Publications on the internet
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 644-vi
HOUSE OF COMMONS
TAKEN BEFORE THE
Home Affairs Committee
Tuesday 28 February 2012
Sir Menzies Campbell
ELAINE TAPPIN and NEIL TAPPIN
Dominic Grieve and Keir Starmer
Evidence heard in Public Questions 334 - 474
USE OF THE TRANSCRIPT
This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.
Taken before the Home Affairs Committee
on Tuesday 28 February 2012
Keith Vaz (Chair)
Mr David Winnick
Examination of Witness
Witness: Judge Riddle, Senior District Judge, Westminster Magistrates’ Court, gave evidence.
Q334 Chair: This is the final session of the Committee’s inquiry into extradition, and we are very grateful that we have Judge Riddle giving evidence to us this morning-the Senior District Judge, the Chief Magistrate, dealing with extradition cases. Judge Riddle, I am most grateful to you and the Committee is most grateful to you for coming in today.
Before we begin our questioning I would like to remind colleagues of the House’s rule relating to matters that are sub judice, which means cases that are currently before the courts. We will not be asking you about any of those cases. I would also like to remind the Committee of the agreement that has been made with the Lord Chief Justice of the constitutional arrangements between the House and the judiciary, which means that we will not be questioning you on any of your decisions or the reasons for your decisions. The purpose of this session is to look at the process of extradition.
Perhaps I can begin. How many extradition cases have you dealt with since you took over from Judge Workman as the Chief Magistrate dealing with these matters?
Judge Riddle: Probably between 500 and 1,000, of which I would say maybe 100 to 150 have been, if you like, hotly contested.
Q335 Chair: Presumably the vast majority of these cases relate to the European Arrest Warrant?
Judge Riddle: Yes.
Q336 Chair: If I could explain, when the Committee began its inquiry we were looking both at the UK-US Extradition Treaty and the European Arrest Warrant, but we have received quite a bit of evidence about the European Arrest Warrant and therefore we have decided to produce a report specifically on the UK-US Extradition Treaty. We will return at a later date to look at the European Arrest Warrant. I have agreed with the Lord Chief Justice that the Committee should come and observe you in action to see how these cases take place.
Judge Riddle: You are very welcome, both individually and separately and, of course, with your staff.
Q337 Chair: For the purposes of my questions-other colleagues will ask about the European Arrest Warrant-could we concentrate on the UK-US Extradition Treaty?
Judge Riddle: Yes.
Q338 Chair: You are dealing with the process of extradition. How is the judiciary involved in this? What exactly do you do when you get a request?
Judge Riddle: We get a request from the Secretary of State, in the first instance. It has come from the United States Government via the diplomatic channels, comes to the Secretary of State and eventually comes to us with an application for an arrest warrant. We have to check some of the basics, as set out by Parliament, and we do that. If the arrest warrant is issued, sooner or later, one hopes, the defendant will appear in front of us. There are time limits as to when the papers must be served on the defendant-depending on the circumstances, 45 days or two months. At the first hearing we tend to deal with what issues might arise and we then have another hearing to deal with those issues, and each case, of course, is different.
Q339 Chair: Are these technical issues? Is there any question of looking at the evidence that has been given by the United States or do you just decide on whether or not the warrant is in order? Do you deal with any of the substance?
Judge Riddle: Not in terms of the strength of the evidence, which I suspect is the thrust of the question. Obviously we have to satisfy ourselves that it is an extradition offence and, as you say, of some of the technical matters.
Q340 Chair: But there is no review of the evidence that has been sent, if any?
Judge Riddle: The United States tends to send rather more detailed information than most other countries do, so in fact they do provide us with a lot of information that we do not necessarily need. But in fact very often that turns out to be material in the hearings, for example if there has been a delay in the proceedings, the information is useful. We do in fact get quite a lot of information from the United States, although technically it is not necessary.
Q341 Chair: But you do not act on that information because you do not look at any of the substance?
Judge Riddle: Not in terms of finding whether there is a case to answer, no.
Q342 Chair: Do you know much about the other side-the process that the Americans use? Have you ever been over to America to look at the way in which they deal with extradition?
Judge Riddle: No. The only other country I have been to observe is France.
Q343 Chair: How does the system work there? Is there a testing of evidence?
Judge Riddle: No. They deal with things very differently to us. I have been to the Cour d’Appel in Paris and they will hear, perhaps, 20 cases, nearly always European Arrest Warrant cases, in a single afternoon, once every week or once every fortnight. They deal with, I think, a slightly smaller volume than we do and they deal with it far more expeditiously than we do.
Q344 Chair: Do they deal with the substance of cases or do they just deal with the technicalities of the law?
Judge Riddle: I can’t tell you how they deal with American cases, I haven’t seen one, but certainly as far as the European Arrest Warrant is concerned, no, they don’t.
Q345 Lorraine Fullbrook: Judge Riddle, you said that you review the information when you receive a request, particularly from the US. When you review the information, do you review it on a test basis of probable cause, as in the US, which is a lesser requirement than the UK test, which is reasonable suspicion? Which do you look at, the US probable cause or the UK reasonable suspicion?
Judge Riddle: I follow United Kingdom law. I couldn’t tell you whether there is a difference, but I follow the usual practice in the United Kingdom, which is reasonable suspicion.
Q346 Chair: In your experience, what are the common features of extradition cases?
Judge Riddle: Are we talking generally?
Judge Riddle: They almost always-by which I mean 99% of the cases-involve foreign nationals who are requested back in their own country. That is the most striking and overwhelming feature of the cases. Only a very small number of cases involve British citizens at all. Generally, those are British citizens who have either been living abroad or perhaps, very rarely, been on holiday abroad when the alleged incident occurred. In my personal experience I have never had a case-I know there are cases-in which the defendant was in this country when the conduct occurred.
Q347 Chair: Do they generally involve cases in which the accused was in America when the offence took place, or in the United Kingdom, concentrating on the Americans?
Judge Riddle: The American cases I have had, and we are not talking about significant numbers here-
Q348 Chair: No. How many are we talking about?
Judge Riddle: We ordered extradition in 16 cases out of 18 last year, in 2011. I have dealt with three in the recent past and they all involved conduct in the United States.
Q349 Chair: How many have related to the internet or e-commerce and issues of-
Judge Riddle: None.
Judge Riddle: No. There was one that possibly involved accessing the internet for child pornography, but I think that occurred in American territory.
Q350 Chair: How many would be regarded as serious offences in the United Kingdom?
Judge Riddle: Of the ones I have dealt with?
Judge Riddle: Of the ones I dealt with, one was a murder; one was serious sexual offences against children; one was, frankly, from my point of view, rather less serious, but nearly all part 2 cases are cases that we would expect to be tried here by a judge and jury. They are sufficiently serious for that.
Q351 Mr Winnick: Judge, the European Arrest Warrant-which I will concentrate on; other colleagues will obviously ask you questions relating to the US arrangements-has replaced all previous instruments, I take it, concerning extradition between EU countries. Is that the position?
Judge Riddle: Yes, with a very small residue, I suspect now entirely gone, of applications that were made before the 2003 Act came into force.
Q352 Mr Winnick: On the issue of substance, is it the case, at least where extradition is applied for by one of the EU countries, that the offence would have to carry a minimum sentence of 12 months in that particular country before the process started?
Judge Riddle: Yes, either that or on a conviction warrant more than four months has been imposed. So we are talking about the maximum sentence being 12 months or more, not necessarily the actual sentence or even the likely sentence.
Q353 Mr Winnick: I wonder if I can put this point, because obviously, as the Chair has said, we can’t deal with individual cases, and rightly so when we have a judge before us, but the criticism has been-leaving aside the US position, which is far more controversial at the moment-that some of the cases that have come to you or to your colleagues under the European Arrest Warrant procedure have been rather minor. Poland, for example, has been mentioned as applying for extradition in cases where one would not consider under British law that there would be a great deal of substance in the allegations against a defendant. Would you wish to comment on that?
Judge Riddle: Obviously not on the judgment of whether they are serious or not-that is really not a matter for me-but in terms of the types of cases we do see drink-drive cases, we see criminal damage cases, we see possession-of-drug cases, taking a car, the sort of cases quite frequently that would be dealt with here by a Magistrates’ Court with a maximum penalty of six months or less. So we do see a lot of that sort of case.
We also see quite commonly-and again I make no judgment on this-cases in which in the originating country a suspended sentence had originally been imposed. It is not uncommon for the citizen of the country to come here, often for economic purposes, and that almost automatically then breaches the suspended sentence in the originating country because he or she no longer keeps contact with the probation officer. So we do have a fair number of requests, which were not initially considered in the requesting stage sufficiently serious for an immediate custodial sentence, that are activated by breach of a suspended sentence.
Q354 Lorraine Fullbrook: Judge Riddle, given that there is no complete reciprocity in the Extradition Act 2003, in your professional opinion do you think the Extradition Act 2003 should be repealed?
Judge Riddle: I couldn’t possibly answer that. It must be a matter for Parliament.
Q355 Michael Ellis: Judge Riddle, there are some bars to extradition, are there not? When the court is considering European Arrest Warrants and UK-US extradition cases, could you explain what, if any, bars there are to extradition? When would you, as the presiding judge, say, "Well, this is not permissible. This does not fall within the treaty or parliamentary arrangements"?
Judge Riddle: Yes. There is quite a long answer to that; stop me if it is too long. About 90% of all requests are met. That means that about 10% fail. That is very rough and ready, but those are the figures we think we have. As I have just told you, with the United States it was two out of 18 last year, and that is about average. There are four broad grounds on which applications normally fail.
The first is what I would call time limits. If a prisoner is not brought before my court as soon as practical, he must be discharged; we have no discretion about that. To give you an example, if someone was arrested this morning in Surrey and does not make it to court this afternoon, perhaps because I am here, the case must fail, whether he is allegedly a mass murderer or not. There are other examples of time limits. In the case of the United States, if the papers are not served on the judge within the time limit-either 45 days or two months-the court must discharge; no discretion. Similarly, if we order extradition and extradition does not take place within the time-limited period-generally 17 days-and if the defendant applies to be discharged before there is an application to extend, we must grant that. That, I think, is probably the biggest number numerically.
Another area is where it is not clear from the information-this is more generally going to be the case with non-English speaking countries, I have to say-that the reasons for extradition are made out on the face of the application, and there are a number of those. There are passage-of-time applications that can be successful; that is, effectively, historic cases where somebody’s life has moved on. Then there are oppression cases that generally revolve around health, physical or psychiatric health. Those are the most common, but there are a lot of others that are commonly argued, for example human rights arguments, asylum seekers, and cases where there are what are called extraneous considerations.
Q356 Michael Ellis: Thank you. Where there is no oppression or a time-limit issue in respect of European Arrest Warrant cases, is it necessary for you to be satisfied that the prosecuting authorities in the country requesting extradition have themselves embarked upon a prosecution of the individual? In other words, is a fishing expedition requiring the individual in question to come into their jurisdiction while they consider whether to prosecute something that would fall foul of the European Arrest Warrant terms?
Judge Riddle: Yes, it would. The authorities must intend to prosecute or, of course, there may have been a conviction already in some cases. Often that is the case.
Q357 Michael Ellis: Are there safeguards against an extradition request that contains material inaccuracies? For example, where the evidence about the accused has not accurately been obtained or followed in the requesting country or where there is some other type of material inaccuracy that would, in the courts of England and Wales, be a source for concern, is that a reason for refusing extradition?
