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Volume 739: debated on Tuesday 16 October 2012


My Lords, with the leave of the House, I shall repeat a Statement made earlier today by my right honourable friend the Home Secretary. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement about the case of Gary McKinnon and the Government’s response to Sir Scott Baker’s review of our extradition arrangements.

I will turn first to Mr McKinnon’s case. I should explain to the House that the statutory process under the Extradition Act 2003 has long ended. Since I came into office, the sole issue on which I have been required to make a decision is whether Mr McKinnon’s extradition to the United States would breach his human rights.

Mr McKinnon is accused of serious crimes, but there is also no doubt that he is seriously ill. He has Asperger’s syndrome and suffers from depressive illness. The legal question before me now is whether the extent of that illness is sufficient to preclude extradition.

As the House would expect, I have very carefully considered the representations made on Mr McKinnon’s behalf, including from a number of clinicians. I have obtained my own medical advice from practitioners recommended to me by the Chief Medical Officer. And I have taken extensive legal advice.

After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights. I have therefore withdrawn the extradition order against Mr McKinnon. It will now be for the Director of Public Prosecutions to decide whether Mr McKinnon has a case to answer in a UK court. This has been a difficult and exceptional case and I pay tribute to all the Home Office officials and lawyers who have worked on this case over the years.

Extradition is a vital tool. In a world where criminals and crimes can easily cross borders, it is vital, in the interests of justice and public protection, that criminals cannot avoid justice simply by sheltering behind a border. But concerns about the working of our extradition law have grown over recent years. There has been public concern about the extradition regime operating in the European Union—the European arrest warrant—and about the extradition arrangements outside the EU, principally with the United States. That is why in September 2010 I commissioned a review into our extradition arrangements. That review was undertaken by Sir Scott Baker—a former judge in the Court of Appeal—and a distinguished and expert panel including David Perry QC and Anand Doobay. I am extremely grateful to them for the professional and thorough way they went about their work. Nobody who has read their near 500-page report can be anything but impressed by the depth and clarity of its analysis. At the same time, there has been considerable parliamentary interest in extradition. In a debate last December, Parliament agreed unanimously that it believed there were problems with both our US and EU extradition arrangements. In coming to a decision on how the Government should respond to the Baker review I have taken full account of the review’s recommendations as well as the views of Parliament.

Yesterday, I announced that the Government’s current thinking is that we will opt out of all pre-Lisbon treaty police and criminal justice measures. The Government will give very careful consideration to these measures, including the European arrest warrant, and will then seek to opt back into those individual measures where it is in our national interest. The European arrest warrant has had some success in streamlining the extradition process within the EU but there have also been problems. There are concerns in particular about the disproportionate use of the European arrest warrant for trivial offences and for actions that are not considered to be crimes in the UK. There are also issues around the lengthy pre-trial detention of some British citizens overseas. We know these concerns are shared by other member states. We will therefore work with the European Commission and with other member states to consider what changes can be made to improve the EAW’s operation. I believe this is necessary to ensure that the EAW provides the protections that our citizens demand.

There are also concerns about our extradition arrangements with countries outside Europe. A key reason for the loss of public and parliamentary confidence in our extradition arrangements has been the perceived lack of transparency in the process. I believe extradition decisions must not only be fair, they must be seen to be fair and they must be made in open court where decisions can be challenged and explained. That is why I have decided to introduce a forum bar. This will mean that, where prosecution is possible in both the UK and in another state, the British courts will be able to bar prosecution overseas if they believe it is in the interests of justice to do so.

I have been conscious, however, of Sir Scott Baker’s concern that the introduction of the existing forum legislation would lead to delays and satellite litigation. So, rather than commence the existing provisions, as soon as parliamentary time allows I will bring forward a new forum bar which will be carefully designed to minimise delays. In parallel, the Director of Public Prosecutions will independently publish draft prosecutors’ guidance for cases of concurrent jurisdiction, and a bilateral protocol governing the approach of investigators and prosecutors in the UK and the US is being updated alongside this guidance.

Turning to the United States/United Kingdom extradition treaty, I agree with the Baker review that our arrangements are broadly sound and that the treaty brings benefits to both of our countries. Less than two weeks ago, for example, we saw the extradition to America of Abu Hamza and four other terror suspects. Although there is a perception that the evidence tests used by the US and the UK—probable cause and reasonable suspicion respectively—are unbalanced, Sir Scott Baker found that there is no significant difference between those two tests.

