Examination of Witnesses (Questions 28-59)
Q28 Chair: Thank
you very much for coming, Mr Russell, Ms Blackstock, Ms Chakrabarti.
You've heard the Committee's exchange with Mr Blunkett and I think
that we have some questions to you. You don't all have to answer
every single question, but if you do I'd be most grateful if you
could be as brief as possible. We are very keen to find differences
between all of your organisations, rather than necessarily agreement,
simply because I think we would like to get as balanced a picture
If I could start by asking: why do people keep maintaining
that the extradition treaty benefits US citizens more than British
citizens? Mr Russell?
Jago Russell: I
think because they smell a rat. You don't need to look very hard
at the treaty to see that there's a safeguard in that treaty that
exists if there is an extradition from the United States but doesn't
exist the other way round, and that, quite rightly, strikes a
chord with the British public and seems to be unjust. If there
is a safeguard that the United States demands for people being
extradited from that country, then they should expect that other
countries might feel fit to demand the same safeguard the other
Q29 Chair: Ms Blackstock?
I should say my experience is in the European Arrest Warrant,
largely over the US-UK extradition treaty arrangements. But I
think it is right to say that our concern largely rests on the
forum issue, more than anything, in relation to the fact that
there was this amendment that has rightly been pointed out by
Ms Blackwood. Without that, there is a real possibility that offences
that are occurring in this country are still at risk of being
sent back to the US under the treaty arrangements, where we would
certainly consider that they ought not to be. But there are real
human rights implications that I'm sure Liberty can speak to you
on better than I can.
Q30 Chair: Yes,
we will come on to the European Arrest Warrant slightly later.
Ms Chakrabarti, is it unfair? Does a US citizen get more out of
this than a British citizen? Is it unbalanced?
It is unbalanced but, of course, it's not just about reciprocity,
because we don't want a race to the bottom. The Americans have
it right. They have a protection that their people should have
and our people should have as well, which is, in my view, that
no one should be taken to another jurisdictionwhatever
that jurisdiction is, even if they have a wonderful trial systemwithout
a prima facie case being shown in a local court. Because even
if you get a wonderful trial elsewhere in Europe or on the other
side of the world, being taken from your home, your job and your
community, possibly to another language, whatever it is, is a
punishment in itself. We are people, not robots.
Q31 Chair: Do
you think the Act should be repealed or do you think that there
ought to be changes made to it?
To some extent that is a matter of drafting, but there needs to
be a fundamental change. I want to say, at the outset, that I
do support the idea of extradition and I do have some sympathy
with Mr Blunkett. I listened to his evidence carefully. I've been
a student of home affairs for many years, and years ago it was
a very convoluted system. It was particularly convoluted because
there were roles ascribed both to politicians and to the courts,
and there was inevitable ping-pong between the two. Whenever you
give the Home Secretary or other politicians lots of discretion,
inevitably there can be judicial review of the exercise of that
I think the mistake was to squeeze out the discretion
of the courts. I think it would be better to take politicians
out of something that is essentially a legal process, but give
sufficient discretion to the courts so that, first, nobody goes
anywhere without a prima facie case; secondly, no one goes anywhere
if the offence alleged would not be an offence here in Britain;
and thirdly, leave the courts the discretion to refuse to extradite
in cases, such as Gary McKinnon's, where justice would be better
served by dealing with him here at home.
Q32 Chair: Mr
Russell, what is surprising is that when Alan Johnson, as Home
Secretary, was asked by Members of this House, including members
of this Committee when he came to give evidence, about intervening
in these cases, he was very clear that the ability of a Home Secretary
to intervene was very limited. We hear this morningthanks
to WikiLeaksthat Prime Minister Brown had had a meeting
with the American ambassador pleading Gary McKinnon's case. Is
this a surprise to you that this was going on?