Judge Riddle: Our starting point is that if Parliament has determined that we have an extradition treaty with a friendly country, if I can put it that way, we start from a view of mutual co-operation, mutual respect, so we start with an assumption that what we are being told is accurate. But it can be challenged, and it is challenged. It can be challenged either by the defendant obtaining information locally through lawyers in the originating country or it can be challenged because we, the judges, or the Crown Prosecution Service of its own motion or the defence ask the Crown Prosecution Service to make further enquiries of the requesting authority. There are mechanisms for challenging it within the law as well, but they are rarely used and rarely successful.
Q358 Michael Ellis: Just one brief question, if I may. You have referred to most of the cases, or many of them, being ones that would result in a trial by judge or jury here in this country; in other words, cases that would be more likely than not sent to the Crown Court for trial or sentence and would attract sentences in excess of six or 12 months. For what sort of percentage of cases, would you say, are there extradition requests-I am thinking now particularly of the European Arrest Warrant-where you would expect that if they were to take place in this country they would receive a sentence of less than six months’ imprisonment or even a non-custodial sentence?
Judge Riddle: I can’t give you figures but my impression-and it is purely a personal impression-is that they are significant. They may be a quarter to a third of the requests we get from within the European Union, but I could be quite wrong on that.
Chair: Thank you. We will be returning to the European Arrest Warrant in the future.
Q359 Nicola Blackwood: As I understand the procedure under the 2003 Act, initially the request for extradition comes to the Secretary of State, who issues a certificate and sends the papers to court. It then comes to a judge such as yourself, who has to decide whether any of the bars that you have enumerated apply, whether the request is compatible with the Human Rights Act or whether it is applicable within the 2003 Act.
If all of those three are appropriate, then the request goes back to the Secretary of State to decide whether the surrender would be prohibited because the person could face the death penalty, because there would be specialty arrangements with the requesting country, or because the person was earlier extradited to the UK. If the Secretary of State finds that the surrender would therefore be prohibited, they must order the discharge of the person. But if none of those three prohibitions apply, then the Secretary of State must order that person to be extradited. That requested person can then appeal within 14 days to the High Court. If the extradition is then ordered, they could appeal to the Supreme Court and then on to the ECHR. Is that correct?
Judge Riddle: It is a very good summary of something that is slightly more technical than that. I can’t tell you what the Secretary of State does, I am afraid.
Q360 Nicola Blackwood: Okay. My question is, at what point during that process is the defendant informed that they are the subject of an extradition request?
Judge Riddle: They are informed as soon as they are arrested.
Q361 Nicola Blackwood: At which point during that process would they be informed? At the very beginning?
Judge Riddle: At the very beginning. They are arrested and then brought to court.
Q362 Nicola Blackwood: Is that when the request comes to the Secretary of State and they issue the certificate to the courts, or is it when they come to court and they can appeal within 14 days? At which point in that process does it occur?
Judge Riddle: The Secretary of State sends the papers to us. We sign the warrant and then the police either do or don’t execute the warrant. As soon as the warrant is executed, the person must be brought to court, so that is when they find out.
Q363 Nicola Blackwood: What percentage of defendants, in your experience, have legal representation?
Judge Riddle: A very good question. They all ought to have; the interests of justice test is invariably met. There is sometimes a delay, a problem obtaining legal aid, particularly for foreign nationals who can’t prove their income.
Q364 Nicola Blackwood: What sort of percentage would you estimate?
Judge Riddle: Ultimately all of them, but at first there can be delays with unrepresented defendants finding it difficult to obtain legal aid.
Q365 Nicola Blackwood: Do you find that there are problems with quality of representation in those instances?
Judge Riddle: When they are unrepresented, clearly it is very difficult for all of us and, frankly, it does not always look very fair to have someone who perhaps does not speak English unrepresented. We have quite a complicated system that we all recognise. When they are represented, I have to say the quality of representation is generally excellent. The extradition bar is first class.
Q366 Nicola Blackwood: There has also been quite a lot of debate surrounding whether there should be a forum bar, such as was put in schedule 13 of the Police and Justice Act. In your experience are there any circumstances that might have prevented extradition if that forum bar were commenced, and had that been argued as a case before you?
Judge Riddle: As I have said, in my experience it would never have applied because I have only ever dealt with cases in which the offender was in the country where the alleged offence occurred. If you would like me to be broader-because I have given a little bit of thought as to the circumstances in which it could be argued-I can deal with that. It would be wrong, I think you understand, for me to say whether I think those arguments would be successful or not, but certainly I can see it being argued, first of all, in all the cases that concern the Committee most, which is the cases that I have not personally dealt with, where the offender was here at the time of the offence. Clearly it could be argued in all those circumstances.
Can I say that any defendant who has the opportunity of arguing the proposed bar undoubtedly would because there are very great advantages to arguing it. If you think of terrorism cases, which I know you have looked at, it could be a very significant advantage to an offender who perhaps was here co-ordinating an attack abroad to have access to all the investigative material, all the witness statements, potentially, I suppose, to ask witnesses to come to this court to be cross-examined. I think they would invariably want to do it if they could. Clearly, there would be an argument about what is meant by "significant part of the conduct" and that would have to be dealt with by the higher courts in due course.
The other part of the bar is that the court would then look at all the circumstances. I think we would take time probably to refine it down, but at least at first it will be argued that that is very broad indeed. The sorts of cases it would apply to are obviously the terrorism cases that you see, the internet frauds that you see, the internet grooming of children in foreign countries by people here. An obvious example is Lockerbie in reverse; in other words, a person in this country plants a bomb on an aeroplane that then explodes over another country. You can imagine it being argued there. Phone threats-I have had a phone threat case-international banking, international commerce-all those areas.
I think it can be argued to be broader than that. Cases I have dealt with are where people have been found in foreign countries with large quantities of drugs-heroin, cocaine-inward bound. I think they would at least argue that the trial should take place here because clearly some of that activity must have taken place here-also, duress cases where the duress occurred here. So I think it could be quite broad.
Q367 Nicola Blackwood: Do you think that it is possible to establish that it is appropriate to have a jurisdiction within the UK? Do you think that judicial oversight is more appropriate than prosecutors deciding which jurisdiction is the best?
Judge Riddle: What I will say is that if Parliament decides that this is the legislation it wants, we will do our very best to implement it. There are clearly significant difficulties within our system. We are not used, as judges, to overriding a decision of a prosecutor. Prosecutors and judges are quite separate and there are advantages in that but, having said that, it is a matter for you.
Q368 Mr Winnick: We had figures given that go to July 2009. I should explain that that is for the UK-US arrangement that was agreed to. The figures we have between 1 January 2004 and 31 July 2009-when I do not believe you were involved-show that the requests from the United States for extradition from the UK amounted to 95 and requests the other way, the UK to the US, 42. There seems to be an imbalance. I wonder-without, of course, touching on legislation or individual cases-whether you are surprised at the fact that it is in no way equal. I am not suggesting that necessarily it should be equal, but there does seem to be, as I have said, an imbalance between the applications made by the United States to Britain and the other way round.
Judge Riddle: I am afraid I simply have no experience of the other way round-of us requesting people back from the United States.
Mr Winnick: I understand.
Judge Riddle: It won’t necessarily originate in our court. Any magistrate in England and Wales, indeed any circuit judge, can originate those proceedings, so we don’t necessarily see them.
Mr Winnick: No, but are you at all surprised that there is this sort of imbalance?
Judge Riddle: Nothing really surprises me.
Q369 Lorraine Fullbrook: Judge Riddle, I want to ask you a supplementary to an answer you gave earlier about the discretion that you don’t have when you are dealing with these cases. I have many problems with both the US Extradition Treaty and the European Arrest Warrant and one of them is the issue of discretion. When you are dealing with these cases, in your personal opinion would it be better for you if you had discretion?
Judge Riddle: I really do not think that is a matter for me. I think it must be a matter for you, whether you give us discretion or not.
Lorraine Fullbrook: But I am asking in your work, when you are doing your work, if you had discretion, do you think it would be more just when you are dealing with these cases?
Judge Riddle: Would you like to spell out the sort of discretion you are considering?
Lorraine Fullbrook: Where somebody, for example, does not have their legal aid in place or we have a violent terrorist who has to be released because you are here, for example.
Judge Riddle: I beg your pardon, I misunderstood. Again, I raise it for you-and I raise it deliberately for you to think about. It must be a matter for you whether you think it is just that a potentially dangerous person should be released because we do not have that discretion.
Q370 Lorraine Fullbrook: Absolutely, thank you very much. Can I ask my real question now, please? Judge Riddle, the UK receives a very high volume of extradition requests from various countries. Is the volume of the requests made to the UK a problem for the court system?
Judge Riddle: Not now. I would be misleading you to say that it didn’t cause problems at first before my time, because in 2003 we had 50 of these cases to deal with a year. It went up literally exponentially at first and very quickly reached 1,000. It has now plateaued at between 1,600 and 1,700, so we are talking about an enormous increase in volume in a short period of time. We have adapted. Certainly at the summary level we have increased our core capacity-we now have three courts dealing with this every day- and we have increased the number of judges dealing with it. I think other players in the system have responded magnificently as well. I compliment the Crown Prosecution Service, for example, which has worked very hard to increase its capacity on this. The independent bar has responded. I think we are now dealing with cases in a timely way.
The other point about it is that we always find-and I am sure you are aware of this-with new legislation there are points that come up that have to be resolved, and while they are resolved at the higher courts, they can cause problems for us.
Q371 Lorraine Fullbrook: If you had discretion, of course, that would be helpful to you.
Judge Riddle: Not necessarily.
Lorraine Fullbrook: Thank you.
Q372 Chair: Mrs Fullbrook is very keen to give you this discretion that you are not happy to take on.
Judge Riddle: I am just simply not commenting, Mr Chairman.
Chair: Of course, I understand.
Q373 Michael Ellis: Judge, I am struck by what you said earlier in your evidence. You said that-approximately, of course, I’m not holding you to exact figures-a quarter to a third of cases, in your view, which you deal with would not receive a sentence of more than six months imprisonment, or even a custodial sentence at all, if they were being dealt with in this country. Is it your considered view that there are significant difficulties, as far as the European Arrest Warrant is concerned, in terms of proportionality?
Judge Riddle: That is a very good question. To some extent we can take into account proportionality and balance it against article 8, rights to family life, and that is an argument that is sometimes put before us. I think we also have to respect our European counterparts. We may or may not have a more lenient system of dealing with offenders than some countries do. As Mr Winnick referred to, we do have these tests. It has to be an offence that would carry at least a minimum sentence of 12 months or, if it has been sentenced, four months imposed. I would be uneasy, I think, about saying that other countries get it wrong and we necessarily get it right.
Q374 Michael Ellis: As far as the UK-US arrangements are concerned, it has been suggested to you that there is an imbalance but, of course, the population of the United States is very much larger than that of the United Kingdom, so that would necessarily reflect some figures, would it not? But do you feel that what you have said about proportionality would apply to the UK-US arrangements, or is it something you see far more often in the European Arrest Warrant scenario?
Judge Riddle: In my experience, part 2 cases-not just the United States but other than Europe-are almost always, as I say, cases that would be tried on indictment and therefore are almost always more serious. There are exceptions.
