Wednesday, 16 September 2015.
Extradition: UK Law and Practice (Extradition Law Committee Report)
Motion to Take Note
My Lords, extradition—the sending of those accused or convicted of crimes across borders to stand trial or serve sentence in another country—is a contentious, albeit often misunderstood topic which on occasion engenders strong comment on account of the apparent poignancy of the facts and circumstances in a particular case.
In a world which is ever more interdependent, and where travel is ever cheaper and easier, extradition’s salience in the administration of justice is ever greater, even though in this country, at least, it goes back centuries—to 1174 and a treaty, apparently now lost, between England and Scotland.
In the 1990s, the United Kingdom’s arrangements were widely discussed following the so-called Pinochet affair, and those arrangements were superseded by the Extradition Act 2003, which has subsequently been amended. It is these arrangements and their effectiveness into which the House of Lords asked its ad hoc Committee on Extradition Law and practice to inquire in 2014 and to report by the end of March this year.
This is not the only recent parliamentary inquiry. There have been a number of others by committees of the other place and Joint Committees, which have looked into some aspects of the topic. In addition, of particular relevance and help to the committee was the report of the committee chaired by Sir Scott Baker to review the UK’s extradition arrangements, which was published in the autumn of 2011.
The committee comprised Members who had great specialist expertise, and some, like the Chairman, who were new to the topic. Some were lawyers, and others were not. A clear overview emerged that extradition is based on comity and co-operation between states, and that this requires, within certain important limits, the acceptance of the criminal justice systems of others.
The boundaries defining the limits of acceptability are founded on and derived from the European Convention on Human Rights, which is recognised widely across many jurisdictions outside our own. Furthermore, extradition is essentially a judicial, not a diplomatic, process.
The law relating to extradition in the UK is divided into three parts, which have many similarities. Part 1 relates to countries that are members of the European Union; Part 2 to countries with bilateral or multilateral treaties with the United Kingdom, 90 non-European arrest warrant countries which are signatories of the European Convention on Extradition, and Australia, Canada, New Zealand and the United States. The third part comprises other countries with which we have no standing arrangements.
Although many of the characteristics of the arrangements with Part 1 and Part 2 countries are similar, they are not identical. Finally, the committee is clear that extradition is an instrument of last resort, and that every effort should be made by administrative and other measures to limit its use. This of course entails both domestic and diplomatic considerations. Nevertheless, that may not always be possible.
However, I shall begin by considering matters which are shared by Part 1 and Part 2 countries. As already mentioned, human rights, quite properly, are at the heart of our extradition law. While we concluded that the courts, in the handling of human rights considerations, are working effectively in an area of law which is evolving all the time, we were not satisfied that post-extradition services were followed up and monitored as they should be. In particular, in individual cases it often happens that assurances are put in place to enable extradition to take place when otherwise the courts would not allow it. Clearly, it follows that such assurances must be adhered to.
The Home Secretary told us in her evidence that the Government are conducting an inquiry into the matter. We concluded that this report ought to be debated by both Houses, yet in their response the Government merely undertook to put a copy in the Library when it is completed this autumn. When does the Minister anticipate that the report will be concluded and made public, and, given that this may well affect many UK citizens, why are the Government so coy about the matter being debated in Parliament?
In considering possible extradition, there can often be real questions about where, in cases of cross-border crime, it is appropriate to prosecute. We started from a conclusion that the existing arrangements give the Crown Prosecution Service the necessary discretion to enable prosecutors to reach sensible conclusions. However, the Government appear to have dismissed our concerns that an extension of the so-called interests of justice test might better serve the system taken as a whole. Can the Minister spell out the reasoning for that?
We were also concerned that the courts should be especially astute in ensuring that a number of general principles of extradition law and practice are adhered to in this context. Although this is clearly a matter for the courts, I would ask the Government, who have responded in an apparently lukewarm manner, to urge the courts to be especially punctilious in this respect.
The committee also concluded that it was wrong that a person facing extradition be unable to present sensitive information to the courts in order to resist extradition without prejudicing others. We recommended that the Government should therefore amend the 2003 Act to provide for an independent counsel procedure, in order to enable sensitive material to be used in extradition hearings. The Government’s response does not commit to legislating to address this problem but describes the recommendation as,
“helpful in providing a foundation for further consideration of this issue”.
What have the results of this further consideration been?
We also received some evidence about the links between extradition law, family law and trafficking, which we were unable to follow up in the time available and which, in our view, merit serious further consideration. I am very glad that the Government have said they agree, and I would be interested to hear what might be done to take this matter forward.
A frequent concern put to us in evidence was the difficulty in ensuring that appropriately qualified solicitors were available to assist those subject to extradition requests, because bad advice at the outset can harm individuals and waste the court’s time and public money. A ticketing system exists for district judges to ensure that those undertaking extradition casework are appropriately qualified. In a bid to be helpful, the committee recommended that such a system should be introduced for the rota of duty solicitors. It was disappointing that the Government’s response was fairly dismissive of this suggestion, saying that the costs of having such a system would be disproportionate to the concern. Rather, we believe that the committee’s recommendation could actually save money by making court proceedings shorter and more efficient. Was any form of impact assessment carried out before the Government came to their decision? More generally, the committee’s position was that, in any event, where the cost-benefit analysis was thin, the interests of justice should take priority. We heard persuasive evidence of people being badly represented at the early stages of extradition, and we believe that a ticketing system would have helped to prevent that. Can the Minister set out how the Government plan to tackle this problem?
I now turn to the vexed issue of the availability of legal aid. The Baker review asked for a cost-benefit analysis of the effect of removing means testing for legal aid in extradition cases. The committee concluded that the analysis provided to the review was,
“neither a sufficient nor a credible response to the concerns raised”,
and asked the Government to,
“conduct and publish a full and detailed cost-benefit analysis”.
We wanted this analysis to include the potential savings made by having matters resolved by lawyers in the issuing state—and again, within the analysis, the interests of justice ought to take priority. In the mean time, we felt that the Government should do what they can to make the current process more efficient, and noted that practical improvements are under way. In their response, the Government state that they have “no plans” to undertake a “more detailed” analysis and reject,
“any assertion that the means testing of criminal legal aid is fundamentally inconsistent with the timely progress of extradition hearings”.
However, this response has missed the point of the committee’s recommendation. We were not criticising the processing of legal aid applications by the legal aid authority but the earlier, initial hurdles that many requested people faced in even making an application. These could be, for example, a lack of paperwork, poor legal advice or even their having no legal advice at all until the legal aid came through. In passing, I note that the response says that legal aid issues could not justify an automatic three-month delay. The Government may be right, but this was not our assertion; it was the explicit evidence of the district judges, which we believe deserved a better response.
I turn to Part 1 countries and start with the European arrest warrant. This ad hoc committee was somewhat unusual in that we were allowed by the House to publish not one but two reports. With the House’s permission, we were able to produce a short interim report on the European arrest warrant, which was timed to enable the inquiry to contribute to the high-profile debate at the end of last year on whether the UK should seek to opt back into it. The committee concluded that,
“the EAW is a vital tool in fighting crime across the EU”,
but we recognised that it had in the past been overused by some states and, on occasions, misused. It seems to us that the Government are therefore to be congratulated on some of the changes they made to the 2003 Act to address those concerns, and that they should continue to work with the European Commission and other EU member states to ensure that European arrest warrants are an instrument not of first, but of last resort.
