Extradition- Nat West 3Commons Debate 24 Oct 2006 Annotated

8/2/2019 Extradition- Nat West 3Commons Debate 24 Oct 2006 Annotated

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Legend:

Edward Garnier, Solicitor GeneralMichael Howard, former Home Secretary

Boris Johnson, Mayor of LondonDavid Heath, Deputy Leader of the Commons

24 Oct 2006 : Column 1389

Orders of the Day

Police and Justice Bill

Lords amendments considered.

After Clause 46

3.47 pm

Lords amendment: No. 36.

The Parliamentary Under-Secretary of State for the Home Department (Joan

Ryan): I beg to move, That this House disagrees with the Lords in the said amendment.

Mr. Speaker: With this it will be convenient to take Lords amendments Nos. 81 to 85and the Government motions to disagree thereto.

Joan Ryan: The adoption of these amendments by the other place was a bad day forinternational co-operation in the fight against crime. Today, we have the opportunity toput that right, and it is the last chance to do so. The amendments were proposed bymisguided right hon. and hon. Opposition Members. Why? Because they believed thatthe amendments would somehow protect people accused of serious offences from facingjustice abroad, rather than at home.

Leaving aside the whole question of whether Her Majestys Opposition should have

allowed themselves to be so heavily influenced by blatantly inaccurate media reportingwithout checking their facts, my question is this: what is wrong with a provision onextradition that, when in government, they voted into law fully 17 years ago, when theyimplemented the European convention on extradition?

Mr. Richard Shepherd (Aldridge-Brownhills) (Con): The question is not aboutextradition per se but about making a prima facie case to the courts. The United States


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requires a prima facie case to be made if it is to extradite someone here, but we do notrequire it to extradite someone there. That is the matter in question.

Joan Ryan: I understand the hon. Gentlemans point, which has been made several timesin the Chamber and in another place. Hon. Friends and I have answered it in Committee

and at the Dispatch Box. I repeatI shall do so again later in my speechthat the hon.Gentleman is, frankly, wrong. The United States demands probable cause of us. Wedemand of it information sufficient for a magistrate to issue a warrant for arrest. Thatconstitutes reasonable suspicion. Probable cause and reasonable suspicion have what wecall rough parity. They are as close as it is possible to get, given that no two legal systemsexactly match. We therefore have parity and reciprocity in the evidence required betweenthe United States and us.

Mr. Edward Garnier (Harborough) (Con): I am grateful to the Under-Secretary forgiving way so early in her remarks, but her point needs immediate clarification before shemisleads herself or the House. Does she accept that the 1973 treaty between the

24 Oct 2006 : Column 1390United States and the United Kingdom required mutual parity, albeit through differentwording? We required a prima facie case and it required reasonable cause. Does sheaccept that the 2003 treaty does not contain parity and reciprocity, and that probablecause is not matched by information? Information is a different legal concept fromprobable cause, which is based on evidence.

Joan Ryan: I regret that the hon. and learned Gentleman does not appear to have listenedto what I said. However, let me answer his two points clearly. I do not accept that the1973 treaty delivered parity. There is no parity between a prima facie case and probablecause. I believe that there is rough parityI repeat that no two legal systems are the

samebetween probable cause and reasonable suspicion. Before the Extradition Act2003 was introduced, an imbalance existed but it was the opposite of what ConservativeMembers suggest.

Several hon. Membersrose

Joan Ryan: I intend to give way to as many hon. Members as possible in the timeavailable.

Mr. Humfrey Malins (Woking) (Con): The Under-Secretary may know that I sit part-time as a district judge, so I know as well as many our duty to do justice. If a UK citizenis before a court because the Americans are trying to extradite him or her, is not it ourfundamental duty to say to the Americans, You have to establish a prima facie casethrough evidence before we extradite? Is not anything else a gross dereliction of duty to

our UK citizens?

Joan Ryan: I disagree. It is our duty to do justice, and our extradition arrangements areabout justice for victims and bringing the perpetrators of crime to justice. The purpose ofthe 2003 Act and the treaty is to ensure that justice is done in some serious casesI am


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sure that I do not need to tell the hon. Gentleman that. We are dealing with a trustedpartner and a legal system in a long-standing democracy, with which we have had arelationship for more than 100 years. We have operated under the 2003 Act for two yearswithout experiencing any difficulty. We demand of the United States informationsufficient for a magistrate to issue a warrant for arrest. An individual before the courts

facing extradition has to go through due process, and has numerous opportunities to puttheir case to the courts. They are also covered by the European convention on humanrights. It is important that we take that into account.

Mr. Michael Howard (Folkestone and Hythe) (Con): I do not ask the hon. Lady toaccept anything that we say; I simply ask her to accept what her ministerial colleague,Baroness Scotland, said in another place on this point on 16 December 2003. She saidthat the test that we have to meet when we seek extradition to this country is

a higher threshold than we ask of the United States, and I make no secret of

that.[ Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1063.]

Those were the precise words of the hon. Ladys ministerial colleague in another place.Why does she continue to fly in the face of those words?

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Joan Ryan: I have said to the House that there is no exact parity. There is rough parity. Ireiterate that case, and no amount of insisting that there is a higher threshold or a lowerthreshold will change the fact that this is rough parity. It is as close as we can get, and weare satisfiedbecause we see it in operationthat it delivers justice.


Joan Ryan: I want to make a little more progress, then I will give way to other hon.Gentlemen and hon. Ladies.

The European convention on extradition enabled the UK to extradite without prima facieevidence. Since 1991, when it came into force, scores of people who were wanted forvery serious offences have been extradited from this country without prima facieevidence. I have no doubt that the world, including this island, is a safer place because ofthat convention. In the same way, the UK has been able to bring people back here to face

justice in our own courts. I salute those on the Opposition Benches who were members ofthe Government at that time for their foresight and common sense. Sadly, however, someof those same Members and others on those Benches thought that the decision to extendthose provisions to our arrangements with the United Statesa decision that the officialOpposition did not oppose in 2003should be reversed. Why? People have beenextradited from here to the United States, and vice versa, for more than 100 years. Wetrust the United States system just as it trusts oursit is as trustworthy as that of our


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neighbours in Europeand its Bill of Rights safeguards defendants rights in its courtsjust as our convention on human rights does in ours. So, what could be the problem?

David Howarth (Cambridge) (LD): Is not the real difference between evidence on theone side and information on the other? Does not that mean that in the United States it is

possible for someone to challenge the evidence on the substance of the case against them,in terms of whether it is believable and whether it could be negatedor, to use theAmerican term, obliteratedby other evidence? In this country, however, that is notpossible. That is an important difference, and the Minister should recognise that that isthe difference that she is talking about.

Joan Ryan: I am afraid that the hon. Gentleman is entirely wrong. The information isevidence.


Joan Ryan: I should like to go back to the question that I just asked. What could be theproblem? Why do Opposition Members want the US not to be in this relationship withus? Could it be something to do with the new extradition treaty that our countries signedin 2003? That treaty was under discussion, by the way, before the terrible events ofSeptember 2001. The treaty was necessary to bring our extradition arrangements with theUnited States up to date, to enable us to co-operate with each other effectively, and tofight the ever-changing threats of 21st century crime.24 Oct 2006 : Column 1392

4 pm

Mr. John Redwood (Wokingham) (Con): The problem is that although manyConservative Members were tolerant and sympathetic to the Government when theprovision was presented as something to do with terrorism, in the case of alleged whitecollar crime[Hon. Members: Ah!] This concerns Labour Members constituents aswell as ours, and they should listen carefully. Where the person has committed no crimein Britain, the prosecuting authorities are bringing their case, and the employeramultinationalis quite happy, is it right that that person should be plucked away fromtheir family for a very long time on a charge that we do not think will go anywhere?

Joan Ryan: I say to the right hon. Gentleman that fraud is not entitled to some kind ofexemption. There is no such thing as a victimless crime. The victims of fraud have nochoice about being victims, whereas the person who perpetrates fraud makes a choice.The victims of fraud often lose their savings and their pensions. The fact that people cansubsequently be convicted does not restore to victims what they have lost. These aretherefore very serious matters. The right hon. Gentleman will know that when the effectsof a crime are judged to be primarily in another state, where the evidence and witnessesare based, our independent prosecutor system decides whether the prosecution shouldtake place here or there. That decision is not made by politicians.


