CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 710-i

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

HOME AFFAIRS COMMITTEE

 

 

UK-US EXTRADITION TREATY

 

 

TUESday 22 November 2005

JUDGE TIM WORKMAN

MS SALLY IRELAND

ANDY BURNHAM MP

Evidence heard in Public Questions 1 - 105

 

 

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

 

2.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

 

 


Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 22 November 2005

Members present

John Denham, in the Chair

Colin Burgon

Mr James Clappison

Mrs Ann Cryer

Mrs Janet Dean

Nick Harvey

Nick Herbert

Steve McCabe

Mr Shahid Malik

Mr Gary Streeter

Mr David Winnick

________________

 

Examination of Witnesses

 

Witness: Senior District Judge Tim Workman, examined.

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 gives 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.

Q20 Mr Winnick: In other words, one would expect, to put it in layman's language, that the United States in submitting its case would act in good faith in the manner in which it presented its case to you.

Judge Workman: That, I think, applies throughout extradition generally, that it is a matter of good faith.

Q21 Mr Malik: You would be familiar, I assume, with the memorandum of understanding that the Government is trying to develop with certain countries where they might wish to send foreign nationals back. Would you give the same weight to that memorandum of understanding as compared to the one that we just discussed between the USA and the UK?

Judge Workman: Do I understand your question to be that of those countries we extradite to, do we take a different view of some than others?

Q22 Mr Malik: The Government is currently trying to develop memoranda of understanding with states which, as you said, perhaps have not got 100% human rights records. The argument is that they can then send foreign nationals back. This might be a separate area because we are dealing with extradition here and this is deportation.

Judge Workman: I think we are into immigration and deportation, which is not really a matter for me. The countries which I suspect you have in mind, some of them we do not have extradition treaties with so there is no power to extradite.

Q23 Nick Harvey: Has the Government's decision to list the USA under the Act as a part 2 country made a significant difference to your work?

Judge Workman: I do not think it has. We were trying to look at the statistics this morning, in fact, and although the workload in terms of extraditions throughout the world has increased for Bow Street quite considerably, in fact the figures in relation to the United States of America are rather less. We had 33 cases last year from the United States and so far this year we have had 15, with two months to go, so it has probably dropped in terms of numbers, but because the numbers are so small the variation or fluctuation might be quite considerable. It could be that next year we get 40.

Q24 Nick Harvey: Are there any particular features of extradition requests from the USA that would not be found typically in requests from other part 2 countries?

Judge Workman: We obviously apply the 2003 Act across the board so it is the same principle throughout. I suppose the slight difference is the matter that Mr Streeter referred to, that in the United States we are dealing also with individual states, some of which carry the death penalty and some do not. So there are some issues that are slightly different when dealing with a United States rather than an individual country.

Q25 Nick Harvey: Is the pattern of requests from America in terms of the crimes concerned similar to that in other part 2 countries?

Judge Workman: We looked at that also this morning and, frankly, we cannot see any discernible pattern. I do not think it has changed; if one looked back perhaps five years one could say that it has changed in as much as there are now more terrorist offences and more conspiracy to defraud, but the rest of the nature of the work is fairly consistent. There are some places, such as some of the Mid European States where what we would regard as rather more minor offences are extradited, but I suspect that to them they are important matters. Whereas we would not expect to hear from America seeking the return of somebody for theft of 300, we would perhaps from Latvia.

Q26 Chairman: Can you help us a little bit further on this question of the extra-territoriality of the US as some people have described it? It has been put to us that you could be carrying out an internet fraud in the UK and Europe, but actually if so much as one e-mail passed through an internet service provider in the States somewhere, US law would be sufficient to make you liable to prosecution under US law. In looking at the cases that have come before you from different countries, do you have any sense that in some sense the reach of the US justice system to try and catch people whose crimes may only in small part have taken place in the US is more ambitious and greater than other part 2 countries?

Judge Workman: I do not think I can answer that in detail without giving it some proper research. I am sorry not to be able to give you a clear answer on it, but I do not think it is. I suspect that we may be getting this impression particularly because of conspiracies to defraud, which probably emanate more from the United States than they do from Latvia.

Chairman: Thank you. Colin Burgon.

Q27 Colin Burgon: Picking up from your answers to Mr Winnick, you were talking about the position of Guantanamo Bay. Have any extradition requests from the USA been refused to your knowledge?

Judge Workman: Yes, they have been, I have refused one myself. There was one refusal last year.

Q28 Colin Burgon: Could you tell us what the grounds for that were?

