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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 644-i
House of commons
TAKEN BEFORE THE
Home Affairs Committee
Tuesday 30 November 2010
Rt Hon David Blunkett MP
Jago Russell, Jodie Blackstock and Shami Chakrabarti
Evidence heard in Public Questions 1 - 78
USE OF THE TRANSCRIPT
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Taken before the Home Affairs Committee
on Tuesday 30 November 2010
Keith Vaz (Chair)
Mr Aidan Burley
Mr David Winnick
Examination of Witness
Witness: Rt Hon David Blunkett MP, gave evidence.
Q1 Chair: I call the Committee to order. This is a one-off session on the extradition issues, which will also cover the European Arrest Warrant. I refer all those present to the Register of Members’ Interests where the interests of all Members are noted. Are there any specific interests that Members of the Committee wish to declare before we start?
Our first witness today is David Blunkett . Mr Blunkett , thank you very much for coming to give evidence to this Committee.
David Blunkett: Good morning, Chairman. Thank you.
Q2 Chair: We have called you to give evidence today because you were the Home Secretary at the time the extradition treaty-specifically the treaty with America-was signed. Of course, if there are other issues to do with other treaties or the general issue of extradition, I’m sure Members will want to ask you questions on that as well.
If I could start with this question: on reflection, do you think that in signing the treaty we gave away, on balance, more to the Americans than was anticipated at the time?
David Blunkett: We’re all working from hindsight, including virtually all-not entirely, but virtually all-parliamentarians in both Houses at the time, and I’m subject to reflections in hindsight like everyone else. Firstly, I think it was a mistake not to indicate that we would not ratify ourselves until we were clear that Congress was going to do so and that left a period of limbo; secondly, that we’d more readily explored the world of cyber-in other words criminal activity which goes beyond the normal geographic boundaries; and, thirdly, given the change in technology, whether there could have been greater understanding seven years ago about the potential use of that technology to deal specifically with the US circumstance, where they have a particular view of anything that happens in the rest of the world that affects them.
Q3 Chair: But with the knowledge that you have at the moment, if you were re-signing this treaty, would you think again about the balance that was struck between what we are expected to do in sending one of our citizens to America and what the Americans are expected to do as far as they are concerned?
David Blunkett: If I were doing it now, I would reflect on the experience, the debate, the discussion over the last seven years. I have to say that we were trying to achieve a balance-particularly given that the treaty had run out-in terms of ensuring that UK citizens, or anyone that we chose to transfer back to US jurisdiction, were not subject to the death penalty and I do think we need to bear that in mind. It bore very heavily with me and I think it’s very important. So the US were giving up something that, whether we like it or not, they consider to be a part of their judicial armoury and something that many states take as being a given, regrettably. So we had to protect interests of people in the most obvious way possible, namely their life.
I think it’s very important to understand this. The seven years have taught me one thing, which is that the theory of what we signed may have been improved but the practice has been very different. I can’t think of anything in the seven years, including the very high-profile cases that have been dealt with-like the NatWest Three or current ones-where the Extradition Act and treaty have taken away someone’s rights in a way that wasn’t the case before.
Q4 Chair: But, accepting all that, you welcome the Government’s review of extradition, bearing in mind the last seven years?
David Blunkett: Yes, I do.
Q5 Chair: And do you think that is an opportunity maybe to get the balance right?
David Blunkett: I think it’s an opportunity, not just with the American treaty and Act but also with the European Arrest Warrant, where we thought we’d got de minimis rules in terms of what would be subject to the EAW. We believed that people would act rationally in terms of the time that had elapsed before cases were pursued. In both those cases I think there is room for improvement with the EAW, just as there would be in reviewing the treaty with the US. And, of course, the odd circumstance with the European Arrest Warrant is that it doesn’t have to be applied to the country of origin in which someone is living; people can be picked up elsewhere. I have a constituency case at the moment where somebody was picked up in Spain for an EAW issued by Luxembourg on civil rather than criminal grounds-because they have a dual civil and criminal procedure-which wasn’t issued in this country. So there are some anomalies that we certainly didn’t see seven years ago in either of those Acts.
Q6 Chair: Indeed. One of the points of having the new treaty was to take some of these decisions, or all of these decisions, out of the hands of politicians-
David Blunkett: Yes, it was. And look where we are now.
Chair: -and give it to the judges to make this decision. I wonder whether you have been following the WikiLeaks issue, because one of the leaked cables refers to a one-to-one appeal by Prime Minister Gordon Brown. Clearly, you weren’t the Home Secretary when this was done but I would like your comment on this: Gordon Brown’s one-to-one meeting with the American ambassador, asking the Americans to reconsider the case of Gary McKinnon. If indeed that was the purport of the new treaty-to take it out of the hands of politicians, placing it in the hands of judges-were you surprised to learn from these cables that Mr Brown met with the ambassador seeking to get that decision changed?
David Blunkett: No, I wasn’t. I agreed some years ago that it was a really good idea, for all our sakes. I remember discussing with Ken Clarke in a private meeting that it would a good idea not to end up with these cases being a political football. But inevitably in life-as we see right across the board, not just in these issues-you can’t ignore something that becomes extraordinarily high profile. As I’ve already indicated, in cases such as that of Gary McKinnon-I’m not going to deal with the specific case, but in such cases-there is massive public attention. And although the treaty itself is not responsible for the immediate removal of Gary-otherwise he wouldn’t be here-cases like his would have been dealt with summarily. There was an issue for senior politicians to make representations.
I have spoken to the Department of Justice myself and I communicated with the previous Home and Justice Secretaries. I won’t say on what basis, except to say this. Were we looking at a case like Gary McKinnon’s seven years ago and someone had put to me, "In this cyber age it is possible for someone to commit a crime from one jurisdiction directly into another with substantial potential effect. Do you want to try and deal with this in a different way?" we probably would have reflected on that. We certainly can’t say that we can’t have a system where a country that is badly affected can’t expect to take action, because where would that leave us with China, for instance?
Q7 Chair: So you would retain that discretion: the ability of a Prime Minister to see an ambassador or, indeed, David Cameron when he raised it directly with President Obama recently? You want to see that bit of discretion retained?
David Blunkett: In order to try and find a solution. For instance, is it possible in the modern era, with technology that has advanced enormously in the last seven years-we forget just how enormously-as has cyber-attack, which has been reflected in the Government’s recent very welcome statements on organised crime and potential terrorism with cyber-attack, that we might be able to use video-conferencing much more effectively if someone is in a circumstance-it might arise in all sorts of arenas-where the court hearing is in one country, the jurisdiction from which the attack took place is in another and they are friendly countries with a proper treaty arrangement?
Chair: Indeed. Thank you very much. You have been very helpful so far. If you could keep your answers a little briefer, I would be most grateful.
David Blunkett: Only because it is dangerous territory I’m on, Chairman. So I’m trying to give as full an answer as possible.
Q8 Lorraine Fullbrook: Thank you, Chairman. David Blunkett, I have two questions. The first one, going back to your point about the death penalty, I suggest this is a spurious argument because, as you know, there is an absolute prohibition, unless the Secretary of State receives an adequate written assurance from the requesting state that the death penalty will not be imposed or not be carried out if imposed.
David Blunkett: Well, we wouldn’t have a treaty. I mean, what you are really raising is: do you believe in extradition arrangements on the lines we’ve developed with the US and with the rest of the European Union?
