Tuesday, November 14, 2006
It rejected a final chance to make two key amendments to the Extradition Act 2003 - a dereliction of duty that means American secret agents can now arrest us in our own country.
Extradition used to be about fugitives. People committed a crime in country A and fled to country B to avoid justice.
Obviously, as crime became transnational, complications arose. More than one country had a legal right to try a suspect.
Also, the international community created through the UN the concept of "international crimes" so grave that any country had the duty to prosecute or extradite any person accused of torture, hostage-taking, hijacking etc, found within its territory.
On the whole, countries respected the practice that crimes were normally tried in the country where the evidence was found, or the damage caused. The "War Against Terror" and the US reaction to financial scandals such as Enron and Worldcom changed all that.
The US now regards itself as free to request the extradition of UK citizens whose alleged crimes, in any traditional view, would be investigated here, and tried here if the evidence justified it.
I regularly meet US and Continental criminal lawyers. It is a shaming experience. They treat our subservience to the US with incredulity and even derision.
I now regularly advise businessmen and industrialists fearful they might be the subject of extradition requests.
One of these men is accused in the US of a transnational case of fraud in which the US attorney is threatening him, through his UK solicitor, that unless he returns voluntarily to the US and pleads guilty, in which case he will receive two years' imprisonment without parole, he will be the subject of an extradition request and 'all bets will be off'.
We should not be too prissy. We would not be offended, necessarily, if a US prosecutor treated a US fugitive like this.
But this man is English - he is accused of criminal conduct committed in substance in the UK, where no one has sought to prosecute him even though the US allegations have been made public. There are other predictable and disturbing developments.
Three weeks ago, a foreign businessman, resident with his family for several years in England, was arrested on an extradition warrant alleging conspiracy to export night-vision goggles from the US to a Middle Eastern Muslim country.
The US prosecutor's brief description of his conduct shows that the entire case arises out of a "sting" perpetrated by the US Department of Homeland Security.
Evidence was obtained, in London, by US undercover agents, audio-taping and videotaping conversations with the accused man.
The sting, of course, is standard US practice. In English law, the US investigators are guilty of the criminal offence of incitement committed in London.
The American extradition statement does not disclose whether the UK authorities knew about this (in which case they too would be guilty) or whether (the outrageous alternative) US agents are running amok in London on frolics of their own, and then demanding extradition.
The much-publicised case of the NatWest Three is the clearest example of America's prosecutorial arrogance.
The US claimed jurisdiction over this case because seven 'wire transfers' were made between Texas and London in the disputed transaction.
Any single electronic communication over a state or national border in the US entitles a US court to claim the right to try a person for an alleged fraud committed anywhere in the world.
Why does our law permit this?
In March 2003 David Blunkett signed a treaty concluded in secret with the US in which he gratuitously threw away UK citizens' rights.
He allowed that, while it would be necessary for us to provide evidence showing a person should be extradited from the US, the US did not need to do the same to secure extradition from the UK.
He then put through Parliament the Bill that became the new Extradition Act 2003 later in the year.
The Government misled Parliament blatantly in 2003.
This Act allowed the Home Secretary to designate countries that did not have to provide evidence and so Blunkett designated America.
The Act itself contains some apparently strong safeguards for British citizens - or so Blunkett said. One is that a person shall not be extradited if to do so would be "incompatible with his human rights".
The most obvious safeguard for a UK citizen would appear to be Article eight of the European Convention. A person is entitled to the privacy of his home and family life.
There shall be no interference with this right unless it is necessary for, among other purposes, the prevention of crime.
So far, so good. The NatWest Three argued that it was not "necessary" to interfere with their right, as the Serious Fraud Office had decided not to prosecute here, and their employer did not claim to have been defrauded.
But in the High Court, the Attorney General contradicted the assurances given to Parliament.
He said that such was the importance of extradition in itself as a means of combating crime, it would always 'trump' the right to home and family life. The High Court effectively accepted this argument.
BUT the truth is that if the American prosecutors want to prosecute a UK citizen for a fraud committed mostly in the UK, they can get him by producing a piece of paper with a bare allegation of misconduct.
The courts and government cannot protect him even if he has been investigated and exonerated here. This has caused consternation in the City and at the Confederation of British Industry.
The first amendment Parliament rejected last week was designed to oblige the US authorities to provide evidence in support of an extradition request, as we must do to them.
The second was to write in a requirement that, unless there were exceptional reasons, the court could not extradite to another country over an allegation of a criminal act that took place partly in this country.
This is not revolutionary. This principle used to govern all extradition relations within Europe, and is still applied by almost every other European state today.
In Parliament last week, attempts were made to discover the Government's reasons for opposing the two amendments. Home Office Minister Joan Ryan was, literally, incoherent, to the astonishment of observing journalists.
In the Commons, John Reid thuggishly accused the Conservatives of helping paedophiles.
Ludicrous as this was, when the amendment went back to the House of Lords for the last time, the Conservatives, visibly sheepish, caved in, having previously supported the changes. The Liberal Democrats held firm, but the Government won.
Mr Reid held out one hope, however. The Attorney General, Lord Goldsmith, was going to agree some guidelines with his American counterpart about where transnational cases should be tried - the very same Lord Goldsmith whose own reservations about the legality of the Iraq war evaporated when he went to Washington, shortly before David Blunkett, in the historic month of March 2003.
We all know we have subordinated our foreign policy to the Americans. We have also now subcontracted an important part of our system of justice to them as well. No free nation should behave like this.