Q375 Nicola Blackwood: I wanted to follow up from your answers to Mrs Fullbrook in relation to your lack of discretion. Due to that, can you think of an example, in your experience, without going into specifics, when you have either had to order the extradition or order the discharge of an individual in a way that you felt was not in the interests of justice?
Judge Riddle: That is getting very close to an answer I should not give, I think.
Q376 Chair: Thank you. What you are telling this Committee today, Judge Riddle, is that you apply the law, you have no discretion, the law is very clear, as far as the extradition treaty with the United States is concerned. You check that it is technically correct, you don’t test the evidence and unless there are the circumstances referred to by Nicola Blackwood, where the Home Secretary can intervene, the extradition request is granted. Is that right? There is very little wiggle room for you. You cannot use your discretion and you cannot test the evidence.
Judge Riddle: You certainly can’t test the evidence. I can’t use the discretion in certain technical areas. There are, of course, bars that are argued and, I suppose, some judges would decide one way and some judges would decide another way. Whether you call that discretion or not, I don’t know.
Q377 Chair: Were you consulted or asked for your opinion by Sir Scott Baker when he conducted his review?
Judge Riddle: Yes.
Q378 Chair: You were? Did you give written or oral evidence to him?
Judge Riddle: I gave oral evidence in front of him. The judges at my court, not me personally, provided written information.
Q379 Chair: Presumably the evidence you gave was based on your experience rather than any personal opinions that you may have about the way in which the law operates. You have made it very clear to the Committee today that you don’t have any personal opinions as far as your cases are concerned-that this is a matter for Parliament-or did you give him personal opinions?
Judge Riddle: I imagine the evidence will be published in due course and you will be able to form that judgment yourselves.
Q380 Chair: I think the Committee will want to know. If you have given evidence of your personal views to Sir Scott Baker on the way in which the legislation operates and the treaty operates, we will be surprised that you have not done so today. We understand the reasons why, but we will just be a little surprised that you should give it to him and not to us.
Judge Riddle: I see.
Q381 Lorraine Fullbrook: I would like to clarify an answer you gave to the Chairman’s very first question. Just now the Chairman said to you that you can’t test the evidence, but in your very first answer you said to me that you test the evidence on reasonable suspicion, the UK standard, and not, in the case of the US Extradition Treaty, on the US probable cause.
Judge Riddle: Yes. It is not technically evidence. Whether there is reasonable suspicion is an objective test, so we look at the information provided-
Lorraine Fullbrook: So you do test the evidence?
Judge Riddle: We look at the information provided and form a judgment, effectively, on two things. Is this evidence of an extradition offence? That is the first point, so you look at it from that point of view and look at that, I hope, fairly carefully. Secondly, is there reasonable suspicion sufficient for this man to be arrested? That is the test we would apply domestically in any case where we are asked for a warrant. To that extent you are looking objectively at it, but it is not objectively at the evidence. It is objectively at the grounds for the reasonable suspicion.
Chair: What Mrs Fullbrook is getting at is that you don’t go to the substance of what is being alleged about somebody and test the evidence to that extent.
Judge Riddle: No. Part of the exercise is designed to see whether they may or may not be guilty of the offence, if that is the thrust of the question.
Q382 Mr Winnick: That is not your function whatsoever, is it?
Judge Riddle: No.
Q383 Chair: You have dealt with a number of high profile cases, which we will not talk to you about today, but they are all in the public domain. We will be hearing evidence later from Mrs Tappin. Did you deal with the Christopher Tappin case?
Judge Riddle: No, we did not.
Q384 Chair: Judge Riddle, thank you very much for coming. We are most grateful, both to you and to the Lord Chief Justice for arranging for you to be here.
Judge Riddle: Thank you very much, and we will look forward to the return visit. You are all very welcome.
Chair: Thank you very much.
Examination of Witness
Witness: Sir Menzies Campbell, CBE QC MP, gave evidence.
Q385 Chair: Sir Menzies, thank you very much for coming to give evidence to the Committee today. We are most grateful. On 27 November, in the Westminster Hall debate, I asked you a question. I said, "I understand that the Deputy Prime Minister, in his capacity as leader of the Liberal Democrats, has set up a party review under the chairmanship of yourself. Can you tell the House when the review is likely to report?" You replied, "As soon as possible". Three months later, we are very keen to know where your review is.
Sir Menzies Campbell: Mr Chairman, thank you for the opportunity to address the Committee. As a former Minister yourself, you will know that the words "as soon as possible" are susceptible to a variety of meanings. I was going to make a very short statement setting out my involvement with these matters, and I will deal with the particular question you asked.
My particular involvement and interest and my present engagement with the issue arises out of the fact that Gary Mulgrew, of whom you will have heard, one of the NatWest Three, had a house in my constituency. He was not technically my constituent, but had a house in my constituency, and when proceedings began against him he sought my advice, firstly through members of his family, but later himself. On two occasions, in successive weeks, I raised the issue of extradition with Tony Blair at Prime Minister’s Questions. In particular, I was doing so at that time because the United Kingdom had signed the treaty, the domestic legislation necessary for its implementation had passed through the House of Commons, but at that point the Senate had still failed to ratify it. It seemed to me something of a paradox that we were binding ourselves with a treaty that was not being ratified-put through the necessary procedure-in the United States.
Q386 Chair: So you raised your concerns then?
Sir Menzies Campbell: Yes, indeed I did.
Q387 Chair: You are not late to the party. It was at that time you raised it?
Sir Menzies Campbell: Indeed. I remember a passage on Newsnight with the relevant Minister and the interviewer, who happily took my side, so it was two against one, rather unfairly perhaps.
The Senate’s reluctance was now generally accepted as being due to pressure from the Irish lobby that persons who might otherwise not be extradited back to Britain in response to allegations of terrorism might more easily be extradited. As you are well aware, in the United States system, the Irish lobby-indeed, lobbies of all kinds-sometimes exercises very considerable influence and power. What I sought to do in addressing the Prime Minister was to hold him to the view that there was a different standard in application. I know you will want to deal with that in more detail in due course. As you know, the Fourth Amendment to the United States constitution provides that probable cause is required, while the United Kingdom relies on reasonable suspicion.
Rather interestingly, as I imagine you have all read Sir Scott Baker’s report, he quotes from a letter written by Baroness Scotland in her then capacity as Attorney, but of course she was previously a Home Office Minister, and she had the task of introducing the implementing legislation into the House of Lords. On that occasion she said, in terms, that the standards were different.
Q388 Chair: Yes. We are going to come and ask you questions about that. If I can start with the first question, you again said in this debate on 27 November, "I have the misfortune to disagree with the conclusions of the Baker report. I believe that probable cause is a requirement that has to be met before any United Kingdom citizen should be extradited to the United States". Is that still your view? Do you believe the Baker report has got it wrong?
Sir Menzies Campbell: Indeed. I hesitate to take issue with such a distinguished judge-supported as he is or was, by such a wide variety of informed legal opinion-but I adhere to the view that I expressed to the Prime Minister and the view that I expressed in the debate to which you refer. To finish very quickly on the issue of areas in which I have a disagreement, I also disagree with the conclusion in relation to forum. In that respect, I agree with the conclusions of the Joint Committee on Human Rights, whose report I have no doubt you also have before you.
If I can make two last points. In some of the description, it is said that the distinction between probable cause and reasonable suspicion is a semantic one, as if the difference in language was so minor as not to constitute any significance. May I just make this point, and I suspect it is one, from your legal background, you will not find difficult to understand. It is a cardinal rule of interpretation that words should bear their ordinary meaning unless the context requires otherwise. In particular, I would say that that is a rule that is required to be enforced rigorously in relation to issues where the liberty of a subject is at stake.
Q389 Chair: Yes. We will be coming on to that. Mrs Fullbrook is going to ask you specifically about those words, but I am interested in your position as chairman of this review. Your leader, the Deputy Prime Minister, said about the treaty, in relation to Gary McKinnon’s case, "This treaty is wrong, and Gary’s extradition must be stopped". Those are very strong words. "The Government can change this; we can change this." Given that this is the view of the Deputy Prime Minister and the reason why you are before us today is that you are leading this extradition review for the Liberal Democrats, why is this not the case now? Why has nothing been done about this? Why is it still dragging on?
Sir Menzies Campbell: Let me first tell you what my mandate was, which was to prepare the Liberal Democrat position for the manifesto at the next general election.
Q390 Chair: So "shortly" meant three years?
Sir Menzies Campbell: As soon as possible, Mr Chairman. In your ministerial experience, as I have already said, you will know that. You would hardly have expected me to say I was going to take a long time. The reason is, of course, that the Home Secretary has yet to pronounce in response to Baker. Until she does so, then it is not clear what differences, in terms of legislation or policy, might be required in a manifesto for the next general election. As a consequence, I have continued to follow the matter on my own behalf, as evidenced by my presence here today, but I have not yet formally formed a commission. I have discussed it from time to time with Nick Clegg, and he has agreed that the approach I am presently adopting is the right one. I have tried informally to make it clear that I think it is time the Home Secretary did come to the House and explain what her response to Baker is going to be.
Q391 Chair: That is your view? I think the Government’s review began 17 months ago. The Baker review has been with her for some time. There are cases that are currently in the public domain. The Tappin case, of course, is concluded to the extent that Mr Tappin has left the country, but Gary McKinnon is still in the United Kingdom. Do you not think it is absolutely vital, given what you have said and what the Deputy Prime Minister has said, that this review comes out as a matter of urgency because it affects so many other cases?
Sir Menzies Campbell: My review?
Chair: No, the Home Secretary’s.
Sir Menzies Campbell: The Home Secretary’s. Absolutely. A great deal, as I think, if I may say so, you rightly acknowledge in the way in which you frame your question, rests upon it. If you remember, in opposition both the now coalition partners agreed-in fact, I think it is in their manifestoes and, indeed, the coalition agreement-that there should be a review. I do not think anyone anticipated that it would take quite such a long time. I should also say, although I disagree with two of the issues determined by Sir Scott Baker, nonetheless his report is a very substantial piece of work. If you and the members of the Committee have had the opportunity, or indeed the obligation, to read it, then you will understand that there is a great deal in it. It is comprehensive. There are large parts of it, I think, which have to be accepted, not least the analysis of the law and the history.
Q392 Chair: But you disagree with the conclusions?
Sir Menzies Campbell: I disagree with two particular conclusions. First of all, that in relation to standard and, second, that in relation to forum.
Q393 Lorraine Fullbrook: Thank you. I am not quite sure what my question is going to be, because I agree with every word you say.
Sir Menzies Campbell: I am not quite sure what my answer is going to be.
Lorraine Fullbrook: My question was about the evidence required by the United States being probable cause, which I believe is a lower standard than reasonable suspicion, which is required by the United Kingdom.
Sir Menzies Campbell: I think you mean the opposite, do you not?
Lorraine Fullbrook: I am sorry. Yes, I do. You are absolutely right. I do not think there is reciprocity in the US Extradition Act. I also have an issue with discretion, where a judge is dealing with extradition cases, and I agree with you that the conclusions in the Baker report are incorrect. Like me, I would suspect that you would like to see the Extradition Act 2003 repealed?
