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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 644-iii
HOUSE OF COMMONS
TAKEN BEFORE THE
HOME AFFAIRS COMMITTEE
TUESDAY 20 DECEMBER 2011
SIR SCOTT BAKER
Evidence heard in Public
Questions 128 - 207
USE OF THE TRANSCRIPT
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Taken before the Home Affairs Committee
on Tuesday 20 December 2011
Keith Vaz (Chair)
Dr Julian Huppert
Mr David Winnick
Examination of Witness
Witness: Rt Hon Sir Scott Baker, Chair, Extradition Review Panel.
Q128 Chair: In this final session of the Committee’s hearings today, we will be covering three different subjects-extradition, the UKBA and, finally, policing. We begin our session as part of our inquiry into extradition, which has been ongoing for a number of months. We welcome to the dais Sir Scott Baker.
Sir Scott, thank you very much for coming. We have been on tenterhooks for the past few months with our inquiry-unable to conclude until you have completed your deliberations. I know that you also have members of your team here today.
Sir Scott Baker: We found it very helpful to read the report of your earlier sessions. That has informed our conclusions.
Q129 Chair: Excellent. But it must be a disappointment for you and members of your panel that, having laboured over this review for some months, the Government have basically said that your report is only there for guidance. They are not going to implement it; they are not going to act on it. Both the Attorney-General and the Immigration Minister were very clear: it is just another piece of work to inform the Government as to where they should take things further. Is it a disappointment to you that they did not warmly welcome it and implement what you suggested?
Sir Scott Baker: My understanding is that they are going to respond in due course, but not immediately. We always understood that there would be some time while they considered the report. When we embarked on the exercise, we realised that there were very strong feelings in different directions and that whatever we said would not please everybody, so I cannot say that we are disappointed. We feel we have done a thorough job, and that the report really speaks for itself. Anything I say today must be taken in the context that all the detail and analysis is in the report, and one cannot really do better than read that.
Q130 Chair: Of course. But the criticism of the report is that this is really for lawyers. If there is going to be uncertainty in the future, it only benefits lawyers in extradition cases. As far as the public is concerned, there is still complete bafflement as to the different words that are used-for example, in the US/UK Treaty. Although you say that there are no significant differences between the wording-the difference between "probable cause" and "reasonable suspicion", which was, of course, prima facie evidence-there remain differences. Is that right?
Sir Scott Baker: We do not think that, in practice, there is any significant difference between the tests. We think that there have been a number of misapprehensions and that there still are a number of misapprehensions. This all really started from the drawing up of the Treaty. If it had all been made absolutely clear in the Treaty, there would not have been this problem.
Q131 Chair: Of course. So you accept that clarity was actually missing from this Treaty-if it was very clear? The public do not understand. Of course, with respect to colleagues here, I am not an extradition lawyer and it is many, many years since I practised in the courts. Mr Ellis, of course, is our most recent practising lawyer, and Mr Reckless.
From the point of view of the public, these are different words and they mean different things: "probable cause" and "reasonable suspicion" are different. As Lord West said in his letter to The Guardian when he was the Minister responsible, one is about suspicion while the other is about belief. In normal, ordinary language, if you suspect something it is quite different from believing something, surely?
Sir Scott Baker: Let me start by making the point that the Treaty gave the test for extradition from the United States, but was silent as to the test from the United Kingdom. Although you would need to ask the draftsman why that was done, the strong indication is that at that time the Extradition Act was still a Bill, and it was not clear what was going to be in the Act when Parliament passed it. What now is the position is that you couldn’t put a sheet of tissue paper between the test in the Act and the test the other way for extradition from the United States.
Q132 Chair: But surely in ordinary language, as opposed to in lawyers’ language, a suspicion is different from a belief. If you suspect that something is going on, that is quite different from believing that something is going on.
Sir Scott Baker: Not, in fact, when you look at the tests, because the tests are the same as for a domestic arrest warrant in each of the two jurisdictions. The American test has the underlying basis of probable cause, which reflects the fourth amendment to the United States constitution.
Q133 Chair: So that is for the convenience of the American constitution.
Sir Scott Baker: We don’t have a concept precisely like that, but when you examine what it means, it means, in both instances, reasonable suspicion.
