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That this House expresses its very great concern that the Extradition Act 2003 is being undermined by a series of high profile cases that are jeopardising confidence in the extradition system; and calls on the Government to hold immediately a review of the Act with a view to reforming it at the earliest opportunity to deal with the issues of public concern.
I am grateful to you, Mr. Deputy Speaker, for clarifying Mr. Speaker's judgment in this matter. If it helps, let me give Members a brief background. The Gary McKinnon case has been extensively publicised in recent days, but it cannot currently be the subject of debate in this House, as you rightly say, because of the rules that apply on sub judice. The McKinnon case is currently subject to a further round of legal proceedings in the courts-proceedings that were taking place this morning and, as far as I am aware, are still taking place as we speak this afternoon. The House has strict rules about debating matters where legal proceedings are in train. Under a resolution of this House that was passed on 15 November 2001 on matters that are sub judice, we cannot discuss the case unless and until those proceedings are concluded.
However, the concerns that exist about our current extradition arrangements go much wider than simply the McKinnon case. The matter has been debated and issues have been raised for a number of years. As I think you will agree, Mr. Deputy Speaker, the McKinnon case has brought those issues back to the fore. That is why we have sought to use this time to allow Members in all parts of the House to discuss those concerns and to send a clear message to Ministers that we want the current situation to be reviewed. Such a review is vital to maintain the integrity of the extradition system, to make changes to ensure that it is fair and just, and to ensure that it enjoys public confidence.
There is no doubt that public confidence has been sorely lacking in the past few years. In several cases raised by hon. Members on behalf of constituents there has been a prima facie case for believing that justice was not being done. Current events make the case for a review all the more urgent. The motion that we will vote on at the end of this debate is therefore designed to underline the case for such a review. The motion does not seek to prescribe what changes should take place, even though many right hon. and hon. Members will have strong views about the detail. Neither does it seek to condemn the Government for their handling of our extradition system in recent years. The motion is simply designed to demonstrate that there is a will in Parliament for change. I hope that Members in all parts of the House will join me in the Lobby to send a message to Ministers about the need for change.
Extradition is a pretty trying process for a person to go through and it can take an immense psychological and physical toll. In the United Kingdom alone, the act of extracting someone from their home to stand trial and then serve a prison sentence will change their life for ever. To do that to someone and also send them to a foreign country with a different legal system is something that should be decided only in a process of the utmost rigour and scrutiny. That is why any system that is put in place to manage such a process must be subject to the most serious checks and balances on both sides of the arrangement. It is our fear on the Conservatives Benches-and, I suspect, among Members in all parts of the House-that the arrangements that are currently in place for extradition from the United Kingdom do not meet the criteria that we would expect on reciprocity and fairness.
Keith Vaz (Leicester, East) (Lab): The previous Home Secretary but one is on record as saying that when the agreement was signed, Britain did not get the best possible deal from the United States. The Opposition have put forward a very modest motion-it is a motion not to end extradition, but to review it. Does the hon. Gentleman not agree that that issue should form part of a review, to ensure that we get the possible deal for our citizens, even when we are dealing with allies and friends?
Chris Grayling: I absolutely agree with the right hon. Gentleman. The principle of reciprocity is particularly important, and I will return to it later in my remarks.
Sir Menzies Campbell (North-East Fife) (LD): The hon. Gentleman has now acknowledged that, in considering this matter, we should consider issues of principle. Would not a reasonable principle to take into account-a principle that might have formed part of his motion-be that the constitutional position of British citizens under the extradition treaty should be no less strong than the constitutional position of American citizens?
Chris Grayling: I absolutely agree with the right hon. and learned Gentleman. Indeed, if the Home Secretary will consider opening such a review, as I very much hope he will after today's debate, I believe strongly that the principle that the right hon. and learned Gentleman has just outlined should underpin it.
The right hon. and learned Gentleman referred to the United States. Our arrangements with the United States have most regularly been the subject of question and concern, although the issue also applies to our legal
relationships with other countries. I am not seeking to criticise the conduct of the United States or any other country-they are rightly looking after the interests of their citizens. Rather, it is this Parliament and our Government who make the rules surrounding extradition from the United Kingdom. The Extradition Act 2003 set the framework for those rules, but we are unconvinced that it is working in the way that we should expect.
We on the Conservative Benches have spent many an hour over the past few years pointing out some of the iniquities of the current arrangements, as have many outside this House, as well as Members from other parties here. Once again, the Government have constructed a piece of legislation that, although intended to do something useful and important, has managed to spread into a whole host of other areas. Frankly, we have seen that again and again-indeed, it is a trap that the Government have fallen into on many occasions.
Let us take the example of the Regulation of Investigatory Powers Act 2000. It was designed to address terrorism and serious crime, but it is now used by local councils to do a whole range of things for which it was not intended, such as spying on garden centres to see whether they are selling pot plants without planning permission for a change in use, or monitoring dog walkers with covert CCTV cameras. The law of unintended consequences has been all too present in the legislative processes of the past few years.
