Examination of Witnesses (Questions 1-19)
SENIOR DISTRICT
JUDGE TIM
WORKMAN
22 NOVEMBER 2005
Q1 Chairman: Good afternoon, thank you
very much indeed for coming. Before we start I need to read out
a sub judice statement, if you will bear with me while
I do that. Today's hearing will be discussing issues relating
to extradition from the United Kingdom to the United States. I
should make it clear to the press and the public that there are
some restrictions on our questioning which arise from the House's
sub judice rule. This rule prevents discussion in Parliament
on cases which are actively before the courts. The aim of the
rule is to safeguard the right to a fair hearing in the courts.
It is also important that Parliament and the courts give mutual
recognition to their respective roles and do not interfere in
each other's affairs. It is clear that there are a number of current
requests for extradition to the United States, all of which are
sub judice. It follows that there should be no discussion
of those cases, and it is obviously important that nothing is
said in this hearing by members of the Committee or witnesses
that would be prejudicial in any forthcoming extradition proceedings.
I will use my responsibilities to uphold that, but having said
that I am sure that we can explore most of the legal principles
that have been debated in relation to this case. I certainly hope
so. We are in a position today, and will be even if the Treaty
finally gets ratified by the USA, where the evidence required
for extradition to the USA and for extradition from the USA will
be different, there is an imbalance. Does that cause you concern?
Judge Workman: Could I explain
my position? As Chief Magistrate I deal with extradition that
is effectively outgoing, so it is requests from foreign jurisdictions
seeking fugitives to be returned to their countries. They are
all dealt with through Bow Street, but the opposite way is not
dealt with through Bow Street, they are dealt with by individual
magistrates' courts. I do not have very much experience of individual
cases coming into the country; those going out of the country
I can speak with a little more authority on. I am afraid I am
in some difficulties therefore in comparing bringing people back
on extradition as opposed to taking people away.
Q2 Chairman: As a senior legal figure
does the issue give cause for concern as a matter of principle?
Judge Workman: I feel this is
really a matter for you rather than for me, if you will forgive
me, but it is not uncommon for there not to be complete reciprocity,
although there is usually some degree of reciprocity.
Q3 Chairman: In the past you yourself
have rejected extradition requests from, for example, Russia,
in cases where you have expressed concern over the human rights
of the individual to be extradited. Can you imagine a situation
in which you might reject a request from the USA on similar grounds?
What would you be looking for in principle?
Judge Workman: On the basis that,
at the moment, we are now extraditing them without considering
the evidence as such, the court is really looking at the bars
to extradition, and the principal bar which is being advanced
is that of human rights. There is a possibility that an argument
could be advanced that human rights could be infringed, for example,
if it was apparent that there was a serious risk that somebody
could find themselves incarcerated in Guantanamo Bay.
Q4 Chairman: You are making that
judgment, what do you have to rely on in such a case to give you
the assurances that you need?
Judge Workman: Both the defence
and the Government of course have the opportunity to make representations
and to call evidence and in those cases such as the Russian case
that you mentioned, a considerable volume of evidence is adduced,
either in terms of witnesses actually attending court or in terms
of documentation from bodies around the world, usually non-governmental
organisations, who have evidence of some sort to present. Those
are all considered by the court.
Q5 Chairman: In the case of the USA,
as I understand it, this country will not extradite if the death
penalty may be applied. It is also conceivable that a non-US citizen
could end up in Guantanamo Bay. Is it in your court hearing that
you have to make the judgment as to whether the necessary assurance
has been given on those factors, or is that a decision that is
taken elsewhere in the political system?
Judge Workman: It is taken in
Bow Street.
Q6 Chairman: It is taken in Bow Street,
so you have to have an affidavit or statement or whatever from
the US.
Judge Workman: If the issue is
raised then the defence will usually raise it by calling evidence
to suggest that this is a real risk, and the Government may respond
in one way or the other to that, and that assessment then has
to be made.
Q7 Chairman: Can I just press you
slightly; when you say the Government responds is it down to the
Government to enter a statement saying we do not believe this
will happen to this individual, or do you as the judge require
the evidence that satisfies you that the individual is protected
from those types of consequences?
Judge Workman: The issue is really
where the onus is placed. The defence have to raise the issue
and if they raise it, and raise it with sufficient force, then
the Government would need to rebut it. Without going into individual
cases, there have been instances where there has been concern
about Guantanamo Bay and the matter has been resolved by the Government
giving an undertaking through a diplomatic note.
Q8 Chairman: I think we are getting
there, but ultimately who is the person who says "I am satisfied
that this person's fundamental rights will be protected"?
Is that you or is it the Government?
Judge Workman: Initially, yes.
Q9 Chairman: It is yourself.
