What response to Chris Tappin's extradition? Silence in court

http://www.guardian.co.uk/politics/blog/2012/feb/29/chris-tappin-extradition-silence-court

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I felt some sympathy for Chris Tappin, the 65-year-old British businessman and golfer who has just been extradited to Texas on what he calls "preposterous" charges of illegally shipping air defence batteries to Iran. Before he left Heathrow handcuffed to a US marshal, Tappin complained that he seemed to have fewer human rights than Abu Qatada, the incendiary vicar whose unwanted presence here is costing us all so much money.

How are the cases linked except by Tappin's bitterness that he can be removed to the States via the controversial 2003 US-UK extradition treaty while Abu Qatada can avoid deportation to his homeland, Jordan, on the grounds that evidence used against him in terrorist proceedings may have been obtained by torture of witnesses?

Because the European court of human rights (ECHR), which is preventing the British government from shipping out the cleric – now that he has been released from detention, surveillance is costing many thousands of pounds – declined to intervene in Tappin's case with the result that he appeared in court in El Paso on Wednesday, a break from his 23-hour-a-day solitary confinement without books.

This has naturally enraged critics of the 2003 treaty and websites like usextraditionvictim.co.uk. Tappin's wife, Elaine, gave evidence to a Commons committee examining the treaty on Wednesday. On the same day the attorney general, Dominic Grieve, told the same MPs that ministers are unhappy with the law – and may change it to allow more suspects to stand trial in Britain instead. Gary McKinnon, the alleged Pentagon computer hacker, is only the most celebrated of such cases.

This is tricky territory. Many people feel that foreign jurisdictions, with different legal habits and language, are often biased against an accused from another country, though in fairness Russian oligarchs seem to like the high court in London, where their squalid feuds over the money they stole from the ruins of communism contribute (so we read last week) to a £19bn-a-year legal industry.

It's part of what we loosely call "services" and we're all supposed to benefit from the "trickle-down" it creates. There is, for example, a terrific coffee stand in St Dunstan's churchyard just outside the court on the Fleet Street side. That sort of thing.

But a retired senior judge, Sir Scott Baker, reviewed both the US-UK extradition arrangements and the equally fraught European arrest warrant (EAW) last year and came to the conclusion that both work pretty well. As you can see here, not everyone agreed. Tory MPs such as Dominic Raab are on the case.

The judges examining Tappin's two-year fight – he was arrested at dawn in 2010 three years after first hearing of what he calls an FBI entrapment sting – said it wasn't about "innocence or guilt" but about due process. The US authorities did not have to present any of their evidence against the suspect. Yet, as the Baker review's critics said, that assumes an equivalence in the way other jurisdictions work, their values and procedures being not so different from ours.

The awkward fact is that the US, though it shares our own common-law heritage, has a much more punitive view of the legal system, one which is also marked by the rough justice known as plea bargaining – pleading guilty to a lesser charge in the hope of leniency – as well as violent and terrifying prisons. US states also retain capital punishment on a wide scale.

As for Europe, well, we often see cases which underline the differences (think the Italian circus that was the Amanda Knox trial or Silvio Berlusconi's brushes with the courts) in ways which are alarming. Besides, some signatories to the European convention on human rights do not extradite their citizens, France as well as very lawless Russia. It's right that people who commit crimes should not be able to flee with impunity – think how cross we get when a killer or rapist disappears into eastern Europe – but there are too many bad cases around to indicate that more protection may be necessary. An illegal immigrant like Abu Qatada isn't the only one with rights.

By coincidence, the Guardian has just obtained a draft of David Cameron's plans to strengthen national controls at the expense of the ECHR, whose critics say adopts an expansionary and interventionist role for which its creators in the war-weary 1940s did not intend it. There's plenty of evidence to support that view, not least the volume of case work building up: "concentrate on the important stuff" is the message which the coalition will be urging at a Council of Europe summit the UK will chair between 18-20 April in Brighton.

According to Owen Bowcott's account, the plans seek to expand the established EU principle of subsidiarity (the Council of Europe and ECHR pre-date the founding of the EU and are separate) by which things should be settled at the lowest level of appropriate competence – a good rule in life.

Also proposed is expansion of what's known as the "margin of appreciation". That means that states would acquire larger discretion to interpret the human rights convention's articles in ways that suit local traditions. No votes for prisoners would be one example that will be in No 10's mind. Abu Qatada's travel plans would be another. Cameron set out his views last month – and Francesca Klug gave him a ticking off here.

The legal commentator Joshua Rozenberg, a pretty level-headed fellow, sets out the snags and options here, predicting that Britain will have a fight on its hands before the supreme court – created across from the Palace of Westminster by the Blair government – becomes more supreme than it feels at the moment. It too is in an expansionary mood; what is known as "judicial activism" is all the rage as the battered political elite lose their self-confidence to lawyers and the corporate elite.

I sympathise with the politicians – at least we can vote them out – until I come across some high-handed initiative like the "closed material procedures" proposed in Ken Clarke's new justice green paper. Toby Helm explained them here and they might allow the authorities to cover up all sorts of official mistakes and worse: from the killing of Charles de Menezes, the 22/7 tube victim, to the long-running dispute over mistreatment of Guantánamo detainee, Binyam Mohamed.

Ministers and assorted security services do have a problem with classified material, but we have a problem with ministers and the security lobby. If this week's revelations at the Leveson inquiry do nothing more, they underline the need for more openness and accountability, not less – though I am not sure where else in the EU we would witness an inquiry quite like Leveson (examples please?).

Either way, the old Roman question remains applicable both to our own courts and those in Strasbourg (the EU court in Luxembourg too): <em>Quis custodiet ipsos custodes</em>? It roughly translates: "Who will police the police and courts?"