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.
right now the DA says "either NAtWest is complicit in it or they don't
know what their people are up to - either way looks bad. blah blah
I see the jurisdiction issue & agree- but there's other fish to fry - what if some chap
in Zambia tries this?
- you might try callin in some chips - Bush is reasonable and no money need
be exchanged- present Attn Gen's about to be cashiered anyway -they owe you - a case can be made -destablizing's in no one's interest etc.
glenn schaefer, holbrook, NY USA
I expect we shall find that one of the unseen deals of the latest G8 summit will be an extension of "sovereign immunity" to apply to the laws that Teflon has broken.
Dave, Basingstoke,
Peter Higginson, Wolverhampton -
Which children whose education is improved? Which pensioners saved from death? Which Africans helped?
I am not an African, but I am a pensioner impoverished by he Brown/Blair regime. My grandchild had the usual difficulty in finding an acceptable high school to move on to. The National Health Service is a catastrophe and the hospitals pigsties. I need an operation, but fear that I might come out iller than I went in; this has happened to my own daughter (infection in childbirth) and my best friend (putrid left leg following routine operation).
Yes, our money has been spent on all these things. But where are the benefits? Where has the money gone?
Michael Bruce, Selby, Yorkshire
You know it won't happen. Broon will never allow it, to avoid this government being humiliated.
John Austin, Bromley, England
There will be no extradition.
Mr Blair will settle in the US - lucky him, to be able to choose a free country when you have enslaved your own!
john, london,
I feel sure that this extradition position will more likely be therapeutic than not. It could alter some rigid, ossified, English legal positions, especially those that are biased by politics. Why should it matter, if the trial in the extraditing country is subject to full publicity? Justice or otherwise, will then be seen to be done. People are constantly tried in this country for offences they didn’t commit, and in recent times they have frequently been wrongly convicted. I don’t say that that position would obtain in these extradition cases, because of the necessary extra focus, but why, in the inevitable process of law, should it not do so. It might prove to be just the shaking up that the law of this country needs. It does tend to throw the accent on justice, as opposed to British justice which has probably been over-rated for too long.
Henry Percy, London, UK
Let us not all jump with excitement regarding the fact that Blair can be prosecuted because the reality is the next prime minister will be Gordon Brown. Although Blair will not benefit from any immunity , the fact of the matter is if Blair is prosecuted while the labour government is in power a diplomatic tsunami will erupt. Two things will decide the prosecution of Blair ie time and labour not in power.
frank lebaron, london, uk
"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." Of course it was, and some of us tried to say so at the time! So what is wrong with our political system that we had a majority of MPs who were prepared to vote through the Extradiction Act 2003, and not only the general public but many of the MPs hardly noticed or understood what was being done? And would the Conservatives repeal it?
Denis Cooper, Maidenhead, England
And this Telegraphs with a clarity, the phoney Tony strategy of bungled operations for bumbling leaderships ........ .
<<Lord Goldsmith also wrote to Tony Blair on 14 March, stressing it was "essential" that "strong evidence" existed that Iraq was still producing weapons of mass destruction. The Prime Minister replied the next day, saying: "This is to confirm, it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of the obligations". The information he relied on for this had formed the basis of the now discredited Iraq dossier.
On 17 March, Mr Blair presented what was described as Lord Goldsmith's opinion, presented on one side of an A4 page, to the Cabinet. The following day, Parliament voted for war.>>
Unequivocally then, there would be no doubt as to who carries the can for waging a superfluous war in support of propping up a failing Currency and Intelligence.
AI`Quick Change in One will save the Other, meThinks, at no cost when paid in $$
amanfromMars, Seventh Heaven , Global Communications HQ
Blair has been good for the british economy and he is a good servant for us here in the states
If he is culpable for war crimes or crimes against humanity he should be tried in a court of law
No more partying in Barbados
roha dial, jax, fl/usa
Unless I'm missing something, the immunity attaching to former heads of government for their official acts would still apply in this case as a valid defense against such an assertion of jurisdiction over Mr. Blair.
Tim Kearley, Laramie, WY./USA
To Blair and his henchmen, I make the same observation that they have made to the electorate regarding the more intrusive interventions into our lives, planned or already effected - 'If you have nothing to hide, you have nothing to fear'.
