Speech on the Extradition Bill
The Rt Hon. Lord Lamont of Lerwick
This is a significant and controversial Bill, of which the public are hardly aware. For that reason, I regret that it has been agreed that the Committee stage of this vital Bill will be condemned to the usually empty theatre of the Moses Room.
The admirable organisation, Fair Trials Abroad, has described the Bill as one of "extreme recklessness". The Bill certainly fits in with a good deal of government legislation on criminal justice. Part 1 is almost entirely concerned with bringing people before the courts. There is hardly any section concerned with the risks of wrongful imprisonment or miscarriage of justice. Recent parliamentary answers to questions from myself have indicated a growing number of cases being discovered in this country of people who have been wrongfully imprisoned. If the Bill does not have adequate safeguards it risks adding British nationals in foreign prisons to those numbers.
Fair Trials Abroad, has described the Bill as one of "extreme recklessness" ... There is hardly any section concerned with the risks of wrongful imprisonment or miscarriage of justice
The very fact that there is an organisation called Fair Trials Abroad indicates that there is a problem. That organisation has sprung up and is not just concerned about justice in far away places such as Malaysia or Saudi Arabia. Much of its casework relates to continental Europe and the European Union.
The Government's case is simple. Extradition takes too long. There are all these clever English lawyers preventing French terrorists being sent back to France. So that is that.
But the Bill deserves careful examination. Collateral damage may be an acceptable concept in warfare, but surely not in justice.
Part 1 is based on the premise of mutual recognition of different judicial systems. When responding for the Government in another place, the Minister accused the Conservative Party of being against the Bill because it was allegedly against other EU countries' justice systems. In the Minister's opinion that accusation was enough to brush aside the Opposition's arguments. Little attempt of any kind was made to address some of the serious procedural issues, some of which have been raised very tellingly by the noble Lord, Lord Goodhart. I am sure that the noble Lord, Lord Filkin, who is very well regarded in this House and always extremely helpful and informative, will give us much better answers.
The argument was simply put in another place. British subjects in foreign countries are expected to obey the laws of other countries. If we accept that one has to obey the laws of other countries when abroad, it follows that people should be extradited back to those countries if they have committed offences in those countries. This is surely not an adequate enough case. Even the Government would not attempt to apply that principle to Saudi Arabia. We may accept that Britons should observe the drinking laws in Saudi Arabia, but it does not follow that Britons should be extradited to Saudi Arabia because they have broken those particular laws if we think possibly that the system is flawed, that the penalties are disproportionate, or that the procedures are suspect.
Of course, systems in other countries have different strengths. In some respects continental systems may be superior, and in certain types of cases they are perhaps weaker.
The key point is surely that even legal systems, including our own, which work well for nationals may not work so well for foreigners. There are special problems that arise in handling the legal cases of foreigners. If the proceedings are incomprehensible because they are not properly translated, justice is denied. If access to competent legal advice is not available, justice is denied. If bail is not reasonably made available justice is denied, particularly if the accused needs time to collect evidence from his own country. I agree with all the points of that nature made by the noble Lord, Lord Goodhart. If the noble Lord tables amendments to that effect, I shall certainly support them.
Given the difficulties currently experienced in extradition procedures with the receipt of non-translated or poorly translated documents, it is questionable whether the rights of those without a great knowledge of languages can be safeguarded. In many European countries interpreters are provided for the benefit of the judge, not the defendant. Frequently, interpreters lack the requisite training and interpreting skills.
In 1997, a European Council questionnaire sought to discover the extent of provision of interpreters and translation of documents. The French reply was that if the suspect did not understand French he would be assisted by an interpreter at all stages of the proceedings. It continued to say that there was no limitation on that. Fair Trials Abroad commented that, in the whole of its experience, there is not a single case on its books in which any English-speaking suspect has received that level of service.
Greece emphasised the care given to suspects with an insufficient knowledge of Greek and stated that there would be sufficient time for the translation of relevant documents. In spite of that, Fair Trials Abroad is trying to secure justice in a case where that did not happen - the assistant British skipper of a Greek-owned yacht who was accused of people trafficking and sentenced to 10 years imprisonment three days after his arrest.
Portugal did not respond to the questionnaire. Again, according to Fair Trials Abroad, a judge in a Portuguese case that it was monitoring decided that the accused should pay for the interpreter services, as he had been found guilty - a practice that Strasbourg ruled inadmissible more than 20 years ago.
The Government's answer to all misgivings about miscarriage of justice is to chant, "The European Convention on Human Rights", "The European Convention on Human Rights". That is their answer to every objection raised. But in the real world, the European Convention on Human Rights cannot guarantee much for ordinary people. The ECHR is ultimately dependent on every judge in Europe being fully conversant with it and its applicability to the individual circumstances of a case. The ECHR guarantees only that a victim can complain to the human rights court in Strasbourg. That may take years, and many accused cannot afford to go the court in the first place.
In 1998, a monitoring system was set up by the Council of Europe into compliance with the European Charter of Fundamental Rights. It examined the national justice system in all European states. Some of the findings were unexpected, showing the existence of political interference, especially concerning judges, frequent cases of corruption - largely due to the poor salaries and status of judges-a shortage of resources, frequent delays and, perhaps most alarmingly, the proximity of the prosecution to the judiciary in some EU countries and many of the candidate nations.
