Mr. James Smyth (Extradition) (Hansard, 17 December 1993)

§ Mr. Ken Livingstone (Brent, East)
I have been associated with many of the campaigns against miscarriages of justice that have resulted from the problems of Northern Ireland and the way in which those problems have spilled over into Great Britain during the past 25 years. I must start by making it absolutely clear that I do not for one minute believe that injusticies have been done only to nationalists and Catholics. Many miscarriages of justice have been perpetrated against the majority community and loyalists in the north and I have been associated with the campaign for the UDR Four.
Whereas in war, truth is the first casualty, in the dirty war that has been going on during the past quarter of a century, justice has been one of the first casualties, as the urgencies of the hour have tended to lead to unreasonable decisions that are taken without due regard for the facts.
My involvement in the case of Jimmy Smyth arose because I happened by chance to meet him and his defending counsel when I addressed an Irish Americans for Clinton rally, just before the November presidential elections in California. Following a discussion about the work that I had done in the House, I was asked to submit to the defence 242 questions that I have tabled in Parliament, 30 written questions, 13 oral questions and six of my speeches. That led to my being invited to appear to give evidence in court, as an expert witness on British Government policy. The Government may not have been terribly happy about that, but I seem to have spent a great deal of time examining British Government policy.
I must read into the record two decisions taken by the judge presiding over the case because they are very concise and easy to follow and enable me to boil down the essence of the matter very rapidly—

§ Mr. A. Cecil Walker (Belfast, North)
I beg to move, That strangers do withdraw.

§ Mr. John D. Taylor (Strangford)
They have been nominated. On a point of order, Mr. Deputy Speaker. You asked for names for the Tellers for the Ayes and my hon. Friend the Member for Belfast, North (Mr. Walker) said, "Mr. Cecil Walker and Mr. John D. Taylor."

Mr. Deputy Speaker
Order. Both hon. Members have been in the House long enough to know that the Chair looks to one side for the Ayes and to the other side for the Noes. I looked to the right and there were no Tellers in position for the Ayes. The hon. Gentleman should know the rules of the House. The Tellers for the Ayes were not present.

