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Joan Ryan: We also have reciprocity with the US, as I have outlined a number of times. At the end of the day, that question can be put time and again, but the hon. and learned Gentleman is not prepared to accept my explanation. My explanation is, however, the correct interpretation, because we have reciprocity. It is rough paritythe highest level of reciprocity that is possible between two legal systems.
The treaty will also permit the waiver of speciality protection. I want to talk about the treaty because it has been such a big issue for hon. Members, especially Opposition Members, every time the issue has been discussed in the Chamber. Opposition Members have insisted that we would not be able to achieve ratification in the US Senate, but Baroness Scotland went to the United States and persuaded the Senate that ratification was right. The measures in this treaty, which bring great benefits to British citizens in terms of delivering justice, are worthy of a little attention. It saddens me that Opposition Members do not want to talk about what is actually in the treaty, but are entirely focused on the points in the Extradition Act 2003, which we have discussed ad infinitum. I ask them to address some of the issues in the treaty.
The speciality protection could be very important. Speciality means that when someone is extradited they can be tried only for the conduct on the extradition warrant. That is an obvious protection of their rights, but what if our police foundafter the person had been returned herethat he was also the prime suspect in a completely separate crime? And what if it was a very serious crime, such as a sexual attack on a child or a terrorist offence? It has happened in real cases that such offences have come to light after extradition. Would it not be in the interests of justice and the victims of the crime to be able to prosecute those offences as well? Waiver of speciality enables that to happen where appropriate. It is essential that we have that measure in our arrangements with the United States.
Emily Thornberry (Islington, South and Finsbury) (Lab): Can my hon. Friend give specific reassurance to a group of my constituents from the Muslim Welfare House who are especially concerned that if one of their number were to be extradited they could end up in Guantanamo Bay?
I know that that has been an issue of concern for several hon. Members, so I am grateful for the opportunity to address that point. When a judge in this country is making a decision about an extradition warrant, they have to apply the European convention on human rights. If we extradite someone to the United States and they are then removed to a detention centre such as Guantanamo Bay, that would in our view be a breach of their human rights. If our courts, when hearing an extradition request, thought for one moment that a breach of human rights would occur, they would not extradite. If they did extradite and there were a
breach, it would never happen again, because our courts would refuse to extradite on that basis. We would immediately be in a situation in which the US was no longer designated in that category.
I wish to add what is perhaps the most important point. We seek assurances on such matters, where appropriate, from the US. For instance, when we extradite someone who has committed an offence that would carry the death penalty in the US, we seek assurances that that penalty will not be applied to the citizen we are extraditing. Similarly, in cases such as those that my hon. Friend mentions, we seek assurances, and we have been given assurances. I can tell my hon. Friend that the US has never breached the assurances that it has given. I hope that that covers the point that she has raised with me.
Mr. David Winnick (Walsall, North) (Lab): The situation in Guantanamo Bay is very worrying for many of us, but when the magistrate who deals with such applications for extraditions to the US gave evidence to the Home Affairs Committee, he was asked if he would ever agree to the extradition of anyone who could end up in that placewhich should not even exist. He said that if he thought that there was any such danger, his response would be to reject the application. I hope that that continues to be the position.
Sir Gerald Kaufman (Manchester, Gorton) (Lab): Both of my hon. Friends who have intervened about Guantanamo Bay are right to say that it is a matter of deep concern to members of the Muslim community. Will my hon. Friend the Minister confirm that my right hon. Friend the Home Secretary has written a letter to me about Mr. Babar Ahmed, whose case is before the High Court? If Mr. Speaker will allow me, I should like to read from it. My right hon. Friend says that
in relevant cases, the court has been given an assurance that the person sought will not be sent to Guantanamo Bay.
Joan Ryan: I can indeed confirm that my right hon. Friend the Home Secretary has written to my right hon. Friend in exactly those terms. I thank him for that helpful intervention on this very serious matter. It further illuminates and confirms what I am telling the House.
