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Extradition: UK and USA

My Lords, I am grateful to the noble Lord, Lord Hodgson of Astley Abbotts, for returning to the issue of extradition to the USA, on which, as he said, we have already had several debates and Questions. I also admire his dexterity in shifting seamlessly from community interest companies to extradition. Extradition to the USA is governed—or, at any rate, in legal theory it should be governed at present—by the treaty with the USA signed in 1972, which came into force in 1977. I refer to it as the 1972 treaty. The new 2003 treaty, which was signed on 31 March 2003, has not yet been ratified by the US Senate and is therefore not yet in force. Until it comes into force, the 1972 treaty remains in force. Under Article IX(1) of the 1972 treaty,"““Extradition can be granted only if the evidence””—" I pause to emphasise the word ““evidence””—"““be found sufficient according to the law of the requested Party to justify the committal for trial of the person sought if the offence of which he was accused had been committed in the territory of the requested Party””." For extradition from the United Kingdom to the USA, the American authorities therefore had to produce evidence sufficient to show what was then known as a prima facie case or, to use more modern wording, a case to answer. For extradition from the USA to the United Kingdom, the British authorities have had to meet the equivalent American test of probable cause. It is said that ““probable cause”” is a lower test than the prima facie case. It may be slightly lower but there is no significant difference in practice. I do not believe that American courts frequently try people who do not meet what we call the ““case to answer”” test. The situation under the 2003 treaty will be entirely different. For extradition from the USA to the United Kingdom, the situation is broadly unchanged. The United Kingdom must prove a reasonable basis to believe that the person sought committed the offence for which extradition is requested. That is the ““probable cause”” test. But for extradition from the United Kingdom to the USA, all that the Americans need to do is to produce,"““a statement of the facts of the offence””—" a statement, not evidence. The 2003 treaty is unfair because it is not reciprocal. If the Americans are unable under their constitution to extradite their own citizens without evidence, they should not expect us to deport people from the United Kingdom on a different basis. But I must point out that the debates about the 2003 treaty are hypothetical because that treaty is not yet in force. Indeed, it may never come into force because of lobbying against it by the ACLU and Irish-American groups in the USA. Although the Senate, while dominated by the Republicans, may not pay much attention to the ACLU, it is likely to pay a good deal of attention to the Irish-American lobby. Why is it, therefore, that somehow the rules under the 1972 treaty, which ought still to govern extradition from this country to the USA, no longer apply? It is because in December 2003 the Government took a unilateral and, in my view, inexcusable decision to designate the USA under Sections 71 and 84 of the Extradition Act 2003 by a statutory instrument. We opposed that statutory instrument at the time and forecast the troubles that we thought were likely to result, and have indeed resulted. The effect of a designation under Section 84 is that the judge hearing the case is directed by the Extradition Act not to decide whether there is evidence sufficient to show a case to answer. All that need be produced is information about the offence. There is a world of difference between evidence and information or statements of fact. Evidence can be challenged, tested and rebutted in court. A statement or information cannot be so challenged and, unless defective on the face of it, must be accepted at face value. In answer to the question, referred to by the noble Lord, Lord Hodgson, which the noble Lord, Lord   Marlesford, asked on 15 June, the Minister implied that there was no real difference between information and evidence. That is entirely incorrect. Does she accept that, as matters now stand, information provided to the United Kingdom by the USA cannot be tested in proceedings by cross-examination and cannot be rebutted by other evidence produced by the person whose extradition is sought? In the Lotfi Raissi case, the extradition of the Algerian pilot, who was accused by the United States of involvement in the terrible events of 9/11, was refused because of the weakness of the evidence when tested. Does the Minister accept that that testing would not now be possible and that the case might therefore have had an entirely different result? Does she also accept that information provided by the United Kingdom to the United States is treated as evidence that must be proved and can be challenged in court? In effect, what has happened is that a vital provision of the 1972 treaty has been overridden by government fiat while that treaty still governs the extradition relationship between us and the USA. The effect of that is to deprive defendants in extradition cases of rights given to them under the 1972 treaty and, incidentally, to remove from the US Senate any incentive to ratify the 2003 treaty. It has never been explained what the Government’s reasons for designating the USA in the December 2003 order were. I suspect that they were simply a matter of administrative convenience. The Government were, at the time, designating a large number of countries in which agreements were already in force to waive the need for evidence. Those agreements were all reciprocal. No doubt, it was thought convenient to include the USA in the list, on the assumption that the 2003 treaty would soon be ratified. I do not believe that the Government ever considered whether it was proper to waive the rights of people in this country to a protection granted them under an extradition treaty that was still in force. They were far too sanguine about its imminent ratification by the USA. The question asked by the noble Lord, Lord Hodgson of Astley Abbotts, is in fact a double question. The first leg of the question is: should the Government renegotiate the 2003 treaty, to ensure that it is not introduced until it is properly reciprocal? Secondly, whether or not that happens, should the Government revoke the designation of the USA for the purposes of Sections 71 and 84 of the Extradition Act 2003 under the order made in December 2003, unless and until the USA ratifies that treaty. The answer to the first question—I agree with the noble Lord, Lord Hodgson of Astley Abbotts—is ““Yes””. The answer to the second question is, I believe, even more plainly ““Yes””. Whatever justification there is for the 2003 treaty—the justification seems thin to me—there is no possible justification for unilaterally overriding the rights given by the 1972 treaty while that treaty is in force. The   Government should revoke the designation of the   United States under Sections 71 and 84 of the Extradition Act and require the USA to make a proper case, based on evidence, in support of the claims now pending for extradition.