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Police and Justice Bill

The reason is that there has been an unfortunate conflation between the failure to ratify the treaty and the terms that exist between us and them as a result of the 2003 Act. In the public mind, as has been evidenced in this Committee today, there is an erroneous belief that we have to remove our citizens to America without any evidence at all—that is the import of what is suggested—while they are not obliged to do the same for us. As there is antipathy for the failure to ratify, there is a lack of confidence—a reduction in confidence—that we and many of our citizens enjoy with the United States. It is damaging to our relationship for this confusion to continue. For that reason, we believe that it may helpful for me to make those points clear, on a face-to-face basis, in America. The fourth myth is that the basis on which cases such as the Enron Three have been decided is fundamentally flawed and that these three people are to be extradited because of a failure to ratify the treaty. That is simply not correct. The treaty is not yet in force but, as I hope the Committee will nowbe aware, the arrangements under the Extradition Act 2003 which set the current procedures for extradition requests to the United Kingdom fromall extradition partners would have operated to allow the extradition of the three people accused of involvement in the Enron fraud. So although in making the arrangements we implemented the part of the treaty that allows that to happen, the information requirement remains. The fifth myth is that the United Kingdom has insufficient safeguards for its citizens within the arrangements. That too is simply not true. I have set out the safeguards on many occasions but it may be appropriate if I quickly summarise them: identity, dual criminality, a request made for improper reasons, double jeopardy; injustice due to illness, ill health or passage of time, and the human rights provision. The human rights safeguard is important. I hear what the noble Lord, Lord Lester, says about the import of the case of the Enron Three, but that is not the full conclusion that one reaches when reading the decision. In this decision the court referred specifically to Article 8 of the convention and the comments were made in relation to that and not to the whole of the ECHR. At the end of the judgment, Lord Justice Laws said in terms that, in any event, for the reasons that I gave in dealing with the appeal against the judge, the defendants had and have no ECHR case. The court reached a general view that the defendants in the Enron Three case had no ECHR case. I know that the noble Lord, Lord Lester, will agree that Lord Justice Laws and Mr Justice Ouseley are nothing if not expert in the Human Rights Act and the ECHR. And that was their finding. I still believe that the Human Rights Act provides a very important safeguard regarding this treaty. The last two safeguards concern the death penalty and speciality. The sixth and final myth—although there seem to have been so many myths that it is difficult to know when to stop—is that people may be extradited without a nexus being established with the jurisdiction requesting their extradition. That has arisen in the Enron Three case. In fact, the courts must find that a request is extraditable. In the Enron Three case, the courts found that the alleged conduct had taken place in the United States, and of course the money which the men are alleged to have made was in Enron dollars and Enron shares. Even if the extradition is sought by any other country for offences that are extra-territorial, then we must recognise those offences also as extra-territorial under the extradition principle of dual criminality enshrined in the Act. In the judgment in that case, the court specifically dealt with those matters. One myth which seems to have been promulgated is that this was a British case. The judges dealt with that very specifically in upholding the decision in the Enron Three. In paragraph 47 they said: "““The losers were Enron and National Westminster Bank…""““This is a case where the evidence is to be found in the United Kingdom, Cayman Islands and the United States of America. In particular the other participants in the alleged conspiracy—Kopper and Fastow—are to be dealt with in, and are available to ""give evidence in, the United States. In these circumstances I think it more likely to be in the interests of justice for your clients to be tried in the United States””." The issue of forum was dealt with comprehensively and looked at, and it was a proper matter to be dealt with by the courts here. It is therefore simply not right that cases with no nexus with our country can be dealt with in this way. When the Act was in preparation, thought had to be given to the basis on which we differentiate between our extradition partners. We already had a large group of more than 40 countries from which we did not require prima facie evidence, consisting of most of the countries of continental Europe under arrangements set up by the Conservative Government in 1991, when they acceded to the Council of Europe’s European Convention on Extradition. Israel and South Africa, as associate members of the Council of Europe, also participate in the ECE. We have had an international obligation ever since to every country that has joined the ECE. That includes countries such as Albania and Azerbaijan, to take just the beginning of the alphabet. I remind noble Lords who may be concerned about how such requests are dealt with that the Human Rights Act applies. The question then arose of how to deal with non-Council of Europe countries with whom we have close relations. Those include not just the United States but also Australia, Canada and New Zealand. It is worth noting that those countries allow us to make requests not just on comparable terms but, in the case of New Zealand, on terms quite similar to those of the European arrest warrant; and for Canada simply on the basis of a statement of the case, which is probably rather less than probable cause. In sum, then, the removal of the prima facie requirement, although not appropriate for every country, is consistent with the faster and more flexible approach to extradition that is needed in the modern world. There is no benefit to anyone in our judges having to hold mini-trials on the facts in an extradition case when we can trust the requesting state to hold a fair trial of the evidence. That leads me to what I respectfully but regretfully say to the noble Lord, Lord Rees-Mogg, was a caricature of the American system. The American system believes in fair trials, legal representation, the ability of individuals to appeal and just delivery. To caricature the United States as a country that operates differently from that is most regrettable.