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Mr. Boris Johnson (Henley) (Con): When the Minister says that there is reciprocitybecause information is evidence, does she agree that the key point is that information laidby the Americans cannot be contested by defendants on this side, whereas in America, asthe hon. Member for Cambridge (David Howarth) correctly says, it is possible for ourclaims to be contested by defendants?

Joan Ryan: I have explained to the House that there is rough parity, and that in thiscontext information is evidence.

For an individual for whom the courts are considering an extradition order, there islengthy due process. Not only does the prosecutor consider the case but a certificate mustbe issued in the Home Office. The case goes to a district court, and it can be appealed to ahigher court, the House of Lords and the European Court. Due process protects the rightsof our citizens. If those citizens stand accused of serious crime, however, we shouldfacilitate justice. That is what this Act and treaty are all about.

Mr. Robert Marshall-Andrews (Medway) (Lab): It is a little distressing to see theMinister trying to argue an unarguable case, which is probably not necessary. The plainfact is that we do not have reciprocity, and everybody knows that. I and many others likeme are entirely in favour of fast-track extradition, which we have with many civilisedcountries in the world. I would be in favour of having that arrangement with the UnitedStates, but the problem lies with the fact that America will not and cannot sign up to that,as,24 Oct 2006 : Column 1393constitutionally, it cannot do so. That is what has been argued, and I think that theMinister knows that very well. We therefore have an unequal system. The plain fact,however, is that that probably does not matter much. With great respect, that is where the

MinisterMr. Speaker: Order. It sounds to me as though the hon. and learned Gentleman iscapable of making a speech on the subject. He seems to know a lot about it, but he ismaking an intervention.

Joan Ryan: I thank my hon. and learned Friend for his support on fast-track extradition.We will have to agree to disagree on the question of reciprocity. I think that it isreciprocity, and many others agree with that. However, my hon. and learned Friend getsto the crux of the matter. As I said, this is about justice. Under either system, andwhatever level of evidence has been required, the United States has extradited morequickly to us than we have done to it.

Mr. Andrew Dismore (Hendon) (Lab): One of the things that trouble me, and perhapsother Members, is the possibility of United Kingdom nationals who ought to be tried inthe United Kingdom being extradited to America when there is a case that should beheard here. What discussions have the Minister and the Attorney-General had with theAmericans to try to build on the co-operation that she mentioned earlier, and particularlyto ensure that proper decisions are made about the correct forum? I am thinking mostly


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about the position of defendants from minority communities, as I am more concernedabout them than I am about rich bankers.

Joan Ryan: I hope that I can satisfy my hon. Friend. The Attorney-General has openeddiscussions with his counterpart in the United States. He met the US Attorney General in

Washington in September, and raised those issues then. Discussions are now under waybetween their respective officers on enhanced procedures for consultation between theUK and US prosecutors on such transnational cases. The proposed procedures envisageearly consultation in any case in which it appears to a prosecutor in one country that thereis a real possibility that a prosecutor in the other country may have an interest inprosecuting it. I can also tell my hon. Friend that my right hon. Friend the HomeSecretary will be speaking to the US Attorney-General in the next few days on exactlythese matters. We think that my hon. Friends point is important, and we are addressing

it.


Joan Ryan: I think that I should make a little progress. I will certainly take moreinterventions after that.

If the Opposition amendments are not reversed, the new treatyincluding all its newprovisions to help British victims of crimecannot be ratified. On 29 September theUnited States Senate gave its advice24 Oct 2006 : Column 1394and consent to the treatys ratification, thus reaffirming what we have believed allalongthat both sides signed the treaty in good faith, and for the mutual benefit andsafety of our citizens. Now we must act too.

Kate Hoey (Vauxhall) (Lab): The Minister said that the treaty had been agreed inAmerica. Does that mean that the American Senate has agreed to accept British courtsrights to try people whom we are attempting to take back for the purposes of IRAterrorism cases?

Joan Ryan: My hon. Friend is right. There was an issue involving the Senate in thatcontext. As my hon. Friend will know, we have given an undertaking not to pursuepeople covered by the Good Friday agreement who committed those crimes.

Kate Hoey: I am talking about IRA terrorists.

Joan Ryan: If my hon. Friend will bear with me for one moment, I will ensure that I giveher an accurate answer.

The Senates advice and consent to the treaty was subject to a resolution relating to thesituation in Northern Ireland, which is, I think, what my hon. Friend is asking me about.The United Kingdom Government have already stated, in September 2000, that they willno longer pursue the extradition of individuals who, if they were to return to Northern


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Ireland, would now be eligible for early release under the terms of the Good Fridayagreement scheme, and who would, on making a successful application to the SentenceReview Commissioners, have little if any of their original sentences to serve.

The resolution to which the Senates consent to the treaty was subject is non-binding. It

was intended to reassure senators than the treaty would be implemented in accordancewith the US law and constitution. I hope that that deals with the point that my hon. Friendwas making. As I said, on 29 September the US Senate gave its advice and consent to theratification of the treaty, and now we must act too.

Let me pause to spell out what will change when the treaty comes into force. I ask forMembers patience, because extradition is complex: the distorted simplifications in themedia bear witness to that.

Mr. Andrew Turner (Isle of Wight) (Con): Will the Minister confirm that the USSenate has been told that there will be an amnesty for on-the-run terrorists?

Joan Ryan: I have already fully answered the question put by my hon. Friend theMember for Vauxhall (Kate Hoey) and what the hon. Gentleman has just said was notpart of my answer.

The new treaty will define extraditable offences not with a fixed list of crimes, but bysentence threshold. Offences punishable in both countries by a years imprisonment ormore will be extraditable, which is the dual criminality rule.

It is essential that we have the ability to go after suspects who have fled the UK. If theyare wanted for a new offence, perhaps one not dreamed of in 1972 when the current

treaty was signedwe need to reflect on24 Oct 2006 : Column 1395how much crime, especially organised and serious crime, has changed since thenwemust ensure that we have the tools to fight it.

The treaty will also allow the extradition of someone who is already serving a prisonsentencea measure called temporary surrender, which is incredibly important, becausewith increased ease of travel, criminals, just like the law-abiding majority, can travelmuch more than in the past. It was a new measure in the Extradition Act 2003, and theUK recently effected its first temporary surrender in Europe on someone serving a longsentence here for rape, who was also wanted abroad for the same terrible crime. Owing to

the temporary surrender measure, his victim abroad is able to get speedy justice for thatcrime. I need hardly say that justice delayed for a crime like that is justice denied. Thatprocedure needs to be made possible between the UK and the US, for the same reason.

Rob Marris (Wolverhampton, South-West) (Lab): As I understand the amendmentand the motion to disagree, we are dealing particularly with the USA. However, Iunderstandthe Minister will correct me if I am wrongthat since 1991, the UK hashad arrangements with a number of countries for extradition based on information rather


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than on a prima facie case. I do not know how long it would detain the House, but couldthe Minister provide some indication of some or all the other countries with which wealready have an information rather than a prima facie arrangement?

Joan Ryan: I can indeed provide my hon. Friend with some examples[Interruption.]

Mr. Garnierrose

Joan Ryan:I am answering my hon. Friends intervention.

In that category are some 50 countries with which we have that particular relationship, soby no means is the US out there in some amazing category on its own. Other countrieswhere prima facie evidence is not required include Albania, Andorra, Armenia,Azerbaijan, Croatia, Georgia, Icelandand I could go on. Canada, Australia and a hugerange of countries that have these extradition arrangements could be specified, but I amsure that my hon. Friend gets the point. It is not at all unusual; what is unusual is that, for

some reason, there is a huge focus on the arrangement with the USA.

Mr. Boris Johnsonrose

Mr. Garnierrose

Joan Ryan: I shall give way to the hon. and learned Gentleman for a second time, but Iknow that he will have the opportunity to make his own contribution later.

Mr. Garnier: I am deeply grateful to the Minister. However, the planted interventionfrom the hon. Member for Wolverhampton, South-West (Rob Marris) was interesting

only in so far as it pointed out that all the countries that she began to list have exactlyreciprocal arrangements with us. The US does not, so the point is a false one.

Joan Ryan: We also have reciprocity with the US, as I have outlined a number of times.At the end of the day, that question can be put time and again, but the hon. and learnedGentleman is not prepared to accept my explanation. My explanation is, however, thecorrect interpretation, because we have reciprocity. It is rough paritythe highest levelof reciprocity that is possible between two legal systems.


Joan Ryan: I am not giving way on that point, as I want to make some progress.