As just touched on, one criticism of the extradition system in the case of Part 1 countries is that there has been no sense of proportion in its use, in that it has been deployed in trivial and minor cases. While in the past certain technical reasons have accounted for some of this, a proportionality bar—which has in turn engendered quite a bit of comment—has been introduced into our legislation in respect of Part 1 countries. We agreed that it did not appear appropriate in the case of Part 2 countries. Furthermore, a number of other countries—I single out Poland—have adapted their domestic jurisprudence to constrain the number of requests. We believe that this looks like a step in the right direction, but why in their response do the Government not consider it disproportionate to extradite in conviction cases when less than four months of a sentence is left to run?
I turn to the position of Part 2 countries. As I said, these are the countries designated in the 2003 Act with which the UK has either bilateral or multilateral treaties that are not covered by the EAW, and are signatories to the convention on extradition; they also include Australia, Canada, New Zealand and the United States. The Government are in the second phase of a review of the designation of these countries, the results of which are still pending. We nevertheless felt that it was important that the review should include the status of signatories to the convention, even though we took the realistic view that we are where we are in the real world and that ultimately, it may not be practical to redesignate them. I have to say that I was unclear from the Government’s response what the focus of the current phase of their review might be. Perhaps the Minister could shed a little further light on what their considerations have been so far.
Finally, I want to turn to the extradition arrangements between the United Kingdom and the United States, which have been subject to high-profile criticisms and comment in recent years. We recognise the potential validity of some of the concerns about the US justice system. In particular, there have been difficulties with sometimes lengthy periods of pre-trial detention and in obtaining bail. That said, it is important for everyone to remember that the courts have found that the US justice system complies with the European convention. Despite its high profile, we did not consider the US to be in a category of its own outside that of other Part 2 countries. We concluded that the Government should make representations to the United States authorities with a view to agreeing the treatment of those extradited from the UK, with particular regard to transfer, pre-trial detention and bail, but they should also make similar representations to any other country where there are concerns about conditions. We felt it was important that, were that to be done, such representation should be documented in a memorandum of understanding. The Government appear to have declined to do this, citing the centrality of the role of the courts in determining such assurances and the likely conditions to which requested people will be subject.
Extradition is, of course, a judicial process, but the committee’s intention was to propose some sort of middle way to address the complaints and concerns about treatment which may or may not fall below ECHR thresholds, but still undermines the UK’s extradition arrangements with the United States and vice versa. Self-evidently there is a problem, even if only one of perception. It is a pity that the response has been so unimaginative.
An inevitable feature of an ad hoc committee is that it has no means to follow up its reports, particularly concerning the way in which the world has or has not changed in the light of its recommendations, and whether the Government have honoured their commitments. This sort of follow-up work would be an essential part of the job of any diligent permanent committee doing its job effectively. The Government would be foolish to feel that they were getting off the hook because of that structural issue, or that today’s debate would be the last word.
The Liaison Committee will, I know, return to our report next year—having recently, I understand, conducted its own follow-up exercises on the reports of ad hoc committees from the 2013-14 Session. Equally, the issues covered in our report will not go away, and will certainly remain of high interest to those in your Lordships’ House, and to many outside.
In conclusion, I thank the members of the committee, the clerks, James Whittle and Cathryn Auplish, and our splendid special adviser, Charlotte Powell, for all the work they have contributed. I would also like to put on record our gratitude to all our witnesses, in particular the judges at the extradition court in Marylebone and the Extradition Lawyers Association, for the help they have given us in trying to get a true understanding of how our extradition system actually works. I commend the committee’s report to the Committee, and I beg to move the Motion standing in my name on the Order Paper.
My Lords, I had the good fortune to be a member of the Select Committee on Extradition Law, under the extremely able chairmanship of the noble Lord, Lord Inglewood, and with the fine assistance of the clerk and the legal team, who gave us advice and directed our attention to the large number of issues that arose. I have no hesitation in recommending the report to the Committee, because it contains a clear exposition of law, policy and practice, and discusses the important issues that it raises. As the noble Lord, Lord Inglewood, said, we were much assisted by the report of Sir Scott Baker, published in 2011.
Subject to necessary protections and safeguards, extradition is in the public interest because, first, it is essential that those accused of crimes should be brought to trial, and those convicted of crimes should serve their sentences in the place of conviction. Secondly, the United Kingdom should honour its treaty obligations. Thirdly, it is in the public interest to avoid this country becoming a safe haven for criminals.
When considering this subject, it is important to remember that extradition is not about establishing guilt or innocence. We looked in detail at the extradition process and the bars to extradition. We talked to people who had undergone that process, and some of their accounts were very moving. We became aware of the fact that although in cases of murder or theft it was easy to see that a person charged should be referred to the state where the offence occurred, it was less obvious in cases of fraud on global markets, or crime involving the internet. In such cases there are often different individuals playing different parts in different countries, or simply someone operating behind a computer in one country, with dire consequences for victims in other states.
In those cases, difficult questions arise as to where the prosecution should take place. We looked at the guidelines for choosing the appropriate forum—taking into account, for example, the location of the witnesses and their ability to give evidence, the location of the accused and his or her connections with the UK, the location of co-defendants, the availability of extradition and the prospect of proceedings being successful—and, of course, the place where most of the criminality, or loss or harm, occurred.
The aspect of our report that gave me most pause for thought lay in the UK’s extradition arrangements with the United States, even though extraditions to the United States account for a very small proportion of the total number of extraditions. A new treaty was concluded with the US in 2003 but not ratified by its Senate until April 2007 after a visit from the noble and learned Baroness, Lady Scotland.
It has been alleged for some time that the arrangements between the United States and the United Kingdom are unbalanced, but in fact 14 requests from the United States have been refused in this country, whereas in the same period the United States has rejected none of ours. There was much argument about the evidence needed to support extradition to the United States and vice versa—probable cause and reasonable suspicion were the two terms under the microscope. We concluded that although the terms were different, functionally they were the same. What was not the same, however, were certain aspects of the United States justice system which seemed to us unduly harsh—not least those being extradited being shackled in chains on the plane on their outbound journey.
We heard much about the United States plea bargaining system. While it is true that a plea of guilty in our system can achieve a sentence discount, in the United States plea bargaining has become notorious, with some alleging that 90% to 95% of state and federal court cases were resolved through plea bargaining, which has led some to conclude that as a result many people in prison were in fact innocent.
A number of witnesses pointed out that plea bargaining placed a great power in the hands of the prosecutor—I shall come back to that in a moment. The evidence we heard emphasised the fact that extradition often removes individuals to places far from home, without support, facing an alien justice system. Who would not, in those circumstances, it was asked, accept a plea bargain however innocent they felt? The certainty was to be much preferred to the uncertainty of a much longer sentence in a foreign jail. As for human rights, this House, in its judicial capacity, ruled that only in a wholly extreme case would plea bargaining be regarded as an absolute abuse of process. The United States Supreme Court and the European Court of Human Rights also declined to intervene on that basis.
Another aspect for concern was the United States courts’ tendency to refuse bail to those who had fought extradition. In such cases, such conduct—when combined with the fact that an extraditee was not a United States citizen and had no property or family ties in the community—was thus regarded as a flight risk, and bail was refused. Similarly, it was said that some United States prison conditions were so appalling that extradition to the US was extremely harsh. The conditions in some supermax prisons were dreadful. While British prisons are not exactly five star hotels, the lengthy wait for trial in a supermax prison in the United States—particularly for those who have been assessed in the United Kingdom as “low risk” for violence or absconding—seems unduly harsh. As with plea bargaining, the Equality and Human Rights Commission has not found US prison conditions to be in breach of human rights.
