On Liberty (5 page)

During the height of the Iraq War, whole counties of England and Wales were designated for stop and search without suspicion – just as all of Greater London was secretly designated on a rolling basis from 2001. If you go back to my airport or Palace of Westminster analogy, a designation on that scale cannot possibly be used against everyone in the area and can instead only become a tool of discrimination or oppression against peaceful dissent or young black and Asian men in particular. Indeed the official statistics for 2007–8 revealed that only
0.6 per cent of these searches ever led to an arrest, let alone a criminal charge, and that black and Asian people were between five and seven times more likely to be stopped under section 44. This fact was not lost on the much-maligned Court of Human Rights. In 2010 the coalition government replaced and tightened up the power, introducing greater safeguards against abuse by accident or design, but two similar and equally divisive provisions remain untouched.

Often it takes the implementation, rather than the passing of badly thought-out laws to bring them to public attention and to provoke a concerted response. Just as it took the suppression of the hunger marches to induce the birth of NCCL–Liberty in 1934 and the arms fair affair in 2003 to expose section 44 to greater public gaze, the power in Schedule 7 of the same Terrorism Act of 2000 failed to attract any real public or political attention until it was used in 2013 to detain David Miranda (the partner of a
Guardian
journalist who had worked with the whistleblower Edward Snowden in exposing the scale of blanket internet surveillance on entire populations by the US and UK security communities). Prior to the Miranda incident (and how appropriate that David should share his surname with the Miranda of the US test case that led to people being read their rights on arrest) the power to detain without suspicion people (including British nationals) coming into the United Kingdom for up to nine hours had been almost exclusively used against Muslim passengers.

And while it is a positive development that section 44 has been tightened, the similar power contained in ordinary policing legislation for dealing with gun and knife crime rather than terrorism is subject to even lower-level internal police authorization and remains on the statute book to harass and alienate generation after generation of young black men in our inner cities, creating an instinctive suspicion of or even hostility to the police force that ought to provide a comfort or even a career opportunity for the law-abiding and public-spirited young.

Yet if powers passed even before the War on Terror could lead to such unexpected, unfortunate and counterproductive results, what of those passed after the Twin Towers atrocity when fear stalked the land on both sides of the Atlantic?

Extradition is surely an obvious case in point. This is the process by which the authorities of one country send a suspect or defendant who faces charges in another to face trial in the place where he has allegedly offended or where it is otherwise most obvious that he should be dealt with. No one, as far as I can tell, has ever credibly argued for a world where escaping across an international border ‘train robbers’ style’ should allow someone to escape justice from those they may have wronged. Yet to be taken from your work, family, community, language and legal system to another country where they do things differently, and where you may have never voted, let alone offended, and where you will most likely not get bail in the months or years pending trial, can be a punishment in itself for someone who we need to remember is to be presumed innocent at this stage in the process. So certain legal safeguards should surely be in place to minimize the dangers to the innocent.

Surely no one should be taken from their home on the basis of a charge that doesn’t even amount to a crime in the country where they now live? To prevent ripping people from their lives on trumped-up charges, a basic case should surely be made out to a judge in a local court before the accused are sent to face trial in another country? And if a significant part of the alleged offending conduct took place at home (as with crimes involving the internet, where you need not have left your computer let alone the country), a local court should have the discretion to decide whether it is in the best interests of justice that you be sent abroad or considered for prosecution by the authorities here in the UK.

To be fair, prior to 9/11, extradition had become a long-winded and convoluted process, but babies and bath-water
come to mind in the context of what happened next. The New Labour government signed up to a new one-sided treaty with the United States, allowing people in the United Kingdom to be sent over there for trial with little more than a by your leave, while Americans, with their entrenched constitutional protections, remained entitled to some scrutiny of the case against them in a US court before being extradited over here. Then there was the European Arrest Warrant, agreed within nine months of the atrocity, which would effectively treat the European Union as one federal state for the purposes of extradition, but without harmonizing the criminal laws or police station and fair trial protections first.

