Extradition

Charlie Elphicke Excerpts

Thursday 24th November 2011 Westminster Hall

[Charlie Elphicke (Dover) (Con)]

Welcome to the Chair, Mr Leigh. I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing an extraordinarily important debate and the Backbench Business Committee on doing such great work to ensure our chance to have this discussion. I want to keep my remarks brief, because so much has been said in the evolving consensus of the debate. In particular, I pay tribute to the hon. Member for Bolton South East (Yasmin Qureshi) and my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell) for their powerful contributions.

There has long been a tradition that Parliament is the last backstop for the liberty of the subject and the protection of the rights of property. It is right for us to be deeply interested in the liberty of our electors and citizens, and it is particularly great to see in the Chamber the shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), who has remained in his seat throughout the debate and who has been such a powerful advocate for his constituent, Babar Ahmad. There seems to be a strong, cross-party feeling that things are simply not right.

To pick up on one issue, if people are in the UK and commit a crime in the UK, the deep, natural sense that we all—the person in the street—have is that such people should be prosecuted in the UK for that act, if it is an offence in this country, and not be taken away from home, loved ones, community and everything familiar to be prosecuted in a foreign country. In particular, I have long found the US-UK extradition treaty troubling.

[Chris Bryant (Rhondda) (Lab)]

May I issue a slight corrective? Everyone thus far has talked about British nationals being extradited. Quite often, a request under a European arrest warrant, or for that matter an extradition request, is for a non-British national. One reason for the number of European arrest warrants from Poland being so high is that a lot of them are for Polish people whom the Polish Government want to take back to Poland.

[Charlie Elphicke]

The hon. Gentleman makes a fair point, but I am concentrating on our citizens and our electors.

The situation has long troubled me: in principle, if people commit an offence in this country, they should be prosecuted in this country. Many of us feel that way. According to paragraph 4 of article 8 of the treaty on extradition with the States:

“If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances.”

Perhaps I am an old-fashioned lawyer—that is my background and training—but I feel deeply that the right forum for prosecution in such a case is in the UK and that people in this country should be tried by their peers. Perhaps I am old-fashioned, perhaps it is our jurisprudence and long legal tradition, but that is how I feel, as so many of us do.

[Chris Bryant]

One area in which we in this country have changed direction slightly in the past few years—rightly so, and I suspect the hon. Gentleman would agree with me—is sexual offences, possibly committed in a country such as Thailand by a British national, that might not be prosecuted in Thailand, but could be in this country.

[Charlie Elphicke]

The hon. Gentleman makes the case for the extradition of a British citizen to another jurisdiction where the offence was committed and, arguably, if a sexual offence was committed in Thailand, the right forum for the case would be where the offence took place. I am speaking, however, about when the actus reus of the offence is alleged to have taken place in the UK—in particular, in internet-type cases—so the evidence, and the proper forum, would seem to be in the UK. That is my deep sense of how things should be: if a crime is committed in the UK, it should be prosecuted in the UK. One should not be seized from the UK, as the NatWest three famously were, and sent before a jury in Texas. Having been a partner in an American law firm and having talked to colleagues, my understanding is that Texan juries are simple: people from Texas get a good hearing, but if people are not from Texas, it is a bit more hit and miss. One needs to be cautious in such cases.

Another thing that I and many people feel strongly about is reciprocity, in particular the remarks in the Scott Baker report about probable cause versus reasonable suspicion. That takes us to paragraph 3(c) of article 8 of the treaty. It says

“for requests to the United States,”—

it is only to the United States—

“such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.”

That “reasonable basis to believe” finds its origin in the fourth amendment to the US constitution, which was passed in 1791. Interestingly, in our jurisprudence that principle found its heart and motivation in the famous, landmark case of Entick v. Carrington in 1765. I feel that in our Parliament we sometimes forget our finer and more enduring principles, while the Americans seem to embed them slightly more effectively. The Scott Baker report states, in effect, that there is no real difference between probable cause and reasonable suspicion. I do not share that conclusion.

The table in paragraph 7.30 on page 237 of the Scott Baker report, which I am sure everyone has read in great detail, clearly states of requests to the United States:

“Information satisfying the probable cause test”,

but of requests to the United Kingdom it states:

“Information satisfying the reasonable suspicion test”.

Is there a difference between probable cause and reasonable suspicion or not? Scott Baker says not.

Let us look at more of the detail. The Scott Baker report then mentions the definition of “probable cause” in paragraph 7.35 on page 239:

“A well-known definition of probable cause is, ‘a reasonable belief that a person has committed a crime’… The Oxford Companion to United States Law defines probable cause as, ‘information sufficient to warrant a prudent person’s belief that the wanted individual had committed a crime’.”

We are talking about the difference between reasonable suspicion and reasonable belief, and I say that belief is a rather higher test than simply suspicion.

Let me give an example. An hon. Member’s Order Paper has gone missing in the House and the Member thinks that a colleague has taken it—but which colleague? There are so many around. The Member sees the Order Paper, or part of it, poking out of a colleague’s jacket, so the Member has a reasonable belief that that colleague has taken it. If the Member does not see anything and merely suspects the ne’er-do-well in the next seat, that is reasonable suspicion, because that colleague has done that kind of thing before. Belief is a higher test than suspicion, and there is strong feeling of concern—rightly—that the treaty does not have the degree of reciprocity that it should have.

Another matter that I feel strongly about, because I believe strongly in the liberty of the subject and the proper testing of any case, is the fact that there should be the old prima facie test that we used to have. I know that that would raise the objection that it leads to long hearings and so on, but why should we not have the same test for extradition as for a committal for trial of the old style? That seems to me to be the right way to go, because we should be cautious before sending our citizens abroad. I appreciate that that may cause difficulties with the European arrest warrant, because it is bound up with the wider European issue, where angels fear to tread. However, leaving that aside, we have wider discretion with other countries, and perhaps we should consider firmer testing of the proof, particularly with jurisdictions where we are unsure whether they will provide the proper level and quality of information and fair trial, and when we worry that they might not be entirely straightforward and honest about their level of evidence. Today, we have heard about cases in which there has been concern about the level of evidence.

I would like the Minister to provide some clarity. I understand that 24 British citizens have been extradited to America, and that one American has been extradited to the UK. Given that the treaty was entered into to deal with terrorism, how many of those 24 cases involved extradition for terrorist-related charges, and how many did not? That is germane to how correctly the House was led when the treaty was introduced. It was told at the time that the treaty covered terrorist activities, but not wider activities.

The Secretary of State should have a backstop power to decline to authorise extradition, and reintroduction of that should be considered to provide extra, discretionary protection in favour of liberty of the subject. We should be super-cautious before sending any of our citizens to face trial in another jurisdiction.

--- Later in debate ---

[Chris Bryant]

The honest truth is that it is a right old mix. That is why, as we consider the matter, there is a danger that we proceed only on the basis of what the hon. Gentleman referred to as anecdotal evidence of individual cases, rather than properly garnered substantive evidence that covers the whole realm.

I know the case of the hon. Gentleman’s constituent very well; I have met the family. When the hon. Gentleman’s predecessor was a Member of Parliament, I answered debates. At the Foreign Office, we tried as much as possible to rectify the problems with Greek justice. His constituent’s case was far from a unique example, not specifically regarding extradition, but regarding British people facing justice in Greek jails, in a criminal justice system that was falling apart at the seams in many ways. The Foreign Office had a difficult job to do in trying to ensure that those people got justice.

[Charlie Elphicke]

The hon. Gentleman cited the case of Russia. Does he think that, in such dealings, reciprocity is an important underlying principle that we should follow?