Unlike our own prosecuting service, many US prosecutors are drawn from the law engines of the top law firms in Washington and New York, having given up a few years of their career to gain experience and expertise in the US prosecution service before resuming their careers in private practice. They are determined to succeed and take a broad and enthusiastic view of their jurisdiction. Unlike our prosecutors, who rely on police investigation, US prosecutors have investigatory powers and therefore drive the prosecution from its inception.
As the chairman has said, notwithstanding these reservations, we concluded on balance in our report that the United States was not a special case and that its processes and interpretation of jurisdiction were not inappropriate. While the United States is clearly more active in prosecuting cross-border crimes than many others, we did not find that its interpretation of its jurisdiction was excessive. Nevertheless, we did make a recommendation, which Lord Inglewood has referred to, that the UK Government should make representations to the US with particular regard to the transfer of prisoners—that is, the transfer in chains—pre-trial detention and bail for those extradited.
Our recommendation has been rejected and, like Lord Inglewood, I would like the Minister to explain to the House, on the record, the reasons for rejecting our suggestions, because they seem to me extremely practical and sensible and would relieve some of the harshness of the conditions in which extraditees find themselves.
My Lords, I thank my noble friend Lord Inglewood for his masterly chairmanship of the ad hoc Select Committee on Extradition Law, on which I have been privileged to serve. I also take this opportunity to thank the clerks and advisers for their patient answers to the many questions I seem to have asked in the past couple of days.
If I may say so, my noble friend’s speech was excellent and was so wide-ranging that I only really need to talk briefly to two of the recommendations. As we have heard, our committee wants UK officials to gain assurances from their American counterparts about the transfer, pre-trial detention and bail of people facing extradition to the United States. Some individuals assessed in the UK as presenting a low risk of either violence or absconding are nevertheless restrained during flights or detained in high-security facilities. We have heard more from Lord Hart of Chilton on this issue. The Government’s response shows some willingness to seek assurances, but can the Minister say more? I should like to think that issues besides individual health could be discussed in this area.
Secondly, I was fortunate during the committee’s investigations to sit in on two extradition cases at Westminster magistrates’ court. One involved a young Polish fellow who was assisted in court only by a much-needed interpreter. In the other case, however, the defendant had legal help, and the difference was noticeable in terms of clarity for both judge and defendant. That took me back, quite a long way—to 1996-97, when I participated in a review of the civil court division of the Court of Appeal, led by Sir Geoffrey Bowman, and which included the noble and learned Lord, Lord Woolf, whom I see is in his place here today, which is very pleasing. He was Master of the Rolls at the time. That review was prompted by an increasing number of lay litigants in person—some 25% of the cases back then. We witnessed many lay litigants, and judges, struggling through mountains of disordered papers with looks of confusion. The individual stress and the time wasted was terrible, and I remain glad that our recommendations—some, at least—helped to alleviate both.
Since then, I have discovered something called the personal support unit. What a difference it is now making in the civil courts. Usually under the guidance of a retired lawyer, trained volunteers, at no charge, assist people who are facing civil court proceedings without legal representation. I wish a PSU or an equivalent could be involved in extradition cases such as the ones I have observed.
More substantially, there is an overwhelming case for the Government to do further detailed work on the costs and benefits of the effect of removing means testing for legal aid in extradition cases. Remember that, in most extradition cases, requested people have yet to be convicted of any crime. Innocent until proven guilty—that principle is one we really must cherish and protect, and it is a suitable point on which to conclude.
My Lords, it is good to follow the noble Baroness, who is in fine form. I very much agree with what our chairman, the noble Lord, Lord Inglewood, has said in his shrewd summation, so my remarks will be brief. I quote from an early page in the report:
“The suggestion for this inquiry came in a letter to the Liaison Committee from Baroness Garden of Frognal in which she said, ‘the question of extradition remains as high up on the political agenda as ever’”.
During our proceedings, so well marshalled by our clerks and advisers, I much appreciated the wise counsel of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but perhaps the merits of our committee system are best illuminated by the qualities of our witnesses. Sir Scott Baker was persuasive. Then there was the professionalism of Senior District Judge Howard Riddle, the chief magistrate at Westminster magistrates’ court, and the right honourable Theresa May, our Home Secretary, whose straight bat was worthy of a place in a test match team. There was also Jacob Rees-Mogg, MP, with his whimsical elegance and sincerity, and a squadron of QCs—skilled presenters and experienced, insightful and confident advocates.
We also heard from our fellow citizens who had been extradited, who brought to our proceedings the still-remaining horror, shock and fear of the foreign courtroom. They gave us mostly no-nonsense, authentic accounts of what it was like to face the formality and the might of foreign law, with their liberty at stake. It could be said that they brought into our proceedings the very smell of remembered fear. It was therefore only right for our committee to consider seriously at length what our state decides about a citizen’s liberty in our name.
I found the visit to the Marylebone magistrates’ court most helpful. Judge Riddle and his colleagues were hospitable and informative. Their courts are unique, and their professionalism impressive. Perhaps these little-known courts truly reflect the British approach to law—an approach much to Britain’s credit. At Marylebone one sat alongside the district judge and observed everything that went on—the judge’s meticulous note-taking, her courteous interventions on the advocates below her, and her impartiality. The advocates were truly representing worried plaintiffs, and one saw the centrality of the interpreter; that was clearly very important. The system acknowledged the humanity of the situation, and there was, self-evidently, fairness. It seemed that each court required quite a number of employees to make it work, and here extradition was decided. To be present was to experience a learning curve that was helpful to the committee’s proceedings, so I thank the district judge who tolerated me in her court.
I referred to witnesses, and the United States system looms large in our report. So it should. Paragraph 443 refers to pre-trial conditions being perceived as harsh—excessively harsh. Paragraph 444 seeks,
“representations to the US authorities to agree the treatment of those extradited from the UK”.
I support that wholeheartedly.
Witness David Bermingham’s lengthy evidence was riveting and moving when one knew his supportive parents were present in our committee. As one of the NatWest Three, he brought authenticity to the committee. Extradition concerns a citizen’s liberty—in this instance, a highly educated, worldly-wise, sophisticated and imaginative banker told it as it really is from his point of view. When the might of American law bears down on one, it can be terrifying. Because of costs, Mr Bermingham eventually lodged in the home of his American lawyer. Matters dragged on and on and the financially hard-pressed NatWest Three then had to meet their wives who had crossed the Atlantic for decisive family talks. The upshot was plea bargaining, jail and fines. Whatever the merits of the case—I am not qualified to judge—David Bermingham’s evidence vividly justified the committee’s proceedings, as did the other representative witnesses.
The NatWest Three were British citizens surrendered to foreign law—to highly organised, most powerful, overwhelming law. One is not an advocate for the NatWest Three, but one is a total supporter of our committee’s stance on United Kingdom-United States extradition.
Like others, I start by paying tribute to the noble Lord, Lord Inglewood, for chairing our committee with such assiduity, sagacity and unfailing good humour, and to our wonderful clerk, James Whittle, and those who assisted him, not least our legal adviser Charlotte Powell. They all played essential roles in enabling us to complete this very complex inquiry in the required time, producing, as I believe, a sound and convincing report.
I came to this inquiry having been involved in extradition law over a considerable number of years, largely as an appellate judge. Indeed, I declared an interest as such in the report. Having observed this both as a judge and now on this committee, I can genuinely say that between them, Parliament and the judiciary have achieved what is substantially a fair and appropriate balance between, on the one hand, the public interest in extradition, and on the other the rights of those for whom extradition is sought, including not being unreasonably subjected to the trauma of forcible removal for trial abroad.
