Extradition Act 2003

David Davis Excerpts

Thursday 21st January 2021 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

Before I enter into the subject, it was amusing to see the Minister, my hon. Friend the Member for Croydon South (Chris Philp) rush to his place. He is a friend, but he is also standing in for a great friend of mine, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is an old friend and old protégé of mine. As we all know, he is away ill, and I take this opportunity to wish him the best of luck in his treatment and a rapid return to the Chamber.

As you said, Madam Deputy Speaker, I have consulted with the Clerks, and what I have to say will skirt very carefully around the sub judice rules.

Since we agreed the UK-US extradition treaty in 2003, it has been abundantly clear that the British Government of the day struck a truly dreadful deal. Asymmetric, ineffective and fundamentally unfair on British citizens, it is a terrible flaw in our own justice system. The previous Labour Administration approached the treaty as though their duty was first and foremost to support the wishes of our American friends, not to safeguard the rights of UK citizens.

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Motion made, and Question proposed, That this House do now adjourn.—(Tom Pursglove.)

[Mr Davis]

Perhaps that was understandable in the context of the terrorism sweeping the world at that time, but friends must be honest with each other, and now we must say, “Enough is enough.”

The 2003 treaty paved the way for British citizens to be handed over to the US authorities, with minimal safeguards against injustice. Numerous examples down the years have shown this, from the NatWest three to Christopher Tappin. The recent decision to block the extradition of Mr Assange did not add to the list. However, the judgment earlier this month was a human rather than a legal victory. Although we cannot, of course, discuss the substance of the Assange judgment here today, the House must note the worrying development more generally in our extradition arrangements—extradition for political offences. This stems from an erroneous interpretation of Parliament’s intention in 2003. This must now be clarified.

Article 4 of the UK-US extradition treaty provides that extradition will not be granted for political offences. In the UK, the treaty was implemented in the Extradition Act 2003. It has been claimed that, because the Act does not specifically refer to political offences, Parliament explicitly took the decision to remove the bar when passing the Act in 2003. That is not the case—Parliament had no such intention. Had it intended such a massive deviation from our centuries-long tradition of providing asylum, it would have been explicit.

When the Extradition Bill was debated in the Commons, Members raised concerns about extraditions in relation to political offences. In responding to those concerns, Minister Bob Ainsworth gave a clear and unequivocal answer:

“The Bill will ensure that no one can be extradited where the request is politically motivated”.—[Official Report, 9 December 2002; Vol. 396, c. 115.]

The Government today have also recognised that. In October 2019, the Home Office confirmed that such a bar was implicit in UK law and that it would be down to judges, on a case-by-case basis, to decide whether to apply the bar. However, recent cases before the courts have shown that an implicit bar is not enough. We must have clarity on this issue. It is vital that our extradition arrangements have appropriate protection for political offences, not least because political asylum seekers may seek the protection of British justice in the future.

But that is not all. When the 2003 extradition treaty was introduced, it was sold on the basis—I remember this because I was the shadow Home Secretary—that it would be used principally for paedophiles, murderers and terrorists. But the people we are extraditing to the US today are, mostly, white-collar businessmen who pose no physical danger to United Kingdom or US citizens. Between 2007 and 2019, the UK surrendered 135 individuals to the US, 99 of them for non-violent offences. Instead of seeking justice against dangerous criminals, the United States is seeking to be judge, jury and executioner for global commercial deals.

In 2012, the Select Committee on Home Affairs said that the US

“has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.”

That has been shown in case after case, including those of Ian Norris the former head of Morgan Crucible, the NatWest three, Christopher Tappin and numerous others. Those cases all have common themes: they are all British citizens; the alleged crimes all took place on British soil; and the UK authorities did not see them as having a case to answer, but the UK system failed to protect them and the US authorities ultimately got their way.

Of course, people must be brought to justice when they break the law, but the problem at the heart of this extradition process is that it is fundamentally asymmetric and unbalanced in favour of the United States. This lopsided treaty allows US citizens to evade justice, while exposing UK citizens to miscarriages of justice.

