Extradition: UK and USA

– in the House of Lords at 4:28 pm on 30th June 2005.

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Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet) 4:28 pm, 30th June 2005

rose to ask Her Majesty's Government whether, in the light of experience and the fact that the United Kingdom has ratified the treaty while the United States has not, they will now review the operation of the 2003 extradition treaty with the United States.

My Lords, I am pleased to have the chance to ask this Unstarred Question. It may have a familiar ring to those who were present at, or who may have read (at col. 711 of Hansard), the debate which followed the Unstarred Question put by the noble Lord, Lord Goodhart, on 6 December last year,. It is with great pleasure that we shall hear from the noble Lord in this debate—he is, of course, a lawyer of renown. I am not a lawyer, but, from my non-legal point of view, the current US-UK extradition arrangements appear quite extraordinary. In short, recent developments in our extradition arrangements with the United States have caused concern to the public, have raised questions about the role of the Government in protecting our fellow citizens, and have raised questions about the effectiveness of our parliamentary scrutiny.

A brief background may perhaps be helpful. On 31 March 2003, the noble and learned Lord, Lord Falconer, announced that the Home Secretary and the US Attorney-General were about to sign a new US/UK extradition treaty. He explained that the treaty reflected the best modern practice in extradition, and meant much closer co-operation in fighting against terrorism and other serious crime. There was no parliamentary scrutiny of the treaty and the full text was available only six weeks later. Considering that the treaty makes major changes in our extradition arrangements with the United States, it is remarkable that Parliament was not given an opportunity to debate the treaty fully.

The provisions of the new treaty mean that American prosecutors no longer have to provide prima facie evidence in order to extradite a citizen from the United Kingdom. Article 8 of the treaty requires the US to provide a statement of the facts of the offence only. Second—and more surprising—is the lack of reciprocity in the treaty. The treaty contains an asymmetry in the obligations of the parties. As I said, in Article 8 it provides that the United Kingdom's requirement of prima facie evidence does not apply, but the statutory requirement in the Fourth Amendment to the United States constitution, requiring probable cause, does apply in requests to the United States.

As one excitable senior US attorney, Mr Scott Hammond, the deputy assistant attorney-general of the Department of Justice anti-trust division, recently bragged at an anti-trust conference in Las Vegas on 3 and 4 March this year that the US no longer has to make a prima facie case in support of extradition requests, or even provide witness affidavits. He also bragged that hearsay affidavits by the prosecutor are enough and appeal rights have been curtailed.

Such an imbalance in US/UK treaty arrangements appears unprecedented. Sometimes I even wonder if the Government understand the meaning of the word "reciprocal". Reading the comments made by the noble Baroness, Lady Scotland, on behalf of the Government in response to a Question tabled by my noble friend Lord Marlesford suggests that her understanding of the word is quite different from mine. With regard to extradition requests between the UK and the US, she stated that,

"the practical consequences of what we are doing now are very reciprocal. We make applications to them. They adhere to those and make applications to us".—[Hansard, 15/6/05; col. 1198].

She seems to me to have forgotten the difference in the underlying application procedures, which form the very essence of whether the arrangement is reciprocal. Simply because both parties adhere to the procedure does not of itself mean that there is reciprocity in the arrangement if the procedures themselves are different.

So much for the inherent imbalance in the basic arrangement, but matters are much worse than that because, to date—over two years later—the US has yet to accept even its unequal side of the agreement. On 16 December 2003, the noble Baroness gave an assurance, (Hansard col. 1071) on behalf of the Government that the 2003 treaty would be ratified by the Senate in early 2004. Yet, in a recent Question tabled by my noble friend Lord Marlesford on 15 June, she said:

"I express our genuine disappointment that the United States' authorities have not found the time or energy to ratify the provision. We are pushing the issue very hard".—[Hansard, 16/6/05; col. 1198.]

That comment was made 18 months, almost to the day, after she originally stated that the treaty was shortly to be approved by the Senate, and we still await ratification.

