Examination of Witnesses (Questions 79-102)
Q79 Chair: This
is a session of the Committee's inquiry into the way in which
extradition processes work. We have at the dais today Gareth Peirce
and Ashfaq Ahmad. Mr Ahmad, your son is subject to extradition
and his case is in the public domain. Thank you very much for
the document that you circulated with its history, which has been
circulated to members of this Committee. So you can take it as
read that we understand the circumstances of the case.
What we are concerned about, Ms Peirce, is the process
and whether or not the current process, and the current treaty
with the United States, are fair and follow the due processes
of law. Is it your understanding that there are no plans to ensure
that any extraditions go ahead until the Government has completed
its review on extradition, which is currently the subject of a
review of by Lord Justice Scott Baker, or are the extraditions
currently in the pipeline going to go ahead?
Ms Peirce: Our
understanding is there will be no impediment to any current—
Mr Winnick: I wonder if
you could possibly speak up as if you were in court.
Ms Peirce: I am
sorry, yes. Our understanding is there is no impediment intended
to stand in the way of ongoing extraditions. I believe Mr Ahmad's
Member of Parliament, Sadiq Khan, has received that answer in
writing; that nothing will be regarded, as it is put, as "retrospective
application".
Q80 Mr Winnick: Mr Ahmad
himself has submitted a letter to us, which obviously you know
all about. He alleges that when he was first arrested, in December
2003, the UK police sent all the evidence seized in that operation—when
he wasn't to be charged—to the United States, which he says
formed the basis of the extradition case against him.
Ms Peirce: That's
entirely correct. Yes, it is.
Q81 Mr Winnick: Do you
support your client's submission?
Ms Peirce: Yes,
almost in its entirety, the US extradition case is based on the
evidence taken from his house, his workplace and through investigations
by the Metropolitan Police here.
Q82 Mr Winnick:
That is serious matter, is it not? If the evidence collected by
the police didn't lead to any charge against your client but nevertheless
that evidence, which was not the subject of a prosecution, was
sent to the United States, and all that followed, that is a serious
matter?
Ms Peirce: His
is not the only case. There are five cases I know about in detail
at the moment where that is precisely the same case. The evidence
was investigated here, collected here, and we say should be prosecuted
here, but instead was provided to the Americans.
Q83 Mr Winnick:
As his solicitor, is it your position that Mr Ahmad—if there
is any evidence of him being involved in illegal activity, criminal
activity—should be tried in the United Kingdom?
Ms Peirce: Indeed,
that is precisely what we have asked on his behalf throughout.
And in relation to the other cases similarly affected, those accused
persons have asked precisely the same; not that they escape prosecution
but that they be prosecuted here where the entirety of the evidence
was obtained.
Mr Winnick: Thank you
very much.
Q84 Nicola Blackwood:
We have heard a number of concerns presented to us about the UK's
current extradition arrangements, including in particular the
issue of forum, which I think would particularly affect this case.
What do you think are the main problems with the current arrangements
and what would you most like to see changed?
Ms Peirce: I think
instead of rather early assumptions that it isn't necessary to
investigate properly a prosecution here but rather to abandon
the attempt and pass it to the Americans, there needs to be a
far more rigorous analysis: is it possible to prosecute here?
Is it appropriate? Is this the place where justice would be properly
done? In a number of cases it is entirely obvious to see that
this is where the evidence is. This is the forum.
The additional aspect to that and the additional
consequences are: if the person were tried here he or she would
enjoy the safeguards of a fair trial here and the safeguards of
the European Convention. The reason why Mr Ahmad's case and others
have been very carefully considered by the European Court of Human
Rights, for nearly four years now—their cases have been
frozen—is because the prospect of a trial in America is
raising some extreme concerns, both in terms of prison conditions,
length of sentence and impact upon defendants. We say that all
of those obstacles, which in the end might lead the European Court
to forbid the UK to extradite to the US if those prospects are
correct, would be avoided if there were a trial here.
Q85 Nicola Blackwood:
But is the problem that UK legislation does not allow the judge
in the first instance to decide that the UK is the correct forum,
but instead this has to go through the ECHR?
