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Mr. Dominic Grieve (Beaconsfield) (Con): In the time available, I will try briefly to explain again to the Secretary of State why the motion is sensible. I am grateful to the right hon. Member for Leicester, East (Keith Vaz) for indicating his support for it.
I apologise to my hon. Friends who have made powerful contributions if I do not have time to dwell on each one at length. I am particularly grateful to my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes), who has so eloquently championed Mr. McKinnon's case.
Hon. Members of all parties accept that it is desirable for extradition to take place to maintain international justice. Some countries do not have it-apart from under the European arrest warrant, France will not extradite its own nationals-but we have never adhered to that principle, and we do not seek to advocate it.
In it is inevitable, given that extradition is a human process, that it may contain errors, it is for the Government, in setting out parameters, to try to ensure that those errors are minimised. In adopting the 2003 Act, the Government moved fundamentally away from the previous principle that there would be close scrutiny of each extradition application, from wherever it came. Before that, there was a need to show a prima facie case: the evidence had to be rehearsed in court and the Home Secretary also had administrative powers to prevent miscarriages of justice. I fully accept that, consequently, many extraditions took far too long, and the Home Secretary has my sympathy, because that was an intolerable situation that needed rectifying.
In adopting the 2003 Act, however, we have moved far too far in the opposite direction. We have extradition on reasonable suspicion, which is no more than a statement of fact, on which it is sufficient to ground an offence. That applies whether it is the United States or any other category 1 or 2 countries. In this country, if a reasonable suspicion is found not to exist, there is at least the remedy that the police officer who came upon the unfounded suspicion can be prosecuted for false arrest and malicious prosecution. No such protection exists once a person has been extradited. We effectively have to take it on trust that the reasonable suspicion exists
elsewhere. That is why, to make the precise point, I told the Home Secretary earlier that the problem goes way beyond the United States. In some ways, it is unfair to pillory the United States Government, who have simply taken advantage of the structures that we have put in place. Whether we are talking about that or, desirable as I am sure many of its consequences have been, the European arrest warrant, each has that underlying issue, which merits being revisited.
We then have to turn to the particular problems that appear to exist in our treaty with the United States and in how it is operated. The point has been made quite forcefully that true reciprocity in the US-UK treaty does not exist. In particular, it does not exist because of the differential standards. There may be good reasons why the Government had to go for those differential standards, but they cannot escape the fact that there are safeguards for a United States national being extradited to this country that do not exist in the opposite direction.
Secondly, we cannot escape the unfortunate fact, which has been touched on in these debates, that, although nobody would question its desire for fairness, to ensure that only the guilty are convicted, the United States criminal justice system has some onerous aspects to it. That is particularly true in relation to plea bargaining and the astonishing disparity of sentencing between those who have engaged in plea bargaining and those who have not. That gives rise to genuine fears that justice may not be done, because people may be coerced into pleading guilty because they are so frightened of the consequences on conviction, which, particularly for financial offences, most people on this side of the Atlantic would consider to be dramatically disproportionate to anything that would be inflicted in this country.
To take an example that does not concern extradition, Chantal McCorkle is a lady who received 24 years in prison, which was subsequently reduced to 18, for a fraud on a matter that, if it had come to the courts in this country, would have been unlikely to attract a sentence of more than three or four years in prison. The Government have a particular responsibility in that respect.
Then there is the fact that the United States prosecutors have been remarkably creative in interpreting the new regime that is in place to expand their jurisdiction. We have discussed and debated the issue of forum. That is because the United States prosecutors are now exercising an almost universal jurisdiction, particularly in the case of offences that may concern the internet, where messages frequently go through servers around the world. That enables them to extradite people to the United States for offences that one could argue were far more closely connected with this country, yet where no decision in this country has been made for prosecution or, indeed, where no complaint has even been made.
That must inevitably give rise to disquiet about the fact that under the new system individuals, where the prosecutors have decided in this country that there is no possible reason to proceed-and where, if they did proceed, those individuals would receive a rather light sentence-can be extradited to the United States, where they are likely to receive a sentence that is drastically and dramatically different from that which they would receive here. The Government cannot escape responsibility on that.