Q134 Chair: What do you say of the criticism by Lord Goodhart, an eminent jurist himself, who says that different states in the United States have different levels of dealing with people, with bail granted in some states but not in the others, while not criticising the whole of the US judicial system? It depends on which state this comes from. He is quite clear, is he not? Have you looked at what Lord Goodhart has said, both in the House of Lords and outside it?
Sir Scott Baker: We have looked at a great deal of material-everything that has been said about this, I think-but it certainly wasn’t our experience, when we went to the United States and spent a week there examining these matters in great detail with the Justice Department, that there is any significant difference in different parts of the United States.
Q135 Chair: So Lord Goodhart is wrong, is he?
Sir Scott Baker: Yes.
Q136 Chair: Finally, from me, as far as the politicians who signed this Treaty are concerned, the Home Secretary who signed the Treaty and negotiated it, David Blunkett, was very clear to me when I asked him, before he gave evidence to this Committee, that as far as he was concerned the British Government gave away too much when they signed the Treaty-that it wasn’t a matter of equality. What would you say about that?
Sir Scott Baker: That is not how it has worked in practice. A very significant point is that no one has drawn our attention to any single case at any stage, since the Treaty was signed and implemented by the United States in 2007, in which it would have made any difference whether you applied the American test or the United Kingdom test. The result would still have been the same.
Q137 Chair: So the criticism being expressed by people such as the lawyers for Babar Ahmad and his family, those who support Gary McKinnon, and others, should just be dismissed as froth.
Sir Scott Baker: We examined this in great detail and explained why we do not think that there is any substance in it. As far as the Gary McKinnon case is concerned, and I obviously cannot get involved in great detail about it because it is still under consideration, the case has drawn attention to, in our opinion, one defect, and only one, in the current extradition legislation. It is this: the Secretary of State is now considering matters that arose after completion of all the court proceedings and, as I understand it, a further human rights issue has been raised.
We do not think that the Human Rights Act was ever anticipated as biting on the Home Secretary in such circumstances, but it does because she is technically a public body under the Act. We think that if a human rights issue is raised after the conclusion of the court proceedings, the right place for it to be decided is back in the courts, on the same basis as is done in other civil proceedings when something unexpectedly arises that suggests that the original decision might have been wrong.
That would have the advantage of resolving the issue one way or the other much more speedily, and it would also avoid the endless further steps of the Secretary of State being judicially reviewed if she makes a decision one way by one party or the other way by the other party. It also takes the Secretary of State out of the political arena on issues of this kind.
Chair: That was very helpful. Dr Huppert has a supplementary question.
Q138 Dr Huppert: I want to check that you are aware that you are disagreeing with a number of other comments that have been made by quite senior people. I will pick up two of them. You are presumably aware that in 2003, when the order was passed, the then Home Office Minister said that prima facie evidence would not have to be supplied. She said: "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." Are you saying that the Home Office Minister who passed this was wrong?
Sir Scott Baker: The position changed in 2007 when the United States ratified the Treaty and moved away from requiring evidence and on to information. We describe this in a little table in the report, which you have no doubt seen.
Q139 Chair: Going back to what Dr Huppert has said. When Baroness Scotland made that statement to the House, was that correct?
Sir Scott Baker: I am not sure that I would accept it was correct-I am looking at the position now.
Q140 Dr Huppert: I am intrigued that you are not sure whether what the Home Office Minister said was correct.
Sir Scott Baker: We deal with it in the report. I would not like to detract from what is already in the report.
Q141 Dr Huppert: You are presumably also aware of the fact that the Joint Committee on Human Rights, which I used to serve on and which has a number of eminent lawyers-definitely not counting myself-also did its own study fairly recently. It concluded that there was a clear difference. It stated: "The Government should increase the proof required…so as to require sufficient evidence to establish probable cause". It recommends "that the Government urgently renegotiate this article of the…extradition treaty". Are you disagreeing with the Joint Committee on Human Rights as well?
Sir Scott Baker: Absolutely. If you introduce a "probable cause" test, the English courts would first have to construe what it means. It is an American expression. I would think that the English courts would be likely to follow the American jurisprudence and would conclude that it means precisely the same thing as the English test at the moment of "reasonable suspicion", but I cannot second-guess what would happen.
Q142 Dr Huppert: So they might interpret it differently. There might in fact be a difference between the two tests.
Sir Scott Baker: I would not have thought so, but I am not the judge who is going to try the case. That is my view and how I would look at it. As far as the other human rights committee point is concerned, there is an underlying concern that is expressed sometimes openly, but quite often not expressed, and that is that different rules for extradition ought to apply for British citizens, subjects and persons who have lived here for a long time.
