UK Extradition Arrangements

Stephen Phillips Excerpts

Monday 5th December 2011 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate and on the fierce advocacy that he has deployed both in his speech this evening and generally in relation to this issue. There have been a number of powerful contributions from both sides of the House. The contribution on the European arrest warrant from my hon. Friend the Member for Bournemouth West (Conor Burns) was particularly impressive. He said that he was not a lawyer and that being a politician was criminal enough in his constituency. All I can say is that I will not be taking my holiday in Bournemouth this year.

Extradition serves an extraordinarily useful function in the administration of criminal justice throughout the world. Merely fleeing a jurisdiction should not be equated with acquittal. It is very important that decent and proper extradition arrangements exist between civilised nations so that those who are accused of crimes, or at least of serious crimes, can be brought before the criminal courts of the jurisdiction in which those crimes are alleged to have been committed—provided of course that appropriate safeguards are in place, along the lines indicated by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), to recognise that those accused of crimes are not guilty of those crimes until such time as a jury, or in some cases a judicial body, has said so. There was nothing more inimical to justice than the spectre, after the end of the second world war, of many war criminals who were guilty of genocide being able to travel to jurisdictions where there were no extradition arrangements with European nations, and in those circumstances being able to evade justice for a considerable period. During the debate, we should not lose sight of the fact that there are victims of crime who are as much entitled to justice as those who are accused of crimes and who are in fact innocent.

As has been recognised in the debate—we have begun to reach a consensus on both sides of the House—a balance needs to be struck between, on one hand, the protection of the fundamental right of a citizen not to be extradited abroad if there are inadequate safeguards to protect that citizen from an unfair trial and, on the other, the need to prosecute very serious crimes. A number of principles pervade this area of law but, given the events at the beginning of this century that led to the Extradition Act 2003, sufficient regard might not have been paid to them.

The first of those principles is that trivial offences should not trigger extradition at all. In circumstances such as some of those alluded to by my hon. Friend the Member for Bournemouth West, it is entirely inappropriate that any citizen be removed from his own jurisdiction, taken to a foreign place, perhaps not granted bail and locked up, and prosecuted for something that, on the face of things, is minor.

The second important principle is that of speciality, of which no mention has been made during this debate but which requires that the only offences with which someone extradited to a foreign jurisdiction can be charged be those for which he has been extradited in the first place. Two of the problems in this area that perhaps have not been properly grappled with by the Extradition Act are the absence of enforceable assurances from some countries seeking extradition from this country and the fact that the Home Secretary and the courts cannot take the principle of speciality properly into account in those circumstances.

There is also the principle that there should not be double jeopardy—that nobody should be tried twice for the same offence—save perhaps in limited circumstances. Again, I do not think that any mention has been made of that in the debate. Furthermore, there are principles surrounding the protection of people’s human rights—the principle that we do not require those domiciled in this country, regardless of whether they are citizens, to be extradited if they might face capital punishment. That was alluded to by the hon. Member for Brighton, Pavilion (Caroline Lucas)—although I could not agree with all her remarks about torture.

Two issues have arisen out of the 2003 Act. The first concerns the disparity—or lack of reciprocity—perceived to exist between the arrangements that we have in place for extradition to the United States and the arrangements that the United States has in place for the extradition to this country of those accused of crimes here. Notwithstanding what was said by the then Attorney-General, Baroness Scotland, when the commencement provisions of the 2003 Act were debated in the other place, I agree with the Baker report that there is little difference between the tests applied on this side of the Atlantic and on the other side. Fundamentally, there is no difference between probable cause and reasonable suspicion.

What so concerns our constituents—certainly in my constituency—and many lawyers is that whereas in the United States the fourth amendment to the constitution, which requires probable cause to be shown, requires that an extradition request go before a court, there is no such requirement in this country. In those circumstances, it is perceived—I think, perhaps, correctly—that citizens or anybody domiciled in this jurisdiction whose extradition is sought to the United States are being denied a right that they might otherwise have had.

The commencement of the forum provisions contained in the Police and Justice Act 2006, in so far as they amended the 2003 Act, would go some way to meeting these difficulties. I agree with the Joint Committee on Human Rights that it is difficult to understand why those provisions have not been commenced, including by the previous Government. Liberty obtained advice from leading counsel, Edward Fitzgerald and Julian Knowles, that no amendment to the treaty between this country and the United States would be required were those provisions to be commenced. I would like to hear from the Minister, therefore, that the Government will at the very least bring forward the commencement of those provisions.

[Richard Fuller (Bedford) (Con)]

My hon. and learned Friend is talking about the immediacy and the timing of some of these issues. That Babar Ahmad, who is the most pertinent example, has still not been brought to trial after seven years is further evidence of a scar on general jurisprudence in this country. Does that not give a sense of the importance of immediacy?

[Stephen Phillips]

I agree with my hon. Friend that it is a stain on justice in this country and, in my view, on justice in the United States that Babar Ahmad has been locked up for seven years. If Babar Ahmad wanted a trial, he could have one in the United States, but one of the great difficulties with forum issues is this: why on earth should he have to do so? Why should he be taken to a foreign jurisdiction, when the witnesses, the evidence and his legal representatives might be here, to defend himself against these very serious accusations? As the hon. Member for Brighton, Pavilion pointed out, these are very serious allegations indeed. I was horrified to hear her comments about the absence of evidence before the Crown Prosecution Service. I hope that that matter will be looked into and that the Minister will assure us that the evidence will be made available.

