Police and Justice Bill

My Lords, since your Lordships’ House last debated this issue the Senate has, as the Minister pointed out, consented to the ratification by the President of the 2003 treaty. That treaty confers some benefits on the United Kingdom such as the right of extradition to the United Kingdom even if the prosecution would be time barred in the USA. That is something I have always recognised. The ratification does not remove the main objections to the treaty, which are, first, the unequal nature of the treaty and, secondly, the fact that the treaty assists the aggressive use by the United States of extra-territorial jurisdiction. Amendment No. 36 cancels the designation of the USA under the order made in December 2003 as a country to which people can be extradited without establishing probable cause, or indeed a prima facie case, under the Act. The Liberal Democrats—and we alone—voted against the order in both Houses in December 2003 on the ground of its inequality. Amendment No. 36 was rejected by the House of Commons in the debate on 24 October. In that debate, the Government relied yet again on the old chestnut that there is in fact no real inequality. That is not so. The Minister has put less emphasis on that on this occasion than she did on the earlier occasion, but she did repeat it. It is true that, under Section 71 of the Extradition Act, the USA must provide information that enables it to get a warrant for the arrest of the defendant with a view to his or her extradition from the United Kingdom. For obvious reasons, where an arrest warrant is being sought, no notice is given to the defendant of the application for the warrant. Information on which it is based is not shown to the defendant. There is no hearing. The first the defendant knows of the application is when he or she is arrested. Then an extradition hearing follows, but where the country requesting the extradition has, like the United States, been designated under Section 84(7), there can be no review at the hearing of the adequacy of the evidence or information against the defendant. For extradition from the USA to the United Kingdom, the position is quite different. The United Kingdom has to show probable cause at the extradition hearing. The existence of probable cause can be challenged by the defendant at the hearing. The information relied on by the United Kingdom is disclosed to the defendant and can be challenged. The defendant is able to argue that the information is in fact insufficient to amount to probable cause. That is entirely different from an application for an arrest warrant on its own, carried out in the total absence and ignorance of the defendant. That is spelled out in the treaty in Article 8.3, which says that, "““a request for the extradition of a person who is sought for prosecution shall be supported by … for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offence for which the extradition is sought””." There is no requirement for any corresponding information for extradition from the United Kingdom to the United States. That on its own makes it clear beyond doubt that there was a deliberate decision of those who drafted the treaty that there was to be a significant difference in procedure between extradition from the United States and extradition from the United Kingdom.