But the pass, if I may put it that way, was sold years ago-in the 1920s, I think. Ever since then, we have extradited our own citizens just like everybody else. Furthermore, most other countries are now adopting the same practice. Indeed, the Americans told us-if my recollection is right-that they were not negotiating any new treaties with states that did not extradite their own citizens.
Q143 Mark Reckless: You say that you do not want to detract from anything that is in your report.
Sir Scott Baker: Yes.
Q144 Mark Reckless: Yet in your report you say that there are no significant differences between "probable cause" and "reasonable suspicion". However, if I heard you correctly, you are now saying that "probable cause" means the same as "reasonable suspicion", and you would expect a court to rule that they are precisely the same.
Sir Scott Baker: You are splitting hairs. The point is that the words are slightly different, but in practice the result is the same. I again make the point that we could not find any case where the result would have been any different.
Q145 Mark Reckless: With respect, I am not splitting hairs. You included the word "significant" in your report and there is surely a difference between "no difference" and "no significant difference".
Sir Scott Baker: Any difference that has any relevance, then.
Q146 Mr Winnick: I apologise in advance-I am going into the Chamber to catch Question Time. Can I take you up on a point that you made when you responded to the Chair? You said that the Act removes the Government from political controversy and gives it to the courts. That has not actually happened in practice. The cases that the Chair mentioned to you have aroused a great deal of controversy. There was a debate on 15 July 2009. It is ongoing. The American ambassador has been here to put his country’s case, as one would expect an ambassador to do. As far as political controversy is concerned, that has not actually happened, has it? To put it differently: as far as political controversy is concerned, it has continued.
Sir Scott Baker: The 2003 Act created a significant shift away from the Secretary of State to the courts. There is obviously good reason why the courts should, as it were, take the flak, rather than the Secretary of State.
Chair: We understand what you have said, but Mr Winnick said that has not happened.
Mr Winnick: I think my English was okay, but thank you very much.
Chair: Yes, it hasn’t happened, has it? President Obama discussed it with David Cameron. As Mr Winnick said, the Gary McKinnon case is now before the Home Secretary. Whatever the intention of the Act, it has just not happened.
Q147 Mr Winnick: I think I actually said that, Chair. If my English was not adequate to your legal standards, I must apologise.
Sir Scott Baker: The only reason why it has not happened is that the courts have completed their part of the exercise; it is back with the Secretary of State now. There would not be all these problems creating issues between the two sides if it were not for the fact that there is a human rights issue that it falls to the Secretary of State to decide. If that had gone back to the courts, which is the way we think it should happen in future, the court would have the armoury of powers to say, "I want this material from you, that material from you, and I will make a decision as to whether, in the circumstances, you have now got an article 8 right that trumps extradition."
Q148 Mr Winnick: Perhaps I can now ask, without being interrupted unless absolutely essential, do you feel that the present controversy that is occurring is unnecessary and irrelevant, and the position now should be left as it is?
Sir Scott Baker: It is not irrelevant because there is obviously a serious human rights issue that needs to be resolved. I do not know what the facts are on either side of that. All I do know is that the case went through the courts. Lord Justice Stanley Burnton-
Q149 Chair: By "the case", you mean what?
Sir Scott Baker: The McKinnon case. He concluded that it was unarguable that the case should be heard in England. At that stage, none of the bars to extradition operated. Now there is the new human rights issue. I don’t pretend to know what the answer is to that.
Chair: Michael Ellis will pursue that and other points.
Q150 Michael Ellis: Sir Scott, good morning. I welcome your report, which seems a very professional and thorough-as well as rather lengthy-work.
Sir Scott Baker: Apologies for the length.
Q151 Michael Ellis: Not at all. You have come to the pretty unambiguous conclusion-it seems to me, having read the report-that there is no imbalance between the United States and the United Kingdom when it comes to the extradition arrangements between those two countries. Is that right?
Sir Scott Baker: Correct.
Q152 Michael Ellis: In fact, I think there is a point to be made that, if anything, it is somewhat more difficult for the United States to secure extradition from the United Kingdom than vice versa. Is that a fair assessment?
Sir Scott Baker: Yes.
Q153 Michael Ellis: Partly because of the cost and delays in the English system, as opposed to the United States?
