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Mr. Grieve:
A moment ago, the Secretary of State said that my suggestion that we should widen the examination to the 2003 Act was wrong, but he is now admitting that it is correct. Is not the point that ultimately everything, including the treaty and the European arrest warrant, is governed by the terms of the 2003 Act, and the 2003 Act is deficient? There is no point in blaming the United States, and we certainly do not seek to do so,
but the fact is that there are insufficient safeguards, and on top of that the treaty that was negotiated with the United States is more visibly deficient in terms of lack of proper reciprocity than any other agreement that we have entered into. That is why this debate is so relevant.
Alan Johnson: I am sorry, but I did not frame this motion; the Opposition did. I am just pointing out the disparities. Of course I want to talk about the 2003 Act and the UK-US treaty, because they are both important subjects in this debate. The hon. and learned Gentleman intervened on me to say that this is not just all about the US and the UK, but it is also about Europe. That is where this particular discussion comes from.
I disagree profoundly about there being an absence of any safeguards, but I shall come on to that shortly, and I certainly reject the suggestion that the extradition arrangements between the UK and the US, as set out in the 2003 Act and in the treaty, are somehow unbalanced. That argument has traditionally been made on the following basis. First, it is argued that the evidential requirement placed on US authorities seeking to extradite people from the UK is somehow less burdensome than the evidence that the UK is expected to produce to extradite people from the US.
Historically, all requests by countries to extradite people from the UK had to provide prima facie evidence. There are too many right hon. and hon. and learned Members present for me to have to explain this, but I will do so for the record: prima facie evidence is evidence that if taken at face value would be enough to convict someone. This was a much stronger requirement than some other nations demanded for UK extradition requests. The requirement was dropped for all EU member states, signatories to the 1957 European convention on extradition and other trusted international partners with mature judicial systems such as Canada, New Zealand and Australia. UK courts instead asked for "reasonable suspicion"-in other words, the same level of evidence required by the magistrates court to issue an arrest warrant in the UK.
Following the introduction of the 2003 Act, the relaxation of the evidence requirement was extended to cover other trusted extradition partners including, but not limited to, the US. That is hugely significant, because it means that the UK and the US now demand of each other essentially the same level of evidence. The imbalance was prior to the change, not after it.
Mr. Burrowes: Will the Secretary of State give way?
Alan Johnson: No, I will take an intervention later.
The US and the UK have different legal systems. I am sure that there are no hon. Members who think that we could put the two legal systems together and-hey presto!-get similar definitions. However, what we ask for in demonstrating reasonable suspicion is as follows: the
"circumstances of the case being such that a reasonable man"-
this language is not gender-friendly-
"acting without passion or prejudice would fairly have suspected the person of having committed the offence".
That is what we in this country apply.
The US asks in its legal terminology for "probable cause"-this dates back to the constitution, so it has
always been the case and was not developed as part of the treaty-which is defined as
"facts and circumstances which are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime".
Those two definitions are about as close as they can be in any two different legal systems.
Mr. Burrowes: The Home Secretary has been consistent in seeking to rebut the argument that there is imbalance and that the 2003 Act is lopsided, but does he accept the words of the Attorney-General, Baroness Scotland, during the passage of the 2003 Act? She explicitly said:
"when we make extradition requests to the United States we shall 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".-[ Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1063.]
She was clear that it is imbalanced; why is the Home Secretary not?
Alan Johnson: The advice that I am working on comes from the Attorney-General. She was, of course, absolutely right that it is a lower test than prima facie, as there is a lower test now for signatories to the European convention and for Australia, New Zealand and Canada. There is no argument to turn the clock back and to use that as a reason why we should review the 2003 Act.
Sir Menzies Campbell: The Home Secretary has not dealt with the point raised by the hon. Member for Enfield, Southgate (Mr. Burrowes). Does he accept that Baroness Scotland said this in the other place:
"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."?
That was her opinion then. Does he still understand it to be her opinion now?
Alan Johnson: I have pointed out the definition of these two terms in UK law and US law. I accept that I am not a lawyer or a barrister, but it seems to me that those two definitions are as close as we can get in two different systems.
Kate Hoey: The Home Secretary is a very down-to-earth, reasonable and sensible person with common sense. Does he not accept that, whatever he might want to say and whatever briefings he has been given about how simple this is and how similar these definitions are, the reality is that to the ordinary lay person, including the Attorney-General, they are not the same?
Alan Johnson: Flattery gets my hon. Friend everywhere; I will allow her to intervene at any time. The first point to make is that this is not the issue in one of the high-profile cases, namely that of Gary McKinnon-I shall come on to that. I am dealing with a specific point that was the issue in another high-profile case: that of the NatWest three, which I shall also come on to shortly. As I am not legally trained-I am not a lawyer or a barrister; I am a hack politician-I can only go by the advice that I receive from lawyers in the Attorney-General's Department as to what these two definitions mean. I think that I am digging myself into quite enough trouble with the legal profession.
