Policing and Crime Bill

My Lords, I heard the explanation given by the Attorney-General. I have no reason whatever to doubt what she and the noble and learned Lord, Lord Goldsmith, said about the bundles of papers that cross their desks containing the same information. That was not my point. My point was that the judicial authority in the United States must consider the evidence, which is disclosed to the person whose extradition is sought so that he can challenge it before a judge in the United States but, when it comes to this country, all that appears is the warrant, which is unchallengeable. The magistrate does not see—at least, I do not imagine he does—the documents that pass between the Attorney-General of this country and the requesting authority in the United States. As there is not equality of consideration, the person whose extradition is being sought is in a different situation if he is able to challenge a case in the United States, but cannot do so in this country. It is quite wrong to suggest that equality has been achieved. The whole thing about extradition was that it was always assumed that a state owed a duty to look after its own citizens. In the 19th century, fugitives from justice all over Europe came to this country. The regimes in those countries, very often what we would call fascist regimes, dictatorships and so on, would pursue them to this country. The law of extradition developed in that way. In Europe, where they have the civil system and not the common law system, it remained, until the introduction of the European arrest warrant, a basic principle that you do not extradite your own citizens. In the civil countries, you can certainly extradite fugitives from other countries, but they resisted extraditing their own citizens. Under the common law, we did not have that rule. What we had was Article 7 of the European Convention on Extradition 1957, called "Place of Commission". It applied across Europe, including in this country. It states: ""The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory"." So even this country can refuse to extradite its own citizens or any other country’s citizens on the basis that the forum is more appropriate here and a person should be tried here rather than in another territory. For every other European country, that principle remains in their bilateral treaties with the United States, but not for us. We have abandoned it. Article 4, "Grounds for optional non-execution of the European arrest warrant", of the framework decision on the European arrest warrant, says: ""The executing judicial authority may refuse to execute the European arrest warrant"," where, in paragraph (7), ""the European arrest warrant relates to offences which … are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such"." Although the continental countries in the European arrest warrant have conceded that they will extradite their citizens, they still hold on to the question of forum. The amendments now before the House are in my name. They were in the name of the noble Baroness, Lady Neville-Jones, in Committee, and I am not responsible for the fact that there was no debate on that occasion because they simply were not moved. These seek to bring in the provisions of the 2006 Act, which would give the courts of this country the opportunity to consider forum and whether it is in the interests of justice that the person sought should be extradited. The argument against that, as set out in the noble and learned Baroness’s letter, is that that in some way transfers responsibility from the CPS to the judge to decide where a case should be prosecuted. That is not the intention at all; the intention is simply to give the magistrate or district judge considering extradition proceedings in this country the ability to consider whether it is in the interests of justice that this person should be tried abroad or in this country. It is still a matter for the CPS to decide what to do. Every court in Europe can decide whether it is in the interests of justice to permit the extradition of an individual, but we cannot do so unless the amendment is accepted and the provisions of the 2006 Act, which were fully argued and put through by this Government—I think it was John Reid who finally put these provisions through—are brought into effect. In any event, why should the judge not consider whether it is in the interests of justice for a person to be extradited? Now that extradition to the United States is a rubber stamp procedure, save only for the bars that are set out in the Act, why should the prosecutor have the power of decision when the defendant cannot make any representations to him, at least not easily, to be tried in this country? Of course he can challenge that decision, as in the McKinnon case and in other cases, by way of judicial review, but if the court considering an order of extradition had the opportunity to take an overall view of whether it was in the interests of justice, as every other European country can, would that not be so much better? The noble and learned Baroness said in her letter: ""The issue of forum is decided by discussions between prosecutors from different jurisdictions"." That is perfectly reasonable and proper, save only for the fact that the defendant has no right to make any representations on where he should be tried. Political considerations may well come into decisions that cannot be challenged easily by the person who is to be extradited. Political decisions between prosecutors were the fundamental issue in the Osman case, to which the noble and learned Lord, Lord Goldsmith, referred. The question was whether Mr Osman should be tried in Malaysia, where his bank had suffered about £1 billion of losses and where he lived and was a native, or whether he should be tried in Hong Kong where the property crash had caused the losses. That is what it was all about. Another argument advanced by the Government, to which the noble Baroness, Lady Neville-Jones, referred, was that you cannot do this because it would breach all our extradition treaties. Mr Edward Fitzgerald QC and Julian Knowles have provided Liberty with an opinion. Mr Fitzpatrick can be found in almost any quarter of the world. He is very expert in this subject. In that opinion, which I am sure the Government have seen, he has demonstrated that many EU member states have enacted additional grounds for refusing extradition. He quotes the leading textbook on this case by Nicholls, Montgomery and Knowles. Your Lordships should know that Clive Nicholls and Miss Montgomery led for the Hong Kong Government in the case which lasted seven years, so they knew the other side of the coin. Their extraordinarily good book, The Law of Extradition and Mutual Assistance, which I recommend as bedside reading, states: ""Many countries have introduced grounds for refusing extradition other than those provided for in the EAW Framework Decision. Denmark, Italy, Malta, The Netherlands and the UK have introduced additional reasons for refusal, such as delay, political discrimination and national security, while other states have grounds for refusal connected with the merits of the case, eg, its special circumstances or the personal or family situation of the individual in question"." Other countries do it and have put provisions in domestic law which do not coincide exactly with the treaty. There are bilateral treaties with the United States, for example. Those treaties lay down broad agreement on principles, but they do not prevent a country such as ours from exercising its own jurisdiction and adding extra bars or extra considerations for the making of the decision to extradite by the court. All I seek to do is to put into effect provisions which passed through this Parliament three years ago, which the Government have refused to make effective. If we do that, we may get somewhere nearer the parity which the citizens of this country would expect for their protection and the traditional aim of extradition law. I beg to move.