I have also accepted the Baker review’s recommendations that a prima facie evidence test should not be reintroduced for those countries where it is not currently required. The courts are already able to subject requests from all countries to sufficient scrutiny to identify and address injustice or oppression. Reintroducing prima facie evidence would be likely to lead to further delays. It is absurd to propose that we should require prima facie evidence from countries such as the United States, Canada and Australia when we do not require such evidence from other countries with far less mature judicial systems.

I also agree with the Baker review’s recommendation that the breadth of the Home Secretary’s involvement in extradition cases should be reduced. Matters such as representations on human rights grounds should in future be considered by the High Court, rather than by the Home Secretary. This change, which will significantly reduce delays in certain cases, will require primary legislation.

Finally, I propose to reduce delays in the extradition system in the light of the recent extradition of terrorist suspects to the United States. In addition to the measures that I have just announced, the Government will look further at proposals in the Baker review to introduce a permission stage for appeals to the UK courts. We will work closely with the European Court of Human Rights on a programme to reduce the wholly unacceptable delays which have occurred there. We have also been considering how we can reduce delays in the deportation of foreign nationals who pose a threat to our national security. There is scope for reforming rights of appeal, streamlining the stages, expediting cases through the court and looking again at the provision of legal aid for terrorist suspects.

As Sir John Thomas, the judge in the Abu Hamza case, said, it is in the overwhelming public interest that our extradition arrangements function properly. They must also be fair. We must balance strong safeguards for those accused of cross-border crimes with assurance that justice will be done. That is the Government’s aim, that is what our proposals will produce and I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Statement. I do not think that I have had the opportunity to welcome him to his new position; I do so and look forward to working with him.

I entirely concur with our shadow Home Secretary, the right honourable Yvette Cooper, when she said in the other place that this was a serious decision and, as the Home Secretary explained, had to be based solely on the judgment as to whether Gary McKinnon’s extradition to the US would breach his human rights. It is testament to how serious a decision this is that the Home Secretary has taken two years to reach it. Within that time, she has commissioned further medical and legal advice. Can the Minister clarify whether the most recent psychiatric report commissioned by the Government was a separate and new medical opinion of Gary McKinnon or a review of the existing medical reports?

I focus on three specific issues in the Statement today: the Home Secretary’s announcement following Sir Scott Baker’s review; the implications that the Home Secretary’s decision may have for outstanding and future cases; and the European arrest warrant.

On the Baker review, it is clearly unacceptable that any case can be delayed for over 10 years pending a decision on extradition. I cannot overstate the difficulties and stress within this case but it is also a terrible burden on the victims and families; neither does it serve justice. We accept and agree with the conclusions of Sir Scott Baker’s review: that removing the role of the Home Secretary from human rights decisions in future will prevent cases languishing without decision for so long again.

In relation to the Government’s announcement of their intention to introduce the new forum bar the Minister will be aware that, when in government, we included the option for a forum bar in the Extradition Act. That has never been introduced. We understand and share Sir Scott Baker’s concerns over introducing further delays in the process, with the risk of endless satellite legislation. We will therefore be happy to work in co-operation with the Government on future legislation to resolve some of the outstanding practical concerns. We know that the expertise of your Lordships’ House will be especially important in that process. However, there is a wider problem that the Government have not addressed and I would be grateful if the Minister could help me on it. We are all becoming increasingly aware of cybercrime—a crime that can occur across several jurisdictions at the same time. As the legislation stands, a forum bar would not make any difference in dealing with the difficult decisions about whether extradition should take place. What efforts are the Government therefore making to work with the US, and other countries where we have existing extradition arrangements, on the development of new arrangements to deal with these emerging crimes?

I know that the Minister will also be aware of the case of Richard O’Dwyer, whose extradition was approved following charges brought in the US for conspiracy to commit copyright infringement and criminal copyright infringement following his creation of a website. Not being particularly technical myself, I understand that the site included links to other websites where the copyright infringement was alleged to have taken place. In Richard O’Dwyer’s case, it has been noted that had the forum bar been applied at the time his extradition may not have been approved. Does the Minister feel that the proposals announced by the Home Secretary today fully address the issues raised by the O’Dwyer case, including when offences may have been committed in the UK at the same time as in another jurisdiction?