Sir Scott Baker: One matter that really troubles me is the delay in a lot of these cases. It is not just to the individual and not just to the system. Something needs to be done to remedy that.
Q154 Michael Ellis: For that reason of delay, and perhaps one or two others, you feel that there may in fact be more difficulty for the United States in securing extradition from the United Kingdom. If there is an imbalance, it favours the United Kingdom.
Sir Scott Baker: If anything, but I don’t think it is terrifically significant. There are very serious delays, and we get our people from there a great deal quicker than they get theirs from us. One of the problems is that many of them have gone on to the European Court of Human Rights, which then stops extradition with a section 39 notice, and doesn’t get on to decide the case for years afterwards.
Q155 Michael Ellis: There has been no shortage of pundits and talking heads who have referred to the alleged differences between "reasonable suspicion" and "probable cause". In fact, the case law in both countries indicates, does it not, that there is no difference between those two terms?
Sir Scott Baker: Precisely. Absolutely.
Q156 Michael Ellis: There is a semantic difference: that is to say, the words are different, but the legal interpretation is identical.
Sir Scott Baker: Correct.
Q157 Michael Ellis: Is it or is it not the case that in both jurisdictions, for there to be a lawful warrant of arrest to be executed, the test is the same in the United Kingdom as it is in the United States?
Sir Scott Baker: That is precisely so. It is the test for the issue of a domestic arrest warrant each way.
Q158 Michael Ellis: And you have seen in your year-long study of this matter, with a report that comes close to 500 pages, no single example of a case-since 2007, when the treaties came into operation-where there would be any difference between the two countries.
Sir Scott Baker: That is correct, and we’ve looked pretty carefully too. I make one other point, which is that the United States routinely provides a great deal more information than the basic information necessary when seeking extradition from this country. We have looked at numerous cases and, frankly, I was quite surprised at the very great detail of information that they provide.
Q159 Michael Ellis: You mean that the Treaty requires the United States to provide a certain amount of information, but the United States routinely and voluntarily goes beyond that and provides more information.
Sir Scott Baker: Very often, they tell us in great detail what a lot of the evidence is.
Q160 Chair: On the question of what Mr Ellis said about talking heads and commentators, do you disagree with the Deputy Prime Minister, the Prime Minister and the Attorney-General in their interpretation?
Sir Scott Baker: I am not going to be drawn into the political debate. We have produced a report that speaks for itself, and I think it would be entirely inappropriate for me to get drawn into that debate.
Michael Ellis: I was not referring to them, of course; I was referring to others.
Mr Winnick: Mr Ellis put the point of view of the American ambassador very well indeed.
Michael Ellis: I put my own point of view, Sir Scott, as I am sure you can well realise-
Mr Winnick: A spokesperson for the US.
Michael Ellis: -having read the report.
Q161Chair: Order. Can we move on?
Sir Scott Baker: I would quite happily answer more questions-
Chair: I think we have had enough. Mark Reckless.
Q162 Mark Reckless: Sir Scott, I am still unclear. It is very clear that, for you, "probable cause" and "reasonable suspicion" are absolutely the same; you have said that now in three different ways. I am interested, however, that your report still says there are no "significant" differences. Could that be because there was potentially a difference of opinion between those involved in advising you?
Sir Scott Baker: Absolutely not. You talk of advising us; we are three independent members, and we are not appointed by the Home Office. We are independent, appointed by the coalition to look into these matters and resolve these issues, and we are not answerable to anybody, except to produce our report for the coalition. We all started out with entirely independent minds as to the conclusions that we might reach. We are united in all the conclusions that we have reached.
Q163 Mark Reckless: In investigating whether "probable cause" and "reasonable suspicion" were the same, as you so clearly-at least individually-conclude, you say you spent a week in the US and you spoke with the Justice Department. Did you also travel around the United States and look at the application on the ground?
Sir Scott Baker: No. We spent the week in Washington and we went round various courts and saw a large number of people in Washington.
Q164 Mark Reckless: Aren’t the legal systems of different states, or even different federal appeals jurisdictions, rather different across the US?
Sir Scott Baker: There are differences, but I think we picked up all that was necessary from those that we saw in Washington.
Q165 Nicola Blackwood: Sir Scott, can we talk about the panel’s recommendations on the forum bar? You have objected to the introduction of the forum bar on the grounds that it would slow the system down and increase costs by creating what you term "satellite litigation".
