US-UK Extradition Treaty

David Burrowes calls on the Government to review the Extradition Act 2003 and the operation of the US-UK extradition treaty, particularly highlighting the case of his constituent, Gary McKinnon.

Mr. David Burrowes (Enfield, Southgate) (Con): I am pleased to follow the hon. Member for Eastleigh (Chris Huhne). I am not a recent convert to the cause of Gary McKinnon: he is my constituent and I have been campaigning for him for three years. I welcome the support for Gary McKinnon from the Liberal Democrats and Members of other parties. Mr. McKinnon’s case brings into sharp relief the problems caused by the operation of the Extradition Act 2003 and the treaty.

I shall respect Mr. Speaker’s direction and not base my remarks wholly on the case of Gary McKinnon. However, it is important to recognise that Mr. Speaker’s direction on sub judice matters relates to the challenge to the DPP’s decision not to prosecute, as opposed to the challenge to the decision on whether the Home Secretary should have taken account of Mr. McKinnon’s condition of Asperger’s syndrome, which on its own the House would have been free to debate fully.

I was worried to hear the Home Secretary trying to pick and mix justifications for the operation of the extradition treaty. We thought that we had moved on from a Home Secretary who trumpets the Government’s terrorism-fighting credentials and focuses only on terrorists whom we all want to be prosecuted and extradited. We thought that we had moved on from a Home Secretary who only talks about fighting on behalf of the innocent. What we are all concerned about is justice—justice for the innocent and for the guilty. That is as important for Gary McKinnon, who has not sought to hide his guilt, as for anyone else. We are concerned about proper due process.

One would have thought that the Home Secretary had learned from his predecessors’ mistakes. One of them—the right hon. Member for Sheffield, Brightside (Mr. Blunkett)—has come on board and acknowledged the deficiencies of the 2003 Act, of which he was very much an architect, as it affects Gary McKinnon. During the passage of the Bill in 2003, no one in his right mind would have used as the centrepiece of his argument the case of Gary McKinnon—someone who has the severe autistic condition of Asperger’s syndrome and is now the subject of this unbalanced process.

I do not propose to go into the details of Gary McKinnon’s case today; nor will I attempt to defend his actions—I doubt that any hon. Member would do so. What I want to do is defend Mr. McKinnon’s right to justice and that of others who become victims of the 2003 Act and the treaty. The Home Secretary talked about causes célèbres, but Gary McKinnon is the last person whom one would promote as a cause célèbre. He shuns publicity in many ways: his condition makes him introverted and he shies away from communicating. He needs others to speak up on his behalf. I am pleased to do that as his Member of Parliament, and others have also done so. I commend the Daily Mail for the momentum it has given to the campaign .

It is important to recognise that this is a matter of justice. I have an interest in having practised as a criminal solicitor for 11 years. I and others who have practised in the justice system recognise that although it is not perfect, it is marked by an historical determination to provide fair trial for defendants. Whatever we think of them as individuals, or whatever the community or any state thinks of them, they all have a right to a fair trial. Regrettably, those who do not fit in with the system—those who are vulnerable or mentally ill, or who have special needs—often cannot get justice, although they deserve it as much as anyone else.

The Home Secretary talked about safeguards. Those safeguards are plainly not in place. Whether we are dealing with one case or a number of cases, and whether we call them high profile or low profile, there needs to be justice and appropriate safeguards for all. That was not the case for Gary McKinnon, who was diagnosed late with Asperger’s syndrome, and it is not the case for anyone else like him who has symptoms of compulsive behaviour, not communicating well, and not seeking to make the case for themselves.

Mr. MacShane: The hon. Gentleman is making a moving plea on his constituent’s behalf. He says that his constituent was diagnosed late; when was that diagnosis made?

Mr. Burrowes: It was made in August 2008. Decisions on Gary McKinnon and others in his position are subject to the Secretary of State’s discretion and to the European convention on human rights. It is for the Secretary of State to determine whether that discretion should be applied in the case of those with Gary McKinnon’s condition. It has been argued that it should be applied in Gary McKinnon’s case, as in others, but the Secretary of State has chosen to ignore that. Although there have been concerns expressed by No. 10, it has chosen to ignore Gary McKinnon’s particular condition.

