Previous Section Back to Table of Contents Lords Hansard Home Page

With Amendment 79B, the noble Lord identifies an important point. It is one thing for a court to make a confiscation order, but we need to make sure that the order is enforced and the payment collected. That said, I hope that I can persuade the noble Lord that the amendment is unnecessary. Under Section 35 of the Proceeds of Crime Act 2002, a confiscation order is treated as a fine and is enforced by the use of the magistrates' court's fine enforcement powers. Section 1(3)(b) of the Attachment of Earnings Act 1971 already provides for an attachment of earnings order to be made to secure the payment of a fine. By extension, therefore, attachment of earnings orders can be used, and are already used, to enforce the payment of a confiscation order. I hope that that covers the noble Lord's point on the attack on the earnings aspect. With that explanation, I ask the noble Lord to withdraw his amendment.

Lord Bradshaw: I beg leave to withdraw the amendment.

Amendment 79A withdrawn.

Amendment 79B not moved.

Clause 54 : Search and seizure of property: England and Wales

Amendments 80 to 95 not moved.



5 Nov 2009 : Column 467

Amendment 96

Moved by Baroness Neville-Jones

96: Before Clause 66, insert the following new Clause-

"Information requirements

(1) The Extradition Act 2003 (c. 41) is amended as follows.

(2) After section 71(4) insert-

"(4A) Notwithstanding subsection (4), information provided by the category 2 territory designated by order made by the Secretary of State must justify the issue of a warrant for the arrest of a person accused of the offence within the judge's jurisdiction."

(3) After section 73(4) insert-

"(4A) Notwithstanding subsection (4), information provided by the category 2 territory designated by order made by the Secretary of State must justify the issue of a warrant for the arrest of a person accused of the offence within the judge's jurisdiction."

(4) In section 84(7) for paragraph (a) substitute-

"(a) the judge must decide whether the information provided would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him."

(5) In section 86(7) for paragraph (a) substitute-

"(a) the judge must decide whether the information provided would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him,"."

Baroness Neville-Jones: My Lords, these amendments relate to the evidentiary standards in extradition cases. In her letters to your Lordships' House, the noble and learned Baroness, Lady Scotland, tried to address the concern that we and many others have had with what is seen as an imbalance in evidentiary standards caused by the Secretary of State designating certain states as category 2 countries for the purposes of the Extradition Act. Your Lordships' House will be aware that a category 2 country need only provide information, not evidence, when making an extradition request. It is on that issue that I want to focus. I shall take the United States as an example, although I stress that the situation is not limited to just one country but applies to all designated category 2 countries. It seems somewhat false to compare designated category 2 countries with the European arrest warrant system, as the noble and learned Baroness has done in various letters.

Subsections (2) and (3) of my amendment are designed to probe the concept of "information" provided by a designated category 2 country. In her letter, dated 19 October, the noble and learned Baroness said that,

Obviously, the two words "in practice" are fairly crucial. She said that when the UK makes an extradition request to the US, there is a requirement for the US courts to be satisfied that there is information demonstrating probable cause to issue a warrant. When the US makes an extradition request to the UK, she said that the UK courts need to be satisfied that the information provided by the US provides reasonable grounds for suspicion. The noble and learned Baroness said that the differences between "probable cause" and "reasonable grounds for suspicion" were semantic.

There is some debate about whether the information provided should demonstrate a prima facie case, which, as the noble and learned Baroness notes, is the standard that our criminal courts used to require before a

5 Nov 2009 : Column 468

domestic criminal case could be committed to the Crown Court for trial. As noted in her letter, in some cases a prima facie case must still be demonstrated. It would be very helpful if she could say when it is still necessary to demonstrate a prima facie case. She did not expand on that point in her letters, and it is important.

4.45 pm

The noble and learned Baroness's argument ultimately hinges on the assertion that,

That is reflected in the Extradition Act. Sections 71(2), 71(3), 73(3) and 73(4) state that the judge may issue a warrant if he has reasonable grounds for believing that there is evidence that would justify the issue of a warrant within his jurisdiction. In respect of category 2 countries, the Act specifies that information is provided instead of evidence, but does not define what "information" is. It would be very helpful if the Government could provide some clarity on that definition.