Judge Workman: The matter that I refused - it is public knowledge anyway - was a case called Raissi, who was a defendant the United States required in relation to issues surrounding the bombing of the Twin Towers. In essence, the offences for which he appeared before me were nothing to do with that other than that he had failed to provide information which led to an allegation that he had misled the authorities to obtain a pilot's licence. In fact, having heard the evidence, I established that was not the case, but he was required by the United States at that time in relation to terrorist offences.

Q29 Colin Burgon: The Home Office argue that adding the USA to the list of part 2 countries has shortened the overall time taken to implement extradition requests, and this has reduced average time from arrest to surrender from something like 30 months to seven months. In your opinion, how much of this 23 month reduction is simply the result of quicker, simpler and more effective procedures in the courts?

Judge Workman: The reduction in the opportunities to appeal has actually reduced the length of time that a case can take right the way through the courts, but in terms of the actual timescale within Bow Street Court, there has really been very little change in the timescale. I have to say that we are doing our best to expedite all extraditions at the moment, so that I hope would account for some of this reduction, but that is purely an administrative aspect. I suspect that the greatest benefit is in the reduction of time that the matter takes with the Secretary of State.

Q30 Mr Streeter: A very quick question, Chairman, if I may. I would not like to be in Guantanamo Bay, but then I would not like to be in any US prison. What is it in particular about Guantanamo Bay that causes you to place it in a special category? Obviously it is a robust regime, as are many US prisons, but the legal representation in many US states is patchy for people inside prison. What particular aspect of Guantanamo Bay disturbs you, and are you sure that you are not simply being swept along on some kind of political tide?

Judge Workman: There is always that risk, you have to be careful.

Q31 Mr Streeter: You do not strike me as the sort of person who would be swept along, but I have to ask.

Judge Workman: There is always that risk. The evidence that I had in relation to a particular case came from an American lawyer who gave evidence about it and told me the particular difficulties that prisoners could experience if they were made subject to Military Order No. 1 which then means that they can be held incommunicado, they do not have a choice of lawyer - they could have a lawyer but not a choice - and they could be detained for a considerable length of time, and indeed, there was a suggestion that they might be removed from Guantanamo Bay. These are matters that have to be dealt with on a case by case basis on the evidence that is presented to me, and I hope that one does not get swept along on the political tide too often.

Q32 Nick Herbert: Am I right that the case of Raissi that you referred to as an extradition you refused to grant was before the current Treaty when a prima facie case would have had to have been made?

Judge Workman: Yes

Q33 Nick Herbert: Is it not the point that under the new Treaty a prima facie case would not have to be made and you would not have been able to refuse that extradition?

Judge Workman: There were two charges, one of which I could have refused because that was purely on the basis of legal argument. The second charge, which related to an alleged deception in failing to notify a knee injury to the doctor, I think you are right, that that would have been difficult to have done anything other than to extradite.

Q34 Chairman: Mr Herbert has really asked my question. There is in that sense a significant lowering of the protection the courts are able to offer here under the new arrangements compared to what used to exist under the previous Treaty. Maybe I should not use the word significant.

Judge Workman: I suppose where any court is invited to consider evidence and make a decision on the evidence, the defence position is stronger than when the court is not obliged to. I think that is as far as I ought to go.

Q35 Chairman: Thank you very much indeed, that has been very helpful.

Judge Workman: Thank you very much for inviting me.


 

Examination of Witnesses

 

Witness: Ms Sally Ireland, Senior Legal Officer (Criminal Justice), JUSTICE, examined

Q36 Chairman: Let me welcome you. JUSTICE are obviously very concerned about the provisions; can I start with a straightforward question about whether there is a real problem. We have just heard from Judge Workman that there has not really been a significant increase in the number of USA requests, so is there a real problem here?

Ms Ireland: Yes, mainly because the number of requests to an extent is not directly relevant because it is impossible to speculate on how many requests there would have been if the old arrangements had continued. I think the right question to ask is do we have the right conditions in place for extradition and the right guarantees, and we heard from the judge about the case of Lotfi Raissi where obviously the new arrangements would have made a significant difference in his case. He was released after five months in custody; under the new arrangements he would probably be in the US now, so that is a sign that there are causes for concern.

Chairman: Thank you. Gary Streeter.

Q37 Mr Streeter: You have expressed concern about the USA and the fact that they no longer have to show a prima facie case for extradition requests. Are you really worried more about the USA than other countries which have to pass a similar test or non-test such as Albania? Are you sure you are not just engaging in classic anti-Americanism? Why are you so particularly concerned about the USA?