There is another measure that will bring justice to those who have been denied it in this treaty. When an offence in the US is barred by lapse of time from prosecution there, dual criminality means that the suspect cannot be extradited to be prosecuted for it here. The treatys removal of the bar due to lapse of time could be important in returning sex offenders to the UK, where
their victims might not have spoken of their ordeal until many years after the event, or in prosecuting a so-called cold case.
Dr. Murrison: I am grateful to the Minister. My constituent Mr. Giles Darby is one of the so-called NatWest Three. He is experiencing not rough parity but rough justice. Is it right that a person can be extradited to face such draconian bail terms? Fortunately, my constituent is not in Guantanamo Bay, but he faces months and months away from his family, home and livelihood. Where is the parity in that?
Joan Ryan: We are discussing the Lords amendments, and it would not be appropriate for me to discuss individual cases in the Chamber. However, Conservative Members insisted that bail would never be given in the US, and that the Senate would never ratify the treaty, yet bail was given and the Senate did ratify the treaty. Their assertions are falling one by one, so perhaps they should reassess their position.
Mr. Heath: I am grateful to the Minister, as I want to speak from the consistent Benches. I draw her attention to article 2, clause 4 of the treaty. As she knows, America claims extraterritorial jurisdiction over a wide range of American offences, whereas we tend not to do the same. The passage to which I refer is interesting, as it states that
if the laws in the Requested State do not provide for the punishment of such conduct committed outside its territory in similar circumstances...the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met.
In other words, there is discretion if America is claiming extra-territorial jurisdiction in circumstances in which we do not, but that is not transposed into our law either through the Extradition Act or through the regulations that flow from it. Why is the one element of discretion available to us to prevent inappropriate extraditions not being dealt with in British law?
The first of the amendments restores the prima facie evidence requirement in US requests, to which I referred earlier. Much has been said about claimed differences in the standards of evidence required by the US system and ours. The fourth amendment to the US constitution refers to probable cause, stating that
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.
the judge may issue a warrant...if the judge has reasonable grounds for believing that...there is information that would justify the issue of a warrant for the arrest of a person.
Clearly, those standards are not exact replicasof course not; our system is not exactly replicated in any other countrybut they are very similar, and much closer than before. I remind Members that other robust safeguards in our extradition law can, and do, prevent unjust extradition, and they have been upheld in several cases taken to the High Court.
Lynne Jones: On the point about rough reciprocity, in previous debates in this and the other place Ministers stated that probable cause is a lower cause than prima facie, but a higher threshold than we ask of the US. Ministers have, therefore, acknowledged that lack of reciprocity, although I agree with my hon. Friend that it is not reciprocity that is important, but justice.
Joan Ryan: I think I have covered that point more than once this afternoon, and we shall no doubt come back to it more than once as the debate continues. Rough parity is all that is possible unless we harmonise our legislation, which we do not propose to do. Rough parity means that we are as close as we can get to having the same standard of evidence required in the US or the UK for an extradition request to be confirmed.
The second amendment from the other place requires the judge who is considering the request to refuse it if any of the conduct was carried out in the UK, unless it would be in the interests of justice to extradite the person. I understand that some Members attended a briefing this afternoon by the supporters of the amendment, so I shall explain why amendments Nos. 81 to 84 will not solve the problem as they see it. We cannot remedy one problemreal or perceivedby substituting another.
There are several reasons why these amendments are wrong. The first is the difficulty that they would impose on the judge in coming to a reasonable decision on a case without having access to all the evidence, which may itself not be in the interests of justice and could lead to the person being tried twice. Alternatively, it could result in someone accused of serious cross-border offences escaping justice altogether. Where prosecutors have decided that a case should be tried in country A, rather than country B or C, it is not proper for a judge to second-guess that. If a person is requested for extradition, the Extradition Act in any caseright nowprovides for the extradition to be halted if the prosecutors here decide to take proceedings. So the amendment is both unnecessary in the interests of justice, and wrong.
