WEDNESDAY 4 JUNE 2003

BOB AINSWORTH MP, MR CLIVE WELSH, MR RICHARD CLAYTON AND MR PAUL REGAN

  40. If that safeguard has gone, then is not my Lord Chairman's question very important? What has now changed is that although the seriousness of the offence remains the same, ie one year or more imprisonment, it is no longer going to be necessary to show a prima facie case. There is no federal filter, we have heard, it is a matter of the state itself requesting extradition, and the federal authorities acting as a post office. What is the real safeguard against a misuse of the new extradited powers where there is no prima facie case and, in fact, the offences will have contributed because they are accompanied by five years' imprisonment? Where is the safeguard going to operate so far as the European Union Treaty is concerned?
  (Mr Ainsworth) This is a debate that we had during the passage of the Extradition Bill and the European arrest warrant scrutiny process that took place in the House as well. I think it comes down to whether or not, and to what degree, you believe that offences that attract a 12 month sentence are trivial. Obviously, people are not going to apply for extradition where they believe that it is not worth the administrative burden, but where they do and where the offence attracts a penalty of 12 months, we see no reason at the moment in the current climate, or any argument for lifting that threshold, and for saying at this point in time we are now no longer prepared to extradite for anything other than some higher threshold, wherever we choose to set it. I do not think that 12 months is necessarily a trivial threshold for being prepared to extradite.

  41. You are saying there is no requirement to show a prima facie case, so it could be a case of mistaken identity. I was just thinking of the Foreign Secretary who said he was not in a certain hotel in New York on a particular day. That sort of mistake, the wrong person charged. The whole procedure could be set in motion and not be checkable by a prima facie case?

  (Mr Ainsworth) It could be checkable and it could be challenged in a British court before extradition takes place. Of course, people can apply for extradition having got the wrong person, but that does not mean to say that extradition takes place and the person gets extradited to the United States, or anywhere else, without having had an opportunity to challenge the fact that they are not the individual who is being requested. That would result in a hearing here and the opportunity to challenge on identification.

  42. It is just the protection of the United States, is it not?
  (Mr Regan) The Extradition Bill, which will ultimately govern our extradition procedures, makes it clear that the first thing that the district judge has to do at the extradition hearing in this country, is take a view on the identity of the person before him. Is he the person whose extradition has been requested? If the judge is not so satisfied, the person is discharged. There is a separate question about prima facie evidence, whether the person—assuming they are the right person—has or has not committed the crime. The view has been taken that in respect of the United States as, indeed, with all Council of Europe countries, it is not for us to hold a mini trial. That is a point which has been debated during the passage of the Extradition Bill and was, indeed, as Lord Wedderburn knows, being debated yesterday.

  43. There are two issues, are there not?

  (Mr Ainsworth) Yes.

  44. It may be simply a mistake, the wrong person has been named and that can possibly be sorted out here?
  (Mr Ainsworth) Yes.

  45. But if it is the case that the wrong person has been charged, that is not so easy?
  (Mr Ainsworth) The issue of prima facie is different from that on identification, is it not? It really comes down to what jurisdictions we have confidence in and that they are jurisdictions that are going to deal with matters in a manner that we would want them dealt with.

  46. But there is an overlap one cannot avoid. The defence to a charge may be, "I was in England at the time of this offence", upon which somebody may say, "Well, we've got evidence that you were not". Is that the sort of issue which you would have to go to America to run?
  (Mr Ainsworth) Well, initial challenges as to identification and whether or not we have got the right person are able to be made in this country. What we need to avoid quite obviously is holding a trial here before the trial is then held in the requesting State.

  Chairman: I think it is quite a difficult line to draw.

  47. Could I explain my concern and then put my question. Whereas in Europe we have the European Human Rights Convention with at least the theoretical possibility of using it as a shield throughout the European Union States and beyond in Europe, the United States is not party of course to that Convention, nor has it made an international covenant on civil and political rights part of its domestic law, although it has ratified it, and the due process guarantees that the American Constitution, correct me if I am wrong, has not been held to apply to aliens in the same way as to US nationals, especially in the context relating to terrorism and matters of that kind. Therefore, my concern is that if we are lowering it, and I quite understand the arguments in general within the European Union, what safeguards are there built into the system to ensure that the minimum standard of due process will apply reciprocally between us and the United States given the background I have just tried to summarise?