Ms Ireland: We are certainly not an organisation that is in the habit of engaging in anti-Americanism. Our position essentially is that for non-EU countries we regard a prima facie case requirement as essential. It is true to say that that requirement has been removed in relation to a number of countries which are members of the Council of Europe; there we are still concerned but they do at least have an element of international supervision at the European Court of Human Rights and, also, all are signatories to the sixth protocol to the European Convention on Human Rights which prohibits the death penalty.[1] So there are particular concerns, but our position would be that the prima facie case requirement should be retained in all part 2 countries. In relation particularly to the USA we know that there are particular concerns, firstly in relation to the death penalty. The treaty actually allows the Home Secretary to consent to the extradition of somebody when they could face the death penalty, it is an optional barrier to extradition, not a requirement that he refuses it. As a matter of domestic law, my understanding would be that he would not be able to consent to that, it would be unlawful, and it would certainly be contrary to the European Convention on Human Rights, but the Treaty does not enforce that directly. Secondly, the USA has shown in the past a disregard for judgments from international tribunals - for example the International Court of Justice - and that is not to say there are not other countries that do similarly. We feel that any breach of international obligations that might occur once someone is in the United States would not be effectively reviewable judicially, and that is a problem.

Q38 Mr Streeter: You are really saying then that you are more comfortable about someone being sent to Albania than the US of A.

Ms Ireland: In a way I think it is a pointless comparison because we think the requirement should be maintained, but we do recognise that where you have international obligations and international judicial review there are more safeguards, but obviously the review of the European Court of Human Rights is after the fact so it would not provide a sufficient safeguard.

Chairman: Could I just bring James Clappison in to ask a question?

Q39 Mr Clappison: On this very interesting point which Gary Streeter has asked about, can you say from your knowledge about the other countries which can request extradition without producing a prima facie case and which are not members of the EU? Is there any policy in the arrangement between them and this country? Do the same arrangements apply to them?

Ms Ireland: I am sorry, that would depend on individual, bilateral or multinational arrangements and it is not something I am expert in, I am afraid.[2]

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 ten 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.


 

Examination of Witnesses

 

Witnesses: Andy Burnham, a Member of the House, Parliamentary Under-Secretary of State, Home Office, examined.

Q54 Chairman: Thank you very much for joining us this afternoon. It is your first time in front of the Home Affairs Select Committee; indeed I believe it is your first time in front of any select committee so welcome, it is a thoroughly enjoyable experience.

Andy Burnham: So I have heard.

Q55 Chairman: Could I start, Minister, by looking at the run-up to the agreement of the Treaty with the USA and also its relationship with the Extradition Bill in 2003. Perhaps you could clarify something for us: when this Committee - and only one or two of the Members were on it at that time - was looking at the Extradition Bill in 2002, it was not told anything by the Home Office in relation to the USA, it simply said there was "a case for removing the prima facie evidential requirement in certain Commonwealth countries and bilateral treaty partners", and added that there were no current plans to negotiate bilateral extradition treaties with any new countries. Why, at that time, did the Government choose not to make it very clear that very active negotiations were underway with the USA to develop what is now described in your latest submission as "an entirely new treaty"?

Andy Burnham: Firstly, Chairman, thank you very much for your kind words of introduction. I will begin by saying that the review obviously laid out the basis on which further policies have been taken forward, the review of extradition, and as you said in your question that quite clearly flagged up that the Government would be seeking to renegotiate the Treaty with some of its key bilateral partners and, to further expand, at one point talked about key partners such as the United States. It would be our view, therefore, that that was a clear intention, flagged up from the very beginning, and I would also say the question was why do we have a different regime for partners such as Australia, Canada and the US when we have had a much more simplified regime with other signatories to the European Convention on extradition since 1991. That was the policy context in which the debate was taken forward and - obviously I was not in the Home Office at the time - I am led to believe that that was the assumption on which the debate was taking place, particularly the assumption on which that clear statement in the 2001 review was then taken.

Q56 Chairman: Do you think in retrospect that with the amount of attention that the Act and the Treaty have actually attracted it would have been better to have made it clear that a treaty was under active discussion with the USA? One of the things you have helpfully provided is the timeline - "September 2002 Home Office ministers in formal bilateral with US Attorney-General Ashcroft." There were quite senior level ministerial discussions taking place; do you think Parliament would have been assisted at the time had it been clear that there were such active discussions with the USA underway?

Andy Burnham: One of the things about this whole area is that it has been retrospectively interpreted to fit certain pictures that some people want to paint, and I would posit to the Committee that it is in no way perhaps as sinister as some have now claimed to say. The clear intention was there in the review and I would say, Chairman, that the chronology that we have put before the Committee shows the series of logical steps that then flowed from that review. I am no expert on the Ponsonby procedure by which bilateral treaties of this kind are negotiated but, as you will know, it has been longstanding practice in this country for bilateral treaties of this kind to be negotiated according to those principles. The timeline that has been set out is really entirely consistent with the review process, but also the requirements of the Ponsonby procedure which, as you know, is obviously a bilateral negotiation but subsequently the finished negotiated document being then laid before Parliament at that stage.

