Examination of Witnesses (Questions 50
WEDNESDAY 4 JUNE 2003
MP, MR CLIVE
40. If that safeguard has gone, then is not
my Lord Chairman's question very important? What has now changed
is that although the seriousness of the offence remains the same,
ie one year or more imprisonment, it is no longer going to be
necessary to show a prima facie case. There is no federal filter,
we have heard, it is a matter of the state itself requesting extradition,
and the federal authorities acting as a post office. What is the
real safeguard against a misuse of the new extradited powers where
there is no prima facie case and, in fact, the offences will have
contributed because they are accompanied by five years' imprisonment?
Where is the safeguard going to operate so far as the European
Union Treaty is concerned?
(Mr Ainsworth) This is a debate that we had during
the passage of the Extradition Bill and the European arrest warrant
scrutiny process that took place in the House as well. I think
it comes down to whether or not, and to what degree, you believe
that offences that attract a 12 month sentence are trivial. Obviously,
people are not going to apply for extradition where they believe
that it is not worth the administrative burden, but where they
do and where the offence attracts a penalty of 12 months, we see
no reason at the moment in the current climate, or any argument
for lifting that threshold, and for saying at this point in time
we are now no longer prepared to extradite for anything other
than some higher threshold, wherever we choose to set it. I do
not think that 12 months is necessarily a trivial threshold for
being prepared to extradite.
Lord Neill of Bladen
41. You are saying there is no requirement to
show a prima facie case, so it could be a case of mistaken identity.
I was just thinking of the Foreign Secretary who said he was not
in a certain hotel in New York on a particular day. That sort
of mistake, the wrong person charged. The whole procedure could
be set in motion and not be checkable by a prima facie case?
(Mr Ainsworth) It could be checkable
and it could be challenged in a British court before extradition
takes place. Of course, people can apply for extradition having
got the wrong person, but that does not mean to say that extradition
takes place and the person gets extradited to the United States,
or anywhere else, without having had an opportunity to challenge
the fact that they are not the individual who is being requested.
That would result in a hearing here and the opportunity to challenge
42. It is just the protection of the United
States, is it not?
(Mr Regan) The Extradition Bill, which will ultimately
govern our extradition procedures, makes it clear that the first
thing that the district judge has to do at the extradition hearing
in this country, is take a view on the identity of the person
before him. Is he the person whose extradition has been requested?
If the judge is not so satisfied, the person is discharged. There
is a separate question about prima facie evidence, whether the
personassuming they are the right personhas or has
not committed the crime. The view has been taken that in respect
of the United States as, indeed, with all Council of Europe countries,
it is not for us to hold a mini trial. That is a point which has
been debated during the passage of the Extradition Bill and was,
indeed, as Lord Wedderburn knows, being debated yesterday.
43. There are two issues, are there not?
(Mr Ainsworth) Yes.
44. It may be simply a mistake, the wrong person
has been named and that can possibly be sorted out here?
(Mr Ainsworth) Yes.
45. But if it is the case that the wrong person
has been charged, that is not so easy?
(Mr Ainsworth) The issue of prima facie is different
from that on identification, is it not? It really comes down to
what jurisdictions we have confidence in and that they are jurisdictions
that are going to deal with matters in a manner that we would
want them dealt with.
46. But there is an overlap one cannot avoid.
The defence to a charge may be, "I was in England at the
time of this offence", upon which somebody may say, "Well,
we've got evidence that you were not". Is that the sort of
issue which you would have to go to America to run?
(Mr Ainsworth) Well, initial challenges as to identification
and whether or not we have got the right person are able to be
made in this country. What we need to avoid quite obviously is
holding a trial here before the trial is then held in the requesting
Chairman: I think it is quite a difficult line
Lord Lester of Herne Hill
47. Could I explain my concern and then put
my question. Whereas in Europe we have the European Human Rights
Convention with at least the theoretical possibility of using
it as a shield throughout the European Union States and beyond
in Europe, the United States is not party of course to that Convention,
nor has it made an international covenant on civil and political
rights part of its domestic law, although it has ratified it,
and the due process guarantees that the American Constitution,
correct me if I am wrong, has not been held to apply to aliens
in the same way as to US nationals, especially in the context
relating to terrorism and matters of that kind. Therefore, my
concern is that if we are lowering it, and I quite understand
the arguments in general within the European Union, what safeguards
are there built into the system to ensure that the minimum standard
of due process will apply reciprocally between us and the United
States given the background I have just tried to summarise?