As an example, in the Morgan Crucible case, which involves my constituent Ian Norris, the United States has sought extradition for an offence and failed, because that offence does not constitute dual criminality, because it was not an offence at the time that it allegedly took place. However, the United States is still seeking extradition on the related matter of obstruction of justice, when, as the law currently stands, there appears to be no safeguard to ensure that, if a trial took place and he were convicted of that offence, he would not be sentenced for the original offence.
Mr. Heath: I am most grateful to the hon. and learned Gentleman for giving way, and I will be very brief. Is not another factor that we ought to take into account the fact that it was originally suggested that the current treaty was a response to terrorism cases? The right hon. Member for Rotherham (Mr. MacShane) pretended again that it dealt only with grave cases, but in fact it applies to any case for which the maximum sentence is 12 months' imprisonment. That includes a lot of cases that are not grave cases.
Mr. Grieve: I agree entirely with the hon. Gentleman. However, I rather ignored the remarks that the right hon. Member for Rotherham (Mr. MacShane) made, especially when he resorted to such cheap and revolting statements about autism as to induce in me a revulsion about what he was saying.
I simply say this to the Minister. Anxieties on this subject have been raised repeatedly in this House. That is not some cheap polemic: those of us who are friends of the United States wish to see a system in place that commands widespread acceptance. However, it really is time that the Government listened to the anxieties being expressed, particularly because mechanisms are available to address the problems. An example is a provision introduced in the other place by my noble Friend Lord Kingsland-whose passing is much regretted and lamented-and other noble Lords that would allow forum to be considered. This would provide considerable protection, but the Government have shown no inclination to put the provision on to the statute book, even though the mechanism now exists for that to happen. Furthermore, a review could undoubtedly take place that might not even require the renegotiation of the UK-US treaty, because I believe that our own national safeguards could be introduced without jeopardising it.
Those are the issues that the Minister needs to address, and I have set out the sensible points that a sensible Parliament ought to be debating. Simply coming to the Dispatch Box and having a rant about this being a cheap matter does not help, because the issue is not going to go away. Most people can apply their common sense to matters of criminality. They feel a revulsion against it and a desire that it should be stopped, but they also want to see fairness. I have to say to the Home Secretary that, at the moment, there is a strong perception that we have created a system that might, on occasion, be very unfair. It is our responsibility in this House to try to do something about that. I commend our motion to the House.
The Minister for Policing, Crime and Counter-Terrorism (Mr. David Hanson):
We have had an interesting and full debate this afternoon. It has been characterised by
some strong views being expressed about the position of the Extradition Act 2003 and the position of several individuals under that legislation. We have heard strong speeches from the right hon. Member for Suffolk, Coastal (Mr. Gummer), from the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and, helpfully, from my right hon. Friend the Member for Leicester, East (Keith Vaz), all of whom put forward arguments in support of the motion.
The judgment that my right hon. Friend the Home Secretary and I have had to make is whether we believe that the review of the Act requested in the Opposition motion is justified. The motion states that
"the Extradition Act 2003 is being undermined by a series of high profile cases that are jeopardising confidence in the system".
My right hon. Friend and I have made the judgment that we do not believe that to be the case, and I will try to illustrate our reasons for doing so. To support a review, we would have to say that we believed that public confidence was being jeopardised and that the Act was being undermined. As my right hon. Friend has said, we believe that the Act is operating in a fair and effective way, providing modernisation of the extradition treaty between ourselves and the United States, and undertaking a valuable function for our community.
The treaty came into force, following the Act, on 26 April 2007. It defines clearly the extradition offence by way of a sentence threshold of 12 months in both states, and organises extraditable offences as those that are punishable by a year or more in prison in both states. I say to the hon. Member for Somerton and Frome (Mr. Heath) that these measures were not devised by the Government following the events in New York on 11 September 2001. They were examined prior to those events as part of the modernisation of the treaty. Indeed, the US-UK extradition treaty was signed, subject to ratification, on 31 March. The text of the treaty was published and laid before Parliament under the Ponsonby rule, which allowed for an explanatory memorandum to be produced between 21 May and 30 June. The hon. Member for Eastleigh (Chris Huhne)-who I know cannot be here for the wind-up speeches today-said that we had used the royal prerogative, but he should note that no requests for a debate or for additional time for the Select Committee to consider matters were received at that time. That is why the treaty was ratified at that point.