Jago Russell: No,
it's not a surprise to me. In fact, I am delighted to hear that
that has happened. What has happened, as Shami has rightly explained,
is that many of the safeguards that you need for a fair and effective
extradition treaty have been squeezed out of this Extradition
Act and, as a result, the courts don't have the necessary discretion
to prevent extraditions where the result would be injustice. Where
that happens, frankly, you cannot sacrifice an individual to the
principle that this should all be dealt with by the courts. You
can't sacrifice an individual like Gary McKinnon or Gary Mann,
which Blunkett referred to, to that constitutional issue. So,
I'm not surprised. I know that there are many cases in which this
is the way that diplomacy works, in which individual cases that
are considered to be unjust are sought to be dealt with at a diplomatic
level. They should be dealt with
Q33 Chair: Why
do we need to change the Act? If, at the end of the day, an ambassador
can be called to see a Prime Ministerand indeed Mr Cameron
raised this with President Obama the last time they metsurely
we should just leave the Act as it is and allow this inherent
ability of Prime Ministers and Home Secretaries to make representations.
Why should we change it?
Jago Russell: I
think there is a very simple, practical reason. If you look at
the number of extradition requests that the UK is dealing with
every year, it would simply be impossible. There were 1,000 arrests
just under the European Arrest Warrant scheme in 2009-10. You
couldn't realistically expect the Home Secretary or diplomatic
services to get interested and to make representations on all
of those cases. But there is also a constitutional issue. Ideally,
the court should have the discretion to deliver justice in individual
casesto hear both sides of the story, to consider the evidence
and to make a public and reasoned judgment. The problem we have
now is that they simply don't have the powers and are not using
the powers that they have in order to do that.
Q34 Lorraine Fullbrook:
You will have heard my position. Frankly, I'm astounded that the
US-UK extradition treaty was signed in its state at the time.
There is currently a review ordered by the Home Secretary. In
your view, what amendments would you like to see in that review,
so that we can move forward? I know what my views are, which is
really about the prima facie evidence. Across the board, what
amendments would you like to see out of the review?
As I have said, in principle I think that no one should go to
another jurisdiction, whether within Europe, to the United States
or anywhere, without those three factors: prima facie case, dual
criminality and this ability of the courts to say justice would
be better served in the particular case here at home. In relation
to the United States, that can all be dealt with by bilateral
negotiation. It's not an EU issue. Frankly, even before you renegotiate
the treaty with the United States, you can deal with the third
pointthe Gary McKinnon pointwhich is forum. It is
possible even under the existing treaty with the United States
to put that little bit of mercy back into the system so a court
can say, "The facts of this case relate largely to activity
in the UK, whether on the internet or otherwise, and this case
can be dealt with here." So that forum amendmentI
think Ms Blackwood mentioned the amendment from 2006could
be activated immediately. There's no requirement to renegotiate
the treaty. That could happen tomorrow to help some future cases.
It's not perfect but it's a start.
Q35 Lorraine Fullbrook:
I agree entirely, if I could ask the other two witnesses, please?
As I say, the caveat still applies: it's not my area of expertise.
I would certainly agree, the same issues that Shami has raised
there are important. I think it is right to acknowledge that there
are safeguards within the treaty as it exists, and to scrap that
treaty and start again would be unnecessary. Most of it does work
in practice, in terms of the safeguards that are therefor
example, things like ensuring identification of the right suspect.
We still need to have a reasonable suspicion in this country under
the treaty arrangements. And, indeed, taking the treaty with the
Extradition Act, the two together work well, save for the elements
that have been identified.
Q36 Lorraine Fullbrook:
Of course, reasonable suspicion isn't the same as probable cause
or prima facie evidence.
It's not the same as prima facie evidence, in that you would expect
a court here, in any other category 2 case, to be able to look
at the evidence that is going to be put before a court in another
country upon which to try that person. Of course, reasonable suspicion
goes to whether there is an offence in the first place that can
even be prosecuted.
Jago Russell: On
this reciprocity point, it's not just an issue of principle; it
is also a practical issue. In fact, former District Judge Workman
recently gave evidence to this Committee and said that in the
Lotfi Raissi case, it would not have been possible to have prevented
Lotfi Raissi's extradition to the United States under these new
Q37 Chair: For
those of us who don't have such long memories, briefly what was
Jago Russell: Lotfi
Raissi was wanted by the United States on suspicion of having
been involved in training people involved in 9/11. When the British
courts looked at that case, because there was a requirement to
provide basic evidence of guilt, the courts in the UK threw it
out and said, "We're not going to extradite him because there's
no evidence." So it's not just a principle issue. In practice,
it can and has made a difference. In terms of the amendments in
the review, for us at Fair Trials International the key issue
is whether or not this review is going to get to grips with the
issues around the European Arrest Warrant and, in particular,
whether the review will make recommendations for amendments that
are needed at European level to deliver a system that is just
Chair: We are coming to the European
Arrest Warrant very shortly.