Mr. Neil Gerrard (Walthamstow) (Lab): Is it always the case that prosecutors in this country will seriously look at the case in that way? If extradition proceedings were initiated from another countrywe are not talking just about the United States; the measures apply to a whole range of countrieswill the Crown Prosecution Service seriously consider whether there should be a prosecution in this country? Is it not just as likely that the extradition proceedings will go ahead without that consideration being given?
Joan Ryan: I can assure my hon. Friend that our prosecutors look seriously at such matters. I refer him to the answer that I gave my hon. Friend the Member for Hendon (Mr. Dismore): of course these issues have been raised and the Attorney-General and the Home Secretary are having conversations with the Attorney-General of the United States about the system. As my hon. Friend the Member for Walthamstow (Mr. Gerrard) said, this is not just about the United Statesalthough I am afraid that in this instance it is, because those are the amendments before us. Perhaps he, like me, is thinking that there are 50 countries in this category. I can reassure him that one of the strengths of our prosecution system is that it is independent of the judiciary. We do not wish to discard that, and the amendment would mean that we had to discard it.
Our prosecutors do consider the cases. As I have saidI hope that this reassures my hon. Friend, because we have seen cases in which this has happenedif the prosecutors, such as the Crown Prosecution Service, the Serious Organised Crime Agency and the Financial Services Authority, decide that there is a case to answer here, that takes precedence. That is why the amendment is both unnecessary and wrong. However, the Government recognise that much concern has been expressed about the fairness of our provisionsrightly or wronglyand that there is a widespread perception that there is a lack of clarity. In view of that, as I have said, the Attorney-General has already raised the issue with his counterparts in the United States.
As I also said in response to my hon. Friend the Member for Hendon, the proposed procedures envisage early consultation on any case which it appears to a prosecutor in one country that there is a real possibility of a prosecutor in the other country having an interest in prosecuting. That does not need to be repeated further. Reassurance has been provided on that point. These proposals would not contain the serious flaws of the Oppositions forum amendments, and would, I am sure, provide business people and others with reassurance that the Government have listened to their concerns and taken action. My right hon. Friend the Home Secretary will meet the Attorney-General in the next few days to discuss these matters, and to take that forward.
Finally, the third change suggested by the Opposition, amendment No. 85, requires a future designation of the United States, and the treaty in force, to be consistent.
The amendment is badly drafted and obscure, but basically it is unnecessary, because any such designation order must be approved by a vote in both Houses of Parliament, so parliamentary control over future designation orders is already securely in place.
As I said at the beginning of the debate, this is our last opportunity to undo the damage done in the other place and enable the United Kingdom to realise the benefits of the new treaty. Hon. Members should be in no doubt about the consequences of the Lords amendments: they would wreck the chance to ratify the new treaty, wreck our ability to bring more fugitives from justice to book, and make extradition slower and less effective. In the interests of justice, in the interests of victims of crime and in the interests of making this world a safer place, those amendments must go.
First, I want to tackle head on a mistake that the Minister allowed to emerge from her speech when she cited section 71 of the Extradition Act 2003 and tried to gain support from that provision for the assertion that the concepts of information and evidence were precisely the same. Either she does not understand section 71, or she has misread it. A careful or, indeed, cursory reading of the provision makes it clear that evidence and information are wholly different concepts and that they are applicable in different jurisdictions. Evidence is what we have to show to the United States, while information is what the United States has to provide to our courts. The two concepts are not the same and the 2003 Act does not say that they are, so it was wrong of the Minister to mislead the House, albeit unwittingly, by saying that they were similar concepts.
Tony Baldry (Banbury) (Con): Could we not have highlighted another mistake if the Minister had allowed us to intervene? She seemed to think that none of the forum rules was determined by judges, but the forum rules under the 1957 European convention on terrorism are determined by judges. The idea that the forum should be determined by prosecutors is rather novel. The Minister seemed to thinkand was pretending to the Housethat that was the norm, but clearly it is not.
Mr. Garnier: My hon. Friend and I know, as others will know from practising at the Bar, that judges day in and day out have to decide the issue of forum, whether it is in the civil or criminal jurisdiction. My hon. Friend is entirely rightit might be for a prosecutor to make a case, but it is for a judge to make a decision.
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