Q57 Chairman: You are obviously right about the danger of doing things with the benefit of hindsight, but it is quite interesting that there was almost no parliamentary discussion of the possibility of a US treaty in either of the Houses when this went through, even though the outcome was going to be a unilateral change in British law in relation to the USA with no reciprocal changes at all on their part. Had that been known by the Commons and the Lords at that time, and had they known that Ministers were discussing this directly with senior US officials and ministers and the equivalent, Parliament might have taken a much greater interest at that time.

Andy Burnham: It may and, as you say, it is with the benefit of hindsight; as you will know, Chairman, the Bill was subject to extensive consultation and discussion before it was introduced and Parliament of course had full opportunity to debate part 2 of the Bill, which it did, to discuss the direction of travel in this area, and I think I am correct in saying that it was your good self at Second Reading in the House which flagged up that this would be something that the Government would consider doing for established and trusted partners. Parliament was made, in my view, absolutely clear at the very start of the parliamentary process that this would be something that the Government was planning to do and was inviting comment on it. It was not, as it turns out, a controversial part of the parliamentary process; the controversy seemed to focus around part 1 of the Bill, around the European Arrest Warrant. I would say that Parliament had ample chance to consider the implications of part 2 but I would say that it should not have been controversial, these were arrangements that we had in place for a whole series of countries since 1991 without there being any groundswell to say that that was an inappropriate relationship to have with the Convention countries. Again, I would say it is partly retrospective. If I could perhaps come back to a point you made about unilaterally deciding to take some measures, I would not describe it as such and the Treaty that has been negotiated is obviously binding on both sides and it is only very recently that it has begun to be considered by the US Senate. There is now a process underway in the States with regard to the consideration of the Treaty, so I would not say in any way it is unilateral and what I would say is that the end result will be modern arrangements between the two countries that will be reciprocal and in both of our interests.

Chairman: Let us explore where we actually are at the moment. Mr Winnick.

Q58 Mr Winnick: We might, from what you have just said, Minister, have to ask the Chairman to be a witness before us.

Andy Burnham: He is welcome to come and join me here, Mr Winnick.

Mr Winnick: Perhaps not today.

Chairman: It would be fascinating to let you know how much I did know or did not know about the process that was going on at the time.

Q59 Mr Winnick: In private session we will decide. Minister, the Government has argued that the Treaty simply corrected an existing imbalance which meant that the threshold for extradition was higher from the UK than from the US. Is there any particular reason why we should feel particularly enthusiastic that extradition to the USA is now easier than it was previously?

Andy Burnham: Well, I think that does eventually come down to a question of personal judgment and people are entitled to make their own judgment about that.

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.

Q80 Mrs Cryer: That is right, yes, but even leaving aside the US Government's apparent lack of taste, is it not the case that opposition in America from civil liberties and Irish-American groups means that ratification is unlikely in the near future, if ever, and why should the US ratify the Treaty if they have got everything they want without ratifying it?

Andy Burnham: Well, as I say, extradition, I think, is built on trust and we have a relationship with the Americans built on many years that is in large part based on trust and I believe they will carry through what they said they will carry through. That was a treaty negotiated in good faith by two sides and I have no reason to believe that that is not what will happen. Just because we have done so more quickly, that does not mean that they will say, "Well, we've got what we want, so there is no process". Reading the transcripts of last week, there was a very clear statement from the officials who were giving evidence that they wanted to bring in the Treaty so that their relationship with us would be brought into line with the relationship they enjoy with other countries, so it was a very clear statement. Interestingly, having looked back at some of the history, I noticed that the 1972 Treaty, the last obviously major bilateral treaty between the US and the UK, entered into force in this country in 1977. I was only two at the time that that Treaty was negotiated, so I am no expert on that, but I would say that some delay would be normal following the conclusion of a treaty and some discussion politically on what had been negotiated. I think our timetable obviously was different by the fact that we had the review under way and the pressure to put in place a legislative framework to support the European arrest warrant.

Q81 Mrs Cryer: You are not anxious then that the next session of the Senate Foreign Relations Committee will be with non-governmental organisations which could include civil liberties and Irish-American groups which could be arguing quite vociferously against their ratification of the Treaty?