I am sure you are aware that that recommendation diverges from the express rule of Parliament, which passed the forum amendment in 2006, although it is yet to come into force. Could you explain why matters relating to the forum bar could not be considered alongside other matters considered in an extradition case, so that it would not extend the time taken within that case?
Sir Scott Baker: The forum bar would be an additional bar to extradition, and it would have to be considered by the court at the appropriate time. However, the first question is what is the forum bar-this additional bar-intended to protect against? That is something that is quite difficult to analyse. I think the underlying feeling of many people is, "Well, it is British citizens who shouldn’t be extradited with the same ease as non-nationals," but that is not what the background is.
Q166 Nicola Blackwood: My understanding was of a principle that, where actions take place wholly or in substantial part in the UK, it is not unreasonable to suggest that a judge should be able to decide or rule that a case should be tried, in the interests of justice, in the UK.
We are living in a time when more and more crimes are being conducted over the internet and they may cross jurisdictions in more and more cases; we see a number of crimes that could be tried in a number of jurisdictions. Those are the sorts of cases that we are talking about. We are not discussing the nature of the defendant; we are talking about the nature of the crime. Could you explain why those sorts of cases would not be appropriate to be considered in a forum bar situation?
Sir Scott Baker: Yes. Because those issues need to be considered at a much earlier stage in the process, when the prosecutors get together and decide in a case that crosses national boundaries where they think it would be most suitable for the case to be heard. The prosecutors have much more ready access to relevant information, and much earlier in the process, than the courts would do. For example, they know about the desirability of the prosecution taking place with all the defendants in one jurisdiction if possible, witness availability and willingness to travel, witness protection-a very important matter-avoidance of delay and victim interests.
Q167 Nicola Blackwood: Yes. But what happens if the prosecutors disagree?
Sir Scott Baker: If the prosecutors disagree, there are two different situations. As far as part one is concerned and the European arrest warrant, there are some things called the Eurojust guidelines, which set out all the matters that ought to be taken into account. The prosecutors nearly always do agree in the end. Inevitably, there will have to be some give and take. If they do not agree, they go to Eurojust in The Hague, and the matter is arbitrated between them. The Eurojust guidelines and arrangements are, at the moment, discretionary rather than mandatory, but that is what actually happens.
As far as the United States are concerned, there are guidelines drawn up between the Attorney-General, the Lord Advocate and the Attorney-General for the United States for dealing with these problems, and thus far there has never been, as far as I am aware, a disagreement. What you will see in our report is that we recommend that this process be dealt with much more openly and transparently. There need to be clear and detailed guidelines, and those guidelines should include the significance to be attached to nationality or residence when making a decision to prosecute.
Chair: Thank you. I think Mr Reckless has a very quick point and then it will be Steve McCabe.
Q168 Mark Reckless: You referred again to the issue of nationality, but do you not also recognise that there are concerns about aggressive extra-territorial application by US prosecutors?
Sir Scott Baker: We dealt with that in the report. I think paragraph 6.47 and the preceding paragraphs deal with it.
Q169 Mark Reckless: Could you deal with it here as well?
Chair: Do not read out the paragraphs. Just a quick summary would suffice.
Sir Scott Baker: Yes. First of all, exorbitant jurisdiction, as we set out, is not as exorbitant as some people think. These days, with the internet and so forth, the tentacles of countries have to spread much wider than they previously did. Secondly, as is clear from the authorities, exorbitant jurisdiction, if it does go too far, would trigger a human rights bar and therefore the person would not be extradited.
Q170 Mark Reckless: Sir Scott, you express great confidence in the prosecutors getting together to make this decision, but are not prosecutors in the US and some European countries subject to political influences in a way that prosecutors here are not?
Chair: A quick answer-a yes or no-would be perfect.
Sir Scott Baker: I do not know the full details of what happens in other countries, but from our inquiries we have been able to see that the prosecutors here are well able to deal with the situation.
Q171 Chair: But United States prosecutors campaign for election, do they not?
Sir Scott Baker: Some do, but some do not. I do not see how it makes any difference.
Q172 Steve McCabe: Can I just go back to this question of the forum bar? The general view of your committee is that it would add delay to the process.
Sir Scott Baker: Yes.
