UK Extradition Arrangements

Michael Ellis Excerpts

Monday 5th December 2011 Commons Chamber

[Michael Ellis (Northampton North) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate, my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), who is no longer in his place, on his representation of his constituent, and of course my hon. Friend the Member for South Dorset (Richard Drax) on his eloquent representation of his constituent. I also congratulate Her Majesty’s Government on putting in place the mechanisms by which this debate can take place, by introducing the Backbench Business Committee.

My comments will be on the United Kingdom-United States extradition arrangements. I accept that there is a problem with the European arrest warrant, particularly as regards proportionality, and I would submit that it has other serious defects in other respects, too. Not only is it inappropriate for there to be extradition in cases where there is considerable doubt about the seriousness of the alleged offence, but there are clearly differences between the judicial and incarceration systems in many of our European neighbour countries.

[Mr Robert Buckland (South Swindon) (Con)]

Does my hon. Friend agree that one of the problems posed by the use of the warrant is that it is sometimes used to aid investigation rather than prosecution, as in the example just given by my hon. Friend the Member for South Dorset (Richard Drax)?

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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.

[Mr David Davis]

My hon. Friend has asked for an example. How does he see the circumstances of someone facing trial in Texas who is thousands of miles from their nearest and dearest, isolated from their community and has no financial support? Does not the plea-bargaining system in America become a predatory process that threatens them with long-term loss of liberty or the prospect of giving in and admitting guilt?

[Michael Ellis]

There have been extradition arrangements between our two peoples since the later part of the 18th century. As for plea-bargain arrangements, there are also pressures on defendants in the British system. We do not refer to them as plea-bargaining, but defendants know that if they plead guilty, they are likely to receive a lesser sentence, so although we have no plea-bargaining arrangement, it is not correct to assume that the two systems are completely different.

The conclusion reached by the Baker report is that there is no significant difference between the tests that either country applies. In all extradition requests that have been submitted to the United Kingdom since 1 January 2004, the United States and many other states have not had to provide prima facie evidence, instead having to provide only the information sufficient to satisfy the extradition legislation. There are many countries, including Australia, Canada and New Zealand, from which we do not require prima facie evidence before extraditing to them. We should not therefore require the United States to jump over that hurdle when the other allied nations whose legal systems are based on ours do not have to do so. I understand that countries that have signed the European convention on extradition orders do not have to jump through that hoop. Those countries include Turkey and Russia. Those who call for a prima facie standard, as I understand the Joint Committee on Human Rights has done, must explain why Russia should be required to have a lesser standard than America, if America were put under the pressure of proving to a prima facie standard.

[Bob Stewart (Beckenham) (Con)]

Should we not require that standard of everyone? Is that not the way forward?

[Michael Ellis]

Well, that is one way of looking at it. Certainly, if we were to decide to require everyone to hold to the prima facie standard, that might be fairer, although it would be extremely expensive, bureaucratic and time consuming. For the accused person and for witnesses, the interests of justice are not served by delaying matters, so that would be the problem there. However, before the 2003 Act, I believe there was a requirement to find a prima facie standard. If not, there was certainly an imbalance between the United States and the United Kingdom in that respect. The United States had to apply greater burdens to extradite people from the United Kingdom than the United Kingdom had to supply vice versa.

[Mr Raab]

My hon. Friend has made the point about the paper test, but the key point made by Alun Jones QC is that the quality of evidence is assessed in extraditions both ways by the US courts—that is a requirement of the US constitution—but in neither case by the UK courts. There is the imbalance. Does my hon. Friend accept that?

[Michael Ellis]

No, I do not accept that. I agree with the Scott Baker report that there is no fundamental imbalance. It is important to point out that the United States has not denied a single extradition request from the United Kingdom under the treaty. Although the United States makes more requests to the United Kingdom than it receives, the difference is largely because the population of the United States is five times greater than that of the United Kingdom. There is no imbalance. The Scott Baker report confirms that, and I cannot support the motion.

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[Jacob Rees-Mogg (North East Somerset) (Con)]

It is a real privilege to follow my learned hon. Friend the Member for Dover (Charlie Elphicke) and to speak in this debate, called by my hon. Friend the Member for Esher and Walton (Mr Raab), who is so right to be defending the ancient rights of the British people. My hon. Friend the Member for South Dorset (Richard Drax) got it absolutely right when he said that we spend a lot of time talking about the human rights of people in this country until, suddenly, extradition comes up and then—bingo!—they have gone, and they are sacrificed to transportation to a foreign land.