However, I have a problem here, in that the noble and learned Baroness's assurance is not reflected fully in the UK/US Extradition Treaty. Under Article 8(3)(c) of the treaty, there is a clear requirement for extradition requests to the US to be supported by,

However, there is no clear statement or requirement in the treaty for the US to meet the same-or even similar-standards when it makes extradition requests. Why is that the case?

A related point is that the standard of information provided should satisfy the requirements of criminal court processes here in the UK. The Act says that an extradition hearing judge must decide,

Yet Sections 84(7) and 86(7) qualify that stipulation in relation to designated category 2 countries. Those sections state that in relation to extradition hearings for requests from these countries, the judge must ignore that sufficiency of evidence or information test. So, at the extradition hearing the judge can only take into account human rights considerations and bars to extradition such as double jeopardy, the passage of time and other possibly extraneous considerations. In other words, there is no clear requirement in the Extradition Act for the information provided by designated category 2 countries to satisfy the requirements of the UK's domestic courts.

The question I pose to the Government and to your Lordships' House is: should the judge not be able at the extradition hearing itself to be able to re-establish reasonable suspicion? My amendment would require the judge to decide whether the information provided by those countries would be sufficient to make a case requiring an answer. The noble and learned Baroness might well say that my amendments, as drafted, would require a prima facie case to be established at the

5 Nov 2009 : Column 469

extradition hearing. I have to emphasise that that is not-I repeat, not-the intention. The intention is to allow a judge to re-establish, at the point of the hearing, that the information submitted meets the standard of reasonable suspicion. It is another safeguard and check in this highly contentious area, and my purpose is to increase public confidence in the system.

This amendment is one that the Government should be able to accept. I am open to looking at redrafting, if necessary, but I do not accept another argument that I fear might be put forward; that it would breach international treaty obligations. If that were the argument, one would have to look at the following opinions. There is a joint legal opinion from Edward Fitzgerald, and from Julian Knowles at Matrix Chambers, saying that such amendments would not place the UK treaty in breach of such obligations. They say, and this is a general issue which has come up previously, that:

"National extradition laws of the UK and foreign states almost invariably contain grounds for refusing extradition which are not found in extradition treaties".

This is the burden of the noble and learned, Baroness's letters: if it is not in the treaty, we cannot act. However:

"It is implicitly recognised as a matter of international law that state parties to extradition treaties may do this in order to give effect to the treaty in their national laws. Extradition treaties are regarded as containing the core matters on which parties to the treaty agree, but they are not regarded as limiting the parties' right to legislate as they see fit, provided, of course that the national legislation does not fundamentally conflict with the treaty".

The amendment has neither the intention nor the effect of disabling the UK for fulfilling the purposes of the extradition treaty, and I do not accept that it would.

The opinion goes on to say, in relation to the Extradition Act 2003, that it,

I do not accept that the amendment would have that effect. I very much hope that the Government are able to accept an amendment which, it seems to me, accords with what they say is the purpose and meaning of this extradition treaty. I beg to move.

Lord Thomas of Gresford: My Lords, I support the amendments of the noble Baroness, Lady Neville-Jones. I am grateful to the noble and learned Baroness the Attorney-General for the correspondence that she has circulated since Committee and the previous day on Report. She said that the information that must now be provided in order for a United States extradition request to proceed in the United Kingdom is, in practice, the same as for a United Kingdom request to proceed in the United States: the standard of information to be provided is exactly the same-exactly the same-as must be provided in order to justify arrest in an ordinary criminal case in that country.

The terms of the bilateral US/UK treaty of 31 March 2003 are unequal. There are common requirements: the description of identity, the relevant text of the law describing the essential elements of the offence, the relevant text of the law prescribing the punishment, a copy of the warrant of arrest, a copy of the charging document, if any, and a statement of the facts of the

5 Nov 2009 : Column 470

offence. Those documents must be produced either to the magistrate in this country or to the authority in the United States, whichever way the extradition is moving.