Q38 Mr Burley:
The case of Learco Chindamo has been in the papers again recentlyas
you know, he murdered Philip Lawrenceand, as I understand
it, it is article 8 of the ECHR that is preventing him being sent
back to his homeland, despite being a known and highly dangerous
criminal, because he now has a settled life in the UK. Can you
understand the public's anger about this situation and do you
think it's time that we now amend the Extradition Act, so that
if you take away someone else's human rightsin particular
the most basic human right, the right to lifeyou forfeit
some of your own human rights?
I have to disagree with that interpretation of the judgment, which
I have read. That judgment was essentially, as Mr Blunkett suggested
earlier, about free movement within Europe. Article 8 was mentioned
in passing, but it is essentially a free movement within European
Leaving the law aside, as a matter of practice I
think in that case Mr Chindamo was a very small child when he
first came to Britain, so there is an issue there about whether
you're going to play nationality with perhaps a baby that came
or a toddler. My bottom line on thisand this is something
I would try and express better to the publicis that dangerous
criminals shouldn't be on the Eurostar. They should be in prison.
Then you can argue about which country should be keeping them
in prison, but that is the issue you should be debating. He doesn't
need to be on the Eurostar. If he has done what is alleged, then
no doubt he will be recalled to prison.
Jago Russell: I
haven't read the judgment but I agree with Shami's comments and
I have nothing to add.
Q39 Mr Winnick: To the
Director of Liberty, I wonderrecognising that those who
don't particularly like the Human Rights Act being incorporated
into British law may seize the opportunity of raising the question
of the person who murdered Philip Lawrencedo you recognise
not only the public feeling but, what is perhaps even more important,
the feeling of the widow and the way she feels the law has not
acted in any way to recognise the deep feeling? She has lost a
husband and her children a father. Many of us consider Philip
Lawrence in the same way we consider Stephen Lawrence. Both were
murdered and both were very brave people. I am just wondering
if there is some aspect of the law that would allow the person
I've mentioned to be extradited.
Just to be clear, this is not an extradition case. The argument
that was at large in this case was the question of deportation
rather than extradition. So this is whether the British Government
could deport this criminal, as opposed to whether another government
was requesting him to seek trial. There is a subtle but important
difference there. My heart goes out to Mrs Lawrence. I think she's
been appallingly treated, not just by the criminal but, frankly,
she has been misled to some extent by the media and I think maybe
Q40 Chair: In
what way was she misled?
I am now relying on my memory of the original eventsthe
original row a few years agoabout the fact that this man
would not be deported. I think she had been given some information
or suggestion that Mr Chindamo could be deported and then that
wasn't an option in the end. I also think, more recently, there
are suggestions she wasn't given sufficient information about
the time of release, where he might be living and very real human
Chair: Mr McCabe, here, looks very puzzled.
Q41 Steve McCabe:
I would just like to clarify. You said that he had been misled
by the mediathe media told her that he could be deported
and gave her that information or someone else. I didn't quite
Chair: Can we draw this to a close because
Mrs Lawrence isn't here. Mr Russell, do you have anything to add?
Jago Russell: No.
Q42 Mr Burley:
I think she has been dreadfully treated and I recall her being
berated by the Probation Service for not showing enough remorse
in public. I mean it's absolutely outrageous. I agree with you,
Shami, in terms of leaving the intricacies of the law to the side
for the minute. But, in terms of free movement, you mentioned
the Eurostar. Don't you think we have a right in this country
to say: first, we don't want to pay for this person to be in a
prison here because there is a cost there and, frankly, they should
be deported and some other taxpayers in their country of origin
should pay for that prison sentence; and secondly, if he has been
let out and then commits more crimes, that is further weight to
the argument to say he can be let out to commit more crimes in
the country of origin?
This is essentially a question about the European Union and the
bigger question about how much integration and how much free movement
you're going to have within the European Union. It has to be said,
in fairness, that you can, in exceptional cases, deport people
to other countries even within the European Union. I think what
happened in this particular case, as I recall, was, because the
man in question was very young when he first came to Britain,
it was not considered to be an appropriate case. But it was a
judicial decision. It was not considered, rightly or wrongly,
to be appropriate for deportation.
