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

Lord Inglewood Excerpts

Wednesday 16th September 2015 Grand Committee

Moved by

[Lord Inglewood]

That the Grand Committee takes note of the Report of the Extradition Law Committee on Extradition: UK Law and Practice.

[Lord Inglewood (Con)]

My Lords, extradition—the sending of those accused or convicted of crimes across borders to stand trial or serve sentence in another country—is a contentious, albeit often misunderstood topic which on occasion engenders strong comment on account of the apparent poignancy of the facts and circumstances in a particular case.

In a world which is ever more interdependent, and where travel is ever cheaper and easier, extradition’s salience in the administration of justice is ever greater, even though in this country, at least, it goes back centuries—to 1174 and a treaty, apparently now lost, between England and Scotland.

In the 1990s, the United Kingdom’s arrangements were widely discussed following the so-called Pinochet affair, and those arrangements were superseded by the Extradition Act 2003, which has subsequently been amended. It is these arrangements and their effectiveness into which the House of Lords asked its ad hoc Committee on Extradition Law and practice to inquire in 2014 and to report by the end of March this year.

This is not the only recent parliamentary inquiry. There have been a number of others by committees of the other place and Joint Committees, which have looked into some aspects of the topic. In addition, of particular relevance and help to the committee was the report of the committee chaired by Sir Scott Baker to review the UK’s extradition arrangements, which was published in the autumn of 2011.

The committee comprised Members who had great specialist expertise, and some, like the Chairman, who were new to the topic. Some were lawyers, and others were not. A clear overview emerged that extradition is based on comity and co-operation between states, and that this requires, within certain important limits, the acceptance of the criminal justice systems of others.

The boundaries defining the limits of acceptability are founded on and derived from the European Convention on Human Rights, which is recognised widely across many jurisdictions outside our own. Furthermore, extradition is essentially a judicial, not a diplomatic, process.

The law relating to extradition in the UK is divided into three parts, which have many similarities. Part 1 relates to countries that are members of the European Union; Part 2 to countries with bilateral or multilateral treaties with the United Kingdom, 90 non-European arrest warrant countries which are signatories of the European Convention on Extradition, and Australia, Canada, New Zealand and the United States. The third part comprises other countries with which we have no standing arrangements.

Although many of the characteristics of the arrangements with Part 1 and Part 2 countries are similar, they are not identical. Finally, the committee is clear that extradition is an instrument of last resort, and that every effort should be made by administrative and other measures to limit its use. This of course entails both domestic and diplomatic considerations. Nevertheless, that may not always be possible.

However, I shall begin by considering matters which are shared by Part 1 and Part 2 countries. As already mentioned, human rights, quite properly, are at the heart of our extradition law. While we concluded that the courts, in the handling of human rights considerations, are working effectively in an area of law which is evolving all the time, we were not satisfied that post-extradition services were followed up and monitored as they should be. In particular, in individual cases it often happens that assurances are put in place to enable extradition to take place when otherwise the courts would not allow it. Clearly, it follows that such assurances must be adhered to.

The Home Secretary told us in her evidence that the Government are conducting an inquiry into the matter. We concluded that this report ought to be debated by both Houses, yet in their response the Government merely undertook to put a copy in the Library when it is completed this autumn. When does the Minister anticipate that the report will be concluded and made public, and, given that this may well affect many UK citizens, why are the Government so coy about the matter being debated in Parliament?

In considering possible extradition, there can often be real questions about where, in cases of cross-border crime, it is appropriate to prosecute. We started from a conclusion that the existing arrangements give the Crown Prosecution Service the necessary discretion to enable prosecutors to reach sensible conclusions. However, the Government appear to have dismissed our concerns that an extension of the so-called interests of justice test might better serve the system taken as a whole. Can the Minister spell out the reasoning for that?

We were also concerned that the courts should be especially astute in ensuring that a number of general principles of extradition law and practice are adhered to in this context. Although this is clearly a matter for the courts, I would ask the Government, who have responded in an apparently lukewarm manner, to urge the courts to be especially punctilious in this respect.

The committee also concluded that it was wrong that a person facing extradition be unable to present sensitive information to the courts in order to resist extradition without prejudicing others. We recommended that the Government should therefore amend the 2003 Act to provide for an independent counsel procedure, in order to enable sensitive material to be used in extradition hearings. The Government’s response does not commit to legislating to address this problem but describes the recommendation as,

“helpful in providing a foundation for further consideration of this issue”.