I have just one further point, which comes back to the discussion we had yesterday about the European arrest warrant. I understand the concerns that have been raised but I also understand and appreciate that this is incredibly valued, as I highlighted yesterday and as law enforcement agencies in this country have highlighted as well. I worry about losing those powers without having anything immediately in their place. The Minister said in repeating the Statement that the Government wanted to work with other European countries to seek changes to the European arrest warrant. Is he aware that work is already ongoing to make changes to and review the operation of that warrant? Does he know what contribution the UK Government are making to those discussions and deliberations at present? My fear is that when other European countries see that we want to withdraw from the European arrest warrant, it will make our power to influence discussion and deliberation of that issue at this time more difficult. If we decide to opt out and then try to opt back in, we may lose the opportunity to influence the changes that—there is some acceptance of this—need to be made. I hope that the Minister is able to address some of the questions I have raised.

I thank the noble Baroness, who has been very generous in her welcome for this Statement. Indeed, I welcome her support on a number of the issues that she refers to. Perhaps I can help her on those specific questions that she asked me. The latest medical report that the Home Secretary received, which enabled her to come to this decision, was a review of other reports. It was not a report on or an examination of Mr McKinnon but a fresh report on the evidence that was available to the Home Secretary. I hope that that helps the noble Baroness.

I am very grateful on a number of issues. The Baker review recognised that one of the most difficult issues facing Governments on extradition was the delay in the process. Much of what the Government are seeking to do with the new arrangements on extradition that we intend to negotiate and put into place is meant to reduce delay. On the forum bar, for example, we know that it is going to be a different arrangement from that laid down in the 2006 Act, which was introduced by the previous Government but actually promoted by opposition Benches at the time. Clearly, that will not be fit for purpose for what we now see as the important issue of ensuring that the process is both fair and speedy. If I may say so, it would be good—I know that the Home Secretary welcomed this in the other place—to have cross-party co-operation on the construction of new arrangements for the forum bar.

The question of cybercrime was also raised in another place. I reassure the House that the Government are working with other countries on cybercrime; it is an international crime and clearly fits in closely with issues of extradition and the forum for the hearing of cases so that justice can be done and this insidious crime can be dealt with properly, in both the national and international interest.

On the European arrest warrant, yes, there is an ongoing review, as the noble Baroness implied. There are aspects of that warrant that are extremely useful, and none of us in government wishes to suggest otherwise. However, the previous Government made arrangements whereby we could deal with some of these matters by a withdrawal from the pre-Lisbon sections involving these things to enable us to renegotiate the details. We intend to do that in parallel with a number of other countries that share these concerns, and we do not see this as being a negative process at all. It is about making the European arrest warrant much more fit for purpose, introducing some proportionality into the issue, trying to avoid triviality and ensuring that there is no unnecessary delay in the process.

My Lords, I am grateful to the clerk for not starting the Clock so I do not eat into any of the precious time available to noble Lords on the Statement today. I know that there will be great demand to contribute today and that my noble friend will want to respond to as many noble Lords as possible. Because of that, I am sure that the House will find helpful if I remind noble Lords how the Companion guides us on Statements. The point that it makes is that this is an occasion for brief comments and questions.

My Lords, I must express some surprise that this seems to be the first occasion on which the Government have expressed gratitude in any public way for the excellent report by Sir Scott Baker on the subject of extradition. Perhaps the Minister might remind us of the date of that report.

Like opting out of pre-Lisbon police and criminal justice matters, which we discussed yesterday, extradition is a subject that has been surrounded by myths. I had hoped and indeed thought that those myths had been dispelled by Sir Scott Baker’s report. I am therefore particularly glad that the Government have at long last accepted his view about the alleged inequality between United Kingdom and United States extraterritorial arrangements, so I hope that we will hear no more about that particular canard. However, I am disappointed that the Government are differing from Sir Scott Baker on the question of a forum power. Does the Minister not agree that if a suspect can be prosecuted in two or more countries, the essential question is where he can best be prosecuted—that is, where he is most likely to be convicted if guilty? In almost every case, that depends on where the bulk of the evidence is. Does the Minister not agree that that is a question that is best decided by the prosecuting authorities in the two countries involved, not by Parliament?