The treaty will also permit the waiver of speciality protection. I want to talk about thetreaty because it has been such a big issue for hon. Members, especially OppositionMembers, every time the issue has been discussed in the Chamber. Opposition Membershave insisted that we would not be able to achieve ratification in the US Senate, butBaroness Scotland went to the United States and persuaded the Senate that ratificationwas right. The measures in this treaty, which bring great benefits to British citizens in


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terms of delivering justice, are worthy of a little attention. It saddens me that OppositionMembers do not want to talk about what is actually in the treaty, but are entirely focusedon the points in the Extradition Act 2003, which we have discussed ad infinitum. I askthem to address some of the issues in the treaty.

4.15 pm

The speciality protection could be very important. Speciality means that when someoneis extradited they can be tried only for the conduct on the extradition warrant. That is anobvious protection of their rights, but what if our police foundafter the person had beenreturned herethat he was also the prime suspect in a completely separate crime? Andwhat if it was a very serious crime, such as a sexual attack on a child or a terroristoffence? It has happened in real cases that such offences have come to light afterextradition. Would it not be in the interests of justice and the victims of the crime to beable to prosecute those offences as well? Waiver of speciality enables that to happenwhere appropriate. It is essential that we have that measure in our arrangements with theUnited States.

Emily Thornberry (Islington, South and Finsbury) (Lab): Can my hon. Friend givespecific reassurance to a group of my constituents from the Muslim Welfare House whoare especially concerned that if one of their number were to be extradited they could endup in Guantanamo Bay?

Joan Ryan: I know that that has been an issue of concern for several hon. Members, so Iam grateful for the opportunity to address that point. When a judge in this country ismaking a decision about an extradition warrant, they have to apply the Europeanconvention on human rights. If we extradite someone to the United States and they arethen removed to a detention centre such as Guantanamo Bay, that would in our view be abreach of their human rights. If our courts, when hearing an extradition request, thoughtfor one moment that a breach of human rights would occur, they would not extradite. Ifthey did extradite and there were a24 Oct 2006 : Column 1397breach, it would never happen again, because our courts would refuse to extradite on thatbasis. We would immediately be in a situation in which the US was no longer designatedin that category.

I wish to add what is perhaps the most important point. We seek assurances on suchmatters, where appropriate, from the US. For instance, when we extradite someone whohas committed an offence that would carry the death penalty in the US, we seekassurances that that penalty will not be applied to the citizen we are extraditing.Similarly, in cases such as those that my hon. Friend mentions, we seek assurances, andwe have been given assurances. I can tell my hon. Friend that the US has never breachedthe assurances that it has given. I hope that that covers the point that she has raised withme.

Mr. David Winnick (Walsall, North) (Lab): The situation in Guantanamo Bay is veryworrying for many of us, but when the magistrate who deals with such applications for


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extraditions to the US gave evidence to the Home Affairs Committee, he was asked if hewould ever agree to the extradition of anyone who could end up in that placewhichshould not even exist. He said that if he thought that there was any such danger, hisresponse would be to reject the application. I hope that that continues to be the position.

Joan Ryan: I thank my hon. Friend, who has illuminated the point that I am making.

Sir Gerald Kaufman (Manchester, Gorton) (Lab): Both of my hon. Friends who haveintervened about Guantanamo Bay are right to say that it is a matter of deep concern tomembers of the Muslim community. Will my hon. Friend the Minister confirm that myright hon. Friend the Home Secretary has written a letter to me about Mr. Babar Ahmed,whose case is before the High Court? If Mr. Speaker will allow me, I should like to readfrom it. My right hon. Friend says that

in relevant cases, the court has been given an assurance that the person soughtwill not be sent to Guantanamo Bay.

Joan Ryan: I can indeed confirm that my right hon. Friend the Home Secretary haswritten to my right hon. Friend in exactly those terms. I thank him for that helpfulintervention on this very serious matter. It further illuminates and confirms what I amtelling the House.

Mr. David Heath (Somerton and Frome) (LD): Will the Minister give way?

Joan Ryan: I want to make progress, as I am sure that other hon. Members want tocontribute to the debate.

There is another measure that will bring justice to those who have been denied it in thistreaty. When an offence in the US is barred by lapse of time from prosecution there, dualcriminality means that the suspect cannot be extradited to be prosecuted for it here. Thetreatys removal of the bar due to lapse of time could be important in returning sex

offenders to the UK, where24 Oct 2006 : Column 1398their victims might not have spoken of their ordeal until many years after the event, or inprosecuting a so-called cold case.

That explains why we need the treaty.

Mr. Heath: Will the Minister give way on that point?Dr. Andrew Murrison (Westbury) (Con): Will the Minister give way?

Joan Ryan: I want to deal with the Lords amendments, but first I shall give way to thehon. Member for Westbury (Dr. Murrison) and then to the hon. Member for Somertonand Frome (Mr. Heath).


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Dr. Murrison: I am grateful to the Minister. My constituent Mr. Giles Darby is one ofthe so-called NatWest Three. He is experiencing not rough parity but rough justice. Is itright that a person can be extradited to face such draconian bail terms? Fortunately, myconstituent is not in Guantanamo Bay, but he faces months and months away from hisfamily, home and livelihood. Where is the parity in that?

Joan Ryan: We are discussing the Lords amendments, and it would not be appropriatefor me to discuss individual cases in the Chamber. However, Conservative Membersinsisted that bail would never be given in the US, and that the Senate would never ratifythe treaty, yet bail was given and the Senate did ratify the treaty. Their assertions arefalling one by one, so perhaps they should reassess their position.

I give way to the hon. Member for Somerton and Frome.

Mr. Heath: I am grateful to the Minister, as I want to speak from the consistent Benches.I draw her attention to article 2, clause 4 of the treaty. As she knows, America claims

extraterritorial jurisdiction over a wide range of American offences, whereas we tend notto do the same. The passage to which I refer is interesting, as it states that

if the laws in the Requested State do not provide for the punishment of suchconduct committed outside its territory in similar circumstances...the executiveauthority of the Requested State, in its discretion, may grant extradition providedthat all other requirements of this Treaty are met.

In other words, there is discretion if America is claiming extra-territorial jurisdiction incircumstances in which we do not, but that is not transposed into our law either throughthe Extradition Act or through the regulations that flow from it. Why is the one element

of discretion available to us to prevent inappropriate extraditions not being dealt with inBritish law?

Joan Ryan: I am sure that the hon. Gentleman is aware that British courts will deal witheach application on its merits, as they do already.

Robert Neill (Bromley and Chislehurst) (Con): Will the Minister give way?

Mr. Richard Shepherd (Aldridge-Brownhills) (Con): Will the Minister give way?

24 Oct 2006 : Column 1399Joan Ryan: As I said, I want to move on and deal with each of the three Lordsamendments in turn.

The first of the amendments restores the prima facie evidence requirement in USrequests, to which I referred earlier. Much has been said about claimed differences in the


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standards of evidence required by the US system and ours. The fourth amendment to theUS constitution refers to probable cause, stating that

no warrants shall issue, but upon probable cause, supported by oath oraffirmation, and particularly describing the place to be searched, and the persons

or things to be seized.

In the UK, the law that applies is section 71(4) of the Extradition Act, which states that

the judge may issue a warrant...if the judge has reasonable grounds for believingthat...there is information that would justify the issue of a warrant for the arrest ofa person.

Clearly, those standards are not exact replicasof course not; our system is not exactlyreplicated in any other countrybut they are very similar, and much closer than before. Iremind Members that other robust safeguards in our extradition law can, and do, prevent

unjust extradition, and they have been upheld in several cases taken to the High Court.

Lynne Jones: On the point about rough reciprocity, in previous debates in this and theother place Ministers stated that probable cause is a lower cause than prima facie, but ahigher threshold than we ask of the US. Ministers have, therefore, acknowledged thatlack of reciprocity, although I agree with my hon. Friend that it is not reciprocity that isimportant, but justice.

Joan Ryan: I think I have covered that point more than once this afternoon, and we shallno doubt come back to it more than once as the debate continues. Rough parity is all thatis possible unless we harmonise our legislation, which we do not propose to do. Rough

parity means that we are as close as we can get to having the same standard of evidencerequired in the US or the UK for an extradition request to be confirmed.

The second amendment from the other place requires the judge who is considering therequest to refuse it if any of the conduct was carried out in the UK, unless it would be inthe interests of justice to extradite the person. I understand that some Members attended abriefing this afternoon by the supporters of the amendment, so I shall explain whyamendments Nos. 81 to 84 will not solve the problem as they see it. We cannot remedyone problemreal or perceivedby substituting another.