Chair: We will come on to the European
Arrest Warrant shortly. Ms Blackstock, do not worry, we have questions
for you. But before that Alun Michael has some questions.
Q43 Alun Michael:
Two questions, really. The first one isreturning to extraditionlooking
at it from the point of view of the UK victim, what victims want
is an issue put to bed quickly so that they can get on with their
lives, and justice delayed is justice denied, as we are always
told. So with all the caveats and concerns that the three of you
mentioned, isn't it important to speed up extradition in terms
of quicker justice for the victims of crime in the UK?
I think that speedy justice is important for everyonefor
defendants and for victimsbut I also believe that one can
have speedy justice that is also proper justice and is fair. My
basic proposition is that you can speed up extradition by avoiding
this constant interchange between political discretion and judicial
review by giving proper discretion back to the courts.
Q44 Alun Michael: Sure,
but I was asking you specifically, with all the caveats that I
understand you have, isn't that a good principle to pursue?
Yes, I think we can do fair extradition and speedy extradition.
I believe that's possible, yes.
Jago Russell: I
entirely agree with that. One of the interesting things that have
come up in a number of our cases is that you have very speedy
expedition, followed by very significant delays in another country
after a person has been extradited; so speedy extradition doesn't
necessarily mean speedy justice or speedy trials. We have one
client, Andrew Symeou, extradited last summer, who spent over
a year in Greece awaiting trial. Now, it was a relatively speedy
extradition, but the family of the man that died then still had
nowhere near receiving
Q45 Alun Michael:
Yes. But those, again, are about ways of improving the systemso
that there is fairness, there is balance, there is proportionalityrather
than about the principle of speeding up justice.
Jago Russell: I
am absolutely in favour of a fair and effective extradition system.
Chair: Steve McCabeon
the European Arrest Warrant, Ms Blackstock.
Q46 Steve McCabe:
Yes, maybe I can ask this to Ms Blackstock and to Mr Russell.
I wonder if you could just briefly tell us what changes your organisations
would like to see in the way the European Arrest Warrant operates?
The key problem with the European Arrest Warrant at the moment
is proportionality. There wasn't a proportionality test put into
the framework decision when it was originally passed. At the time
the focus was on the problem of terrorism and ensuring speedy
extradition. In a way that has worked; the extradition arrangements
now in the EU are extremely effective. There were 11,500 people
surrendered last year across 18 Member States. That is all very
positive if you consider the system to be a positive system in
The problem with that is there was insufficient scrutiny
of the differences that still exist between different Member States.
We assumedthe collective EUthat all of us were signed
up to the European Convention on Human Rights and that therefore
meant that our systems in relation to criminal matters were far
more similar than they are in practice. The proportionality is
the most important issue because it means that people are being
returned to other Member States for very minor offences, which
in this country we simply would not consider seeking surrender
Q47 Chair: You
have given us a figure of 11,000. Do you know how many warrants
we have issued? You said 11,000 were released.
I believe the figure last year was 91 from this country.
That is 11,500 across 18 Member States.
Q48 Chair: Because isn't
there concern about some countriesPoland for example.
Yes, 40% came from Poland.
Chair: Poland issued 5,000
European arrest warrants, including to a Mr Lewandouski,
who was arrested outside court last Wednesday, aged 24, having
lived in this country for six years, for a very minor offence
that occurred when he was a teenager. Is there misuse, therefore,
of this warrant?
Our argument certainly would be that there is misuse when you
look at it from our legal system, but the problem in Poland, as
has already been identified, is that if a matter is raised by
a victim or a complainant in a case, it must be prosecuted. It
must be followed forward under Polish law. That requires them
to seek an arrest warrant without an amendment to the framework
decision, asking them to consider necessity and proportionality.
That is the European concept. It comes from the European Court
We have seen it in cases under other civil areas
of EU law. It's an issue that has already been contemplated and,
as I understand it, agreed in relation to an investigation order
piece of legislation that is currently being discussed in Brussels
as a concept which can go into that instrument; which means, therefore,
that there isn't a problem in Poland with proportionality per
se. If it is to be imposed from the EU down, it's something that
they can attempt to grapple with. I have spoken with colleagues
in the Polish representation in Brussels who have said that they
appreciate the problem. They have to charter these planes and
carry people acrossit's costly for them as well. But their
law simply at the moment prevents them doing otherwise.