Under Article 9 of the previous treaty, which was supplanted by the 2003 treaty, the requesting state had to provide evidence sufficient according to our law to justify committal for trial. That has now been dropped under Article 8.3(c) of the 2008 treaty. For requests that we send to the United States, the request shall be supported by,

The United States authorities demand this information because of the fourth amendment to the United States constitution, which provides that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized".

It is fundamental to the United States constitution that the information that is sent would provide a reasonable basis to believe that the person sought had committed the offence.

As for requests from the United States to this country, the Government argue that to obtain a warrant to arrest somebody who is in the United Kingdom, it is necessary in the United States to get the warrant-which, as I have pointed out, is one of the documents that the United Kingdom court will require to see-to show probable cause. This is defined in one Supreme Court case as follows:

"The government has a probable cause to make an arrest when 'the facts and circumstances within their knowledge and of which they had reasonably trustworthy information' would lead a prudent person to believe that the arrested person had committed or was committing a crime".

What, then, is the difference? The difference is that in a request from the United States to the United Kingdom, the evidence to support the warrant is supplied on oath to the judge in the United States. All that has to be shown to the United Kingdom court for the purpose of extradition is simply the warrant that has been issued in America on the basis of information supplied in America. The evidence on which that warrant is based, supplied to the judge in America, is not before the English court and is not necessarily revealed to the defendant. In any event, he cannot challenge the material on which the warrant is based. He does not know what it is. It has been supplied to the judge in America, but not to the judge in this country.

In the Lotfi Raissi case, the United States sought the extradition of an Algerian pilot from the United Kingdom to America. This request was made prior to this treaty coming into force, and was based on the former treaty. Accordingly, as I have said, under Article 9 of the former treaty, the United States had to provide evidence sufficient according to British law to justify committal for trial in this country. In other words, in the Lotfi Raissi case, the US had to show a prima facie case to the magistrate in London. The application was thrown out by the British courts and went all the way up the chain of appeals, not only because there was no

5 Nov 2009 : Column 471

evidence, but because the proceedings on trivial charges had been brought for ulterior motives and were held to be an abuse of process.

Under the new treaty, no evidence would be required. That challenge to the extradition of Raissi could not be made. Indeed, Raissi could be returned now with no evidence produced because, unlike the bilateral treaties that have been negotiated with the United States by other EU countries, the US-UK bilateral treaty is retrospective. Article 22.1 says:

"This Treaty shall apply to offences committed before as well as after the date it enters into force".

Theoretically, in the Raissi case, it is possible for the US authorities to go to a judge in the United States and show him probable cause, and for him to issue a warrant. If the warrant comes over here, it cannot be challenged and Raissi, even today, would be sent back.

By contrast, in an extradition hearing in a United States court, when we ask for extradition from the United States, the information in support of the request is before the judge who determines the application. This is the application of the fourth amendment to the United States constitution. Since it is before the judge, the defendant can challenge it and seek to persuade the judge that it is not of sufficient weight or cogency to support the request. To say, as the noble and learned Baroness has, that it is exactly the same is just not correct.

5 pm

Mr Scott Hammond, who was a deputy assistant Attorney-General in the United States, and director of the criminal enforcement anti-trust division-that is a very high position in the Justice Department-told an American Bar Association symposium on white collar crime in Las Vegas in 2005:

"A hearsay affidavit by the prosecutor is enough. We don't even have to provide witness affidavits"

in a request to this country. He continued:

"Appeal rights have been curtailed but it's nothing. It is a drop in the bucket compared to the bang for the buck we are getting from this".

So, the American Justice Department regards this as a "bang for a buck".

In introducing the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, the noble and learned Baroness, Lady Scotland, said:

"If this order is approved, the United States will no longer be required to supply prima facie evidence to accompany extradition requests that it makes to the United Kingdom. This is in line with the new bilateral extradition treaty ... By contrast, when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that".-[Official Report, 16/12/03; col. 1063.]

