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

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 16th September 2015 Grand Committee

[Lord Brown of Eaton-under-Heywood (CB)]

Like others, I start by paying tribute to the noble Lord, Lord Inglewood, for chairing our committee with such assiduity, sagacity and unfailing good humour, and to our wonderful clerk, James Whittle, and those who assisted him, not least our legal adviser Charlotte Powell. They all played essential roles in enabling us to complete this very complex inquiry in the required time, producing, as I believe, a sound and convincing report.

I came to this inquiry having been involved in extradition law over a considerable number of years, largely as an appellate judge. Indeed, I declared an interest as such in the report. Having observed this both as a judge and now on this committee, I can genuinely say that between them, Parliament and the judiciary have achieved what is substantially a fair and appropriate balance between, on the one hand, the public interest in extradition, and on the other the rights of those for whom extradition is sought, including not being unreasonably subjected to the trauma of forcible removal for trial abroad.

The public interest in extradition is, as the courts have often been at pains to explain, constant and weighty. Those accused of crime should ordinarily be brought to trial. The UK should honour its treaty obligation. In an ever contracting world it is ever more important to combat cross-border crime and fugitives. There should be no safe havens. Extradition is not the process for determining guilt or innocence, but only whether the suspect should be brought to trial. Therefore, the old adage, “Better 10 guilty men go free than one innocent person be convicted”, simply has no application in this context.

One must acknowledge, however, that this interest can on occasion, if only rarely, be outweighed by certain very real concerns on behalf of the suspect. The possible defences—bars to extradition—are set out in our report at paragraph 19, but they above all revolve around human rights concerns as defined in the European Convention on Human Rights. Of course, Part 2 countries are not subject to the convention, but the convention it is that provides the touchstones by which our domestic courts decide on the propriety of extradition, both to Part 1 and Part 2 countries.

Before turning to two particular matters on which I shall touch in a little more detail, I want first to suggest what seem to me certain basic truths about the operation of extradition which I think the wider public sometimes overlook. I have already mentioned one: that extradition is not the trial process but merely the mechanism for ensuring that those accused of crimes stand trial, the closest analogy being perhaps domestic pre-trial custody. An accused here may forcibly be detained in prison, even though untried and still therefore presumed innocent. Secondly, if we in the United Kingdom refuse to extradite accused persons to, say, Russia or Turkey—as indeed we do, since we cannot be satisfied that they will be treated humanely on being returned—two consequences have to be recognised. First, we will thereby be providing a sanctuary for the criminals of those countries who manage to flee here. Secondly, those countries may well in turn reciprocate by refusing our requests to them to extradite, very possibly, UK nationals back here.

Extradition is based on mutual trust and respect, and extradition proceedings must therefore accommodate legal and cultural differences between all sorts of different legal systems. Naturally, we think that our own criminal justice system is best, but we cannot insist on all other countries following the same procedures. Let us take the USA’s practice of plea bargaining. We may think that it is carried to such lengths as to put defendants under too great a pressure to plead guilty even if they regard themselves as innocent. But we have to recognise this: if on that basis we held that the practice of plea bargaining constitutes an abuse of process, we would have to refuse to extradite not only our own citizens to the United States but any United States citizens who were here, however guilty. As we point out at paragraph 442 of the report,

“the UK would speedily become a safe haven for all those seeking impunity for crimes in or against the US”.

That brings me to the first of the two matters I want to touch on a little more particularly: our extradition relationship with the United States, which others have already addressed. I should perhaps mention at once that I gave the sole judgment in the appeal committee in this House in 2008 in the case of McKinnon, which we summarise at pages 132 to 135 of our report. It is perhaps among the more high-profile of the many vexed cases involving the extradition of UK nationals to the USA for offences which, although of extraterritorial effect and therefore triable on an extraterritorial basis, were substantially committed in the UK. There was huge public misconception about that case.