Q173 Steve McCabe: You cite the Westminster magistrates court as having said that, of all the cases that they looked at, they could not see any that would be better tried in the UK. What I am curious about is that, if they were able to come to that conclusion, presumably they must have considered all the facts-the kinds of facts you would have consider as part of the forum bar-otherwise they could not have come to that judgment. How does it follow, therefore, that considering it would add to delay? I do not understand that.
Sir Scott Baker: They would have to go through the exercise of looking at all the circumstances in each case, which they currently do not do.
Q174 Steve McCabe: But didn’t they have to do that to come to the conclusion that none of the cases would have been appropriate for the forum bar? Wouldn’t they have had to have done that to add any validity to that argument?
Sir Scott Baker: They did not go through the forum bar, because it was not implemented.
Q175 Steve McCabe: No, I appreciate that they made a judgment on it. I am asking how they could have arrived at that judgment.
Sir Scott Baker: They took a broad view. They heard the cases and they could see whether there was what looked like a serious argument that they should be tried in this country.
There is one other point about the forum bar that needs to be made, which is that it is directed to circumstances in which somebody should not be extradited. You cannot force prosecutors to prosecute in this country. That is a prosecutorial decision. If you are not careful, you finish up with a forum bar that results in somebody who ought to be prosecuted somewhere not being prosecuted at all.
Chair: Thank you. I just say to colleagues that we need to make progress now. That was not directed at you, Dr Huppert.
Q176 Dr Huppert: We have heard a number of fairly astonishing comments, which we need to reflect on, but I won’t go through all of them. Your solution to the forum issue, as I understand it, is formal public guidance for prosecutors.
Sir Scott Baker: Yes.
Q177 Dr Huppert: Do you really think that that could provide a safeguard equivalent to what Parliament passed in 2006?
Sir Scott Baker: Yes.
Q178 Dr Huppert: Why?
Sir Scott Baker: Because the prosecutor is in a much better position to take all these matters into account. If the prosecutor fails to follow the guidelines, he is amenable to judicial review. Also, we would only envisage that that would happen in rare circumstances, because it is unlikely that the prosecutors would not follow the guidelines.
Q179 Dr Huppert: So can you explain why it is better for these issues to be resolved by a prosecutor alone, rather than by a court, for example?
Sir Scott Baker: Because the venue needs to be decided much earlier in the process. That is the first point.
Q180 Dr Huppert: But if it has not been, if you have a prosecutor in the US who stands for election on a mandate of chasing after particular crimes and you cannot reach that agreement, should there not be a safeguard in a court? Your argument that there has not been an issue that has come up is no reason to get rid of the safeguards.
Sir Scott Baker: There are the human rights bars, which we think are perfectly adequate. We think that guidance to the prosecutors would be the answer.
Q181 Mark Reckless: You express great confidence in prosecutors. May I ask what the balance of your work was in your period at the Bar in terms of prosecution versus defence?
Sir Scott Baker: Roughly equal. I started life as a practitioner on the Oxford circuit and prosecuted and defended in equal measure. I went up the system as a QC and did fewer criminal cases, but still prosecuted or defended. As a judge, I have tried numerous serious criminal cases.
Q182 Mark Reckless: On the European arrest warrant, there seemed to be a close balance in the early years-in 2004, 24 were extradited to the UK and 23 from the UK, and there were similar numbers in 2005. Yet since 2006-07, there have been no more than 100 extraditions to the UK, but more than 300 every year from it. Why is that?
Sir Scott Baker: Because some countries, Poland in particular, are not exercising proportionality in issuing European arrest warrants. If you look at the figures, Poland is far and away the country that issues the most. Others issue significant numbers, but, by and large, most countries abide by proportionality, and we have dealt with that in detail in the report.
Q183 Mark Reckless: In your report, you express great confidence that these issues are going to be dealt with-for instance, with Poland-but if they are not, can we continue to apply the European arrest warrant?
Sir Scott Baker: It was not within our remit to assume that the framework decision was going to be torn up, therefore we got to work on our report with the background that the framework decision was there, and we were asked to look at the existing safeguards. Only a limited amount can be done without making changes to the framework decision, but what can be done, we think, can be done by co-operation between Member States and greater input from the Commission.
Q184 Mark Reckless: You have made a very important point. Because you understood your remit to be that of the framework decision, however bad you considered the operation of the European arrest warrant to be, you would not have recommended that we do anything contrary to the framework directive.