Professor Bassiouni, a distinguished research professor of law at DePaul University College of Law in Chicago, predicts that US ratification of the treaty is still a long way off and that it is unlikely to be ratified before the end of 2005. He believes this to be the case for two reasons. The first is that the treaty is numbered 108/23 by the US Senate Foreign Relations Committee, indicating that it was the 23rd treaty to have been received by the Senate in the 108th Congress. The second is that the 2003 treaty has already been the subject of opposition by a number of civil rights organisations, the American Civil Liberties Union, ACLU, being one of them. In addition, a number of Irish-American organisations have also expressed their opposition.

A further major worry concerning this treaty is the breadth of its remit. The primary reason originally given for the treaty being signed was for the fast-track extradition of terrorists. As no less a person than the Prime Minister said, the treaty is,

"justified and right in a post-September 11 context".

The Government gave specific assurances that UK citizens would not be liable for extradition to the US for financial crimes. On 15 December 2003, in a debate in the other place, Caroline Flint, speaking for the Government, responded to a Question asked by Mr Menzies Campbell MP. She said:

"We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times"— there was an article in the paper on that day—

"—such as prices fixing—would not apply. Dual criminality would have to exist".—[Hansard, Commons, 15/12/03; col. 26]

Yet, according to recent newspaper reports—for example, in an article headed "A white-collar Guantanamo", which appeared in the Times on 20 May 2005—the total number of US extradition applications to date is 45. Half of those relate to white-collar crimes, and not one of the nine extraditions so far agreed to relates to terrorism.

The impetus for the new arrangements in the UK and the US was to aid the extradition of terrorists between countries, particularly in the wake of 9/11. However, the reality is that the US can and is now using the simplified procedures to extradite UK executives for financial crimes, even where the conduct that links the crimes to the UK is limited.

It is difficult to illustrate this point without giving a specific example. Of course, once one gives an example, Government Ministers hide in an air raid shelter entitled sub judice. Nevertheless, here goes. As many noble Lords may have read, the US is currently undertaking extradition proceedings in an attempt to extradite Mr Ian Norris. In bringing up the case involving Mr Norris, I do not wish to draw the Government into debate on the subject. But it is, nevertheless, a way to demonstrate the absurdity and basic injustice of the current US/UK extradition arrangements.

Mr Norris is a 62-year old former chief executive officer of the engineering business Morgan Crucible and he is a UK citizen. He was chief executive of the company between 1998 and 2002. Morgan Crucible had been part of a European cartel in the carbon industry since the 1930s. In 2001, with Mr Norris's encouragement, Morgan Crucible reported the cartel to the European Commission.

In November 2002, Morgan Crucible and its main US subsidiary entered into plea bargaining with the Department of Justice and paid fines in the US totalling $11 million in respect of certain price-fixing activities in the US. By this time Mr Norris had already retired from the company.

In September 2003, some time after he retired, Mr Norris was indicted in the US on charges of price-fixing and obstruction of justice. That charge relates to conduct from at least as early as 1989 through to the year 2000. A request for the extradition of Mr Norris was made in December 2004 and proceedings are continuing.

Mr Norris's case is a good example of the US government using the simplified extradition regime in the UK to extradite a UK citizen in circumstances that appear wholly unsatisfactory. The original price-fixing charge would not stand up in English courts, due to the fact that this was made an offence in the UK only with the passage of the Enterprise Act 2002 and the allegations relate to the 1990s. The provisions of the Enterprise Act are not retrospective.

The US provided additional information so that the charge could be interpreted as conspiracy to defraud. So, not only is the basis of the charges questionable, butte majority of the conduct complained of occurred in the UK and Europe and not in the US. The only other two countries, France and Ireland, that have the same non-reciprocal arrangements with the US have specific protections built into their treaties for their own citizens, ensuring that extradition can be refused where their own nationals are sought or where the alleged offences took place substantially within their territory. Why did the Government not do the same in the UK?

