Gary McKinnon and Justice in the Extradition System

Fellow Enfield MP, Nick de Bois calls for a system of "mutual understanding" that would protect the rights of defendants by allowing the UK to reject extradition requests where the evidence would be insufficient to proceed under UK law.

Nick de Bois (Enfield North) (Con): I congratulate my hon. Friend the Member for East Surrey (Mr Gyimah) on securing this important Adjournment debate. In the time permitted, I cannot review all the aspects of this matter, but I must focus on the key points as pertaining to my constituent, Andrew Symeou. Enfield has a unique and specific interest in the European arrest warrant and extradition, given that two of the current most high-profile cases exposing the system's failings involve Enfield residents-Andrew Symeou and, of course, Gary McKinnon. I and my constituency neighbour, my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), hope and expect that the review of Gary McKinnon's case will mean that he is not the last victim of an imbalanced process, but the recipient of a new, just and proportionate approach. Perhaps the Minister can update us on that review.

My central premise today, however, is that for the last decade the European Union has been driven by procedural safeguards and processes, not defendants' rights, as moves to enhance speed and efficiency do so at the price, in this case-I believe-of a potential miscarriage of justice. Those who support the European arrest warrant do so because they believe that more criminals get caught. That is a noble goal, and one that I and, I am sure, all Members of the House fully support, but the performance of the warrant is flawed.

Sadly, those who criticise the operation of the European arrest warrant are often cast as apologists for wild European extremists, or organised crime and terrorism. That, of course, is arrant nonsense. For me, it is a question of balance. I do not believe that a system that produces potential miscarriages of justice at one level should be tolerated in the interests of speed at another. The application of the warrant without proper procedural guarantees has in some cases led to the denial of justice. One of those cases concerns my constituent Andrew Symeou. Andrew was in prison in Greece for 10 months awaiting trial on a charge of manslaughter. Until his final release on bail, the charge was one of manslaughter, although as testified by our High Court, there is sufficient evidence of what I can perhaps describe as the over-enthusiastic interrogation of witnesses. Indeed, there even appears to have been a case of mistaken identity. In Andrew's case and others, surely the European arrest warrant has been misused.

Let me summarise Andrew's experiences. In doing so, I hope in parallel to illustrate how the European arrest warrant has failed, and perhaps thereby help the review by Lord Scott Baker. In short, there has been a failure to scrutinise the case by British courts for prima facie evidence; a lack of bail or euro-bail; a failure of mutual recognition; and, we must never forget, delayed justice for the family of the victim of that tragic incident, which led to the death of Jonathan Hiles-a delayed process that, three years on, leaves us with no one having come to trial yet. As much as anything else, that is not good for the family of the victim.

I cannot address all those issues, but let me turn to the point highlighted earlier, about submitting prima facie evidence prior to extradition. In British law, the Crown Prosecution Service makes the decision to charge individuals with criminal offences in complex cases. The decisions must be made fairly, independently and objectively. It is the duty of the CPS prosecutors to ensure that the right person is charged for the right offence. The key point is that when making a decision, the CPS will always decide whether there is enough evidence against the defendant. Therefore, the quality and reliability of that evidence will also be investigated, and cases progress only if there is considered to be a realistic prospect of conviction.

However, the EAW is based on one of 32 listed crimes in respect of which there is no need for a dual criminality test or any obligation to ensure that prima facie evidence is provided by the member state requesting extradition. Essentially, it requires us to go through a tick-box exercise. All that is required is that the judicial authority in the member state requesting extradition should detail the criminal offence believed to have been committed-that is, ticking the box-and indicate the length of sentence to be expected. In Andrew's case, he contested the request for extradition between 27 June 2008 and May 2009, but the court was able to examine only the process, and at no stage the facts of the case.

How powerless has British justice become when the High Court dismisses the appeal by the Symeou family even though in some instances it agrees that the evidence submitted shows that the local police investigation was flawed and when it could not rule out the possibility that the police were guilty of the manipulation and fabrication of evidence? How futile is our justice when it is decided that a young British man's future is not under our control, but is instead an argument to be had in Greek courts? Leave was granted to appeal to the House of Lords, but the House of Lords in turn rejected it.

The second point that I would like to consider in the time available is the issue of bail. When the European arrest warrant was agreed in 2002, it was with the understanding from all sides that this measure, which would have the effect of causing EU citizens standing trial to be held in prison in another member state, would be swiftly followed by measures guaranteeing their fair trial rights, as well as guaranteeing that there would be no miscarriages of justice. That promise was betrayed by member states when they failed to agree in 2004 to a proposal for a framework decision on procedural rights. All we can hope for now is, at best, a piecemeal approach.