Q9 Lorraine Fullbrook: My second question goes to that. What exactly did you hope and expect the new treaty and the Extradition Act to deliver, given that the new treaty requires from the United States, when requesting extradition from the United Kingdom, probable cause in their law courts, but there is no corresponding requirement by the United Kingdom from the United States-a blatant imbalance when we signed the treaty.
David Blunkett: No, that’s because of the nature of the US judicial system, not because we decided that we were going to have an unbalanced Act. That applies with the US, whether we had renewed the treaty and introduced the new Act or not. And, as I’ve already indicated, in the seven years since the signing of the treaty and the passage of the Act, I can’t think of a single case where the judicial process in this country has not been explored to the full.
Q10 Lorraine Fullbrook: But when you signed the treaty did you not understand that you were giving more rights to American citizens and you were giving away British rights of British citizens, as a Minister of State at the time?
David Blunkett: As Home Secretary I understood entirely what we were doing from our position, in terms of what was available to British citizens and, as has been explored over the last seven years, they have been able to use their rights to the full, which is why I am confident in being able to say what I’ve said this morning. Yes, I was aware that the judicial system in the United States was different, but we accept their judicial system as being fair and democratic and if it isn’t, then I think it is beholden on Committee members to say so and why they believe that.
Chair: Are you done?
Lorraine Fullbrook: Can I carry on, Chairman, please?
Chair: One more question quickly.
Q11 Lorraine Fullbrook: Complete reciprocity has never been a feature of our extradition arrangements, according to Baroness Scotland. And I suggest that the United Kingdom, when you signed this treaty, were putting the United States on a par with Albania, Turkey and Romania.
David Blunkett: You can presume what you like, but the former Attorney General is entirely right: we haven’t. And I’ve given an example this morning in relation to Luxembourg.
Q12 Lorraine Fullbrook: But you think it is okay not to have prima facie evidence given to the UK?
David Blunkett: I’m not using terms like "okay". I think it is very wise for countries in the modern era to have sensible extradition arrangements with friendly countries.
Q13 Alun Michael: I have two questions. The first is-going back to this question of principles because this is a two-way process, isn’t it-do you stand by the basic principles of reciprocal extradition arrangements and how would you improve the system if you had the opportunity now?
David Blunkett: Reciprocal arrangements, in terms of accepting the democratic nature of the judicial process and the right to request and to have that request for extradition responded to, yes, I do accept that. But I think we just explored complete reciprocity in terms of the nature of the judicial systems. We wouldn’t get anywhere if we didn’t do that. We have a different system to Scotland, of course.
Q14 Alun Michael: The other thing is that you mentioned in your earlier evidence internet-related or cyber-crime. Would you agree that internet-related crime has to be dealt with via extradition processes, if we’re not to have very heavy international legislation as an alternative?
David Blunkett: Yes, I would and that’s why I’m just posing ideas as to how we might deal with that in the modern era. We certainly can’t ignore it. It’s something entirely new that would not have been expected years ago, and I think we’re all coming to terms with that.
Q15 Mr Winnick: You said, Mr Blunkett, that a condition that you consider-as indeed we all would-that was favourable to the signing of the treaty is that we wouldn’t hand over anybody who would be subject to the death penalty. Would I not be right in coming to the view that no British government could possibly have agreed otherwise?
David Blunkett: I’m hoping you are, but we have had debates over the years, before my time in Parliament, on these issues. We’ve obviously signed up to the European arrangements from 1951 onwards, which is why, of course, we don’t transfer people out of the country to those areas of the world where we believe they’ll be killed or tortured, and that gives us a moral stand that we need to stand by. The issue we were dealing with in 2003 was whether you had any extradition arrangements with the US or not.
Q16 Mr Winnick: On the substance of the matter, the point that has been repeatedly made, and not only confined to what at the time were the Opposition benches, is that the treaty is hopelessly-I emphasise "hopelessly"-one-sided; that under the treaty American prosecutors no longer need to show there are reasonable grounds for someone to be extradited to their country. The United States only has to demonstrate that there is a statement of the facts of the offence and that is the end of it.
David Blunkett: Well, the judgment has to be made whether probable cause has been demonstrated, whether there is a case to be heard, and I have already said this morning that our judicial process has worked extremely well over the last seven years in protecting people’s right to go through and challenge that assumption. That is what people have done over the last seven years.
Q17 Mr Winnick: But, if it’s so as far as a request for extradition made by the United States is concerned, would I not be right in saying that the treaty means that anyone that the United Kingdom requires to be extradited from the United States we will have to produce far harder evidence than otherwise to the United States?
David Blunkett: That is the issue of not having full reciprocity and you are right about that. That is the side of the coin where there is an argument to be made: should we have demanded that their judicial process should be weakened in order to have absolute complete balance? We can have a discussion about that. That is a fair point, but it is a different one to complete imbalance.
Q18 Mr Winnick: Why did you sign a one-sided treaty, Mr Blunkett?
David Blunkett: Sorry, you put to me that there was a complete and total imbalance and you then went on to use the presumption that people from this country would simply be removed almost on the nod and they weren’t, and they haven’t been and they won’t be. That is the point I am making back to you. Yes, it is true; it is harder, theoretically, to get people out of the United States to Britain than it is out of Britain to the US. In practice that hasn’t been the case.
Q19 Steve McCabe: Some people argue that we should just abandon the idea of speedier extradition with countries where the judicial systems are different. What do you think would be the downside of taking that advice?
David Blunkett: Well, the inability of friendly countries working with us in every other sphere, including in Europe, who have signed up to the ECHR, such as France. When I came in as Home Secretary, one individual had been resisting extradition to France for nine years.
Steve McCabe: Thank you.
Q20 Chair: On the issue of other European countries, there is the case of Learco Chindamo, the young man who murdered Philip Lawrence. We do have a problem, do we not, with other European countries where somebody has been resident in this country for a long period of time? The public may feel that this particular man should be sent back to his country of origin, but European law prevents us from doing so.
David Blunkett: Yes, it does. It is much wider than the discussion we are having this morning but I think there is an issue. Of course, then you get into questions of where freedom of movement ceases: what individuals no longer have freedom of movement inside the EU? A very interesting theoretical question, which I haven’t thought enough about to give you a sensible answer this morning.
Q21 Chair: Do you think this kind of issue ought to be pressed at the JHA when Ministers go over there?
David Blunkett: I think it should be explored, but I think it would need someone with greater legal knowledge than I currently have available to me to give you a sensible way of dealing with that.
Q22 Nicola Blackwood: As we’ve already mentioned, the Home Secretary has announced a review of the extradition process and in this discussion we have heard a few suggestions from you, such as looking at the EAW de minimis requirement, which I think would be particularly relevant for extraditions to Poland. I understand the Polish system requires a trial for every criminal allegation, no matter how trivial, which is obviously quite out of step with the way in which we conduct justice in this country. So where exactly do you think we could reframe the extradition process in order to gain the advantages that you originally intended, but to get rid of some of these very real disadvantages, which we’re observing and which are impacting British citizens?
David Blunkett: Firstly, a time limit on when extradition can be triggered, particularly in circumstances like Gary Mann, where arrest had already taken place and release had been authorised and then six years later he’s back in the same position. I think that is not an acceptable situation-not one that any one round the table in 2003 foresaw.