The public interest in extradition is, as the courts have often been at pains to explain, constant and weighty. Those accused of crime should ordinarily be brought to trial. The UK should honour its treaty obligation. In an ever contracting world it is ever more important to combat cross-border crime and fugitives. There should be no safe havens. Extradition is not the process for determining guilt or innocence, but only whether the suspect should be brought to trial. Therefore, the old adage, “Better 10 guilty men go free than one innocent person be convicted”, simply has no application in this context.
One must acknowledge, however, that this interest can on occasion, if only rarely, be outweighed by certain very real concerns on behalf of the suspect. The possible defences—bars to extradition—are set out in our report at paragraph 19, but they above all revolve around human rights concerns as defined in the European Convention on Human Rights. Of course, Part 2 countries are not subject to the convention, but the convention it is that provides the touchstones by which our domestic courts decide on the propriety of extradition, both to Part 1 and Part 2 countries.
Before turning to two particular matters on which I shall touch in a little more detail, I want first to suggest what seem to me certain basic truths about the operation of extradition which I think the wider public sometimes overlook. I have already mentioned one: that extradition is not the trial process but merely the mechanism for ensuring that those accused of crimes stand trial, the closest analogy being perhaps domestic pre-trial custody. An accused here may forcibly be detained in prison, even though untried and still therefore presumed innocent. Secondly, if we in the United Kingdom refuse to extradite accused persons to, say, Russia or Turkey—as indeed we do, since we cannot be satisfied that they will be treated humanely on being returned—two consequences have to be recognised. First, we will thereby be providing a sanctuary for the criminals of those countries who manage to flee here. Secondly, those countries may well in turn reciprocate by refusing our requests to them to extradite, very possibly, UK nationals back here.
Extradition is based on mutual trust and respect, and extradition proceedings must therefore accommodate legal and cultural differences between all sorts of different legal systems. Naturally, we think that our own criminal justice system is best, but we cannot insist on all other countries following the same procedures. Let us take the USA’s practice of plea bargaining. We may think that it is carried to such lengths as to put defendants under too great a pressure to plead guilty even if they regard themselves as innocent. But we have to recognise this: if on that basis we held that the practice of plea bargaining constitutes an abuse of process, we would have to refuse to extradite not only our own citizens to the United States but any United States citizens who were here, however guilty. As we point out at paragraph 442 of the report,
“the UK would speedily become a safe haven for all those seeking impunity for crimes in or against the US”.
That brings me to the first of the two matters I want to touch on a little more particularly: our extradition relationship with the United States, which others have already addressed. I should perhaps mention at once that I gave the sole judgment in the appeal committee in this House in 2008 in the case of McKinnon, which we summarise at pages 132 to 135 of our report. It is perhaps among the more high-profile of the many vexed cases involving the extradition of UK nationals to the USA for offences which, although of extraterritorial effect and therefore triable on an extraterritorial basis, were substantially committed in the UK. There was huge public misconception about that case.
First, it was suggested that all Mr McKinnon was doing on his attic computer in London was searching for UFOs. However, his confession to disrupting American security systems was on the basis that he considered that the US Government were sponsoring terrorism. Secondly, it was claimed that he faced a sentence of decades in prison—50 or 60 years—if he pleaded not guilty but was convicted, whereas in fact the indications given to him were that he could expect a sentence of three to four years on a guilty plea, or eight to 10 if he fought and lost the case.
Thirdly, as is of course well known, the Secretary of State ultimately decided not to extradite him because by then he had been diagnosed with Asperger’s. However, that diagnosis came after the appeal hearing before us, during which no question had arisen at all about his health. In 2013 the law was changed to pass the responsibility for consideration of such late human rights concerns from the Home Secretary to the courts, and our committee, rightly, fully endorsed and supported that change. Surely, extradition should be kept out of the political arena and left entirely as a judicial process.
The overall conclusion we came to is that there is no basic imbalance or unfairness in the operation of the UK-US extradition treaty. We agreed entirely with the Sir Scott Baker review in that regard. However, as others have mentioned, we concluded that those extradited to the US, even if at low risk of being violent or absconding, may on occasion be too harshly treated—for example, being unnecessarily handcuffed or even chained in flight or detained in high-security conditions because, as non-US citizens, they can offer no suitable bail address.
The noble Lord, Lord Inglewood, has already addressed the question of securing from the authorities some suitable memorandum of understanding to deal with these concerns. I add only the following, which brings me to the final point I want to touch on: Article 8 of the convention. If indeed it is impossible to secure any suitable memorandum of understanding or undertaking from the United States, or from any other relevant state whose processes give rise to the same concerns about such pre-trial treatment, that could well affect the court’s view and tip the balance in a particular case against extradition.
Article 8 has assumed—the witnesses were very clear about this—increasing importance as a possible bar to extradition, in particular since the decision of the Supreme Court in HH and linked cases. In 2012 my noble and learned friend—then Lord Chief Justice—Lord Judge was party to that case; indeed, I think it was my very last case in that court. It is still rare for Article 8 to successfully be invoked in such cases. However, it enables the court to look at a case in the round and decide whether the gravity of the alleged offending and the overall interests of honouring extradition agreements and combating cross-border crime truly justify the huge disruption of life sometimes involved in a person’s extradition. Although Parliament has now introduced into our law certain specific provisions about forum and proportionality and so forth, very generally those same considerations will also come into play in determining an Article 8 claim.
Our report deals with these matters at various places, but I draw particular attention to paragraphs 172 and 173. Unlike some countries, the UK extradites its own nationals. However, there may well be different considerations in play in two different cases: for example, that of a foreign national who has committed an offence in his home country and then fled to the United Kingdom, and whose extradition is sought from here back home; and, on the other hand, that of a UK national who has never left this country but whose extradition is now sought for trial on an extraterritorial basis, his crime having impacted abroad. In the former case, the suspect’s private and family life is abroad anyway and will not seriously be interfered with by extradition. But as the noble Lord, Lord Hart, has pointed out, the UK national, if extradited, will be separated from his home, family, friends and support systems. He will be sent abroad where he may have no ties or support at all, very possibly with no bail address, and without any understanding of that country’s legal system and customs, and perhaps even their language. There is surely some considerable difference between those cases. Paragraph 173 of our report suggests that in the latter case the court should be “particularly astute” in ensuring that extradition really is the appropriate course and that,
“the forum bar has been fully explored … all relevant Article 8 arguments have been fully evaluated to ensure that extradition is not disproportionate”,
and—this reverts to the point about the USA—
“consideration has been given to the possibility of obtaining assurances as to … the prospects of pre-trial bail; and … the transfer back to the UK of at least part of any eventual sentences”.
The report covers a host of issues, most of which one could wax lyrically on—or not, as the case may be—but I propose to say no more. I believe that the report should be allowed to speak for itself, and I respectfully commend it to the Committee.
My Lords, I shall confine my observations to the issues arising in the report connected to the European arrest warrant. I do so for perhaps the curious reason that the arrest warrant seems to have been a part of my life for the best part of five years, not just one. Prior to serving on this committee, I served on the European Sub-Committee E for four years, where the issue of scrutiny of European arrest warrants was a regular part of my practice, although I have not yet been served with one.