The attitude of the US to the new extradition provisions is exemplified by recent speeches from Members of the US Department of Justice. Scott Hammond, in the March Las Vegas speech from which I have already quoted, went on to say that to have the UK as the first government to bat for and assist the US in seeking extradition was remarkable.

His reaction to the British acceptance of Norris's indictment for conspiracy to defraud, replacing the price-fixing charge, was to say that:

"The UK Government looked at the information that was provided in support of the extradition and said: 'Do you know what? That looks like conspiracy to defraud to us.'

That is the attitude shift we are talking about. How many countries are there out there that have dual criminality which allow for extradition on anti-trust? A handful. How many have conspiracy to defraud as a crime? A heck of a lot more. If those countries start making the same judgment that the UK has, man that changes everything".

Equally worrying were Hammond's views on the benefits of cutting down on paperwork. He said:

"We don't even have to provide witness affidavits. I mean, we may, if we keep doing it, begin to tax the resources of some foreign countries, but from a divisional resource perspective, it is nothing. It is nothing. It is a drop in the bucket compared to the bang for the buck we are getting on this".

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I rise only to draw the noble Lord's attention to the Companion to the Standing Orders at paragraphs 4.51 to 4.59, which relate to sub judice matters. I cannot judge what is and what is not sub judice, but I think that the noble Lord is extremely close to the mark here. Mechanics are one thing but the content and detail of the case, with which the noble Lord is dealing, probably oversteps the remit set out in the Companion.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, of course I accept that rebuke from the noble Lord. I specifically said that I did not want the noble Baroness to discuss the case.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, with respect, the noble Lord is talking about it, which is the problem.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, my quotations are from the US Department of Justice and Mr Hammond, but I accept what the noble Lord says and will ensure that I go no further on that.

Those excerpts speak for themselves. They suggest that, rather than being used as a fast-track method for extraditing terrorists, the treaty is being used by the US for much wider purposes.

So where do we go from here? It is perhaps relevant to draw the attention of the House to Article 24, which is entitled, "Termination". It provides that either state may terminate the treaty at any time by giving written notice to the other state effective six months after the receipt of such notice. That is one option. The other is to remove the US from the list of Part 2 designated states in the Extradition Act 2003 that are permitted to dispense with prima facie evidence.

In summary, the treaty has been missold to the public in this country; opens UK citizens to potentially oppressive legal action; is of no value to the UK; and, to date, has been of no value to international security. I look forward to hearing from the noble Baroness which of those options—termination or removal—the Government intend to follow, and if and when they intend to do so.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:42 pm, 30th June 2005

My Lords, I am grateful to the noble Lord, Lord Hodgson of Astley Abbotts, for returning to the issue of extradition to the USA, on which, as he said, we have already had several debates and Questions. I also admire his dexterity in shifting seamlessly from community interest companies to extradition.

Extradition to the USA is governed—or, at any rate, in legal theory it should be governed at present—by the treaty with the USA signed in 1972, which came into force in 1977. I refer to it as the 1972 treaty. The new 2003 treaty, which was signed on 31 March 2003, has not yet been ratified by the US Senate and is therefore not yet in force. Until it comes into force, the 1972 treaty remains in force. Under Article IX(1) of the 1972 treaty,

"Extradition can be granted only if the evidence"—

I pause to emphasise the word "evidence"—

"be found sufficient according to the law of the requested Party to justify the committal for trial of the person sought if the offence of which he was accused had been committed in the territory of the requested Party".

For extradition from the United Kingdom to the USA, the American authorities therefore had to produce evidence sufficient to show what was then known as a prima facie case or, to use more modern wording, a case to answer. For extradition from the USA to the United Kingdom, the British authorities have had to meet the equivalent American test of probable cause. It is said that "probable cause" is a lower test than the prima facie case. It may be slightly lower but there is no significant difference in practice. I do not believe that American courts frequently try people who do not meet what we call the "case to answer" test.