There are several reasons why these amendments are wrong. The first is the difficulty

that they would impose on the judge in coming to a reasonable decision on a case withouthaving access to all the evidence, which may itself not be in the interests of justice andcould lead to the person being tried twice. Alternatively, it could result in someoneaccused of serious cross-border offences escaping justice altogether. Where prosecutorshave decided that a case should be tried in country A, rather than country B or C, it is notproper for a judge to second-guess that. If a person is requested for extradition, theExtradition Act in any caseright nowprovides for the extradition to be halted if the


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prosecutors here decide to take proceedings. So the amendment is both unnecessary in theinterests of justice, and wrong.

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4.30 pm

Mr. Neil Gerrard (Walthamstow) (Lab): Is it always the case that prosecutors in thiscountry will seriously look at the case in that way? If extradition proceedings wereinitiated from another countrywe are not talking just about the United States; themeasures apply to a whole range of countrieswill the Crown Prosecution Serviceseriously consider whether there should be a prosecution in this country? Is it not just aslikely that the extradition proceedings will go ahead without that consideration beinggiven?

Joan Ryan: I can assure my hon. Friend that our prosecutors look seriously at suchmatters. I refer him to the answer that I gave my hon. Friend the Member for Hendon(Mr. Dismore): of course these issues have been raised and the Attorney-General and theHome Secretary are having conversations with the Attorney-General of the United Statesabout the system. As my hon. Friend the Member for Walthamstow (Mr. Gerrard) said,this is not just about the United Statesalthough I am afraid that in this instance it is,because those are the amendments before us. Perhaps he, like me, is thinking that thereare 50 countries in this category. I can reassure him that one of the strengths of ourprosecution system is that it is independent of the judiciary. We do not wish to discardthat, and the amendment would mean that we had to discard it.

Our prosecutors do consider the cases. As I have saidI hope that this reassures my hon.Friend, because we have seen cases in which this has happenedif the prosecutors, suchas the Crown Prosecution Service, the Serious Organised Crime Agency and theFinancial Services Authority, decide that there is a case to answer here, that takesprecedence. That is why the amendment is both unnecessary and wrong. However, theGovernment recognise that much concern has been expressed about the fairness of ourprovisionsrightly or wronglyand that there is a widespread perception that there is alack of clarity. In view of that, as I have said, the Attorney-General has already raised theissue with his counterparts in the United States.

As I also said in response to my hon. Friend the Member for Hendon, the proposedprocedures envisage early consultation on any case which it appears to a prosecutor inone country that there is a real possibility of a prosecutor in the other country having aninterest in prosecuting. That does not need to be repeated further. Reassurance has beenprovided on that point. These proposals would not contain the serious flaws of theOppositions forum amendments, and would, I am sure, provide business people andothers with reassurance that the Government have listened to their concerns and takenaction. My right hon. Friend the Home Secretary will meet the Attorney-General in thenext few days to discuss these matters, and to take that forward.


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Joan Ryan: I am not going to give way any more on that point.

Finally, the third change suggested by the Opposition, amendment No. 85, requires a

future designation of the United States, and the treaty in force, to be consistent.24 Oct 2006 : Column 1401The amendment is badly drafted and obscure, but basically it is unnecessary, because anysuch designation order must be approved by a vote in both Houses of Parliament, soparliamentary control over future designation orders is already securely in place.

As I said at the beginning of the debate, this is our last opportunity to undo the damagedone in the other place and enable the United Kingdom to realise the benefits of the newtreaty. Hon. Members should be in no doubt about the consequences of the Lordsamendments: they would wreck the chance to ratify the new treaty, wreck our ability tobring more fugitives from justice to book, and make extradition slower and less effective.

In the interests of justice, in the interests of victims of crime and in the interests ofmaking this world a safer place, those amendments must go.

Mr. Garnier: The American jurisdiction has a concept of cruel and unusual punishment.Having listened to the Minister for the past 45 minutes, I sympathise.

First, I want to tackle head on a mistake that the Minister allowed to emerge from herspeech when she cited section 71 of the Extradition Act 2003 and tried to gain supportfrom that provision for the assertion that the concepts of information and evidence wereprecisely the same. Either she does not understand section 71, or she has misread it. Acareful or, indeed, cursory reading of the provision makes it clear that evidence and

information are wholly different concepts and that they are applicable in differentjurisdictions. Evidence is what we have to show to the United States, while information iswhat the United States has to provide to our courts. The two concepts are not the sameand the 2003 Act does not say that they are, so it was wrong of the Minister to misleadthe House, albeit unwittingly, by saying that they were similar concepts.

Tony Baldry (Banbury) (Con): Could we not have highlighted another mistake if theMinister had allowed us to intervene? She seemed to think that none of the forum ruleswas determined by judges, but the forum rules under the 1957 European convention onterrorism are determined by judges. The idea that the forum should be determined byprosecutors is rather novel. The Minister seemed to thinkand was pretending to theHousethat that was the norm, but clearly it is not.

Mr. Garnier: My hon. Friend and I know, as others will know from practising at the Bar,that judges day in and day out have to decide the issue of forum, whether it is in the civilor criminal jurisdiction. My hon. Friend is entirely rightit might be for a prosecutor tomake a case, but it is for a judge to make a decision.


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I urge the House to support the Lords amendments because the Governments opposition

to them is unjust, unfair, undemocratic and damaging to the interests of this country andour citizens. In November 2003, the Extradition Bill, as it was then, to alter theextradition arrangements between the United States and this country became law. Such ameasure became law in this country, but not in the United States. It is not certain whether

the measures American counterpart is in force24 Oct 2006 : Column 1402in the United States because although the new extradition treaty has been ratified by theUnited States Senate, it is not yet clear whether the President of the United States hassigned the relevant legislation into law. In a sense, that might not matter to the argumentthat I will make against the Governments conduct of the treaty and their acceptance ofits contents.

My complaint is that in March 2003 our Government, through the then Home Secretary,the right hon. Member for Sheffield, Brightside (Mr. Blunkett), reached an agreementwith the then United States Attorney-General, Mr. John Ashcroft, that replaced the 1972

British-American extradition treaty and, in doing so, did not protect our national interest.The new treaty is neither fair nor based in justice. The 1972 treaty set out each countrysobligations to the other. It was fair, just, balanced and transparent. The treaty allowed forthe extradition of people from here to the United States if a prima facie case of criminalconduct could be shown in America that matched, or was similar to, a crime in thisjurisdiction. We could extradite from the United States to Britain if we could showprobable cause. I accept that there was a difference in wording, but, in all practical terms,the treaty demanded an equal legal test. In short, we had a treaty that honoured thedoctrine of reciprocity. Each country had to show that there was evidence in the hands ofthe prosecution that, if uncontradicted by evidence from the accused, would be sufficientto justify conviction or demonstrate reasonable grounds for a suspicion of guilt.

The 2003 treaty was signed by the two Governments without prior notice to the House. Itwas negotiated and signed behind our backs. We can speculate on the reason why theGovernment chose not to let us in on the secret, but until the former Home Secretarywrites that part of his diaries, it can only be speculation. Was it part of some side deal onIraq, or something to do with advancing the peace process in Northern Ireland? Was itbecause he did not know what he was doing, or because he was under such domesticpressure that he could not think straight? Who knows?

We know, however, that the secret treaty of 2003 upset the balance of the 1972 treaty.The Americans need no longer demonstrate a prima facie case, but we must still showprobable cause. They need only provide information, but we must have evidence, and thetwo are by no means identical concepts in law. That is what is fundamentally wrong withthe current treaty. Even though the United States ratified it during our summer recessall of us would accept that it took far too long to do soit is a treaty to which theGovernment should not have agreed. Indeed, they would not have been allowed to agreeto it if they had asked Parliaments permission before signing it.


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The Government have never given any good reason for the provisions in the treaty thatset a lower test for the United States than for the United Kingdom and which were madelaw in this country by the Extradition Act 2003. Nor has any good reason been given forthe Home Secretary excluding the United States from the list of countries required toshow a prima facie case under the designation order of November 2003. Why has the

United States been removed, by Government order, from the list of countries in category2 that have to show a prima facie case?

24 Oct 2006 : Column 1403

I am concerned, too, that the Government have been careless with our citizens rights and

the jurisdiction of our courts, which should try citizens for crimes committed in thiscountry. When the Government introduced the European convention on human rights intodomestic law, they proclaimed, quite falsely, that they were bringing human rights home,yet that same Government ignored the 1957 European convention on extradition and the

European Council framework decision of June 2004, to which the UK is party while theUnited States is not.