The point that we should focus on is the first principle of why we have such protections for the innocent in the criminal law. We have, as we know, a powerful state. The state provides the police and the prosecuting authority, and the state pays the judges and reimburses the juries, and, because of that great power, the state then feels it is right to put in place protections for the individual who is charged: the right to trial by jury; the right to habeas corpus; and the right to be presumed innocent until found guilty. These are the foundation rights of our criminal justice system and have a history stretching back 1,000 years.

But, when it comes to extradition, people can go to countries that do not have or follow that tradition. We have heard about how it works in Hungary, and the criminal justice system there, so one is a protected British subject if charged here, with all sorts of possible ways of defending oneself, but suddenly, if one comes under the European arrest warrant, one can languish in a dank Hungarian jail, with all those protections removed.

The United States is our greatest and closest ally, and a country with which we want to have the friendliest of relations, but we have already heard about the extraordinary approach it takes to plea bargaining: one may be threatened with 400 years without the option of parole, or if one pleads guilty one gets a week in a resort near Canada, as happened to the man who was prosecuted at the same point as Lord Black of Crossharbour—his noble lordship. One of them was offered an enormously long sentence, and the other was offered a Canadian golf club.

[Michael Ellis]

We do not have a system of plea bargaining in this country, but does my hon. Friend not accept that people who plead guilty in the United Kingdom’s courts will almost invariably receive a lower sentence than if they are found guilty after trial? There are good public policy reasons why.

[Jacob Rees-Mogg]

There are, indeed, but that is of a completely different order of magnitude: one gets a little off one’s sentence if one pleads guilty early—rather than being threatened with hundreds of years against a week in a golf club. That does not happen under the British system, but we know that it happened to the man who turned the equivalent of Queen’s evidence against Conrad Black. We know that it happens in the United States system, but we are willing to risk British subjects going over there.

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[Jacob Rees-Mogg]

But it is such a pleasure to hear from the hon. Gentleman, and the tone of the House is raised by his gracious presence, so I will respond. Yes, of course we should have a hierarchy of countries to which we feel comfortable extraditing people, and of course New Zealand, Australia and Canada would be very high up on those lists—and the United States would be pretty high up too.

However, I do not think that the ambassador to the Court of St James—the extraordinary plenipotentiary of the United States—behaves in a diplomatic way when he starts telling this House how we ought to consider our business. I like to think what the noise would be in Washington if our ambassador there decided to suggest to the Senate or to the House of Representatives how they ought to conduct their business. Sitting as he does in his grand fortress in Grosvenor square like some Persian satrap, he should not be telling the House of Commons how to conduct her business. Of course we should have friendly extradition arrangements with the United States, but crucially ones that protect the ancient rights of the British subject whereby they should be innocent until proved guilty and should remain within the jurisdiction of this country until evidence is produced against them.

If we are worried about the United States, how much more worried should we be about some European countries, which can, in effect, arrest people and have them removed from this country without so much as a by-your-leave? We are risking people’s freedom and liberty. This House exists to protect the freedoms and the liberties of the British subject. Yes, I know that some of them will be guilty and will deserve severe punishment for the crimes they have committed, but have we not set up our justice system on the basic principle that it is better for 100 guilty men to go free than for one innocent man or, indeed, woman, although women commit fewer crimes—[Interruption] It is true; they do—to be imprisoned when innocent? If that is the starting point of our justice system, then surely we ought to apply it when it comes to extradition, and therefore the Government ought to review the arrangements that they have with the United States.

[Michael Ellis]

Does my hon. Friend give no credence to the fact that in the 500-page Scott Baker report, commissioned by Her Majesty’s Government, eminent jurists came to the conclusion that the imbalance that he is assuming between British and American relations regarding extradition does not exist?

[Jacob Rees-Mogg]

Had my hon. Friend paid closer attention to the excellent speech by my hon. Friend the Member for Esher and Walton, he would understand that there are differing views on that. It is well known that, with Government reports, the people are appointed who will provide the report that is wanted. That has been practised over many centuries.