Police and Justice Bill

It is clear from early-day motions, which numerous Members of Parliament of all parties signed—the last one I saw contained 154 signatures—that the amendments cover a matter of serious concern. The new clause deals with the Extradition Act 2003, especially its operation in relation to the United States of America, but also more generally, and whether it is a fair and reasonable way to proceed. If new clause 8 were accepted, it would omit the United States of America from the list of designated territories in category 2 of the 2003 Act. The United States could not therefore continue to enjoy its current privileged status in securing extradition without producing evidence. That is linked to amendment No. 118, which would prevent any redesignation until the ratification of the United Kingdom-United States extradition treaty, which was concluded in 2003, on both sides of the Atlantic. Ratification has taken place here but, as yet, there has been no reciprocity from the United States. Amendments Nos. 116 and 117 try to cover a separate but related issue. If they were accepted, they would introduce into European extradition proceedings, under the European extradition warrant, and into extradition to a category 2 territory, the possibility of the court’s examining whether the conduct disclosed by a request or constituting the offence was committed partly in the United Kingdom. No order for extradition would be made unless it appeared, in the light of all the circumstances, that it was in the interests of justice for the person to be tried in the territory that sought extradition. Moreover, under subsection (2), in deciding whether the interests of justice required extradition, the judge would be entitled to look at whether the competent United Kingdom authorities had decided to refrain from prosecuting the person whose surrender was sought, and for whom the extradition was requested. I shall try to be brief, but it is important to understand the background to these matters. Before 1 January 2004 and the implementation of the Extradition Act 2003, extradition to many countries outside Europe—the United States in particular—was governed by a treaty entered into in 1972. There was reciprocity under that treaty. If we wished to extradite someone from the United States, it was necessary to show probable cause of an offence having been committed. If the United States wished to extradite someone from the United Kingdom, a prima facie case had to be established. Some play has been made of the fact that it might be easier to show probable cause than to establish a prima facie case. However, both requirements responded to national legal principles and, in reality, very little turns on the distinction. There were problems with the 1972 treaty. It was suggested that it took a long time to get extradition from this country, although I believe that that says more about the problems with our court procedure than anything else. In addition, there were further blocks on extradition that presented a real problem. They included the fact that certain offences were not covered at all. For example, a person could not be extradited from the United States for child pornography, which we have just discussed. Indeed, that still applies. The statute of limitations was also frequently invoked in the United States, placing a bar on some offences for which we sought extradition. Speciality claims were made, and some offences became incapable of extradition. There were also problems when someone was in prison in the United States for a minor offence but was wanted in this country for a major one. I welcome the fact that a new treaty was negotiated between this country and the United States of America. It went a long way towards solving those problems. However, although we have signed and ratified the treaty, and allowed the United States to operate a procedure for extradition that is akin to that of our European neighbours and requires no evidence whatever to be produced, no reciprocity has been provided by the United States at all. The treaty was signed on 31 March 2003. On 16 December, Baroness Scotland gave assurances in another place that ratification was due to take place in the United States in early 2004. On 16 June 2005, she expressed"““genuine disappointment that the United States’ authorities have not found the time or energy to ratify the provision.””—[Official Report, House of Lords, 16 June 2005; Vol. 672, c. 1198.]" Twelve months later, we are still waiting. There is considerable evidence in the United States that there are many bodies—including civil rights groups and the senators linked to them—that intend to prevent ratification from taking place if possible. It is not surprising that this state of affairs has come about. Why should the United States Government be bothered? As Baroness Scotland candidly explained, in a debate in the other place last year,"““the Extradition Act 2003 effectively implemented the provisions of the new UK/US extradition treaty.””—[Official Report, House of Lords, 30 June 2005; Vol. 673, c. 408.]" She failed to add that this had happened on an entirely one-sided basis. The statutory instrument that was passed designated the United States under category 2. Extradition has become easy, and virtually all scrutiny has been removed. Bizarrely, this is completely contrary to article 9 of the treaty, which is still legally in force. When the Government proceeded to include the United States as a category 2 designation under the Extradition Act, they told us that this was essential for the prevention of terrorism and for bringing suspected terrorists to justice. That is plainly an important consideration, of which the House must be mindful. That being said, in the case of Mr. Lotfi Raissi, the Algerian national and airline pilot whose extradition from this country was sought after 9/11 on the grounds that he had failed to disclose information to the US authorities that might have prevented that attack, the United States Government had to operate under the old system of showing a prima facie case. As was graphically described to the Home Affairs Committee by the district judge who handled that matter, it became apparent in the course of proceedings that there was no case against him whatever, and there was a complete mistake as to his identity, who he was and what his involvement had been. Under the Extradition Act provisions as they currently stand, Mr. Raissi would have been extradited to the United States without more ado. Perhaps more relevantly, when anxiety was being expressed about the operation of the Extradition Act, the Government gave assurances that it would not extend to financial crime. Those were the very words of the hon. Member for Don Valley (Caroline Flint), then a Home Office Minister. She was responding to a Financial Times article expressing specific concern that offences such as price fixing, which were not offences in the United Kingdom but might have been offences in the United States in the past in parallel, could become extraditable. She said:"““We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times— such as price fixing—would not apply. Dual criminality would have to exist.”” —[Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 26.]" It has become apparent that what she told the House on that occasion was completely erroneous. United States district attorneys, discovering—to their considerable pleasure, I am sure—that extradition has become a mere mechanistic procedure in this country, have found ways of side-stepping problems with the lack of dual criminality. My constituent, Mr. Ian Norris, managing director of Morgan Crucible, is currently facing extradition for price fixing at a time when it was completely legal in the United Kingdom and all the decisions were taken here. The allegations have been changed to conspiracy to defraud, on the basis that that was the outcome as it affected the United States, thus getting round the dual criminality provisions. The Minister will be able to provide us with more information, but I understand that such examples are becoming numerous. In addition, the United States has also asserted jurisdiction in cases in which every bit of common sense dictates that the connection with the United States is extremely tenuous. The mere passage of an e-mail through a United States server is sufficient for the purposes of jurisdiction. In theoretical terms, that must give the USA almost universal worldwide jurisdiction over every crime. In the Enron case, extradition is being applied for in relation to defendants whose alleged crime is to have defrauded—a serious offence—a British bank of many millions of pounds in this country, when the bank has never alleged fraud and no proceedings have ever been brought here.