Examination of Witness (Questions 103-127)
Q103 Chair: Mr
Knowles, thank you for giving evidence.
Mr Knowles: Not
at all.
Chair: You are regarded
as one of the country's leading extradition counsel. If one of
us is about to be extradited we presumably would try and come
to you.
Mr Knowles: Thank
you very much.
Chair: What we are very
interested in is process rather than individual cases. We know
the cases you have dealt with, the Pinochet case and others. What
do you think is wrong with the current extradition process?
Mr Knowles: There
are a number of faults with the Extradition Act 2003: it was passed
very hurriedly; it was passed for bad reasons; it is too elaborate;
it is too complicated; it removed what I always viewed as the
most essential safety net of extradition, which was the involvement
of the Home Secretary at the beginning and the end of the process;
it was based on a false premise, so far as the European arrest
warrant was concerned, namely that we should have trust and confidence,
free partners, criminal justice systems and just not question
them at all. Also, the idea that the European Convention on Human
Rights provided sufficient safeguards, in and of itself, was another
false and wrong assumption. The European Convention doesn't provide
adequate protection. It's a net that has very large holes in it
and the Extradition Act 2003 removed the safeguard that used to
exist of a narrow net that prevented injustice.
Q104 Chair: We
will come to all of those matters in a second. In terms of the
cases you have dealt with, were they offences committed in this
country or were they extraterrestrial—territorial? They
clearly weren't extraterrestrial. Extraterritorial.
Mr Knowles: I have
dealt with a whole range of cases and there are some cases, yes,
that have a UK component. Typically they are conspiracy cases
where you have people in different jurisdictions—sometimes
in the UK—taking part in crime but also crimes that have
taken place entirely abroad.
Q105 Chair: Of
course you were defending General Pinochet?
Mr Knowles: Yes.
Chair: There were obviously
very serious allegations made against him.
Mr Knowles: Yes.
Q106 Chair: Do
they all relate to serious crimes in respect of a crime committed
in this country?
Mr Knowles: Yes.
Chair: Every single one
of them?
Mr Knowles: Yes.
There are minimum punishability criteria that have to be satisfied
before you even get past first base for extradition. In theory,
the crime has to carry a sentence of imprisonment of a year or
more, or three years or more, depending on the precise circumstances.
So the cases I have dealt with are the more serious ones. However,
colleagues of mine have dealt with cases that, although they are
cases of theft, they are theft of trivial amounts of money or
trivial objects—I'm sure you've heard the stories; theft
of piglets and cupboard doors—which have engaged the extradition
process here because the process has to be engaged.
Q107 Chair: Were
any related to the internet or e-commerce?
Mr Knowles: I have
certainly had internet and e-commerce cases. The internet cases
have been primarily computer hacking cases, not in the McKinnon
scenario but typically people who hack into credit card companies
and steal data and then transfer it abroad. There are a lot of
cases like that.
Q108 Mr Clappison:
You mentioned the European arrest warrant. Could you tell us a
little bit more about it? What have been the problems?
Mr Knowles: The
European arrest warrant was enacted in 2002 as the result of a
European framework decision. It operates on the basis that each
EU country should unquestionably accept the rulings and judgments
of other European Union countries, without lifting the lid and
looking at whether they are right or wrong, taken in good or bad
faith. So it operates on that presumption.
The problems with this are manifest. There are too
few protections for individuals. The trust and confidence that
we're supposed to have is not borne out by practical experience.
In 2002 the EU was much smaller than it is now. We obviously have
a lot of eastern European countries and 15 years ago some of their
systems were Soviet criminal justice systems, for all intents
and purposes. They are not yet geared up. So, for example, in
Poland once a crime has been investigated and a warrant issued,
there is no power to stop the case. So that is why we have hundreds
and hundreds and hundreds of Polish arrest warrants clogging up
the courts, clogging up the CPS, because there is no mechanism
for stopping them.
One of the things the Extradition Act 2003 did was
to remove the power in the Home Secretary to kick out an extradition
request as soon as it came in, on the grounds that it was too
trivial. So these requests, these warrants, come over under the
AW scheme; they're stamped by the police, effectively, if the
right person signed them, and the whole court system, the whole
court machinery, then has to start and there is no way of stopping
it.
Q109 Mr Clappison:
How many of them would you say are trivial? Are there a number
of them that are trivial?
Mr Knowles: There
is a huge number. Among extradition practitioners we keep an unofficial
log book of our favourite trivial cases. It is a crime in the
Czech Republic not to be very nice to your cell mate, and a request
was sent over for a chap who had been in prison in the Czech Republic
who had—I don't know—made his cell mate do his washing
or something, and that had to be dealt with here.
Chair: Sorry, what was
the crime?
Mr Knowles: It
is oppressing your cell mate in prison, for want of a better translation.