Keith Vaz: The Home Secretary who signed the treaty at the time-my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett)-is on record as saying that we did not get the best deal from the Americans. Surely that must mean that it is time to review the Act.
Mr. Hanson: I have to say that I have not heard my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) say that. I believe that the treaty is an effective modernisation of this aspect of the relationship between the US and the UK.
The reason why we did that is quite simple-and I believe that the hon. and learned Member for Beaconsfield (Mr. Grieve) agrees that we need effective judicial
co-operation between the two countries to fight serious and organised crime, and terrorism. We need a treaty that is fair, balanced and effective, and I believe that we have one.
I do not believe that the suggestions that the treaty is in some way unfair or unbalanced are true. We have looked at the two judicial systems and, as the Home Secretary has said, we have examined the evidence test in both countries and-this relates to the point made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd)-reached the conclusion that we need to look at how judicial systems that are different can be brought together in the best possible way.
Mr. Hanson: With all due respect, my right hon. Friend has not been in his place for the debate, and I have only a short time in which to respond. In the interests of fairness, however, I will give way to him.
Mr. Field: I am grateful. Does the Minister accept that even those who will vote with the Government this evening are disturbed because many of our constituents feel that the relationship between us and the United States in respect of the operation of this treaty is unfair to people in this country?
Mr. Hanson: If my right hon. Friend had attended the debate, he would have heard the Home Secretary say strongly that we believe that we are trying, as far as we can with two different judicial systems, to ensure that we have parity.
"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".
Similarly, US prosecutors are required to demonstrate "reasonable suspicion" in the UK courts. As the Home Secretary said earlier, this has been defined in UK case law in the following terms: that the
"circumstances of the case should be such that a reasonable man acting without passion or prejudice would fairly have suspected the person of having committed the offence".
We have a number of key legislative safeguards in place. Identity, for example, is one. Extradition is barred if the judge is not satisfied on the balance of probabilities that the person before him is the person sought. Dual criminality provides another safeguard, as extradition is barred if dual criminality is not established. Evidence must be there, as I have outlined. Double jeopardy is another, as extradition is barred if the person has already been convicted or acquitted elsewhere. Other criteria include injustice due to ill health or passage of time; injustice due to domestic proceedings; specific legislation on the death penalty; and specific legislation on onward extradition from another state to another country. All those are real and proper safeguards.
I accept that the hon. Member for Enfield, Southgate (Mr. Burrowes) made a passionate case on behalf of his constituent, Gary McKinnon. The hon. Gentleman will know that I cannot comment in detail because judicial reviews are before the House, but it is important to put it on the record that so far, the US request has faced a
challenge by magistrates courts, the High Court, the House of Lords, and now the European Court of Human Rights in Strasbourg. Even now there are separate judicial reviews being undertaken. How much more does the process require? There are safeguards in place and opportunities to consider those matters. It is important to stress that the Home Office has not ignored Mr. McKinnon's medical condition. That has been considered in detail today by my noble Friend Lord West, who is dealing with these matters.
Mr. Hanson: The key to our discussion is that we believe that there are two judicial systems that are self-evidently different. Within that, we have tried to marry up together the evidential tests for the US Government and ourselves. As we have made clear, the extradition agreements with the US are, in my view, not only fair and balanced, but also ensure that we do what we are trying to do, which is bring individuals on both sides of the Atlantic to justice, when those matters are required to be examined before the courts.
The suggestion has been made that a number of high-profile extradition cases have been unbalanced and unfair. I cannot accept that. I believe that the evidence on these matters is important. At first glance, the Opposition motion may look relatively attractive and it might be thought that a review could easily be undertaken by my right hon. Friend. The evidence base for that review can be provided so that the hon. Member for Epsom and Ewell can understand it.
The motion refers to "jeopardising confidence", and says that the Extradition Act is "being undermined". Those are not presumptions that I wish to make. The Opposition's views are not shared by my right hon. Friend the Home Secretary and me, and I commend the Government amendment to the House.
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