(Mr Ainsworth) I understand the point
that you are making. What I would say is that currently, and nothing
has changed as a result of any agreement that we are seeking to
enter into, challenges can be made on extradition hearings in
this country that ECHR obligations will not be honoured, that
people will not have access to due process, will not have access
to a fair trial. They are fundamental under ECHR and if a successful
challenge can be made, then extradition can be refused and it
can be refused by a British judge before the extradition takes
place. I know that what you are saying is that that then does
not reach beyond that to further down the line in the process,
but certainly those initial arguments can be made against extradition
in this country.
48. Could I refine my point because it is very
important, I think. I quite understand that before someone gets
extradited to face inhuman or degrading treatment, punishment
or the death penalty, the ECHR would allow the British judge to
refuse extradition and indeed he would be obliged to do so. I
understand that. What I am really asking is about the confidence
that one can have that the United States' state and federal courts
will apply similar due process, fairness and equal protection
standards under their system given that my understanding is that
the international human rights law that we apply has not been
made part of their law, and their domestic constitutional provisions,
even at federal level, are being very weakly applied to aliens,
especially in a context like suspected terrorism. Therefore, when
we are looking at this Treaty which is going to apply to the whole
of Europe, we have to worry about the United States' standards
as well as European standards. That is what I am trying to get
at in a long-winded way, but I hope you have got my point.
(Mr Ainsworth) There are two motives there in trying
to streamline the process. One is that it is not only the traffic,
the amount of business that we do with the United States, but
it is the degree of confidence that we have in their system.
(Mr Ainsworth) If we did not have a level of confidence
in the United States' judicial system, then we might not be looking
at removing the prima facie requirement for evidence in extradition
50. I am really asking for more than a general
statement and maybe it cannot be given today. I would be grateful
to know that the British Government has looked into this and really
is able to be confident that what I have said is untrue, that
in fact the Government is satisfied that the American Constitution
and standards of due process apply rigorously in the context of
extradition as they would with US nationals. If that is the position,
I am reassured, but if it is not the position, I would be awfully
grateful to know.
(Mr Ainsworth) I can try to return to your more detailed
Lord Mayhew of Twysden
51. My Lord Chairman, is it inherent in the
Government's position that it has no less confidence in the propriety,
for want of a better word, of the judicial system in each state
comprising the United States of America than it has with our European
partners here in Europe because I think the questions so far have
been addressed to the United States' judicial system, but, if
I have understood you correctly, we have to look to the states,
and each individual one, to ask ourselves the question, "Are
we satisfied with the propriety of this judicial system?"?
(Mr Ainsworth) Our main concern, Lord
Mayhew, both in cases and our position with the United States
has always been centred on the death penalty. We have not had
instances of concern outside of that area which have led us not
to enter into the agreement that we are seeking to enter into.
52. I think it may be an oblique answer to this
question, but could I ask for a direct answer to the question:
are we satisfied?
(Mr Ainsworth) The answer is fundamentally yes and
in regard to the death penalty, we have never had a problem with
regard to the assurances which have been given.
Lord Mayhew of Twysden: I can, if it is of any
interest to you or the Committee, give some personal account of
that. We had a case called Soering two years ago involving
Chestnut County, Virginia, and we did actually accept, and we
were entitled to accept, the assurance of the Attorney General
in that case and he reduced the charge to one which did not carry
the death penalty.
Lord Lester of Herne Hill
53. But there was a most unfortunate other case
involving Paraguay when the International Court of Justice called
upon the United States in an interim judgment not to enter into
something in breach of a convention and the United States Supreme
Court said, "We put that in the waste paper basket because
it is an international court whose jurisdiction is not part of
our domestic law", and the man was executed. That was about
three years ago over a sharp descent into the Supreme Court. It
is cases like that, from which I learned most of my law in the
United States for which I am deeply grateful, which I worry greatly
about and that is why I ask my question.
(Mr Ainsworth) When I try to get into
the whys and wherefores of a case that I am not familiar with,
I think that that is slightly different from where the United
States has entered into a clear commitment and given prior agreement
that they would not enact a particular penalty or would not seek
it in the first place. In those instances, we have never had a
problem and I have not heard of instances, nor have any been brought
to my attention, where other countries have had a problem either.
54. Minister, just picking up one part of your
answer to Lord Mayhew's question, you said that the only assurances
which in practice had to be asked for or given related to capital
punishment. Have there not been recent cases where assurances
have had to be sought relating to the trial of a person extradited
on terrorist charges in ordinary federal courts rather than in
military courts? As you will know, there were some military courts
set up in the United States for dealing with, among other things,
terrorist offences. Have there not been cases where assurances
have been sought?