We've had theft of piglets; we've had theft of cupboard doors;
we've had theft of trivial amounts of money. I prosecuted a Polish
case, which was a very small scale insurance fraud where somebody
had arranged a car crash and £50 was the fraud on the insurance
company. These cases are being dealt with week in, week out, and
are just an unintended consequence of the AW system.
Q110 Mr Clappison:
We are always told court time is very valuable in this country,
so one imagines this is—you use the expression "clogging
it up"—costing the British taxpayer a great deal of
money.
Mr Knowles: Absolutely.
As well as the police time, because remember every extradition
has to be dealt with by a dedicated unit at Scotland Yard. So
Scotland Yard has to travel wherever in the country the person
is to arrest them—so you have the costs of that—back
to London, obviously incarceration. The CPS have had to employ
whole rafts of lawyers just to deal with AW cases, which never
used to happen. Obviously legal aid is generally available for
these people. You have the costs very often of remands in custody
because, typically, they are of no fixed abode so they don't get
bail. So, each of these cases will cost the taxpayer thousands
and thousands of pounds.
Q111 Mr Clappison:
There are people in custody in this country on warrants for trivial
offences clogging up the prison system as well?
Mr Knowles: Yes,
absolutely.
Q112 Mr Clappison:
On the point of justice, as opposed to points of cost and administration,
are you seeing cases that you fear may be ones of injustice arising
from the operation of the system?
Mr Knowles: Yes,
very much so. The case that springs to mind is a case called Andrew
Symeou, which has had some media exposure. He was accused of manslaughter
in Greece, a fight in a nightclub where someone was killed. Two
things seem absolutely clear: first, that there is no evidence
against him; and, secondly, such evidence as was obtained by the
Greek police was obtained by the Greek police beating people up,
as used to happen here in the 1970s. The court decision in that
case said, in terms: "There is no power in the UK to examine
any of those allegations. We have to all leave it to the Greek
authorities", with the consequence that Andrew Symeou—against
whom there is no evidence in my view—aged 19, was extradited
to Greece and I believe is still held in custody there.
Mr Clappison: So it really
is extraterrestrial; it is life on Mars.
Q113 Nicola Blackwood:
One of the comments we generally get with European arrest warrant
discussions is that, well, you have to wait for it to be negotiated
in the EU and to get all the Member States to agree. It is a lengthy
process. What do you suggest the UK can do in the meantime to
try and limit the damage that the current problems are causing?
Mr Knowles: I've
heard that argument too; the idea that, because there is a framework
decision, we somehow can't go outside that. That is just wrong
as a matter of law, if you read chapter 17 of my very good textbook.
We did an analysis looking at each country's implementation and
many, many countries have in their domestic law protections that
you don't find in the AW and we ourselves do in the UK. So, for
example, it is a ground to stop extradition if the crime was committed
too long ago. Delay, we call it. You won't find that in the framework
decision as a ground for refusing but nevertheless we incorporated
it. So we already have protections in our law.
What I would suggest is that the solution—a
temporary solution hopefully pending a new Extradition Act—would
be to reintroduce some sort of filter mechanism to stop the trivial
cases being dealt with it at all, and also to introduce a safety
net at the end in the form of some sort of review. I'm agnostic
on whether it be the Home Secretary or whether it be the court,
but some sort of review so that if it is obviously wrong, unjust
or oppressive—which was the test under the old law—extradition
shouldn't proceed. You could quite easily reintroduce that sort
of filter mechanism perfectly consistently with the framework
decision.
Q114 Nicola Blackwood:
So you could have a filter mechanism that included issues of proportionality,
delay, forum, and so on, and that would be considered acceptable?
Mr Knowles: Yes.
We already have a lot of those, and so all one would be doing
would be expanding it slightly and that would be compatible with
the framework decision. Because, as I say, each country has implemented
the framework decision in different ways and many countries have
introduced protections that you don't find in the framework decision.
Q115 Nicola Blackwood:
If we already have a lot of those why aren't they being used,
or are they being used but it just takes a long time?
Mr Knowles: They
are being used but they are quite high thresholds to meet. So,
for example, you can fight extradition on the grounds that you
won't get a fair trial abroad but the test is flavour and denial
of justice, and many cases have said that is a very, very high
hurdle to reach. So, although the protections are there, in practice
they are very difficult to meet.
Q116 Lorraine Fullbrook: Mr
Knowles, in evidence given to this Committee so far on the US
extradition treaty there clearly have been some issues with regards
to forum; the standard of proof required in both countries, that
is reasonable suspicion versus probable cause; the seriousness
of the offence. In your professional opinion, what do you think
should happen with the US extradition treaty? Should it be put
in the dustbin and started again?
Mr Knowles: Yes.
Can I just make two introductory points? The problem with the
US arises not just because of the treaty. It arises because of
the overzealousness of US prosecutors and their whole approach.