Q49 Chair: So
the warrant does need to be looked at and it does need to be altered?
Absolutely, and all Member States are in agreement with that.
There is a working party that has reviewed this. There are recommendations
that the JHA Council has agreed.
Chair: Indeed. Mr Michael has a question
on this very point.
Q50 Alun Michael:
Yes, it is on the two issues: the proportionality and the human
rights considerations. Clearly, it seems in relation to proportionality
there is a requirement for an amendment of the European rule or
the framework decision under which that applies. Is that your
view, rather than bilateral arguments about what proportionality
means? Secondly, on the human rights consideration, at the end
of the dayI can appreciate the difficulties at the momentdoes
that come down to a change in the framework decision or does it
come down eventually to judgments that will be made by the European
Court of Human Rights?
Chair: If I can have brief
Jago Russell: Absolutely.
On proportionality, it's possible that you could create a proportionality
safeguard in this country. Germany has done it; it has not yet
been challenged. Ideally that's something that you do at European
level. There are some things you can do purely domestically. You
can put a forum requirement in easily. You can get British citizens
serving sentences imposed by other courts in the UK rather than,
as at present, extraditing them and then a few months later sending
them back again to a British prison. You can do things around
making the existing theoretical human right safeguard in the extradition
treaty more effective.
What happens at the moment is that the British courts
are effectively hiding behind this idea of mutual recognitionthat
we have to trust all other justice systems in Europe to do justiceand
they're not getting to grips with the fact that many of these
cases raise serious human rights concerns. So that is something
that we could do domestically. There are things we have to deal
with working with the rest of Europe, if we're to have a fair
Q51 Chair: Ms Chakrabarti,
do you think that is right? Should we amend this European Arrest
Warrant? Has it gone too far?
I agree that we should do what we can with what we have, but that
is not enough. I think that Jago Russell and I agree that, as
with the United States, we need fundamental reform, and we need
those three elements back in what will still be a speedy and effective
system: prima facie case, dual criminality and forum.
Chair: Mr Michael, did you have anything
Alun Michael: No, that's fine, Chair.
Chair: Lorraine Fullbrook has a quick
supplementary, then Nicola Blackwood.
Q52 Lorraine Fullbrook:
Thank you. It's just to follow on from Mr McCabe asking what changes
you would like to see. What is your position on the Schengen Information
System on the European Arrest Warrant alerts? Do you think that
that should be as reliable and effective for the removal of those
alerts as it is for the alerts to be made in the first place?
Jago Russell: There
are a couple of very interesting points on that. One is the fact
that sometimes mistakes are made and they're not picked up until
somebody has been subjected to a European Arrest Warrant. That
certainly needs dealing with. Then there is this other difficult
point that we need to grapple with, which is the fact that if
a court in one country says, "No, I will not extradite somebody
to another Member State. It would be unjust to do so," there
is currently no way whatsoever to get that extradition warrant
removed. And so in a Europe that is meant to have free movement,
you have people who are unable to leave the United Kingdom. We've
had cases like this where people's lives have been torn apart
because they're not able to visit elderly relatives in Spain,
because France has issued an arrest warrant against them and France
is refusing to remove it, despite the fact the British courts
have said extradition would be completely unjust.
Q53 Lorraine Fullbrook:
Do you think that should be done at the European level?
Jago Russell: It
has to be.
Well, it has been. It has been. There is a convention with that
very element in it for judicial scrutiny. You can bring a case
under the convention in one Member State to remove the alert,
but nobody has implemented it domestically. That is the frustration
with many conventions at an EU level.
Q54 Nicola Blackwood:
We have been talking a lot about principles of justice. I have
a couple of quite practical questions. Do you think that the EAW
or the US-UK treaty is having a more significant impact on UK
citizens and which one of those do you think is going to present
the most challenges to bring into place the changes that you have
Jago Russell: I
suspect the European Arrest Warrant will create significant challenges.