The European arrest warrant puts the cart before the horse. It is like introducing the single market without commonality of trading standards. The concept should only be considered, if at all, after there has been agreement on certain procedural basic minimum standards. There should be legal aid at an adequate level in all category 1 countries, if there is to be a category 1. In theory, that is meant to be an ECHR requirement, but everyone knows that many southern European countries - such as Greece and Spain - provide little or no legal aid, and often with badly trained, inexperienced lawyers.
There should be a system of bail throughout Europe. Fair Trails Abroad has produced statistics showing that there are literally thousands of European citizens on remand in Europe's prisons at any one time who would not be there if they were natives of the country holding them. If acquitted, compensation is rarely available, leaving them and their families in unnecessary financial distress. Discriminatory imprisonment of foreign nationals before trial not only punishes before guilt is established but handicaps the victim in the collection of evidence for his defence.
Fair Trails Abroad has long advocated Euro-bail. The local bailing authority would consider whether the offence was bailable for nationals. If that were the case, the accused would return to his own country. It would then be the responsibility of the law enforcement officials in the accused's country to ensure that he or she was returned to the trying jurisdiction on reasonable notice when required. What is the difficulty with that? Why should that not be done before we move to the arrest warrant?
The problem with the idea of a single judicial space is not just that different countries have different laws - that is difficult enough - but that different countries have different rules of fairness
The problem with the idea of a single judicial space is not just that different countries have different laws - that is difficult enough - but that different countries have different rules of fairness. In Belgium, a suspect paedophile is still being held on remand after more than five years. In Britain, suspect terrorists can be held without trial for six months and then another six, and another. Some people would not accept that. In France. British lorry drivers are held for months without trial.
Clearly the concept of the presumption of innocence means different things in Britain from other European countries. To the British mind, the idea of the investigating magistrate detaining someone for an indefinite period without charge simply for the purpose of investigation is at odds with the presumption of innocence; indeed, many people would call it outrageous. It is not so in continental countries. The practice of the investigating magistrate has been accepted under the European Convention on Human Rights as consistent with the presumption of innocence.
To the British mind, the idea of the investigating magistrate detaining someone for an indefinite period without charge simply for the purpose of investigation is at odds with the presumption of innocence; indeed, many people would call it outrageous
In Germany, France, Italy, Spain or Belgium, an investigating magistrate can hold someone without charge for questioning for quite long periods. Pressure thus builds on the detained person to strike a bargain with the prosecuting authority and concede guilt. Mr Strauss-Kahn, the former French Finance Minister, recently acquitted on charges of corruption, said:
"In our system you are presumed innocent until declared guilty. The reality is you are seen as guilty from the moment the judicial system is interested in you".
The Confederation of British Industry has not been much interested in this Bill. It soon will be, because one of the biggest impacts will be on business. In both Germany and France, a number of high-profile investigating magistrates have inflicted almost ritual humiliations on all of the countries' top businessmen. Some people have welcomed that and viewed it as a long-overdue coming to terms with corporate malpractice. Others see the judiciary as over-eager to pursue anyone famous.
...one of the biggest impacts will be on business. In both Germany and France, a number of high-profile investigating magistrates have inflicted almost ritual humiliations on all of the countries' top businessmen
So many business leaders in France have had that experience that the process is in danger of becoming devalued. A common Paris banking joke is that any worthwhile French executive has the initials "MEE" on his business card after his name, standing for mise en examen.
Minsters say that, under Clause 2, one cannot be extradited for questioning, only if one is actually charged. That is a key point, which must be probed in Committee. Under the system in many continental countries at present there is a vague, thin, almost non-existent line between being accused and charged. Indeed, people have been extradited from one European country to another under warrants merely on suspicion, with no mention of being charged.
The Minister referred to the scandal of delays in the extradition process - although presumably the courts had good reason for those delays - but what about the scandals of delays in continental cases? Let us take the case of Mr Soros - some people think that I do not have much feeling for him; but I do. He has now been charged and convicted of insider trading 14 years after the offence was committed. He had heard nothing until last year from the French magistrate who first questioned him in 1993. Is that justice? Would we want someone to be extradited on that basis?
Then there is the problem of standards of justice in the former Communist countries. They have signed the European Convention on Human Rights. But what is that worth? In one eastern European country that I visited the other day, I read in the local paper about someone who had listed on the Internet the houses of his country's Prime Minister and questioned how he could afford them. He was put in gaol for "undermining the security of the state". That is the standard of justice in that country. Yet those countries can be added to Part 1 of the Bill without a vote in Parliament. We know what we will be told: "It is alright. They have signed the European Convention on Human Rights. You can go to Strasbourg to appeal".
This Bill should be called the "Abolition of Extradition Proceedings Bill". The Government claim that there will be a "full" extradition hearing - a point made by the noble and learned Lord, Lord Donaldson. Note the word "full". The Explanatory Notes say that there will be a right of appeal to the High Court, and possibly to the House of Lords. But what will it be about? Some very narrow question, such as, "Are you Mr Ali or are you really Mr Singh?" I suspect, as the noble and learned Lord, Lord Donaldson, suggested, that the partial ending of dual criminality will remove the last grounds for substantive court hearings and very much narrow them. The proof of that is that the Government have said that they expect to be able to reduce the time for extradition to three months. That does not leave much time for appeals to the High Court and the House of Lords.
This is a Bill with over-reach. It is reckless. It does not achieve the correct balance between efficiency and justice. It requires massive amendment, or it should be thrown out.
This is the full text of a speech made by Lord Lamont to the House of Lords on Thursday, 1st May 2003