Examination of Witnesses (Questions 60-79)
ANDY BURNHAM,
MP
22 NOVEMBER 2005
Q60 Mr Winnick: What is the Government's
view about it? What I am asking you is: why should the Government
be so pleased when it is so much easier?
Andy Burnham: I would argue: was
it an acceptable state of affairs that an extradition from this
country took, on average, or took around about 30 months under
the 1989 Extradition Act with countless layers of appeal and countless
delays and abilities to delay the trial? In effect, I think it
created a situation in which people could evade justice and I
do not believe that that would be in our interests, nor in the
interests of the requesting state, in this case the US, so I would
turn the question round. I believe that it is correct to say that
the relationship that the United States had with this country
was not the same as we have since negotiated with a whole range
of other countries, and one of their public comments in relation
to the Treaty under discussion is that they believe it only now
brings the UK into a similar relationship to that which they have
enjoyed with other countries for many years.
Q61 Mr Winnick: You appear very critical
of a delay, as you put it, before extradition took place previously,
but could it not be argued that that was because of the safeguards,
however long it took, and I think it was somewhere around 30 months
and is now seven months, but if there were safeguards then which
do not exist now, why should this Committee and Parliament be
particularly pleased about that?
Andy Burnham: Because I think
it is about proportion and balance and I would argue strongly
to you that, in putting through the process that we have in Part
II of the Bill, that has not required a stripping away of the
safeguards and the ability that individuals have to appeal against
an extradition request.
Q62 Mr Winnick: Much less than previously?
Andy Burnham: I think what it
has taken away is the ability to prolong and seriously elongate
the process to the point where, if and when the trial happens
in the requesting state, it will be some distance from the original
offence and, as I said, I personally do not believe that is in
the interests of justice that that situation should be allowed
to happen. I would refer you back to the point: why was it not
controversial to do that in 1991 for many other countries under
the European Convention who arguably had a far less well-developed
legal system than the United States? The argument, I would say,
is that these changes were overdue and have actually enabled a
much more balanced relationship between the two countries to now
become established.
Q63 Mr Winnick: And the United Kingdom
are perfectly happy and satisfied with the US legal processes,
are they?
Andy Burnham: Well, there are
two issues. As to the one we mentioned before about safeguards,
the Bill, as it is, has a whole range of options where people
can test their case to the full and appeal and of course it is
explicitly linked to the provisions of the Human Rights Act, but
on the US legal system, obviously that is not directly our responsibility,
but, yes. If the argument here beneath some of the comment and
the criticism and the discussion is that people do not believe
that the US guarantees people a fair trial, that the US legal
system does not respect basic rights, if that is the argument,
then I would reject that entirely.
Mr Winnick: We will come back to that
shortly.
Q64 Chairman: Just on the point of
safeguards, we heard from both of our earlier witnesses that the
individual Lofti Raissi, who was arrested and held for five months
following the 9/11 attacks, was not extradited under the old arrangements
because a hearing of the evidence showed the courts that the evidence
did not stand up. It was confirmed to us that under the new Treaty
he would have been extradited and it would have been difficult,
if not impossible, for the courts to object. That is a significant
lowering of the safeguards.
Andy Burnham: I obviously did
not hear the earlier evidence that you took on that point. One
of the things I would have to say to that is that I would not
want to be drawn in detail on any particular case, but, in agreeing
the Extradition Act 2003, Parliament took the view about what
was a balanced and proportionate regime in which these requests
should be heard, and it was one which balances the need to make
a request proceed with relative efficiency and speed against the
ability of an individual to challenge the extradition request
and to have their case heard and heard properly. Now, I would
argue that the Act strikes that balance in that it gives the individual
the ability to appeal both the court's decision and the Secretary
of State's decision and it gives them the ability to take that
finally to the House of Lords if they are able to do so. The ability
to test the request is laid out quite clearly and explicitly in
the Bill and in the Act, so I—
Q65 Chairman: Yes, but they cannot
challenge it on the basis that there is no evidence against them,
can they? In the Lofti Raissi case, which is now concluded,
so it is not sub judice, the point was that the evidence
was put to a hearing in the courts, the courts heard the evidence
and dismissed it, saying, "We won't extradite him because
there isn't a case to answer". None of the appeal rights
that exist under the current arrangements enable somebody to make
that challenge.