There is probably nothing we can do about that but that is a problem.
The US also has quite an exorbitant extraterritorial jurisdiction,
which is why you get cases like Babar Ahmad's or Gary McKinnon's.
It has the power to reach out around the world and—provided
there is a very, very tenuous connection with the US—it
generally has the power to prosecute.
So when you couple those two factors with a treaty
that is geared in its favour, in the sense that the evidential
threshold is very low, it is a fairly toxic combination, because
it does allow it to exert its jurisdiction in a very aggressive
manner but not be required to put forward coherent evidence in
support of it. So it is the treaty partly, but it is also underlying
factors that act as a catalyst for the problems that we see.
Q117 Lorraine Fullbrook:
But, from the US standpoint, its extraterritorial reach does have
some positives as far as it is concerned. For example, I am thinking
particularly of Thailand where they can prosecute child sex abuse
cases carried out by American citizens. So they do have some positives
to that. But from the UK/US point of view, there is very much
a differing standard between what is required from the American
side versus what is required from our side. The US requires probable
cause, we require reasonable suspicion. There is almost an inequality
or a lowering of the standards required for the extradition of
UK citizens, but there is no change to the extradition requirements
of US citizens.
Mr Knowles: I completely
agree with you. But, taking a step back, inequalities in evidential
thresholds are commonplace in extradition because countries' systems
don't always match up precisely. But it is the fact that there
was a deliberate lowering in favour of the US, at the same time
that there was a preservation of its position, which there has
to be because, as you know, it is in its constitution. We couldn't
change it even if we wanted to.
But I come back to the point I made, that the reason
why there are particular problems with the US is because you get
all these factors combining, in lowering the threshold we were
giving the US prosecutors a gift because it has enabled their
aggressive tendencies and their plea negotiation style to be given
full rein. Because that is what happened in the McKinnon case.
Remember they came over and they said, "If you don't fight
and come back we'll give you a very low sentence but if you fight
we're going to give a horrendous sentence", and that is their
typical tactic. That is why, as Gareth said, 97% of people plead
in the US because it's a choice between two years or 50 years.
Q118 Lorraine Fullbrook:
So what should we do about this now? Take it that we accept the
principle of extradition, should we repeal the Extradition Act
2003 and start again?
Mr Knowles: In
my view, yes.
Q119 Lorraine Fullbrook:
With a just extradition to all sides?
Mr Knowles: Yes,
that would be the preferred course. The Extradition Act 2003 has
been regularly criticised. I wrote about it when it was going
through, saying, "This will be a disaster", and it has
been proved right, and the courts have said. So, yes, we should
go back. It is far too elaborate; it is far too long and it is
unnecessarily complicated. Realistically, that is not going to
happen, it is probably only going to be amended. But it should
be amended to reintroduce the filters; to reintroduce a broad
test, so that there is a mechanism so that cases that, even if
they're not a breach of the ECHR, just offend one's fundamental
sense of justice and morality—Babar Ahmad's case, Gary McKinnon's
case, some would say—don't result in extradition but, if
there is a connection with the UK, they do result in prosecution
here.
As you said at the outset, Mr Chairman, there is
no reason why the forum proposals shouldn't be enacted. They would
be one more safeguard and, so far as the US is concerned, because
of the zealousness of the prosecutors, it would an important safeguard
so far as that country is concerned.
Q120 Mr Clappison:
I hope I'm not asking too obvious a question, but there is always
a very strong risk with plea bargaining, and aggressive plea bargaining
and disproportionate plea bargaining, where there is a very big
difference between the sentence that is on offer for somebody
pleading guilty and fighting a case, of somebody pleading guilty
just to avoid the risk of a very bad sentence. In the circumstances
you describe, would you regard there being a serious risk of injustice
occurring in a case involving American extradition requests, under
the arrangements that you have described, of perhaps a wholly
innocent person pleading guilty just to avoid a dreadful sentence?
Mr Knowles: Yes,
without going into my own cases—which you will appreciate,
for obvious reasons—I was involved in a case where precisely
that happened: the client was faced with a choice of a plea bargain
and a comparatively low sentence in a low security institution
or a very long sentence. And the choice of institution: there
were no guarantees, all bets were off, and it would be left to
the system to decide.
Q121 Mr Winnick:
Mr Knowles, you suggested earlier there could be certain safeguards
that don't exist at the moment over extradition, but would you
accept that we have to be very careful that Britain does not become
a safe haven for those who are alleged to have committed crimes,
like in Rwanda, Pinochet, and so on and so forth; that there is
a necessity for the extradition process to exist?
Mr Knowles: Absolutely.
