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In this globalised world, when you can affect what happens in other countries by the touch of a computer button, it must be right that we should agree to speedier procedures. The problem arose because of the point that the noble Baroness and the noble Lord raised about the apparent imbalance between the information requirements. That is the fundamental point. When I was in the position that my noble and learned friend the Attorney-General now holds, I wanted to know more about the difference because it is plain that there is a difference on the face of the words. I called two people into my office-the senior Crown Prosecution Service lawyer responsible for the requests which went to the United States for extraditions from that country and the liaison officer from the United States embassy responsible for processing the requests that came from the US to the United Kingdom. I asked those lawyers to explain what they put together in their dossiers. It became clear to me that, whatever the wording was, the dossiers were the same. They were providing the same information in as out. I think that my noble and learned friend will be able to say-because it is no longer my responsibility-whether that remains the view of the Government, based on the empirical evidence.
I accept that the words are different, and the noble Lord, Lord Thomas of Gresford, is right as to the constitutional reason why the United States has insisted on a particular form of words and that it cannot do more than that, but in practice the information requests are the same. I look forward to hearing what my noble and learned friend says about that and whether my recollection of what took place then remains the case.
Lord Thomas of Gresford: I am sorry to interrupt the noble and learned Lord again, but does he accept that the information is before the United States judge when we make a request, but that under the treaty, the warrant is all that is before a United Kingdom magistrate-or, these days, the district judge who is considering such a request?
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Lord Goldsmith: My Lords, the noble Lord will know-I hope that I have made this clear-that what is apparent from the practice is that the same information is provided outwards as inwards.
I listened carefully to what the noble Baroness, Lady Neville-Jones, said about the standard that she proposes in new subsections (4) and (5). A judge would be required to decide,
- "whether the information provided would be sufficient to make a case requiring an answer by the person if proceedings were the summary trial of an information against him".
She said that she did not intend that to be the prima facie test. However, that is exactly what the amendment provides. If that is not her intention, perhaps she will not press the amendment. The risk is that this will be taken to mean that the judge must be satisfied that there is a prima facie case. The test takes one back to the potentially lengthy extradition proceedings that we had and were trying to get away from. There may be good arguments about whether we should. I think that we should because of the world in which we now live. However, if the noble Baroness does not intend that to be the prima facie test, I respectfully say that this is not the right amendment.
Finally, I have not spoken to the noble and learned Baroness and have no idea what she will say. However, to change the information requirements would not be consistent with our treaty obligations. Whether we should have entered into the treaty is another matter; but we are where we are today and this House should not require the Government to do something that would put them in breach of their international obligations.
Baroness Scotland of Asthal: My Lords, I thank my noble and learned friend Lord Goldsmith for his comments on the amendment. I assure him that he is absolutely right and nothing has changed.
I say to the noble Lord, Lord Thomas of Gresford, that when I was Minister of State at the Home Office and responded on these issues, I did so before the treaty was ratified and before we had an opportunity to look at the practice as opposed to the form. My noble and learned friend Lord Goldsmith, the then Attorney-General, as he described, made an inquiry as to what in fact was the position in relation to the two countries.
There is a difference between form and fact. I hope that I have made it clear in my most recent letters that what my noble and learned friend Lord Goldsmith describes is exactly what happens now. The information before the United States court demonstrating probable cause does not need to be in an evidential format. In both cases-extradition from the UK to the US and vice versa-the courts consider the relevant domestic test. The text of Article 8 of the treaty makes this clear.
In answer to the question of the noble Baroness, Lady Neville-Jones, about the clarity that she wishes for on information, Section 71(4) of the Extradition Act 2003 makes it clear that the information that must be provided by a designated judge in a category 2 territory must be sufficient for an arrest warrant to be issued in the judge's jurisdiction. In other words, there must be reasonable suspicion, which is the domestic
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I understand that the noble Baroness has had anxieties about that and that she seeks clarification. However, my noble and learned friend Lord Goldsmith is right when he says that if she does not wish to ask for prima facie evidence, the amendments do not do what she wishes; in fact, they ask for prima facie evidence. Part 2 territory really must provide evidence establishing a prima facie case-she asked me about the exception-unless that territory has been designated for the purpose of Section 84 or Section 86 of the 2003 Act. Members of the Council of Europe convention on extradition and other trusted extradition partners-the United States, Australia, Canada and New Zealand-have been designated as Part 2 territories for these purposes so they do not have to establish a prima facie case.
