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

Lord Rowlands Excerpts

Wednesday 16th September 2015 Grand Committee

[Lord Rowlands (Lab)]

My Lords, I shall confine my observations to the issues arising in the report connected to the European arrest warrant. I do so for perhaps the curious reason that the arrest warrant seems to have been a part of my life for the best part of five years, not just one. Prior to serving on this committee, I served on the European Sub-Committee E for four years, where the issue of scrutiny of European arrest warrants was a regular part of my practice, although I have not yet been served with one.

The second feature of the evidence that we received, which I have heard in previous scrutiny cases, is that despite the many pungent criticisms that have been made of the European arrest warrant and the examples of manifest injustice that have occurred, nevertheless the overwhelming opinion of witness after witness was that we should stay within the European arrest warrant system. It was therefore with very considerable relief that we heard that the coalition Government had eventually agreed to do so. We came to the same conclusions in both our interim and substantive reports. The evidence, for example, covered Operation Captura, under which some 61 criminals have been brought back to justice. These were not some romantic robber barons: they included one of the most serious paedophile cases, which I think the Home Secretary invoked when defending the Government’s decision to rejoin the European arrest warrant.

Having said that, we should not be unaware of or deny the valid criticisms of the system. In some cases, there have been clear examples—such as Mr Symeou and Mr Graham Mitchell—of manifest injustice. I refer in particular to Mr Mitchell because he gave us very moving evidence of his nightmarish experience under the process.

Mr Mitchell and a friend were on holiday in the Algarve in May 1994, when he was accused of attempted murder. He was held in pre-trial detention for a year. At the trial he and the other person charged were found not guilty and released. Then, some two years later, the Portuguese supreme court quashed Mr Mitchell’s acquittal, although he was not at all aware of that, and proceeded somewhat later to seek a European arrest warrant. The warrant was served on Mr Mitchell, and he was arrested and held for proceedings at the Westminster magistrates’ court. However, in May 2012 the Portuguese authorities—having traumatised a citizen in the most appalling manner—withdrew the request.

A question immediately arises, which I would like to put to the Minister. For all the various changes that we have made and are making—the so-called soft measures and the safeguards—are we certain that it is now highly unlikely that a British citizen will ever encounter the kind of experience that Mr Mitchell and Mr Symeou had? Are we as certain as we can be that the sort of manifest injustices that have arisen are now highly unlikely to occur? I will be grateful if the Minister, when he replies, addresses that question. That is what many citizens will be saying that we want from the changes and amendments that have been made—to ensure that such cases will not be repeated.

The second issue surrounding the European arrest warrant is that of proportionality, and the principle that such a warrant should be a last resort, not a first resort. In this respect the committee endorsed the Government’s legislation on proportionality, but we received quite a lot of evidence doubting its efficacy. Inevitably, the particular problems of Poland were mentioned, and both the committee and the Government have emphasised the response and the changes that the Polish authorities are now endeavouring to make to their arrangements. An extraordinary number of cases originated from Poland: 90% of the cases in Scotland were Polish cases. That should now be reduced, and a degree of proportionality should be properly introduced.

The Government claim that its proportionality bar and other things are working, and that there is a reduction. I would therefore be grateful if the Minister would update us on the figures in table 3, on page 40 of the report, to include the figures for 2014-2015. Let us see whether the trend in such cases, particularly those involving Poland, is at least going in the right direction.

I noticed with some interest and satisfaction that in their response the Government drew to our attention the fact that the National Crime Agency has refused to certify a total of 196 European arrest warrants on grounds of proportionality and other discretionary grounds. That is to be welcomed. They also claim that they are pushing for the principle of last resort to be the basis of the revision of the Commission’s handbook —a handbook of guidance and advice for member states. How far has the Minister got, and how successful has he been, in pursuing the Government’s efforts to ensure that proportionality and the principle of last resort will be central to the revised Commission handbook? As the Government made the case about the importance of revising the handbook in their response, will he explain where we stand on that issue?

I draw attention to one other recommendation that we made on the European arrest warrant. Recommendation 16, in paragraph 315, says,

“the Government and the European Commission should work to establish further guidelines on the execution of EAWs to ensure that they are conducted in the least hostile manner possible”.

I cannot see a proper reply or response to that recommendation in the Government’s response, so I ask the Minister whether they have followed it up.

I recall that one of the reasons why that recommendation was made was the evidence of a Polish gentleman, Mr Wolkowicz, who suffered the most intolerable indignities being extradited in a wheelchair, rolling around in a Second World War Polish plane. Indeed, it caught fire, but fortunately it was on the ground. That sort of thing, as well as the experiences of those who have been extradited to the United States, suggest that we should at least try to execute the warrants in a more a sensible, civilised way than appears to have been done in some cases.

It has been a pleasure to serve on the committee under the chairmanship of the noble Lord, Lord Inglewood. I have to tell the Minister ever so gently that our considered and carefully argued report deserved a rather better response than the one that we received. The curious self-congratulatory tone of the Government’s response does not do justice to our first-class report.

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[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?