Iam so intrigued that I must ask Ed Moran - What have you done that you feel so exposed to remote prosecution?
tom, Scarborough,
The extradition of Blair is a real possibility. I recently met a friend, an American human rights lawyer, who said there are groups planning to do a Pincochet on him. He conculded that the only place he would be safe would be the United States which does not recognise the War Crimes Tribunal. Busg is obviously protected by this fact and presumably will travel little after he leaves the White House.
Perhaps the labour Government will now rethink and rescind it is approval of the Extradition Act. Some hope, they are too busy giving our soveriegnty away.
oldasiahand, Kuala Lumpur, Malaysia
Tony Blair's chances of avoiding the consequences of his misdeeds became fewer and fewer the longer he clung onto power.
He should have copied Eden when he was found wanting, and gone to hide away in the country and kept quiet.
Maybe once there he could have ruminated on the little-known fact, that. it was he who fast-tracked around 100 muilahs into our country - with goodness knows what consequences ... .
Al, London, England
Just another reason to ditch Europe.
neil murphy, cromer,
Peter Higginson seems the only person who makes sense here. Blair has not been perfect but the success outweighs any failure. He was democratically elected for 3 terms.
Ben, York,
So if Ireland or Poland claims universal jurisdiction for abortion any doctor who provides abortion services anywhere in the EU can be extradited to face prosecution, and it would not matter one whit that abortion is legal in other member states.
Quentin Langley, Woking, UK
No doubt the law is complex - but for many of us the possibility that Blair might be called to account is seen in a very different way from William Rees-Mogg. Given the corruption of the British legal system by Blair and his friends 'the law officers', the prospect of him having to answer to a court he cannot intimidate/corrupt is delicious. Perhaps the vast funds supplied to Saudi royals in bribes, clearly illegal in British law, so possibly in the legal systems of other countries, might be included in the charge sheet?
Simon , London, United Kingdom
If Mr Blair rots in a foreign jail thanks to his government's dreadful 2003 while the Nat West Three are safely returned to their families I for one will be rolling on the floor laughing
edward green, Upminster, England
Well I've no complaint about losing sovereign immunity if it means that people who cannot be prosecuted in this country because of political pressure can be prosecuted abroad. Lets see everyone involved in the BAE corruption be tried in Itally, and most certainly we all want to see Blair, Straw and others in the dock at the Hague.
John Small, Faversham, UK
We are in Europe. Lets all be treated equally.
andy walters, rochester,
it would be nice to see him hoisted by his own petard.
james morrell, doncaster, england
I have a suggestion. Let us repeal the Extradition Act 2003 the day after Mr Blair is extradited. It would echo the way the Romanians abolished the death penalty the day after they executed Ceausescu.
jon livesey, Sunnyvale, CA/US
Lord Blair or prisoner Blair?
Blair's own fault is the cynical attempt to pretend that political judgments are justiciable. One recalls the cringe-making ruling by Attorney General Goldsmith that the Iraq war was "legal".
What kind of government defers to the edict of a lawyer (and prime ministerial flatmate) before starting a momentous war? The idea of treating this as a legal issue is bizarre, but is of a piece with the outlook of a failed rock musician who portrays himself as "a pretty straight kind of guy" and whose wife hires "lifestyle coaches".
An extradition request from Ruritania would be just deserts for Tony.
Hugh Clegmore, Reno, Nevada, U.S.A.
Jonathan T-M shouts "Hoorah!". I'm of a different mind.
Yes, Prime Minister Blair must not be above the Law but he also deserves the safeguards that the Law offers.
We (he!) should not have incorporated European law into The Extradition Act. No British subject should be deprived of the "double criminality" defence against extradition. I know it's ironic and fun that he is hoist by his own petard but I'm worried about the rest of us (especially me!)
Ed Moran, Torquay, England
I reckon 40-50 percent of the people who work in the Europe institutions would be ecstatic with joy if an extradition case was mounted.
Such a case would serve them well to show exactly who is the boss. Blair has many sins but they cannot be redeemed by a prosecution in a foreign court.
