Examination of Witnesses (Questions 40-53)
MS SALLY
IRELAND
22 NOVEMBER 2005
Q40 Mr Streeter: Can you give an example
of a case over the last 14 years or so where there has not been
a need to find or make a prima facie case but extradition has
happened that has given you concern?
Ms Ireland: Most of the cases
that we have looked into are current and sub judice. I
do not have particulars of someone who is already in the United
States.
Q41 Mr Streeter: Are you aware of
anyone who has been extradited to the US under the new arrangements
who has subsequently been found to be innocent, or is that not
really your point?
Ms Ireland: It is not really our
point. Firstly, that is not information that we collate, but also
I think that whichever way that question is answered it would
not show us very much about the extradition process, unless a
court in the USA for example made specific judicial criticism
about the standard of the evidence or whether the extradition
should have happened. It would be quite hard to know whether the
extradition should have taken place and it would be possible for
an acquittal to be the right verdict whether the extradition was
rightful or not, so I do not think that would tell us very much.
Q42 Mr Streeter: Finally from me,
the Treaty replaces the requirement for prima facie evidence with
a requirement for information that would justify an arrest in
the UK. Does this not simply just reduce a mismatch that was previously
in place between the evidential requirements of the two jurisdictions?
Ms Ireland: The question I was
given was about the previous Treaty and I am not quite sure what
part of the previous Treaty that is referring to, but what we
would say is that a prima facie case is an important safeguard
when somebody is being extradited, especially in the context of
an expansive jurisdiction. In relation to the UK, we do both extradite
our own nationals and we extradite people for crimes which could
be under investigation in the UK or could have been substantially
committed in the UK, so I think the evidential requirement is
important.
Q43 Nick Herbert: In your letter
to the Home Secretary you express concern about the operation
of the Treaty in that it would apply to crimes alleged to have
been committed substantially in the UK, and you explain why that
is a particular concern in relation to the extra-territorial reach
of US law in relation to some crimes. But if these offences had
been substantially committed in the UK, surely then they could
be tried in the UK?
Ms Ireland: They could be, yes,
but that is a discretionary matter for the UK authorities. It
may be that the police or investigating authority decline to investigate
a matter in the UK and that the US take an interest in it, but
the UK police do not, it may be that evidence is in the US but
not in the UK that would prompt an investigation. It could be
passed over, but perhaps they have asked for extradition instead
of passing over the information that they have. It could be that
the prosecution has failed the test that the CPS institute in
relation to public interest and the evidential test for the prosecution
to proceed—the prosecution must be satisfied both that there
is a reasonable prospect of securing a conviction and that it
is in the public interest to prosecute, so any of those tests
could be failed but still an extradition request could go ahead.
Q44 Nick Herbert: To turn it round
the other way, given that a lot of crime is increasingly international,
would it not be wrong to actually limit the effect of the Treaty
by requiring offences to have been substantially committed in
the requesting state?
Ms Ireland: My own view is that
what we want to avoid is an infringement, in a way, of both the
sovereignty of the UK and of our own authority. The Treaty specifies
that it is not a bar to extradition that an investigation is taking
place in the UK—so it may be an offence that we very much
want to prosecute, but the extradition can still go ahead, and
in a sense that person has been removed from the course of our
law, albeit temporarily. Secondly, the CPS or prosecuting authority
could take a positive position that it is inappropriate to prosecute
somebody and still the extradition request can go ahead. Because
of the lack of an evidential requirement or other specific similar
grounds, they can still be extradited. So it detracts from, in
a sense, the sovereignty of our own authority. Having said that,
there may be circumstances where it is not in the public interest
to prosecute here, but it is in the US, for example if certain
types of damage or events take place there. I think that where
the facts of the case substantially took place in the UK, there
should be a positive justification from the requesting state as
to why it is appropriate for the matter to be tried there, and
there are many issues that the courts should be taking into account—where
are the witnesses, where is the evidence, where would a fairer
trial be provided?
Q45 Nick Herbert: But under the Treaty
the court would not have to ask for that, it would not be able
to ask for that justification.
Ms Ireland: No.
Q46 Nick Herbert: Do you think it
matters that the United States has not ratified the Treaty, given
that extradition arrangements frequently are not reciprocal because
some countries do not extradite?
Ms Ireland: That is more a political
than a legal matter, in that what we are primarily concerned with
at JUSTICE is the quality of the guarantees rather than the reciprocity
in a sense. I do think that where the US have not ratified the
Treaty—which as far as they are concerned is a less onerous
course because we have to show probable cause to extradite somebody
from the US to the UK—perhaps it does provide an opportunity
for us to look at the Treaty again and say should we continue
to enforce this in this country on a one-sided basis.