Sir Scott Baker: In fact, we think it works broadly satisfactorily. As far as proportionality is concerned, if an answer cannot be achieved by co-operation, the framework decision ought to be changed, and we make that point in our report.
Q185 Alun Michael: May I deal with this point about proportionality? Should the proportionality test be applied in the courts of the issuing Member State, the one that is requesting extradition; the executing Member State, the one from which it is sought; or both?
Sir Scott Baker: No, it must be in the issuing Member State, because that state has all the relevant considerations. For example, a particular kind of theft might be particularly critical in one Member State but not in another.
Q186 Alun Michael: That is an important distinction to be clear about. Even if there were a new legislative instrument at EU level, is there a risk that the proportionality test could be transposed differently into the laws of different Member States in such a way that the application would not be consistent?
Sir Scott Baker: I should hope not. The Commission is endeavouring to achieve consistency by setting out in its handbook all the criteria that should be taken into account. We recite those in the report-I won’t take up time by going through them all now.
Q187 Alun Michael: But there are inconsistencies in the way that it is applied.
Sir Scott Baker: At the moment there are, certainly, and they ought to be remedied.
Q188 Alun Michael: You say that the Stuttgart court has been able to apply a proportionality test to the execution of a warrant in a way that would not be open to the UK courts. Can you clarify that? Does it mean that Member States can, effectively, operate a unilateral proportionality test? If so, should the UK be applying the test in a different way or be applying different criteria?
Sir Scott Baker: It is a very complicated question, which we deal with in 5.131 to 5.145 in the report. It is very difficult to summarise an answer, but suffice it to say that there are constitutional aspects in German law that do not apply elsewhere.
Q189 Alun Michael: Should the constitutional tests that are available in the German court be applied in a different way in the UK? Should we be filling a gap there?
Sir Scott Baker: We could not do that, because our constitution is different-those aspects are peculiar to Germany.
Q190 Nicola Blackwood: You have stated that you are satisfied with the removal of the dual-criminality test for the 32 offences in the framework decision list, and that there is not a risk that the different definitions of offences in different Member States’ domestic law might lead to a person being extradited for an act that is not an offence under UK law.
In particular, you stated that you are unaware of difficulties arising in practice from the controversial abolition of the rule, but you are aware that other framework states have, in legislating domestically to entrench the framework decision, expressly excluded extradition for certain offences. In Belgium, for example, they have excluded abortion from the murder offences. Could you explain why you do not think it would be appropriate to do that under UK law?
Sir Scott Baker: Surrender from the United Kingdom in these circumstances can only occur if none of the conduct occurred in the United Kingdom. We take the view that if you are in another state you should apply by the rules and laws of that other state. So if holocaust denial is an offence in Germany and you go to Germany and deny the holocaust, we do not really see any reason why you should not be extradited from this country to answer that offence there.
Q191 Michael Ellis: May I just take a step back? You were asked about your own career in terms of prosecution and defence. Your panel was also constituted by David Perry QC and Anand Doobay. Is that correct?
Sir Scott Baker: Correct.
Q192 Michael Ellis: I see that Mr Doobay, for example, spent recent years representing the subjects of extradition requests, as well as Mr Perry, who has also acted for requesting states. Is that correct? Do you feel your panel was sufficiently balanced?
Sir Scott Baker: I said that I was only prepared to do the job if I had a panel that was balanced, that I could work with and that covered everything.
Q193 Michael Ellis: On the European arrest warrant, there is an apparent lack of proportionality. Do you accept that?
Sir Scott Baker: Indeed.
Q194 Michael Ellis: Do you go so far as to say that, if the contracting parties cannot agree between themselves to change the practice and, therefore, correct this lack of proportionality, the framework agreement itself should be subject to alteration?
Sir Scott Baker: I do, but we also see the difficulty that, once you start chipping away at the framework decision, if you are not careful the whole thing falls apart. I do not see why it should, but we do feel that broadly the EAW system has worked satisfactorily. We do not think that the fact that there have been a handful of cases where there have been very serious problems should detract from looking at the whole picture.
Q195 Michael Ellis: I appreciate that one has to look at the wider picture, but, notwithstanding that, if there are cases of injustice because of a lack of proportionality, that in itself has a deleterious effect, a negative effect, on the public perception of the operation of justice when it comes to the European arrest warrant.
Sir Scott Baker: Precisely so.