Andy Burnham: You are right to the extent that there is a different political argument about their side of the Treaty than there has been about ours here and some of it does relate to Northern Ireland and the situation around Irish terrorism. Obviously the situation has changed significantly, even since the new Treaty itself was signed, so I think that some of those changes obviously changed the climate in which that Treaty is being discussed. I have no reason to doubt at all that that Treaty will be brought into being. You rightly asked, "Well, what's in it for them?", and I think Mr Streeter was making the same point. Well, the temporary surrender provisions would be in their interests too, so that would mean that if somebody was held here in custody, they could be temporarily released and tried, according to the extradition procedures, in the States, and that would be a step forward for the US that they do not currently have at the moment, so there is something in it for them. There is a reason why they want to conclude the Treaty too. There will be a political discussion, as we are having here today, rightly so, in the Senate, and that is right and proper and you would expect nothing else, but if you are asking if I am confident that the Treaty will come into effect and will be incorporated into US law, then absolutely I am.

Q82 Steve McCabe: Minister, I was interested in what you said about the 1972 Treaty and I am glad you have been researching it because my question was going to be: how many other treaties are there where the Home Office is the principal department and where we have entered into this kind of agreement without the Treaty actually being ratified? Is this a common occurrence and can you quote any other examples or is this quite a unique state of affairs and, if so, why do you think that is?

Andy Burnham: Well, I do not think that it is a unique state of affairs. If I could get perhaps one message over to the Committee today, it is that I do not accept the premise that there is any "special deal" or "special relationship" on offer here for the United States. The provisions that we have with them are broadly within an extradition framework that ----

Q83 Steve McCabe: But are there other examples? That is what I am asking you.

Andy Burnham: Yes, there are obviously other examples of bilateral treaties that the Government has with other countries.

Q84 Steve McCabe: And which have not been ratified by one of the partners? That is the point.

Andy Burnham: I probably would have to come back to you with the detail on that.[5] I mentioned a moment or two ago that we did not have precise reciprocity from other key Commonwealth partners and I have since had a note saying that New Zealand had in fact lowered their evidential requirement for us, but I would be happy to come back to you on that.

Q85 Chairman: Perhaps you could write to us and also so that we have the details of the non-European Convention Part II group of countries and whether there is reciprocity and what form as that would be very helpful.

Andy Burnham: Sure.[6]

Q86 Chairman: Can I move you on now. In a recent case, which we cannot go into details of because it is sub judice, the judge expressed some concern that the case looked as though it could be prosecutable in this country. When is it justified for somebody to be extradited to the USA when they have committed a crime here and it would be possible for the prosecuting authorities here to mount a prosecution?

Andy Burnham: Well, I think you are right to say that this issue does touch on some live cases that are currently ----

Q87 Chairman: There is a matter of principle. Is it ever acceptable to extradite somebody to another country to face trial when they could be prosecuted for the same offence in this country?

Andy Burnham: I think it goes back to the reasons why the review in 2001 was brought forward which were respecting the fact that, whereas in the past a crime perhaps happened clearly in one particular country, the nature of crime had changed and that the Internet and other things had changed the nature of crime so that there was not the clarity about the place of commission that perhaps there once was. I think if you look back to the then Home Secretary's introduction to that review, that was clearly laid out. Now, I do not want to say a great deal more, Chairman, because this issue, as you know, is being tested at the moment other than to say that it should be a matter for the prosecuting authorities at any time as to whether they make a charge and then bring forward information to justify and to back up that charge. That is not a question, in my view, for politicians; it is ultimately a question for the prosecuting authorities to decide whether there is a case to be answered.

Q88 Chairman: I can quite understand why you do not want to get into areas that you feel might be sub judice, but the issue of principle has been raised with us by evidence from others that the Act itself says that the citizens and residents can be extradited in respect of crime alleged to have been committed substantially in the UK. I think we all accept the international crime argument is a basis for better extradition treaties, but what I am not clear on is what the Government's policy is in general terms. If a crime has substantially been committed in the UK, is it in general terms the Government's preference to see that prosecuted in this country or is it a matter of almost first come, first served so that if another state, not necessarily the USA, but another Part II country, puts in an extradition request straightaway, they will get first shot at it?

Andy Burnham: I think you are touching on an issue which I think is not a legislative change that has brought this issue into sharp focus, but it is the nature of some of the offences that are now prevalent in a way that they were not 20 years ago. As I understand it, there would be no substantive difference if some more recent cases were brought under the 1989 Act. It is not the fact that ----

Q89 Chairman: I am trying to get to the Government's policy. Putting it in pretty commonsense terms, if I steal 1 million and I steal 950,000 of it here and 50,000 somewhere else, I would still expect the prosecuting authorities to prosecute here rather than extradite me somewhere else for the 50,000. Equally, if I steal the equivalent of 950,000 in America and only 50,000 here, it seems to me, from a personal point of view, I do not know what the law is, it would be quite reasonable to say, "You go to the USA", because that is where the major offence was committed. Does the Government actually have a view in general on whether such offences should be prosecuted by preference in a place where the substantial part of the crime took place?

