Policing and Crime Bill

My Lords, I support the amendments of the noble Baroness, Lady Neville-Jones. I am grateful to the noble and learned Baroness the Attorney-General for the correspondence that she has circulated since Committee and the previous day on Report. She said that the information that must now be provided in order for a United States extradition request to proceed in the United Kingdom is, in practice, the same as for a United Kingdom request to proceed in the United States: the standard of information to be provided is exactly the same—exactly the same—as must be provided in order to justify arrest in an ordinary criminal case in that country. The terms of the bilateral US/UK treaty of 31 March 2003 are unequal. There are common requirements: the description of identity, the relevant text of the law describing the essential elements of the offence, the relevant text of the law prescribing the punishment, a copy of the warrant of arrest, a copy of the charging document, if any, and a statement of the facts of the offence. Those documents must be produced either to the magistrate in this country or to the authority in the United States, whichever way the extradition is moving. Under Article 9 of the previous treaty, which was supplanted by the 2003 treaty, the requesting state had to provide evidence sufficient according to our law to justify committal for trial. That has now been dropped under Article 8.3(c) of the 2008 treaty. For requests that we send to the United States, the request shall be supported by, ""such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested"." The United States authorities demand this information because of the fourth amendment to the United States constitution, which provides that: ""The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"." It is fundamental to the United States constitution that the information that is sent would provide a reasonable basis to believe that the person sought had committed the offence. As for requests from the United States to this country, the Government argue that to obtain a warrant to arrest somebody who is in the United Kingdom, it is necessary in the United States to get the warrant—which, as I have pointed out, is one of the documents that the United Kingdom court will require to see—to show probable cause. This is defined in one Supreme Court case as follows: ""The government has a probable cause to make an arrest when ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information’ would lead a prudent person to believe that the arrested person had committed or was committing a crime"." What, then, is the difference? The difference is that in a request from the United States to the United Kingdom, the evidence to support the warrant is supplied on oath to the judge in the United States. All that has to be shown to the United Kingdom court for the purpose of extradition is simply the warrant that has been issued in America on the basis of information supplied in America. The evidence on which that warrant is based, supplied to the judge in America, is not before the English court and is not necessarily revealed to the defendant. In any event, he cannot challenge the material on which the warrant is based. He does not know what it is. It has been supplied to the judge in America, but not to the judge in this country. In the Lotfi Raissi case, the United States sought the extradition of an Algerian pilot from the United Kingdom to America. This request was made prior to this treaty coming into force, and was based on the former treaty. Accordingly, as I have said, under Article 9 of the former treaty, the United States had to provide evidence sufficient according to British law to justify committal for trial in this country. In other words, in the Lotfi Raissi case, the US had to show a prima facie case to the magistrate in London. The application was thrown out by the British courts and went all the way up the chain of appeals, not only because there was no evidence, but because the proceedings on trivial charges had been brought for ulterior motives and were held to be an abuse of process. Under the new treaty, no evidence would be required. That challenge to the extradition of Raissi could not be made. Indeed, Raissi could be returned now with no evidence produced because, unlike the bilateral treaties that have been negotiated with the United States by other EU countries, the US-UK bilateral treaty is retrospective. Article 22.1 says: ""This Treaty shall apply to offences committed before as well as after the date it enters into force"." Theoretically, in the Raissi case, it is possible for the US authorities to go to a judge in the United States and show him probable cause, and for him to issue a warrant. If the warrant comes over here, it cannot be challenged and Raissi, even today, would be sent back. By contrast, in an extradition hearing in a United States court, when we ask for extradition from the United States, the information in support of the request is before the judge who determines the application. This is the application of the fourth amendment to the United States constitution. Since it is before the judge, the defendant can challenge it and seek to persuade the judge that it is not of sufficient weight or cogency to support the request. To say, as the noble and learned Baroness has, that it is exactly the same is just not correct. Mr Scott Hammond, who was a deputy assistant Attorney-General in the United States, and director of the criminal enforcement anti-trust division—that is a very high position in the Justice Department—told an American Bar Association symposium on white collar crime in Las Vegas in 2005: ""A hearsay affidavit by the prosecutor is enough. We don’t even have to provide witness affidavits"" in a request to this country. He continued: ""Appeal rights have been curtailed but it’s nothing. It is a drop in the bucket compared to the bang for the buck we are getting from this"." So, the American Justice Department regards this as a "bang for a buck". In introducing the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, the noble and learned Baroness, Lady Scotland, said: ""If this order is approved, the United States will no longer be required to supply prima facie evidence to accompany extradition requests that it makes to the United Kingdom. This is in line with the new bilateral extradition treaty … By contrast, when we make extradition requests to the United States we shall 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".—[Official Report, 16/12/03; col. 1063.]" That is what she said then. Why, then, does she now say that it is exactly the same? The extradition treaty was negotiated and ratified without any reference to Parliament. Although the noble and learned Lord, Lord Falconer of Thoroton, said in a debate on 31 March 2003, during the passage of the Extradition Bill: ""The new treaty also maintains the present position that political motivation cannot be used to block extradition in the case of terrorist or other violent crimes".—[Official Report, 31/3/03; col. WA 92.]" The United States refused to ratify that treaty without assurances from our Government that they would not seek rendition of Irish terrorists to this country. Quite a number of terrorists had escaped from Ireland to the United States and it would not sign the treaty because of that. It held up the ratification for three years and did not pass it without the following proviso: ""The Senate is aware that concerns have been expressed that the purpose of the treaty is to seek the extradition of individuals involved in offences relating to the conflict in Northern Ireland prior to the Belfast Agreement of April 10th 1998. The Senate understands that the purpose of the treaty is to strengthen law enforcement co-operation between the United States and the United Kingdom by modernising the extradition process for all serious offences and that the treaty is not intended to reopen issues addressed in the Belfast Agreement or to impede any further efforts to resolve the conflict in Northern Ireland"." So, no extradition of Irish terrorists. The Attorney-General knows this because she went there on 13 July—