  (Mr Ainsworth) I understand the point that you are making. What I would say is that currently, and nothing has changed as a result of any agreement that we are seeking to enter into, challenges can be made on extradition hearings in this country that ECHR obligations will not be honoured, that people will not have access to due process, will not have access to a fair trial. They are fundamental under ECHR and if a successful challenge can be made, then extradition can be refused and it can be refused by a British judge before the extradition takes place. I know that what you are saying is that that then does not reach beyond that to further down the line in the process, but certainly those initial arguments can be made against extradition in this country.

  48. Could I refine my point because it is very important, I think. I quite understand that before someone gets extradited to face inhuman or degrading treatment, punishment or the death penalty, the ECHR would allow the British judge to refuse extradition and indeed he would be obliged to do so. I understand that. What I am really asking is about the confidence that one can have that the United States' state and federal courts will apply similar due process, fairness and equal protection standards under their system given that my understanding is that the international human rights law that we apply has not been made part of their law, and their domestic constitutional provisions, even at federal level, are being very weakly applied to aliens, especially in a context like suspected terrorism. Therefore, when we are looking at this Treaty which is going to apply to the whole of Europe, we have to worry about the United States' standards as well as European standards. That is what I am trying to get at in a long-winded way, but I hope you have got my point.
  (Mr Ainsworth) There are two motives there in trying to streamline the process. One is that it is not only the traffic, the amount of business that we do with the United States, but it is the degree of confidence that we have in their system.

  49. Exactly.
  (Mr Ainsworth) If we did not have a level of confidence in the United States' judicial system, then we might not be looking at removing the prima facie requirement for evidence in extradition cases.

  50. I am really asking for more than a general statement and maybe it cannot be given today. I would be grateful to know that the British Government has looked into this and really is able to be confident that what I have said is untrue, that in fact the Government is satisfied that the American Constitution and standards of due process apply rigorously in the context of extradition as they would with US nationals. If that is the position, I am reassured, but if it is not the position, I would be awfully grateful to know.
  (Mr Ainsworth) I can try to return to your more detailed analogy.

  51. My Lord Chairman, is it inherent in the Government's position that it has no less confidence in the propriety, for want of a better word, of the judicial system in each state comprising the United States of America than it has with our European partners here in Europe because I think the questions so far have been addressed to the United States' judicial system, but, if I have understood you correctly, we have to look to the states, and each individual one, to ask ourselves the question, "Are we satisfied with the propriety of this judicial system?"?

  (Mr Ainsworth) Our main concern, Lord Mayhew, both in cases and our position with the United States has always been centred on the death penalty. We have not had instances of concern outside of that area which have led us not to enter into the agreement that we are seeking to enter into.

  52. I think it may be an oblique answer to this question, but could I ask for a direct answer to the question: are we satisfied?
  (Mr Ainsworth) The answer is fundamentally yes and in regard to the death penalty, we have never had a problem with regard to the assurances which have been given.

  Lord Mayhew of Twysden: I can, if it is of any interest to you or the Committee, give some personal account of that. We had a case called Soering two years ago involving Chestnut County, Virginia, and we did actually accept, and we were entitled to accept, the assurance of the Attorney General in that case and he reduced the charge to one which did not carry the death penalty.

  53. But there was a most unfortunate other case involving Paraguay when the International Court of Justice called upon the United States in an interim judgment not to enter into something in breach of a convention and the United States Supreme Court said, "We put that in the waste paper basket because it is an international court whose jurisdiction is not part of our domestic law", and the man was executed. That was about three years ago over a sharp descent into the Supreme Court. It is cases like that, from which I learned most of my law in the United States for which I am deeply grateful, which I worry greatly about and that is why I ask my question.

  (Mr Ainsworth) When I try to get into the whys and wherefores of a case that I am not familiar with, I think that that is slightly different from where the United States has entered into a clear commitment and given prior agreement that they would not enact a particular penalty or would not seek it in the first place. In those instances, we have never had a problem and I have not heard of instances, nor have any been brought to my attention, where other countries have had a problem either.

  54. Minister, just picking up one part of your answer to Lord Mayhew's question, you said that the only assurances which in practice had to be asked for or given related to capital punishment. Have there not been recent cases where assurances have had to be sought relating to the trial of a person extradited on terrorist charges in ordinary federal courts rather than in military courts? As you will know, there were some military courts set up in the United States for dealing with, among other things, terrorist offences. Have there not been cases where assurances have been sought?