Andy Burnham: But my point, Chair,
was to say that it is a rather large claim to say that that case
would have proceeded differently under the 2003 Act. If I hear
you correctly, the—
Q66 Chairman: This was the view of
the judge who dismissed the original extradition which, if it
came in front of him now, he would not have been able to turn
down on the same grounds.
Andy Burnham: As I say, I was
not here, so I did not hear what the judge had said. If the claim
is that the case was heard on the provisions of the 2003 Act,
then the extradition would have taken place, well, I would want
to see the direct evidence for that claim. It is not a claim that
has directly been put to me, as Extradition Minister, and I am
not, having some knowledge of that case, satisfied that that is
what the outcome would have been. Extradition under 2003 and no
extradition under 1989, I do not accept that premise.
Q67 Mr Clappison: Can I just briefly
explore with you that case which the Chairman has just mentioned
and ask you to bring your undoubtedly much superior knowledge
of these provisions to mind, but is it not the case that in order
to obtain extradition from this country to the United States now,
the United States simply have to present information about the
charge, ie, that there is a charge, and they present this to the
magistrate in this country? Is that not the case?
Andy Burnham: No, it is not the
case. The requirement for information is obviously information
that would justify the issuing of a warrant, so it is not simply
provision of information; it is information that obviously would
allow that to take place. The balance which we believe has been
struck is that that brings that requirement into much more balance
with the requirement that the US authorities use of probable cause.
The two are as possible as it is to be two different legal systems
where it is impossible to be exactly precise and reciprocal, but
it does bring the two systems closer into balance, yes.
Q68 Mr Clappison: And is that information
tested in any way when it comes before the examining magistrate
here?
Andy Burnham: Yes, it is.
Q69 Mr Clappison: It is?
Andy Burnham: Yes.
Q70 Mr Clappison: Since the Act came
into force, eight Britons have been extradited to the US whilst
only one US citizen has been extradited to the UK, I believe.
Do you have any views on that?
Andy Burnham: I think the figures
are 11 UK citizens have been extradited to the US and you are
right to say that one has come the other way. The comment I would
make, if the suggestion is that the Americans make a lot of unjustified
requests, is that I do not accept that for one second. What I
would say is that obviously the number of extradition requests
made by a country can vary. They can often be dealing with quite
small numbers, so it is hard to draw any firm conclusion from
them. The United States of America is a bigger country than this
one, so it is probably likely that it will make more extradition
requests than other countries. Those are the kind of things I
would point you to in considering those figures.
Q71 Mr Clappison: When the Treaty
was announced, Lord Falconer singled out the importance of the
fight against terrorism, but I believe it is the case that the
majority of requests received from the USA since then have been
for financial crime and only two out of the 11 cases currently
outstanding relate to terrorism. Do you have any observations
on that at all?
Andy Burnham: Well, I am not entirely
sure where the direct quote was that said that the Bill was all
about tackling terrorism. In many ways I would not accept that
at all because, as I said, the extradition review process which
began was about, I would say, international crime, it was about
recognising that there were different types of crime, that the
nature of crime had changed, the extradition procedures we had
were different, and I do not for a second accept that it was driven
by the need to combat terrorism, so that would be my first remark
on that. As to the offences for which people were extradited,
you are right that of the 11 offences since the Act came into
force in terms of extraditions back to the United States, six
were cases of drug offences and the rest were indecent assault,
GBH, mail fraud and fraud, so yes, there are no terror cases within
those, but I would challenge the premise—
Q72 Mr Clappison: You are saying
it is wider than just terrorism?
Andy Burnham: The review began
from a much broader premise, a much broader premise. The review
began by the then Home Secretary, acknowledging that crime and
the nature of international crime was different and that the extradition
procedures had to respond to that. Of course terrorism is an element
of that, but it was not the justifying factor for the instigation
of the review.