Judge Workman: Yes. I am happy
to say that there are avenues of appeal, so it is not such a heavy
responsibility as it might appear.
Q10 Chairman: It is quite important
for our understanding that ultimately that is something that has
to be tested in a court as opposed to a decision which is taken
by a politician reading the file in a different situation.
Judge Workman: Obviously, under
part 2, which the United States is under, the Secretary of State
has a role to play, but initially the decision as to whether or
not human rights are likely to be violated is an issue for Bow
Street Court.
Q11 Chairman: Can you just say a
little bit more about the Secretary of State's role?
Judge Workman: It has been reduced
somewhat but it is actually defined in the Act as to what the
responsibilities are. One of them is the death penalty, so that
issues as to whether or not there is a risk of the death penalty
is a matter for the Secretary of State, although it has been raised
before me as an issue which the court ought to consider because
the Act provides for the Secretary of State to consider it in
relation to the particular offence, and there has been a suggestion
from a number of sources that the Government of the United States
could introduce a secondary indictment on similar conduct which
could mean that the offence could change from one which would
be life imprisonment to one which could carry the death penalty.
The argument goes that the Secretary of State would not have the
opportunity to intervene in those circumstances and therefore
the court ought to do so as part of the human rights element.
I have to say that so far, in my experience, it has been resolved
by the necessary undertakings and does not actually weigh very
heavily.
Chairman: Thank you very much indeed.
Gary Streeter.
Q12 Mr Streeter: I do not really
understand extradition proceedings, but is the US Government represented
in your court?
Judge Workman: Yes.
Q13 Mr Streeter: You mentioned a
diplomatic note, is that someone from the US Embassy sitting in
and scribbling?
Judge Workman: No, it is a proper
diplomatic note. I am not sure what the appropriate wording is,
but it is from the embassy as part of the government and it is
a note in writing from one government to another. It is a matter
which is still the subject of an appeal so I am not quite sure
how it is going to resolve itself, but it was one way in which
the government felt it could give the reassurance that was needed
and I felt that as it came from the government and it was binding
upon it, that it was sufficient. Whether the High Court agree
we will wait and see.
Q14 Mr Streeter: That is the US federal
government, but are the prosecutions not brought by individual
states, or are we talking about prosecutions brought by the federal
government?
Judge Workman: In this particular
case it was the federal government but they are usually returned
to a particular state and we do then need to look to see which
state it is as to whether or not it carries the death penalty.
Q15 Chairman: One of the general
points of comment about this legislation has been that in a situation
where the USA exercises ambitious extra-territorial scope, people
will come before the courts for extradition who might potentially
be tried for the same offences committed in this country. When
you are hearing those cases is it any part of your remit, your
consideration, whether a case could actually be tried in this
country?
Judge Workman: The answer is no,
it is not. I have a responsibility just to deal with the extradition.
Chairman: Fine, thank you. David Winnick.
Q16 Mr Winnick: Can I just clarify
the position, Mr Workman. When you are considering a particular
case if there is any indication that a person once extradited
to the United States would be sent to Guantanamo, what would then
be the position as far as you are concerned?
Judge Workman: I think the argument
which could be advanced is that this would be in breach of human
rights, for him to be detained in those circumstances, and unless
I can be satisfied that his human rights under the Convention
were to be honoured, I would have to discharge the case.
Q17 Mr Winnick: If I understand the
position correctly—and I am sure all of us are grateful
for the manner in which you are responding to our questions—you
would need to be satisfied first and foremost that the person
concerned would not end up in Guantanamo, and if that person did
end up there, that would be a breach of his human rights.
Judge Workman: Yes.
Q18 Mr Winnick: That would be the
position.
Judge Workman: I do not wish to
bind any of my colleagues on this, but as far as I am concerned
I would find it difficult to say that his human rights were being
acknowledged if he were in Guantanamo Bay, but it may be that
on argument I could be convinced. On the face of it I think it
is unlikely.
Q19 Mr Winnick: You told us earlier
that the situation could arise, if I understood you correctly,
that someone could be sent back to the United States if the court
and the authorities in the UK generally agreed, and then the United
States could bring another charge. How far are you satisfied that
the United States, having given its word in the documentation
and oral evidence as required before you, would not in fact do
anything other than what it tells you in the court? Is that too
much of a leading question?
Judge Workman: I do not think
it is a matter for me to say whether or not that is the case.
I am assuming that as this is a treaty between governments it
would be complied with. The important distinction though is to
say that it is the conduct that people would be sent back for,
and therefore although the offence may not be worded in quite
the same way, it is still the same conduct that they can be dealt
with for in America. What they decide to call it in America is
a matter for them, but that of course does mean that sometimes
there is a change in the penalty.
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