  (Mr Ainsworth) In any extradition case we would need to satisfy ourselves that the person being extradited was going to be subject to due process and was effectively going to receive a fair trial.

  55. There might be an argument as to whether these military tribunals constitute due process or not.
  (Mr Ainsworth) The ECHR rights dictate that they will be given a fair trial and we would need to ensure that that was the case.
  (Mr Welsh) None of the requests from the United States that we have had to date have related to a military tribunal. They have all been in the normal courts.

  56. But the question is surely what would happen if they did? For example, the British nationals detained in Camp X-Ray have not had access to any due process and the federal courts have said that there is no jurisdiction, so suppose someone would be extradited in circumstances where the secret military tribunal under the presidential order were to operate, that would not satisfy the international covenant or the European Convention as an independent and impartial tribunal. Would we then be able to refuse extradition on that basis?

  (Mr Ainsworth) We would, we have and we would continue to be able to. If a case can be made that ECHR rights were not going to be protected, then extradition can be refused.

  57. Even in respect of due process alone?
  (Mr Ainsworth) Even in respect of due process alone, yes.

  58. I am sure that most of the Government agree that it appears to be correct that people regard it as democratically offensive to extradite anybody to face trial before a military tribunal, but the question is much more practical than the rather general, but very important question we have asked so far. I am concerned about the practical effects of extradition in two regards. The first is identification. If you divorce extradition from its lower level of what I might call `usual crime' to its upper level of international crime, there is a serious risk of identity theft these days as part of the international criminal's operation (see the case of the English citizen in South Africa, which led to the man being kept in prison there for three or four weeks unnecessarily), so my first question to you is: is it not appropriate, therefore, to consider a code of practice to be applied by both the US and European authorities, a common code of practice as to the best way of seeking reasonably to establish identity rather than face several dreadful cases which then produce a code in a year or two's time? The second point is one which does really concern me about the test of reasonable basis to believe that an offence has been committed as the new test. It is highly likely, as occurred in the case of a Middle Eastern man last year, that the court will ask the requesting State for more information. Sometimes it comes and sometimes it does not because there is not any to come. That man was in prison for six months and then the proceedings were abandoned. Question: what system can be put into place to ensure that extradition requests do not result in people being kept in custody for unreasonable periods of time pending further enquiries?

  (Mr Ainsworth) First of all, if we talk about this issue of the military tribunal and whether or not we believe that we have got adequate safeguards against that, extradition will only take place, whether it is the United States or any other extradition partner, on two grounds: when a case is presented that an individual has escaped from custody and still has a sentence to serve; or when they are wanted for the purposes of putting them on trial. At that point it will be apparent who wants them and where the trial will be required to be. If what is being proposed is in any way in breach of their ECHR obligations, extradition will not take place, so unless there is a proper judicial process that they are going to face or a fair trial which they are going to face, then they will not be extradited, so you are absolutely right and if anybody wants to see a situation where people are extradited from this country and are not going to face a fair trial in the country they will go to, and we are convinced of that, it has not been able to happen under our existing arrangements and it will not be able to happen with regard to anything we arrange now. With regard to identity fraud, I think it is a very big challenge to us in so many areas now, but we are trying to speed up all of our arrangements, not only our co-operation, our information arrangements as well as the speed at which people are brought before trial in order to avoid unreasonable delays and in order to avoid people being locked up pending further information for unreasonable lengths of time, contained within the Extradition Bill are clear timetables by which people will be brought to decision in order to try to avoid those unreasonable circumstances.

  59. Can I just pick up that answer. I do not doubt for a moment that the intention is that if the circumstances appear to show that extradition would be a breach of ECHR, then extradition would not take place, but the circumstances of it would have to be shown to the magistrate or whoever was taking the decision in order to reach that particular state, but is the Government satisfied that the terms of the agreement that has been negotiated between the European Union and the United States would permit refusal of extradition on that ground?

  (Mr Ainsworth) We are absolutely satisfied that the agreement that we have entered into in no way can impinge upon our ability or the ability of the judge who is looking at the case to decide that he has not received adequate assurances with regard to ECHR obligations and is able not to extradite in those circumstances.