Chris Huhne (Eastleigh) (LD): Given that the Home Secretary appears to have received different legal advice from that clearly stated in another place by a Government Law Officer, will he now place his new legal advice in the Library, so that we can all look at it?
Alan Johnson: My hon. Friend the Member for Wirral, West (Stephen Hesford) reminds me that this is even worse; Baroness Scotland was not a legal officer when she made that announcement, but a Home Office Minister.
It is assumed that the fact that more people have been extradited to the US from the UK than the other way round somehow indicates an imbalance-the hon. Member for Epsom and Ewell did not use that in his argument, but the most common argument used against the treaty deals first with reciprocity and secondly with that fact, rather than simply telling us that more people flee the US for the UK than the other way round. It is the case that between 2001 and 2008, about 30 people were extradited to the UK, compared with around 60 being extradited to the US. Since 2007, however, we have extradited more people from the US than vice versa, and many of the people extradited since the 2003 Act came into force have committed serious offences-those are the "low-profile cases" that I mentioned earlier.
Members of this House may recall the successful extradition from the US of Mark and Sean Gorman, who were wanted in this country for a savage hammer attack that left a man with permanent brain damage. They were apprehended in New York, subsequently extradited and are now serving seven years and five years respectively for their horrific crime. Another low-profile case was that of Calvin Berry, who was extradited from the US and jailed for 10 years for the manslaughter and robbery of a teenage girl. Hon. Members may also be interested to know that since 2004, 10 people have been extradited from the US on suspicion of murder, manslaughter or attempted murder, six have been extradited for sexual offences, including one case of gross indecency with a child, and two have been extradited for kidnap and child abduction. So there is no question of this being one-way traffic.
Let us move on to the high profile cases that the Opposition say are bringing the 2003 Act into disrepute. The motion, for understandable reasons, does not specifically mention which cases those are, but one of them, as we have discussed, must be that of the so-called NatWest three, whose extradition was vigorously opposed by many Opposition Members. That was despite the fact that there was "reasonable suspicion" of their involvement in a major case of fraud, which, in turn, played a role in the Enron scandal that deprived 21,000 people of their jobs and many more of their pensions and life savings.
I was at the Department of Trade and Industry at the time of the NatWest three marches and protests, so I recall that, as in the other current case to which I assume the motion refers, it was claimed that the NatWest three should be tried on British soil. The High Court was clear on this matter: the case had substantial connections with the United States and could properly be tried there. It was claimed by those campaigning against extradition that the NatWest three would be denied bail and would spend two years in a maximum-security prison-they were, in fact, granted bail and the trial was delayed only at their instigation. When it was
tried in November 2007, they pleaded guilty to fraud and were each sentenced to 37 months. Following short periods spent in US prisons, they are now serving the remainder of their sentences in the UK. I understand how the public become involved in high-profile cases, but it is difficult to understand how cases are not reported so accurately when they go from being high profile to low profile and how the actual experience of the NatWest three can be left completely out of the argument now raging about Gary McKinnon.
Sir Menzies Campbell: If the Home Secretary is interested in the experience of the NatWest three, who include Mr. Gary Mulgrew, he should consult his fellow Labour party member, Mrs. Trish Godman, who is an MSP and the mother of Mr. Mulgrew. I have kept in touch with her, as I did with Mr. Mulgrew during his imprisonment. She has made it clear, as indeed has he, that such was the nature of the prosecution and the implied threat behind it that he was compelled to accept a plea bargain-that is not unusual in the United States, where prosecutors traditionally load the prosecution in the hope of encouraging accused persons to try to do the best they can by offering a plea to a reduced charge. If the right hon. Gentleman is anxious to deal with that matter, he should be more aware of the circumstances before he seeks to draw inferences from it.
Alan Johnson: I am sorry, but I do not take it from that intervention that Mr. Mulgrew was innocent. I take things from the action of the courts and what has happened through the courts. Of course all kinds of people are involved emotionally in these incidents, but the majesty of the law must come above that. I am pointing out that for all the campaigning and hyperbole about the NatWest three, they were treated fairly in the American courts and were brought back to serve their sentences in the UK, so I can hardly see how the case brought the 2003 Act into disrepute-it might have brought a lot of other things into disrepute, but not the 2003 Act.
Joan Ryan (Enfield, North) (Lab): We rehearsed these debates endlessly at the time of the NatWest three extradition and it is right that the outcome of that case is on the record. What seemed to be missed time and again in those debates is the fact that this extradition treaty is about speedy justice and bringing people to justice. Ordinary lay people, to whom reference has been made, understand that that is the imperative.
Alan Johnson: That was a blast of common sense, which is not unusual from my right hon. Friend.