Secondly, on the issue of de minimis, we had a struggle with this because, just to give an example, Germany have very strict laws in relation to pronouncement-particular provocative speech-arising out of their experience with the Nazis, and we had to debate at the time how we would deal with the situation, which arose later in relation to one of our so-called historians, in terms of what would happen in those circumstances. I’m much more interested in the practical daytoday of someone who would receive a community sentence or even a warning here, but who might be given a prison sentence in another European country, but would be subject to the EAW. I think we have to negotiate our way through that so that we have fewer cases-and you’ve used Poland as a correct example-where people find themselves caught up in someone else’s judicial system way beyond what would have been the case here.
Q23 Nicola Blackwood: I’m struck as well, though, that in the amendments to the Police and Justice Act in 2006 there was a measure put in to try and prevent extradition where a significant part of the alleged offence had been committed in the UK, but it required that a resolution of both Houses would be passed in order for that to commence. That didn’t happen. Could you explain why?
David Blunkett: No, I can’t. I’d need notice of that question because I was no longer Home Secretary and, although I’ve taken a real interest in both home affairs and justice since, I haven’t to the point where I can give you an answer to that question.
Q24 Nicola Blackwood: Do you think that we should be trying to move forward on that point?
David Blunkett: I think it’s important that, where the substantive nature of offences takes place on our home territory, we deal with them as a domestic offence.
Q25 Chair: Mr Blunkett, let us get this right for the record. You signed the treaty, given the circumstances that were before you, having accepted, of course, all legal advice that every Home Secretary would have and I’m sure you had much legal advice at the time before you signed it. But with hindsight and with all that has happened, in terms of the evidence-for example, just three Americans have been brought to Britain under the Extradition Act since 2004, whereas 28 UK nationals have gone the other way-if that treaty was brought before you now and placed before you, would you sign it again on the same terms?
David Blunkett: I would raise the issues that have been raised this morning, in the context of the answers I have given you, Chairman.
Mr Winnick: A very good answer, Mr Blunkett.
Q26 Chair: You are quite satisfied that, even though the Act took politicians out of the sphere of decision making, because of the workload that Ministers had to face with looking at every single extradition case, you are quite happy that Prime Ministers and Home Secretaries are able to make representations and intervene in cases of this kind?
David Blunkett: I think it’s inevitable and I think it’s because new cases, in new circumstances-moving on as the world is-throw up issues that sometimes could have been, but more often could not have been, seen to have been the case when treaties were signed, which is why I welcomed the review when the Home Secretary announced it.
Q27 Chair: Finally-I know you don’t want to comment on individual cases, but you must have a view, based on what you read in the newspapers and the documents that you have seen-as far as the Gary McKinnon case is concerned, do you think that would be an appropriate case for a Home Secretary to basically say, "He can't go back."?
David Blunkett: The reason why the current Home Secretary is taking her time over it is because of the nature of the complications and the difficulty that has been presented to previous Home and Justice Secretaries since the case arose-not just in terms of our relationship with the United States, which is critical to Britain’s well-being, but because of the implications down the line and the precedent set. I have said this morning, Chair, as far as I can go, I think it would be a good idea to explore whether, if the US insist that the case should be heard within US jurisdiction-which is their right and would have been before the treaty was signed-we might be able to use new technology as a way of getting round what is a very specific case, with a specific claim of illness arising out of Asperger’s and the danger to an individual’s health. I think that is why the Home Secretary is taking her time.
Chair: Indeed. Mr Blunkett, you’ve been extremely helpful. Thank you very much indeed for coming in this morning. Thank you.
Could I call to the dais our next witnesses from Fair Trials International, Justice and Liberty?
Examination of Witnesses
Witnesses: Jago Russell, Chief Executive, Fair Trials International, Jodie Blackstock, Senior Legal Officer, EU: Justice and Home Affairs, JUSTICE and Shami Chakrabarti, Chief Executive, Liberty, gave evidence.
Q28 Chair: Thank you very much for coming, Mr Russell, Ms Blackstock, Ms Chakrabarti. You’ve heard the Committee’s exchange with Mr Blunkett and I think that we have some questions to you. You don’t all have to answer every single question, but if you do I’d be most grateful if you could be as brief as possible. We are very keen to find differences between all of your organisations, rather than necessarily agreement, simply because I think we would like to get as balanced a picture as possible.
If I could start by asking: why do people keep maintaining that the extradition treaty benefits US citizens more than British citizens? Mr Russell?
Jago Russell: I think because they smell a rat. You don’t need to look very hard at the treaty to see that there’s a safeguard in that treaty that exists if there is an extradition from the United States but doesn’t exist the other way round, and that, quite rightly, strikes a chord with the British public and seems to be unjust. If there is a safeguard that the United States demands for people being extradited from that country, then they should expect that other countries might feel fit to demand the same safeguard the other way round.
Q29 Chair: Ms Blackstock?
Jodie Blackstock: I should say my experience is in the European Arrest Warrant, largely over the US-UK extradition treaty arrangements. But I think it is right to say that our concern largely rests on the forum issue, more than anything, in relation to the fact that there was this amendment that has rightly been pointed out by Ms Blackwood. Without that, there is a real possibility that offences that are occurring in this country are still at risk of being sent back to the US under the treaty arrangements, where we would certainly consider that they ought not to be. But there are real human rights implications that I’m sure Liberty can speak to you on better than I can.
Q30 Chair: Yes, we will come on to the European Arrest Warrant slightly later. Ms Chakrabarti, is it unfair? Does a US citizen get more out of this than a British citizen? Is it unbalanced?
Shami Chakrabarti: It is unbalanced but, of course, it’s not just about reciprocity, because we don’t want a race to the bottom. The Americans have it right. They have a protection that their people should have and our people should have as well, which is, in my view, that no one should be taken to another jurisdiction-whatever that jurisdiction is, even if they have a wonderful trial system-without a prima facie case being shown in a local court. Because even if you get a wonderful trial elsewhere in Europe or on the other side of the world, being taken from your home, your job and your community, possibly to another language, whatever it is, is a punishment in itself. We are people, not robots.
Q31 Chair: Do you think the Act should be repealed or do you think that there ought to be changes made to it?
Shami Chakrabarti: To some extent that is a matter of drafting, but there needs to be a fundamental change. I want to say, at the outset, that I do support the idea of extradition and I do have some sympathy with Mr Blunkett. I listened to his evidence carefully. I’ve been a student of home affairs for many years, and years ago it was a very convoluted system. It was particularly convoluted because there were roles ascribed both to politicians and to the courts, and there was inevitable ping-pong between the two. Whenever you give the Home Secretary or other politicians lots of discretion, inevitably there can be judicial review of the exercise of that discretion.
I think the mistake was to squeeze out the discretion of the courts. I think it would be better to take politicians out of something that is essentially a legal process, but give sufficient discretion to the courts so that, first, nobody goes anywhere without a prima facie case; secondly, no one goes anywhere if the offence alleged would not be an offence here in Britain; and thirdly, leave the courts the discretion to refuse to extradite in cases, such as Gary McKinnon’s, where justice would be better served by dealing with him here at home.
Q32 Chair: Mr Russell, what is surprising is that when Alan Johnson, as Home Secretary, was asked by Members of this House, including members of this Committee when he came to give evidence, about intervening in these cases, he was very clear that the ability of a Home Secretary to intervene was very limited. We hear this morning-thanks to WikiLeaks-that Prime Minister Brown had had a meeting with the American ambassador pleading Gary McKinnon’s case. Is this a surprise to you that this was going on?