The second feature of the evidence that we received, which I have heard in previous scrutiny cases, is that despite the many pungent criticisms that have been made of the European arrest warrant and the examples of manifest injustice that have occurred, nevertheless the overwhelming opinion of witness after witness was that we should stay within the European arrest warrant system. It was therefore with very considerable relief that we heard that the coalition Government had eventually agreed to do so. We came to the same conclusions in both our interim and substantive reports. The evidence, for example, covered Operation Captura, under which some 61 criminals have been brought back to justice. These were not some romantic robber barons: they included one of the most serious paedophile cases, which I think the Home Secretary invoked when defending the Government’s decision to rejoin the European arrest warrant.
Having said that, we should not be unaware of or deny the valid criticisms of the system. In some cases, there have been clear examples—such as Mr Symeou and Mr Graham Mitchell—of manifest injustice. I refer in particular to Mr Mitchell because he gave us very moving evidence of his nightmarish experience under the process.
Mr Mitchell and a friend were on holiday in the Algarve in May 1994, when he was accused of attempted murder. He was held in pre-trial detention for a year. At the trial he and the other person charged were found not guilty and released. Then, some two years later, the Portuguese supreme court quashed Mr Mitchell’s acquittal, although he was not at all aware of that, and proceeded somewhat later to seek a European arrest warrant. The warrant was served on Mr Mitchell, and he was arrested and held for proceedings at the Westminster magistrates’ court. However, in May 2012 the Portuguese authorities—having traumatised a citizen in the most appalling manner—withdrew the request.
A question immediately arises, which I would like to put to the Minister. For all the various changes that we have made and are making—the so-called soft measures and the safeguards—are we certain that it is now highly unlikely that a British citizen will ever encounter the kind of experience that Mr Mitchell and Mr Symeou had? Are we as certain as we can be that the sort of manifest injustices that have arisen are now highly unlikely to occur? I will be grateful if the Minister, when he replies, addresses that question. That is what many citizens will be saying that we want from the changes and amendments that have been made—to ensure that such cases will not be repeated.
The second issue surrounding the European arrest warrant is that of proportionality, and the principle that such a warrant should be a last resort, not a first resort. In this respect the committee endorsed the Government’s legislation on proportionality, but we received quite a lot of evidence doubting its efficacy. Inevitably, the particular problems of Poland were mentioned, and both the committee and the Government have emphasised the response and the changes that the Polish authorities are now endeavouring to make to their arrangements. An extraordinary number of cases originated from Poland: 90% of the cases in Scotland were Polish cases. That should now be reduced, and a degree of proportionality should be properly introduced.
The Government claim that its proportionality bar and other things are working, and that there is a reduction. I would therefore be grateful if the Minister would update us on the figures in table 3, on page 40 of the report, to include the figures for 2014-2015. Let us see whether the trend in such cases, particularly those involving Poland, is at least going in the right direction.
I noticed with some interest and satisfaction that in their response the Government drew to our attention the fact that the National Crime Agency has refused to certify a total of 196 European arrest warrants on grounds of proportionality and other discretionary grounds. That is to be welcomed. They also claim that they are pushing for the principle of last resort to be the basis of the revision of the Commission’s handbook —a handbook of guidance and advice for member states. How far has the Minister got, and how successful has he been, in pursuing the Government’s efforts to ensure that proportionality and the principle of last resort will be central to the revised Commission handbook? As the Government made the case about the importance of revising the handbook in their response, will he explain where we stand on that issue?
I draw attention to one other recommendation that we made on the European arrest warrant. Recommendation 16, in paragraph 315, says,
“the Government and the European Commission should work to establish further guidelines on the execution of EAWs to ensure that they are conducted in the least hostile manner possible”.
I cannot see a proper reply or response to that recommendation in the Government’s response, so I ask the Minister whether they have followed it up.
I recall that one of the reasons why that recommendation was made was the evidence of a Polish gentleman, Mr Wolkowicz, who suffered the most intolerable indignities being extradited in a wheelchair, rolling around in a Second World War Polish plane. Indeed, it caught fire, but fortunately it was on the ground. That sort of thing, as well as the experiences of those who have been extradited to the United States, suggest that we should at least try to execute the warrants in a more a sensible, civilised way than appears to have been done in some cases.
It has been a pleasure to serve on the committee under the chairmanship of the noble Lord, Lord Inglewood. I have to tell the Minister ever so gently that our considered and carefully argued report deserved a rather better response than the one that we received. The curious self-congratulatory tone of the Government’s response does not do justice to our first-class report.
My Lords, like other members of the committee, I thank the noble Lord, Lord Inglewood, for his chairmanship. He jollied us along very well on a rather complicated subject, and we were expertly served by our clerks and advisers. As a lay person, surrounded as I was by the great and the good who had served on the Bench and as law officers in government, I found it quite daunting to come along and address some of these very difficult issues. That was brought home to me particularly when some of us went to Westminster Magistrates’ Court to see for ourselves exactly what was happening at the sharp end. On the morning I was there, a hapless accused was brought before the Bench and had charges relayed to him through an interpreter. The judge then had to explain to that person who I happened to be—I am sure this was happening in other courts as we were there. Whatever happened in the interpretation, it seemed from the expression on the face of the hapless accused that he had concluded that the hanging judge, Judge Jeffreys, had appeared and that things were not looking as good for him as he thought.
We also saw how things could be very inefficient, when someone was brought from a prison in the east of England all the way to the magistrates’ court. Attempts were made to head them off because, for some reason or other, the case could not go ahead, so that individual and the officers concerned wasted probably half a day or more going in circles. We saw at first hand what was happening, and I think that the committee owes a debt of gratitude to all those in the court for opening up, letting us in and explaining the day-to-day practicalities of what they were confronted with.
It is interesting that many previous speakers have concentrated on a couple of issues—by sheer coincidence, we all seem to have gravitated towards similar issues—such as the efficiency of the system, and I would like the Minister to address the following point. I am very disappointed that the Government reject the idea of the cost-benefit analysis being revisited in regard to legal aid. We all know that you cannot have open-ended legal aid; it is just financially impossible. But we were given evidence about—and saw with our own eyes—a sort of mandatory or routine three-month delay, which is not acceptable for a variety of reasons. I can see no reason why, given that the committee shares the objective of reducing costs as much as anybody else—you are trying to balance cost against justice and all the other issues—and given the inevitable, built-in delay to the system, the Government are not prepared to revisit the cost-benefit analysis. I just do not understand why that is the case. Clearly, the delay in itself is a source of cost. We all know that adjournments of cases are a source of cost and that, of course, delay dilutes justice.
The people coming before the court at that time are not being charged with offences but are there purely to respond to a warrant or a demand from another country. Therefore, the decisions of the court are not about guilt or innocence; they are about whether or not there is a case to answer. They are not dealing with the guilt or innocence of the individual. In those circumstances, I would have thought it prudent for the Government to revisit that decision. We all share the view that we should try, wherever possible, to be as efficient and as cost conscious as we can in regard to the administration of justice.
A number of Members of the Committee have highlighted the American system. The noble Lord, Lord Jones, and others mentioned examples of witnesses who explained to us how they had been dealt with by the American system. We concluded that there is absolutely no reason why people should not be extradited to the United States of America, but of course public opinion has been coloured by lurid headlines in the Daily Mail, and other sorts of things. When we drilled down into it, we were unable to sustain those arguments. However, there are issues of grave concern. Setting aside the fact that individuals who came before us had plea bargained and effectively accepted guilt for their offences, the fact is that if you oppose your extradition, you are deemed to be a flight risk when you get there. You have to have an address before you can even work to sustain yourself, and in many cases that is not possible.
