---

UK Extradition Arrangements

It is a pleasure to follow my hon. Friend the Member for Northampton North (Michael Ellis), who made a passionate defence of the current arrangements between the United Kingdom and the United States. I regret that although I agree with him on so very much, on this rare occasion we will have to part company in our legal and political analysis of the situation. I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing the debate. It is good to have the debate on the Floor of the House and to see a measure of consensus emerging as the debate has gone on. I have looked at the extradition treaty between the United States and the United Kingdom, so boldly defended by the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) who, sadly, is no longer in his place. As a former Home Secretary entering into that agreement, one would expect that. I have some difficulties with the treaty. The first of those, which has vexed many, is on the issue of reasonable suspicion versus probable cause. As everyone who has read the Scott Baker report will know, probable cause is reviewed on page 239, paragraph 7.35, where it is defined as"““a reasonable belief that a person has committed a crime””." There is a difference between a reasonable suspicion, which is the arresting standard in our jurisprudence, and America, where probable cause is a reasonable belief that a person has committed a crime. Belief is clearly a higher test than suspicion. As I know from my time in my books, a suspicion that someone has committed a crime is a sense that that might be the case. Belief is a higher level than suspicion. Suspicion is maybe, maybe not; belief is ““I'm pretty sure.”” I think we should be careful about that. Indeed, the Scott Baker report discusses the difference at some length but later glosses over it. This error, which in my opinion results from the use of different legal definitions in our two systems, has crept into the defence of the treaty. Indeed, His Excellency the American ambassador to the Court of St James, Louis Susman, has decided to take an interest in our internal affairs and wrote in The Daily Telegraph today that there is no real difference. I think that in a deep sense there is a difference. He states:"““In all extradition cases, the UK authorities always begin by considering whether an individual can and should be tried in the UK instead of being extradited. Once the UK authorities decide that the case should be tried in the US, all extradition hearings are then held in UK courts””," and then off the person goes. My difficulty with that argument is that I see nothing in the treaty that makes that the case. There is a provision in the treaty that states clearly, in my humble opinion, that just because no action is being taken in the UK the person can be extradited. Nothing states that. Paragraph 4 of article 2 states:"““If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances.””" It also seems clear, in the paragraph relating to no prosecution, that if charges are not made in the UK the person can be extradited, but even if charges were laid in the UK, my reading of article 5 is that there is no bar on extradition being sought from the United States in that case either. My fundamental trouble with the support being given to the US-UK treaty in its current format is very simple: if a crime is committed or alleged to have been committed on British soil so that the act of the crime, what lawyers call the actus reus, was in the UK, meaning that the deed was done in the UK, surely the proper forum is the UK. Many of the cases that we have discussed tonight and that have caused so much ire are cases where people in the UK have allegedly committed crimes for which the foreign requesting jurisdiction, typically the US, is asking for them, and we know that if a crime has been committed it has been committed in the UK. Surely the right place for that person to be tried is the UK, for all the reasons my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has given. For example, they have their friends, family and loved ones around one, they have a house, they do not have to pay to maintain themselves and they have access to legal aid. If people are shipped over to face a jury in Texas, as the NatWest Three or Enron Three were, they will know very well that they will have to maintain themselves, that they are far from their loved ones and best advisers and that they will have to pay all the fees if they want to see the court case through. When someone faces the massive likelihood of a conviction because there is a Texas jury and they are not from Texas, which regrettably can be the case, they will accept a plea bargain that is made to look very enticing and attractive. They can have a massively long sentence of multiple years on the one hand or a very short sentence on the other. What will they do? Of course they will accept the plea-bargain. I think that that is incredibly unfair. If people in that situation have committed a crime, it was in the UK and they should have been prosecuted in the UK. There is a provision set out in paragraphs 4 and 5 of schedule 13 to the Police and Justice Act 2006 that does not seem to have been commenced, and I wonder whether the Minister for Immigration might be able to enlighten the House on whether it is likely to be commenced, and if so when, so that there can be the kind of forum bar, which I and so many Members have spoken about this evening, to right that balance so that there will not be the lingering feeling of injustice. The other issue is the European arrest warrant, and I was glad to hear my hon. Friend the Liberal Democrat Member for Edinburgh West (Mike Crockart) say that it was an area for righteous renegotiation with our friends in Europe. I agree. We should renegotiate in the national interest and, indeed, in the interests of the people of this country, when it is right to do so, and that area should be looked at, if only because it has been so massively abused—for fishing expeditions, for investigating crimes and for wrongful processes. We therefore need to rebalance that and to get the balance right.