The situation under the 2003 treaty will be entirely different. For extradition from the USA to the United Kingdom, the situation is broadly unchanged. The United Kingdom must prove a reasonable basis to believe that the person sought committed the offence for which extradition is requested. That is the "probable cause" test. But for extradition from the United Kingdom to the USA, all that the Americans need to do is to produce,

"a statement of the facts of the offence"— a statement, not evidence.

The 2003 treaty is unfair because it is not reciprocal. If the Americans are unable under their constitution to extradite their own citizens without evidence, they should not expect us to deport people from the United Kingdom on a different basis. But I must point out that the debates about the 2003 treaty are hypothetical because that treaty is not yet in force. Indeed, it may never come into force because of lobbying against it by the ACLU and Irish-American groups in the USA. Although the Senate, while dominated by the Republicans, may not pay much attention to the ACLU, it is likely to pay a good deal of attention to the Irish-American lobby.

Why is it, therefore, that somehow the rules under the 1972 treaty, which ought still to govern extradition from this country to the USA, no longer apply? It is because in December 2003 the Government took a unilateral and, in my view, inexcusable decision to designate the USA under Sections 71 and 84 of the Extradition Act 2003 by a statutory instrument. We opposed that statutory instrument at the time and forecast the troubles that we thought were likely to result, and have indeed resulted.

The effect of a designation under Section 84 is that the judge hearing the case is directed by the Extradition Act not to decide whether there is evidence sufficient to show a case to answer. All that need be produced is information about the offence. There is a world of difference between evidence and information or statements of fact. Evidence can be challenged, tested and rebutted in court. A statement or information cannot be so challenged and, unless defective on the face of it, must be accepted at face value.

In answer to the question, referred to by the noble Lord, Lord Hodgson, which the noble Lord, Lord Marlesford, asked on 15 June, the Minister implied that there was no real difference between information and evidence. That is entirely incorrect. Does she accept that, as matters now stand, information provided to the United Kingdom by the USA cannot be tested in proceedings by cross-examination and cannot be rebutted by other evidence produced by the person whose extradition is sought?

In the Lotfi Raissi case, the extradition of the Algerian pilot, who was accused by the United States of involvement in the terrible events of 9/11, was refused because of the weakness of the evidence when tested. Does the Minister accept that that testing would not now be possible and that the case might therefore have had an entirely different result? Does she also accept that information provided by the United Kingdom to the United States is treated as evidence that must be proved and can be challenged in court?

In effect, what has happened is that a vital provision of the 1972 treaty has been overridden by government fiat while that treaty still governs the extradition relationship between us and the USA. The effect of that is to deprive defendants in extradition cases of rights given to them under the 1972 treaty and, incidentally, to remove from the US Senate any incentive to ratify the 2003 treaty.

It has never been explained what the Government's reasons for designating the USA in the December 2003 order were. I suspect that they were simply a matter of administrative convenience. The Government were, at the time, designating a large number of countries in which agreements were already in force to waive the need for evidence. Those agreements were all reciprocal. No doubt, it was thought convenient to include the USA in the list, on the assumption that the 2003 treaty would soon be ratified. I do not believe that the Government ever considered whether it was proper to waive the rights of people in this country to a protection granted them under an extradition treaty that was still in force. They were far too sanguine about its imminent ratification by the USA.

The question asked by the noble Lord, Lord Hodgson of Astley Abbotts, is in fact a double question. The first leg of the question is: should the Government renegotiate the 2003 treaty, to ensure that it is not introduced until it is properly reciprocal? Secondly, whether or not that happens, should the Government revoke the designation of the USA for the purposes of Sections 71 and 84 of the Extradition Act 2003 under the order made in December 2003, unless and until the USA ratifies that treaty. The answer to the first question—I agree with the noble Lord, Lord Hodgson of Astley Abbotts—is "Yes". The answer to the second question is, I believe, even more plainly "Yes".