The European Council is promising only to consider, not to legislate on, a so-called euro-bail, which would have helped my constituent who had been explicitly refused bail because he was a foreigner. Several years ago, Lord Lamont predicted with characteristic foresight the plight of my constituent when he said:

Is it any wonder that my constituent and his family feel the UK Government have repeatedly let them down? Andrew was forced to languish in jail on remand for 10 months until June this year, yet with the existing EAW, one member state could all too easily have returned him, if he had been able to serve bail over here-under the European arrest warrant.

The emotional and financial cost to the family, who have remained supportive throughout, has been extraordinary. They have had to decamp to Greece to be with their son when he was first extradited 16 months ago. Their ability to continue to run their business and provide an income has been seriously compromised, but despite that, the family members have remained united and passionate in their campaign for justice for their son. They want him to have his day in court. I pay tribute to their courage and resilience in the face of this huge adversity.

To conclude, we should have an agreed framework of extradition for member states within the European Union-I accept that. The process needs to be fast, but should not be carried out without respect for an individual's right to a fair trial and a fair judicial process. At the heart of these flaws is the expected notion of mutual recognition between the judicial process in member states. The process of mutual recognition allows for miscarriages, as we have discussed. I suggest that a system of mutual understanding would suit the process of a European arrest warrant far better. Such a process would allow for reasoned debate before EAWs were acted on rather than allow European law simply to supersede our law. This would allow European warrants to be declined if the acts were viewed as non-criminal in the UK or the evidence was insufficient.

It seems perverse that hon. Members on both sides of the House were up in arms over the 42-day detention provisions of the last Parliament, yet we are willing to have our own citizens held in foreign prisons for far longer as a result of a flawed piece of legislation. Should we as a House accept that liberty and justice be sacrificed for expediency?

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The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): I congratulate my hon. Friend the Member for East Surrey (Mr Gyimah)on securing this debate and on the measured way in which he delivered his comments this evening. I would also like to thank my hon. Friend the Member for Enfield North (Nick de Bois) for highlighting a number of issues about the European arrest warrant and for posing a number of questions about the operation of the system. In the time available, I shall try to address as many of the points highlighted by my hon. Friends as I can.

The European arrest warrant is an important mechanism in the administration of justice in the European Union, where citizens can move across its borders with relative freedom for the purposes of business or leisure. Of course, no one sought for trial in the EU should be able to evade justice by crossing a border, which is why the warrant is important, but to be really effective it must command the confidence of those whom it affects, striking a fair balance between the rights of those sought and the rights of their alleged victims. For that reason, I welcome the opportunity this debate affords to explore some of the pertinent issues.

My hon. Friends have raised a number of points, and I would like to add some of my own. My hon. Friend the Member for East Surrey is aware that there is no ministerial involvement in European arrest warrant proceedings. A European arrest warrant can be issued only by a recognised judicial authority, and the decision about whether to order surrender is a matter for the courts in the country receiving the warrant. Having said that, I appreciate the concerns that my hon. Friend has expressed about the welfare of his constituent and his constituent's co-accused, who were surrendered on a European arrest warrant earlier this year to Crete to face serious criminal charges. I am aware of the circumstances of the case, in which another young man, Mr Robert Hughes-also a British citizen-was assaulted and very seriously injured.

The House will appreciate that I cannot comment on, and still less seek to intervene in, the judicial processes of another state. But I can say that the accused were surrendered to Crete in early August after their appeal rights under part 1 of the Extradition Act 2003, which gives effect to the European arrest warrant in the United Kingdom, were exhausted. Once there, they were granted bail on payment of a surety, and as far as the Foreign and Commonwealth Office is aware, they have been permitted to return to the United Kingdom pending the setting of a trial date.

My hon. Friend the Member for Enfield North mentioned the case of his constituent, Andrew Symeou. Mr Symeou was surrendered to Greece on a European arrest warrant last year, where he is accused of the manslaughter in 2007 of Mr Jonathan Hiles, also a British citizen. I can certainly confirm the advice received from the Foreign and Commonwealth Office that Mr Symeou is now on bail in Greece and awaiting trial in March next year. The trial was postponed from June this year because summonses for British witnesses were regrettably not able to be served on time. This is self-evidently distressing for all those involved in this tragic case, but I trust that the delay will not result in a denial of justice to any of the parties. I can assure the House that the unit in the Home Office that processes summonses from overseas has flagged its system with the names of these witnesses. That means that when the summonses containing the necessary information are re-sent by the Greek authorities, they will be identified promptly and served on the witnesses.