Q47 Chairman: On the question of
the 2003 Act and the issue that Mr Herbert raised about crimes
that have been committed substantially in the UK, you expressed
concern in your letter to the Home Secretary about it, and I raised
the point earlier that an allegedly fraudulent scheme operating
in the UK, in which even one e-mail passes through an ISP in the
USA, would be indictable in the USA.
Ms Ireland: Yes.
Q48 Chairman: Is this particular
to the Treaty that we have with the USA, to what we have legislated
for with the USA, or does this apply to all of the treaties that
we have with part 2 countries?
Ms Ireland: It is a notion about
jurisdiction in a sense rather than an international agreement
and there are two aspects to it. Firstly, it depends upon the
individual treaty that we have made and the jurisdictional clauses
that are contained within it. For example, I believe that the
treaty that the Republic of Ireland has with the USA does provide
that they can refuse extradition when the law of the requested
state, the extraditing state, regards the offence as having been
committed in its territory. Obviously, we do not have that provision,
but in terms of the original treaty and also the notion of jurisdiction
in the law of the requesting state—I am not an expert on
world law, but obviously the US has been prominent as having quite
expansive notions of jurisdiction, particularly for electronic
crimes.
Q49 Chairman: You would say that
the combination of both their extra-territorial approach and the
lowliness of our threshold makes the implications of this Extradition
Act greater in relation to UK-US relationships than it might be
in relation to other states.
Ms Ireland: Yes.
Q50 Chairman: Can I also press you
on the point Mr Herbert raised, because I was not quite clear
on the answer. You do not seem to be saying that in principle
cases should always be prosecuted here if they can, more that
it might be desirable if they were. You seem to allow for circumstances
in which a case was prosecutable here but would not be prosecuted
here, but nonetheless in principle an extradition could go ahead.
Ms Ireland: One can think of examples.
For example, if a crime perpetrated in the UK caused no damage
in the UK but caused severe economic or other damage in the US,
there might be an argument. I do not want to talk about individual
cases but I can think of one example in relation to that where
the US might be thought to have a primary interest in prosecuting,
but I think the primary consideration should be interests of justice
and fairness of trial and whether the person can mount a defence
and be adequately defended in the US.
Q51 Chairman: We cannot talk about
individual cases, but is it satisfactory in principle that actions
that were not crimes in UK law in the past, say 10 years ago,
can now be subject to extradition to the USA as a result of the
Treaty passed in 2003? As a matter of principle of justice, is
that acceptable?
Ms Ireland: It is an interesting
point. Obviously it is not as clear a case of an infringement
of the rule against retrospectivity as it would be in an entirely
domestic case. It might be a case where each case turns on its
facts in relation to that. There may be questions as to whether
subsequent criminalisation through the Treaty is a human rights
question. [3]
Q52 Chairman: One last line of questioning.
When the Act was going through, much of the public and parliamentary
debate was about the European Arrest Warrant and the issues associated
with that. Looking back through the record, there was very little
parliamentary discussion of the US aspects of this; why do you
think that was? Were organisations like JUSTICE aware of the implication
of this part of the Act at that time?
Ms Ireland: Yes, we were. In a
way we became involved in US-UK extradition through our work on
the European Arrest Warrant, as part of our EU Justice and Home
Affairs project, although very little to do with the EU, so it
is somewhat anomalous. The Act came about because of the European
Arrest Warrant and provided a convenient opportunity to tidy up
and streamline our extradition proceedings, and that is why it
was passed in that way. I think it is a pity that the same level
of scrutiny was not applied in relation to part 2 countries, in
particular to the possibility of designation of part 2 countries
as countries where a prima facie case is not required, because
I think that is a very important delegation to the Secretary of
State of quite an important power which has huge effects on human
rights.
Q53 Chairman: At the time that the
Act was going through, in as much as these issues were discussed,
a lot of the emphasis was about the need to speed up the extradition
of terrorists, which was one of the reasons for bringing forward
the legislation on the European Arrest Warrant. Have you been
surprised, subsequently, by the breadth of issues which have now
been raised under the Extradition Act, because only two of the
cases so far have actually been terrorist cases, the rest have
been other sorts of crime?
Ms Ireland: I think surprised
is the wrong word because you will find with an executive—of
course a very powerful executive—the powers will be used,
and it does seem to me in relation to financial crimes in particular
that there is quite a lot of impetus in the US to prosecute those
offences, and obviously that has an impact on the spectrum of
extradition cases that we have heard here. It is so often the
case with different kinds of legal powers that powers which are
passed into law, perhaps following a terrorist atrocity or during
discussion of terrorism, then find themselves being applied much
more widely to all crime.
Chairman: Thank you very much. Do Members
have any questions? Thank you very much indeed.
3 Note by witness: Where the crime in question
was substantially committed in the UK, it is likely that Article
7 ECHR would be engaged. Back
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