Sir Menzies Campbell: I would like to hear what the Home Secretary has to say and what the Government’s proposals, qua government, are in relation to this. Repeal of the Act, of course, would, prima facie, put us in breach of a treaty obligation, and that would be a very considerable step to take. As Sir Scott Baker indicates in a passage dealing with the report of the Joint Committee, that could have consequences for reputation and general relationships with the United States, but also, of course, with the willingness of the United States to respond to requests for extradition from the United Kingdom. That is a very considerable step, but it is one that, at the very least, will have to be in contemplation.
Q394 Lorraine Fullbrook: Do you think that we can rebuild the Act where it becomes a just Act, while maintaining our relationship with the United States?
Sir Menzies Campbell: I certainly hope so. One point perhaps I should have made a little earlier too is this: a lot of the comment that appears in newspapers and radio and television carries with it a kind of implication of anti-Americanism. I want to make it as clear as I can to the Committee, that part of my legal education was in an American law school and I have an abiding affection and respect for the United States and, while I may disagree with its views on law and perhaps even penal policy, nonetheless my interest in this is to put the position of the British citizen in a condition in which he or she is, to use your own words, in a position of reciprocity.
Q395 Nicola Blackwood: You have already stated that you disagree with Sir Scott Baker’s conclusions about the forum bar. Can you explain why you disagree with his conclusion that an introduction of a forum bar would lengthen extradition proceedings in the way that he has concluded?
Sir Menzies Campbell: I do not believe that to be so. One of the issues that runs through this report, an underlying theme, is the need to have efficient extradition, not to waste time and not to waste money. All of us sitting round the table would heartily agree with these principles, but that has to be balanced against the rights of individual citizens. If the process takes a little longer for the protection of a British citizen so that a principle can be applied, then that is sometimes a cost that we have to bear.
Q396 Nicola Blackwood: In your research so far, do you believe that there is evidence that it would take longer to make this case, or do you think that the case for the forum bar could be made alongside other extradition applications-therefore it would just be made alongside?
Sir Menzies Campbell: I think there is an expressed anxiety that it might lead to supplementary litigation, not subordinate but supplementary. I think that can all be dealt with, frankly, since we have been talking about a reformed statute or an amended statute. If that is couched in appropriate terms, I do not see any reason why that issue could not be considered in the same way as all the other issues that arise routinely in relation to an extradition application.
Q397 Nicola Blackwood: Do you believe it is possible, as Scott Baker does, that leaving prosecutors to properly negotiate forum under current guidelines will have the confidence of the public in deciding these issues?
Sir Menzies Campbell: If I may say so, that is very profound question. What is ignored often, although there is a passing reference to it in Scott Baker, is the willingness of the United States to take extraterritorial jurisdiction. Scott Baker indicates, very properly, that in the age of globalisation, of electronic communication, it is not impossible to commit an act in one country that has consequences in another. But it has to be remembered, first of all, that there is no single American legal system. There is a federal system, and then there are systems for all of the other states, and they vary. Indeed, you can’t practice in one state if you only have the bar qualifications of another state.
Q398 Nicola Blackwood: This issue is not just about the United States, of course. This is about extradition to any state.
Sir Menzies Campbell: Yes, but the extraterritorial jurisdiction point, in my view, has to be taken into account. If you have a jurisdiction that is willing-the joke used to be, in my American law school, if you had ever flown over New York State in an aircraft, they would take jurisdiction over you in a civil claim-a joke, but nonetheless there are some states that are very much more active in jurisdiction. For example, the offshore betting which is located in Gibraltar, as I understand it, has been the object of efforts by, I think, New York State, to take jurisdiction over it in circumstances where you might think that there was a very strong argument against that.
Q399 Nicola Blackwood: Do you believe that the forum bar in schedule 13 of the Police and Justice Act should be commenced, or do you believe that it is necessary to rewrite that in order to bring in an effective forum requirement?
Sir Menzies Campbell: First of all, the House of Lords passed the legislation. Second, when it came back to this House, what was inserted was a sunset clause. No effort was made by the then Government to disagree with the Lords in their conclusions and it, of course, now carries the endorsement of the Joint Committee.
Chair: If you could answer, specifically, Nicola Blackwood’s question. Should it be implemented now?
Sir Menzies Campbell: Yes.
Q400 Nicola Blackwood: Should it be that specific form of words, or do we need some amended version?
Sir Menzies Campbell: I would follow the recommendation of the Joint Committee.
Q401 Mr Winnick: First of all, can I put to you in the most friendly way, as political opponents nevertheless, that you are carrying out a review, or will be carrying out a review, at the request of your party leader, but time and time again during the Opposition days when Labour was in office, your party, even more than the Conservatives, was highly critical of this treaty. This Government has been in office now for nearly two years; no change whatsoever. Why?
Sir Menzies Campbell: Because of Sir Scott Baker. Not surprisingly, it took him and his colleagues quite a long time to write the report. I have already indicated that this is a report-I am sure you have read it-that goes into great detail. It gives history, context and alternatives, and it is a complicated issue. But I would not have thought it was so complicated, and here this is a criticism, I suppose, implied or even expressed. I am critical of the fact that the Home Office has not yet been able to issue a view. The Home Office is very busy, of course, as we know, for a whole variety of reasons, but this is an issue that, as I think the Chairman pointed out, comes up, not quite on a daily basis but on a regular, even frequent, basis, and therefore the sooner we get some kind of response to this report the better.
Q402 Mr Winnick: Yes, but one would have thought that when such strenuous opposition was being expressed by the Liberal Democrats in opposition, there would be recognition, regardless of the Scott Baker Review, that extradition had all kinds of complications and the rest. But if I may say so, it came down to the view that the treaty signed between the United States and ourselves was unfair to British nationals, and no indication was then given that this would be so complex an issue that it would have to be put in abeyance for quite a few years if there was a different Government for your party’s participation.
Sir Menzies Campbell: At Prime Minister’s Questions you do not get a lot of time to say how difficult and complicated an issue is. I am sure the Chairman was present throughout the debate in Westminster Hall. I was able to be present then but not in the Commons because I was abroad on parliamentary business. If you would read the Hansard of these two debates, there is a great deal of detail there. There was a great deal of understanding and grasping of the detail by those who spoke. If yours, Mr Winnick, is a plea for speed, then let me put my shoulder behind the wheel on your behalf.
Q403 Mr Winnick: I suppose it would be very much a plea by those who consider themselves to be victims of the Act.
Sir Menzies Campbell: I understand that too.
Q404 Mr Winnick: Yes. I understand, perhaps I am wrong, that you are rather critical of what could be described as the aggressive tactics by some US prosecutors.
Sir Menzies Campbell: That point I raised about extraterritorial jurisdiction. But it has a second dimension, and here, if I may, I might recommend-
Chair: If you could do so briefly, Sir Menzies, because we have three other witnesses.
Sir Menzies Campbell: Very good. I shall be as quick as I can. I recommend a little light reading in the shape of Gary Mulgrew’s book entitled Gang of One, which is an account of his experience, particularly in the prison to which he was sent, but also the circumstances that led up to him pleading guilty. I am not being critical. This is an observation; it is a fact. The system in the United States, in many states, encourages plea bargaining to a greater extent than we do in this country. It is often genuinely bargaining, three-cornered, judge, prosecution and defence. In this particular case, the NatWest Three, the potential period of imprisonment was something like 35 or 40 years. Mr Mulgrew, as he tells you in his book, was under some internal family pressures, and the idea that he might be absent for as long as that was one that he found very difficult to contemplate. In addition, he was not entitled to legal aid. We complain about legal aid in this country. There is not much legal aid around in many states in the United States. He was in the position then of having to meet very substantial financial obligations to those who were responsible for his defence. Taken together, he took the view that 37 months, which was offered to him, was the best deal available. As happened, he served part of it in the United States but the remainder in the United Kingdom.
Looked at in the round, you can understand why he did that. Why was it necessary for him to do that? He would argue that it was because of-I do not want to be too emotive about this-the overcharging, as he perceived it.
Q405 Mr Winnick: The procedure then, particularly in white collar crime cases in the United States, is that the prosecutors in the main are not willing to enter into any sort of deal until the person is willing to plead guilty, otherwise they will be put before the jury, who would probably pass a very heavy sentence.
Sir Menzies Campbell: I think there are a lot of usual channels, if I can borrow a phrase from this building.
Just one other point about this. This was in the aftermath of Enron and, if you remember, those who were convicted in the United States of criminal offences arising out of Enron, or even of the Ponzi scheme, got very substantial sentences indeed. That was a reflection of the view of the judiciary and the prosecution in the appropriate states of the United States legal system. Mr Mulgrew and others, Mr Bermingham and his other colleague, were caught in the backwash of that.
Q406 Michael Ellis: Sir Menzies, other countries have extradition arrangements with the United Kingdom and many of those other countries, it at least could be argued, do not have anything like the safeguards built into the United States system by way of their constitution and lesser laws. Do you feel that you are falling into a politician’s trap of focusing on America because of the high profile of certain cases, and that many other far more egregious cases fall by the wayside because they are not quite so in the public eye?
Sir Menzies Campbell: I apprehend that you are referring by implication to the consequences of the European Arrest Warrant, and that is something on which I have not been instructed or mandated or requested. But it does occur to me that in the fulfilment of my responsibility, as set out by my party leader, some consideration will have to be given to that. You will be familiar, I have no doubt, with part 1 of the Act. These are the members of the European Union who we automatically accept as being, if you like, reasonable. But of course both part 1 and part 2 of the Act contain provisions allowing the issue of human rights to be raised as a bar to extradition.
Q407 Michael Ellis: I take that on board, Sir Menzies, but with respect to other countries as well that are not part of the European arrest system, or the United States, you have referred to over-aggressive American prosecutors and their plea bargaining.
Sir Menzies Campbell: I do not think I quite put it in those terms. If I may respectfully say so, I draw upon the fact that part of my legal education was in an American law school. I stated as a fact that extraterritorial jurisdiction and plea bargaining are essential components, in some states, of the American system.
Q408 Michael Ellis: The British, or more accurately I should say the English, legal system also allows extraterritorial jurisdiction in certain cases. Would you not agree that in the world in which we live, with computer technology, telephone threats and cybercrime, there is some rationale behind extraterritoriality in these areas?
Sir Menzies Campbell: I said that. I said that a moment or two ago.
Q409 Michael Ellis: Yes. Would you also accept that our system also encourages plea bargaining, and that there can be a reduction of anything up to one-third off sentences in this country for a guilty plea? Is that not correct?
Sir Menzies Campbell: Yes, but it is a question of degree, and I just ask you to put yourself in the position of a 65-year-old man who finds himself before an American court in relation to a charge of some kind. How should he react if there is the prospect of getting a sentence that might allow him to return home, or how should he react if the prospect of pleading not guilty, however strongly he feels that, might result in him getting a sentence that would never allow him to return home?
Q410 Michael Ellis: You referred to Lord Justice Scott Baker’s report. He took a year to compile it, together with others on his panel who had experience of both prosecuting and defending, for want of a better way of putting it. It is nearly 1,000 pages long, it is a seminal work, but you choose to ignore the findings of that report, and you consider there to be an imbalance between the UK and the US. Can you cite any case law examples of this imbalance? Sir Scott Baker could not find any.
Chair: Rather than go through the whole report again, if you could be very brief.