The second case that the motion no doubt refers to is ongoing and is subject to judicial review-I should say "reviews", because there are two-so I shall not comment on the detail, but I wish to set out clearly for the House and, in particular, for the benefit of my hon. Friend the Member for Vauxhall (Kate Hoey), how the process works. The 2003 Act places the vast majority of matters relating to extradition procedures in the hands of the judiciary and deliberately limits the role or influence that politicians or others could bring to bear on extradition cases. That is important and right, because it removes
the possibility that any extradition case could be influenced for political reasons or determined on the basis of prejudicial influences.
Mr. Grieve: Will the Home Secretary give way?
Alan Johnson: I am going to make progress. On the question of prosecution, as I made clear to the House, only the Director of Public Prosecutions can make such a decision, and that includes deciding in which country the prosecution should be brought. In practice, under the 2003 Act, the extradition process works as follows. First, the case for extradition is submitted to the Home Office by prosecutors from another country and is then referred to the magistrates court. The magistrates court must consider whether there are grounds for the issuing of an arrest warrant-and whether there are any "barriers", as they are termed, to it-which means that there must be reasonable suspicion that the subject in question has committed the offence. An arrest warrant is then issued to the police following that procedure, if no barriers were found-no barriers were found in the case of Gary McKinnon. The case is then heard in the magistrates court, and the court must decide whether or not there are any grounds that bar the extradition-for example, whether the individual in question has already been tried and cleared of the offence for which they are to be extradited, which is known as double jeopardy, or whether the extradition would be a breach of that person's human rights under human rights legislation, which Opposition Members seem to find so difficult at times.
Once the court is satisfied that there are no grounds that bar extradition, the case comes to the Home Office and the Home Secretary. The Home Secretary is then legally obliged to order that person's extradition, except in three specific circumstances set out in law: where it is possible that the person who is to be extradited could be sentenced to death if convicted; where there are inadequate arrangements in place in that country to prevent someone's being also charged with an offence that was committed prior to extradition and not included in the request that led to their extradition; and where the person who is to be extradited was previously extradited to the UK from another country and that country has not consented to any further extradition. If none of these circumstances apply, the Home Secretary must order extradition.
Chris Grayling: Will the Home Secretary explain to the House why three years ago, in primary legislation, this Government gave the Home Secretary greater powers to intervene in such matters, but-up to this time-the Government have not implemented the provisions of that legislation?
Alan Johnson: No, I cannot explain that at this point, but I am learning all the time, and I will find out about that bit of the jigsaw puzzle. I am talking about the 2003 Act as it stands and the specific case that has such a high profile at the moment. I am not seeking extra powers, because I think that it is right that people are judged on the facts under the law, not on whether they happen to be popular or a newspaper takes up their campaign. It is important that we ensure that all people are treated fairly before the law.
Mr. Burrowes:
The Home Secretary mentioned my constituent, Gary McKinnon. Is it not the case that the public loses confidence when the doors of No. 10 are flung open for petitions to be accepted and tears of
concern to be shed for his plight, but at the same time the Government and the Home Secretary have shut the door on considering his vulnerability-he has Asperger's syndrome-and the widespread concerns about his case? The Home Secretary has himself accepted the need for proper consideration when a significant part of an offence was committed in this country and where the interests of justice may be served best by the case being heard here-
Mr. Deputy Speaker: Order. Before the Home Secretary answers that question, I just say to the House that he has been on his feet for some 32 minutes. That is quite a long time, and he obviously has more to say. It is not his fault that he has been on his feet so long: it is because he has taken so many interventions, which obviously stimulate the debate and need to be made. I just hope that he is conscious of the time, because it is passing quickly and many hon. Members still seek to catch my eye.
Alan Johnson: I understand that the hon. Member for Enfield, Southgate (Mr. Burrowes) is intimately involved in his constituent's case, but I assure him that the safeguards are in the 2003 Act. I have no problem with campaigns, whether by newspapers or others, because that is a healthy part of our democracy, but we have to act in accordance with the law, which provides safeguards in this case. We have gone through the process whereby the magistrates court has decided that there are no reasons and has sent the case to the Home Secretary. I have three specific points to judge such cases on, none of which applied in this case.
The individual can then appeal against the decision of the magistrates court and the Home Secretary in the High Court. If their appeal fails, they can appeal it in the other place. If that fails, there is then a legal duty on the UK Government to extradite the individual within 28 days. But within that time, the person in question can also refer their case to the European Court of Human Rights, which will look at whether the extradition would breach that person's human rights. If the court rules that an extradition would not breach their rights, the UK is legally obliged to continue with the extradition. So there are safeguards at every single stage.
Following these failed appeals, only if powerful and compelling evidence comes to light that demonstrates clearly that the extradition would breach our obligations under the European convention on human rights-for example, a life-threatening illness-can the Home Secretary halt the extradition. In doing so, he or she must apply strict legal tests to determine whether the new information about the subject's mental or physical health would mean that their human rights would be breached should the extradition continue. If the case does not meet that test, they cannot halt the extradition, although their decision not to do so can be challenged in the courts.
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