Andy Burnham: I understand the point you are making and I fully see the way in which you put it, but I would argue, and maybe you would too, that it is never quite as clear-cut as 950,000 here and 50,000 there. That is not the reality that often comes before the prosecuting authorities. I think that the responsibility on government is to have in place a set of procedures whereby the independent prosecuting authorities can have their claims and the cases they bring forward tested in court. Now, that is the situation that the Extradition Act 2003 allows for. I do not think it is for us to get into a situation whereby we are grading a case as to how much or what percentage came here or there. That is not something properly that is a matter for us. The matter for us is to say that if an extradition request is made, it is properly considered and tested and that the individual who is the subject of it has the ability to contest that. Ultimately, it is a question for the prosecuting authorities in whatever country to bring forward their case on the back of the evidence they have.

Q90 Chairman: And if the circumstance is that there is no argument about the evidence that is available and the British prosecuting authorities look at it and say, "That is not prosecutable", and there is another jurisdiction, and let's take it away from the USA to another country, where another prosecuting authority says, "We will have a go at prosecuting that", and puts an extradition request in, does it worry you that somebody could be extradited for prosecution overseas and our own prosecuting authorities have looked at the issue and decided not to prosecute?

Andy Burnham: I will say, Chairman, that I would not want to comment too much more directly on this issue because it does go directly to issues that are currently being considered in court. What I would say is that it is properly the duty of the prosecuting authorities here or in another country to consider the evidence in the case that they believe they have at any given point and it may appear different in a different country than it may appear here. I would say that it is not a clear-cut, black-and-white picture as to where the majority crime took place and I think that is the issue.

Chairman: Okay, I will not pursue it any further than that. That was very helpful.

Q91 Mr Winnick: You said earlier, Minister, in so many words at least that we should have respect for the American legal process. Coming to the crux of the matter regarding Guantanamo Bay, would the Government be prepared to see anyone extradited to the United States from Britain that would end up there, end up in Guantanamo Bay?

Andy Burnham: The short answer to your question is no and I do not believe it would be permissible or even legal under the Extradition Act 2003.

Q92 Mr Winnick: So the Government would have to be completely satisfied by the United States authority, in writing presumably, that the person being extradited would not in fact end up in Guantanamo Bay?

Andy Burnham: I think that is absolutely right, although if there was a suggestion that that was what was going to happen, it would be for the judge considering the extradition request to consider that and it would be for the individual, I would guess, using the reference to the European Convention on Human Rights, as it is specifically referred to in the Act, to make a case before the judge that that would infringe their right to a fair trial. I think if it had been established that that was the intention, I think the Act would make that illegal.

Q93 Mr Winnick: There was a case in May in Bow Street, which, as I understand it, is not sub judice at this very moment in time, where the judge decided that the person should not be extradited because there was a clear danger that he would end up in Guantanamo Bay, and you are aware of that case, so presumably the decision of the judge, if we can now speak in general terms, would be the same as the Government's?

Andy Burnham: Well, it is for the judge of course to use the Act which Parliament has given to him or her. It is not for me to say whether the judge has made the right decision. The judge has to consider the evidence and the particular case before the court and obviously it may be claimed that the person would go back to Guantanamo Bay, but I would expect that if that was a claim that had been made, an attempt would be made to verify that fact with the American authorities. I think that would be the proper thing that would be done. If it was established that that was the intention, then, as I say, I would think it would almost certainly fall foul of the provisions in the Bill, if it was established that was the intention, but I have to say that you mentioned a case and I am personally not aware of any case where the intention was to remove to Guantanamo Bay.

Q94 Mr Winnick: Well, there was such a case, but I will not mention the case for obvious reasons. If it was the situation where someone was extradited from Britain, after all the processes had been involved, to the United States and once in the United States that person was to end up over a period of time, not immediately, in Guantanamo Bay, would you consider that a breach of faith by the American authorities?

Andy Burnham: Well, I think every case would have to be, as I say, considered on the circumstances of the case. If, as I say, somebody went from here to stand trial on charges that were then verified by the British court as being a valid extradition request, I do not believe it would be right or acceptable that that person would go into indefinite detention without a legal process. I am quite categorically saying that I do not believe that that would be right.

Q95 Mr Winnick: And the British Government would object very strongly if that was the position, I assume.

Andy Burnham: As I say, every case would have to be considered on a case-by-case basis.