Robert Neill:Further to my hon. and learned Friends point, is not the lack of reciprocityand the inadequacy of the treaty made worse by the fact that, of all the countries that havebilateral extradition treaties with the United States of America, only the United Kingdomlacks the provision for a carve-out, which enables US citizens to be tried in this countryfor offences committed on UK soil? Is that not a serious and grave omission in the treaty?

Mr. Garnier: It is, and what my hon. Friend says is true. I have before me a little list,which is no doubt exactly the same as the Ministers list. It starts with Albania and runs

all the way down to Zimbabwe. The only country on the list that does not have areciprocal arrangement with the United States, from A to Z, ishon. Members will haveguessed itthe United Kingdom.

The European convention and the European Council framework decision seem to us to begood enough to support, but the Government do not think so. Article 7.1 of theconvention states that if the conduct in question was partly committed in the UK, thejudge dealing with the request for extradition will not order extradition unless, in all thecircumstances, it is in the interests of justice to do soa point made by my hon. Friendthe Member for Banbury (Tony Baldry). It is the judges who make the orders, not theprosecutors. The 1991 European convention on extradition says precisely the same, andin deciding where the interests of justice lie the judge will consider whether theprosecuting authorities in this country have refrained from prosecuting the person whoseextradition is requested.

Mr. John Denham (Southampton, Itchen) (Lab): I may have misunderstood the point,but my understanding is that both France and Ireland have treaties with evidentialprovisions identical to those that the UK has with the United States, so it is not the casethat the UK arrangements are unique. Is that correct?


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Mr. Garnier: No. The right hon. Gentleman is almost right, but not entirely. He wouldbe misleading himself if he based his argument on the French and the Irish treaties.

Mr. Heath: Is it not the case that although France and Ireland have unreciprocatedtreaties with the United States, that is mitigated by the fact that the French authorities will

not under any circumstances extradite a French citizen, and by the fact that, in the Irishcase, there is a forum provision similar to the one before us today?

24 Oct 2006 : Column 1404

Mr. Garnier: That is exactly right. The further exceptions that Ireland has come underarticle 3 and article 5 of its treaty, with which I am sure the right hon. Member forSouthampton, Itchen (Mr. Denham) is wholly familiar.

4.45 pm

Under the convention law applicable here, an arrest warrant prior to transfer of theaccused to another convention country will not be issued unless the judge is persuadedthat it would not be right to try the case here and the case has a better connection with theother country. He will consider the connection between this jurisdiction compared withthe other as regards the facts and the persons involved in the case, where the witnessesare more available, the nature of the evidence, and the availability and admissibility ofthe evidence. In the jargon, these are the issues of territoriality and forumwhere is itright to try a particular case?

If there is no adequate connection between the facts, the witnesses, the evidence and the

accused on the one hand, and the requesting jurisdiction on the other, the judge will denythe warrant and prevent the transfer. Admittedly, that does not involve the argument overprobable cause or prima facie case, but it does not need to because of the protectionprovided by the arguments over connectivity and the terms of the conventions, andbecausethis is the point that the Minister failed to graspthere is reciprocity of termsas between the countries involved. That does not exist in the treaty between the UnitedStates and the United Kingdom.

If that was good enough for the convention on extradition, it ought to be good enough forapplications to remove British bankers from England to Texas, for example. And if it isgood enough for the extradition treaty between Ireland and America, it should be good

enough for the extradition treaty between America and us. If it was good enough for theEuropean Council framework decision of June 2004, it should be good enough for theUnited States and us. That is what the Lords amendments at heart are all about, and theGovernment have failed to produce even half an argument against them.

The Home Secretary has been muttering under his breath, in so far as he is capable ofmuttering, that the reciprocity argument is precisely the line that his agreement, or theagreement of his predecessor but one, with the United States is all about, but it is not


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based on fact. It is not based on a reasonable interpretation of the language that we speakin the HouseEnglish. I suggest to the Home Secretary that rather than mumble, andrather than allow the Minister to go through the ordeal of presenting the Governmentscase to the House on this day, he should have done his own homework, he should haveread back, and he should have looked at the treaty, at what it says, what it means and

what it does to the relationship between us and the United States.

If the Government have, as they claim, brought human rights home, why does the Courtof Appeal say that the extradition treaty signed in 2003 overrides the Human Rights Act1998? Justice should be blind, but it should not be stupid, nor should it be told by theGovernment to ignore common sense, our traditions of fair play and the comity of nationsthat underpins all international treaties. Mutual respect are the two24 Oct 2006 : Column 1405words that make treaties stick, but they were absent from the Governments mind when

the treaty was signed. The Lords amendments restore that mutual respect to our judicialrelations with America.

Rob Marris: Whether or not the hon. and learned Gentleman believes it, I am listeningcarefully to his speech and I am trying to work out what his principal objection is.Perhaps he could elucidate it for the House. Does he object principally because heperceives a lack of reciprocity, which is why he referred to the list from Albania toZimbabwe, or because the evidential burdenthe information in contradistinction toprobable causeis too big a gap evidentially? Is it one or both objections that troublehim?

Mr. Garnier: It is sometimes possible in the House to lose the will to live. Let me tryagain, and I will speak a little more slowly. The hon. Gentleman should understand that

there is no reciprocity between the obligations imposed upon the United States as arequesting jurisdiction to Britain, as compared with Britains obligations when requestingextradition from the United States. So internally, within the treaty, there is no reciprocity.There is no balance. There is no meeting of obligations. That is point 1. [Interruption.]

There was no identical reciprocity. I accept that. The Home Secretary is mumbling again.Let me explain to him, too, as he is listening. It is very good of him to turn up. Under the1973 treaty, we had to demonstrate probable cause in the United States; the US had todemonstrate a prima facie case in this country. We all acceptthere is no controversyabout thisthat those were not exactly equal terms, but to all intents and purposes thecourts on both sides of the Atlantic treated them as equal tests. They were both based onevidence. Now we have a different test. [ Interruption. ] We still have to demonstrateprobable cause. That essentially means evidence that can be tested and which, ifuncontradicted, allows a court to reach the conclusion that there is a good case to answerand that the person who is under the request is suspected of being guilty. The UnitedStates merely has to lodge with our courts information that comprises essentially untestedallegations.


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The Secretary of State for the Home Department (John Reid): Perhaps the hon. andlearned and Gentleman would deign to share his views, for the elucidation of lesserminds, on this simple question: if there could be reciprocity previously where there wasno identityas he has said, the burden of proof for prima facie evidence was higher thanthat for probable causewhy can there not be reciprocity without identity now?

Mr. Garnier: Let me try again. As I said before the Home Secretary interruptedI wasdelighted that he didthe tests that we had to apply on both sides of the Atlantic wereevidence-based, and the evidence could be contested. [ Interruption. ] The problem thatwe now face is that we have to present evidence, while the Americans only have topresent information, and the information and the allegations are untestable.

24 Oct 2006 : Column 1406

Mr. Howard: Has my hon. and learned Friend spotted the complete contradiction

between the line now taken by the Home Secretary and the line taken by the Minister inher speech? The Home Secretary has acknowledged that there is no reciprocity in the twotests, but the Minister went to endless lengths to pretend that there is. They cannot bothbe right.

Mr. Garnier: I think that my right hon. and learned Friend will agree that where there isno reciprocity is between the Home Secretary and his junior Ministers.

John Reid: It would help if the hon. and learned Gentleman understood English as wellas he understands law. I was not saying that there is no reciprocity; I was saying thatthere is no need for identity in order to have reciprocity. [ Interruption. ] That is precisely

what the hon. and learned Gentleman has said about the prior position.Mr. Deputy Speaker (Sir Alan Haselhurst): Order. A chorus of sedentary commentsfrom both sides is not helping the principal argument.

Mr. Garnier: If I say it three times, the cock will probably crow, so I will leave thematter there.

Under the 1973 treaty, both sides had to present evidence. Although the wording wasdifferentwe all accept that prima facie are two different words from probablecauseto all intents and purposes the courts on both sides of the Atlantic agreed that the

tests were similar and that the evidence could be tested. Now we face a situation in whichwe must provide evidence, whereas the United States will merely make allegations.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): As a result of what theHome Secretary has done, we have given greater protection to the citizens of the UnitedStates than we are willing to grant to the citizens of the United Kingdom.