Sir Menzies Campbell: No, I am not going to. I will answer the question. My duty as a Member of Parliament is to scrutinise the Government and to protect the interests of British citizens. That is my motive. It is not an anti-American motive, as I have been at some lengths to try to explain. If I may answer your question in a possibly flippant way, but I hope-
Chair: Unfortunately, witnesses can’t ask members of the Committee questions, but you can make a statement.
Sir Menzies Campbell: If I may answer the question. Lawyers get well paid for being wrong half the time. If you take the recent case of Abu Qatada, the Court of Appeal reached a particular view. What happened when it went to the Supreme Court? The Supreme Court reached the opposite view. We have a system in which people are obliged, as I feel obliged as a Member of Parliament, to make a judgment. I made that judgment in relation to this particular case. I continue to adhere to it. I do not say it is a better judgment. I am not setting myself up as an alternative to Sir Scott Baker.
Q411 Michael Ellis: Is it not the case, though, that it is perfectly reasonable to ask for evidence. This is not a court case, this is a report that the Government have commissioned and paid for and waited a year for, and it is a detailed work. Is it not right, if one is going to castigate that report or disagree with it, to at least ask for evidence as to why one might have come to a different conclusion, in the face of that report?
Chair: Sir Menzies, we have to move on. If you could answer Mr Ellis, just in a sentence, I would be grateful.
Sir Menzies Campbell: It will not be a complete answer, but my answer lies in the way in which the Home Office Minister, Baroness Scotland, introduced this legislation into the House of Lords, when she acknowledged that differing standards were being applied.
Q412 Alun Michael: Sir Menzies, you are a distinguished lawyer as well as a distinguished parliamentarian.
Sir Menzies Campbell: Well, that is-
Alun Michael: No, that does not brook any argument. You have looked at this in detail; you have a sense of urgency about it; you want the Home Secretary to get on with producing her conclusions; you have a mandate from your own party leader to undertake a review. I am a bit puzzled as to why you do not produce your conclusions and recommendations, perhaps in the hope that those would help the Home Secretary to what you would see as the right conclusion?
Sir Menzies Campbell: I made my position clear to the Home Secretary, both in writing and in oral questions in the House of Commons. I don’t think the Home Secretary is in any doubt about the view that I take.
Q413 Alun Michael: You are still not producing your recommendations as the result of the review you are undertaking?
Sir Menzies Campbell: I live in hope that the Home Secretary will accept my views, and if she does-
Q414 Alun Michael: You are an optimist and she is not a distinguished lawyer in the way that you are.
Sir Menzies Campbell: I am not going be party to any criticism of the distinction of the Home Secretary, Mr Michael. That would be very ungallant.
Chair: Mr Michael, Sir Menzies has said in his evidence that he hopes to have his review ready for the next election.
Q415 Nicola Blackwood: I want to clarify one point in the answer that you gave to Mr Ellis. Is it accurate that the leader of your party-the parameters of the review that you are doing were solely to consider the UK-US Extradition Treaty and not the wider issues of extradition?
Sir Menzies Campbell: Yes, exactly, and not the EAW. But as I think I said in response to a question, it seems to me likely that once I begin that review then questions in relation to the European Arrest Warrant will arise, so I shall go back and seek a fresh mandate.
Q416 Nicola Blackwood: So you are now planning to widen the review?
Sir Menzies Campbell: I am not planning, but I think it is likely.
Chair: Sir Menzies, thank you very much for coming before the Committee today and for giving us your evidence. If there is anything further that you need to add to what you have said-as I have said, we are about to conclude this inquiry today-please do write to us and we will include it. I am most grateful. Thank you very much.
Examination of Witnesses
Witnesses: Elaine Tappin, wife of Christopher Tappin (British citizen currently subject of extradition proceedings), and Neil Tappin, son of Christopher Tappin, gave evidence.
Q417 Chair: Mrs Tappin and Mr Tappin, thank you very much for coming to give evidence today. I wrote to your husband last week inviting him to come before the Committee today on our last session to give evidence to the Committee about his case. As you know, this is an inquiry into extradition, and we have taken evidence from a number of other people who have been the subject of extradition to the United States. For the reasons that are in the public domain, he has not been able to come to give evidence. I invited you to come today to speak after you contacted my office. Would you like to make a statement?
Elaine Tappin: Thank you. Twenty months ago my husband, Christopher Tappin, was a retired businessman living happily in Orpington, Kent. Chris had retired from running a successful shipping and forwarding company, and was thoroughly enjoying his new role of president of the Kent County Golf Union and doting grandfather. Then at 6 am one morning in May 2010 we were awoken by ringing on the doorbell. Peeking through the curtains, I saw two men standing in the driveway. They looked up and showed me their warrant cards. Heart pounding, I ran downstairs, opened the door, and one asked to speak to Christopher Tappin. Chris had to accompany them to the police station. We were dumbfounded. My daughter and I spent all day worrying, until we were later told by a solicitor that Chris had been arrested and he would be spending the night in Wandsworth Prison. We were both beyond shocked.
Soon after, Chris learned the US had indicted him back in 2007. In the intervening three years, he was being spoken and written about in court papers as a fugitive, yet we had never known of the existence of any indictment against him. For the next few months, we lived in limbo. To the outside world nothing had changed. Behind closed doors, however, we kept going over and over what could possibly have happened. If Chris had been indicted in 2007, why had we not heard about it before? What did the US think he had done?
Chris spent months with his legal team. The Magistrates’ Court first heard his case in September 2010 and adjourned it to December. We never once thought that this preposterous allegation could be upheld by the British courts. We were convinced that once the courts had heard Chris’ explanation, they would clear up the mess and reject the extradition request, but in January 2011 the magistrate agreed to Chris’ extradition. Chris’ conduct was not a concern for the UK court; the magistrate simply rubberstamped the extradition. We were dumbfounded. We then thought that once the Home Office reviewed the request, Theresa May would stop the nonsense and we would resume our lives much as before. But, no, she simply upheld the magistrate’s decision. It was another dreadful setback.
In December 2011, Chris’ appeal was finally heard in the Royal Courts of Justice. I listened to the proceedings and Lord Justice Hooper repeatedly said, "We’re not talking innocence or guilt here". I couldn’t then, and still can’t now, understand why not. Shouldn’t it be a basic requirement that a proper case be made out against Chris in a UK court before subjecting him to a total disruption of his life and freedom? Isn’t that the cornerstone of British justice?
Chris was stunned and totally devastated when his appeal was rejected. It was the cruellest blow. The ECHR also refused to stop his extradition. I cannot begin to describe the utter desolation that we both felt. Up to then we had always steadfastly believed that the UK justice system would prevent this dreadful extradition, but it was not to be. In the end, we had nine days’ notice. We stared into a wholly uncertain future for us both. How did we feel? Incredulity, frustration, heartrending sadness, despair and utter disbelief. Chris soldiered on trying to sort out the necessary practical chores, powers of attorney, selling his car, our house etc., while saying farewell to his many friends and colleagues, not knowing when or if he would see them again. Early morning on-
Q418 Chair: Mrs Tappin, the Committee have the rest of your statement in writing, which deals with what happened after Friday of this week. We are most grateful to you for telling us what has happened prior to Friday, and we know these must be very difficult times for you.
As you know-you followed some of the proceedings this morning-we are dealing with process; not the substance of the case but the process. You heard us take evidence from a judge, and indeed from others, and we are going to hear now from the DPP and the Attorney- General. This is our last hearing of this inquiry. As someone who is a member of the family of one of the people who has been extradited, can you sum up the process for you? Do you think that you know enough about the extradition process as to why your husband was extradited? Is he now clear what offence he has committed or is he waiting to be told that in the United States?
Elaine Tappin: He is clear, I think, on the offence that he is charged with, not that he has committed, and as far as the extradition process is concerned, it is not until you are placed in this terrible position of not being allowed to put forward your defence that you begin to understand that the British courts will not listen to you.
Q419 Chair: In your statement you quoted Lord Justice Hooper saying this was not about innocence or guilt, and clearly your husband believes that he is innocent of any of the offences that are against him.
Elaine Tappin: Absolutely.
Q420 Chair: Do you take that to mean that, when this kind of matter goes before the courts, the courts in this country are not considering the issue of innocence and guilt?
Elaine Tappin: Yes, absolutely. They are only looking at whether he should be extradited in terms of the treaty and not at the evidence of the case.
Q421 Chair: Do you think they ought to? Do you think this is something that ought to be considered by our courts rather than him returning to the United States and being considered there?
Elaine Tappin: I am sorry-firstly, can I just correct you. It is not that he is returning to the United States. The last time he was in the United States was about 12 years ago when we were on a golfing holiday.
Q422 Chair: So he has never done business in the United States?
Elaine Tappin: No.
Chair: I see.
Elaine Tappin: I am sorry, I have forgotten what the-
Q423 Chair: I wanted to know, in view of what you said about guilt and innocence not being an issue for the Court of Appeal, whether you think that this is something that ought to be considered by our courts before somebody goes to the United States?
Elaine Tappin: Yes, it must be. I just thought it was our right as British citizens. Before you are just picked up out of your life and flown off to a foreign country on their say so, you must surely be given the right to put your side of the case, you must surely be given the right to be listened to by the English judiciary.
Q424 Chair: Did your lawyers contact either the DPP or anyone else in this country about this case? Of course, this is a matter for the CPS and the American authorities under the treaty. Were any representations made to them?
Elaine Tappin: I don’t think so, but I can’t speak-I don’t really know, but I don’t think so. I never heard that being discussed.
Q425 Chair: Finally, from me, you mentioned the fact that it was three years from the indictment, I think in your statement. The indictment was in 2007.
Elaine Tappin: Yes.
Q426 Chair: Why do you think it took so long for him to be informed of what was going on?
Elaine Tappin: We are completely baffled. Why should it take three years? I just don’t know. The other two people who were charged in this case were charged in 2007. Why should it take another three years?
Neil Tappin: Can I just make a quick point? Sir Menzies Campbell sort of alluded to this a little bit in what he said, but since Dad left on Friday we have not spoken to him. We heard last night from the British Consulate that he has been allowed one hour a day outside of his cell, and he has had his reading material taken away from him. As far as we know, I think the Department of Justice is going to oppose bail, based on the fact that he is a flight risk. Considering the fact that he got himself to Heathrow Airport on Friday morning, it seems quite bizarre that they should do that and we just wonder why. It feels as if there is a bit of pressure there.
Q427 Chair: What kind of pressure?
Neil Tappin: It is hard to describe. They are saying in some of the press over in the US that he asked for solitary confinement. He is certainly in a cell on his own, we know that much-taking all of his reading material away from him, so that all he is there with is himself and his thoughts, not able to get outside of his cell. Would that happen in this country? A rhetorical question.
Chair: Thank you. We just have a couple of questions because we have the Attorney coming in.
Q428 Mr Winnick: Mrs Tappin, you made the point that the guilt or innocence of your husband was not examined by the judges here. It is not for me to justify the position, but of course the judges would say they were restricted by the treaty that we are looking into, the UK-US Treaty. Having said that, presumably you contacted your Member of Parliament over the issue and the Member of Parliament, as one would expect, took it up with the Home Secretary. Is that the position, that the Member of Parliament in your-
Elaine Tappin: Yes. Jo Johnson is the Member of Parliament for Orpington. He told us that he had kept a close eye on the case throughout. However, when my husband asked to speak to him in his surgery he would not see him. He said it was sub judice. Then he did ask a question at Prime Minister’s Question Time last week, but that is all.