Christopher Gillibrand, Brussels, "democratic" Belgium/ Europe
Although there is little sympathy for Tony Blair, read this article again - the point is, it could be you next.
Dave Monk, Sudbury, Suffolk
Yes, well, aside from the cheap thrills of seeing Blair hoist on his own petard, this is a good example of the perils of Europeanisation.
It's very bad news if indeed any tinpot nitwit from Ruritania or elsewhere can foist a half-baked legal system on us so easily.
John Dempster, London,
Almost beyond fiction, a man who through legislation, (Human Rights Act) made his wife a millionaire, has made many more people criminals (Hunting, Handguns, Corporate manslaughter, et al) through insanely introduced legislation, should himself become a victim of that legislation.
Hooray for the blokes in white hats whatever their nationalitywill be.
Dave E, Berrow,
All this would be completely irrelevant if the UK were to have a modern constitution. Many countries, not only Russia as we now all know, but also, for instance Germany and the US, cannot extradite their own citizens to another jurisdiction. It's a protection granted under their Constitution. If someone is accused of a crime abroad and cannot be extradited, usually mechanisms exist to have a trial in the citizen's own country. A modern constition would have protected the Nat West 3. Perhaps if TB runs this risk he may regret not having shown more interest in that case.
Ed Zuiderwijk, Cambridge, UK
Presumably then Phil, he can be granted an amnesty for every life saved in Africa, every child lifted out of poverty, every torture victim released from Saddam's Basra prisons, every pensioner kept from death in Winter, every child's education improved, every patient spared death by cancer? Or is it just the nasty side of life the PM is responsible for?
Peter Higginson, Wolverhampton, UK
Oh what a tangled web we weave..........!
michael murphy, brightlingsea, england
It is a fitting end to the career of Mr Blair that he should become a victim of his own legislation.
The extradition of the Natwest three who committed no offence in this country, nor did they commit an office on American soil; was shameful. But Mr Blair was happy to allow the extradition to proceed.
When Blair faced down his critics protesting against an illegal war, he said he "would be judged by God". He certainly will, but let him be judged by his peers first.
There is something biblical in Mr Blair being prosecuted because of his own legislation.
David McLeish, Wilmslow, Cheshire
Oh yes PLEASE. Why the hell should Bliar NOT pay for his crimes against humanity. The sight of him smarming round the world on his legacy tour makes me - amd many others I kow - sick to the core.
Jeremy Poynton, Fromeville, 51st State
It is excellent news that Blair may - sooner rather than later - face prosecution as a war criminal. He deserves a life sentence for every life lost in Iraq.
Phil, Hong Kong,
This is great news. Better leave the world stage, Tony, and get down to writing your "memoirs". That'll probably be the only way you can pay for the legal advice you're going to need to avoid jail for war crimes. But then I forgot, there will still be the mortgages on five houses to pay.Oh dear.
caroline kennedy, San Jose, Costa Rica
"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."
You don't say?!
Tim Palmer, Leicester, UK
Thats all well and good but you have failed to factor in recent history regarding rule of law. Bliar and his government have broken many domestic laws, international treaties and they cannot be held accountable in the UK. There are many examples of prima facie cases against ministers of this government and yet they are all smothered by the government.
It has taken 18 months and no charges yet in cash for peerages , why is this?
The truth surrounding any case will only ever be established in a court, they are the only hope for justice, but we cant get any one of the many candidates near one.
The police apparently didnt find any evidence of torture flights in England, well thats because they were secret! We may once again have to rely on the SNP to get to the truth.
Bliar and his government have shown many times they are above the law and this will not change until we find a political movement with integrity.
Steve, lon, uk
Hoorah, hoorah.
Let someone please bring Blair (the so called 'quai president') to justice. History will show his arrogance and absolute disregard for British parliamentary democracy and for British cabinet government and decision making. It is time that these so called 'Leaders', and lets not forget that Brown is NOT ELECTED as Prime Minister and leader of the Labour Party, understand what responsibility and leadership really mean. And that they like so many others are 'SERVANTS ' of the British public NOT THEIR DICTATORS.
Jonathan T-M, Malta,