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Mr. Garnier: That is the regrettable and inescapable conclusion that we must draw fromthe treaty agreed by the right hon. Member for Sheffield, Brightside in one of his bettermoments in March 2003.

Mr. Dismore: At the risk of the hon. and learned Gentleman being gratuitously rude to

me, as he has been to other Labour Members, I shall put this point: on probable cause, isit not the case that before a federal warrant for extradition can be issued, probable causemust be shown in America to a grand jury? The issue of probable cause is tested in theAmerican courts to the satisfaction of a grand jury, a system which in some ways issuperior to our own, before it is considered in a United Kingdom court.

Mr. Garnier:The hon. Gentlemans experience of the federal jurisdiction in the UnitedStates is surely greater than that of all of us, but I suggest that he looks at the treaty to seewhat it says. We have to apply the treaty as amended by the designation order. He mayfind little comfort in his remarks; certainly, the Government will find no comfort in them.

Mr. Redwood: Did my hon. and learned Friend notice that the Minister said that it wasnow clear to the Government that detaining people at Guantanamo Bay violated the rightsgranted under the European24 Oct 2006 : Column 1407arrangements? Does he remember them saying that when British citizens were detainedin Guantanamo Bay the Government had a duty of care to them? Does not that show thatthey are craven towards the American jurisdiction, which is the nub of the problem?

Mr. Garnier: My right hon. Friend uses his own language. However, as we have saidany number of times today, there is clearly a disparity between the obligations on us asagainst them and on them as against us. That is the central point, and until the

Government grasp thatuntil they read their own treatywe are going to find this prettyheavy weather.

David Howarth: If I may help the hon. Member for Hendon (Mr. Dismore), probablecause before a grand jury differs from probable cause before an extradition magistrate forprecisely the reason that we are discussing. In a grand jury, the other side of the case isnot put, whereas in an extradition court it is.

Mr. Garnier: I am most grateful to the hon. Gentleman. He demonstrates the difficultyof Government Members nipping out to the Government Whips Office and picking upthe Whips brief. It is probably better to read the text of the treaty.

Joan Ryan: The hon. and learned Gentleman has been on his feet for not far short of 25minutes, giving us his lawyerly dissertation on these matters. However, the only peoplehe has mentioned are white collar defendants. Not once has the word victims crossed

his lips. Does he care where the victims are? Is there no victim between here and the USwhom he wishes to mention?


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Mr. Garnier: Let me make it clear to the hon. Lady, who at least represents aconstituency within this jurisdiction, that I am interested in justice for all my constituentsand for all the people of this country. I am not selecting one class of alleged criminal asagainst another. Let me make another thing clear. Opposition Members, particularlyConservative Members, are not anti-Americanquite the contrary. We are pro-justice

and pro-fairness. We were elected by our constituents not to give away their rights to aforeign power, but to stand up and protect them within the rule of law.

Surely the founding fathers of that great republic, the United States of Americamenlike John Adams, Thomas Jefferson, Benjamin Franklin and their co-signatories of thedeclaration of independence, from Georgia in the south to Rhode Island in the north, andmen such as Washington who argued and fought for independence in the 1770s andcreated a country united in its fierce defence of freedom under the lawwould shudder atwhat our Government have done. Let me recall just a few of the words written byJefferson in the declaration of independence signed on 4 July 1776. Many Members willalready know the preamble, which I will not repeat, but they may not be so familiar with

the signatories indictment against King George III towards the end. This is part of it:

He has combined with others to subject us to a jurisdiction foreign to ourconstitution, and unacknowledged by our laws; giving his Assent to their Acts ofpretended Legislation.

They go on to accuse him of

transporting us beyond Seas to be tried for pretended offences.

24 Oct 2006 : Column 1408Then the declaration booms out across the centuries these painful charges:

Nor have We been wanting in attentions to our British brethren. We have warnedthem from time to time of attempts by their legislature to extend an unwarrantablejurisdiction over us. We have reminded them of the circumstances of ouremigration and settlement here. We have appealed to their native justice andmagnanimity, and we have conjured them by the ties of our common kindred todisavow these usurpations, which would inevitably interrupt our connections andcorrespondence. They too have been deaf to the voice of justice and of

consanguinity.If we change the countries around, the thrust of those charges fits today. The reach of theUnited States is long and powerful, but its founders would not agree with some of what itis doing now. Guantanamo Bay, military commissions and extraordinary rendition all flyin the face of the declaration of independence, and if, by supporting the other place inthese amendments, we can realign the desires and principles of 18th-century Americawith those of 21st-century Great Britain and restore mutual respect, we will have done


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good work today. I urge the House to get off its knees and stand up for justice andfairness, and to control the Executive.

5 pm

Mr. Denham: Non-lawyers such as I tread into these areas with some hesitation. Thedanger of being caught out on a finer point of law is ever present.

In considering the Lords amendments before us today, it is important to look a little at thehistory of how we came to be in the position that we are in. There is no doubt that theemotion that runs around this set of Lords amendments is, unfortunately, coloured by theway that the Extradition Act 2003 and the treaty, and the unilateral arrangements inrespect of the USA, came into being, rather than by merely the merits of the issues thatwe are addressing. It is important that we make that distinction, and also that we recordsome proper concerns about the process that has led to where we are today.

Let me give some key dates. On 28 November 2002, the Home Affairs Committeechaired by my predecessor, my hon. Friend the Member for Sunderland, South (Mr.Mullin)reported on the Extradition Bill. Its Second Reading took place on December2002, the treaty was agreed at the end of March 2003, and the legislation was enacted atthe end of that session. The USA was added to list 2 of the legislation at the end of 2003and, by that, the unilateral decision was taken to drop the evidence requirements on theUSA. The Senate has only now ratified the treaty.

There should be some concerns about the speed at which those events took place.Whenbefore I chaired itthe Committee reported on the Extradition Bill in 2002, itreported the Home Office position at that time. The Home Office had stated that

there is a case for removing the prima facie evidential requirement from certain

Commonwealth countries and bilateral treaty partners

but

there are no current plans to negotiate bilateral extradition treaties with any new

countries.

That was reported in November 2002, and the treaty was finalised and agreed at the endof March 2003a very short period later.

24 Oct 2006 : Column 1409

The Extradition Act has always worried me because I was the Minister of State whomoved the Bills Second Reading on 9 December 2002. Since that time I have beenunable to remember anything that was under way with the USA in respect of thesematters. Short-term memory loss is always a possible explanation in this place, but


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parliamentary protocol requires that if a Bill is not introduced by a Secretary of State, it isintroduced by a Minister of State rather than an Under-Secretary of State, so I was not thesponsor-Minister of the Bill; I picked it up, as it were, at the last moment, to move it.

There was almost no reference at all in that debate to the United States of America.

Indeed, about the only one I can find was made by the right hon. Member for Witney(Mr. Cameron), who asked for an assurance. He said:

As the Minister is aware, many important extraditions have not gone aheadbecause of...article 3 of the European convention on human rights,

and he referred to

the Soering judgment, in which someone accused of murder could not beextradited to the United States

because of that convention, and he asked:

What will the Bill do to try to streamline such cases and make the extraditions go

ahead?[ Official Report, 9 December 2002; Vol. 396, c. 40.]

So to the extent that any interest was shown in the United States in that debate, itconcerned speeding up extraditions from this country to the USA, and the point wasmade by the right hon. Member for Witney, who is now the Leader of the Opposition.That was the tone of the discussion.

Mr. Garnier: Did my right hon. Friend the Member for Witney (Mr. Cameron) mention

then that he wanted an unequal relationship in the extradition treaty?

Mr. Denham: The right hon. Gentleman made only a brief intervention, so he wasunable to cover that point.

Such was my concern about the lack of reference to the United States at that time that Iwrote to the permanent secretary of the Home Office during the summer asking for acopy of the briefing pack that Ministers get on such occasionssuch packs can ruinmany a weekend for Ministers. I simply put on the record that the briefing that I receivedas the Minister handling that Bill contained no reference to treaty negotiations beingunder way with the USA, or to any specific plansother than the reference to other

bilateral treaty partnersto include the USA in list 2.It seems inconceivable that civil servants would have provided me with a briefing thatmade no reference to treaty negotiations unless none were under way, and I can onlyconclude that the treaty signed on 31 March 2003 had not even started the negotiationprocess when the Extradition Bill was debated in December 2002. That worries megreatly. There is every reason for modernising our extradition arrangements with theUSA, who are our most important extradition partner. But our going from a standing start


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to an entire treaty in about three months, given the many controversial issues that havethen followed, explains an awful lot about why we are where we are. I cannot see anybasis24 Oct 2006 : Column 1410for the haste with which this was done. Nor can I understand the basis for the decision to

move ahead with the change of evidence requirements, ahead of agreeing the treaty onboth sides of the Atlantic.