In a 2011 report on our extradition arrangements, Lord Justice Scott Baker concluded that we did not need to change the rules to ensure that London-based offences are dealt with here in the UK. He was wrong. He failed to give enough weight to the US ambition to extend its extraterritorial jurisdiction of commercial crimes. He also made no allowance for the incredibly one-sided nature of prosecution and trial of foreign suspects in the US justice system. An American citizen facing extradition to the UK can challenge it in a US court on the basis that there is no “probable cause”, but a UK citizen facing extradition has no right to a reasonable grounds hearing. That is what the Joint Committee on Human Rights called in 2011 a

“lack of reciprocity in the Treaty”

when it called for reform of that treaty.

In the case of political offences, the treaty allows a US Executive to determine what is and is not a political offence. In the UK, we rightly leave this to the courts. What is more, the US Secretary of State has far greater discretion to refuse an extradition than our Home Secretary. The British Extradition Act states:

“The Secretary of State must issue a certificate”

for extradition. The equivalent US code states:

“The Secretary of State may order the person....to be tried”.

Such a seemingly minor change in language has a dramatic effect. With the US being a larger country, and with the UK being closer to the frontline on terrorism, we would expect the numbers being extradited from the United States to the UK to be greater than those going in the opposite direction. The reverse applies. The US has surrendered only 58 individuals to the United Kingdom since 2007, with only 11 of them American citizens, while 135 have gone the other way.

There is no starker example of the inequity and imbalance than the case that you mentioned, Madam Deputy Speaker, of Anne Sacoolas and the death of Harry Dunn. In that case, the US Secretary of State used the discretion afforded only to the US under the treaty to prevent extradition. The Prime Minister has recognised this imbalance. On 12 February last year, he said:

“I do think that elements of that relationship are unbalanced, and it is certainly worth looking at”—[Official Report, 12 February 2020; Vol. 671, c. 846.]—

yet nearly a year on, we remain in the same position.

The courts may be starting to recognise the imbalance. In the wake of the decision to block Gary McKinnon’s extradition, UK courts were given the power to bar extradition on forum grounds so that crimes committed primarily in the UK against UK citizens could be tried in this country. The absence of the forum bar in the 2003 Act highlighted just how cavalier the Blair Administration were with the rights of British citizens. The safeguard had existed previously in the 1957 European convention on extradition, and citizens almost universally elsewhere in Europe could count on its protection.

Since 2018, in the cases of Lauri Love, Stuart Scott, Robert McDaid and Christopher Taylor, the courts have used this bar in a partial attempt to even up our extradition arrangements. This asymmetry is not an inevitable outcome of being an ally of the US. It is a policy choice. Countries such as France and Germany both refuse to allow their citizens to be extradited and for good reason.

David Bermingham, one of the NatWest three, described to the House of Lords how he and his co-defendants were extradited to Texas and

“put in…hand chains, foot chains”—

restraining “belts and everything else”, and then “strip-searched”. This is designed not only to intimidate the accused, but to score a PR victory for American prosecutors. Those extradited to the US face this treatment whenever they are dragged into and out of court in front of the television cameras and the paparazzi. All this comes at the expense of the presumption of innocence.

It is often the case that once extradited to America, the accused is refused bail. This is on the basis that they are a flight risk. The result is that they are thrown in a cell, often shared with a fellow inmate—possibly a hardened criminal—and their access to legal papers is massively restricted. Their ability to contribute meaningfully to their defence is totally handicapped. This is particularly damaging in all those white-collar cases, where the relevant evidence can stretch to millions of pages and the prosecution face no requirement to tell defendants which pieces of evidence they intend to rely on.

Defendants then face enormous pressure from the US authorities to agree a plea bargain. They are told that if they refuse a deal, they will be denied bail and face decades in a maximum-security prison, but if they plead guilty, they will receive a much lighter sentence in an open prison. They are also reminded of the huge financial cost in America of protracted and complex trials, often running into the millions or tens of millions. It takes a brave person to turn down the easy route.

David Bermingham has described how he had to negotiate his punishment before he had even settled on the crime he would be pleading guilty to. That is repeated across the US legal system, where a massive majority of cases are settled by a plea bargain—I think the number is 97%. Take the case of Jamie Olis, an employee of a US energy firm who stood accused of fraud. He refused a plea bargain and protested his innocence in court. He was handed a 24-year sentence. His boss at the firm—presumably more responsible—took the plea bargain route and co-operated with the Government. He was sentenced to just 15 months; 15 months for the boss and 24 years for the subordinate.