(Mr Ainsworth) In any extradition case
we would need to satisfy ourselves that the person being extradited
was going to be subject to due process and was effectively going
to receive a fair trial.
55. There might be an argument as to whether
these military tribunals constitute due process or not.
(Mr Ainsworth) The ECHR rights dictate that they will
be given a fair trial and we would need to ensure that that was
(Mr Welsh) None of the requests from the United States
that we have had to date have related to a military tribunal.
They have all been in the normal courts.
Lord Lester of Herne Hill
56. But the question is surely what would happen
if they did? For example, the British nationals detained in Camp
X-Ray have not had access to any due process and the federal courts
have said that there is no jurisdiction, so suppose someone would
be extradited in circumstances where the secret military tribunal
under the presidential order were to operate, that would not satisfy
the international covenant or the European Convention as an independent
and impartial tribunal. Would we then be able to refuse extradition
on that basis?
(Mr Ainsworth) We would, we have and
we would continue to be able to. If a case can be made that ECHR
rights were not going to be protected, then extradition can be
57. Even in respect of due process alone?
(Mr Ainsworth) Even in respect of due process alone,
The Committee was suspended from 4.54
pm to 5.03 pm for a division in the
House of Commons
58. I am sure that most of the Government agree
that it appears to be correct that people regard it as democratically
offensive to extradite anybody to face trial before a military
tribunal, but the question is much more practical than the rather
general, but very important question we have asked so far. I am
concerned about the practical effects of extradition in two regards.
The first is identification. If you divorce extradition from its
lower level of what I might call `usual crime' to its upper level
of international crime, there is a serious risk of identity theft
these days as part of the international criminal's operation (see
the case of the English citizen in South Africa, which led to
the man being kept in prison there for three or four weeks unnecessarily),
so my first question to you is: is it not appropriate, therefore,
to consider a code of practice to be applied by both the US and
European authorities, a common code of practice as to the best
way of seeking reasonably to establish identity rather than face
several dreadful cases which then produce a code in a year or
two's time? The second point is one which does really concern
me about the test of reasonable basis to believe that an offence
has been committed as the new test. It is highly likely, as occurred
in the case of a Middle Eastern man last year, that the court
will ask the requesting State for more information. Sometimes
it comes and sometimes it does not because there is not any to
come. That man was in prison for six months and then the proceedings
were abandoned. Question: what system can be put into place to
ensure that extradition requests do not result in people being
kept in custody for unreasonable periods of time pending further
(Mr Ainsworth) First of all, if we talk
about this issue of the military tribunal and whether or not we
believe that we have got adequate safeguards against that, extradition
will only take place, whether it is the United States or any other
extradition partner, on two grounds: when a case is presented
that an individual has escaped from custody and still has a sentence
to serve; or when they are wanted for the purposes of putting
them on trial. At that point it will be apparent who wants them
and where the trial will be required to be. If what is being proposed
is in any way in breach of their ECHR obligations, extradition
will not take place, so unless there is a proper judicial process
that they are going to face or a fair trial which they are going
to face, then they will not be extradited, so you are absolutely
right and if anybody wants to see a situation where people are
extradited from this country and are not going to face a fair
trial in the country they will go to, and we are convinced of
that, it has not been able to happen under our existing arrangements
and it will not be able to happen with regard to anything we arrange
now. With regard to identity fraud, I think it is a very big challenge
to us in so many areas now, but we are trying to speed up all
of our arrangements, not only our co-operation, our information
arrangements as well as the speed at which people are brought
before trial in order to avoid unreasonable delays and in order
to avoid people being locked up pending further information for
unreasonable lengths of time, contained within the Extradition
Bill are clear timetables by which people will be brought to decision
in order to try to avoid those unreasonable circumstances.
59. Can I just pick up that answer. I do not
doubt for a moment that the intention is that if the circumstances
appear to show that extradition would be a breach of ECHR, then
extradition would not take place, but the circumstances of it
would have to be shown to the magistrate or whoever was taking
the decision in order to reach that particular state, but is the
Government satisfied that the terms of the agreement that has
been negotiated between the European Union and the United States
would permit refusal of extradition on that ground?
(Mr Ainsworth) We are absolutely satisfied
that the agreement that we have entered into in no way can impinge
upon our ability or the ability of the judge who is looking at
the case to decide that he has not received adequate assurances
with regard to ECHR obligations and is able not to extradite in