I am an internationalist, not least because I believe human rights to be universal and human beings to be of equal worth and entitled to protection whatever the accidents of birth, history and geography. So I can hardly speak against greater international cooperation between the governments of our shrinking planet. Yet it seems telling that the cooperation that they espouse is so often one of governmental and administrative convenience, while they simultaneously undermine universal human rights protections agreed by democrats across the globe after the Holocaust and the Blitz.

Challenges and threats whether posed by crime or our changing environment are global and so our responses must be international as well. Yet the individual human being cannot be so much lost in this equation that human rights and legitimate participatory democracy vanish from the process.

If we were robots or supermarket products, summary or instant extradition wouldn’t matter as long as we could be sure of a fair trial at the end of it. But of course, we are neither androids nor sacks of carrots and to be taken from your home, job, family and community, away from your supporters, advisers and quite possibly language and legal system as well, to be detained in a foreign jail for months on end as a ‘fugitive offender’, can be punishment in itself whatever happens next.
The practical and psychological pressure to trade a guilty plea for the promise of a lenient sentence or the opportunity to serve it out back home can prove irresistible, particularly in a country without legal aid and where the costs of defending yourself against political prosecutors out to prove a point could cost you your home and any savings you have.

There is also the question of the ‘legitimacy’ of the law and why we feel bound by it. In a democracy, one obvious reason is that, particularly as adults of voting age, we have a democratic stake in the political community that created it (whether we actually voted for or agreed with the specific law in question). When we travel to another country, there is an element of ‘… when in Rome’ and playing by the house rules of another land where we are to considerable extent a guest. But what if you never left your own home or office, let alone your country, but find yourself subject to the tentacles of the authorities of a foreign power, most likely because of your activities on the internet over which legislators and enforcers assert authority across oceans and continents? What stake and say could you have in your subsequent treatment, particularly if universal human rights (as opposed to the rights and privileges of citizens) are not respected and even undermined?

Then there is the question of whose idea of that wonderful flexible friend ‘the public interest’ is being considered. Extradition law and practice can be a strange cocktail of domestic and international law and politics. In some countries (for example some in Europe) there is theoretically a duty on prosecutors to enforce against every breach of the criminal law. It is a strange notion to those of us in the common law world, and one feels sure it cannot be applied universally in practice. In other jurisdictions closer to our own, prosecutors look not just at the evidence in the case and the elements of the criminal offence but at the public interest in taking matters further.

This can mean considering the balance between the seriousness of the offence and the practical and financial costs of
prosecution and the best use of resources. Also and crucially, it can involve a closer, humane and discretionary examination of the circumstances of the alleged offender and indeed any victims and families. So it is this public interest discretion (around which the Director of Public Prosecutions will from time to time set out guidelines) that, for example, allows some assisted suicides or even mercy killings of the terminally ill and debilitated to go unpunished in our country, even though there has been no formal change in the law of homicide to deal with these incredibly difficult cases.

Further, the vulnerability and other circumstances of the alleged offender can be relevant. However, all too sadly, it isn’t just in our own country that the public interest in compassion over vengeance seems less compelling when the authorities are dealing with a foreign national rather than someone with local community or national support. How easily may bilateral treaties, and even domestic statutes passed in the name of dealing with terrorists, be employed in completely surprising ways?