Whatever justification there is for the 2003 treaty—the justification seems thin to me—there is no possible justification for unilaterally overriding the rights given by the 1972 treaty while that treaty is in force. The Government should revoke the designation of the United States under Sections 71 and 84 of the Extradition Act and require the USA to make a proper case, based on evidence, in support of the claims now pending for extradition.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 4:52 pm, 30th June 2005

My Lords, I thank the noble Lords, Lord Hodgson of Astley Abbotts and Lord Goodhart, for entering into what has now become a familiar debate. I shall answer the first two questions and speak to the issue raised about the nature of the extradition treaty before I go on to explain why the Government have come to their view.

We do not intend to renegotiate the treaty with the United States, and I must disappoint noble Lords by saying that nor do we intend to revoke the designation of the United States as one of our partners. The noble Lord, Lord Goodhart, is absolutely right. We argued quite properly and extensively about all these issues during the 2003 debates on the Bill. As he will remember, those were extensive and comprehensive debates. This House and another place had an opportunity to have their say about whether the Bill was fit to become a statute. The House and the other place spoke, and, as noble Lords will know, the Bill has become law and now applies. I invite noble Lords to allow me, rather than repeating all those arguments, to rely on the answers that I gave then on those matters of detail. I will, however, deal with the general issues raised by the noble Lord.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I should perhaps have made clear, as I hope I had in my speech, that nothing I have said implies any criticism of the drafting of the Extradition Act itself. Apart from the treaty, which is a separate matter, I am critical of the use that the Government made of the powers given to them by Sections 71 and 84 of the Act.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I understand that. I hope that we made it plain when we were going through the Bill that our intention was to include the USA in the schedule and to allow that matter to be debated when it came before the House. We did debate it before the order applied. Noble Lords discussed that issue and the order was made. I am simply saying that although I understand that these issues have generated a deal of passion, I would not tire the House today by repeating the answers that I gave in reply to those debates.

I need to say to the noble Lord, Lord Hodgson, that he is not right in saying that there has been a dramatic change in the nature of the offences for which extradition has been sought. For the period 2003 to 17 June 2005, 17 people were returned to the USA from the United Kingdom for the following offences: six drug offences, five fraud offences, two sexual assaults on a minor, two theft cases, a child abduction case and a murder. The average length of time from the date that the person was arrested to the time that he or she was returned to the United States was 30 months.

For the period 2003-04—there have been no returns so far in 2005—five people were returned to the United Kingdom from the USA for the following offences: drugs, child abuse, murder, sex offences and child abduction. The average time between the request being made and the person being returned to the United Kingdom was five months.

Regarding returns to the US from the United Kingdom since the new provisions came into effect on 1 January 2004 until 17 June 2005, so far there have been 11 persons returned to the United States from the United Kingdom for the following offences: six drug offences, an indecent assault, a theft, a grievous bodily harm, a mail fraud and a fraud. The average length of time from the date that the person was arrested until surrender to the United States was seven months.

It is—

Photo of Lord Monson Lord Monson Crossbench

My Lords, I am grateful to the noble Baroness for giving way.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I do not think that I will give way. This is a debate in which two noble Lords have participated, no one spoke in the gap and I am now replying. I beg the House's pardon, but I think that it would be outwith our rules to give way to the noble Lord.

A noble Lord:

Hear, hear.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, so it is quite wrong for the noble Lord, Lord Hodgson, to say that there is no utility, from our point of view, or from that of the United States, for this Act to have been dealt with in the way that I have just described.

It is a privilege to be able to put to bed, I hope for the last time, some of the misconceptions which seem to have surrounded the new extradition treaty that the United Kingdom negotiated with the United States. The operation of extradition between the United States and the United Kingdom is under constant review at official level, as is extradition with any of our many other extradition partners. It is clear that we would wish to identify difficulties, if any, at an early stage so that they can be addressed.