It would not appropriate for me to comment further on individual cases, but in general terms Members will be aware that the Extradition Act 2003, and the various treaties and instruments to which it gives effect, contain a range of safeguards for the person whose extradition is sought. These safeguards are in place to strike a balance between the rights of the requested person and the rights of their alleged victim or victims, as I said earlier. It is important that suspects are quickly brought to justice, and that is no less the case when the offence has cross-border elements.

My hon. Friend the Member for Enfield North mentioned that a European arrest warrant may be issued when a fugitive is merely required for investigation. I can reassure him on that point. The instrument states categorically:

I hope that that provides a measure of clarification. He also made the general point that, in cross-border cases, bail is often denied to defendants who are not residents of the country in which they are charged. He might be aware that another EU criminal justice measure, the European supervision order, was adopted last year. It is not yet in force, but it will provide for a more flexible system of bail in cross-border cases. In any event, decisions on bail, whether here in the United Kingdom or abroad, are a matter for the trial court, which will be mindful of the importance of ensuring the attendance of defendants.

The coalition Government are aware of the public interest in the United Kingdom's extradition arrangements, and I have noted with care the comments that my hon. Friends have made in this regard. That is why my right hon. Friend the Home Secretary announced a judge-led review of our extradition arrangements to Parliament on 8 September. On 14 October, the coalition Government announced that the independent review would be led by Sir Scott Baker, a former Lord Justice of Appeal. He will be supported by two lawyers with wide experience and in-depth knowledge of extradition law. The operation of the European arrest warrant will be looked at as part of the review to ensure that it operates as effectively as possible and in the interests of justice. In her statement to the House, the Home Secretary announced that the five issues that would be covered by the review were the

The issue of prima facie evidence is one of those that are under review as part of the investigation. It is a long time-nearly 20 years-since prima facie evidence has been required to support an extradition request between European countries. The European convention on extradition, which preceded the European arrest warrant in the EU, abolished the requirement for prima facie evidence. The United Kingdom implemented the convention in 1991, when the Extradition Act 1989 came into force. The hon. Member for Enfield North (Nick de Bois) asked about the case of Gary McKinnon. The Home Secretary obtained an adjournment of the High Court hearing so that she could consider the issues for herself, along with further representations from Mr McKinnon. She can legally stop extradition at this stage in the proceedings only if she concludes that Mr McKinnon's human rights would be breached if he were extradited. She is actively considering those issues with a view to reaching a decision as soon as possible.

Mr Gyimah: The Minister has mentioned the Home Secretary's involvement in the Gary McKinnon case. Would it not be helpful to ensuring justice if she became more directly involved in other extradition cases? At present, political involvement is completely absent from extradition.

James Brokenshire: As I have said, the extradition review will consider a range of issues relating to extradition arrangements. Obviously I do not want to prejudge the outcome of the review, but I am sure that the hon. Gentleman's point will have been heard very clearly.

A number of concerns have been expressed about the European arrest warrant, but, as Members have pointed out this evening, it has been an invaluable tool in the fight against international crime within the EU. The European arrest warrant system has simplified and speeded up the extradition of persons both to and from the United Kingdom, and has made possible some procedures that were not formerly possible. Before the warrant was introduced, some EU member states had a constitutional bar on the extradition of their own nationals. The warrant has removed that barrier to extradition, and has updated or streamlined the extradition process in a number of other ways.

An increasing number of European arrest warrants are being dealt with in the United Kingdom. They are issued for a range of different offences. For an offence to be extraditable, it must be punishable by the law of the issuing member state with a custodial sentence for a maximum period of at least 12 months, or, when sentence has been passed, with a sentence of at least four months. Offences that fall into one of the categories on the list contained in the European arrest warrant framework decision-all serious offence types-and that are punishable with a maximum sentence of at least three years in the issuing state may not be subject to the dual criminality test in the executing state. However, for the purposes of all other offences, the United Kingdom has implemented an optional further safeguard, and requires that the offence must also be an offence in the United Kingdom. The EU is actively exploring the best means of addressing the issue of proportionality in the number of warrants issued, and the United Kingdom is playing a leading role in its discussions.

When it comes to justice and home affairs in the EU, the picture is constantly evolving. The Government have decided to opt into the EU directive on the right to information in criminal proceedings. Opting in will help to protect the civil liberties of our citizens abroad without compromising the integrity of the United Kingdom justice system.

My hon. Friend the Member for East Surrey mentioned legal aid. Legal assistance is an issue that is included in the Stockholm programme and the Commission is introducing a proposal on legal assistance for consideration next year.

I am pleased to have had the opportunity to debate the United Kingdom's extradition arrangements with member states of the European Union. Clearly, the issue is being examined carefully as part of the review that I have highlighted. That is why the review has been set up. It will report next summer, after thorough consultation-

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