Jago Russell: No, it’s not a surprise to me. In fact, I am delighted to hear that that has happened. What has happened, as Shami has rightly explained, is that many of the safeguards that you need for a fair and effective extradition treaty have been squeezed out of this Extradition Act and, as a result, the courts don’t have the necessary discretion to prevent extraditions where the result would be injustice. Where that happens, frankly, you cannot sacrifice an individual to the principle that this should all be dealt with by the courts. You can’t sacrifice an individual like Gary McKinnon or Gary Mann, which Blunkett referred to, to that constitutional issue. So, I’m not surprised. I know that there are many cases in which this is the way that diplomacy works, in which individual cases that are considered to be unjust are sought to be dealt with at a diplomatic level. They should be dealt with-
Q33 Chair: Why do we need to change the Act? If, at the end of the day, an ambassador can be called to see a Prime Minister-and indeed Mr Cameron raised this with President Obama the last time they met-surely we should just leave the Act as it is and allow this inherent ability of Prime Ministers and Home Secretaries to make representations. Why should we change it?
Jago Russell: I think there is a very simple, practical reason. If you look at the number of extradition requests that the UK is dealing with every year, it would simply be impossible. There were 1,000 arrests just under the European Arrest Warrant scheme in 2009-10. You couldn’t realistically expect the Home Secretary or diplomatic services to get interested and to make representations on all of those cases. But there is also a constitutional issue. Ideally, the court should have the discretion to deliver justice in individual cases-to hear both sides of the story, to consider the evidence and to make a public and reasoned judgment. The problem we have now is that they simply don’t have the powers and are not using the powers that they have in order to do that.
Q34 Lorraine Fullbrook: You will have heard my position. Frankly, I’m astounded that the US-UK extradition treaty was signed in its state at the time. There is currently a review ordered by the Home Secretary. In your view, what amendments would you like to see in that review, so that we can move forward? I know what my views are, which is really about the prima facie evidence. Across the board, what amendments would you like to see out of the review?
Shami Chakrabarti: As I have said, in principle I think that no one should go to another jurisdiction, whether within Europe, to the United States or anywhere, without those three factors: prima facie case, dual criminality and this ability of the courts to say justice would be better served in the particular case here at home. In relation to the United States, that can all be dealt with by bilateral negotiation. It’s not an EU issue. Frankly, even before you renegotiate the treaty with the United States, you can deal with the third point-the Gary McKinnon point-which is forum. It is possible even under the existing treaty with the United States to put that little bit of mercy back into the system so a court can say, "The facts of this case relate largely to activity in the UK, whether on the internet or otherwise, and this case can be dealt with here." So that forum amendment-I think Ms Blackwood mentioned the amendment from 2006-if that were activated immediately, there’s no requirement to renegotiate the treaty. That could happen tomorrow to help some future cases. It’s not perfect but it’s a start.
Q35 Lorraine Fullbrook: I agree entirely, if I could ask the other two witnesses, please?
Jodie Blackstock: As I say, the caveat still applies: it’s not my area of expertise. I would certainly agree, the same issues that Shami has raised there are important. I think it is right to acknowledge that there are safeguards within the treaty as it exists, and to scrap that treaty and start again would be unnecessary. Most of it does work in practice, in terms of the safeguards that are there-for example, things like ensuring identification of the right suspect. We still need to have a reasonable suspicion in this country under the treaty arrangements. And, indeed, taking the treaty with the Extradition Act, the two together work well, save for the elements that have been identified.
Q36 Lorraine Fullbrook: Of course, reasonable suspicion isn’t the same as probable cause or prima facie evidence.
Jodie Blackstock: It’s not the same as prima facie evidence, in that you would expect a court here, in any other category 2 case, to be able to look at the evidence that is going to be put before a court in another country upon which to try that person. Of course, reasonable suspicion goes to whether there is an offence in the first place that can even be prosecuted.
Jago Russell: On this reciprocity point, it’s not just an issue of principle; it is also a practical issue. In fact, former District Judge Workman recently gave evidence to this Committee and said that in the Lotfi Raissi case, it would not have been possible to have prevented Lotfi Raissi’s extradition to the United States under these new arrangements.
Q37 Chair: For those of us who don’t have such long memories, briefly what was that about?
Jago Russell: Lotfi Raissi was wanted by the United States on suspicion of having been involved in training people involved in 9/11. When the British courts looked at that case, because there was a requirement to provide basic evidence of guilt, the courts in the UK threw it out and said, "We’re not going to extradite him because there’s no evidence." So it’s not just a principle issue. In practice, it can and has made a difference. In terms of the amendments in the review, for us at Fair Trials International the key issue is whether or not this review is going to get to grips with the issues around the European Arrest Warrant and, in particular, whether the review will make recommendations for amendments that are needed at European level to deliver a system that is just and fair.
Chair: We are coming to the European Arrest Warrant very shortly.
Q38 Mr Burley: The case of Learco Chindamo has been in the papers again recently-as you know, he murdered Philip Lawrence-and, as I understand it, it is article 8 of the ECHR that is preventing him being sent back to his homeland, despite being a known and highly dangerous criminal, because he now has a settled life in the UK. Can you understand the public’s anger about this situation and do you think it’s time that we now amend the Extradition Act, so that if you take away someone else’s human rights-in particular the most basic human right, the right to life-you forfeit some of your own human rights?
Shami Chakrabarti: I have to disagree with that interpretation of the judgment, which I have read. That judgment was essentially, as Mr Blunkett suggested earlier, about free movement within Europe. Article 8 was mentioned in passing, but it is essentially a free movement within European Union issue.
Leaving the law aside, as a matter of practice I think in that case Mr Chindamo was a very small child when he first came to Britain, so there is an issue there about whether you’re going to play nationality with perhaps a baby that came or a toddler. My bottom line on this-and this is something I would try and express better to the public-is that dangerous criminals shouldn’t be on the Eurostar. They should be in prison. Then you can argue about which country should be keeping them in prison, but that is the issue you should be debating. He doesn’t need to be on the Eurostar. If he has done what is alleged, then no doubt he will be recalled to prison.
Jago Russell: I haven’t read the judgment but I agree with Shami’s comments and I have nothing to add.
Q39 Mr Winnick: To the Director of Liberty, I wonder-recognising that those who don’t particularly like the Human Rights Act being incorporated into British law may seize the opportunity of raising the question of the person who murdered Philip Lawrence-do you recognise not only the public feeling but, what is perhaps even more important, the feeling of the widow and the way she feels the law has not acted in any way to recognise the deep feeling? She has lost a husband and her children a father. Many of us consider Philip Lawrence in the same way we consider Stephen Lawrence. Both were murdered and both were very brave people. I a m just wondering if there is some aspect of the law that would allow the person I ’ ve mentioned to be extradited.
Shami Chakrabarti: Just to be clear, this is not an extradition case. The argument that was at large in this case was the question of deportation rather than extradition. So this is whether the British Government could deport this criminal, as opposed to whether another government was requesting him to seek trial. There is a subtle but important difference there. My heart goes out to Mrs Lawrence. I think she’s been appallingly treated, not just by the criminal but, frankly, she has been misled to some extent by the media and I think maybe by-
Q40 Chair: In what way was she misled?