Q73 Mr Streeter: You will be familiar
with the legal expression "a bad bargain". Is it not
becoming increasingly clear that we have basically given the US
whatever they wanted and they have given us nothing in return?
You do not seem at all concerned about that, so can I just ask
why is that? Is it because the special relationship means that
whatever they say, we do?
Andy Burnham: Again I would challenge
the basic premise of your question.
Q74 Mr Streeter: What have they given
us in the Treaty? What have we got in exchange for our vast lowering
of standards?
Andy Burnham: The first thing
I would say, responding to your original question, is that, interestingly,
17 cases have been dealt with under the old provisions since 1
January 2004, so there have been 17 returns to the US under the
1989 Act in the same period as the cases I have just referred
to. They took, on average, 30 months to conclude. Obviously they
began before the new Act came into force. The figures for the
11 cases which I just mentioned to Mr Clappison were, on average,
much shorter. Now, I would ask you: would you be happy with a
situation where those cases to a trusted extradition partner,
a trusted international partner, were taking so long, and would
you be happy that for the people who arrived under that cumbersome
procedure, the trial could have proceeded in exactly the same
way as it would have done if we were extraditing to one of our
other extradition partners for whom the prima facie test
was removed in 1991? I would not accept the premise of your question.
The premise of your question is that somehow this is another favour
for the United States. Well, no, this is about having a mature,
balanced relationship which delivers for both sides and I think
that is what the Treaty does.
Q75 Mr Streeter: What have we got
out of it?
Andy Burnham: Well, what we have
got out of it or what we will get out of it when the Treaty is
ratified is the ability for temporary release so people can be
tried during a sentence, we have got a situation where the range
of crimes which are being considered is obviously not prescriptive
in terms of a list and, in that sense, outdated, and we will have
more flexibility in terms of bringing our nationals or other nationals
back for a wider range of offences. What we have got out of it
is a more sensible set of arrangements that enable the process
of extradition to work in a way with a key partner as they have
been doing with a whole range of other partners for a number of
years.
Q76 Nick Herbert: Minister, I am
perplexed by the suggestion that somehow the requirement that
works one way for the United States of course is matched by a
requirement of our own authorities. You mentioned that information
has to be supplied justifying the issue of a warrant of arrest
for the offence. Surely, it is the case, is it not, that in the
Treaty itself, it talks about an additional requirement for requests
to the United States to provide reasonable cause and the justification
of that additional requirement has been that the US has constitutionally
barred extraditions just on the say-so of a foreign country. If
we were truly seeking balance between the evidential requirements,
why did we not impose the same requirement ourselves, precisely
the same requirement?
Andy Burnham: I think the answer
to your question is that no two legal systems are entirely the
same and the extradition procedures that we have put in place
for this country have to work within that as best as they can,
so the arrangement that can be struck can never be to the `enth
degree entirely reciprocal, but a balance has to be struck which
does exactly that, strike a reasonable balance that is in the
interests of justice and enables the process to take place whereby
people can stand trial if accused of serious charges. The difference
between the UK and the US, as you say rightly, is that probable
cause has been the test being applied that they apply to incoming
requests to the US, a probable cause being, as you rightly say,
something spelled out by the US Constitution and something by
which they are absolutely bound. The issue is: what is the UK
equivalent? My argument which I have been trying to develop here
today is that the prima facie requirement was not a balanced
requirement with respect to probable cause and in fact the best
we believe we can get is the balance that we now have with the
requirement that I was explaining to Mr Clappison, so it is our
argument that this relationship is now in much greater balance
than it was. Mr Streeter was saying, "Well, we have given
all this away and not got anything back". It was a very lop-sided
relationship before and it is still the case, I think I can say
this with certainty, that requests received by the US, on average,
will take less time to handle than our own, so I would argue that
there is more evidence that the relationship is now in balance.
As I say, that has been achieved without losing any of the safeguards.
Q77 Nick Herbert: Minister, your
answer implies that somehow this concept is alien to British law,
but the wording is quite straightforward. It says that for requests
to the United States, "such information as would provide
a reasonable basis to believe that the person sought committed
the offence for which extradition is requested". Why can
that phrasing not be imported into British law?