Ms Peirce: It is
part of it. The ECHR won't in fact make a decision on forum. They
have already said that in an interim judgment on Mr Ahmad's case.
They said, "We can't decide forum. That is for the domestic
court, but we will take into consideration that these people could
have been prosecuted in the UK", and that affects the argument
on proportionality. In consequence, is it proportionate that they
risk a violation of article 3, prohibited treatment, if they are
sent to America?
Q86 Nicola Blackwood:
Do we need to change UK legislation, in order to make it more
straightforward for judges in the UK to decide that cases should
be tried in the UK? Is there a problem with the existing legislation?
Ms Peirce: There
is a problem with the legislation. Parliament debated this in
2006 and universally thought there should be a provision relating
to forum, but that has never been brought into being. It is sitting
there, a treaty between two Attorney-Generals, but it isn't being
brought into force by an order of Parliament.
Q87 Lorraine Fullbrook:
Do you believe that the Extradition Act of 2003 should be repealed?
Ms Peirce: I do,
for a range of reasons, but on that topic included, yes.
Q88 Lorraine Fullbrook:
In your professional capacity, do you agree with the principle
of extradition?
Ms Peirce: Of course.
The principle of extradition is not what is in question. It is
the misapplication of the concept. People properly prosecutable
here, where there is evidence, should not be sent so often, as
they are being, to another country, where 97% of people accused
plead guilty. They plead guilty because of the construct of pressures
upon them as to what lies ahead. That is a very different situation
from the one that we have here. So, for the cases I know about,
the primary question I would raise is: a much more rigorous look
at cases from the point of view of prosecution here and an appreciation
of the consequences if they are prosecuted in America instead.
Q89 Lorraine Fullbrook:
So you think we should go back to first base and rebuild an Act
that will allow for extradition, but in a just way?
Ms Peirce: Yes,
and no one would object to that. I understand that the first instance
judge in Mr Ahmad's case, Judge Workman, gave evidence to this
Committee in 2005, after he had ordered extradition, and said
he found this case extremely troubling: a British citizen who
could have been prosecuted here when all the evidence was here.
The transcript of his evidence might be available. That was five
years ago. The judge in his case made that comment, I believe.
Chair: We are seeking
to get evidence from Judge Workman. He is on our list of witnesses
so we will put these matters to him.
Ms Peirce: Yes.
He would have a huge resource because of his experience.
Q90 Mark Reckless:
To clarify, what do you hope will be achieved by the review of
extradition that the Home Secretary has announced?
Ms Peirce: I trust
the review, which may not report for some considerable time, would
look at all of these case studies rigorously and see if the people
could have been prosecuted here; would there have been any injustice
if they had not been prosecuted here; is part of the public interest
in this country prosecuting its own cases, so to speak?
Q91 Mark Reckless:
Would you support new statutory provisions that allowed for greater
discretion and, if so, should that discretion rest with judges,
or with Ministers, or potentially with both?
Ms Peirce: At the
apex of the prosecuting process is a Minister, in the sense that
the Attorney-General oversees the Director of Public Prosecutions
Department. On that aspect. I think both. I think a review of
the prosecuting process here and not having the Crown Prosecution
Service say, too easily, "We don't find evidence here",
and giving it to the Americans; insufficient looking at that,
and that is a matter for prosecutors and police.
Quite separately of course there is a role for a
judge to look at the concept of natural forum. That is entirely
appropriate; weighing the proportionality of being tried here
and the obstacles that face someone if tried elsewhere.
Ironically one of the men whose case had been considered
for a long time, and whose extradition was ordered, developed
cancer and ultimately the Home Secretary decided that he could
not be extradited. But immediately that decision had been made,
we received a letter from the Crown Prosecution Service saying,
"We are statutorily obliged, now that extradition has stopped,
to consider the question of prosecution here". It seemed
entirely backwards; why not do it at the beginning?
Q92 Chair: Mr
Ahmad, you have been sitting very patiently here. Of course Members
of the Committee will also want to ask you questions, but if I
can ask you: this has been going on for you and your family for
the last six years. Is that right?
Mr Ahmad: That's
correct, yes.
Q93 Chair: How
often do you get to see your son?