Shami Chakrabarti: I am now relying on my memory of the original events-the original row a few years ago-about the fact that this man would not be deported. I think she had been given some information or suggestion that Mr Chindamo could be deported and then that wasn’t an option in the end. I also think, more recently, there are suggestions she wasn’t given sufficient information about the time of release, where he might be living and very real human concerns.
Chair: Mr McCabe, here, looks very puzzled.
Q41 Steve McCabe: I would just like to clarify. You said that he had been misled by the media-the media told her that he could be deported and gave her that information or someone else. I didn’t quite understand that.
Chair: Can we draw this to a close because Mrs Lawrence isn’t here. Mr Russell, do you have anything to add?
Jago Russell: No.
Q42 Mr Burley: I think she has been dreadfully treated and I recall her being berated by the Probation Service for not showing enough remorse in public. I mean it’s absolutely outrageous. I agree with you, Shami, in terms of leaving the intricacies of the law to the side for the minute. But, in terms of free movement, you mentioned the Eurostar. Don’t you think we have a right in this country to say: first, we don’t want to pay for this person to be in a prison here because there is a cost there and, frankly, they should be deported and some other taxpayers in their country of origin should pay for that prison sentence; and secondly, if he has been let out and then commits more crimes, that is further weight to the argument to say he can be let out to commit more crimes in the country of origin?
Shami Chakrabarti: This is essentially a question about the European Union and the bigger question about how much integration and how much free movement you’re going to have within the European Union. It has to be said, in fairness, that you can, in exceptional cases, deport people to other countries even within the European Union. I think what happened in this particular case, as I recall, was, because the man in question was very young when he first came to Britain, it was not considered to be an appropriate case. But it was a judicial decision. It was not considered, rightly or wrongly, to be appropriate for deportation.
Chair: We will come on to the European Arrest Warrant shortly. Ms Blackstock, do not worry, we have questions for you. But before that Alun Michael has some questions.
Q43 Alun Michael: Two questions, really. The first one is-returning to extradition-looking at it from the point of view of the UK victim, what victims want is an issue put to bed quickly so that they can get on with their lives, and justice delayed is justice denied, as we are always told. So with all the caveats and concerns that the three of you mentioned, isn’t it important to speed up extradition in terms of quicker justice for the victims of crime in the UK?
Shami Chakrabarti: I think that speedy justice is important for everyone-for defendants and for victims-but I also believe that one can have speedy justice that is also proper justice and is fair. My basic proposition is that you can speed up extradition by avoiding this constant interchange between political discretion and judicial review by giving proper discretion back to the courts.
Q44 Alun Michael: Sure, but I was asking you specifically, with all the caveats that I understand you have, isn’t that a good principle to pursue?
Shami Chakrabarti: Yes, I think we can do fair extradition and speedy extradition. I believe that’s possible, yes.
Jago Russell: I entirely agree with that. One of the interesting things that have come up in a number of our cases is that you have very speedy expedition, followed by very significant delays in another country after a person has been extradited; so speedy extradition doesn’t necessarily mean speedy justice or speedy trials. We have one client, Andrew Symeou, extradited last summer, who spent over a year in Greece awaiting trial. Now, it was a relatively speedy extradition, but the family of the man that died then still had nowhere near receiving-
Q45 Alun Michael: Yes. But those, again, are about ways of improving the system-so that there is fairness, there is balance, there is proportionality-rather than about the principle of speeding up justice.
Jago Russell: I am absolutely in favour of a fair and effective extradition system.
Chair: Steve McCabe-on the European Arrest Warrant, Ms Blackstock.
Q46 Steve McCabe: Yes, maybe I can ask this to Ms Blackstock and to Mr Russell. I wonder if you could just briefly tell us what changes your organisations would like to see in the way the European Arrest Warrant operates?
Jodie Blackstock: The key problem with the European Arrest Warrant at the moment is proportionality. There wasn’t a proportionality test put into the framework decision when it was originally passed. At the time the focus was on the problem of terrorism and ensuring speedy extradition. In a way that has worked; the extradition arrangements now in the EU are extremely effective. There were 11,500 people surrendered last year across 18 Member States. That is all very positive if you consider the system to be a positive system in general.
The problem with that is there was insufficient scrutiny of the differences that still exist between different Member States. We assumed-the collective EU-that all of us were signed up to the European Convention on Human Rights and that therefore meant that our systems in relation to criminal matters were far more similar than they are in practice. The proportionality is the most important issue because it means that people are being returned to other Member States for very minor offences, which in this country we simply would not consider seeking surrender for.
Q47 Chair : You have given us a figure of 11,000. Do you know how many warrants we have issued? You said 11,000 were released.
Jodie Blackstock: I believe the figure last year was 91 from this country.
Jodie Blackstock: That is 11,500 across 18 Member States.
Q48 Chair: Because isn’t there concern about some countries-Poland for example.
Jodie Blackstock: Yes, 40% came from Poland .
Chair: Poland issued 5,000 European arrest warrants, including to a Mr Lewandouski, who was arrested outside court last Wednesday, aged 24, having lived in this country for six years, for a very minor offence that occurred when he was a teenager. Is there misuse, therefore, of this warrant?
Jodie Blackstock: Our argument certainly would be that there is misuse when you look at it from our legal system, but the problem in Poland, as has already been identified, is that if a matter is raised by a victim or a complainant in a case, it must be prosecuted. It must be followed forward under Polish law. That requires them to seek an arrest warrant without an amendment to the framework decision, asking them to consider necessity and proportionality. That is the European concept. It comes from the European Court of Justice.
We have seen it in cases under other civil areas of EU law. It’s an issue that has already been contemplated and, as I understand it, agreed in relation to an investigation order piece of legislation that is currently being discussed in Brussels as a concept which can go into that instrument; which means, therefore, that there isn’t a problem in Poland with proportionality per se. If it is to be imposed from the EU down, it’s something that they can attempt to grapple with. I have spoken with colleagues in the Polish representation in Brussels who have said that they appreciate the problem. They have to charter these planes and carry people across-it’s costly for them as well. But their law simply at the moment prevents them doing otherwise.
Q49 Chair: So the warrant does need to be looked at and it does need to be altered?
Jodie Blackstock: Absolutely, and all Member States are in agreement with that. There is a working party that has reviewed this. There are recommendations that the JHA Council has agreed.
Chair: Indeed. Mr Michael has a question on this very point.
Q50 Alun Michael: Yes, it is on the two issues: the proportionality and the human rights considerations. Clearly, it seems in relation to proportionality there is a requirement for an amendment of the European rule or the framework decision under which that applies. Is that your view, rather than bilateral arguments about what proportionality means? Secondly, on the human rights consideration, at the end of the day-I can appreciate the difficulties at the moment-does that come down to a change in the framework decision or does it come down eventually to judgments that will be made by the European Court of Human Rights?
Chair: If I can have brief answers, please.
Jago Russell: Absolutely. On proportionality, it’s possible that you could create a proportionality safeguard in this country. Germany has done it; it has not yet been challenged. Ideally that’s something that you do at European level. There are some things you can do purely domestically. You can put a forum requirement in easily. You can get British citizens serving sentences imposed by other courts in the UK rather than, as at present, extraditing them and then a few months later sending them back again to a British prison. You can do things around making the existing theoretical human right safeguard in the extradition treaty more effective.