People go into a justice system which is a lottery. People can be moved vast distances within the United States to a dramatically different quality of prison, some of which we would regard as perfectly acceptable while others could be high-security prisons with very tough regimes. They could be thousands of miles from family and friends or any kind of support network. In those circumstances, it is not unreasonable to ask whether the Minister, on behalf of the Government, would keep that particular aspect of the relationship and extradition process between the United Kingdom and the United States under review, simply because of the vast distances involved, the discrepancy in the levels of treatment and so on. That should all be subject to continuous review.
There is pressure on people. In some states, 99% of the cases are plea bargained, and very few cases result in acquittals. Clearly, plea bargaining whittles cases out and reduces the potential for them to go forward. I understand the rationale for that, but given the balance of probabilities people may well be, and undoubtedly are, encouraged to plea bargain by their legal representatives, who say, “Look, it’s better to do a deal than simply sit here for years”. There is a pressure that may not be there in other countries and cases.
The other thing that struck me was the Polish situation. I believe it is improving, but people were being extradited for offences which seemed very trivial to me as a lay person. I understand that that is correcting itself, and maybe the Minister could give us some guidance and an indication as to how that situation is improving. A large number of cases coming before the courts were Polish ones, some of which I thought were remarkably trivial under the circumstances. Perhaps the Minister can update us on that.
Overall, there is no doubt that we want justice to be served, and it has to be as cost efficient as possible. We also know that taking an individual from their country and sending them to another, sometimes thousands of miles away, is a huge decision. Equally, we do not want to have a haven for wrongdoers, and there is therefore a balance to be struck. The committee felt that the underlying guidance would be the European convention and its application to each particular case, and that using that as a fundamental guideline would be the best way forward. I am sure the Minister would accept that on behalf of the Government.
We have tried to achieve a balance which serves justice but also protects the individual. I hope that perhaps the Government will review once again some of the rejections of our proposals contained in the response, some of which I found somewhat disappointing. The committee was not there simply to add cost or add complication—indeed, we believed the very opposite. I hope that we will be able to continue to follow through in this Parliament, as the noble Lord, Lord Inglewood, said in his remarks, and not just let the matter rest with this debate.
My Lords, I am deeply grateful for the opportunity to speak in the gap; I know that I have only four minutes, so I will go rather quickly. Several issues are not addressed by the final conclusions of this committee, which carry risks for people in the future, and I would not want them to go down the same path and experience what I have suffered. This is my story.
On 31 December 2000 I completed the process for the recovery and survival of Lloyd’s of London, the insurance market. I had been chairman of the audit committee of Lloyd’s of London for eight years and chairman of the special committee created to rescue Lloyd’s, the Equitas committee. As such I signed all the audit certificates for Lloyd’s of London for the whole of those eight years. When we filed it, it depended on the collection of $3 billion from the American investors still to be achieved. We could not start that process until we had clearance in England. We got the clearance of the British courts on 31 December, and we were in business. Immediately, I was served with a writ by the Americans claiming that I had signed a false audit certificate for Lloyd’s of London, on the grounds that this should have been a Chapter 11 case —which of course does not exist in British law—that they were going to proceed against me, and that this, on proof, would involve me serving a 24-year sentence in the state pen. At the age of 63 that could have been difficult.
I started to look for help and assistance from the British Government and legal sources on this, and was told, “You can’t have any. It’s a civil action and we don’t do it—civil actions can’t be subject to extradition, they’re wasting their time, they can’t extradite you on this case, and you haven’t got any claim on us for support”. So I had to go back to the drawing board on this with the Americans to decide what to do. We finally agreed that we would have neutral ground—a meeting in Toronto to decide what to do, where I could not be arrested. So we went to Toronto, at my expense, and had a meeting on this. Eventually they told me that they would drop the charge of failing to go into Chapter 11 on the grounds that that was a civil case and there was no Chapter 11 in Britain, but that they would not drop the charge of signing a false audit certificate and would have a trial on that point alone. Then they said, “Look, we know you’re not going to stand trial here because we’ve come over here and we’ve given you safe conduct on the basis that you’ll come here for this. We’ll try you in London”. I said, “You’re an American Government—you can’t try me in London!”. “Yes, we can”, they said. “We’ll try you in the American Embassy in Grosvenor Square”. Indeed they did. They set me up with a trial in Grosvenor Square, and I seriously contest the legality of a British citizen being tried in Grosvenor Square by an American Government on any charge at all. That should be precluded in any circumstances.
The second thing was that we went on trial; it finally took place in May 2001. They set up a proper court, making the room look like a court, with the eagle and the American flag, and they got teams of lawyers and judges over, and I stood trial for nine days, during which I was the only witness, and I never came out of the witness box for nine whole days. At the end of that time, thank God, the judge decided that of course I had not signed a false audit certificate, because I had legitimately relied on Section 8(3)(c) of the Insolvency Act 1986, and that Lloyd’s of London was governed by British and not American law. I was not only clear of the prison sentence but clear to go and get my $3 billion from the American citizens, which I did.
Three points of principle are covered here. First, there must be no question of any extradition in a civil action. The action was brought by the American investors, not by the American department that investigates fraud, which should completely preclude any such proceedings. Secondly, no Brit should be tried, as an alternative to extradition, in a British kangaroo court set up in the American embassy, however good the sandwiches they serve. Thirdly, you simply cannot allow American citizens to initiate action which privately leads to extradition proceedings.
My Lords, I begin by thanking the noble Lord, Lord Inglewood, and his distinguished committee and congratulating them on their excellent report. I also thank all noble Lords who have spoken in this debate. All those noble Lords who were members of the committee undoubtedly had a lot to contribute, and we have heard from many of them today. I hope they will forgive me if I say this about the presence on the committee of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has had the distinction of having heard and decided a number of the most important extradition cases over recent years. That seems to me a particularly telling point. The House of Lords has come in for much criticism recently, some of it no doubt justified, but in what other Parliament would it be possible for a committee to have the benefit of the expertise on the subject in question of a recently retired Supreme Court judge? It is a good example of how we can sometimes do better than people think.
Talking of legal luminaries, I am delighted that the noble and learned Lord will be replying for the Government. Having listened to this debate as I have, and read the Government’s response to the report, even he will have his work cut out to justify the negative tone—I am being polite there—of that government response. However, I do not want to be negative. There is a widespread and welcome consensus that,
“there is no systemic problem with the UK’s extradition regime”.
Systemic may be a rather important word in that sentence. That is what the committee found and what has been the spirit of all the contributions, more or less, today. The Labour Government, who were in power when the Extradition Act was passed in 2003, should get some credit, as should the present Government for changes that they have introduced. In such an important and sensitive area of law as extradition, there should be, if possible, broad agreement. I hope it may long continue. However, just in case all this sounds a little cosy and even a little self-satisfied, it is important to look at some of the recommendations made by the committee of the noble Lord, Lord Inglewood.
The conclusion in paragraph 90 of the report is that,
“it is questionable, in our view, whether the UK can be as certain as it should be that it is meeting its human rights obligations”,
because of the “flawed” nature of the arrangements in place for monitoring assurances. The committee argued for a clear government response on that, which leads to my first question to the Minister. Can he can tell the Committee today when the review of the monitoring of assurances will be completed? The noble Lord, Lord Inglewood, himself asked that question earlier today. What appears to be autumn in the Government’s response to that request can often turn out to the rest of us to be deepest winter in government-speak, and even, occasionally, when the first daffodils appear. It would be helpful to know when the review will be completed.
The next point I want to raise briefly is recommendation 8 at paragraph 199 and the relationship between extradition law and proceedings in family court child abduction cases and people-trafficking law. The committee asked the Government to commission a review, to which the Government said they would give further consideration. Have they done so, and if so, what are their conclusions?