Q429 Mr Winnick: Leaving aside the Member of Parliament, who I am sure would defend what he did and we don’t sit in judgment on parliamentary colleagues, did you write to the Home Secretary or try to have an interview with her?
Elaine Tappin: Did we?
Mr Winnick: Yes.
Elaine Tappin: Not personally, no. We left that to our legal team.
Q430 Mr Winnick: Yes, who presumably tried to do so-tried to get the Home Secretary to intervene to stop your husband being extradited.
Elaine Tappin: I would have thought that if that were an avenue for them to explore, they would have explored that, yes.
Chair: Mrs Tappin, Mr Tappin, thank you very much. That is very helpful. It will very much aid our inquiry into these very important matters. You are welcome to stay to hear the Attorney-General giving his evidence. Thank you very much.
Examination of Witnesses
Witnesses: Dominic Grieve, QC MP, Attorney General, and Keir Starmer, QC, Director of Public Prosecutions, gave evidence.
Q431 Chair: Mr Starmer, thank you very much for coming to give evidence today.
Keir Starmer: Not at all.
Chair: I should say, welcome back. Attorney, thank you very much for coming to give evidence to the Committee. This is the very last session of the Committee’s inquiry into extradition, and you and the Director of Public Prosecutions are our last witnesses. So we have saved the best until last.
Your views on current extradition laws are very clear-they are crystal clear. On 7 October 2009 you said this: "Our extradition laws are a mess. They’re one-sided. A Tory Government will re-write them". You presumably remember saying that.
Dominic Grieve: I do.
Q432 Chair: Do you still believe that to be the case, or has something changed?
Dominic Grieve: I certainly don’t think that they are in the condition in which I would think ideally I would wish them to be. Perhaps I might put it this way. I think that if on a personal basis-I think I speak for my colleagues-I were being asked to start from somewhere, I am not sure I would have started from the 2003 Act. But we have the 2003 Act and we have international treaty obligations to a large number of countries-I think 44-that flow from it, both from the European Arrest Warrant and under part 2 states, which derive directly from it. So I am sure that the Committee can appreciate, without very much more thinking, how complex an issue that is inevitably going to be. Granted you will also be aware, if you look at my remarks at the time, that I made absolutely clear that the principle of extradition is a very important one in a world where we wish to see crime successfully combated. Having a system by which we facilitate transfer to countries that meet the necessary criteria of fairness, so as to curb crime, is absolutely indispensable as well.
Q433 Chair: Indeed. I think nobody on the Committee disagrees that we should have extradition laws, but I think what you were saying in 2009 is what kind of laws. In 2009, you said, "The European Arrest Warrant was introduced to fast track extradition of terrorist suspects, but has been expanded well beyond that. It allows British citizens to be whisked away to face trial for things that are not criminal in this country, on limited evidence, and in countries with lower standards of justice". So, both in relation to the European Arrest Warrant, and the treaty, you obviously have enormous concerns.
Dominic Grieve: With the European Arrest Warrant, as you will be aware, there are 32 listed offences-if I remember correctly-in which dual criminality is not involved. Again, there are policy issues, and I think I should emphasise that I am here as the Attorney- General, so my role is to advise legal advice to Government. Policy making in this area is a matter for the Home Secretary, as you will appreciate, not for me, and also for the Government collectively. So my personal viewpoint, whatever personal viewpoint I may have, should not be interpreted as how Government policy need necessarily be informed. Like all good policy, it has to be informed by the coming together of the different views of its constituent members.
Q434 Chair: Of course. But you are a very distinguished lawyer in your own right, before you became the Attorney, and you described the current treaty as being one-sided. So if it is one-sided and it is currently in existence, then it must be made more evenly balanced, surely?
Dominic Grieve: Which treaty are we talking about? Sorry, just to be clear what we are talking about, because-
Chair: We are talking about the UK-US Treaty.
Dominic Grieve: I think, if I remember rightly, I may have commented in the Chamber, I may also have done in the media at various times, because I was both Shadow Attorney-General and I was at one stage for a short time Shadow Home Secretary, and-
Q435 Chair: Just to explain, that was your speech to the Conservative Party Conference?
Dominic Grieve: Yes. I am just remembering and locating where we are in the scheme of things. You will recall that part of the problem with the UK-US Extradition Treaty was that it was implemented unilaterally by the United Kingdom at a time when, in fact, there was no reciprocity because it had not been ratified in the US. I think it is probably right to say that it got that treaty off to rather a bad start. There are other problems in relation to the treaty, and I think they are rather highlighted by recent events. There is a lack of public confidence in the US criminal justice system, which is a rather wider issue and more complicated than the minutiae of the treaty agreement. That said, I should make the position quite clear. There have been so far no successful challenges invoking the European Convention on Human Rights in respect of somebody being extradited to the United States, but I think one only has to look at the public response to the cases, which of course may differ. If they think somebody is a terrorist, they may think it is a very good thing that they should be going to the United States. But, as I have said before on a number of occasions, including to the US Ambassador, there are perceptions in this country that the US criminal justice system can be harsh and its penal policy can be harsh, and its sentencing policy can appear disproportionate by European and British standards. There are aspects of it, therefore, which tend to make people uncertain and uneasy, and I am not sure that that is readily curable.
Q436 Chair: You are not on your own in your view about the unbalanced nature of the treaty. Your predecessor, Baroness Scotland, at the time the treaty was going through the House-this has been alluded to by Sir Menzies and other witnesses today-also mentioned the fact that it was not balanced, as did the Home Secretary who negotiated the treaty, who gave evidence to us over a year and a half ago, David Blunkett. So you are not alone. Indeed, the Prime Minister said this, "It should still mean something to be a British citizen with the full protection of the British Parliament". What puzzles me is that the Attorney-General, the previous Attorney-General, the Home Secretary who negotiated the treaty, the Prime Minister and the Deputy Prime Minister all think that this treaty is unfair, but it is still there and British citizens are being extradited under it. This is what puzzles me and some members of the Committee.
Dominic Grieve: As I think I said at the beginning, this treaty obligation was entered into by the last Labour Government and it was ratified by Parliament at the time. It is an existing fact, and existing facts are matters that have to be taken into consideration when one is assessing what one can do with it.
Q437 Chair: Is it right that British citizens should be extradited, even though it is an existing fact on the law that the current Attorney-General believes is one-sided? This is what I find very odd.
Dominic Grieve: I think we need to be a little bit careful on the one-sidedness. This is why I came back to the point I made. If you look at what I have said, I have often said very clearly that we should not be critical of the United States in this matter. We came to a treaty agreement with the United States. In doing that, we removed some of the previous inhibitions to extradition and we also effectively removed the Executive from this process, although not quite entirely, and perhaps just left the Executive in sufficiently to give the Executive a difficult time, but without the Executive necessarily being able to do a great deal about it. There are then suggestions that changes might be made that could remedy the matter, and I keep on listening to the proposals that come forward. But underlying this, as I say, I think there are some fundamental problems that are not very easy to address. We do have to balance-and I do accept this-the real public desirability of extradition and bringing people to justice with the other things that you have just mentioned. I don’t think it is a simple question to answer. As you posed the question why isn’t something being done about it, I shall look forward with interest to reading what your Committee has to say on this subject, but I think I would describe it as one of the more difficult questions that the Government have to look at.
Q438 Chair: But are you also waiting to read very carefully what the Home Secretary says about this? We are all waiting for her too, and we have been waiting for 17 months, as Sir Menzies has said.
Dominic Grieve: The Home Secretary, as you know, firstly, and I would suggest very sensibly, went to get some independent advice and that independent advice has been secured. Having got that independent advice, she is now having to consider it and talk and discuss and think through what the options might be to try to address the matter. It is noteworthy that, approached from the point of view of the review carried out, the review considered that, while some changes might be desirable, it did not think that the way the treaty and the extradition arrangements were operating was in any way wrong.
Q439 Lorraine Fullbrook: Attorney-General, when the previous Government signed this treaty unilaterally and when David Blunkett gave evidence to this Committee in November 2010, I asked him if he thought it was right that, when signing this treaty he was giving more rights to American citizens and taking away rights from British citizens because there wasn’t reciprocity in the US Extradition Treaty, to which he gave me-well, basically, he did not answer the question. What is your view?
Dominic Grieve: I think we have to be careful on the reciprocity front. Of course, when we first unilaterally applied the treaty for the benefit of the United States, the United States was not applying it for our benefit, which was an extraordinary state of affairs and led to a major debate, as I seem to recall, in Parliament in 2006, when real anger was expressed at the way in which we were proceeding, because it seems to me that reciprocity is absolutely fundamental. Then there has been the issue as to whether the evidential test on which extradition would take place does not amount to true balance and reciprocity. There I do think that one has to be a little bit careful. At one time, we had to show probable cause in the United States and the United States had to show a prima facie case here. Arguably, I suppose, the United States could argue that the balance was in our favour, in the sense that there were more safeguards for United Kingdom nationals than there were for nationals in the US, or people who were being extradited from the US.
Q440 Lorraine Fullbrook: But that changed though?
Dominic Grieve: Yes, it did change, but then we get to a rather complicated argument, to which I have to accept there is not an easy answer, which is what the differences in reality are between a prima facie case, a probable cause and reasonable suspicion. This can start to become quite arcane. I am informed by the CPS-something that the DPP will be able to confirm-that in reality the United States is consistently supplying material on which to found extraditions well over and above the reasonable suspicion test. In fact, I suspect it is probably the old probable cause test because that is what they have to do in their own jurisdiction. On that basis, while there is always an inherently unsatisfactory feeling if you have two different tests to be applied in two different jurisdictions, I think we have to be a little bit careful about suddenly concluding that if that were to be changed, for example, it would lead to some dramatically different outcomes, because I am not sure it would.
Q441 Mr Winnick: Attorney, would you be at all surprised by how so many people in Britain were surprised and shocked at the way in which Mr Tappin was treated, arising from the interview he gave on television; that a British citizen could be treated in this way with no indictment against him in Britain but facing what is described as justice in the United States?
Dominic Grieve: Clearly, any circumstances in which a person of Mr Tappin’s age is going to be extradited to a foreign country, a very long way from home, separated from his family, to be involved in the criminal justice system with an uncertain outcome from his point of view-I can’t comment beyond that on the merits of the case-is going to be stressful and distressing. It applies to anybody, in fact, who is taken through any criminal justice system anywhere.
Did Mr Tappin have the safeguards of the law and was his case given very full scrutiny and consideration, as opposed to just in some way being rubberstamped on a US request and his being extradited? I think the evidence suggests that there was rather considerable scrutiny. But the interesting point-and I suppose it takes me back to where I started-is that, notwithstanding that scrutiny, one only has to look at the coverage in newspapers-I don’t know what the public more broadly may feel-to see that the circumstances cause disquiet. It may be linked to Mr Tappin’s respectability, the fact that, as far as I am aware, he is not a person who has been in any sort of trouble before, and his age, in contrast, for example, to an individual who may attract public opprobrium and be seen in one way or another as rather undesirable.
Applying my mind as a lawyer to these things, I tend to have to put in some rigour to my approach to these matters. I have nothing to suggest to me that Mr Tappin did not have a full judicial scrutiny of the issues that he wished to raise, including the protection that he might derive from the European Convention on Human Rights, in respect of reasonableness, proportionality, all of which, of course, go to the heart of some of the arguments that he has been putting forward.