Q96 Mr Winnick: Why every case? If a person is being extradited to face the legal process in the United States and if it so happened that that individual was to end up in Guantanamo Bay, it is not a question of every individual case, but it is a clear-cut case, so presumably, without wishing to put words into your mouth, Minister, it would be the position of the United States that there has been a breach of faith?

Andy Burnham: I am glad you are not going to put words into my mouth, but what I am saying is that we could not directly surrender to Guantanamo Bay. That could not be done. If we were to surrender to the US, it would be back to the United States and, as I have said, if it was the confirmed intention that the individual was to go then from the US onwards to Guantanamo Bay without standing trial, I can speak personally and say that, as long as I am Minister in this particular job, we would not find that acceptable and that assurances would be sought that that would not take place before surrender was made.

Q97 Chairman: Would that apply to the use of Article 18 of the Treaty, that if someone had been extradited, you are no longer required to waive the rule of specialty?

Andy Burnham: If someone had been surrendered to ----

Q98 Chairman: To the USA and then a request came in for a new offence, you have the right, the Secretary of State has the right under Article 18 to agree to allow the person to be charged under that offence, not the one for which he has been extradited.

Andy Burnham: That is correct.

Q99 Mr Malik: It has been quite a thorough examination thus far and David has kindly stolen most of my questions. I understand the responses that you gave to some of the questions from the Chairman, Minister, but there is this issue about public confidence in the judicial system in this country. I will not go into any case that is currently being looked at and will steer away from that. In terms of general principle, where logic would dictate there is a primary interest for prosecuting in this country yet the authorities in this country are failing to prosecute, does that not suggest that actually the CPS test has failed both in terms of public interest and in terms of the evidential test? If an extradition request then comes in in that particular case, that suggests one of two things, either that the UK authorities are not doing their job properly and that they are being irresponsible and/or soft, or there is a likelihood that because an overseas government has got a lower threshold there might be a miscarriage of justice elsewhere. Does that not concern you, the issue of public confidence?

Andy Burnham: It does, and the issue of public confidence in extradition, not just in respect of legal systems, is an issue, as is public confidence in extradition generally. I have to be honest and say that some of the comment which has been made about the changes which were made in the 2003 Act, and actually some of the retrospective comment which has re-interpreted the Act and the reasons why we did it in the light of more recent events, does concern me, and I think it has been misleading in some ways. I would certainly say that. On the issue you mention, about, let's say, natural forum and where an offence is meant to have predominantly taken place, I have indicated to the Chairman that I am not keen to be drawn too much further, not for evasiveness or not wanting to address the Committee's concerns, but it is being considered in the courts at this moment in time, and with the Act being a new Act it is subject to a certain amount of initial probing and case law will develop on the back of the new Act. If I can go back to the 2003 Act, that created the framework by which these requests could take place and it created a framework whereby prosecuting authorities in the different countries can take a view based on the evidence they have and based on conduct that happens in their country. As the Chairman has said, I do not believe it is ever as clear-cut to say 95 in one and 5 in another, and obviously - without wanting to stray too much - there are only a small amount of actions which could have been more serious and there are so many different things which could be considered when an issue involving international crime arises, and I think it is proper that the court takes a considered view. The point really at the end of the day is, if an extradition request is made, is it a valid extradition request according to the principles which Parliament has laid down in the 2003 Act, and that really at the end of the day should be the consideration. I think inaccurate and misleading comment has been made on the Act and the intentions putting the Act in place which quite simply were not the motivation behind the original Bill, now Act. I think some confusion has crept in retrospectively which was not there when Parliament debated it in the first place.

Q100 Mrs Dean: The European Convention on Extradition says the state may refuse extradition for an offence committed in whole or in part in its territory. Why is there not a similar provision in the Treaty?

Andy Burnham: You are right to say that is an article in the Treaty, but I think I am right in saying it was not something which was incorporated in the 1989 legislation. Obviously that was under a previous government and I do not know the reasons why they decided not to do that, but that provision from the Treaty was not incorporated and therefore has not been a premise on which our extradition system has been based. I do not think we have operated or felt the need to incorporate that particular provision, and the same is true of the 2003 Act.

Q101 Mrs Dean: Does it seem right to you that we should have that included in our convention with European countries and yet not have that provision in the treaty with the US and other countries?