First, it was suggested that all Mr McKinnon was doing on his attic computer in London was searching for UFOs. However, his confession to disrupting American security systems was on the basis that he considered that the US Government were sponsoring terrorism. Secondly, it was claimed that he faced a sentence of decades in prison—50 or 60 years—if he pleaded not guilty but was convicted, whereas in fact the indications given to him were that he could expect a sentence of three to four years on a guilty plea, or eight to 10 if he fought and lost the case.

Thirdly, as is of course well known, the Secretary of State ultimately decided not to extradite him because by then he had been diagnosed with Asperger’s. However, that diagnosis came after the appeal hearing before us, during which no question had arisen at all about his health. In 2013 the law was changed to pass the responsibility for consideration of such late human rights concerns from the Home Secretary to the courts, and our committee, rightly, fully endorsed and supported that change. Surely, extradition should be kept out of the political arena and left entirely as a judicial process.

The overall conclusion we came to is that there is no basic imbalance or unfairness in the operation of the UK-US extradition treaty. We agreed entirely with the Sir Scott Baker review in that regard. However, as others have mentioned, we concluded that those extradited to the US, even if at low risk of being violent or absconding, may on occasion be too harshly treated—for example, being unnecessarily handcuffed or even chained in flight or detained in high-security conditions because, as non-US citizens, they can offer no suitable bail address.

The noble Lord, Lord Inglewood, has already addressed the question of securing from the authorities some suitable memorandum of understanding to deal with these concerns. I add only the following, which brings me to the final point I want to touch on: Article 8 of the convention. If indeed it is impossible to secure any suitable memorandum of understanding or undertaking from the United States, or from any other relevant state whose processes give rise to the same concerns about such pre-trial treatment, that could well affect the court’s view and tip the balance in a particular case against extradition.

Article 8 has assumed—the witnesses were very clear about this—increasing importance as a possible bar to extradition, in particular since the decision of the Supreme Court in HH and linked cases. In 2012 my noble and learned friend—then Lord Chief Justice—Lord Judge was party to that case; indeed, I think it was my very last case in that court. It is still rare for Article 8 to successfully be invoked in such cases. However, it enables the court to look at a case in the round and decide whether the gravity of the alleged offending and the overall interests of honouring extradition agreements and combating cross-border crime truly justify the huge disruption of life sometimes involved in a person’s extradition. Although Parliament has now introduced into our law certain specific provisions about forum and proportionality and so forth, very generally those same considerations will also come into play in determining an Article 8 claim.

Our report deals with these matters at various places, but I draw particular attention to paragraphs 172 and 173. Unlike some countries, the UK extradites its own nationals. However, there may well be different considerations in play in two different cases: for example, that of a foreign national who has committed an offence in his home country and then fled to the United Kingdom, and whose extradition is sought from here back home; and, on the other hand, that of a UK national who has never left this country but whose extradition is now sought for trial on an extraterritorial basis, his crime having impacted abroad. In the former case, the suspect’s private and family life is abroad anyway and will not seriously be interfered with by extradition. But as the noble Lord, Lord Hart, has pointed out, the UK national, if extradited, will be separated from his home, family, friends and support systems. He will be sent abroad where he may have no ties or support at all, very possibly with no bail address, and without any understanding of that country’s legal system and customs, and perhaps even their language. There is surely some considerable difference between those cases. Paragraph 173 of our report suggests that in the latter case the court should be “particularly astute” in ensuring that extradition really is the appropriate course and that,

“the forum bar has been fully explored … all relevant Article 8 arguments have been fully evaluated to ensure that extradition is not disproportionate”,

and—this reverts to the point about the USA—

“consideration has been given to the possibility of obtaining assurances as to … the prospects of pre-trial bail; and … the transfer back to the UK of at least part of any eventual sentences”.

The report covers a host of issues, most of which one could wax lyrically on—or not, as the case may be—but I propose to say no more. I believe that the report should be allowed to speak for itself, and I respectfully commend it to the Committee.