Q442 Mr Winnick: But the scrutiny-this is a very important point, and Mrs Tappin gave evidence to us a few minutes ago-according to the treaty, is not really the subject of controversy. Within the treaty process, correct procedures were undertaken. The point at issue, Attorney, and one that obviously the family, and indeed, if I may say so, many people in this country, are concerned about is that the guilt or innocence of the person was certainly not examined in this country because under the treaty there was no way it could be done. So the shock is that a person of his age and circumstances, and all the rest of it, is being sent abroad without the courts here coming to the conclusion that he was guilty of the offences as is alleged.
Chair: Attorney, before you answer, you were not here when Mrs Tappin gave evidence; you were in Cabinet. She told the Committee that when this matter went to the Court of Appeal Lord Justice Hooper specifically said time and again this was not about guilt or innocence. That is what Mr Winnick is referring to.
Dominic Grieve: Lord Justice Hooper, if I may say so, is absolutely correct. The circumstances on which extradition is grounded, even under the old systems that we had, was making a prima facie case. That is the basis on which you used to get committed to the Crown Court for trial. It doesn’t determine your guilt or innocence; it doesn’t take into account your own representations on the facts. In fairness, in this country, as far as I am aware, there has never been a time when extradition has been founded on a review of the likelihood of guilt or innocence in this country first, provided that a prima facie case under the old rules could be established. So, Mrs Tappin is correct, but that has never been the basis of extradition. The basis of extradition is that there is a prima facie case, or probable cause, or at least a case made out, which is deemed to be satisfactory and, under the protection of the European Convention on Human Rights, there is a satisfaction that the trial system of the country to which the person is being extradited and the other circumstances, including the risk of the death penalty and other matters, are such that their human rights will not be infringed.
Q443 Mr Winnick: As the Chair has quoted, you and other Conservative spokespersons in opposition were so critical of the treaty, saying in effect that it was unfair, a view that I happen to agree with, although it was undertaken by my Government, which is not in dispute. Time and again your party in opposition criticised the treaty and said it was unfair and unjust to British citizens. Now, nearly two years into government, the treaty remains exactly as it was. Why?
Dominic Grieve: Firstly, because it would be a policy decision for Government, but the treaty being in operation, I assume that if we wished to depart from the treaty we would either have to renegotiate it or denounce it. Those are obviously policy considerations for Government that have to be weighed also against the Government’s stated view that it is desirable that crime should be properly addressed on an international basis.
Q444 Mr Winnick: Not quite what you were saying in opposition, if I may say so.
Chair: Can we-
Dominic Grieve: I don’t think I can let that pass. I do think that if you look at everything that I said in the various debates that took place, I stressed the desirability of extradition mechanisms and the need to have them.
Chair: Yes, we have to have extradition, there is no question. I think the Committee agrees with you on that.
Mr Winnick: That is not in doubt, but-
Chair: Sorry, could we have a bit or order because we need to get through this very quickly.
Q445 Nicola Blackwood: To follow up a little bit on the point of trying guilt or innocence as part of the extradition process, obviously, that has not ever been part of the extradition process, but having an evidentiary hearing in which the evidence under which the extradition process was going through has previously been part of the extradition process and is possible. It could be possible as a part of the extradition process in the UK in which a defendant could challenge the evidence, or at least understand the evidence that was being brought before them, could it not?
Dominic Grieve: Yes, it would be possible to have such a system. Yes, of course.
Q446 Nicola Blackwood: At the moment that is not the case under the UK-US Extradition Treaty?
Dominic Grieve: No, we have moved. As you will appreciate, there has been a massive shift on an international basis. It doesn’t just concern the United Kingdom; there has been a massive shift to a new basis of extradition. Whether that is because there is greater confidence in each country’s systems, and the fact in Europe that we have the European Convention on Human Rights as a basic fallback safeguard, has changed the previous attitude of many states towards extradition. After all, a country like France, for example, at one time was unwilling to extradite its own nationals anywhere. It simply wouldn't do it. It was only the arrival of the European Arrest Warrant that first prompted the French Government to accept the notion that a Frenchman could be extradited to any other place. We have not done that. I think I am right in saying that our first extradition treaty was with Denmark in 1661. So we have been extraditing people, including our own nationals, to various countries with which we had some confidence in our relationship for some considerable period of time.
Q447 Nicola Blackwood: Thank you. If I could just move on to the issue of the forum bar. The Baker Review came to the conclusion that prosecutors are better placed to negotiate factors that go into making the decision about forum, and that were guidelines to be tightened up that was all that was necessary to fix the issue of forum in cross-jurisdictional cases. What is your opinion on that particular conclusion?
Dominic Grieve: I think it might just be worth going back-forgive me for doing it-to where the forum bar originated because, as you will know, it was introduced into the 2006 Act-I know it as the Policing Act. I can never remember its full title-I apologise.
Nicola Blackwood: The Police and Justice Act.
Dominic Grieve: The Police and Justice Act 2006. We had so many of those Acts at the time that I begin to lose track of them. It was a way of highlighting the Opposition’s very great disquiet, particularly because at that stage we had not yet had ratification in the United States. The Government accepted the amendment but, of course, it needed to be triggered to be brought into operation. The following year, the then Attorney-General, Lord Goldsmith, issued, for the first time, guidelines in relation to extradition between the UK and the US. I simply make the point that, in terms of forum, in the nearly two years that I have been in office I do not think I have ever had one single referral to me, as the Attorney, of a problem issue over a forum case, where there was a dispute over forum or where the CPS did not have great clarity or did not feel there was perfectly good clarity as to where the forum should lie.
Q448 Nicola Blackwood: What about the Gary McKinnon case?
Dominic Grieve: If you look at the judicial decisions in the McKinnon case and the arguments that were put forward, the court in the McKinnon case was left with no doubt at all that the ability to prosecute in this country would be very limited compared to the extent of the alleged criminality that was disclosed in the United States. One of the things I have to say I have gently considered over the last 18 months is whether a forum bar would be helpful. There are two ways of looking at this. On the number of cases that I have seen at the moment, it seems to me that the number of cases where the forum bar, if it were in, would have led to a different outcome is pretty minimal. The difficulty with a forum bar-and I have always recognised this-is that it will delay proceedings very considerably because it will give rise to a considerable amount of satellite litigation. So, again, my colleagues who have to determine policy are going to be faced with a complicated and difficult choice. One could implement a forum bar, but there will be downsides to it.
Chair: We need to speed up again, sorry.
Dominic Grieve: I am sorry. We could implement a forum bar, but the question is will it ultimately have the sort of effect that I suspect some members of the public would like it to have, and I think there its impact may be exaggerated.
Q449 Nicola Blackwood: There are two issues related to the forum bar: one is whether prosecutors are indeed making correct decisions and whether there would be a different outcome; the second is actually public confidence in those decisions, because prosecutors deciding between themselves as to the correct forum would not have the same level of public confidence as a judge making that decision. Do you not see the strength of that argument?
Dominic Grieve: Yes, I do see that that is a perfectly valid argument although, as I say, even now without a forum bar forum issues have been canvassed in court, and this is why I simply raise the issue as to whether it would have as much of an effect as some people believe it would. But yes, you are absolutely right about that; it would require that consideration and that-as I made the point previously-would add to time and cost, but that might be something that is worth having in order to give greater scrutiny and greater public confidence in the system.
Q450 Nicola Blackwood: If you were to consider that a forum bar would be the right way to go, would you think that it should be as is drafted already in schedule 13 of the Police and Justice Act, or do you think that we would require a rewritten version with some other amendments?
Chair: A quick answer.
Dominic Grieve: I think it is always worth while looking again at anything that Oppositions draft in order to present to Parliament without the help of parliamentary draughtsmen.
Q451 Chair: All right. So you will look at it again. We should really bring in the DPP. He has been sitting here patiently. We are talking about prosecutors. You must have some role in all of this, otherwise you would not be here, Mr Starmer. What is your role?
Keir Starmer: Is it helpful if I deal with the forum issue specifically-
Keir Starmer: -rather than the wider issue, which I will do if the Committee finds that helpful. As far as forum is concerned, obviously this does fall to be considered in a number of cases. Everybody knows that cross-border crime has increased dramatically and is increasing and, therefore, it is becoming increasingly likely that investigations into the same criminal conduct are likely to be happening in two different jurisdictions.
So the first question that we confront as prosecutors is, how do we make sure we know that there are investigations in two different jurisdictions? That is a critical issue. The decision as to where the case is going to be tried has to be made at a very early stage in these cases because if the investigators have already decided that the investigation is going to proceed in one jurisdiction rather than the other, by the time prosecutors come to consider it, the answer to the question where should the prosecution take place might be considered at rather a late stage. So the first question is, how do we get the best information?
Q452 Nicola Blackwood: The investigators are deciding.
Keir Starmer: In a number of situations, investigators in two different countries will be investigating the same criminal conduct. Arrangements are in place, for example, at Eurojust-
Chair: Could we concentrate on the treaty here, the UK-US Treaty, and when the DPP gets involved in that, because Eurojust has nothing to do with the UK-
Keir Starmer: I thought I was being asked about the forum bar. So far as the forum bar is concerned, this is a question of general application. That is how section 19 was drafted. The first point I am making is that information about where there are investigations is critical. Very often, investigation may run almost to completion in one country without another country knowing about it. If that happens, it is likely to have a profound impact on where the prosecution-if there is to be one-is going to take place. So if there is to be a meaningful decision, we need early sight of what investigations are going on.
There are arrangements in place between us and the US to make sure there is early sight in particular cases. There are more extensive arrangements as far as Eurojust is concerned. There is a Council decision, as you probably know, requiring that information to be shared. The prosecutor may or may not be involved at that stage. The police here do take our advice in relation to certain matters, and through Eurojust we provide advice, but we are providing advice to the investigators, if we are involved at that early stage, as to where might be the appropriate forum once the investigation is complete, and most of the discussions are actually had in that way in that forum.
Chair: That is very clear.
Q453 Michael Ellis: Attorney, the Scott Baker report says that the UK-US Treaty arrangements are not one-sided. We keep hearing people say and quotes being sourced from years ago about how one-sided the arrangements are, but are you able-or you, Mr Starmer-to indicate any case law examples of where there is evidence of an imbalance in the United States between arrangements for the extradition of people to this country and vice versa? Are there any case law examples, because Sir Scott Baker could not find any in the year of his investigations?
Dominic Grieve: As far as I am aware, the United States has honoured its side of the treaty since ratification absolutely.
Q454 Michael Ellis: Do you agree with me that as a position to take we, the British, would want the United States to allow the extradition of someone who fled there from the United Kingdom who committed an offence here. That is in the interests of us, is it not?
Dominic Grieve: Very much so.
Q455 Michael Ellis: The position is that the arrangements are said to be imbalanced. The numbers, however, indicate slightly more people being sent to the United States. There is, of course, a difference in population that might account for that. Would you agree with that?
Dominic Grieve: Yes. I don’t think the numbers issue is particularly relevant unless one could, on examination of the numbers issue, note that there was some serious problem with extraditions failing for some reason, as a percentage of the total requests that were made.