There was a problem with the extradition system, but it was almost entirely to do withour failure to extradite criminals to the USA, rather than the other way round. The USAhad everything to gain from the new treaty arrangement; we, in practice, had relativelylittle to gain. Most of the people we wanted were here, and despite the key categories ofsex offenders to which my hon. Friend the Minister referred, and one or two others,things were generally going in the right direction.

This process has caused much of the concern that lies behind todays debate.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I have been listening verycarefully to my right hon. Friend and the point that he is making is enormously important.Has he asked my right hon. Friend the Home Secretary for his explanation of the timing,and has he received a reply?

Mr. Denham: When the Home Affairs Committee held a one-day hearing on this matterlast November with Judge Timothy Workmanmy hon. Friend the Member for Walsall,North (Mr. Winnick) mentioned him earlierand the then Minister with responsibilityfor such matters, my hon. Friend the Member for Leigh (Andy Burnham), we attemptedto get a detailed timetable and copies of draft treaties from the Home Office, so that we

could see the treatys evolution and pin down its timing. Understandably, the HomeOffice could not provide draft treaties because doing so would have breached ourdiplomatic relations with a foreign country, so I have been unable to pin down the timing.I therefore do not know why the treaty was agreed so rapidly. I merely make the pointthat if that had been avoided, what is a now a very emotive discussion could have takenplace on a more rational basis.

Mr. Boris Johnson: I am very interested in what the right hon. Gentleman is saying. Ishe saying that negotiations on this treaty were effectively taking place behind his andother Ministers backs?

Mr. Denham: It has to be my assumption that the reverse is the case. I have taken part inmany debates in this House as a Minister, and I have occasionally had cause to be notentirely satisfied with the quality of the briefing that one gets. But if a treaty had beenunder negotiation, it is extraordinarily unlikely that the Home Office would have told mypredecessor Committee that there were no plans to negotiate a further treaty, or that I, asa Minister, would not have had something of that sort drawn to my attention in thebackground notes, given the obvious danger of misleading the House of Commons, were


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one to be asked about such matters. It seems more likely, although I cannot be certainabout it, that the treaty was negotiated in short order.

We therefore approach todays debate against the background of several high profilecases that have had a great deal of publicity, some of it wildly misleading about the case

against individuals, in a position whereby the treaty was not in force and only half the24 Oct 2006 : Column 1411agreement had been implementedunilaterally by this country. That has overshadowedthe debate.

I believe that we should resist the Lords amendments on the substance of the issue. I shallmake three brief points and outline one aspect to which the Government need to givemuch greater attention. Reciprocity is important, but it has never been an absoluteprinciple in our law. For a long time after introducing the Extradition Act 1870, weextradited people to many countries that, on constitutional grounds, never extraditedanyone back to us. Parliament took the view that it was better to serve the interests of

justice in one direction even if they were not served in the other. Reciprocity is not anabsolute principle.

Whatever concerns most of us have about many other justice systems, there is no doubtthat, if the United States did not have a constitutional bar to dropping the requirement forprima facie evidence, it would, like the other 50 countries on the list, be a country withwhich we had an agreement not to require prima facie evidence. I accept that, asBaroness Scotland said, there is no absolute parity in the test. Her comments wereaccurate and the right hon. and learned Member for Folkestone and Hythe (Mr. Howard)referred to them earlier. However, is the difference so great that it creates genuineinjustice or are we pursuing a difference because we do not like the US at this time in

politics?Without the constitutional bar in the US to dropping the requirement for prima facieevidence and with a requirement for information on both sides, we would show littlehesitation in reaching an agreement. In that case, people would be extradited from the USon exactly the same basis as people are extradited from this country under the treaty. Thebig question is, therefore, whether the difference is so great that we should support theLords amendment. I do not believe that it is.

My second point is about forum, which the Lords amendments cover. If the process hadbeen more open and the treaty had been up for a longer period of discussion and debate,we could have sorted out many such matters. Determining the appropriate jurisdiction iscomplicated. There were genuine concerns about the European arrest warrant when oneof those accused of taking part in the 21 July attempted bombings fled to Italy. We wereworried that demands could be made to try him in Italy because it was suggested that hemight have committed offences there. We said that that would be wrong and that he mustreturn here, where the major crime took place. There are matters of judgment, and I amunclear from my hon. Friend the Under-Secretarys comments about the exact criteriathat the Crown Prosecution Service is expected to use when judging whether someone


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should be tried here, if that is possible, or in the US, if that is possible. Those criteriashould be made explicit. They do not form part of the treaty arrangements and that is whywe should not support the amendments, but the Government need to set out more clearlythe basis on which we expect the CPS to make such decisions.

Mr. Marshall-Andrews: Before my right hon. Friend leaves the forum issue, will hereflect on something that is perhaps even more serious than the CPS determining wherethe forum or forums should be? What happens24 Oct 2006 : Column 1412when the CPS, Customs and Excise or whatever constitutes the prosecuting authoritydecides that someone should not be prosecuted in this country and tells them and theirlawyers that? Initiating a prosecution at that stage would be an abuse of process in thiscountry. What would happen if, at that point, the United States were to attempt to initiatefast-track extradition proceedings on those proceedings? That would be a matter ofimmense concern that would cause feelings of real injustice, particularly if it happened ina sensitive case.

5.15 pm

Mr. Denham: My hon. and learned Friend makes an important point. These matters needto be made much clearer. Decisions are being made about whether to prosecute and aboutwhere to prosecute, and they get tangled up together. Judge Workman, in his judgment of17 May 2005 in the case of Babar Ahmad, commented that this was

a difficult and troubling case,

and that

the defendant is a British subject who is alleged to have committed offenceswhich, if the evidence were available, could have been prosecuted in thiscountry.

It is not clear to me whether the Crown Prosecution Service made a decision that thatcase was not prosecutable in this country, but that Babar Ahmad could still be extradited,or whether it decided that he could be prosecuted butwe must allow for thispossibilitythat it would be more appropriate for him to be prosecuted in anotherjurisdiction. The criteria by which that important set of judgments was made should bemade much more public than they are at the moment.

This whole story suggests that there is a great deal that is not really very good about theway in which we conclude treaties and scrutinise them in this place. [Hon. Members:Hear, hear.] The hon. Member for Aldridge-Brownhills (Mr. Shepherd) has made thispoint a number of times. Equally, we should not seek fundamentally to amend theExtradition Act 2003 on the basis of an individual concern about an individual treaty.Perhaps we need to step back from this process and examine how we could do thesethings better in the future, but we should not support the Lords amendments thisafternoon.


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Mr. Heath: It is a genuine pleasure to follow the right hon. Member for Southampton,Itchen (Mr. Denham). It must be a bitter-sweet experience for those on his Front Bench tosee an intelligent and perceptive former Minister rise to make the kind of comments thathe has just made. They have taken our discussion forward in a real sense.

I support the retention of the Lords amendments. That should not come as a surprise tothe House, as we have been entirely consistent in our position on these matters ever sincethey were first put before the delegated legislation Committee on which I served and inwhich we voted against these provisions. We did so because we believed that they werean affront to what ought to be expected on behalf of British citizens in relation to thereciprocity of the agreements. In the interests of justice, and as far as British citizens were24 Oct 2006 : Column 1413concerned, we felt that we should resist a one-sided treaty of this kind. We have notresiled from that position in any way since then.

Listening to the debate on the issues, however, I have detected three convenient fictions

that have been propagated since that time. The first is that those who oppose the treatyand, therefore, the unequal provisionsare doing so in response to an expensive publicrelations campaign mounted on behalf of certain individuals, and that this is all a matterof the guilt or innocence, presumed or otherwise, of the NatWest three or, now, the chiefexecutive of Morgan Crucible. That is emphatically not the case. My colleagues and Iopposed this measure long before any of those cases were being considered, because webelieved in the justice of the case that we were putting forward.

I obviously hope that those British citizens are found not to have been guilty of thecrimes of which they have been accused, but I have no way of knowing the guilt orinnocence of those individuals. That is not for me to say; it is for a court to determine

guilt or innocence. My job, and the job of all parliamentarians, is to consider the processby which our citizens face a court in a foreign land thousands of miles away on chargesof questionable validity in this country.