I thank the noble and learned Lord for his reinforcement of the esteem with which Sir Scott Baker’s report was received. As the noble and learned Lord will know, it was presented a year ago in 2011. I think it is right that an issue as complex as extradition is properly considered, and I think that if the Government disagree with Sir Scott Baker, they have done so because they have considered the issues that the report raised. The noble and learned Lord implied that perhaps the most important thing is the place in which there is the maximum chance of a conviction being achieved. There is also a matter of justice. Justice requires that people are tried where justice may be seen to be done. It will be for the courts to judge this matter. A Home Secretary will not deal with this matter. I believe the courts in this country are quite capable of determining that.

My Lords, this is a welcome Statement. Does my noble friend agree that it is welcome in part because it confirms the importance and relevance of human rights in our law, and that they are not something foreign that is nothing to do with us? The Minister referred to the interests of justice in the question of the forum. Does he agree that that may also raise questions about the burden of proof and prima facie evidence, which were somewhat contentious with regard to the Baker report? Can he confirm that he will use all the expertise of this House, notably on the Cross Benches, as well as in the parties? The Minister referred to parties, but I hope he will agree that in this House “parties” means all sides of the House because there is a lot to contribute on this very difficult issue.

I thank my noble friend for that very important reminder that this House has an enormous asset in the Cross-Bench contributions, particularly from the noble and learned Lords who sit on them. Nobody, not even the Government, is going pass up the opportunity of free legal advice. I am sure that noble Lords will be very carefully listened to on the matters that have been raised. The Government recognise the complexities of the issue, but we feel that there is now an opportunity to change the arrangement and rebuild public confidence that extradition is properly and transparently conducted. It has been troubling the wider electorate, and this is an opportunity to put it right.

My Lords, I refer to my interests in autism listed in the Members’ register. I welcome this Statement today about Gary McKinnon, but will my noble friend agree that the Home Secretary had the advantage of seeing medical reports from psychiatrists who have a working knowledge of Asperger’s syndrome, which made an enormous difference to the decision that she has made today? Over the past few years, I have had the privilege of reading Gary McKinnon’s medical reports. On moving decision-making from the Home Secretary to the High Court, will my noble friend discuss with his colleagues in the Ministry of Justice the need also for courts to be much more particular about where they source and commission such medical reports? The difference between a generalist psychiatrist assessing Asperger’s syndrome and those who have a working knowledge of it is the difference between justice and injustice.

I thank my noble friend for raising Asperger’s and autism in general, conditions which are extremely complex and difficult. She has been prominent in bringing that to the attention of Parliament. I am only too grateful to take her advice and recommendation, and to pass that on to colleagues in the Ministry of Justice.

I welcome the reduced involvement of the Home Secretary in human rights cases and in the kind of case with which we are dealing. It is usually a sound step, and the perception as well as the reality of political involvement is reduced. Hence, I welcome it. However, will the Minister indicate what is meant by a significant reduction in “delays in certain cases” by transferring these matters from the Minister to the courts?

I thank the noble and learned Lord for that question. It is quite overt that in a number of instances, there have been considerable delays. The main thrust of our changes will be to try to expedite the legal process. The process will be speeded up by retaining cases within the legal system and not bringing them back into the political system. I hope that I have been able to answer him.

Does the Minister accept that delays have been caused primarily by Strasbourg rather than London? Will he express agreement with the views of the Lord Chief Justice last month that these delays would make any reasonable person furious? Will the Minister share with the House the communications that the Government have had with the European Court in Strasbourg, expressing concern as to those delays? I should also declare an interest in that I was counsel for Mr McKinnon during an appeal to the Appellate Committee of this House.

I thank the noble Lord. The question from the noble and learned Lord, Lord Morris, was about delays in the normal process and not about delays in the European Court of Human Rights in Strasbourg. I hope that I understood that correctly. Perhaps I may inquire about correspondence with this Government to see whether it is possible to release any of that for the noble Lord. If so, I will place a copy in the Library.

My Lords, I need to begin by declaring an interest as a trustee of Fair Trials International. I congratulate my noble friend and the Government on having introduced a forum bar. It will end the unattractive process of forum shopping, which is a search for judicial procedures that offer the greatest chance of conviction and the highest possible penalties. When the Government come to examine and review extradition arrangements, could they make sure that they include opportunities for common bail procedures and access to interpretation? Very often people operating overseas are unable to understand of what they are being accused, and access to interpretation is a critical part of their access to justice.