The other area of debate has been the European arrest warrant, the problem with which is that the standards of justice that prevail in this country and other countries in Europe, such as Ireland, Germany and France, are not necessarily those that prevail all over the European Union. I regret to say that I do not share the hope of the Joint Committee on Human Rights and the Baker report that the system will sort itself out. That is the triumph of hope over experience.

[Jeremy Corbyn (Islington North) (Lab)]

I start by congratulating the Backbench Business Committee on securing this debate and the hon. Member for Esher and Walton (Mr Raab) on how he introduced it. I also place on the record my pleasure that, after the unfortunate way in which the debate was punted into Westminster Hall, we now have it on the Floor of the House. I thank those concerned and those who campaigned to ensure that these huge petitions were responded to properly.

When I was first elected to the House, I never would have dreamed it possible that public campaigns and public concern could result in a debate in the House of Commons. We spent years trying to secure debates on the Birmingham Six, the Guildford Four and several other cases that turned out to be serious miscarriages of justices and which, in the current atmosphere, would undoubtedly have attracted the same number of petitioners as the cases being discussed tonight. We should welcome the fact that Parliament has manoeuvred itself into a position where it can be more responsive to public concerns and justice issues. I hope that it continues. After all, that is what we are sent here for—not only to write laws and change laws but to consider issues of miscarriages of justice.

I want to refer briefly to three cases and then make a couple of general points. I shall not talk at great length about the first one because others have done so. The case of Gary McKinnon has been well reported and documented, and his mother and family have campaigned so assiduously on it, as has his own MP and many others. It is time that we understood that the McKinnon case goes to the heart of a whole load of inadequacies, of both our system and our relationship with the United States, which, as the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) pointed out a minute ago, is not a reciprocal arrangement, but something fundamentally different.

[Stephen Phillips]

I am extremely grateful to the hon. Gentleman for giving way so soon. Is not one of the problems with the McKinnon case that there is nothing in the 2003 Act to enable the Home Secretary to take into account either mental or physical illness? That means that Gary McKinnon’s Asperger’s cannot be taken into account when deciding whether he should be extradited.

[Jeremy Corbyn]

The hon. and learned Gentleman makes an excellent point, and I agree with him. That is the fundamental weakness in the 2003 Act, which does not allow that discretion which any sensible, right-thinking person would apply straight away on a humanitarian basis.

I was not going to mention the General Pinochet case until I got to the end, but I may as well do so now, as it fits with the hon. and learned Gentleman’s point. Like many others, I fought to get Pinochet extradited so that he could go on trial. We won the cases all the way through, but unfortunately the then Home Secretary decided that there was an overriding medical reason for allowing General Pinochet to return on the “Lazarus flight” to Chile, where he walked off the plane and seemed to be perfectly healthy.

--- Later in debate ---

[Chris Bryant]

Oh dear, no. Don’t get me started on that. In fact, the hon. Gentleman is wrong about the aetiology of how we got to the European arrest warrant. It was a Conservative Government who ratified our membership of the European convention on extradition in 1991, which has almost all the same provisions and applies to nearly all the same countries. Indeed, in 1993 it also included Hungary.

Secondly, I wish to mention prima facie rules. Under the 2003 Act, there is no prima facie rule in relation to EAW countries, known in the legislation as category 1 territories. However, in countries in whose criminal justice systems we do not have the same legal confidence, a prima facie rule still applies. That includes several Commonwealth countries covered by the London scheme and many others covered by bilateral treaties, such as Brazil and Argentina—the countries that were formerly quite happy to receive people from Nazi Germany without asking any questions.

There is no prima facie requirement for designated category 2 countries that share our respect for human rights and the rule of law, such as Canada, New Zealand, Australia and the US. The Opposition believe that that distinction is a proper one, even if we would constantly seek to urge reform and modernisation of legal systems in many EAW countries. Hon. Members have said that we cannot just hope that that will happen and that we need to try to ensure that it does. However, we would not do so by suddenly inserting a prima facie case for all EAWs. If we did that, we would be leaving the EAW. Some hon. Members might like us to do that—as well as leaving the EU—but it would be a mistake because of the effects it would have on the UK.

[Stephen Phillips]

As I understand it, the hon. Gentleman is therefore advocating that it is perfectly acceptable for citizens of this country to be extradited to jurisdictions where conditions in the justice system are less than ideal when no prima facie case is shown. Is that right?

[Chris Bryant]

The Committee makes it clear in its report that the

“EAW is based on the principle of mutual recognition of judicial decisions and… mutual trust”

between the judicial authorities of EU states. That is a legitimate position for us to adopt, just as it was adopted in 1991 by the Conservative Government when they signed us up to the ECE—[Interruption.] The hon. Gentleman is chuntering, but I cannot hear what he says. Unless he wants to chunter louder, I am at a loss—[Interruption.] He says he will chunter more quietly, for which I am very grateful.