Today’s debate in the House of Commons provides an opportunity for critical scrutiny of our extradition law. The most glaring injustice is the failure of the Extradition Act 2003 to prevent extradition where trial in this country, of UK nationals and residents, is possible and practical.
We have the procedures to move evidence and witnesses from country to country; but we are subcontracting to European states and the USA cases which we should try ourselves.
The “one size fits all” approach is no more appropriate to the European arrest warrant scheme than to a single currency. Enshrined in the 2002 EU Framework Decision is an almost theological presumption that all EU members protect human rights, whatever the evidence in any one case. Practitioners, and I suspect judges who make extradition orders, know this is untrue, but are compelled to view the facts through a distorting lens of international goodwill.
Prison conditions in parts of Eastern Europe are appalling, and constitute on any sensible view “cruel and inhuman” treatment.
People may be imprisoned for years for pretrial investigation.
The British national, Andrew Symeou, accused in Greece of the manslaughter in 2007 of another Briton, claimed he had been wrongly identified.
Symeou could have been tried here, because our law permits prosecution of UK nationals for homicide abroad. The case against him was weak and disturbing.
In vain did he produce evidence of Greek police misconduct in his extradition hearing in London. After extradition, he was predictably detained in atrocious conditions, denied bail for over a year because he was not Greek, before eventual acquittal when the case inevitably collapsed.
Our law failed him.
Extraordinarily, we are more accommodating to foreign courts than the Framework Decision requires. Member states may refuse extradition where part of the alleged crime was committed within their boundaries.
The Government did not take advantage of this exception because, as Jack Straw said in 2001, the UK should be in the “vanguard of change” in the brave new world of European procedural co-operation.
Belmarsh Prison now holds a number of men accused in the USA of terrorism committed either wholly or mainly in the UK.
Babar Ahmad is charged with promoting unlawful Islamist causes on the web, which he denies. He has been contesting extradition since 2004. If he had been tried here, he would have been acquitted or convicted years ago.
He remains detained, at our expense, while the evidence on each side grows stale, pending consideration by the European Court of Human Rights. Why should we defer lamely to the USA? Are we not good enough to try him?
The “Natwest Three” were extradited for conspiring, mostly in London, to defraud their London bank which never claimed to have been defrauded.
Their extradition was sought in the hope might plead guilty and give evidence against Enron employees. Faced with impossible legal bills, the lack of access in Texas to critical London evidence, like almost all defendants in US Federal courts, they pleaded guilty to one count to avoid long years in prison if convicted.
Richard O’Dwyer, a Sheffield student, is now sought in the USA for copyright infringement crimes, when he certainly could be tried here, where his activities took place.
Recognising the generosity of our extradition law, US prosecutors have developed a habit of creating crimes; the most fashionable is the entrapment of people into agreeing to export, without a licence, night vision goggles or similar “military” equipment, from the USA.
A Department of Homeland Security agent poses as a seller, encourages the crime, and exploits the compliant UK-UK treaty to procure arrests in the UK pending extradition.
A former Iranian diplomat; a UK businessman Christopher Tappin; two Chinese nationals; have all been victims of this stunt. And we pay for the proceedings and prison costs! Prosecution in London would allow a judge and jury to pass judgment on such manufactured offences.
These cases are illustrations of the imbalance of the UK-Us treaty. A potential extraditee in the USA has the constitutional safeguard that a judge must examine the quality of the evidence.
But in a request here, a short recitation of the allegations suffices. The Home Office and the US authorities always claim that sufficient evidence is required in extraditions both ways; for extradition from the US, they say, “probable cause” must be shown before the request can be made.
But this means the quality of the evidence is assessed in extraditions both ways by the US courts; but in neither case by the UK courts. There’s the imbalance.
The integrity of our extradition law requires equality.
The Scott Baker Review, commissioned by the Home Office, calls only for prosecution guidelines on “forum” matters. We need hard “black-letter” law.
The Factory Acts in the 19th century, by degrees, abolished child labour not by ringing, broad declarations of right, but by forbidding its use except between specified hours, progressively narrowed.
This is the way to legislate; specific, unmistakable provision.
“Human rights”, in extradition, are usually a mirage, and guidelines can be conveniently ignored.
Alun Jones QC is based at Great James Street Chambers, London