My noble and learned friend Lord Goldsmith is right to say that those of us who have had the great privilege of being in this House for a tad longer than the noble Baroness, Lady Neville-Jones, have had the joy of discussing these issues since 2003, almost continuously. We have gone down these roads before and I am delighted to hear the noble Lord, Lord Thomas of Gresford. However, it would have been better to debate this matter in Committee. At that stage, the decision was made that my letter, which I hoped was comprehensive, was sufficient for us not to be burdened with the debate. I would have been delighted if that position had been maintained.
I shall now deal with the substance of the amendments. I hope that the noble Baroness will be assured that the concerns which she had on parity are not well founded. Her clear intention that this should be a situation which delivers parity of treatment and fairness is the case, and as a result I hope that she will not pursue the amendment. If she were to pursue it, as I made clear in my letter, that would, contrary to the assertions made by other counsel, put us at risk of being in conflict with our obligations. I am confident that Her Majesty's loyal Opposition would never wish to put the government of the day in that position and if they were ever to enjoy the burden of government, they would not wish to be put in that position themselves.
I hope that I have reassured the noble Baroness with the letter written on 19 October and the letter of yesterday's date to which she and the noble Lord, Lord Thomas of Gresford, have kindly referred. If I have satisfied her, I hope that both she and the noble Lord will be content to withdraw the amendment and not bring it back.
Lord Thomas of Gresford: My Lords, let me clarify my situation. My amendment is listed separately and I intend to address your Lordships on it.
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Baroness Scotland of Asthal: My Lords, I was simply inviting the noble Lord to early consideration of his position, particularly because I know that he has now had the advantage of mature reflection, having read the letters and considered the debate. I am confident that the noble Lord would not wish to take a position precipitously which would appear to fly in the face of the information and evidence now before us.
Baroness Neville-Jones: My Lords, I thank the Minister for that clarification on what constitutes information. That is reassuring. I also thank other noble Lords for their contributions to the discussion. Surely, the Minister and the Government are aware that quite a lot of unease remains about the workings of the extradition treaty and whether it represents reciprocity, putting it in simple layman's language. I raised a number of other points and perhaps I can have a conversation separately with the Minister about them. I offered to look at the drafting if the problem with my amendment was unintended effect; it was not intended to disable us fulfilling our obligations as laid down or to create a condition of prima facie evidence. I do not think that we need to be hung up on that. However, I suspect that I am not going to get any co-operation on drafting. In light of the discussion we have had and, perhaps, the inability to take this further, I beg leave to withdraw the amendment.
96ZA: Before Clause 66, insert the following new Clause-
"Restriction on extradition in cases where trial in United Kingdom is more appropriate
(1) The Police and Justice Act 2006 (c. 48) is amended as follows.
(2) In paragraph 6 of Schedule 13 for subsections (1) to (3) substitute-
"Paragraphs 4 and 5 come into force on the day on which the Policing and Crime Act 2009 is passed.""
Lord Thomas of Gresford: My Lords, I heard the explanation given by the Attorney-General. I have no reason whatever to doubt what she and the noble and learned Lord, Lord Goldsmith, said about the bundles of papers that cross their desks containing the same information. That was not my point. My point was that the judicial authority in the United States must consider the evidence, which is disclosed to the person whose extradition is sought so that he can challenge it before a judge in the United States but, when it comes to this country, all that appears is the warrant, which is unchallengeable. The magistrate does not see-at least, I do not imagine he does-the documents that pass between the Attorney-General of this country and the requesting authority in the United States. As there is not equality of consideration, the person whose extradition is being sought is in a different situation if he is able to challenge a case in the United States, but cannot do so in this country. It is quite wrong to suggest that equality has been achieved.
