End of day adjournment debate on Extradition Act 2003 - Jan 21

Mr David Davis (Haltemprice and Howden) (Con)

Before I enter into the subject, it was amusing to see the Minister, my hon. Friend the Member for Croydon South (Chris Philp) rush to his place. He is a friend, but he is also standing in for a great friend of mine, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is an old friend and old protégé of mine. As we all know, he is away ill, and I take this opportunity to wish him the best of luck in his treatment and a rapid return to the Chamber.

As you said, Madam Deputy Speaker, I have consulted with the Clerks, and what I have to say will skirt very carefully around the sub judice rules.

Since we agreed the UK-US extradition treaty in 2003, it has been abundantly clear that the British Government of the day struck a truly dreadful deal. Asymmetric, ineffective and fundamentally unfair on British citizens, it is a terrible flaw in our own justice system. The previous Labour Administration approached the treaty as though their duty was first and foremost to support the wishes of our American friends, not to safeguard the rights of UK citizens.

17:00:00

Motion lapsed (Standing Order No. 9(3)).

Motion made, and Question proposed, That this House do now adjourn.—(Tom Pursglove.)

Mr Davis
Perhaps that was understandable in the context of the terrorism sweeping the world at that time, but friends must be honest with each other, and now we must say, “Enough is enough.”

The 2003 treaty paved the way for British citizens to be handed over to the US authorities, with minimal safeguards against injustice. Numerous examples down the years have shown this, from the NatWest three to Christopher Tappin. The recent decision to block the extradition of Mr Assange did not add to the list. However, the judgment earlier this month was a human rather than a legal victory. Although we cannot, of course, discuss the substance of the Assange judgment here today, the House must note the worrying development more generally in our extradition arrangements—extradition for political offences. This stems from an erroneous interpretation of Parliament’s intention in 2003. This must now be clarified.

Article 4 of the UK-US extradition treaty provides that extradition will not be granted for political offences. In the UK, the treaty was implemented in the Extradition Act 2003. It has been claimed that, because the Act does not specifically refer to political offences, Parliament explicitly took the decision to remove the bar when passing the Act in 2003. That is not the case—Parliament had no such intention. Had it intended such a massive deviation from our centuries-long tradition of providing asylum, it would have been explicit.

When the Extradition Bill was debated in the Commons, Members raised concerns about extraditions in relation to political offences. In responding to those concerns, Minister Bob Ainsworth gave a clear and unequivocal answer:

“The Bill will ensure that no one can be extradited where the request is politically motivated”.—[Official Report, 9 December 2002; Vol. 396, c. 115.]

The Government today have also recognised that. In October 2019, the Home Office confirmed that such a bar was implicit in UK law and that it would be down to judges, on a case-by-case basis, to decide whether to apply the bar. However, recent cases before the courts have shown that an implicit bar is not enough. We must have clarity on this issue. It is vital that our extradition arrangements have appropriate protection for political offences, not least because political asylum seekers may seek the protection of British justice in the future.

But that is not all. When the 2003 extradition treaty was introduced, it was sold on the basis—I remember this because I was the shadow Home Secretary—that it would be used principally for paedophiles, murderers and terrorists. But the people we are extraditing to the US today are, mostly, white-collar businessmen who pose no physical danger to United Kingdom or US citizens. Between 2007 and 2019, the UK surrendered 135 individuals to the US, 99 of them for non-violent offences. Instead of seeking justice against dangerous criminals, the United States is seeking to be judge, jury and executioner for global commercial deals.

In 2012, the Select Committee on Home Affairs said that the US

“has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.”

That has been shown in case after case, including those of Ian Norris the former head of Morgan Crucible, the NatWest three, Christopher Tappin and numerous others. Those cases all have common themes: they are all British citizens; the alleged crimes all took place on British soil; and the UK authorities did not see them as having a case to answer, but the UK system failed to protect them and the US authorities ultimately got their way.

Of course, people must be brought to justice when they break the law, but the problem at the heart of this extradition process is that it is fundamentally asymmetric and unbalanced in favour of the United States. This lopsided treaty allows US citizens to evade justice, while exposing UK citizens to miscarriages of justice.