Q456 Michael Ellis: Yes, although some people try to make a point about the numbers, which is why I raise it, but I agree with what you have said. You have read the Scott Baker report and he says that the words that are used by the different criminal jurisdictions are effectively the same thing expressed differently. Do you agree with that analysis-probable cause and reasonable suspicion?
Dominic Grieve: At one time it used to be said that probable cause and a prima facie case were not very different from each other. Then when reasonable suspicion came in it was said that reasonable suspicion and probable cause were not very different from each other, and perhaps the truth is that in reality, in the way that evidence is often presented or the material is often presented, there is not a huge difference between any of those three terms. It is true that in one case you can put down what is effectively a hearsay statement-"This is the statement and summary of fact". In another case you are actually going to be filing a statement. Whether at the end of the day this makes very much difference I think may well be doubtful, which is why I made the point I did earlier when I was asked whether it would make some substantial difference to outcomes if this terminology was changed. We could move to a situation where we had probable cause in this country, although we would have to define it by statute because it is actually not a term that is known to our own legal system. It is a term that has evolved in the US.
Q457 Chair: Can we do that? Can we define it by statute?
Dominic Grieve: Well, if Parliament passed the necessary primary legislation I would have thought it would be perfectly possible. We would have to think through exactly what we meant by it but, yes, I would have thought that to some extent it could be done.
Q458 Michael Ellis: Can I move on to the European Arrest Warrant for a moment? We have heard from the Senior District Judge who gave evidence earlier on that in his approximate estimation a quarter or a third of the cases that he deals with would not receive a sentence of more than six months’ imprisonment were they to be dealt with in English or Welsh jurisdictions, possibly even a non-custodial sentence. Are you concerned that there is a lack of proportionality and that the European Arrest Warrant is seriously flawed, for that reason if not for others?
Dominic Grieve: There is no doubt that the European Arrest Warrant is facilitating the departure to foreign countries of, in some cases, very large numbers of people for what appear to be relatively trivial offences, yes. You only have to look at the number of individuals extradited to Poland to see that. The interesting feature of the Polish criminal justice system, as I understand it, is that the prosecutor has no discretion as to whether or not to prosecute an offence. So an offence that is brought to the prosecutor’s attention has to be prosecuted and there is no test that is applied by that prosecutor. Of course, some offences may, for all I know, carry sentences of under 12 months, in which case, generally speaking, it will not be extraditable. But in some cases people accused of the most trivial offences might be able, in terms of the likely consequence in reality, to be extradited, and there is no doubt that it puts quite a burden on the CPS. The DPP will be happy to talk about this, but the CPS has to process all these cases, quite apart from anything else.
Q459 Chair: Can we bring in the DPP again on this?
Michael Ellis: Yes. I was just going to say, do you have anything to add to that, Mr Starmer?
Keir Starmer: Only this: one of the difficulties in the cases from Poland is-there are a large number of them, I think everybody recognises that-as the Attorney says, the lack of discretion in the Polish authorities as to whether or not the prosecutor can apply for and bring a case. When we are considering whether to apply for a European Arrest Warrant on our own behalf I can issue guidance, and have done so, to say that we should do so only in appropriate cases. So we have a discretion built in before we apply for the European Arrest Warrant.
Q460 Michael Ellis: What is meant by "appropriate cases"?
Keir Starmer: We would then apply the sort of considerations as to proportionality and likely sentencing, perhaps, on the particular case. That is not happening in Poland at the moment in the same way and, therefore, the rigidity is such that the prosecutors are applying more often from Poland than we would in this country. To solve this issue, you have to get a European-wide approach to applying for a European Arrest Warrant, and considerable thought has been given to that.
Q461 Lorraine Fullbrook: Attorney-General, I would like to go back to an answer that you gave to Mr Winnick earlier. With regard to the Extradition Act 2003, and given the problems with it-reciprocity, reasonable suspicion being a lesser test than probable cause, forum, lack of discretion for judges, all of which require the confidence of the public-would it not be the best thing for the Government to go back to base and rebuild an Act that allows for extradition but in a just way, and that would command public confidence?
Dominic Grieve: That is an intensely political question; a perfectly valid one, but it would require demolishing the current architecture that the previous Government put in place in 2003, and which is being adhered to by large numbers of other states. I don’t think you need me to say more than that to highlight how complex in reality that is likely to be, for the obvious reason that if you are going to do that, you are firstly going to have to have a new treaty base, you are going to have to denounce the existing treaties, you are going to have a new Act, and you are going to have to get other countries to adhere to the new arrangements. The European Arrest Warrant, of course, comes up for review automatically in 2014 as part of the Lisbon process. So there will be an opportunity at that moment to revisit it. As regards the other part 2 states, then the issue would have to be looked at in respect of each individual country. It is quite complicated. I suggest it is likely to be quite complicated diplomatically.
Chair: The Committee will look into that.
Lorraine Fullbrook: Chairman, I have another question about the European Arrest Warrant.
Chair: Please, Mrs Fullbrook.
Q462 Lorraine Fullbrook: Is the volume of the European Arrest Warrants, particularly from certain countries, causing problems for the courts system?
Dominic Grieve: Again, I think the DPP may be the best person to answer. I have the figures here for 2010-11. Poland is top with 2011. Germany comes next with 788, Romania with 584. You can get these figures for yourselves. I will not carry on repeating them, but I think-
Q463 Lorraine Fullbrook: What does that mean in context? Is that a problem or is that not a problem?
Keir Starmer: Firstly, can I just make clear that those are requests rather than surrenders. The number of surrenders to Poland was about 700 in the year 2009-10.
Q464 Lorraine Fullbrook: Whether it is a request or a surrender, it has to have a court procedure?
Keir Starmer: Yes.
Q465 Lorraine Fullbrook: These numbers in context, is it a problem or is it not a problem?
Keir Starmer: There is no problem in presenting these cases to the court. The more you have of them, the more of a resource issue it is. Sitting here as DPP, head of the CPS, the more of these cases that come through, the more resource it takes from us, and the same would apply, I am sure, if anybody was sitting here representing the courts. The volume in itself presents a resource issue. It doesn’t present us with a difficulty in the particular cases.
Q466 Lorraine Fullbrook: So there is no problem with handling these warrants through the courts? There are no delays?
Keir Starmer: I don’t want to be put in a position of saying that there are no limitations for us, because there clearly are. The more of these that we have to process through the courts the more of a burden it is on us as prosecutors. Certainly, I take the view that if some of the countries from which we have a large number of requests reduced that volume that would be better all round, and we have been working with others towards that position. But it is not a problem with a big P; it has implications for us. In my view, I would like to see those numbers come down from some of those countries.
Q467 Mark Reckless: Attorney-General, my understanding is that 2014 is the last opportunity by which we have to decide whether to opt out of the third pillar arrangements as they were, including the European Arrest Warrant. Are you suggesting that the Government will not be looking at this until 2014?
Dominic Grieve: No, I was suggesting that by 2014 the Government will have to have looked at this and come to a decision. I think that has been made quite clear, because it covers obviously not just the European Arrest Warrant but all the old third-pillar agreements and is a subject that I think has already been raised in Parliament on a number of occasions.
Q468 Mark Reckless: So it is possible you may do it before 2014?
Dominic Grieve: Forgive me, that is not a matter for me and I would not want you to take that impression away at all. What I do know is that the Government are considering the issue. The Government have to come to a decision by that date.
Q469 Nicola Blackwood: I understand that in the UK European Arrest Warrants can only be issued by an appropriate judge, but in some other jurisdictions they can be issued by prosecutors. Do the British courts provide any safeguards for somebody whose extradition has been sought with no prior judicial process? Do you find in those cases that there are any additional proportionality problems or that those cases are more likely to fall because of lack of information on the warrant? Perhaps Mr Starmer would answer that.
Keir Starmer: I am reluctant to get drawn into this question, because that issue is very much before the Supreme Court at the moment in the Assange case. It is the legal point that was certified and is being considered, namely, whether a warrant that is issued by a prosecutor, in the circumstances in which that warrant was issued, accords with the rules and laws in relation to European Arrest Warrants. So I do not want to get drawn into it because the Supreme Court is about to come to a judgment. Equally, I do not want to get drawn into it, because I have a dual role. I prosecute in England and Wales as DPP and head of the CPS here. I also head up the CPS, acting on behalf of the judicial authorities in Europe.
Q470 Nicola Blackwood: Perhaps the Attorney might want to answer the question then.
Chair: The Attorney, would you like to answer it?
Dominic Grieve: Well, I am not sure I can say any more. The fact is that it is a live case concerning Assange, so I don’t think I want to be drawn further.
Chair: We will accept that.
Q471 Michael Ellis: Just briefly, on the issue of resources that has been raised, there are those who suggest that there is an unfairness because evidence is not examined before a person is extradited to a country. There is simply a legal process that is gone through and there is no questioning as to guilt or innocence. What would be the resource implications if we had a system whereby evidence did have to be examined in extradition cases?
Dominic Grieve: Pretty horrendous. If we were having a preliminary trial here to determine what we thought of guilt or innocence before we sent somebody abroad to be tried on exactly the same issue, then I think the length and complexity of that would be quite extraordinary.
Q472 Chair: In order to complete this session, can I go back to where we began and what you said to the Conservative Party conference about extradition laws. The purpose of the Act was to make sure that politics was taken out of extradition, so that Home Secretaries were not put under pressure and politicians were left out of it. It clearly has not happened. As you have said, the difficult political questions are for you and the Home Secretary to answer, even though you do not make the decision in this. In a case like the Gary McKinnon case, for example, even though it has been left to the judges, this matter has been raised by the Prime Minister with President Obama and is likely to be raised again by him when he sees him in March. You cannot really keep the politicians out of this, can you?
Dominic Grieve: I think that is a very interesting point because, yes, there is a lot to suggest that, as there has been a progressive move towards removing the Executive from the decision-making process, not just in this country but throughout the participating states, the public’s demand, interestingly enough, is the other way. They want Executive intervention when they feel that in some way that would cure some perceived unfairness. If I may say so, that goes to the very heart of the dilemma, the ethical and political dilemma, that I think we face in this area. How do we find the correct balance that reassures the public that we are not being cavalier with the rights of individuals, particularly nationals, people who are living under the Queen’s peace in this country, sending them abroad, even though they are not facing trivial offences? I should make this clear. How do we provide that reassurance without ending up with a very selective interference in the criminal justice system, which in fairness is also doing its best to act fairly within the set of legal rules? That is the unresolved question and it is a very interesting one, both for politicians and for lawyers.
Q473 Chair: But also satisfy the Prime Minister when he said it should still mean something to be a British citizen with the full protection of the British Parliament. So it is not just the public; it is actually very senior members of the Government who are concerned about this.
Dominic Grieve: On the whole, my experience is that the views of the public are often reflected in Parliament.
Q474 Chair: But does this delay worry you, bearing in mind the fact that there are still live cases, such as the Tappin case, the McKinnon case and many others, that are going through the process and we still do not have the clarity that you obviously believe is very important? Of course it is a complex issue-you have a complex job as the Attorney- General-but at the end of the day decisions have to be made. People are being extradited under laws that you regard as being a mess.
Dominic Grieve: At the end of the day, decisions have to be made, but at the same time it is worth pointing out that perhaps one of the reasons why we have got ourselves to where we are today is that we rushed things in 2003.
Chair: I do not think anyone on this Committee would disagree with that. Attorney, DPP, thank you very much for coming in today. Thank you.