We have to get 27 Member States to agree to amendments to put
some of these safeguards in place and that is going to require
a lot of concerted work. So I think that raises some significant
challenges but, as we've said, there are certainly things that
can be done and should be done straightaway, or as quickly as
possible, to incorporate safeguards in UK legislation that don't
require EU negotiation. So these things have to go in tandem,
but let's sort our own Extradition Act out in the first place.
You have to do both. This is a shrinking interconnected world.
There should be co-operation between States. There should be effective
extradition, no question about that. But people also need protections
in return. They're sitting at their computers or they're going
on holidays, everything that they should be doing, and they're
very vulnerable to abuses of power at the moment.
Chair: Thank you.
Q55 Mr Winnick:
To Liberty, if I may. I asked the former Home Secretary if he
felt that the treaty was one-sided. Would that be your view, that
it is one-sided?
It is one-sided but, as he said, it is one-sided because there
are constitutional protections for American people that I think
there should be for residents of Britain, too. So it's not about,
"Let's make it even-handed by a race to the bottom and no
one gets protection." Let's take the American example and
put prima facie case back in to the protections for our people,
Q56 Mr Winnick:
You were in the room when the Chair asked Mr Blunkett if he would
sign the treaty again. You heard his response. What is your response
to what he said?
I think that a lot of good things happen to former Home Secretaries.
When former Home Secretaries don't have to drink the water of
the Home Office anymore and they get to reflect, you do see some
reflection and humility and I think we did hear a significant
degree of that from Mr Blunkett who was honest about things that
he wouldn't do again. We have all learnt from the experience of
the treaty that was signed and from the European Arrest Warrant,
both of which were passedfor laudable reasons I should
sayafter 9/11. But let us all learn from the experience
and put a little justice back in the system.
Chair: A bit of humility? A bit of reflection?
Jago Russell: I
think that is absolutely right and I'm delighted that we've also
had from Mr Blunkett some humility and reflection on individual
casesGary Mann's case, which he expressed some sympathy
about. At one point Mr Blunkett was demanding that Gary Mann be
nailed in the British courts. So I think there has been some humility.
Specifically on the European Arrest Warrant, I don't
think that any of the Member States of the European Union expected
that there would be 15,000 arrest warrants issued in 2009. It
was sold to the public of Europe as a way of dealing with serious
crime and terrorism, not as a way of dealing with people that
have gone over their overdraft limits or that have failed to pay
for a pudding and that's how it has been used.
Q57 Chair: Do
you think we could use the word "abuse" here?
Jago Russell: I
Chair: Or what word would we use? Frivolous?
Jago Russell: I
think the problem was that not enough thought was given to it.
It was rushed through, post 9/11, and they should have given more
thought to how it might be used in future. So I think "careless"
is what I would say, rather than "abuse" or "frivolous".
Q58 Mr Winnick:
So what would you like to happen now, if I could ask?
Chair: Sorry, just very briefly, I assume
you all want it changed do you?
Two points: emergency remedies in both systems; in particular,
forum. You can do that under the existing European system and
the existing bilateral arrangement with the US. And then fundamental
reform at the European level on the arrest warrant and of the
arrangement with the United States.
Chair: Ms Blackstock?
I absolutely agree. The framework decision has a forum article
in it, which other Member States have used and we haven't, and
that's incredibly important.
Chair: Mr Russell?
Jago Russell: I
think we need to look at what cases we have seen over the last
seven years; find out what has gone wrong and then work out how
to fix it. Some of the things you can fix domestically; some of
the things we need to work with the rest of Europe to fix.
Q59 Mark Reckless:
We used to have a protection where the Home Secretary could exercise
discretion to prevent someone being extradited. Wasn't the fundamental
driver of our losing that protection the refusal of the courts
to allow Ministers to exercise discretion conferred on them by
Jago Russell: That
was certainly one of the main reasons for the European Arrest
Warrant. The other one was the fact that many countries didn't
ever extradite their own citizens, so that was another major reason
behind the European Arrest Warrant. The problem is, however, that
we have got rid of political discretion to prevent unjust extradition,
but we haven't replaced that with judicial discretion to replace
unjust extradition. So at the moment there is no power to stop
an extradition that is fundamentally unjust and you need one or
the other. My view is, ideally, it should be a discretion for
Chair: Thank you, Ms Chakrabarti, Ms
Blackstock and Mr Russell. I'm sure that we will see you again
on future inquiries. Thank you very much for coming.