Andrew Mackinlay (Thurrock) (Lab): I hope that the shadow Home Secretary will not think that my point is merely one of semantics. We talk about the extradition treaty between the United States and the United Kingdom, but actually there is no such piece of legislation in the United Kingdom. These things are done under the royal prerogative. In contrast, the measures in question were endorsed in legislation in the United States Congress two and a half years after we promulgated our side of the so-called bargain. There has clearly been a disparity from the beginning. For two and a half years, we were implementing our part of the treaty, whereas the United States refused to do so. That is simply unfair. A previous Home Secretary, my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), ignored the fact that this Parliament's Foreign Affairs Select Committee protested time and again about the disparity and the inequality of application of the treaty.
Chris Grayling: The hon. Gentleman's comments speak for themselves, and he is absolutely right. This issue must be addressed.
Kate Hoey (Vauxhall) (Lab): Clearly, the concern that is felt in the House about the high-profile cases is also strongly felt in the country. Does the hon. Gentleman agree that it is the mark of a strong Government, rather than a weak one, to recognise that mistakes have sometimes been made? I hope that many of my colleagues will join others this afternoon in supporting this very sensible move to review an Act that is now falling into disrepute.
Chris Grayling:
I agree with the hon. Lady. In this place, it is very easy to believe that Governments either get it all wrong or get it all right. Actually, the truth is somewhere between those two extremes. They get things wrong, and they get things right, and she is absolutely
right to say that it is the mark of a strong Government to accept when they have got something wrong and to make changes.
Mr. John Gummer (Suffolk, Coastal) (Con): Given the fact that the motion has been phrased so as not to criticise the Government, did it not surprise my hon. Friend that they did not find it possible simply to accept it? Instead, they have tabled a portentous and pretentious amendment which suggests that the world is a better place because they are always perfect. Why do this Government find it impossible ever to say sorry about anything?
Chris Grayling: My right hon. Friend is absolutely right. The House would be grateful to the Home Secretary if he withdrew his amendment, accepted the principle of the motion and agreed to look again at the arrangements.
There are three big problems with the current arrangements. The first relates to the people who are being extradited. We have long argued that the Extradition Act 2003 has resulted in a situation whereby the people who get caught up in the system and who are being extradited are not those whom the Government said the legislation was designed to target. We were originally told that the legislation represented a move to address the international security situation after the horrendous incidents of 2001. However, the House of Commons Library has assembled an analysis of the people who have been requested for extradition by the United States. They include 20 people requested for drugs offences, 18 for fraud, two for satellite signal theft, three for theft and just one who was involved in a terrorist case.
These issues are not just about our relationship with the United States. The 2003 Act also enacted the arrangements that exist with other countries, particularly the European arrest warrant. It is another example of a measure that was introduced when security was top of the agenda. It was designed to enable the swift transfer between one country and another of terrorist suspects, but it has subsequently developed mission creep, and in so doing, it has undermined civil liberties.
Mr. David Burrowes (Enfield, Southgate) (Con): Is it not also noteworthy that, in the list of offences that my hon. Friend just gave to the House, there was no mention of computer hacking? Other serious computer hacking offences have been dealt with by our own courts, leading in some cases to custodial sentences. Crucially, justice has been seen to be done in this country.
Chris Grayling: My hon. Friend makes an important point, and I will come back to that issue, because another key question is where we should implement justice when a case involves multiple jurisdictions.
British citizens can be extradited to other parts of Europe for a range of extraordinarily ill-defined offences that might not even constitute a crime here or in many other European countries. There have already been examples of the European arrest warrant being used in a way that most of us would feel was inconsistent with the original principles discussed at the time of its introduction. The rapid move to strengthen extradition arrangements in the first part of this decade was clearly designed to combat the terror threat, but those new arrangements should not be allowed to become a quick
and convenient way of bypassing what would have been the due process for other forms of charge and alleged offence.
The second big problem with the present arrangements involves the way in which we appear to be sub-contracting justice to other countries in cases in which there appears to be a competing jurisdiction. This goes back to the point that my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) made a moment ago. There is a strong case for arguing that the courts should have a statutory duty to consider issues of what is called forum-in other words, the question of which country has the most appropriate claim to prosecute-and that this country should not sub-contract difficult prosecutions to other countries.
This problem is going to arise again and again in cases involving cybercrime in particular-my hon. Friend has just mentioned computer hacking-not only in the Gary McKinnon case but in a whole variety of others around the world. I remind the House of the recent case of the two Swedish men who were prosecuted in their own country for piracy offences, but whose crimes had clearly crossed jurisdictions around the world. The provisions of the law in this country should be much clearer about when a case should or should not be tried in the United Kingdom. There are clear legal precedents for this: British people charged with crimes that were allegedly committed in the United Kingdom but which electronically targeted organisations in other countries have been brought before the courts in the United Kingdom.
