Mr Blair extradited? Not as crazy as it sounds

From The Times
June 11, 2007
Mr Blair extradited? Not as crazy as it sounds
William Rees-Moggon

There has been little discussion in the press of the recent House of Lords judgment in the Dabas case. A friend has sent me the Opinions of the Lords of Appeal. I am sure that at least one other person in London will have read them: Cherie Booth, QC, who is the in-house lawyer of the Blair family, and a good one. If yesterday’s Sunday Telegraph is correct: “Cherie is worried about a prosecution – she still thinks it is a real possibility.”

If there is a prosecution of Tony Blair after he leaves office, it may arise either out of the invasion of Iraq in 2003, or out of torture allegations, probably at Guantanamo Bay, or connected to United Kingdom support for “extraordinary rendition”. In all probability, the charges would be made in some other European jurisdiction, under the laws of some other member of the European Union. That is why the Dabas case, though little noticed, is crucially important.

In this case, the Lords of Appeal defined the position in British law of the European “system of surrender between judicial authorities”. This system of surrender was “conceived and adopted” as a European Council Framework Decision on June 13, 2002, and was adopted into British law in the Extradition Act 2003. The 2003 Act also abolished the requirement that there should be a prima facie case made for extradition to the United States, and some other countries.

The basic facts of the Dabas case were outlined by Lord Hope of Craighead: “On March 17, 2005, a European arrest warrant was issued by the High Court of Justice, Madrid, for the extradition of the appellant, Moutaz Almallah Dabas, to Spain. The decision on which the warrant was based was an order by Judge Juan del Olmo Gálvez that the appellant should be subject to unconditional temporary imprisonment to await his trial for the offence of collaboration with an Islamist terrorist organisation in connection with explosions that took place in four trains in Madrid, with much loss of life, on March 11, 2004.”

There is no suggestion that the surrender of Mr Dabas would involve a gross miscarriage of justice. The allegation is one of conspiracy to assist terrorism, with major loss of life. All five law lords joined in dismissing Mr Dabas’s appeal. They closed all the loopholes.

In the case of the United States, one key problem has been the loss of the requirement that the country seeking extradition should show a prima facie case against the accused.

That has resulted in cases of apparent injustice against the “NatWest Three” and similar groups or individuals. In the case of Europe, there will be concerns about the acceptance that any European jurisdiction can demand the surrender of an accused party and that the requirement of “double criminality” should be removed in many types of case. Ms Booth may have been particularly disturbed by the partially dissenting minority opinion of Lord Scott of Foscote, which deals with the issue of double criminality.

One protection for the accused has been this requirement of “double criminality”; that principle requires that “the alleged conduct of the person whose extradition was sought was not only a criminal offence in the requesting member state but would also have been a criminal offence if done in the requested member state”. Even today, you cannot be “surrendered” to Ruritania unless your offence is against British as well as Ruritanian law. Unfortunately, there are exceptions to this wholesome rule, and Lord Scott has pointed them out.

If an offence can be punished under the law of the requesting state by more than three years’ imprisonment, then the double criminality safeguard ceases to apply to a variety of loosely expressed crimes: “Terrorism, corruption, racism and xenophobia, swindling, etc.” If a Ruritanian judge, anxious to make a name for himself, issues a European arrest warrant for a British ex-minister, and brings the warrant under the appropriate Ruritanian laws, the British courts will be bound to honour that warrant.

In the words of Lord Scott, “whether the conduct in question fell within a specified category was for the law of the requesting state to define”. Ruritanian law trumps British. Lord Scott went on to observe that “there has been no harmonisation of the criminal laws of the European Union member states, and, I believe, no widespread enthusiasm for any such harmonisation. So the possibility of surrender for prosecution in relation to conduct that would not be criminal in the requested state is a very live one”.

The problem is that the 2003 Act gives effect to the European principle that there should be “mutual recognition” by each member state of the validity of the judicial orders and decisions of other member states. As with the United States, where Harvard-trained lawyers can tremble before a Texas jury, so in Europe there can be very different standards in different jurisdictions. These are reflected in different laws, procedures and in the politicisation of judges, which is much higher in Italy, for instance, than it is here. The idea that all European courts are equal in character may be convenient, but it is a legal fiction.

Many people will think that the prosecution of Tony Blair is a remote risk; I do not, and nor, apparently, does Cherie Booth, who knows the law better than most people. One can remember the Pinochet extradition case, which was started by a Spanish judge, though the torture had taken place in Chile. The Council of Europe human rights organisation has found that Britain gave logistical support to CIA extraordinary rendition flights, and that Diego Garcia was used to process such prisoners. Apart from any other laws, the Convention on Torture, which Britain has signed, gives wide powers for judicial action.

I have sympathy with the old doctrine of sovereign immunity. I do not think the Labour Government should have accepted the European Framework or passed the Extradition Act in 2003. But it did, and that presents serious problems. We have made British extradition law respond to every judge in Europe and to the varying laws of every European country. That was a crazy thing to do.