That is what she said then. Why, then, does she now say that it is exactly the same?

The extradition treaty was negotiated and ratified without any reference to Parliament. Although the noble and learned Lord, Lord Falconer of Thoroton, said in a debate on 31 March 2003, during the passage of the Extradition Bill:

"The new treaty also maintains the present position that political motivation cannot be used to block extradition in the case of terrorist or other violent crimes".-[Official Report, 31/3/03; col. WA 92.]



5 Nov 2009 : Column 472

The United States refused to ratify that treaty without assurances from our Government that they would not seek rendition of Irish terrorists to this country. Quite a number of terrorists had escaped from Ireland to the United States and it would not sign the treaty because of that. It held up the ratification for three years and did not pass it without the following proviso:

"The Senate is aware that concerns have been expressed that the purpose of the treaty is to seek the extradition of individuals involved in offences relating to the conflict in Northern Ireland prior to the Belfast Agreement of April 10th 1998. The Senate understands that the purpose of the treaty is to strengthen law enforcement co-operation between the United States and the United Kingdom by modernising the extradition process for all serious offences and that the treaty is not intended to reopen issues addressed in the Belfast Agreement or to impede any further efforts to resolve the conflict in Northern Ireland".

So, no extradition of Irish terrorists. The Attorney-General knows this because she went there on 13 July-

Baroness Scotland of Asthal: I hear what the noble Lord says but I ask him to have a care. He knows that that is a recitation; it is not a caveat in any way. The Americans ratified. The noble Lord is quite right that I went to America and had the advantage of speaking to a number of those who had concerns, and the Americans ratified. I ask the noble Lord to take care in the way in which he expresses himself.

Lord Thomas of Gresford: My Lords, I am taking the utmost care. It is the noble and learned Baroness who has come out with two contradictory statements about the effect of this treaty. She went to America on 13 July 2006, which was the same day that the NatWest Three were extradited from this country. Letters were exchanged in September 2006-she must have been a party to it-to make it clear that, despite the retrospectivity of the treaty, the Government would not seek extradition of Irish terrorists for offences committed before the Good Friday agreement was in place. Further, the State Department made it clear that it, not the courts, would determine what was and what was not a political offence-that is set out in Article 4(3) and (4).

The purpose of the amendment of the noble Baroness, Lady Neville-Jones, is to level this matter up and to ensure that there is equality of treatment of British subjects or people who are resident in this country as regards extradition procedures with the United States. That is why we support the amendment.

Lord Goldsmith: My Lords, there is strong sense of deja vu about this debate. It is none the worse for that, but many of these issues have been debated previously. Because I had an involvement at one stage, I wish to make a couple of points in the hope that they will help the House in dealing with the amendment of the noble Baroness, Lady Neville-Jones. I note that it is about information requirements and, therefore, perhaps I may say that some of the broader questions that the noble Lord, Lord Thomas of Gresford, has raised actually do not relate to the amendment.

I also well recall the issues in relation to the NatWest Three or the Enron Three, depending on how one viewed them, and the controversy that that gave rise to. The House will know that ultimately they pleaded

5 Nov 2009 : Column 473

guilty to the offences with which they were charged. I want also to declare an interest as I am a practising lawyer and some of these issues come before me in relation to clients. I need to make that clear to the House.

There are three points to be made. One is that the way that extradition used to work-and the noble Lord, Lord Thomas of Gresford, will know this very well-was enormously long and time-consuming; an extradition request which was ultimately justified could take years to execute-the record may have been in relation to a Hong Kong case that managed to take 10 years. That is a great abuse of justice; either the extradition should not happen or it should not take that long.

Lord Thomas of Gresford: It was seven years, and I was involved in the case.

Lord Goldsmith: I thought that the noble Lord was involved, and I apologise because I had not realised that the process was quite as speedy as he has now told the House it was. The point remains.


Next Section Back to Table of Contents Lords Hansard Home Page