In a 2011 report on our extradition arrangements, Lord Justice Scott Baker concluded that we did not need to change the rules to ensure that London-based offences are dealt with here in the UK. He was wrong. He failed to give enough weight to the US ambition to extend its extraterritorial jurisdiction of commercial crimes. He also made no allowance for the incredibly one-sided nature of prosecution and trial of foreign suspects in the US justice system. An American citizen facing extradition to the UK can challenge it in a US court on the basis that there is no “probable cause”, but a UK citizen facing extradition has no right to a reasonable grounds hearing. That is what the Joint Committee on Human Rights called in 2011 a

“lack of reciprocity in the Treaty”

when it called for reform of that treaty.

In the case of political offences, the treaty allows a US Executive to determine what is and is not a political offence. In the UK, we rightly leave this to the courts. What is more, the US Secretary of State has far greater discretion to refuse an extradition than our Home Secretary. The British Extradition Act states:

“The Secretary of State must issue a certificate”

for extradition. The equivalent US code states:

“The Secretary of State may order the person....to be tried”.

Such a seemingly minor change in language has a dramatic effect. With the US being a larger country, and with the UK being closer to the frontline on terrorism, we would expect the numbers being extradited from the United States to the UK to be greater than those going in the opposite direction. The reverse applies. The US has surrendered only 58 individuals to the United Kingdom since 2007, with only 11 of them American citizens, while 135 have gone the other way.

There is no starker example of the inequity and imbalance than the case that you mentioned, Madam Deputy Speaker, of Anne Sacoolas and the death of Harry Dunn. In that case, the US Secretary of State used the discretion afforded only to the US under the treaty to prevent extradition. The Prime Minister has recognised this imbalance. On 12 February last year, he said:

“I do think that elements of that relationship are unbalanced, and it is certainly worth looking at”—[Official Report, 12 February 2020; Vol. 671, c. 846.]—

yet nearly a year on, we remain in the same position.

The courts may be starting to recognise the imbalance. In the wake of the decision to block Gary McKinnon’s extradition, UK courts were given the power to bar extradition on forum grounds so that crimes committed primarily in the UK against UK citizens could be tried in this country. The absence of the forum bar in the 2003 Act highlighted just how cavalier the Blair Administration were with the rights of British citizens. The safeguard had existed previously in the 1957 European convention on extradition, and citizens almost universally elsewhere in Europe could count on its protection.

Since 2018, in the cases of Lauri Love, Stuart Scott, Robert McDaid and Christopher Taylor, the courts have used this bar in a partial attempt to even up our extradition arrangements. This asymmetry is not an inevitable outcome of being an ally of the US. It is a policy choice. Countries such as France and Germany both refuse to allow their citizens to be extradited and for good reason.

David Bermingham, one of the NatWest three, described to the House of Lords how he and his co-defendants were extradited to Texas and

“put in…hand chains, foot chains”—

restraining “belts and everything else”, and then “strip-searched”. This is designed not only to intimidate the accused, but to score a PR victory for American prosecutors. Those extradited to the US face this treatment whenever they are dragged into and out of court in front of the television cameras and the paparazzi. All this comes at the expense of the presumption of innocence.

It is often the case that once extradited to America, the accused is refused bail. This is on the basis that they are a flight risk. The result is that they are thrown in a cell, often shared with a fellow inmate—possibly a hardened criminal—and their access to legal papers is massively restricted. Their ability to contribute meaningfully to their defence is totally handicapped. This is particularly damaging in all those white-collar cases, where the relevant evidence can stretch to millions of pages and the prosecution face no requirement to tell defendants which pieces of evidence they intend to rely on.

Defendants then face enormous pressure from the US authorities to agree a plea bargain. They are told that if they refuse a deal, they will be denied bail and face decades in a maximum-security prison, but if they plead guilty, they will receive a much lighter sentence in an open prison. They are also reminded of the huge financial cost in America of protracted and complex trials, often running into the millions or tens of millions. It takes a brave person to turn down the easy route.

David Bermingham has described how he had to negotiate his punishment before he had even settled on the crime he would be pleading guilty to. That is repeated across the US legal system, where a massive majority of cases are settled by a plea bargain—I think the number is 97%. Take the case of Jamie Olis, an employee of a US energy firm who stood accused of fraud. He refused a plea bargain and protested his innocence in court. He was handed a 24-year sentence. His boss at the firm—presumably more responsible—took the plea bargain route and co-operated with the Government. He was sentenced to just 15 months; 15 months for the boss and 24 years for the subordinate.