What happens at the moment is that the British courts are effectively hiding behind this idea of mutual recognition-that we have to trust all other justice systems in Europe to do justice-and they’re not getting to grips with the fact that many of these cases raise serious human rights concerns. So that is something that we could do domestically. There are things we have to deal with working with the rest of Europe, if we’re to have a fair extradition system.
Q51 Chair: Ms Chakrabarti, do you think that is right ? S hould we amend this European Arrest Warrant? Has it gone too far?
Shami Chakrabarti: I agree that we should do what we can with what we have, but that is not enough. I think that Jago Russell and I agree that, as with the United States, we need fundamental reform, and we need those three elements back in what will still be a speedy and effective system: prima facie case, dual criminality and forum.
Chair: Mr Michael, did you have anything else?
Alun Michael: No, that’s fine, Chair.
Chair: Lorraine Fullbrook has a quick supplementary, then Nicola Blackwood.
Q52 Lorraine Fullbrook : Thank you. It’s just to follow on from Mr McCabe asking what changes you would like to see. What is your position on the Schengen Information System on the European Arrest Warrant alerts? Do you think that that should be as reliable and effective for the removal of those alerts as it is for the alerts to be made in the first place?
Jago Russell: There are a couple of very interesting points on that. One is the fact that sometimes mistakes are made and they’re not picked up until somebody has been subjected to a European Arrest Warrant. That certainly needs dealing with. Then there is this other difficult point that we need to grapple with, which is the fact that if a court in one country says, "No, I will not extradite somebody to another Member State. It would be unjust to do so," there is currently no way whatsoever to get that extradition warrant removed. And so in a Europe that is meant to have free movement, you have people who are unable to leave the United Kingdom. We’ve had cases like this where people’s lives have been torn apart because they’re not able to visit elderly relatives in Spain, because France has issued an arrest warrant against them and France is refusing to remove it, despite the fact the British courts have said extradition would be completely unjust.
Q53 Lorraine Fullbrook: Do you think that should be done at the European level?
Jago Russell: It has to be.
Jodie Blackstock: Well, it has been. It has been. There is a convention with that very element in it for judicial scrutiny. You can bring a case under the convention in one Member State to remove the alert, but nobody has implemented it domestically. That is the frustration with many conventions at an EU level.
Q54 Nicola Blackwood: We have been talking a lot about principles of justice. I have a couple of quite practical questions. Do you think that the EAW or the US-UK treaty is having a more significant impact on UK citizens and which one of those do you think is going to present the most challenges to bring into place the changes that you have all recommended?
Jago Russell: I suspect the European Arrest Warrant will create significant challenges. We have to get 27 Member States to agree to amendments to put some of these safeguards in place and that is going to require a lot of concerted work. So I think that raises some significant challenges but, as we’ve said, there are certainly things that can be done and should be done straightaway, or as quickly as possible, to incorporate safeguards in UK legislation that don’t require EU negotiation. So these things have to go in tandem, but let’s sort our own Extradition Act out in the first place.
Shami Chakrabarti: You have to do both. This is a shrinking interconnected world. There should be co-operation between States. There should be effective extradition, no question about that. But people also need protections in return. They’re sitting at their computers or they’re going on holidays, everything that they should be doing, and they’re very vulnerable to abuses of power at the moment.
Chair: Thank you.
Q55 Mr Winnick: To Liberty, if I may. I asked the former Home Secretary if he felt that the treaty was one-sided. Would that be your view, that it is one-sided?
Shami Chakrabarti: It is one-sided but, as he said, it is one-sided because there are constitutional protections for American people that I think there should be for residents of Britain, too. So it’s not about, "Let’s make it even-handed by a race to the bottom and no one gets protection." Let’s take the American example and put prima facie case back in to the protections for our people, too.
Q56 Mr Winnick : You were in the room when the Chair asked Mr Blunkett if he would sign the treaty again. You heard his response. What is your response to what he said?
Shami Chakrabarti: I think that a lot of good things happen to former Home Secretaries. When former Home Secretaries don’t have to drink the water of the Home Office anymore and they get to reflect, you do see some reflection and humility and I think we did hear a significant degree of that from Mr Blunkett who was honest about things that he wouldn’t do again. We have all learnt from the experience of the treaty that was signed and from the European Arrest Warrant, both of which were passed-for laudable reasons I should say-after 9/11. But let us all learn from the experience and put a little justice back in the system.
Chair: A bit of humility? A bit of reflection?
Jago Russell: I think that is absolutely right and I’m delighted that we’ve also had from Mr Blunkett some humility and reflection on individual cases-Gary Mann’s case, which he expressed some sympathy about. At one point Mr Blunkett was demanding that Gary Mann be nailed in the British courts. So I think there has been some humility.
Specifically on the European Arrest Warrant, I don’t think that any of the Member States of the European Union expected that there would be 15,000 arrest warrants issued in 2009. It was sold to the public of Europe as a way of dealing with serious crime and terrorism, not as a way of dealing with people that have gone over their overdraft limits or that have failed to pay for a pudding and that’s how it has been used.
Q57 Chair: Do you think we could use the word "abuse" here?
Jago Russell: I think that-
Chair: Or what word would we use? Frivolous?
Jago Russell: I think the problem was that not enough thought was given to it. It was rushed through, post 9/11, and they should have given more thought to how it might be used in future. So I think "careless" is what I would say, rather than "abuse" or "frivolous".
Q58 Mr Winnick: So what would you like to happen now, if I could ask?
Chair: Sorry, just very briefly, I assume you all want it changed do you?
Shami Chakrabarti: Two points: emergency remedies in both systems; in particular, forum. You can do that under the existing European system and the existing bilateral arrangement with the US. And then fundamental reform at the European level on the arrest warrant and of the arrangement with the United States.
Chair: Ms Blackstock?
Jodie Blackstock: I absolutely agree. The framework decision has a forum article in it, which other Member States have used and we haven’t, and that’s incredibly important.
Chair: Mr Russell?
Jago Russell: I think we need to look at what cases we have seen over the last seven years; find out what has gone wrong and then work out how to fix it. Some of the things you can fix domestically; some of the things we need to work with the rest of Europe to fix.
Q59 Mark Reckless: We used to have a protection where the Home Secretary could exercise discretion to prevent someone being extradited. Wasn’t the fundamental driver of our losing that protection the refusal of the courts to allow Ministers to exercise discretion conferred on them by Parliament?
Jago Russell: That was certainly one of the main reasons for the European Arrest Warrant. The other one was the fact that many countries didn’t ever extradite their own citizens, so that was another major reason behind the European Arrest Warrant. The problem is, however, that we have got rid of political discretion to prevent unjust extradition, but we haven’t replaced that with judicial discretion to replace unjust extradition. So at the moment there is no power to stop an extradition that is fundamentally unjust and you need one or the other. My view is, ideally, it should be a discretion for the courts.
Chair: Thank you, Ms Chakrabarti, Ms Blackstock and Mr Russell. I’m sure that we will see you again on future inquiries. Thank you very much for coming.
Examination of Witness
Witness: Janis Sharp, Mr Gary McKinnon’s mother, gave evidence. Karen Todner was in attendance.
Q60 Chair: Thank you, M r s Sharp. Karen Todner is your legal adviser, is that correct?