Mr Ahmad: First
of all, I would like to thank you all for inviting me to give
my opinion. It has been terrible for us to live with this, in
that Babar has been in the prison without trial—without
charge—for 6½ years, and I think that is British history.
It has never happened before. We have to go a long way from home
to see him. I am 76 years old, and I and my wife have to travel
and we spend the whole day there, going there, coming back. We
are so tired and mentally exhausted. Over the years, Babar too
has been totally devastated, totally—what would you call
it?—mentally upset, and it has affected his health.
Chair: Yes, we read your
statement, and thank you very much for preparing that for us.
Q94 Mr Winnick:
Mr Ahmad, you came to Britain in 1963?
Mr Ahmad: That's
correct, yes.
Q95 Mr Winnick:
Could you tell us what employment you were involved in?
Mr Ahmad: I was
working for Her Majesty's Overseas Development Administration
from 1973 to 1994, 21 years.
Q96 Mr Winnick:
Did the allegations made against your son being involved, if abroad,
in aspects of terrorism—although not on the Indian subcontinent—come
as a surprise to you?
Mr Ahmad: Yes,
they did actually, because I know my son and I know he was never
involved with any sort of activities and he was—as we have
brought up our children to be—a good law-abiding citizen.
Right from the beginning we told them what was right, what was
wrong, and we knew all along what he was doing, where he went,
who were his friends, and all that, so it did come as a surprise
when these allegations were made against him, yes.
Q97 Mr Winnick:
And your son maintains that the allegations against him are not
true?
Mr Ahmad: That
is correct, yes.
Q98 Alun Michael:
I would just like to clarify Ms Peirce's position. In the first
comment that you made, you appear to me to be saying that if a
case is prosecutable in this country, the question of extradition
simply should not arise, it should be prosecuted in this country.
But you then appear to argue, in effect, that the nature of pleas,
the pattern of pleas, in the American courts effectively casts
doubt on the nature of justice in the American courts. Are both
those parts of your position in respect of extradition?
Ms Peirce: They
are, yes, and the kinds of pressures—this is the reason
I raise it because they directly relate to Babar Ahmad and others—are
that before trial they would be held in complete isolation. This
is acknowledged.
Q99 Alun Michael:
Yes, but I am just trying to clarify these points of principle.
In other words, even if a case was not prosecutable in this country
you would oppose extradition?
Ms Peirce: I would
only oppose it if the arguments related to a breach of human rights,
so it would still be arguable. Indeed, if the person faced the
death penalty they couldn't be extradited, and the argument the
European Court is considering at the moment is: if they face life
without parole, or extreme isolation in a super maximum prison,
can we do it?
Q100 Alun Michael:
What I am getting at is: it is not simply the question of it being
prosecutable in this country that would lead to you objecting
to extradition?
Ms Peirce: I would
object if some of the consequences of extradition were to bite
in a particular case. They don't bite in all cases, and perhaps
that was a throwaway line to say, "97% of people plead",
but there is a differential in length of sentences in America.
There is a differential in conditions of imprisonment. But each
case we're arguing for here is one where there is evidence here,
obtained here, prosecutable here, so I apologise if it seemed
a contradiction.
Alun Michael: Sure, I
just wanted to understand. Yes. Thank you.
Q101 Chair: Do
you see many differences in terms of the process between what
you're doing and what the lawyers for Gary McKinnon have done?
Ms Peirce: No.
In fact, Mr McKinnon did apply to the European Court for an interim
freezing order the same as we had done. The European Court refused
that, I think because the ultimate consequences for him were not
so extreme. He wasn't facing isolation. He wasn't facing life
without parole; a much shorter sentence. So, ironically, he came
to the end of the road at a much earlier stage, and his arguments
relating to his health, and the predictions of those, have been
grappled with, with Ministers.
Q102 Chair: Yes.
But, in terms of the process, we have now had two Governments
involved in the McKinnon case: a Labour Government and a Conservative
Government. There seems to be no politics in it, in the sense
of party politics. It seems to be Ministers making decisions on
the treaty and the advice that they've been given, is that right?
Ms Peirce: Yes.
Chair: Ms Peirce, thank
you very much for coming in. Mr Ahmad, it's a new experience for
you. We are most grateful. Thank you very much for coming in to
give evidence to us today.
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