Plea bargains are just one of the tools used by US prosecutors to stack the deck against defendants. They also deliberately use the threat of prosecution to disable the defence’s witnesses. Witnesses willing to co-operate with the prosecution are given immunity, while witnesses who refuse to do so find themselves threatened with prosecution. For cases where the alleged crime is in Britain, no British defence witness is going to travel to a court in the US and risk being charged on arrival and never coming back. What is more, prosecutors label these witnesses as co-conspirators, which handicaps the defence’s ability but maximises the prosecution’s ability to use their evidence. These tactics are such a serious issue that in one American case—that of Mohammad Dolah—the judge described it as

“a fundamental unfairness that might well amount to a denial of due process.”

It is not just the prosecution inside the courtroom stacking the deck against the defendant. The first amendment to the American constitution allows the American media to print and broadcast sometimes frenzied coverage of trials, which inevitably prejudices their outcome. In effect, high-profile defendants in the US face trial by media, as well as trial by jury. That has been laid bare in a string of cases, most famously that of O. J. Simpson, but perhaps most perniciously in the case of the Central Park Five, which is not so well known here but is well known in the United States. That case led to a miscarriage of justice for 13 years—that person was in jail for 13 years, and he was eventually exonerated.

Let us compare that with the UK. As you reminded me at the beginning of the debate, Madam Deputy Speaker, the Contempt of Court Act 1981 safeguards the presumption of innocence by preventing anything from being published that prejudices ongoing trials. Indeed, it is those protections that prevent me from discussing cases relevant to the debate that are sub judice. My speech today is, entirely properly, sharply constrained to avoid mention of half a dozen extant cases in the interest of not biasing justice. The US justice system as applied to foreign suspects is not normal justice as we understand it here in the United Kingdom.

My argument to the Minister—and I am not expecting a great reply today—is that we must rethink the entire relationship with the United States on extradition. We must navigate a constructive path forward for both countries based on arrangements that are balanced, fair and reciprocal. We should remember that we are friends, not enemies; allies, not rivals. This is particularly important as we seek to embark on a new trading relationship. In the next decade, our two countries will develop even closer commercial relationships. Businesses developed by brilliant British inventors and scientists will look to merge and co-operate with or sell to big American companies in the bigger American market. If the current extradition treaty stands, every one of them could face American extraterritorial legal actions and a legal system stacked against them. In the interests of both countries, that must change.

The Extradition Act not only touches the lives of renowned political actors and international business executives; it also impacts families such as Harry Dunn’s. If the American Government insist on trying to exercise extraterritorial jurisdiction in their interest, perhaps we should mimic Israel and refuse to extradite British citizens for anything other than serious crimes of violence and terrorism. We must give our citizens the protection, certainty and justice that they deserve and that our judicial system has a proud history of upholding.

17:13:00

The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
As my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said, I am here deputising for the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is awaiting treatment. I am sure the whole House will want to send him their warmest wishes for a speedy recovery to his duties at the Home Office, his duties in the House and his duties at this Dispatch Box, where he would unquestionably do a far better job than me. I wish him a rapid recovery and a rapid return.

I congratulate my right hon. Friend on securing this debate on extradition. It is a topic he has consistently raised in this House over a period of time. It has been part of his long-standing record as a champion of civil liberties in a whole range of areas. It is a great privilege to be here this evening responding to his speech.

I would start by saying that extradition arrangements are a vital part of the Government’s toolkit in combating crime. It clearly serves the interests of justice to be able to bring back to the United Kingdom people who have committed offences here, where we want to prosecute them, and similarly, where people in the UK have committed offences elsewhere, it is reasonable for them to face justice in the countries that legitimately want them. So I think the principles of reciprocal extradition treaties are an important part of our justice system.

In recent years, in relation to our extradition arrangements with the US, we have successfully managed to bring back into the UK under that agreement people who have committed very serious offences to stand trial here for those offences, including rape, murder, manslaughter and many child sexual offences. Clearly, it serves the interests of justice and public safety that those people are subject to prosecution.