As I explained, and as I have explained on many occasions, the Extradition Act 2003 effectively implemented the provisions of the new UK/US extradition treaty. Our experiences, as I hope I have just outlined, of the new regime have been extremely positive. For example, the average time it took for the United Kingdom to process an extradition request from America, under the old arrangements, was 30 months. In stark contrast, the average time it takes the US to process requests from the United Kingdom is five months. I am sure that noble Lords will agree that our prosecuting authorities, pursuing fugitives from our justice system, must have cause to be grateful to the United States authorities for that level of service.

Under the new arrangements we have improved our turnaround times to an average of seven months. That is much closer to the US level, though not equal to it. In any event, to those who are concerned that we have made extradition to the United States too easy and have had nothing in return—I think that that is the import of what noble Lords are saying—I simply invite them to look at the evidence. I hope that noble Lords will also agree that the considerable reduction in the time period for completing extradition requests is not only in the interests of government, but also in those of victims, witnesses, our courts and fugitives themselves.

Indeed, I cannot see how improving our extradition arrangements by updating our domestic extradition legislation, which included implementing provisions in the new US/UK extradition treaty, can be seen as anything other than in the interests of justice. The Government have ensured that the very important safeguards remain in place for individuals who may find themselves the subjects of extradition requests. I have previously explained those safeguards in detail in this House, so I hope that the noble Lord, Lord Hodgson, is not rising to ask me to tire noble Lords by going through them again today.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Spokespersons In the Lords, (Assisted By Shadow Law Officers), Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, as ever, I am most grateful to the noble Baroness. Could she confirm that every country with an extradition arrangement with the US has a reciprocal arrangement, except for Ireland and France? However, Ireland and France have built into the treaty special provisions to balance that non-reciprocity relating to their own citizens and alleged offences committed primarily within those two countries. The noble Baroness has spoken of timing, speed of process and so forth, but the concern here is that the non-reciprocal basis has led to British citizens being vulnerable in a way that no other country's citizens are.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I do not accept that British citizens are more vulnerable than other citizens. One of the difficulties in affirming the statement just made by the noble Lord is that every single bilateral treaty differs in some regard from every other single bilateral treaty. That is why it is not a multilateral treaty. Therefore it is difficult to accept without qualification the statement the noble Lord makes.

The arrangements we have with our American counterparts are fair, proportionate and appropriate because, as I have said, the Government have ensured that real safeguards are in place. Section 71(3) and (4) require the judge to satisfy himself on the information before him that it is sufficient for the issue of a warrant of arrest. The judge may hear argument on that very point. That is a matter of some importance.

I also remind noble Lords that the first time the provisions of the Human Rights Act were incorporated into the Extradition Act 2003 was an extremely important act on our part. A district judge cannot order a person's extradition if he or she believes that that would amount to a serious breach of their human rights. That is a very powerful tool. Even if extradition is ordered, there is a right to appeal to the High Court and I therefore do not accept that the Government have removed important safeguards from British citizens or, indeed, a citizen of any state who may find himself going through the extradition process in this country.

It is true that the evidential requirements for extradition requests from the United States have changed. But it is not true that they have been abolished—I say that because it has almost been suggested that US requests can be made without the need to produce any information at all. I want also to emphasise that before the United States prosecutor can make a request for extradition in accordance with US law, he has to satisfy himself that there is probable cause. That does not need to be done in terms of our legislation, our law, but because US law determines that "probable cause" is the test which would apply before the request is made.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I apologise for interrupting again. Is the Minister suggesting that an American prosecutor's view of probable cause is as adequate a protection as the view of a British judge.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I am not saying that. The noble Lord is trying to establish whether there is any correlation between probable cause and information. The indication given is that the information would be of such a low standard that it could not be effective in maintaining that there was some cogent evidence on which such an application could vest.