What have the results of this further consideration been?

We also received some evidence about the links between extradition law, family law and trafficking, which we were unable to follow up in the time available and which, in our view, merit serious further consideration. I am very glad that the Government have said they agree, and I would be interested to hear what might be done to take this matter forward.

A frequent concern put to us in evidence was the difficulty in ensuring that appropriately qualified solicitors were available to assist those subject to extradition requests, because bad advice at the outset can harm individuals and waste the court’s time and public money. A ticketing system exists for district judges to ensure that those undertaking extradition casework are appropriately qualified. In a bid to be helpful, the committee recommended that such a system should be introduced for the rota of duty solicitors. It was disappointing that the Government’s response was fairly dismissive of this suggestion, saying that the costs of having such a system would be disproportionate to the concern. Rather, we believe that the committee’s recommendation could actually save money by making court proceedings shorter and more efficient. Was any form of impact assessment carried out before the Government came to their decision? More generally, the committee’s position was that, in any event, where the cost-benefit analysis was thin, the interests of justice should take priority. We heard persuasive evidence of people being badly represented at the early stages of extradition, and we believe that a ticketing system would have helped to prevent that. Can the Minister set out how the Government plan to tackle this problem?

I now turn to the vexed issue of the availability of legal aid. The Baker review asked for a cost-benefit analysis of the effect of removing means testing for legal aid in extradition cases. The committee concluded that the analysis provided to the review was,

“neither a sufficient nor a credible response to the concerns raised”,

and asked the Government to,

“conduct and publish a full and detailed cost-benefit analysis”.

We wanted this analysis to include the potential savings made by having matters resolved by lawyers in the issuing state—and again, within the analysis, the interests of justice ought to take priority. In the mean time, we felt that the Government should do what they can to make the current process more efficient, and noted that practical improvements are under way. In their response, the Government state that they have “no plans” to undertake a “more detailed” analysis and reject,

“any assertion that the means testing of criminal legal aid is fundamentally inconsistent with the timely progress of extradition hearings”.

However, this response has missed the point of the committee’s recommendation. We were not criticising the processing of legal aid applications by the legal aid authority but the earlier, initial hurdles that many requested people faced in even making an application. These could be, for example, a lack of paperwork, poor legal advice or even their having no legal advice at all until the legal aid came through. In passing, I note that the response says that legal aid issues could not justify an automatic three-month delay. The Government may be right, but this was not our assertion; it was the explicit evidence of the district judges, which we believe deserved a better response.

I turn to Part 1 countries and start with the European arrest warrant. This ad hoc committee was somewhat unusual in that we were allowed by the House to publish not one but two reports. With the House’s permission, we were able to produce a short interim report on the European arrest warrant, which was timed to enable the inquiry to contribute to the high-profile debate at the end of last year on whether the UK should seek to opt back into it. The committee concluded that,

“the EAW is a vital tool in fighting crime across the EU”,

but we recognised that it had in the past been overused by some states and, on occasions, misused. It seems to us that the Government are therefore to be congratulated on some of the changes they made to the 2003 Act to address those concerns, and that they should continue to work with the European Commission and other EU member states to ensure that European arrest warrants are an instrument not of first, but of last resort.

As just touched on, one criticism of the extradition system in the case of Part 1 countries is that there has been no sense of proportion in its use, in that it has been deployed in trivial and minor cases. While in the past certain technical reasons have accounted for some of this, a proportionality bar—which has in turn engendered quite a bit of comment—has been introduced into our legislation in respect of Part 1 countries. We agreed that it did not appear appropriate in the case of Part 2 countries. Furthermore, a number of other countries—I single out Poland—have adapted their domestic jurisprudence to constrain the number of requests. We believe that this looks like a step in the right direction, but why in their response do the Government not consider it disproportionate to extradite in conviction cases when less than four months of a sentence is left to run?

I turn to the position of Part 2 countries. As I said, these are the countries designated in the 2003 Act with which the UK has either bilateral or multilateral treaties that are not covered by the EAW, and are signatories to the convention on extradition; they also include Australia, Canada, New Zealand and the United States. The Government are in the second phase of a review of the designation of these countries, the results of which are still pending. We nevertheless felt that it was important that the review should include the status of signatories to the convention, even though we took the realistic view that we are where we are in the real world and that ultimately, it may not be practical to redesignate them. I have to say that I was unclear from the Government’s response what the focus of the current phase of their review might be. Perhaps the Minister could shed a little further light on what their considerations have been so far.