It is worth mentioning that the Extradition Act 2003, the subject of this evening’s debate, is organised geographically in two parts. Part 1 provides arrangements for European Union countries and part 2 applies to all other countries where we have formal arrangements through the European convention on extradition, the Commonwealth scheme or a bilateral treaty. Requests from any other country where we do not have formal extradition relations are dealt with on a case-by-case basis, and as my right hon. Friend has said, where the UK considers a request by another country to extradite one of our citizens, the standard looked at is reasonable suspicion. That is the threshold applied in deciding whether or not an extradition request is reasonable.

On numbers, it is worth just pausing on this for a moment. On the part 1 extradition figures for the last financial year, 2019-20, EU countries requested 1,168 individuals who were physically present in the UK, of whom 689 were subsequently sent to one of those EU countries. Similarly, we wanted to get hold of 269 individuals who were somewhere in the EU, of whom 231 were brought into the UK.

The reason I mention those figures is by way of comparison with the US figures that my right hon. Friend mentioned. First, the numbers in relation to EU countries in both directions are far higher; the numbers I mentioned, which were for just a one-year period, were far higher—by a multiple—than the US figures. There is also the ratio: in relation to EU countries, far more people—about three times more people—were taken from the UK into European countries than the other way around. That ratio is very similar to the ratio in relation to the US. So the ratio is broadly similar, whether it is the US or the EU. Therefore, I would not take that disparity in itself to indicate that there is a fundamental problem, unless we are going to argue there is a similar problem in relation to the EU, which I do not think anyone has so far suggested.

I would like to try to address some of the most fundamental points my right hon. Friend made. Essentially, his central allegation was that there is an imbalance—an asymmetry—in the arrangements, whereby it is easier and it is faster for the United States to extradite UK citizens, or people in the UK, than vice versa. I would like to take each of the points in turn that might be cited in support of the suggestion that there is an imbalance.

One of the first points that often comes up is the evidential threshold: what standard or what threshold do we have to reach in order for an extradition request to be granted? In the United Kingdom, as we have discussed already, broadly speaking, the test is of reasonable suspicion. For a request in the other direction, where the UK is requesting the extradition of somebody in the US, then the standard is what essentially amounts to probable cause. The question is whether those standards are equivalent—is reasonable suspicion equivalent or not to probable cause? That question was considered in 2011 by Sir Scott Baker, a senior retired judge, who concluded that both tests are based on reasonableness, both have to be supported by equivalent documentation and both represent the standard of proof applied by police officers in both jurisdictions, and that in substance the threshold represented by those two tests is broadly the same.

The House of Lords looked at the matter in 2014. The Select Committee on Extradition Law took evidence and concluded that, although the tests are in some elements different,

“whether this difference has any practical effect is debatable.”

The Committee went on to say that the

“experience to date demonstrates that”

the argument that

“they are ‘functionally’ the same is persuasive.”

So, both Sir Scott Baker and the House of Lords Select Committee gave the opinion that in essence the thresholds applied in the two jurisdictions are, broadly speaking, equivalent.

The second area in which one might seek a divergence between the arrangements is on discretion, on which my right hon. Friend touched. He pointed out, quite correctly, that the US Secretary of State has a discretion to refuse an extradition request, whereas the Secretary of State here is under an obligation to grant one after the matter has been considered, if requested, by a court. We have seen a number of cases—including recent cases, one of which Madam Deputy Speaker referred to—in which the courts in the United Kingdom have refused an extradition request, so protection is provided by the courts. Moreover, there is a right of appeal, so if in the first instance the court grants an extradition request, there can be an appeal—in fact, there are probably two levels of appeal above the court of first instance. There is, then, substantial judicial intervention to protect the rights of UK citizens in the way that I have just described.

It is instructive to think about the numbers—how often our courts protect people in the UK who are subject to extradition versus how often the US Secretary of State exercises their unfettered discretion. The answer is starkly in favour of the United Kingdom: I am told that since the treaty was entered into, on 21 separate occasions, a few of which my right hon. Friend referred to—I am not sure if those 21 include the recent Assange case—the UK court has said that extradition may not occur. The courts have stopped extradition 21 times. Conversely, there has been only one occasion on which the US Secretary of State has exercised their discretion and declined one of our requests, and that is in respect of the Anne Sacoolas case, which we should not debate too much. That is the only occasion on which that discretion has been exercised. That gives us some sense that the matter is perhaps not as one-sided as is occasionally suggested.