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The whole thing about extradition was that it was always assumed that a state owed a duty to look after its own citizens. In the 19th century, fugitives from justice all over Europe came to this country. The regimes in those countries, very often what we would call fascist regimes, dictatorships and so on, would pursue them to this country. The law of extradition developed in that way. In Europe, where they have the civil system and not the common law system, it remained, until the introduction of the European arrest warrant, a basic principle that you do not extradite your own citizens. In the civil countries, you can certainly extradite fugitives from other countries, but they resisted extraditing their own citizens. Under the common law, we did not have that rule.
What we had was Article 7 of the European Convention on Extradition 1957, called "Place of Commission". It applied across Europe, including in this country. It states:
"The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory".
So even this country can refuse to extradite its own citizens or any other country's citizens on the basis that the forum is more appropriate here and a person should be tried here rather than in another territory. For every other European country, that principle remains in their bilateral treaties with the United States, but not for us. We have abandoned it.
Article 4, "Grounds for optional non-execution of the European arrest warrant", of the framework decision on the European arrest warrant, says:
"The executing judicial authority may refuse to execute the European arrest warrant",
- "the European arrest warrant relates to offences which ... are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such".
Although the continental countries in the European arrest warrant have conceded that they will extradite their citizens, they still hold on to the question of forum.
The amendments now before the House are in my name. They were in the name of the noble Baroness, Lady Neville-Jones, in Committee, and I am not responsible for the fact that there was no debate on that occasion because they simply were not moved. These seek to bring in the provisions of the 2006 Act, which would give the courts of this country the opportunity to consider forum and whether it is in the interests of justice that the person sought should be extradited.
The argument against that, as set out in the noble and learned Baroness's letter, is that that in some way transfers responsibility from the CPS to the judge to decide where a case should be prosecuted. That is not the intention at all; the intention is simply to give the magistrate or district judge considering extradition proceedings in this country the ability to consider whether it is in the interests of justice that this person should be tried abroad or in this country. It is still a matter for the CPS to decide what to do.
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Every court in Europe can decide whether it is in the interests of justice to permit the extradition of an individual, but we cannot do so unless the amendment is accepted and the provisions of the 2006 Act, which were fully argued and put through by this Government-I think it was John Reid who finally put these provisions through-are brought into effect. In any event, why should the judge not consider whether it is in the interests of justice for a person to be extradited?
Now that extradition to the United States is a rubber stamp procedure, save only for the bars that are set out in the Act, why should the prosecutor have the power of decision when the defendant cannot make any representations to him, at least not easily, to be tried in this country? Of course he can challenge that decision, as in the McKinnon case and in other cases, by way of judicial review, but if the court considering an order of extradition had the opportunity to take an overall view of whether it was in the interests of justice, as every other European country can, would that not be so much better?
The noble and learned Baroness said in her letter:
"The issue of forum is decided by discussions between prosecutors from different jurisdictions".
That is perfectly reasonable and proper, save only for the fact that the defendant has no right to make any representations on where he should be tried. Political considerations may well come into decisions that cannot be challenged easily by the person who is to be extradited. Political decisions between prosecutors were the fundamental issue in the Osman case, to which the noble and learned Lord, Lord Goldsmith, referred. The question was whether Mr Osman should be tried in Malaysia, where his bank had suffered about £1 billion of losses and where he lived and was a native, or whether he should be tried in Hong Kong where the property crash had caused the losses. That is what it was all about.
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Another argument advanced by the Government, to which the noble Baroness, Lady Neville-Jones, referred, was that you cannot do this because it would breach all our extradition treaties. Mr Edward Fitzgerald QC and Julian Knowles have provided Liberty with an opinion. He can be found in almost any quarter of the world. He is very expert in this subject. In that opinion, which I am sure the Government have seen, he has demonstrated that many EU member states have enacted additional grounds for refusing extradition. He quotes the leading textbook on this case by Nicholls, Montgomery and Knowles. Your Lordships should know that Clive Nicholls and Miss Montgomery led for the Hong Kong Government in the case which lasted seven years, so they knew the other side of the coin. Their extraordinarily good book, The Law of Extradition and Mutual Assistance, which I recommend as bedside reading, states:
"Many countries have introduced grounds for refusing extradition other than those provided for in the EAW Framework Decision. Denmark, Italy, Malta, The Netherlands and the UK have introduced additional reasons for refusal, such as delay, political discrimination and national security, while other states have grounds for refusal connected with the merits of the case, eg, its special circumstances or the personal or family situation of the individual in question".