Janis Sharp: Yes.
Q61 Chair: Mrs Sharp, it’s just over a year since you last came before the Select Committee.
Janis Sharp: Yes.
Chair: And the Committee wrote to the then Home Secretary asking him to intervene and stop your son from being extradited to the United States.
Janis Sharp: That’s right.
Chair: Welcome back. The campaign goes on, clearly.
Janis Sharp: It does, yes.
Q62 Chair: Were you surprised to read this morning, as a result of the leaks on WikiLeaks, that Prime Minister Gordon Brown had had a one-to-one meeting with Louis Susman, the American ambassador, to try and do, in a sense, a plea bargain with the Americans to allow Gary to remain in this country?
Janis Sharp: I was very surprised and I was very pleased. I wish we had known about that because he would have been given credit for it. I was also surprised at the American reaction, because had the boot been on the other foot and they had said, "Could you not extradite someone?" we would say, "Of course not." That’s because this is what friends do. They know that it’s a difficult position for this Government and yet they didn’t seem to want to give leeway at all. There are, I feel, rogue prosecutors who are abusing the treaty, but the fact that the people at the top are so intransigent I find difficult to understand.
Q63 Chair: As you also know, Prime Minister Cameron raised your son’s case with President Obama. This is slightly different to what both the Committee and others were told, in that politicians have no role in all this, but you are pleased that they do have, presumably?
Janis Sharp: Yeah, I was very pleased that he raised it and we were given quite a lot of hope by this. I had always been told that when a new Government comes in, if another Government asks them for something, it will be given almost automatically, but it hasn’t been. I believe that America wants Gary as an example of computer crime and Gary, because of his naivety, had no lawyer during his police interviews and he admitted computer misuse, but even at the last court hearing the CPS said they have no evidence whatsoever of any damage; they have hearsay. We had evidence from Professor Peter Sommers, an expert in computers, and he said that the alleged financial damage was for security that they should have had installed in the first place. There is a judge here who, some time ago, in the case of Russian hackers who were in this country, ruled that having to upgrade equipment does not constitute damage. With an alleged $5,000 of damage on each machine, it is not an extraditable offence what Gary has done.
Gary was arrested March 2002 and had the extradition request happened then-because Gary was indicted by America in 2002, there was an American arrest warrant in 2002-he would have had prima facie evidence. He would have had the right to challenge it in a British court and could have proved they did not do the damage. But frequently the American prosecutors use a loophole of using a superseding indictment, whereby they can trawl back decades and this denies somebody having the right to the prima facie case that they would have had at the time.
Q64 Chair: Indeed. As far as the current situation is concerned, the Home Secretary is conducting a review of this case and your Member of Parliament, Mr Burrowes, has been to see her either with you or on his own. What is the timetable for this because, of course, the Home Secretary announced a review almost immediately after the Government was formed? Are you being kept informed as to how long this is going to take?
Janis Sharp: No, I’m not being kept informed. Prior to this, Nick Clegg had said Gary-he’d spoken to top lawyers-absolutely could be kept here. We had David Cameron say that they would keep him here. We had Dominic Grieve, we had Chris Huhne. Now I am sure that these people wouldn’t use a vulnerable man just in order to be re-elected because that would be horrendous. So I’m sure that they will keep their word and they will have the strength to say to America, "No."
I mean in the case of Roman Polanski, France said, "No." Britain has supposedly-well, we’re hearing different now but we thought we had-a strong relationship with America, but, in actual fact, both of our Governments seem very afraid to stand up for their own citizens. But we voted our politicians in to do this and everyone here and all of our politicians have an absolute duty to stand up for British citizens, for us to have equality to Americans, and for-I mean tomorrow we could introduce probable cause.
Q65 Chair: Yes. You did say you were surprised at the WikiLeaks meeting the Prime Minister had that you didn’t know about. Are you now satisfied that there is a process that is going on where you feel confident that there will be an outcome that will be sooner rather than later? Because this has now gone on for about seven months, hasn’t it?
Janis Sharp: I’m hoping that the pre-election promises will be kept and Gary will be kept here. It wouldn’t set a precedent as was feared-Alan Johnson said it might set a precedent. The European Court of Human Rights frequently doesn’t allow people to be extradited-people who are suspected of terrorist offences. Whereas people, often for minor crimes- You have the case of Ian Norris, where the House of Lords ruled that price fixing was not a crime but the Americans still pursued him for obstruction of justice of the crime that wasn’t a crime.
Q66 Chair: You sat in for the evidence of David Blunkett. Were you pleased with what he said; that, with hindsight, if he was given the treaty to sign again, he would look very carefully at what he was signing and he would take into consideration all that has happened over the last seven years? Is this all moving in the right direction for you?
Janis Sharp: No, I appreciate very much he said that. But I still don’t understand why our Government signed our rights away, used the Queen’s prerogative to do it. To me it’s one of the biggest betrayals of British citizens ever under a Government-under Tony Blair’s Government, as it happens.
Q67 Steve McCabe: Mrs Sharp, I don’t want to put words in your mouth but I just want to be clear that I’ve understood you. Are you saying that senior members of the Government have given you a promise or an assurance that your son won’t be extradited?
Janis Sharp: Pre-Government, pre-election, many people said that what was being done was horrendous and that Gary absolutely should be tried here and that they would take steps once elected. I probably have the wording here, which I can probably pass round to you shortly. There have been promises from many people that this was wrong and it wouldn’t happen. But I believe those people would not use a vulnerable man purely to be re-elected. We all know our Governments can do what they want. An Israeli politician was coming over here; someone wanted to arrest him for war crimes. The Government said, "We’ll change the law." Our Government can do what it wants and we know that.
Q68 Chair: Just for the record, what Mr McCabe wanted to know was this was before the Government was formed?
Janis Sharp: It was pre-election, yes.
Q69 Lorraine Fullbrook: Do you think Gary’s case is exceptional or do you think the extradition treaty with the United States is inherently unfair?
Janis Sharp: Both. I think Gary’s case is exceptional because of his mental health, because he was questioned by the police at his police interview without a lawyer being present, because I didn’t know about it until afterwards, and because he thought he didn’t need a lawyer. So in that case it’s exceptional. Also people with Asperger’s often relate more to computers than to people. And I think when somebody is physically in this country when a crime has been committed, they should automatically be tried in this country. I think that is absolutely right. Under the Magna Carta we have a right to be tried by a jury of our peers.
We absolutely should have equality to Americans. Why on earth should we not have to have prima facie evidence? Extradition is a huge punishment in itself, massive. If people are extradited they’re often incarcerated for years before a trial comes. They also can lose their job; they can lose their family; they can lose their sanity; they can lose their life. It’s absolutely horrendous. So that is a huge punishment for a person that’s potentially innocent.
On the treaty, tomorrow we could say "Probable cause and prima facie". Everyone knows it’s not equal and I welcome the review but, on the other hand, we voted the politicians in because we wanted the change promised. I don’t understand why full forum couldn’t be introduced immediately. But I think it should be automatic: if you’re physically in this country you should be tried in this country. Evidence should be shown for anyone. We’ve extradited 33 people from America since this treaty had been used. Thirty of them are not Americans and the remaining three have dual nationality. That speaks volumes. We apparently are not extraditing Americans.