Let us take as an example the case of Aaron Caffrey, a young British man suffering from Asperger's syndrome, who was blamed for causing the biggest systems crash ever to hit the United States. During a two-week trial at Southwark Crown court in 2003, Caffrey was accused of launching an electronic attack in 2001 on America's busiest port at Houston, Texas. The jury cleared him of any wrongdoing after accepting his claim that unknown computer users had hijacked his machine, using it as a Trojan horse to stage the attack. His case was tried in this country, and he was found not guilty. He was not extradited to the United States.
Then there was Richard Pryce, a man said to have been
"doing more harm than the KGB"
"No. 1 threat to US security".
Pryce, working from his bedroom with two £750 computers to help him with exams, hacked into systems at NASA and at US air bases. From there, he explored systems in south-east Asia, causing chaos when he invaded the computer of a Korean atomic research institute. At the time, the Americans were in the midst of delicate negotiations with the North Koreans, and they were terrified because the break-in appeared to originate from a US air base. In 1997, Bow street magistrates fined the 19-year-old £1,200 after he admitted 12 offences that his lawyer described as a "schoolboy prank".
There was also the case of Andrew Harvey and Jordan Bradley, who were part of an Anglo-American hacking group that set out to cause worldwide chaos by infiltrating home computers. The US security services
and the FBI co-ordinated raids on the homes of the group's members, including those of Harvey in County Durham and Bradley in Darlington. At Newcastle Crown court in 2005, Harvey, aged 24, was jailed for two months, and Bradley, aged 22, for three months when they admitted conspiracy to cause unauthorised modification of computers with intent.
In all those instances, the crimes were tried in the United Kingdom and extradition was not required. It is important to state that I am not commenting on the verdicts or on the circumstances of those cases; I am simply underlining that Britain has in the past been willing and able to try people in the United Kingdom when there are issues of conflicting jurisdictions, and I believe that our extradition arrangements should reflect that.
The Police and Justice Act 2006 incorporated provisions to insert an appropriate forum requirement into the Extradition Act 2003. However, the Government have refused to activate it. It provides that if extradition is not in the interests of justice, it can be barred, and that a decision not to prosecute in the UK may be a relevant factor. My hon. Friend the Member for Hornchurch (James Brokenshire) sought to activate this provision while the current Policing and Crime Bill was being considered in this House, but his efforts were talked out.
The late, and sadly lamented, Lord Kingsland and my noble Friend Baroness Hanham tabled an amendment to the Policing and Crime Bill that would affect the Police and Justice Act 2006. The amendment would provide that paragraphs 4 and 5 of schedule 13 should come into force on the day on which the Policing and Crime Act 2009 is passed. In the light of this debate, and of the issues that lie behind it, perhaps Labour Members in another place might wish to consider carefully whether to join us in trying to redress this imbalance.
The third big problem relates to the imbalances that exist-despite what the Government claim in their amendment-in the current extradition arrangements. As hon. Members have pointed out, there is an inherent unfairness relating to the evidence that needs to be presented to begin an extradition. Countries that are classified for the purposes of the 2003 Act as category 2 countries can be given an additional designation, enabling them to dispense with the requirement to provide prima facie evidence with their extradition requests. A territory in the enhanced category 2 status need only provide "information" rather than "evidence" to satisfy tests for the issuing of warrants. Under section 84 of the Act, the United States need only provide
"evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of any information against him".
That is pretty weak anyway, but this provision is not reciprocal; there is an imbalance in the evidential requirements for extradition between the US and the UK.
Even members of the Government accepted that the extradition arrangements were unfair. When these issues were debated in Standing Committee, the right hon. Member for Don Valley (Caroline Flint) gave a candid assessment of arrangements:
"If the second order designating category 2 territories is approved, the United States will no longer be required to supply prima facie evidence to accompany its extradition requests to the United Kingdom...In contrast, when we make extradition requests to the
United States, we will need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. Under the terms of its constitution the USA cannot set its evidential standard any lower than 'probable cause'...I do not see why we should impose a more stringent test on the USA. Nor do I see why the absence of complete reciprocity affects the issue."-[ Official Report, Third Standing Committee on Delegated Legislation , 15 December 2003; c. 7.]
Well, I think that the right hon. Lady was wrong then, that the Government have been wrong about this issue, and that it is essential to address it. Her candid observations will provide little comfort to those who will suffer because of the different levels of evidence required. It is this issue that, I suspect more than most, underpins many of the cases that Members of all parties have brought forward when their constituents have found themselves caught up in a system that they rightly think is unfair and risks causing some real injustices.
There have been practical examples, as in the case of Alex Stone, who was extradited to the US because he was accused of injuring the child of a woman whom he had met online. Yet once he had been extradited, the original charges against him were dropped. His lawyer commented at the time:
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