It is on the disagreement about means-tested legal aid and the matter of legal advice that I want to comment in a little more detail. Chapter 6 of the report deals with legal advice, legal aid and expert evidence from paragraph 200 onwards. On legal advice, the committee was concerned, rightly, that the duty solicitor rota is not a satisfactory scheme. Unlike other duty schemes, there are no assessments, qualifications or mandatory training, which is particularly important. This is perhaps particularly unfortunate in this field of law, as anyone glancing at the report will understand that the first appearance can be so important in deciding which way the case will go—for example, how long it will take and how much it will cost. Those are considerations such that if you get it right on first hearing it can save everybody—for want of a better phrase—a great deal of agony later on.
Recommendation 9 was for a ticketing system so that proper expertise is there from the “earliest point”. Alas, the Legal Aid Agency said no through its witness,
“simply because of an issue of cost”.
The Government’s response puts it perhaps rather more elegantly, but it comes to the same thing. They state:
“The Legal Aid Agency … does not believe that the cost of introducing an accreditation scheme for extradition work is proportionate to the level of concerns reported to the Committee. Given that no accreditation scheme currently exists for extradition, costs would be incurred in the development of a scheme and defence solicitors would have to pay for training and examination”.
Will the Minister think again on that matter? Expert advice and representation from the start invariably has the advantage of not just being in the interests of justice but saves costs down the line. This is especially true in extradition cases.
As to whether requested people should be means- tested before being granted legal aid, there is a huge imbalance in opinion. Sir Scott Baker, in his review, leading lawyers in the field who gave evidence to the noble Lord, Lord Inglewood’s committee, the Office of the Chief Magistrate, and, of course, the committee itself in its recommendations, support a system that is not means-tested. Only Her Majesty’s Government oppose it in unambiguous—I think that that is being polite—terms; they really dismiss the idea. They of course deny any link between means-testing and all that it involves, and delays to the extradition process.
However, in a powerful passage in the report—I refer to paragraphs 216 and 217 on pages 62 and 63—the case is made out by the committee for no means-testing for automatic legal aid. It can just take too long for an award to be made—I do not think that one should hide away from that fact. An award is not often made straightaway and it is extremely difficult for many people who come before the court in extradition matters to be able to fill in the documentary requirement satisfactorily. There is also the argument about cost, as has been referred to, and the Government’s refusal to have a proper cost/benefit analysis, which, reading between the lines, it is clear the committee felt very strongly about.
Recommendation 10 of the committee is strongly worded. It states:
“The Government should conduct and publish a full and detailed cost-benefit analysis. In our view, unless a cost-benefit analysis very clearly favours retaining means testing, the interests of justice should take priority”.
That is a powerful argument and I look forward to the Minister’s response to it.
I wish that I could say that I am surprised by the Government’s written response, but I am not. Having closely—perhaps too closely for my own good—followed the Government’s approach to legal aid for five-and-a-half years or so, they have in my view nearly always got it wrong, and this is another instance of that. Can the Minister, who has a reputation for being a most persuasive advocate, go back to the department and ask it to think again about that matter?
I do not want to end on a discordant note. Extradition law, with its particular difficulties and its great human sensitivities, is in one way a very good mark of a country’s whole approach to the rule of law and the principles of access to justice—I hope that we can all agree on that. It is the committee’s view, and it is a view that I am happy to share, that on balance the United Kingdom does this pretty well. However, it would be good to see the further improvements that the committee recommends. The Committee looks forward to hearing from the Minister.
My Lords, I am pleased to be here to speak for the Government on the matter of extradition, in which I know the House has taken a close interest over recent years. I will seek to reply to all the points made during what has been an illuminating debate.
I start by thanking my noble friend Lord Inglewood for leading this debate and extend my thanks to the Select Committee members for their thorough analysis of our extradition law and practice.
Of course, this is not the first time that our extradition laws and practices have been reviewed. In recent years, we have seen the independent Baker review and reports from the Home Affairs Committee and the Joint Committee on Human Rights, among others. The Government always read these reports with great interest.
The Extradition Law Committee’s report was particularly timely, with the newer provisions inserted into the Extradition Act 2003 in the last Parliament—such as the forum and proportionality bars—having begun to operate only quite recently. The committee’s review and scrutiny of those reforms have been of help to the Government, and we are grateful for that.
Like the committee, the Government believe that the changes made in recent years to UK extradition law mean that the process now operates more fairly and in a way in which the rights of persons are effectively balanced against the interests of justice. It was under the present Home Secretary that a number of important reforms to the system were made: for example, the introduction of the forum bar and the removal of the Secretary of State’s consideration of human rights issues in favour of that of the courts. Furthermore, the reforms of the European arrest warrant go some way, I believe, to meeting criticisms which have been made of its operation in the past. I will attempt to look at each of the points which have been raised, Should I omit any, I undertake to write to your Lordships on those matters.
I begin by mentioning, by way of background, some very basic statistics. We should remember that, in the context of extradition, we are dealing not just with persons liable to trial but with persons who have already been convicted of criminal offences. In the period between 2009 and 2014, for which figures are available, the United Kingdom received in excess of 29,000 requests for arrest warrants. Of those, fewer than 5% pertained to British nationals. So far as Part 2 requests are concerned—that is, those that fall outwith the European arrest warrant system—there were, in the same period, only 336 requests. That is a tiny proportion of the total. The United States has been repeatedly referred to, and I have just noticed that in the same period, 82 requests were received from the United States and 67 people were surrendered in consequence of those requests. On the other hand, as has already been noted, the United States responded to each and every extradition request which was submitted to it by the United Kingdom. That is an attempt to put the matter into context.
My noble friend Lord Inglewood raised a series of issues—such as assurances, sensitive information being dealt with by counsel, qualified solicitors and legal aid—all of which, to a greater or lesser extent, were touched upon by other noble Lords. I will take some of these matters in turn.
The matter of legal aid was raised by a number of your Lordships. The position of the Government remains as stated in their response to the report. It is considered inappropriate for extradition cases to form an exception to the normal provisions with regard to means testing for legal aid. There is no justification for such a position to be adopted, in our view. In the past year, 1,586 persons were the subject of a European arrest warrant, of whom just in excess of 1,000 made an application for legal aid. In 90% of those cases where legal aid was applied for, the completed application for extradition proceedings to be legally aided was processed within two working days. There are exceptions, and there may be cases where someone refused legal aid seeks a review and further documentary evidence is requested with regard to their means, which can be time consuming. But we are talking about a tiny proportion of a small number of cases. That does not, on the face of it, account for any three-month delays in the extradition process.
Connected to legal aid is the requirement for expert advice to be available to persons who are going to be the subject of extradition proceedings. The noble Lord, Lord Bach, noted that it is not the Government’s position that some form of test or certification should be required in the context of the matter of extradition. I quote from the oral evidence of the district judges which was given to the committee in October 2014:
“There is the duty solicitor situation, which is at the first hearing. We are enormously reliant on our duty solicitors, and our view is that, with one or two possible exceptions, they perform their task extremely well. I am not able to give you, and I do not think either of my colleagues here is able to give you, any example of where we thought that an individual was let down by the duty solicitor”.
Given that evidence, in our view as a Government it is difficult to justify the potentially considerable cost and inconvenience of seeking to introduce a certification system in regard to extradition. Accordingly, it remains the Government’s position that we will not go down that route.
