This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Statement by Home Secretary Theresa May on extradition made on 16 October 2012
With permission, Mr Speaker, I would like to make a statement about the case of Gary McKinnon and the government’s response to Sir Scott Baker’s review of our extradition arrangements.
I will turn first to Mr McKinnon’s case.
I should explain to the house that the statutory process under the extradition act 2003 has long ended. Since I came into office the sole issue on which I have been required to make a decision is whether Mr McKinnon’s extradition to the United States would breach his human rights.
Mr McKinnon is accused of serious crimes. But there is also no doubt that he is seriously ill. He has asperger’s syndrome, and suffers from depressive illness. The legal question before me is now whether the extent of that illness is sufficient to preclude extradition.
As the house would expect, I have very carefully considered the representations made on Mr McKinnon’s behalf, including from a number of clinicians. I have obtained my own medical advice from practitioners recommended to me by the chief medical officer. And I have taken extensive legal advice.
After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.
I have therefore withdrawn the extradition order against Mr McKinnon.
It will now be for the director of public prosecutions to decide whether Mr McKinnon has a case to answer in a UK court.
This has been a difficult and exceptional case and I would like to pay tribute to all of the Home Office officials and lawyers who have worked on this case over the years.
Mr Speaker, extradition is a vital tool. In a world where criminals and crimes can easily cross borders, it is vital to the interests of justice and public protection that criminals cannot avoid justice simply by sheltering behind a border.
But concerns about the working of our extradition law have grown over recent years. There has been public concern about the extradition regime operating in the European union, the European arrest warrant, and about the extradition arrangements outside the EU, principally with the United States.
That is why in September 2010, I commissioned a review into our extradition arrangements.
That review was undertaken by Sir Scott Baker - a former Judge in the court of appeal - and a distinguished and expert panel, including David Perry QC and Anand Doobay.
I am extremely grateful to them for the professional and thorough way they went about their work. Nobody who has read their near 500 page report can be anything but impressed by the depth and clarity of its analysis.
At the same time, there has been considerable parliamentary interest in extradition. In a debate last December, parliament agreed unanimously that it believed there were problems with both our US and EU extradition arrangements.
In coming to a decision on how the government should respond to the Baker review I have taken full account of the review’s recommendations as well as the views of parliament.
Yesterday I announced that the government’s current thinking is that we will opt out of all pre-Lisbon treaty police and criminal justice measures. The government will give very careful consideration to these measures, including the European Arrest Warrant (EAW), and will then seek to opt back into those individual measures where it is in our national interest.
The EAW has had some success in streamlining the extradition process within the EU. But there have also been problems. There are concerns in particular about the disproportionate use of the EAW for trivial offences, and for actions that are not considered to be crimes in the UK. There are also issues around the lengthy pre-trial detention of some British citizens overseas. We know these concerns are shared by other member states.
We will therefore work with the European Commission, and with other member states, to consider what changes can be made to improve the EAW’s operation. I believe this is necessary to ensure that the EAW provides the protections that our citizens demand.
There are also concerns about our extradition arrangements with countries outside Europe.
A key reason for the loss of public and parliamentary confidence in our extradition arrangements has been the perceived lack of transparency in the process.
I believe extradition decisions must not only be fair, they must be seen to be fair, and they must be made in open court, where decisions can be challenged and explained.
That is why I have decided to introduce a forum bar. This will mean that where prosecution is possible in both the UK and in another state, the British courts will be able to bar prosecution overseas, if they believe it is in the interests of justice to do so.
I have been conscious, however, of Sir Scott Baker’s concern that the introduction of the existing forum legislation would lead to delays and satellite litigation. So rather than commence the existing provisions, as soon as parliamentary time allows I will bring forward a new forum bar, which will be carefully designed to minimise delays.
In parallel the director of public prosecutions will independently publish draft prosecutors’ guidance for cases of concurrent jurisdiction.
And a bi-lateral protocol governing the approach of investigators and prosecutors in the UK and the US is being updated alongside this guidance.
Turning to the United States/United Kingdom extradition treaty, I agree with the Baker review that our arrangements are broadly sound and the treaty brings benefits to both of our countries. Less than two weeks ago, for example, we saw the extradition to America of Abu Hamza and four other terror suspects.
Although there is a perception that the evidence tests used by the US and the UK - probable cause and reasonable suspicion respectively - are unbalanced, Sir Scott Baker found that there is no significant difference between these two tests.
Prima Facie Evidence
Mr Speaker, I have also accepted the Baker Review’s recommendations that a prima facie evidence test should not be reintroduced for those countries where it is not currently required.
The courts are already able to subject requests from all countries to sufficient scrutiny to identify and address injustice or oppression.
Re-introducing prima facie evidence would be likely to lead to further delays.
And, Mr Speaker, it is absurd to propose that we should require prima facie evidence from countries such as the United States, Canada and Australia, when we do not require such evidence of other countries with far less mature judicial systems.
Mr Speaker, I also agree with the Baker review’s recommendation that the breadth of the Home Secretary’s involvement in extradition cases should be reduced. Matters such as representations on human rights grounds should, in future, be considered by the high court rather than the home secretary. This change, which will significantly reduce delays in certain cases, will require primary legislation.
Speeding up the process
Finally, I also propose to reduce delays in the extradition system, in the light of the recent extradition of terrorist suspects to the United States.
In addition to the measures I have just announced, the government will look further at proposals in the Baker review to introduce a permission stage for appeals to the UK courts.
We will work closely with the European court of human rights on a programme to reduce the wholly unacceptable delays which have occurred there.
And we have also been considering how we can reduce delays in the deportation of foreign nationals who pose a threat to our national security. There is scope for reforming rights of appeal, streamlining the stages, expediting cases through the court and looking again at the provision of legal aid for terrorist suspects.
Mr Speaker, as Sir John Thomas, the judge in the Abu Hamza case said, it is in the overwhelming public interest that our extradition arrangements function properly. They must also be fair. We must balance both strong safeguards for those accused of cross-border crimes, with assurance that justice will be done. That is the government’s aim, that is what our proposals will produce and I commend this statement to the house.