There is a third argument, which my right hon. Friend advanced with his characteristic eloquence, passion and attention to detail: the question of whether crimes might be committed in the UK that have only a very tangential connection to the US but the US authorities can then reach into the UK and pluck out suspects who really have very little, if anything, to do with the United States. That is the substance of the suggestion.

My right hon. Friend referred to a 2012 Select Committee report that drew attention to such problems. It was partly in response to that Select Committee report, and in response to some of the cases in the first decade of this century to which he referred, that the 2003 Act was amended in October 2013, 10 years after it first came into force, and a new section 83A was introduced that gave the United Kingdom courts the ability to refuse extradition either when a substantial measure of the requested person’s relevant activity was performed in the UK—that is, their offences were mostly UK offences—or when extradition would be contrary to the interests of justice. At the time, the US embassy was not terribly happy about those changes. I think that amendment—new section 83A, introduced in 2013—goes a long way to making sure that people whose offences are only very loosely connected to the US, and the substance of which were allegedly committed in the UK, are afforded quite a good measure of protection from extradition to the United States. That was a very important change that I think goes quite a long way towards protecting UK citizens.

The courts have used that power, and they have also used human rights law, as my right hon. Friend has said, in cases such as those of Gary McKinnon and Lauri Love. The courts have used it more recently as well, as Madam Deputy Speaker said, where the prospective defendant has successfully argued before our courts that their human rights would be infringed in some way if the extradition proceeded, and our courts here in the United Kingdom have afforded that protection. I think that is a very significant point in our debate.

Dr Julian Lewis (New Forest East) (Con)
How does the Minister respond to the point made by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) that an innocent person finding themselves on trial in the United States—our closest ally, as we all agree—would nevertheless be put under intolerable pressure to plead guilty, because if he gambles on proving his innocence and fails, he faces an enormous sentence, whereas if he confesses to a crime that he did not commit, he can get off with a few months in jail?

Chris Philp
The argument that my right hon. Friend advances is essentially that the US justice system is inherently not fit for purpose. Of course, the rules that he describes apply as much to US citizens as they do to anyone else. Although the practice of plea bargaining in the United States is not one that we have in this jurisdiction, I do not think I would agree with the general proposition that the US justice system is inherently unjust, and that it is so bad that we cannot allow anyone to be taken there from this jurisdiction because the system is so terrible that justice will not be done. I do not accept that characterisation.

Of course there are points of difference, as has been pointed out, but I do not think those points of difference are such that we should simply turn around and say, “We will have nothing to do with the United States at all.” That is not a conclusion that I share or concur with, and therefore I do not think it is a basis on which we would want to discontinue all extradition relations.

Mr David Davis
I had not intended to interfere with the Minister’s course, but since this point has been raised, I will say that the most fundamental thing under-pinning all extradition arrangements—whether they are with America, Europe or whatever—is a presumption that the justice systems are reasonably equivalent. This is where the weakness comes in.

Take the case of Christopher Tappin, who was extradited. He was somewhere in his 60s—65, maybe—and he was threatened with a 30-year sentence if he did not confess to a crime that he did not believe he had committed. That is an intolerable difference, and it is not just criticised here. As the Minister quite rightly says, it is the subject of massive criticism in the United States, but they are stuck with it until they change it. It seems to me that when we think about the treaties, not just for America but for other areas, we should consider trying to guarantee equivalence of justice in delivery, as well as in principle.

Chris Philp
I thank my right hon. Friend for his intervention. The test is not that the justice systems are identical; it is that they are just. I do not think I would accept the argument that the American system is fundamentally unjust. However, if there are particular circumstances of a case—perhaps the case he mentions would have met that test, had he advanced that defence —where a grave injustice is threatened, then the UK courts, on human rights grounds, which include the right to a fair trial, can be invoked and a UK judge, or an English judge, can be invited to prevent extradition. It was on grounds, as I understand it, very similar to those that the recent case involved the judge making precisely that finding, so if a miscarriage of justice is threatened, an application can be made to an English judge to prevent the extradition using arguments not unlike those my right hon. Friend has just advanced.

I fear we are approaching the witching hour and I should therefore draw my remarks to a conclusion. The Government will, of course, keep this area under careful and vigilant review, prompted as ever by my right hon. Friend, to whom I am extremely grateful for raising this important matter this evening.

Question put and agreed to.