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Other countries do it and have put provisions in domestic law which do not coincide exactly with the treaty. There are bilateral treaties with the United States, for example. Those treaties lay down broad agreement on principles, but they do not prevent a country such as ours from exercising its own jurisdiction and adding extra bars or extra considerations for the making of the decision to extradite by the court.
All I seek to do is to put into effect provisions which passed through this Parliament three years ago, which the Government have refused to make effective. If we do that, we may get somewhere nearer the parity which the citizens of this country would expect for their protection and the traditional aim of extradition law. I beg to move.
Lord Goldsmith: My Lords, the noble Lord and I may be among the few Members of this House who have this work on our bedside table on frequent occasions, and excellent it is. Perhaps I may respectfully point out the problem with what the noble Lord has said. He has made a plea towards the interests of justice. I think that he will recognise that where the prosecutors decide that there is a case and that it should be brought in this country, any extradition on that offence would be blocked. The problem therefore lies not where it is the prosecutors' view that the interests of justice favour prosecution here as against overseas, but where there is no prosecution here. In those circumstances, does not the question become: is it in the interests of justice that someone should not stand trial at all?
That is the uncomfortable but necessary dilemma to which the proposal brings one. That is why I would not be able, and have not been able, to support the idea that if there is a judicial decision-not one that orders the prosecutors to prosecute-it would be better that someone were prosecuted here rather than overseas, but that if they are not prosecuted here, they should go unprosecuted. The interests of justice require that someone in those circumstances should be prosecuted somewhere. That for me is the problem.
Baroness Neville-Jones: My Lords, I can be brief. The noble Lord, Lord Thomas of Gresford, has spoken at length on this issue. The unease that we have on these Benches is something I outlined in the discussion of the previous amendment; namely, that the role of the courts is greatly limited when there is an extradition hearing in relation to requests from designated category 2 countries. The judge is not permitted to decide at the hearing whether the information submitted meets the standard of reasonable suspicion. It is against that background that people feel it would be helpful to have these forum provisions in operation.
I accept that we do not have the time to go into what is a complex set of issues today, but I believe that they will continue to linger in the public debate.
Baroness Scotland of Asthal: My Lords, I commend the noble Baroness on the view she has taken on not pursuing the amendments in relation to the forum because she is quite right that these issues have been settled. Indeed, we remember only too well the forceful intervention made by the noble and learned Lord,
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"The question as to whether to prosecute must be for the prosecuting authorities and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions, it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country".-[Official Report, 20/10/09; col. 603.]
So I commend the noble Baroness on her approach to this matter.
Perhaps I may respectfully say to the noble Lord, Lord Thomas of Gresford, that he is wrong to continue to assert that the procedure in our courts is just a rubber stamp. While the court certainly has the warrant before it, it is not the case that the courts here simply rubber stamp that warrant. The court would have to be satisfied that all of the information is such as to provide reasonable grounds for suspicion. So the information to which I referred and that to which my noble and learned friend Lord Goldsmith referred is provided not only to the Secretary of State but also to the judge so as to enable him to make his assessment. I hope that I have been able to reassure him that this is not something that is somehow restricted in the nature of information.
Perhaps I may also remind him of what I said three years ago in this House in relation to forum provisions in the Police and Justice Act 2006. I shall quote from Hansard:
"At this point I wish to say a few words about the government amendments passed by another place. We have tabled these purely out of procedural necessity to enable the matter to return to this House. They do not alter the Government's position one iota. We cannot and do not agree with the amendments tabled by the Opposition and passed by this House in July".-[Official Report, 7/11/06; col. 650.]
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