Below are excerpts from the official transcripts of the October 16, 2012 meeting of the House of Commons in United Kingdom, during which British Secretary of State, Theresa May, made the decision to block the extradition of alleged computer hacker, Gary McKinnon, to the United States on the basis of violations of human rights. Also included is the opposing viewpoint, presented by Labour Party Parliament Member, Yvette Cooper :
The Secretary of State for the Home Department (Mrs Theresa May): 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 I have therefore withdrawn the extradition order against Mr McKinnon.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 the Home Office officials and lawyers who have worked on the case over the years.
Extradition is a vital tool. In a world in which 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, about 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 in which 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 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 of the views of Parliament. Yesterday, I announced
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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 careful consideration to those measures, including the European arrest warrant, and will then seek to opt back into those individual measures where it is in our national interest to do so.
The European arrest warrant 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, but 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, I will bring forward, as soon as parliamentary time allows, a new forum bar that 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 bilateral protocol governing the approach of investigators and prosecutors in the UK and the US is being updated alongside this guidance.
As for the United States-United Kingdom extradition treaty, I agree with the Baker review that our arrangements are broadly sound and that the treaty brings benefits to both 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.
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. Reintroducing prima facie evidence would be likely to lead to further delays, and 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.
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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.
Finally, I 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 that 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.
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.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab): This was clearly not an easy decision for the Home Secretary to make. I know that she has asked for additional legal advice, medical advice and other evidence over the two and a half years in which she has had to consider this matter. That is testimony to the difficulties she has faced and to the challenges of the case. I have not seen any of the papers—the legal advice, the criminal evidence or the medical evidence—and it is for the Home Secretary alone to make a judgment that people will respect. She will know that it is not for me to second-guess her decision on this matter today. I do, however, want to ask her about the wider reforms that she has proposed, and also about the consequences of this judgment for other cases.
Let me first ask the right hon. Lady about the forum bar that she has proposed. As she will know, the last Government legislated for a forum bar, but the legislation has not been implemented. I think that that is because of concerns raised not only by Scott Baker but by the present and the last Government about some of the practical implications. Clearly delays, and the risk of delays, are important issues, but we shall be happy to work on the detail with the Home Secretary, through Parliament, and to discuss how the problems could be solved. However, I think that there is a wider issue that may not yet have been considered in the legal debate about forum bars. I refer to internet crimes, which constitute a growing proportion of overall crime. Conceivably such crimes could be committed in several jurisdictions at once. Wider discussions are needed about where they should be dealt with, and about ways in which our traditional extradition arrangements may not have caught up with a different kind of crime that is going to increase.
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There will clearly need to be international co-operation and consideration of how the problem should be addressed. I urge the Home Secretary to set up a high-level group with the United States, the European Union and other main countries with which we have arrangements specifically to consider internet crimes. However, I should like to know whether she feels able to do that, given her diplomatic relations with other countries.
We need a fair framework for justice in relation to cross-border crimes. We need to be able to bring people back to Britain to face justice, and we need a fair framework for extraditions from the UK. However, that fair framework will be possible only if it is drawn up through negotiation and co-operation with other countries. As the Home Secretary will know, there is already considerable concern about whether her approach to the EU, the opting out and opting in and the current relationship between the Government and the EU will make it harder to secure the sensible reforms of the European arrest warrant that we need.
Obviously our historic relationship with the United States gives us an opportunity to work together, whether on the bilateral protocol to which the right hon. Lady referred or on other arrangements. May I ask her whether there is a positive relationship between the Home Office and the US Government to ensure that such arrangements and reforms can be agreed to?
May I also ask whether today’s judgment has implications for other cases? Other people who are subject to extradition or immigration proceedings cite medical conditions as a reason for them not to be extradited. It would be useful for Parliament and the courts to understand the test that the right hon. Lady has applied, and to know whether it will set precedents for other cases.
Have the right hon. Lady’s medical advisers proposed any threshold for these decisions? She said that she had sought her own medical advice. Did that constitute a separate medical assessment of Gary McKinnon, which I understand she had sought, or a review of the assessment made by his doctors? Does the test have any implications or set any precedent for other extradition cases, such as the case of Haroon Rashid Aswat? The US Government have sought his extradition alongside that of Abu Hamza and others which the Home Secretary has supported. He is in Broadmoor at present, having, I understand, been diagnosed with schizophrenia. Has the Home Secretary changed her position on his case, or does it remain the same? Clearly there were issues involving his medical condition that she had to consider. Finally, let me ask her about the case of Richard O’Dwyer, whose extradition she has confirmed and who has not raised any medical issues. Will his case be affected by any of the changes that she has announced today?
I agree with the right hon. Lady that it is sensible to remove the role of the Home Secretary from decisions such as this. It has taken a very long time for this decision to be made. I think we would all agree that such cases take too long, and that it is in the interests of justice, the families involved and the victims of crimes for them to be dealt with far more speedily.
Mrs May: I thank the right hon. Lady for her approach in response to my statement. She raised three key issues. The first was about the forum bar and our ability to
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work together to consider these issues across the House and I welcome her suggestion of cross-party work. We all want to ensure that the measure can be introduced in a way that does not introduce delays to extradition proceedings and does not permit significant satellite litigation. I am sure that my right hon. and learned Friend the Attorney-General will have noted her offer.
The right hon. Lady then raised the question of cyber and internet crime, which is a key issue. We are conscious of the growth of cybercrime. That is why there will be a cybercrime unit in the National Crime Agency and why, when the Government took office, we set aside a significant sum of money over the four years of the comprehensive spending review to deal with both cyber-security and cybercrime. It is important to work internationally and I have already been party to a number of discussions with other member states in the European Union and with the United States; those discussions are ongoing. We all have a mutual interest in ensuring that we address cybercrime.
Finally, she asked a number of questions about my decision on Mr McKinnon. I have given the most careful consideration to all the material, medical and otherwise, in this difficult and exceptional case and I have concluded that the ordering of his extradition and his subsequent removal would give rise to such risk to his health and, in particular, to a high risk of his ending his life that a decision to that effect would be incompatible with his human rights under article 3. My decision is based on Mr McKinnon’s human rights under article 3.