Q196 Mark Reckless: Is this David Perry who is part of your panel the same Mr Perry who so expertly advised the CPS, and through them the Met, that, in order to prosecute for phone hacking, you have to prove the message was intercepted before the recipient picked it up?
Sir Scott Baker: I do not hold the details of Mr Perry’s practice immediately in my mind, but I can ask him if you like.
Q197 Chair: Are you the same David Perry?
David Perry QC: I do not accept the premise of your question.
Q198 Chair: No, but you are the same David Perry.
David Perry QC: Well, I am a David Perry who practises at the Bar.
Q199 Chair: Okay, fine. I think that clarifies it for you. I am sure we can write to Mr Perry, if we need to, on phone hacking, which is not relevant here. Thank you very much for that, Mr Reckless.
There is no question of challenging the bona fides of members of your panel, Sir Scott-these are questions that Select Committees ask when seeking to look at the way in which panels operate. It is standard practice for us to do this kind of questioning. You say that you have prepared your report for the coalition, and you have heard what the Attorney-General has said-I mentioned it at the start of your evidence-and he does not regard your report as being definitive. The report is just guidance as far as the Government are concerned. That was repeated by the Immigration Minister.
Further to that, as soon as your report was concluded, the Deputy Prime Minister, who is obviously an integral part of the coalition, set up his own review to review your review under Sir Menzies Campbell, who is also a very eminent Queen’s Counsel. Judging from what Sir Menzies has said to the House in a debate in Westminster Hall-you may or may not have seen the Hansard-he is very critical of your review. It must be very disappointing that as soon as your review has been prepared for the coalition, parts of the coalition are very unhappy with what you have said.
Sir Scott Baker: Well, I think I read somewhere that Sir Menzies Campbell said that he did not feel it was necessary to read the report. So there we are. We think the report speaks for itself. I think that it is inappropriate for me to get involved in the political debate. We have produced a report. We have set out the arguments-
Q200 Chair: No, of course. I am not seeking to draw you into the debate. Please understand that. I am just seeking to say that you have made a point that you prepared a report for the coalition. The coalition is obviously not pleased with this report because one crucial part of the coalition has decided to have another review in order to challenge what you have said. Taking that with what the Attorney-General has said and what the Prime Minister said as Leader of the Opposition, it must be a disappointment.
Sir Scott Baker: I don’t have any disappointment. I simply produced a report and it is up to the politicians to do what they want with it at the end of the day. We think our recommendations are right otherwise we would not have made them.
Q201 Chair: Finally, I wonder whether you can assist the Committee. The Committee has been trying for the last year to track down Judge Workman. Judge Workman is the extradition judge.
Sir Scott Baker: No, he is not. He was.
Q202 Chair: He was, indeed. But when we first started to try to find him, he was the extradition judge.
Sir Scott Baker: Yes.
Q203 Chair: He is now no longer the extradition judge and we were very keen, as part of the extradition review, to ask him to give evidence to this Committee. Do you know where we can find him? Short of putting an advert in the Daily Mail, do you know how we could find Judge Workman?
Sir Scott Baker: I would have thought, ring up the Westminster magistrates court and ask where he lives.
Q204 Chair: Oh, we have tried. We have been unsuccessful, I’m afraid. You cannot just ring up the courts and ask for the home address of judges.
Sir Scott Baker: I don’t know where he lives but he readily gave evidence to us.
Q205 Chair: Excellent. So we can pursue that in our way. Sir Scott, thank you so much for coming. We may have other questions that we will write to you about, but we are most grateful. One final point: as part of your review, you did not actually meet Janis McKinnon or any representatives of the Babar Ahmed case?
Sir Scott Baker: That is correct, but we had a great deal of material from everybody, including them. Janis McKinnon sent reams of material in and the suggestion that we don’t understand the plight of persons sought to be extradited is not accepted.
Q206 Chair: So although you will manage to go to Washington for a week, you were not able to call in people like David Bermingham, from the NatWest Three, who will be giving evidence to this Committee next January? You were not able to call in the McKinnon team, you were not able to call in Babar Ahmed’s team?
Sir Scott Baker: They were all invited to give evidence and many of them did.
Q207 Chair: In writing?
Sir Scott Baker: Yes, in writing and if there were issues that we wanted to explore further and we thought we could get assistance, we did. But we were looking not at individual cases, except in so far as they informed the general extradition system.
Chair: Sir Scott, this Committee is extraordinarily grateful to you for coming in. Thank you very much.