Tony Baldry: Is not it a particular concern that a number of matters that are offences inthe United States are not offences here? The issue that all Members of the House mustaddress is how they would deal with a constituent who, like one of my constituents, has abrother or sister who is subject to extradition to the United States for having soldcomputer software to a university in Iran, which is not an offence in the United Kingdombut appears to be an offence under US jurisdiction. Someone is therefore threatened withextradition to the US on a matter that is not an offence under UK law, which must be amatter of concern for us all.

Mr. Heath: Indeed, and I will turn to the point of dual criminality in a moment, as it isextremely important.

The second convenient fiction is that those of us who have opposed the measure from thebeginning were doing so largely on the basis that it remained unratified by the UnitedStates Administration. That is absolutely not the case. Indeed, many of us have argued


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that ratification is almost irrelevant because of the Governments pre-emptive action ofputting the measure into effect in British law a full three years before it was ratified bythe United States Senatewe understand that, although it has been passed by the Senate,it is still on the Presidents desk, and the instruments of ratification have not yet beenexchanged. If the treaty is unfair and unequal, ratification is irrelevant, as it is still not in

the interests of the United Kingdom and its citizens. That is our point.

There is a slightly erudite point, which ought at least to be mentioned, as to whetherratification is possible if the amendments are retained in the legislation. Undoubtedly, wewould be brought into conflict with the law of international treaties if we have legislationin contradiction of the terms of the treaty that we have24 Oct 2006 : Column 1414signed and ratified. That is a problem for the Government, however, and not for theHouse, which can legislate only on the basis of the measures before it and theirimplications for British citizens. It is an illustration of the folly of using secondarylegislation to put into law provisions that were not subject to proper consideration by the

House.

Mr. Marshall-Andrews: I have listened carefully to a robust denunciation of what isundoubtedly an unequal treaty, with which no one would disagree. The point with whichI am struggling, which my right hon. Friend the Member for Southampton, Itchen (Mr.Denham) articulated, is that we would undoubtedly have entered into a fast-track treatywith the United States in any event. If that is the case, and we have fast-track procedureswith the United States, how are our citizens any worse off because, on the other side, wemust work harder to get citizens out of that country? That is what I do not understand.

Mr. Heath: That is a fair comment but not a genuine concern. We can expect from our

Government due protection of British citizens, which should take the form of prima facieevidence, except where there are genuinely reciprocal arrangements for another standardof proof, which we have with several countries. I agree with the comment of the righthon. Member for Southampton, Itchen that, had the matter been approached properlythrough a sensible debate and negotiation on the treaty, we could have arrived at asatisfactory conclusion. I also agree that, prior to the latest treaty, we had an imbalance inthe other direction. I believe that the American authorities had a marginally higher hurdleto overcome than the British authorities, and I have always made that plain. But I thinkthere was a greater similarity between probable cause and prima facie evidence, in thatboth required evidence to be produced and an opportunity for the person accused to refutethat evidence before a court of law. That is the difference between the situation then andthe situation now: the imbalance is now in the opposite direction. That evidence is notrequired.

The Minister got into a bit of a muddle when trying to distinguish between evidence andinformation in this context, but British citizens are clearly at a disadvantage bycomparison with United States citizens. I am arguing first that they should not be at thatdisadvantage, and secondly that the British Government should not have put them in aposition in which they could be at that disadvantage, because it is the duty of the British


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Government to protect the interests of British citizens. Perhaps the process pointmentioned by the right hon. Member for Southampton, Itchen, to which I shall returnshortly, explains the extraordinary neglect on the Governments part in consideration ofthe treaty in the first instance.

Rob Marris: I think that the hon. Gentleman is trying to ride two horses, and that it isbecoming rather uncomfortable. Ifas he has said more than once during his speechthis is about the protection of British citizens, British citizens who might be extradited tothe United States under the information standard would be no less protected than Britishcitizens who might be extradited to Albania, Canada or a Council of Europe countryunder that standard. They would have the same protection24 Oct 2006 : Column 1415

vis- -vis extradition from the United Kingdom to the United States as they would have

vis- -vis extradition to another country in the list of 50 to which my hon. Friend the

Minister adverted when I intervened on her speech. The protection would be equal: there

is no problem with regard to the protection of British citizens. So what is the hon.Gentlemans problem?

Mr. Heath: There is no problem if protection of the obligations falls to the signatories tothe Council of Europe and its conventions. The United States is not a signatory to theCouncil of Europe and its provisions, so I think there is a distinction to be made.

The third convenient fiction has been implied and not stated today, but it has been currentin the press. It is that somehow it is in the greater interests of justice for this imbalance tooccur, because of the inadequacy of prosecution for white-collar offences in this country.That was almost made explicit by Margaret Cole, director of enforcement of the Financial

Services Authority, who pointed out recently that British criminal convictions weresparse. She attributed that to greater public support for convictions for white-collarcrime in the United States, and therefore presumably a greater predisposition of anAmerican jury to convict by comparison with a British jury.

I have to say first that I consider that an entirely spurious argument, and secondly that, ifit is correct, what it suggests is that we have inadequate prosecuting authorities in thisarea, not that we should send peopleeffectively under a sub-contracting arrangementto stand trial in the United States. If there is a perceived inadequacy in this area, theGovernment should be clear about it and should ensure that our prosecution authoritiesand our laws on white-collar crime are as robust as those in the United States.

We come back to the issue of parity. It has already been pointed outbut I shall do soagain, because it is importantthat what the Minister told us today is completely at oddswith what was said by a Minister of State in the other place during the passage of theoriginal order, and with what a House of Commons Minister, the hon. Member for DonValley (Caroline Flint), said in this Chamber: namely, that there is now a lowerrequirement for the United States than there is for Britain.


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It is nonsense to say that there is rough parity when there is notfor all the reasons thatwe have already givenand that there is no difference between having to provideevidence and having to have it questioned in court, and not being subject to thatrequirement. I hope that that position will not be pursued. Let us be open and honestabout it and acknowledge that a lower standard of proof is required, but say that it is in

the best interests of the justice systems of the western world, even if it is not equivalent tothat of the UK.

5.30 pm

The scope of the treaty is the next important issue. I find it astonishing that we shouldhave had such a clear analysis from Ministers when we opposed the measure in the firstinstance. The hon. Member for Banbury (Tony Baldry) made the point, though he is nolonger in his place. A relevant Minister said at the time:

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We do not have such a range of offences involving financial crime. The casesmentioned by the Financial Timessuch as price fixingwould not apply. Dualcriminality would have to exist.[ Official Report, Third Standing Committeeon Delegated Legislation, 15 December 2003; c. 26.]

What do we have now? We have a full case for extradition of a person from this countryto the United States to stand trial for price fixingfor a crime that was not a crime underthis jurisdiction at the time he may or may not have committed it. That is in directcontradiction of what the House was told when it was asked to support these measures inthe first instance.

Mr. Garnier: If my hon. Friend the Member for Beaconsfield (Mr. Grieve) had been inhis placehe is in Committeehe would have mentioned the case of his constituent, Mr.Ian Norris, who faces this particular dilemma. It was not at all eased by the Ministerswords earlier.

Mr. Heath:It was precisely Mr. Norriss case to which I referred, if perhaps ratherobliquely, as it is not helpful to rehearse in the House arguments for or against aparticular individual. What surprises me is that something that we were told categoricallycould not happen is now happening as a consequence of the Bill.

Right from the start, I rejected the view that this was all somehow necessary to deal withterrorism and that something had to be rushed through because of the need to deal withterrorist suspects. It was quite clear that the scope was always wider than that. It wasalways applicable across the whole range of potential criminal activity. Frankly, it appalsme that it was ever suggested that this was a limited treaty of extradition. It was neverthat, as is now clear from current cases.


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We now face circumstances in which the US has bilateral extradition arrangements with132 states and territories around the world. As the hon. and learned Member forHarborough (Mr. Garnier) pointed out earlier, there are just three countries with whichthe arrangements are not fully reciprocated. The first is France, as no French citizen isallowed to be extradited to stand trial in a foreign country. Those who are not French

citizens are happily exported, but not French citizens. Secondly, there is the Republic ofIreland, where a forum positionsimilar to the Lords amendmentensures that, in theinterests of justice, the appropriate place for a trial is considered. Then there is the UK,where we have sold the pass and are prepared to act with supine acquiescen

Documents

Extradition- Nat West 3Commons Debate 24 Oct 2006 Annotated