I am not in a position to comment in detail on those particular points, but I thank my noble friend for those suggestions. They will be borne in mind as we undertake a review of the process.

An important point was made by my noble friend on the Front Bench that goes to a matter of elementary competence. Have not the Government put themselves in a quite ridiculous position, announcing that they wish to renegotiate the regime for the European arrest warrant and almost in the same breath that they intend to withdraw from the whole structure of justice and home affairs in the European Union? You do not have any influence on the rules of a club if you have announced in advance that you intend to leave it. As for opting back in, we should then be asking our EU partners to do us a favour. In that position we would have no leverage at all in changing the rules. Is that really the Government’s best idea of how to conduct an international negotiation?

I am not sure whether the noble Lord was in the Government or the Opposition when the then Government introduced this provision within our statute law. It provides us with an ideal opportunity to work alongside our European partners and with the Commission to seek a change in the European arrest warrant, which we are not alone in seeing as very useful and important but none the less deficient. The procedure for doing that is to give notice that you intend to withdraw and then to seek to reapply on the terms of the revised arrangements. That is perfectly straightforward. It was discussed yesterday after the Statement repeated by my noble friend Lord McNally, and I do not see any difficulty whatever. I am surprised that the noble Lord makes the point that he does.

My Lords, I thank the noble Lord for having repeated the Statement in this House. He will recall the almost innumerable times that I have raised the issue about Gary McKinnon. Despite the fact that we have had a good outcome today, it is quite concerning that it has taken 10 years to get to this stage; and the best that we can get now that we have decided we are not going to extradite him is that at some undefined stage in the future this matter may come before our courts. What does that mean? Is that going to be another 10 years for this young man who suffers from Asperger’s syndrome, the autism spectrum disorder? I chaired an independent review of autism services in Northern Ireland, and I know the strain with which not just the sufferers of the autism syndrome but their families have to live. I implore the Minister to ensure that on top of this Statement this House gets an early indication of the final outcome.

Finally, I note that in line with the Baker review, the Home Secretary’s involvement in extradition cases should be reduced. On a general principle, this suggests to me that we are moving more and more towards government by caucus. There are some 600 Back-Benchers in the other House and some 800 noble Lords in this House. We want to have direct access to government, not access by proxy to some delegated power that we cannot identify.

The noble Lord will know that separation of powers is an important part of our constitution. The Home Secretary is saying that this particular power belongs more properly in the judicial process. I think the sentiment around the House suggests that she has that issue right. On the question of Mr McKinnon and what happens to him now, he will be able to apply for release from his bail conditions but it will be for the Director of Public Prosecutions to decide whether he should be tried in the UK. That is not a matter for government.

Will the Minister shed some light on an aspect of the Statement? I am not a learned Lord but I was a practising lawyer for 20 years and I was always taught that one is innocent until proven guilty and should be treated as such. I refer to extradition to the United States on a whim whereby a businessman or businesswoman can now languish in a jail in America without transparent evidence having been provided. They are then pressurised to enter into a plea bargain on the basis that the case will go all the way to trial. They are not granted bail as they are treated as a security flight risk because they had the temerity to fight extradition. They are in a cell and are told, “All this can go away. All you have to do is plead guilty. You can get two years, two years at home in an open prison after that and this can all go away. Or you can sit here in a jail in America while we get the case together over something like two to three years. You will get no costs for your defence. If you are found guilty, you will go down for 30 years and you will never see home again”. The person concerned has had no evidence presented against him that has been tested in any way, shape or form in a transparent open court of law on either side of the Atlantic. I would welcome the Minister shedding some light this afternoon on how that situation is the pursuit of justice of which he speaks.

I am not in a position to comment on the judicial procedure in the United States. It is a sovereign country and makes its own laws and conducts its own affairs. Having said that, the noble Lord will appreciate that this country has good and close relations with the United States; indeed, its legal system is founded on our common law. Therefore, we have a shared purpose. Scott Baker managed to show that there was no substantial difference between the test that was applied in a US court for extradition to this country and that which was applied in a UK court for extradition to the United States. He came to the conclusion that it was a reasonable arrangement that fitted with the legal processes in both countries. We are not aware of any extradition cases in the United States where somebody has waited three years for their case to come to trial.