Andy Burnham: The requirement
that is in British law is in Part II of the Extradition Act 2003
and I would argue to you that that is the part of the Bill that
Parliament considered and it was decided that that was the right
balance to strike according to our own legal system, and it is
the process that Part II of the Bill lays out. Now, it was originally
conceived to carry forward the relationship that we had with the
European Convention on Extradition countries and it is worth saying
that those countries included countries, such as Turkey, the Russian
Federation, a whole range of other countries who are signatories
to that Convention, for whom the prima facie requirement
was relaxed in 1991. Now, the issue with regard to the 2003 Act
was: should we not, in the interests of a functioning extradition
system in 2003, extend that relationship to some of our key bilateral
partners, as the review flagged forward? They were identified
as longstanding partners, such as Australia, Canada, New Zealand
and the US and I would strongly defend the fact that they are
our trusted, bilateral partners and, in my view, will remain so.
Indeed the very nature of an inquiry like this suggests that there
is a preferential and extra special deal for the United States
of America and I would refute that entirely. I would put it to
you that the arrangement we now have is one that is on an even
playing field with one that we put in place some time ago for
a whole range of other countries.
Q78 Chairman: On the way out, Minister,
that is true, that the arrangement with the USA is the same as
it is for other Part II countries. However, most, if not all,
of the other Part II countries have reciprocated and have the
same test. The point here is that we have knowingly entered into
a Treaty with a country that was not, in principle, prepared to
reciprocate the same test, so the treatment for the USA is different
from the other Part II countries.
Andy Burnham: I do not think that
is necessarily true.[4]
I hope that some inspiration will find its way to me if I say
something wrong at this point, but I do not believe that Australia
have reciprocated and I think I am right in saying that nor have
New Zealand. Maybe I will be corrected if that proves to be different.
We took the decision and it was not necessarily based on "What's
in it for us?", but the test, Chairman, if I can say this,
was: is this the right thing to do? Now, of course people perhaps
look at the United States more because of the volume of requests
that they make, but that is more about the history of our two
countries than any preferential or special deal.
Q79 Mrs Cryer: Minister, could we just
look a little bit further at eventual prospects for US ratification.
In December 2003, which was two years ago, Baroness Scotland said
in the House of Lords, "The Treaty has not been enforced
yet because it has not been signed by the US Senate. We anticipate
that the Treaty will be put before the Senate formally early in
the New Year", ie early 2004. Now, eventually the Treaty
last week came before the Senate Foreign Relations Committee,
but no decision was made. However, that Committee intends to hold
another hearing some time next year with non-governmental witnesses.
Does the Home Office have any idea when the US will actually ratify
the Treaty?
Andy Burnham: Well, it is obviously
subject to the political process over there and I am pleased that
the Senate Committee obviously saw us before your good selves
today and obliged me by bringing forward their inquiry to last
week! I am obviously joking! The encouraging thing was that the
process began last week. Now, I am not aware of how their procedures
work or how long they will take, but I am encouraged, having read
some of the transcripts of what took place last week, that there
is now going to be a process that will be continued early in the
New Year and then lead to ratification, so it is under way. I
think it is right for me to express some disappointment at the
time taken for this process to begin and I think that is disappointing.
However, I think it is also worth pointing out that our own review
obviously provided a timetable and a platform which enabled things
to happen much more quickly. The pressure, I would argue in retrospect,
on our own legislative process would have been the European arrest
warrant because EU partners obviously needed to have in place
a system, so there would have been pressure for us to have modernised
our extradition law, I believe, well before now, so I think in
many ways our timetable was very swift because that process was
under way and it was able to be latched on to that process. But
no, I would say of course that the timetable has been disappointing
and I am encouraged that it has now begun. We would like to see
as early an end to it as possible and that will be, we hope, some
time in the New Year, but the Committee Chairman, I think, flagged
up that he would be taking further evidence in the New Year.
4 Note by witness: It is the Home Office position,
echoed by the US Department of Justice, that the evidential requirements
as between the US and UK are now broadly similar, where before
they were out of balance. Back
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