The McKinnon case and others show the problems that occur when there is a challenge of the process. Gary McKinnon and others are left to look to the Home Secretary or the Director of Public Prosecutions for relief. The Home Secretary is saying, “I don’t have to consider forum, because that is a matter for the Director of Public Prosecutions”, and the DPP is saying, “We’ve decided to cede jurisdiction to the United States.” That leaves any appellant, defendant, or whatever one calls them, to challenge via judicial review a DPP decision not to prosecute in this country, and to challenge the Home Secretary’s decision, too—that is the case for Gary McKinnon. As should be clear to the Home Secretary, that shows the plain need for forum to be properly determined. It should not be left to applicants to mount a campaign, find legal advice and representation, and go through all the complicated procedures on the judicial review route. It clearly shows the need for proper consideration of forum, and the lack of consideration of forum in the current process.

I pay tribute—as others have done, both previously and today—to the work of the late Lord Kingsland, who will be sadly missed in the other place. Part of his legacy is an amendment that he supported, together with Baroness Hanham, to the Policing and Crime Bill. That amendment would deal with many of our concerns. Paragraphs 4 and 5 of the old schedule 13 to that Bill deal properly with two issues. The first is the issue of evidence and the conditions relating to whether a significant part of the conduct alleged to constitute the extradition offence was conducted in the United Kingdom. The second issue relates to whether an extradition would be barred if, in view of all the circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.

On the issue of the interests of justice, such a provision would allow the court properly to consider the applicant before them. In the case of Gary McKinnon or others like him, it could consider the fact that the applicant was severely autistic, and could consider the implications of that, not only for the defendant’s understanding of the crime that they are alleged to have committed, but particularly with regard to the impact of the extradition process, the impact of the process taking place in another place such as the United States, and the impact of the sentence. The sentence would have a profound effect on people such as Gary McKinnon, particularly given the length of sentence proposed; it is judged that it could be up to 60 years. The provision would also allow bail to be considered carefully.

The example was given of the NatWest three, but that was an exceptional case, and should not be brought forward as a precedent—certainly not as regards bail—when we are talking about cases such as that of Gary McKinnon, who is penniless. The question of adequate representation would be a key factor in America. Also, the question of whether there was confidence that the defendant would get bail, rather than be in custody before trial, perhaps for two years, would be relevant if we considered forum properly in this country.

The same is true of consideration of repatriation after sentence. Again, we heard the example of the NatWest three, in which repatriation took place after conviction. However, in the case of Gary McKinnon, there has been no assurance that that would happen, despite the fact that other countries have agreements with the United States on that subject. The Netherlands and Israel have, on behalf of all their citizens, come to an agreement, whereby their Home Secretaries would give a specific assurance before extradition that, on conviction, the person would be repatriated to serve their sentence in their country. Gary McKinnon does not have the benefit of that assurance, and nor do other citizens of this country, because the Government have not properly negotiated on behalf of their citizens to allow for due process and justice.

Prima facie evidence will not be considered; that point has already been debated today, and on other occasions. The Government ceded the part of the Extradition Act 2003 that has that requirement in it—a requirement to provide sufficient evidence to make a case. That requirement has been a fundamental principle of our criminal justice system, but the Government gave it away; the treaty makes a point of removing that requirement. That has had a crucial effect, but it would in many ways be remedied by the forum position, because consideration of forum would enable consideration of whether the offence or a significant part of the offence had been committed in this country. Currently, in cases such as that of Gary McKinnon, prosecutors do not have the evidence before them to enable them to come to a judgment, because the United States has it for its own purposes. The authorities in this country have only a partial picture on which to make a judgment. If the court had forum provisions, it could give proper consideration to whether a significant part of the offences and the criminality took place in this country, and could then form a judgment.

My hon. Friend the Member for Epsom and Ewell (Chris Grayling) has given clear examples of other cases of cyber-attacks that led to prosecutions in this country—cases in which the evidence was before this country. There were the cases of Richard Pryce and Mathew Bevan, which came before Bow Street magistrates court. Charges were laid under the Computer Misuse Act 1990, and Pryce was convicted. As we have heard, he received a £1,200 fine. In the case of Bevan, no prosecution was brought forward in the public interest.

It is significant to hear what was said by Bevan:

That is a similar situation to that of Gary McKinnon. What is different is that Pryce—Bevan was not prosecuted—was prosecuted in this country. That is not the case for Gary McKinnon.

The cases of Andrew Harvey and Jordan Bradley involved the spread of a global worm, which had a significant impact on the United States and Britain. Harvey received a six-month sentence, which was later reduced to two months, and Bradley received a three-month sentence. Significantly, in that case, there were conspirators in the United States. There was a direct connection with those committing offences in the United States, but Harvey and Bradley were dealt with in this country.

Without those reforming provisions, we are left at the behest of America. I do not wish to criticise America; it has managed to negotiate its part of the bargain. The problem is that this country has not done so. We have clearly ceded to America, and the Government need to own up to that. The Government amendment to the motion suggests that the tests that are applied