Policing and Crime Bill

My Lords, these amendments relate to the evidentiary standards in extradition cases. In her letters to your Lordships' House, the noble and learned Baroness, Lady Scotland, tried to address the concern that we and many others have had with what is seen as an imbalance in evidentiary standards caused by the Secretary of State designating certain states as category 2 countries for the purposes of the Extradition Act. Your Lordships' House will be aware that a category 2 country need only provide information, not evidence, when making an extradition request. It is on that issue that I want to focus. I shall take the United States as an example, although I stress that the situation is not limited to just one country but applies to all designated category 2 countries. It seems somewhat false to compare designated category 2 countries with the European arrest warrant system, as the noble and learned Baroness has done in various letters. Subsections (2) and (3) of my amendment are designed to probe the concept of "information" provided by a designated category 2 country. In her letter, dated 19 October, the noble and learned Baroness said that, ""the information that must be provided in order for a US extradition request to proceed in the UK is in practice the same as for a UK request to proceed in the US"." Obviously, the two words "in practice" are fairly crucial. She said that when the UK makes an extradition request to the US, there is a requirement for the US courts to be satisfied that there is information demonstrating probable cause to issue a warrant. When the US makes an extradition request to the UK, she said that the UK courts need to be satisfied that the information provided by the US provides reasonable grounds for suspicion. The noble and learned Baroness said that the differences between "probable cause" and "reasonable grounds for suspicion" were semantic. There is some debate about whether the information provided should demonstrate a prima facie case, which, as the noble and learned Baroness notes, is the standard that our criminal courts used to require before a domestic criminal case could be committed to the Crown Court for trial. As noted in her letter, in some cases a prima facie case must still be demonstrated. It would be very helpful if she could say when it is still necessary to demonstrate a prima facie case. She did not expand on that point in her letters, and it is important. The noble and learned Baroness’s argument ultimately hinges on the assertion that, ""in both cases the standard of information to be provided is exactly the same as must be provided in order to justify arrest in an ordinary criminal case in that country"." That is reflected in the Extradition Act. Sections 71(2), 71(3), 73(3) and 73(4) state that the judge may issue a warrant if he has reasonable grounds for believing that there is evidence that would justify the issue of a warrant within his jurisdiction. In respect of category 2 countries, the Act specifies that information is provided instead of evidence, but does not define what "information" is. It would be very helpful if the Government could provide some clarity on that definition. However, I have a problem here, in that the noble and learned Baroness’s assurance is not reflected fully in the UK/US Extradition Treaty. Under Article 8(3)(c) of the treaty, there is a clear requirement for extradition requests to the US to be supported by, ""such information as would provide a reasonable basis to believe that the person … committed the offence for which extradition is requested"." However, there is no clear statement or requirement in the treaty for the US to meet the same—or even similar—standards when it makes extradition requests. Why is that the case? A related point is that the standard of information provided should satisfy the requirements of criminal court processes here in the UK. The Act says that an extradition hearing judge must decide, ""whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him"." Yet Sections 84(7) and 86(7) qualify that stipulation in relation to designated category 2 countries. Those sections state that in relation to extradition hearings for requests from these countries, the judge must ignore that sufficiency of evidence or information test. So, at the extradition hearing the judge can only take into account human rights considerations and bars to extradition such as double jeopardy, the passage of time and other possibly extraneous considerations. In other words, there is no clear requirement in the Extradition Act for the information provided by designated category 2 countries to satisfy the requirements of the UK’s domestic courts. The question I pose to the Government and to your Lordships’ House is: should the judge not be able at the extradition hearing itself to be able to re-establish reasonable suspicion? My amendment would require the judge to decide whether the information provided by those countries would be sufficient to make a case requiring an answer. The noble and learned Baroness might well say that my amendments, as drafted, would require a prima facie case to be established at the extradition hearing. I have to emphasise that that is not—I repeat, not—the intention. The intention is to allow a judge to re-establish, at the point of the hearing, that the information submitted meets the standard of reasonable suspicion. It is another safeguard and check in this highly contentious area, and my purpose is to increase public confidence in the system. This amendment is one that the Government should be able to accept. I am open to looking at redrafting, if necessary, but I do not accept another argument that I fear might be put forward; that it would breach international treaty obligations. If that were the argument, one would have to look at the following opinions. There is a joint legal opinion from Edward Fitzgerald, and from Julian Knowles at Matrix Chambers, saying that such amendments would not place the UK treaty in breach of such obligations. They say, and this is a general issue which has come up previously, that: ""National extradition laws of the UK and foreign states almost invariably contain grounds for refusing extradition which are not found in extradition treaties"." This is the burden of the noble Baroness’s letters: if it is not in the treaty, we cannot act. However: ""It is implicitly recognised as a matter of international law that state parties to extradition treaties may do this in order to give effect to the treaty in their national laws. Extradition treaties are regarded as containing the core matters on which parties to the treaty agree, but they are not regarded as limiting the parties’ right to legislate as they see fit, provided, of course that the national legislation does not fundamentally conflict with the treaty"." The amendment has neither the intention nor the effect of disabling the UK for fulfilling the purposes of the extradition treaty, and I do not accept that it would. The opinion goes on to say, in relation to the Extradition Act 2003, that it, ""already contains a number of grounds for refusal of extradition which are not to be found in extradition treaties, and their inclusion has never been regarded as placing the UK in breach of its international extradition treaty obligations"." I do not accept that the amendment would have that effect. I very much hope that the Government are able to accept an amendment which, it seems to me, accords with what they say is the purpose and meaning of this extradition treaty. I beg to move.