Q70 Mark Reckless: Mrs Sharp, in terms of the review of extradition that the Home Secretary has announced, are your objectives regarding that confined to your son and him not being extradited, or do you have a sort of broader range of policy objectives you would like to achieve?
Janis Sharp: No, I really appreciate the Home Secretary doing this. I appreciate it so much, and, in that instance, it’s confined to my son. I know that the Governments worry about setting a precedent but, because of the mental health history in the family, it could not set a precedent because no one else can invent mental health history in their family. I’ve found out a lot more about that recently, fortunately, and I’m so pleased that we have this in our family because it’s a chance for Gary to be saved.
My concern is-because Gary has a grandmother who was mentally ill and a great-grandmother who was 50 years in an institution-I don’t want to see my son ending up in an institution because his mental health is going downhill rapidly, or ending up dying in a foreign prison. I mean either a virtual death sentence or a real one is just not acceptable. His mental health has deteriorated so much; his withdrawal and detachment from everything. Next year it will be 10 years since the alleged crime was committed.
There was also a precedent set in November 2007 where the British court refused to extradite alleged terrorist Róisín McAliskey. There have been precedents set and mental health is an absolute. You cannot send people abroad to go through this horrendous fear and terror. Gary has been in this terror for many, many years-we all have. Almost no one could deal with this level of heightened stress every single day. We think about it. I think about this constantly. There is nothing else in my life but making sure my son stays here. And for him it is horrendous. I cannot even explain to you how bad it is.
Q71 Mark Reckless: You mentioned that the treaty had been agreed under the Crown prerogative and that promises were made to you prior to the election. Do you think, more broadly, that it is appropriate for elected politicians to have involvement in these types of decisions?
Janis Sharp: I think it absolutely is, but it’s preferable to have the treaty equal in the first place so that these abuses can’t happen, because there is no doubt that rogue prosecutors are using it frivolously and for things that it wasn’t designed for. We were told it was designed for terrorism. You also have the case of Christopher Tappin, who they say was going to export batteries to Iran, but in actual fact it was all a sting. It doesn’t exist. An American agent set up a fictitious company. So how could they be going to Iran when the whole thing is fictitious, as in a play, in the first place? This is another man in his 60s. Ian Norris was 67 and had cancer. What is going on when they decide, "This is who we’ll target"? Are they short of terrorists?
Mark Reckless: Thank you.
Q72 Mr Winnick: We all admire, Mrs Sharp, the way in which, over quite a long period of time now, you have acted in the way you have on behalf of your son. One can only, as I say, admire the manner in which you have done so.
Janis Sharp: My son is very gentle. He’s a very good person.
Q73 Mr Winnick: I just have one question. One recognises the campaign, which hopefully will be successful, in stopping your son from being extradited to the United States, but do you accept there is a legal case regarding your son, although in your opinion it should be done in the United Kingdom?
Jani s Sharp: Absolutely. At the last court hearing, the judge said that Gary could be tried in the UK. So why, when somebody has a pathological terror of travel and is going through so much mentally, would they decide that he should be extradited? It’s horrendous. If he can be tried in the UK-as the court has said, as Lord Carlile has said, as many, many senior QCs have said-he should be tried in the UK. Although the CPS say they don’t have evidence for the extent of the allegations America has said, they could try him here and these could be included within it. There’s no problem in that. I mean it should absolutely be done. Our justice has also always been compassionate and it should be fair, and this is not fair.
Mr Winnick: Let’s hope that view prevails.
Jani s Sharp: Oh, I do.
Mr Winnick: Thank you very much.
Q74 Chair: Mrs Sharp, why do you think the Americans still want him? After all these years, with all the problems they have with these cables being leaked all over the world and their own internal security operation, which is clearly not perfect, why would you think they still want Gary?
Jani s Sharp: I think they want to make an example of him for computer crime because he was naïve enough to admit to the computer misuse. Gary also embarrassed them. He left lots of cyber notes on the computers saying, "Your security’s almost non-existent," and he said he would keep doing this until someone at the top listened, and no one did. I think he embarrassed them. They had no passwords, they had no firewalls. He was using a dial-up connection in a bedroom in North London. It’s not like some group of terrorists sitting somewhere. America doesn’t like to lose. America likes to win. I think they don’t see it as showing compassion or being fair. I think they see it almost like a game, "We win at all costs. People do as we say at all costs."
Q75 Chair: Just for the record, I should tell you, Mrs Sharp, that we did ask the American ambassador to give evidence to this Committee today, but he declined to do so.
Mr Winnick: That’s a surprise.
Q76 Chair: As far as the process is concerned, I understand you have concerns with the doctor that has been recommended to go and see Gary, to see whether or not he has Asperger’s. Is it right that he’s not qualified to give medical opinion on this particular illness?
Jani s Sharp: Yes. It wasn’t to see if he has Asperger’s because the court had ruled that was an absolute and Gary has seen four doctors. It was for depression and suicide risk, but all of the doctors who are expert in Asperger’s say that it has to be a psychiatrist who is an expert in Asperger’s or autism to judge a person who has it, because they react entirely differently to neurotypical people. The psychiatrist they recommended is a very good psychiatrist but he does not have a background in Asperger’s, and it’s essential that the person who assesses depression and suicide risk does have this expertise. Karen, Gary’s solicitor, has written to Theresa May saying that Gary is not refusing to be reassessed. He simply wishes to be reassessed by somebody who has the appropriate background.
Q77 Chair: Other than these letters, you have had no contact with the Home Office or the American embassy or American officials?
Jani s Sharp: No, never. I mean Gary hasn’t ever been questioned by the Americans, which seems ludicrous. Certainly they shouldn’t start now because he’s gone downhill much too much, but I wish I’d been able to speak to them in the first place. I always feel if I had that maybe it wouldn’t have reached this point because this sort of case should never have reached this point.
Q78 Chair: As a result of what we have heard today, I am sure the Committee will want to write again to the Home Secretary to ask what is happening about this case, and ask for an answer before 14 December.
Jani s Sharp: That’s my birthday.
Chair: And when the Home Secretary will be coming to give evidence to us on this matter. I am sure you will want to come and see what she has to say.
Jani s Sharp: Absolutely.
Chair: Mrs Sharp, thank you very much for coming today
Janis Sharp: Thank you.
Chair: And, again, Mr Winnick echoed the admiration of this Committee and the previous Committee concerning the work that you’ve done on behalf of your son. Thank you very much.
That concludes the evidence we are taking today on the extradition treaty. We are going to adjourn for a short time before our next witness comes on our inquiry into policing. He is the former head of the New York and Los Angeles Police Departments, who is on his way, not from America, but from another meeting.
©Parliamentary copyright Prepared 6th December 2010
Tuesday 18 January 2011
Ms Gareth Peirce and Mr Ashfaq Ahmad
Mr Julian Knowles
Ms Gareth Peirce is a leading Human Rights lawyer, who has been involved in many high profile cases, where the judicial system has eventually ruled against the entrenched position of the Government. She represents, amongst others, the similar case of Babar Ahmad (whose father, a retired British Overseas Development Administration civil servant was also present)
Julian Knowles is an acknowledged Extradition expert barrister, both for the prosecution and the defence.
Both of them make compelling arguments for a repeal or amendment of the Extradition Act 2003, to re-introduce the safety nets and prima facie evidential tests and the supremacy of UK legal forum, which the Extradition Act 2003 deliberately destroyed.