Schedule 12 - Extradition
Police and Justice Bill
4:00 pm
James Brokenshire (Hornchurch, Conservative)
I was midway through responding to an intervention from my hon. Friend the Member for Lichfield (Michael Fabricant) about assurances that can be relied on and the historical context of the extradition treaty between the United States and the United Kingdom. I was making the point to that the treaty seems to have been agreed on the basis of an assurance falling short of the standard of some legally enforceable or binding agreement. I emphasise that it is surprising that when the obligations that have been brought to bear on this country were introduced here they were not expressed to be conditional on the adoption and implementation in US law of their side of the treaty and the resulting obligations.
We have been debating the anomaly—that is the best way of describing it—that if we seek to extradite someone from the US we need to show a prima facie case or basic justification sufficient for committal to trial, but the US has only to provide a statement of the facts. That reflects the introduction of EU legislation and although I did not fully agree with the approach that was taken, on the EU side there is at least the protection of the European Court of Human Rights. However, as we heard this morning, the US does not have that protection and there is no overarching protection in a case of miscarriage of human rights or justification.
I want to be entirely clear: in supporting the amendment, I am not saying that we should not ensure that criminals are prosecuted. If someone has broken the law, they should be dealt with appropriately. The amendment is not intended to protect people who have carried out illegal acts. The issue is the interrelationship on matters of law between this country and the US and the fact that the extradition procedure goes much wider than was anticipated. It was introduced at a time of heightened concern about terrorism and the need to ensure that terrorist suspects were dealt with efficiently and effectively. However, the ambit of the legislation goes much wider, and although there may be a concept of dual criminality—under the treaty the offences in question must be punishable on both sides by a minimum custodial sentence of one year or more—the issue arises of the various standards that might apply in each jurisdiction.
The Minister has alluded to the fact that this is not a perfect world and while we may seek an equitable approach, there will be differences of jurisprudence between different jurisdictions. Two offences may be common between, for example, the US and the UK but the standards of proof and the evidential burden will differ from country to country. For example, hearsay evidence might be admissible in one state or territory, but not admissible in relation to the offence in this country, yet extradition could be justified because the statute books of both countries provides for a custodial sentence of one year or more in relation to the overarching offence. There will be differences, but it seems strange that when we on this side of the Atlantic seek an extradition, we need to show a prima facie case when that would not be necessary on the other side.
It is interesting that in her winding-up speech on Second Reading, the Minister for Policing, Security and Community Safety said:
“We have probably got the best balance that we can get in the treaty”.—[Official Report, 6 March 2006; Vol. 443, c. 689.]
I question that. Previously, there was a common approach between the two sides. Under the old treaty, a requesting state seeking extradition needed to provide evidence that would be sufficient, according to the laws of the requested state, to justify committal for trial. In many ways, that underscored the prima facie evidence test—both sides had to show that there was sufficient evidence to justify a committal for trial.
The Minister acknowledged that there is a difference between the tests in terms of probable cause or information. I reiterate that it is strange that we have moved from a situation in which similar approaches and tests were used by the US and the UK to one in which that approach appears to have been dropped by us without any reciprocity. If the Minister still asserts that we have got the balance right, I would be interested to know what is on the plus scorecard for us. What did we gain from agreeing to an approach in which there is no level playing field and, apparently, it is easier to extradite people from this country than for us to extradite people from the US? If there is some overwhelming and persuasive case to justify that, I would like to hear it.
The intention behind the amendments proposed by my hon. Friend the Member for Arundel and South Downs (Nick Herbert) is to remedy the present situation, which could have been avoided. The situation has provoked strong feelings from certain groups. On Second Reading, my hon. Friend the Member for Henley (Mr. Johnson) used emotive language, and talked about people being hoovered up—as he so eloquently put it—from the US.