My noble friend Lady Wilcox alluded to the provision of personal support units in the matter of civil cases before the courts and inquired whether it might be possible to extend such a provision to cases of extradition. It is a point that we notice and a point of interest, and I will undertake to write to her on the subject to see whether that matter can be taken forward. It is a novel suggestion, and one that we are willing to consider very seriously.
On assurances, matters are still the subject of inquiry. We are asked when it is likely that the Government will complete their analysis of this matter. They have undertaken to do so before the end of the year. As the noble Lord, Lord Bach, will be aware, winter comes early in Scotland, and so when we refer to “autumn” we may be there already. We are concerned that that should be done thoroughly and carefully rather than quickly. I can assure your Lordships that once that inquiry has been completed, we will seek to make your Lordships aware of its terms.
A further matter arose from the context of the United States so far as assurances are concerned. It is the position of the Government that courts are best positioned to determine what assurances may be required in each individual case of extradition. That extends to the matter of how a person is to be transferred, how the risk is to be assessed so far as their transfer is concerned, and what demands might be sought by way of assurances for bail; remembering, of course, that extradition can proceed only in trial-ready cases. However, of course, that may nevertheless involve delay before a trial commences.
There are of course varying standards of prisons, and various standards are applied in the matter of bail as between different jurisdictions. As a matter of comity, we have to be prepared to accept that in order that the extradition system can operate. There has to be a degree of reciprocity.
The noble Lord, Lord Jones, alluded to the shock and fear of persons facing a foreign court. I can appreciate that. Equally, there is the shock and fear of persons facing a British court when charged with serious criminal offences. I might go further and speak by way of personal experience of the shock and fear faced by advocates sometimes facing British courts. However, it does not understate the problem. One understands that anyone who is faced with serious criminal charges will be shocked and fearful for their future, and all the more so when they are placed in a foreign jurisdiction. Nevertheless, these issues are incident to the comity that applies in the context of extradition.
If we wish to ensure that we are not a haven for criminals, we must maintain a civilised and suitable system of extradition. If we wish to secure the return of those who have committed serious criminal offences in this country, we must be prepared to allow for some degree of give and take over standards of bail, imprisonment and sentencing.
That brings me to the issue of plea bargaining. Much is said about that in the context of the United States, but at the end of the day, it is not accepted by any court that the plea bargain system is not convention-compliant. We have to acknowledge that. It may not be something that we would wish to embrace; it may not be a system we admire—but again, as a matter of comity, there has to be a degree of give and take if the extradition system is to function effectively and properly.
The noble Lord, Lord Rowlands, asked about the effectiveness of the European arrest warrant in its present form. We are confident that, with the addition of the proportionality issue and the forum issue, we now have an effective system for the European arrest warrant. There were difficulties in the past, but we believe that we have moved on from there. Going back to the subject of the United States, it is again important to bear in mind the question of forum. It will be for a British court to determine where, essentially, a crime is considered to have been committed. We live in an internet age and a joined-up world. An act in one country can have its effect in another, many miles away. Nevertheless, the introduction of the forum defence—or the forum issue—gives us a further lever to ensure that appropriate cases are dealt with in British courts and are not the subject of extradition.
In that context, I would add that we still regard the arrest warrant as the final step to be taken. I reassure your Lordships that that remains the Government’s view: it is a matter of last resort.
I understand that we are working with other EU states and the Commission on this matter. One of the aims is to ensure that appropriate consideration is given to other instruments, but there is no clear idea of when that work will be concluded.
I have been given a two-minute warning, so I will endeavour to deal with the other matters that have been raised now, if I can. I have talked about legal aid and accreditation, and proportionality. As for certification, as I have said, we hope to publish the review before the end of the year, and I would be happy to write to my noble friend Lord Inglewood and the Home Affairs Select Committee when it is available, so that it may be given consideration.
The noble Lord, Lord Bach, raised the question of liaison with family courts in the context of extradition. I can advise that there is ongoing discussion with the profession and the courts over that issue. We understand its importance, and we are seeking to explore it and come to a view, so there is ongoing work there.
My noble friend Lord Inglewood raised a further point about proportionality. I will just make it clear that, as matters now operate with the European arrest warrant, consideration will only be given to cases where, subject to trial, a sentence of at least three years’ imprisonment would be imposed. In the context of a convicted party, a sentence of at least four months should have been imposed before extradition will be considered. That has to be borne in mind. Consequently, we are in a position to avoid the sort of trivial cases—or cases that were claimed to be trivial—that were made in the past. However, the Government do not consider that it would be possible to go further than this when dealing with cases of conviction without potentially breaching the framework decision that underpins the arrest warrant itself. That is why we feel it would be difficult to go further in that context.
I have some figures among my many notes that I want to mention in answer to the question which I think the noble Lord, Lord Rowlands, asked about proportionality. Since the introduction of the proportionality bar in July 2014, the National Crime Agency has refused to certify 224 European arrest warrants on the basis of the bar and other discretionary grounds. I hope that figure assists the noble Lord.
The Government are confident that the extradition process now operates in an effective and appropriate manner, balancing the interests of justice with those of the individual. The necessary protection is provided by the courts, which have the means to seek assurances from other jurisdictions in particular circumstances and according to individual cases. Of course, the question of policing those assurances is a difficult one, but the Government do not believe that a memorandum of understanding is the way forward, as that would simply raise the question of how we police the memorandum of understanding. As I say, that matter is still the subject of further inquiry.
In closing, I once again thank my noble friend Lord Inglewood, the members of the committee and all those who have spoken today. I only hope that in replying, I have done justice to the debate.
I am aware that, according to the statistics over the past five years, a very large proportion of European arrest warrant requests—in excess of 30%—did emanate from Poland. I will write to the noble Lord with updated figures, as I do not have them to hand at present.
My Lords, the debate draws to its conclusion when my noble and learned friend sits down, but I want to make just two points arising out of his remarks to us, for which I am grateful. First, talking about certification and legal aid, he emphasised economics. But a lot of the evidence that we heard suggested—I would not want to put it higher than that—that doing what was advocated might well save money, and I have always understood that one of the themes of this Government is that they want to save public money. If that can be substantiated, it seems to me to justify adopting the suggestions we have put forward—and it would seem worth substantiating it one way or another.
Secondly, turning to assurances, it was good of my noble and learned friend to say that he would write to me about this, but then he said, “Of course, one has to remember that I am a Scot, and autumn comes early in Scotland”. Well, I am a Cumbrian, and I know that the further north you go the earlier autumn comes, but I draw to his attention the corollary of that—spring comes late, and we are in London here.
I thank all the speakers who have taken part in this debate. In the words of the noble Lord, Lord Empey, they have “jollied it along”, because they have—very helpfully—amplified the tone of the discussions we had in the committee as we were writing the report. I would also like to say that, as your Lordships all know, we had very late notice of the changing of the time of this debate. A number of people who wished to take part, and had put their names down to speak, found that they were unable to do so. On a personal level, I seem to be plagued by this particular problem: it happened to me just before the summer break. I make a plea to the business managers of the House—the big beasts, who are here all the time: it is difficult for those of us who are always being told that we are part-time Members simply to drop everything and change our plans at the last minute. Surely it is not beyond the wit of man for them to make their timetabling a trifle more precise than may have been the case of late.
Finally, it seems to emerge from our work that there are two key aspects of extradition. The first is that the rule of law, both in our jurisdiction and outside it, is of very real importance to everyone. The second is that extradition deals with real people who have real families, and just because someone is accused of a crime or convicted of one, that does not mean they become a non-person, with no rights at all. A proper extradition system has to ensure that there is no conflict between the two.
Committee adjourned at 5.37 pm.