Plea bargains are just one of the tools used by US prosecutors to stack the deck against defendants. They also deliberately use the threat of prosecution to disable the defence’s witnesses. Witnesses willing to co-operate with the prosecution are given immunity, while witnesses who refuse to do so find themselves threatened with prosecution. For cases where the alleged crime is in Britain, no British defence witness is going to travel to a court in the US and risk being charged on arrival and never coming back. What is more, prosecutors label these witnesses as co-conspirators, which handicaps the defence’s ability but maximises the prosecution’s ability to use their evidence. These tactics are such a serious issue that in one American case—that of Mohammad Dolah—the judge described it as

“a fundamental unfairness that might well amount to a denial of due process.”

It is not just the prosecution inside the courtroom stacking the deck against the defendant. The first amendment to the American constitution allows the American media to print and broadcast sometimes frenzied coverage of trials, which inevitably prejudices their outcome. In effect, high-profile defendants in the US face trial by media, as well as trial by jury. That has been laid bare in a string of cases, most famously that of O. J. Simpson, but perhaps most perniciously in the case of the Central Park Five, which is not so well known here but is well known in the United States. That case led to a miscarriage of justice for 13 years—that person was in jail for 13 years, and he was eventually exonerated.

Let us compare that with the UK. As you reminded me at the beginning of the debate, Madam Deputy Speaker, the Contempt of Court Act 1981 safeguards the presumption of innocence by preventing anything from being published that prejudices ongoing trials. Indeed, it is those protections that prevent me from discussing cases relevant to the debate that are sub judice. My speech today is, entirely properly, sharply constrained to avoid mention of half a dozen extant cases in the interest of not biasing justice. The US justice system as applied to foreign suspects is not normal justice as we understand it here in the United Kingdom.

My argument to the Minister—and I am not expecting a great reply today—is that we must rethink the entire relationship with the United States on extradition. We must navigate a constructive path forward for both countries based on arrangements that are balanced, fair and reciprocal. We should remember that we are friends, not enemies; allies, not rivals. This is particularly important as we seek to embark on a new trading relationship. In the next decade, our two countries will develop even closer commercial relationships. Businesses developed by brilliant British inventors and scientists will look to merge and co-operate with or sell to big American companies in the bigger American market. If the current extradition treaty stands, every one of them could face American extraterritorial legal actions and a legal system stacked against them. In the interests of both countries, that must change.

The Extradition Act not only touches the lives of renowned political actors and international business executives; it also impacts families such as Harry Dunn’s. If the American Government insist on trying to exercise extraterritorial jurisdiction in their interest, perhaps we should mimic Israel and refuse to extradite British citizens for anything other than serious crimes of violence and terrorism. We must give our citizens the protection, certainty and justice that they deserve and that our judicial system has a proud history of upholding.

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[Mr David Davis]

I had not intended to interfere with the Minister’s course, but since this point has been raised, I will say that the most fundamental thing under-pinning all extradition arrangements—whether they are with America, Europe or whatever—is a presumption that the justice systems are reasonably equivalent. This is where the weakness comes in.

Take the case of Christopher Tappin, who was extradited. He was somewhere in his 60s—65, maybe—and he was threatened with a 30-year sentence if he did not confess to a crime that he did not believe he had committed. That is an intolerable difference, and it is not just criticised here. As the Minister quite rightly says, it is the subject of massive criticism in the United States, but they are stuck with it until they change it. It seems to me that when we think about the treaties, not just for America but for other areas, we should consider trying to guarantee equivalence of justice in delivery, as well as in principle.

[Chris Philp]

I thank my right hon. Friend for his intervention. The test is not that the justice systems are identical; it is that they are just. I do not think I would accept the argument that the American system is fundamentally unjust. However, if there are particular circumstances of a case—perhaps the case he mentions would have met that test, had he advanced that defence —where a grave injustice is threatened, then the UK courts, on human rights grounds, which include the right to a fair trial, can be invoked and a UK judge, or an English judge, can be invited to prevent extradition. It was on grounds, as I understand it, very similar to those that the recent case involved the judge making precisely that finding, so if a miscarriage of justice is threatened, an application can be made to an English judge to prevent the extradition using arguments not unlike those my right hon. Friend has just advanced.

I fear we are approaching the witching hour and I should therefore draw my remarks to a conclusion. The Government will, of course, keep this area under careful and vigilant review, prompted as ever by my right hon. Friend, to whom I am extremely grateful for raising this important matter this evening.

Question put and agreed to.