The first
cause célèbre
under the Extradition Act 2003 involved the so-called ‘NatWest Three’ (despite attempts by US and UK authorities to rebrand the defendants as the ‘Enron Three’ in an obvious attempt to hype the case and assert the legitimacy of American jurisdiction). Three British businessmen – David Bermingham, Giles Darby and Gary Mulgrew – were accused by US prosecutors of defrauding their former employer, NatWest, out of more than $7 million. They denied the charges and NatWest itself never made any allegations against them. The US authorities waited for the new Extradition Act 2003 to come into force, in January 2004, before seeking the trio’s extradition. Despite being British citizens, living in London, accused of defrauding a British bank also based in London, the men faced the prospect of being hauled across the Atlantic, away from their families and loved ones, to face trial. And, under the new Act, the UK courts were unable to bar such removals, even when the conduct leading to the alleged criminal activity had
taken place here. The trio, supported by my Liberty colleagues and a broad campaign to which the irrepressible Digby Jones (then of the CBI and now a cross-bench peer) lent his voice, pushed hard for the introduction of a new ‘Forum’ clause that would force prosecutors to make the case for extradition before a UK court first. That amendment was supported by the Conservatives and Liberal Democrats (in opposition at the time), but defeated by the Labour government.

Charles Clarke, the then Home Secretary, endorsed the NatWest Three’s extradition in May 2005. The men appealed to the High Court – a case in which we at Liberty intervened – but lost after the government argued that honouring international extradition treaties must come first. Despite growing public support for halting the trio’s extradition, the government claimed there was nothing it could do and the men were sent to the US in July 2006. After being unable to access witnesses or documents from Texas, they entered into a plea bargain in November 2007 in exchange for a promise of repatriation. In February 2008 they were each sentenced to thirty-seven months in prison. They were first jailed in the US before returning to the UK to serve the remainder of their sentences.

David Bermingham, a former law student and army officer, went on to write his own powerful story about his experiences,
A Price to Pay
. One of the many things that surprised me about this episode was the way in which some journalists, commentators and even members of the legal community found it so hard to see past the privileged lives and high-octane City lifestyle that these men had once enjoyed to the fundamental dangers and unfairness of the politics and process they were being subjected to. My friend and stalwart campaigner for fair extradition Melanie Riley was also sometimes attacked because of her role as a public relations professional. All I can say about that is that we can all choose to use our skills for our beliefs as well as for money, and
pro bono
campaigning by someone who usually makes their living at it seems no less laudable to me
than
pro bono
advice and representation from a lawyer in private practice. Melanie continues to campaign in this area and has helped many of those facing summary extradition regardless of their race, religion or financial circumstances.

Meanwhile, retired British businessman Christopher Tappin found himself at the mercy of our extradition arrangements after being accused of conspiracy to export missile parts from the US to Iran. It was part of a ‘sting’ operation set up by US immigration and customs enforcement officials. Mr Tappin insisted he was merely a freight provider – arranging the shipping of industrial batteries from Texas to the Netherlands. Again, the evidence against him was never tested in a British court. There was no judicial discretion allowed as to whether Mr Tappin’s case might be better served by a trial in the UK. Instead he too faced being flown thousands of miles from home, away from his sick wife, despite the fact that all of the allegations were connected to conduct on British soil. Mr Tappin’s extradition was ordered by the Home Secretary in April 2011. In January 2012, he lost his final appeal against removal to the US under the Extradition Act. The following month, he was handed to US marshals and put on a flight to El Paso in Texas.

I will never forget appearing on a popular phone-in radio programme that same lunchtime. The interviewer played me a recording of Mr Tappin’s final public comments before boarding the aeroplane at Heathrow airport. He was understandably upset and remarked on how unfair he thought it was that the Jordanian terror suspect Abu Qatada could not be deported for fear he would be tortured in his own country, while Tappin was being bundled off from Britain. I certainly understood his anguish but attempted to remind listeners of the ease with which any one of us might be seen as a ‘foreign terror suspect’ in another land. Out in Texas, Christopher Tappin was not going to be viewed as a pillar of his local community, but as a foreigner accused of arming Iran. In Texas then, he would look
somewhat like Mr Qatada could seem to British eyes. Following difficulties in mounting a defence, including getting witnesses to testify in the US, Mr Tappin pleaded guilty after reaching an agreement with prosecutors. He spent six months in jail in Pennsylvania before returning to the UK to serve the remainder of his sentence.