Andy Burnham: I am not wanting to stray - and I probably have strayed - and get too deep into this particular issue. Again, I would refer the Committee back to the review, and the starting place for the review was having arrangements for extradition which were sufficiently fleet of foot and able to cope with crime and the nature of crime as it has been changing over the last 20 years, possibly particularly more markedly since electronic and internet avenues of communication have seriously opened up. That was one of the key things behind the review and the idea that crossing the border did not mean you could effectively evade the full force of the law. That was the thinking. As I have said, the premise was not there in our previous legislation and I do not think the idea was to get into a thing where people are trying to prove how much per cent and what per cent and where, that is not the purpose of the legislation. The purpose of the legislation is to enable the proper extradition request to be made and for it to be validated for the UK courts and then the individuals have the ability to challenge that request through the UK legal system, and that is the regime which Parliament has put in place.

Q102 Mrs Dean: Does not the wide variety of jurisdictions in the US arising from differences in the law in individual states mean in the case of alleged fraud British businessmen might be extradited to a state they have never visited?

Andy Burnham: Again, I do not want to sound evasive, but I do not want to make direct comment on cases which are currently being considered. I will say that I think, again, people need to take a judgment on whether they believe the relationship we have as laid out in the Extradition Act is appropriate for the nature of our relationship with the United States of America. I am entirely satisfied it is. We have no closer relationship with any country in the world - okay, some may say we have different relationships there. Is it appropriate therefore to have a similar relationship, as we do for example without getting the figures right, for 48 or 49 countries where is not a special relationship, but because of the history of our two countries there is more traffic between the two countries because of the cultural similarities and the same language. In conclusion, I would say that I do have faith in the American legal system to respect the principles we have negotiated through the bilateral Treaty and subsequently laid out in the 2003 Act. Nothing gives me concern that, if extradited, people will not be able to have a fair trial or will not have proper access to legal representation; I am fully satisfied on those points.

Q103 Mrs Dean: Looking at the retrospectivity of the law, under English law making anti-competitive agreements has only been an imprisonable offence since 2002 but this was an imprisonable offence in the USA before that date. Does that not mean that British citizens could be imprisoned in the US for something they could not be imprisoned for in the UK?

Andy Burnham: No, the dual criminality test is an important part of our extradition system. Again I do not want to be drawn into individual cases, if there is an individual case you are thinking of there, but that is a cornerstone, a very important part, of the system. As I mentioned to Mr Herbert before, it is impossible to be precisely reciprocal and say, "That equals that" because it is exactly the same. Offences differ from country to country. What you have to get to is a position where there is broad similarity and offences are broadly comparable between the two countries. I think that is the way the extradition system has to work; it has to work on the basis that you do not have an exact mirror image in every country in the world of our legal system. You are faced with different legal systems with different offences and it has to work within those realities but, within that, to do so as flexibly as possible.

Q104 Chairman: Earlier we were talking about how you speeded up the process, are you sure that the lengthy period of time it used to take was actually due to court delays and not the amount of time it used to take the Home Office to get the paperwork ready for the courts?

Andy Burnham: Unless, Chairman, you know something I do not from your time in the Department ----

Q105 Chairman: Maybe I did know what was going on!

Andy Burnham: Having looked myself - and you will know the Prime Minister made a commitment back in the summer particularly with regard to terrorism cases to take out some of what we would see as the inordinate length of time to bring a case to conclusion - at some of the reasons for that, I am satisfied myself much of it is due to court adjournments. So rather than issues being dealt with on the day, an adjournment is made and delay creeps into the case where really if court time was used more effectively they would not be necessary. So court adjournments and court delays are part of the problem. I am not saying that is the fault of the courts, by the way, it might be the two sides represented have brought further representations on the day which have needed an adjournment. Equally, we have to look at our resources within the Home Office and we have to pursue cases as expeditiously as we can.

Chairman: Minister, thank you very much indeed. I hope you have found it a reasonably enjoyable experience. We are very grateful for your assistance. Thank you very much indeed.

 



[1] Note by witness: There are a number of reservations, declarations etc. to the Protocol, which has been amended by the Eleventh Protocol. All Council of Europe states have signed the protocol; Russia is the only one not to have ratified it.

[2] Note by witness: A number of the Part 2 states designated as not having to provide a prima facie case are signatories to the European Convention on Extradition.

[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.

[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.

[5] Note by witness: No other extradition treaties are unratified by the other partner.

[6] Note by witness: The Extradition Act 2003 was passed to modernise the way in which extradition requests to the UK are handled to keep pace with modern mobility and crimes. Many of our bi-lateral treaties are very old, some dating back to the 19th Century; the European Convention on Extradition is nearly 50 years old, the Commonwealth Scheme on the Rendition of Fugitive Offenders nearly 40 years old. Hence there are bound to be instances of our domestic law being more streamlined than the relevant international arrangement. Other countries may be in a similar position, such as New Zealand, which is willing to back a UK warrant in place of extradition, relaxing considerably what is required by the Commonwealth Scheme.