We all accept that there is a need for extradition. The position
I'm advocating is the law as it was under the 1989 Act, which
again wasn't perfect and undoubtedly there were amendments to
that Act that could have been made. But there was never any suggestion
under the 1989 Act that Britain was a safe haven, merely because
there were greater protections for individuals. No, I would accept
that completely but I don't think the position I'm advocating
would lead to that conclusion.
Q122 Mr Winnick:
In the Pinochet case, if I remember rightly, the court upheld
extradition and it was a political decision taken by Ministers
that Pinochet was returned, was allowed to go to Chile.
Mr Knowles: It
was on grounds of his health, whether it was political or not
one can debate.
Mr Winnick: Yes. So it
was a political decision.
Mr Knowles: It
was taken by a politician.
Mr Winnick: Unfortunately.
Q123 Alun Michael:
You've spoken about the previous system and said that wasn't perfect;
you've talked about interim improvements that could be made pending
fresh legislation, which is clearly what you are advocating. Could
we look at the longer term solution, because we seem to have plenty
of capacity for delay as distinct from resolution, and the original
purposes obviously were getting cases dealt with expeditiously;
recognising the porous nature of borders in the modern world;
dealing with the interconnectedness of criminal activity. What
would be your long term solution to getting the right approach?
Mr Knowles: Delay
was a problem under the old system but delay arose because you
had multi-levelled appeals. You could have an appeal to the High
Court and then you could effectively do it all over again, as
far as the Home Secretary was concerned, and you had arguments
that had already been rejected being rerun. I don't think anybody
could sensibly defend that sort of system.
The sort of system I would advocate has this as its
stages. It has a preliminary filter, so we kick out the trivial
cases; we kick out the Russian cases that are being used quite
often as political persecution. We then have a court hearing at
which all issues are decided. We have a filter at the end, a general
test that the court applies: would it be wrong, unjust or oppressive?
Then we would have a review by the Home Secretary, but that review
would only be permissible on new material that hadn't been considered
by the court, so the McKinnon situation where you have health
issues arising after the conclusion of the process. That would
stop the repeat appeals that were a problem of the old system.
It would reintroduce the safeguard that I believe very firmly
ought to be there.
Q124 Alun Michael:
With tight time limits at each stage?
Mr Knowles: With
time limits, but time limits that have to have flexibility built
into them. But I think you can rely on the courts to run the timetables.
They do it in litigation all the time. But you have to give the
courts more resources. There are only six judges who can deal
with extradition cases at the magistrates' court, and there would
need to more judges if you were serious about time limits. Because,
so far as time limits are concerned, it is the lack of judges
and the lack of CPS resources that are the principal problem.
But on delay, the other point—and I say this
as someone who prosecutes as well as defends—delay in extradition
cases is very often the fault of the requesting state, the state
that has put the request in. I have been involved in cases where
we've waited a year, two years, for replies from requesting states.
So, in a sense, delay will always be there. We can do the best
we will never eradicate the problem completely.
Q125 Alun Michael:
Yes, but shouldn't that sort of time limit be made clear to the
requesting state? Surely, to some extent, that is in our hands.
Mr Knowles: The
treaties don't have time limits. Well, they do but not in this
context. The treaties don't have time limits, so saying to a foreign
extradition partner, "If you don't reply to a letter within
six months we're just going to discontinue", I think probably
is a problem. I'm not sure we can do that.
Q126 Mark Reckless:
Mr Knowles, I'm aware that Russia's constitution doesn't allow
extradition but could you clarify: I thought you just said that
we should reciprocate by kicking out all applications from Russia
without consideration, is that correct?
Mr Knowles: There
have been, from last count, about a dozen extradition requests
from Russia for UCos Oil executives and other oligarchs who have
fallen foul of Putin for one reason or another. All of them have
failed; all of them have failed on the grounds that they are nakedly
political. The defendants in those cases are generally very wealthy;
they've applied for their costs from central funds and it is the
taxpayer that has ended up footing the bill because there is no
penalty to Russia. That is because the Extradition Act does not
allow those cases to be thrown out. All the Russians have to do
is make the request and the court system has to gear up and deal
with it.
Q127 Mark Reckless:
So you think any request that comes from Russia, as a matter of
policy, we should not—
Mr Knowles: No,
not any request. There has been one successful Russian request
for a drugs dealer. No, of course, I am not advocating that. But
these political requests are easily spotted, generally speaking,
because the people used to work for UCos and fled when the company
was shut down. It is those cases. Sometimes cases have come in
where people have been granted asylum here and, nevertheless,
the Russians have asked for extradition and we've had to go through
the whole charade of a hearing, knowing that they can't be lawfully
extradited. That is just a crazy situation. So that was the point
I was making about Russia.
Chair: Mr Knowles, you
have been very helpful to the Committee today. We may write to
you with other points that we want dealt with.
Mr Knowles: Of
course.
Chair: We are most grateful.
Thank you very much for coming in to give evidence.
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