Extradition - Home Affairs Committee Contents

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 as possible.

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 way round.


Q29 Chair: Ms Blackstock?

Jodie 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?

Shami Chakrabarti: 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 jurisdiction—whatever that jurisdiction is, even if they have a wonderful trial system—without 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?

Shami Chakrabarti: 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 discretion.

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 morning—thanks to WikiLeaks—that 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 Minister—and indeed Mr Cameron raised this with President Obama the last time they met—surely 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 cases—to 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?

Shami Chakrabarti: 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 point—the Gary McKinnon point—which 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 amendment—I think Ms Blackwood mentioned the amendment from 2006—could 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?

Jodie Blackstock: 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 there—for 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.

Jodie Blackstock: 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 arrangements.

Q37 Chair: For those of us who don't have such long memories, briefly what was that about?

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 and fair.

  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 recently—as you know, he murdered Philip Lawrence—and, 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 rights—in particular the most basic human right, the right to life—you forfeit some of your own human rights?

Shami Chakrabarti: 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 Union issue.

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 this—and this is something I would try and express better to the public—is 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 wonder—recognising 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 Lawrence—do 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.

Shami Chakrabarti: 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 by—

Q40 Chair: In what way was she misled?

Shami Chakrabarti: I am now relying on my memory of the original events—the original row a few years ago—about 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 concerns.

  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 media—the media told her that he could be deported and gave her that information or someone else. I didn't quite understand that.

  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?

Shami Chakrabarti: 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 is—returning to extradition—looking 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?

Shami Chakrabarti: I think that speedy justice is important for everyone—for defendants and for victims—but 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?

Shami Chakrabarti: 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 system—so that there is fairness, there is balance, there is proportionality—rather than about the principle of speeding up justice.

Jago Russell: I am absolutely in favour of a fair and effective extradition system.

Chair: Steve McCabe—on 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?

Jodie Blackstock: 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 general.

The problem with that is there was insufficient scrutiny of the differences that still exist between different Member States. We assumed—the collective EU—that 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 for.

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.

Jodie Blackstock: I believe the figure last year was 91 from this country.

  Chair: Ninety-one?

Jodie Blackstock: That is 11,500 across 18 Member States.

Q48 Chair: Because isn't there concern about some countries—Poland for example.

Jodie Blackstock: 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?

Jodie Blackstock: 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 of Justice.

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 across—it'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?

Jodie Blackstock: 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 day—I can appreciate the difficulties at the moment—does 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 answers, please.

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 recognition—that we have to trust all other justice systems in Europe to do justice—and 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 extradition system.

Q51 Chair: Ms Chakrabarti, do you think that is right? Should we amend this European Arrest Warrant? Has it gone too far?

Shami Chakrabarti: 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 else?

  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.

Jodie Blackstock: 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 all recommended?

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.

Shami Chakrabarti: 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?

Shami Chakrabarti: 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, too.

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?

Shami Chakrabarti: 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 passed—for laudable reasons I should say—after 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 cases—Gary 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 think that—

  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".

  Chair: Careless.

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?

Shami Chakrabarti: 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?

Jodie 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 Parliament?

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 the courts.

  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.

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