US-UK Extradition Treaty

Part of Opposition Day — [16th Allotted Day] – in the House of Commons at 1:43 pm on 15 July 2009.

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Photo of Chris Grayling Chris Grayling Shadow Minister (Home Affairs) 1:43, 15 July 2009

My hon. Friend makes an important point, and I will come back to that issue, because another key question is where we should implement justice when a case involves multiple jurisdictions.

British citizens can be extradited to other parts of Europe for a range of extraordinarily ill-defined offences that might not even constitute a crime here or in many other European countries. There have already been examples of the European arrest warrant being used in a way that most of us would feel was inconsistent with the original principles discussed at the time of its introduction. The rapid move to strengthen extradition arrangements in the first part of this decade was clearly designed to combat the terror threat, but those new arrangements should not be allowed to become a quick and convenient way of bypassing what would have been the due process for other forms of charge and alleged offence.

The second big problem with the present arrangements involves the way in which we appear to be sub-contracting justice to other countries in cases in which there appears to be a competing jurisdiction. This goes back to the point that my hon. Friend Mr. Burrowes made a moment ago. There is a strong case for arguing that the courts should have a statutory duty to consider issues of what is called forum-in other words, the question of which country has the most appropriate claim to prosecute-and that this country should not sub-contract difficult prosecutions to other countries.

This problem is going to arise again and again in cases involving cybercrime in particular-my hon. Friend has just mentioned computer hacking-not only in the Gary McKinnon case but in a whole variety of others around the world. I remind the House of the recent case of the two Swedish men who were prosecuted in their own country for piracy offences, but whose crimes had clearly crossed jurisdictions around the world. The provisions of the law in this country should be much clearer about when a case should or should not be tried in the United Kingdom. There are clear legal precedents for this: British people charged with crimes that were allegedly committed in the United Kingdom but which electronically targeted organisations in other countries have been brought before the courts in the United Kingdom.

Let us take as an example the case of Aaron Caffrey, a young British man suffering from Asperger's syndrome, who was blamed for causing the biggest systems crash ever to hit the United States. During a two-week trial at Southwark Crown court in 2003, Caffrey was accused of launching an electronic attack in 2001 on America's busiest port at Houston, Texas. The jury cleared him of any wrongdoing after accepting his claim that unknown computer users had hijacked his machine, using it as a Trojan horse to stage the attack. His case was tried in this country, and he was found not guilty. He was not extradited to the United States.

Then there was Richard Pryce, a man said to have been

"doing more harm than the KGB" and dubbed the

"No. 1 threat to US security".

Pryce, working from his bedroom with two £750 computers to help him with exams, hacked into systems at NASA and at US air bases. From there, he explored systems in south-east Asia, causing chaos when he invaded the computer of a Korean atomic research institute. At the time, the Americans were in the midst of delicate negotiations with the North Koreans, and they were terrified because the break-in appeared to originate from a US air base. In 1997, Bow street magistrates fined the 19-year-old £1,200 after he admitted 12 offences that his lawyer described as a "schoolboy prank".

There was also the case of Andrew Harvey and Jordan Bradley, who were part of an Anglo-American hacking group that set out to cause worldwide chaos by infiltrating home computers. The US security services and the FBI co-ordinated raids on the homes of the group's members, including those of Harvey in County Durham and Bradley in Darlington. At Newcastle Crown court in 2005, Harvey, aged 24, was jailed for two months, and Bradley, aged 22, for three months when they admitted conspiracy to cause unauthorised modification of computers with intent.

In all those instances, the crimes were tried in the United Kingdom and extradition was not required. It is important to state that I am not commenting on the verdicts or on the circumstances of those cases; I am simply underlining that Britain has in the past been willing and able to try people in the United Kingdom when there are issues of conflicting jurisdictions, and I believe that our extradition arrangements should reflect that.

The Police and Justice Act 2006 incorporated provisions to insert an appropriate forum requirement into the Extradition Act 2003. However, the Government have refused to activate it. It provides that if extradition is not in the interests of justice, it can be barred, and that a decision not to prosecute in the UK may be a relevant factor. My hon. Friend James Brokenshire sought to activate this provision while the current Policing and Crime Bill was being considered in this House, but his efforts were talked out.

The late, and sadly lamented, Lord Kingsland and my noble Friend Baroness Hanham tabled an amendment to the Policing and Crime Bill that would affect the Police and Justice Act 2006. The amendment would provide that paragraphs 4 and 5 of schedule 13 should come into force on the day on which the Policing and Crime Act 2009 is passed. In the light of this debate, and of the issues that lie behind it, perhaps Labour Members in another place might wish to consider carefully whether to join us in trying to redress this imbalance.

The third big problem relates to the imbalances that exist-despite what the Government claim in their amendment-in the current extradition arrangements. As hon. Members have pointed out, there is an inherent unfairness relating to the evidence that needs to be presented to begin an extradition. Countries that are classified for the purposes of the 2003 Act as category 2 countries can be given an additional designation, enabling them to dispense with the requirement to provide prima facie evidence with their extradition requests. A territory in the enhanced category 2 status need only provide "information" rather than "evidence" to satisfy tests for the issuing of warrants. Under section 84 of the Act, the United States need only provide

"evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of any information against him".

That is pretty weak anyway, but this provision is not reciprocal; there is an imbalance in the evidential requirements for extradition between the US and the UK.

Even members of the Government accepted that the extradition arrangements were unfair. When these issues were debated in Standing Committee, Caroline Flint gave a candid assessment of arrangements:

"If the second order designating category 2 territories is approved, the United States will no longer be required to supply prima facie evidence to accompany its extradition requests to the United Kingdom...In contrast, when we make extradition requests to the United States, we will need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. Under the terms of its constitution the USA cannot set its evidential standard any lower than 'probable cause'...I do not see why we should impose a more stringent test on the USA. Nor do I see why the absence of complete reciprocity affects the issue."-[ Official Report, Third Standing Committee on Delegated Legislation , 15 December 2003; c. 7.]

Well, I think that the right hon. Lady was wrong then, that the Government have been wrong about this issue, and that it is essential to address it. Her candid observations will provide little comfort to those who will suffer because of the different levels of evidence required. It is this issue that, I suspect more than most, underpins many of the cases that Members of all parties have brought forward when their constituents have found themselves caught up in a system that they rightly think is unfair and risks causing some real injustices.

There have been practical examples, as in the case of Alex Stone, who was extradited to the US because he was accused of injuring the child of a woman whom he had met online. Yet once he had been extradited, the original charges against him were dropped. His lawyer commented at the time:

"No longer do the American authorities have to provide prima facie evidence for extradition, but what is also of concern is what happened to Alex Stone when he was returned to the US".

This in an example in which there was not even sufficient evidence to pursue a case once the extradition had taken place. That surely underlines the concerns that rightly exist about the current system. We think that those imbalances need to be addressed and that there should be reciprocity in our extradition arrangements. We also think that a reasonable burden of proof should apply before someone can be extradited.