I am simply saying that one has to look at the reality of the situation. First, probable cause would have to be obtained by the authorities to satisfy themselves that it would be proper to make that request and, secondly, they would have to comply with our provisions in relation to information. It is on that basis that I say that if we look at the test in relation to information and the test in relation to probable cause—although we can have a wonderful semantic lawyers' debate about whether there is a difference between one and the other—we can see that a fairly robust test has to be satisfied before one can go further.

I have explained that the evidential requirements were not reciprocal under the old 1972 treaty, which, as noble Lords will remember, required the United States to provide prima facie evidence and the UK to show only probable cause. There was an inequality of process then as we required far more from the Americans than they did from us. So we were slower and we asked for more.

We have now largely—but not entirely—levelled the playing field as the new treaty requires the United States to provide information about the offence for which extradition is sought from the United Kingdom. This roughly equates to probable cause. It is a non-negotiable requirement of the US Bill of Rights, which the United States cannot amend even with a lower evidential requirement than prima facie.

An extradition request must contain the following: an accurate description of the person sought, including any information that will assist in establishing their location and identity; a statement of the facts of the offences; relevant texts of law describing essential elements of the offence for which extradition is sought and a description of the punishment prescribed for that offence; a copy of the warrant or order of arrest issued by a judge or other competent authority; and a copy of the charging documents.

Where the person sought has already been convicted the requesting state is required to provide additional information. This includes copies of any relevant court judgments of conviction, a copy of the sentence imposed and a statement establishing to what extent that sentence has been carried out. In addition, a district judge cannot order a person's extradition if dual criminality does not apply. I hope your Lordships will agree that it cannot be claimed that we are extraditing persons to the United States based on no evidence of any criminal conduct.

I am genuinely disappointed that the United States have not yet found the time to complete the necessary legal processes so that we can exchange instruments of ratification to ensure that the provisions of the new treaty are implemented on both sides of the Atlantic. I have checked to see whether this is the first time that the United States have taken so long and, during my inquiries, I looked at the 1972 treaty. I regret to tell your Lordships that that was not ratified by the United States until 1976. It is therefore wrong to assume that the current situation suggests that the Americans have no intention of completing the ratification process. It is clear that their processes take a long time. We know that in this House the Government cannot always get their business when they wish. We, too, have to await the usual channels.

Nevertheless, the Government are not being complacent. As your Lordships are aware, the treaty is with the United States Senate for consideration, but the United States authorities are limited in what they can do to influence its consideration. However, I hope your Lordships will be pleased to learn that my right honourable friend the Home Secretary raised this very matter with the new US Attorney-General, Alberto Gonzales, in the margins of the G8 meeting in Sheffield on 16 June. I hope noble Lords will be reassured to know that the Attorney-General had the misfortune to be sitting with me on a bus, from which he could not escape, for some considerable time. So I too had the privilege and pleasure of explaining to him, in quite graphic detail, why this matter was causing your Lordships acute anxiety.

Mr Gonzales was sympathetic to our concerns—I shall not say it was because he could not leave the bus—and promised to do what was within his power to do. Separately, he had a very serious conversation with my right honourable friend the Home Secretary and my noble and learned friend the Attorney-General. There was real understanding of the position in which we all find ourselves. I can assure your Lordships that the Government will continue to seize every opportunity to urge the United States to complete its ratification process. However, I acknowledge that the United States has not progressed the ratification of this treaty as we would have hoped.

I hope I have said enough to assure your Lordships that the process that we have adopted is robust. As it would be highly improper, I shall not comment on any current case. The whole point of having a robust judicial process is that our judges determine whether an individual should be extradited from this country or not, applying our law, the European Convention on Human Rights and the other safeguards that we have put in the Act. In that respect, I maintain that the Government have done absolutely nothing other than to act in the interests of justice by introducing a more efficient and fair extradition process, while preserving important safeguards. It may be foolish to hope that this may be the last occasion on which I shall have the privilege of delighting your Lordships with this particular debate.

House adjourned at eleven minutes past five o'clock.