Finally, I want to turn to the extradition arrangements between the United Kingdom and the United States, which have been subject to high-profile criticisms and comment in recent years. We recognise the potential validity of some of the concerns about the US justice system. In particular, there have been difficulties with sometimes lengthy periods of pre-trial detention and in obtaining bail. That said, it is important for everyone to remember that the courts have found that the US justice system complies with the European convention. Despite its high profile, we did not consider the US to be in a category of its own outside that of other Part 2 countries. We concluded that the Government should make representations to the United States authorities with a view to agreeing the treatment of those extradited from the UK, with particular regard to transfer, pre-trial detention and bail, but they should also make similar representations to any other country where there are concerns about conditions. We felt it was important that, were that to be done, such representation should be documented in a memorandum of understanding. The Government appear to have declined to do this, citing the centrality of the role of the courts in determining such assurances and the likely conditions to which requested people will be subject.

Extradition is, of course, a judicial process, but the committee’s intention was to propose some sort of middle way to address the complaints and concerns about treatment which may or may not fall below ECHR thresholds, but still undermines the UK’s extradition arrangements with the United States and vice versa. Self-evidently there is a problem, even if only one of perception. It is a pity that the response has been so unimaginative.

An inevitable feature of an ad hoc committee is that it has no means to follow up its reports, particularly concerning the way in which the world has or has not changed in the light of its recommendations, and whether the Government have honoured their commitments. This sort of follow-up work would be an essential part of the job of any diligent permanent committee doing its job effectively. The Government would be foolish to feel that they were getting off the hook because of that structural issue, or that today’s debate would be the last word.

The Liaison Committee will, I know, return to our report next year—having recently, I understand, conducted its own follow-up exercises on the reports of ad hoc committees from the 2013-14 Session. Equally, the issues covered in our report will not go away, and will certainly remain of high interest to those in your Lordships’ House, and to many outside.

In conclusion, I thank the members of the committee, the clerks, James Whittle and Cathryn Auplish, and our splendid special adviser, Charlotte Powell, for all the work they have contributed. I would also like to put on record our gratitude to all our witnesses, in particular the judges at the extradition court in Marylebone and the Extradition Lawyers Association, for the help they have given us in trying to get a true understanding of how our extradition system actually works. I commend the committee’s report to the Committee, and I beg to move the Motion standing in my name on the Order Paper.

--- Later in debate ---

[Lord Inglewood]

My Lords, the debate draws to its conclusion when my noble and learned friend sits down, but I want to make just two points arising out of his remarks to us, for which I am grateful. First, talking about certification and legal aid, he emphasised economics. But a lot of the evidence that we heard suggested—I would not want to put it higher than that—that doing what was advocated might well save money, and I have always understood that one of the themes of this Government is that they want to save public money. If that can be substantiated, it seems to me to justify adopting the suggestions we have put forward—and it would seem worth substantiating it one way or another.

Secondly, turning to assurances, it was good of my noble and learned friend to say that he would write to me about this, but then he said, “Of course, one has to remember that I am a Scot, and autumn comes early in Scotland”. Well, I am a Cumbrian, and I know that the further north you go the earlier autumn comes, but I draw to his attention the corollary of that—spring comes late, and we are in London here.

I thank all the speakers who have taken part in this debate. In the words of the noble Lord, Lord Empey, they have “jollied it along”, because they have—very helpfully—amplified the tone of the discussions we had in the committee as we were writing the report. I would also like to say that, as your Lordships all know, we had very late notice of the changing of the time of this debate. A number of people who wished to take part, and had put their names down to speak, found that they were unable to do so. On a personal level, I seem to be plagued by this particular problem: it happened to me just before the summer break. I make a plea to the business managers of the House—the big beasts, who are here all the time: it is difficult for those of us who are always being told that we are part-time Members simply to drop everything and change our plans at the last minute. Surely it is not beyond the wit of man for them to make their timetabling a trifle more precise than may have been the case of late.

Finally, it seems to emerge from our work that there are two key aspects of extradition. The first is that the rule of law, both in our jurisdiction and outside it, is of very real importance to everyone. The second is that extradition deals with real people who have real families, and just because someone is accused of a crime or convicted of one, that does not mean they become a non-person, with no rights at all. A proper extradition system has to ensure that there is no conflict between the two.

Motion agreed.