to U.S. security.”

He had UFO posters on his wall. He broke into the United States defence and missile systems. He too could have been, but was not, Gary McKinnon. He was prosecuted in this country, and was fined £1,200. And there was the computer virus that inflicted an estimated $5.5 billion-worth of damage and controlled 50,000 machines, hijacking sites run by a United States Department. Again, that was not Gary McKinnon. It was Andrew Harvey and Jordan Bradley. They were prosecuted here and received six and three months’ imprisonment respectively.

Why then is Gary McKinnon being pursued remorselessly by the United States authorities? I believe that one of the motivations is instructive to the debate. The US ambassador on a number of occasions has made his position clear on behalf of the US Government. Indeed, several years ago, I asked him directly why the US authorities were doing that. When he replied, he recounted the alleged damage to US naval systems—he went through that in some detail—but then his voice and emotions rose, the severity of his tone increased and he said, referring to the comments left by Gary McKinnon on various websites, “He mocked us.” Many of us would think that Gary McKinnon should be praised for exposing flaws in US systems by typing in passwords and getting through systems, as a terrorist could have got through their systems, but that comment, “He mocked us”, shows that, whether we like it or not, politics plays a part in extradition.

Look at WikiLeaks. Just before President Obama came to speak to us, the US Attorney-General demanded that Gary McKinnon be extradited. Today, the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett), a former Home Secretary, talked about how he tried to arrange a TV link for Gary McKinnon’s trial. I understand that that had no legs because video conferencing is illegal under US law. It requires live cross-examination of witnesses.

What should we do to improve the situation? Plainly, it is important that we retain and uphold the importance and independence of prosecutions, even if that independence is not always reciprocated as a point of principle. The opponents of a forum bar say that such a bar would inhibit and delay prosecutions, but I say that a forum bar would help to protect the integrity of prosecutions and avoid those private deals and that pressure, political or otherwise. For example, Gary McKinnon in the early stages was threatened with a lengthy sentence and harsh conditions if he fought extradition, but judicial consideration of forum, bringing it into the open, would ensure that a proper decision was made about where to try a case that crossed jurisdiction boundaries.

The ambassador's comments also remind us that the Home Secretary has a legitimate role, despite what the Baker review says. The modern law of extradition has been developing since 1870. The Home Secretary has a vital role to play in ensuring that defendants are not wrongly extradited. International crime has developed since the 19th century. Global terrorism has emerged. Treaties have been signed, but what remains is that the Home Secretary is the long-stop safeguard against injustice for citizens facing extradition.

The motion seeks to ensure that the courts are the primary safeguard. The protracted battle to stop Gary McKinnon’s extradition has highlighted the need for a forum bar. The judicial review hearing into the Director of Public Prosecution’s decision not to prosecute was revealing. The judges said that, due to the fact that the matter of forum was not determined by way of a judicial safeguard, through the Police and Justice Act 2006 —forum amendments are absent from that Act—it needed to be decided by someone. The point is that that someone should be in the courts. Otherwise, we are left with a situation in which the Home Secretary says, “I do not have to consider forum because that is a matter for the DPP,” and the DPP says, “We have decided to cede jurisdiction to the US,” leaving Gary McKinnon and defendants like him having to challenge the DPP’s decision not to prosecute by judicial review.

What does the Baker review suggest? It suggests some DPP guidelines. Those would not be adequate. They would not be the lifeline that respected commentators such as Joshua Rozenberg have mentioned. What would happen under those guidelines? Residence and nationality would be considered, but how could one challenge the decision? We are back in the realms of judicial review. Even the Baker review says that

“we anticipate it would be very rare for the court to entertain, and rarer still for the court to grant, such an application.”

The Baker review, then, has done nothing to give that proper safeguard. Tonight we can do something important. We can make Parliament’s views abundantly clear. The reform of extradition law is needed to stop more cases like that of Gary McKinnon. The US ambassador felt mocked by Gary McKinnon’s words that were left on US systems, but what about these words and the medical evidence that is before the Home Secretary from Professor Jeremy Turk? He said that

“suicide is now a real probability and will be an almost certain inevitability should he experience extradition”.

Does not this disproportionate extradition of a suicidal and sectionable person, Gary McKinnon, make a mockery of our extradition laws? Are not the life-threatening effects of extradition avoidable by prosecuting him in this country? As I said in 2009, how ill and vulnerable does Gary McKinnon need to be in order not to be extradited to the United States? Tonight, Parliament can say that it will not be mocked, and that it continues to demand proper judicial safeguards. I support the motion.