§ Mr. Livingstone
I hope that hon. Members who are interested in preventing this debate will not miss any of it. As I did not expect to continue my speech, I lost my place in my notes.
The case in question is taking place at the moment, and yesterday the closing written submissions were submitted by the defence and the prosecution. The court's written judgment is expected to be delivered some time after Christmas. Before I was so rudely interrupted, I was about to read into the record two accounts written by the presiding judge that perfectly capture the specific problems in understanding this case. They are two judgments by Judge Barbara Caulfield, a United States federal judge who was appointed by President Bush on the nomination of the Republican senator for California, Senator Wilson, who is now Governor Wilson. This is not some dear old radical hangover from the good old days of the new deal: it is a fairly recent judicial appointment under the Republican Administration.
This is the first airing and testing of the extradition treaty that was negotiated by Prime Minister Thatcher with the then President Ronald Reagan. The House will recall that the British Government were profoundly unhappy with the operation of the previous extradition treaty and, after considerable pressure by Mrs. Thatcher, an amendment was carried. It is under that that the case is being heard.
On 14 September 1992 the United Kingdom filed a formal request for the extradition of James Joseph Smyth to serve the remainder of his sentence for a 1978 conviction in Belfast, Northern Ireland. The case is being heard under the supplemental extradition treaty between the Government of the United States and the Government of the United Kingdom which went into effect on 23 December 1986. That is quite specific. The treaty negotiated by Mrs. Thatcher with former President Reagan spells out that extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. It is remarkable that such a wide-ranging defence opened up after Mrs. Thatcher's intervention, because that ruling effectively changed the way in which extradition cases would be heard. Now, the British Government and their conduct of policy are on trial.
Judge Caulfield issued a decision on 29 September 1992 on whether Jimmy Smyth should be granted bail. It examined the basic bones of the case, based on the judge's reading of the Diplock judgment that convicted Mr. Smyth in 1978. She stated: Mr. Smyth has indicated that he will attempt to prove at the hearing that he is not guilty of the crime of attempted murder for which he was imprisoned in 1977. He will argue that his imprisonment was the result of his political views and religious background rather than his conduct. He has indicated that he will offer expert testimony regarding the due process problems of the Diplock court system which can lead to unjust convictions and did so in his case. This court has had an opportunity to review the opinion of the Diplock judge who convicted Mr. Smyth in 1978. The evidence against him was almost entirely circumstantial. The fact that the victim and his wife, who were purportedly in the presence of the perpetrators for ten to fifteen minutes, were unable to identify Mr. Smyth is noteworthy, as is the lack of any forensic evidence connecting Mr. Smyth to the crime scene. Despite the fact that 1464 numerous fingerprints were recovered at the scene none of them were Smyth's. Indeed, the only eyewitness evidence against Mr. Smyth was the testimony of an off-duty police officer who stated that he saw a man near the victim's house, lost him three times as he chased him in his car and eventually captured Mr. Smyth about a mile away from the crime scene. This is not a case where the defendant argues that the evidence does not establish his guilt beyond any reasonable doubt; rather it raises serious questions about the validity of Mr. Smyth's underlying conviction. Between 1972 and 1976, Smyth was detained on at least six occasions. Only once was he charged or convicted of any offence —that being in 1972 when he was sentenced to six months for disorderly conduct; a conviction that was overturned on appeal. On one occasion, Mr. Smyth was interned for an entire year without charges. He maintains that, during his detentions, he was beaten by police and military personnel. After Mr. Smyth's internment, his name was in the police files. He was stopped and questioned by police as many as four times per week while walking home. He was often put up against a wall, spread-eagled, and then soldiers or police would come up behind him and stomp on his feet. On one occasion, Mr. Smyth was kicked between the legs. On another occasion he was given two black eyes. Mr. Smyth has also offered to prove and has presented some evidence which indicates that his life was threatened by guards when he was imprisoned in the Maze. Such a threat was specifically noted in the opinion of Judge Babington, the Diplock judge who convicted Mr. Smyth. In addition, Mr. Smyth has offered to prove that other men who escaped from the Maze prison with him and have been released from prison have been killed by British military personnel and protestant Loyalists. He has further offered to prove that men from his cellblock who remained behind when he escaped were subjected to inhumane treatment. He has offered to prove that guard dogs were set on them and they were denied medical treatment for their resultant injuries. Judge Caulfield concluded: This case is distinguishable from other recent reported cases in which Irish nationals have fought extradition to the United Kingdom in that Mr. Smyth denies membership in the IRA. And indeed, the government has presented no evidence to indicate that Mr. Smyth has ever been charged with membership of that organization.
The case started to deteriorate when Mr. Smyth's counsel asked for discovery of certain Government documents. It seems quite remarkable that if we seek to extradite people from the United States that we should then ignore American court procedure and traditions in hearing the case. The defence asked for access to several Government reports. I shall quote once again from the judgment handed down by Judge Caulfield after the British Government refused to grant the documents.
Of the Stalker-Sampson reports, the report says: The Stalker-Sampson reports arise out of the investigation of officers in the Royal Ulster Constabulary ("RUC") for the shooting deaths of six people in 1982 whom they suspected of being members of the IRA. The purpose of the inquiry was to determine whether or not criminal offences (involving, inter alia, the giving of false or misleading evidence and conspiracy to pervert the course of justice) had been committed … The UK maintains that the reports contain highly sensitive information regarding internal affairs investigations and the procedures and identity of security forces personnel. The Kelly report: In 1988, Charles Kelly, the Chief Constable of Staffordshire, was appointed to consider whether disciplinary charges should be brought against RUC officers of the rank of chief superintendent and below who had been identified by Stalker and Sampson as having committed criminal offences, including murder. The declarations of Patrick Mayhew, the Secretary of State for Northern Ireland, filed on June 7, 1993 and June 18, 1993, do not specificially invoke a state secret or national security privilege claim with respect to this report. Instead, Mr. Mayhew states that '[t]he public interest here is in the maintenance of an honorable, disciplined, law-abiding and incurrupt police force.' Mr. Mayhew's declarations not only fail to specify that he has read the report, but they also fail to specify that the report contains any state or national secrets. 1465 The Stevens Inquiry: … into allegations of collusion between members of the Security Forces and Loyalist paramilitaries. As a result of the investigation, the RUC confirmed that Security Forces personnel had disclosed to Loyalists photos of republican suspects and the names, addresses and photographs of more than 400 people from the Catholic community in Northern Ireland. With respect to the Stevens' Report, Mr. Mayhew's June 7, 1993 declaration states: 'So far the actual report is concerned, I am satisfied that its disclosure would be injurious on two grounds; firstly the integrity of the process of criminal investigations and the making of decisions as to prosecutions and secondly, the efficacy of the efforts of the Government of the United Kingdom to counter terrorism and the protection of persons involved in those efforts.' A summary of this report has been disclosed to Smyth; however, the court finds that the summary does not contain sufficient detail to aid Smyth in preparing his defense … The government of the United Kingdom, through the United States Attorney's office for the Northern District of California, has refused to produce any of the above-referenced documents to Mr. Smyth. The UK has also refused to permit an in camera review of the documents by the Court … In light of Smyth's strong showing of need for the documents and the vagueness of the UK's declarations invoking privileges from production, the court viewed that an in camera review of the documents was necessary …
That was refused by the British Government. It seems to me that it is not a good start to a case when one insults the judge by suggesting that the judge may not be someone that one would trust to review the documents.
The judgment continues: The court welcomed any suggestion from the UK regarding the redaction of particularly sensitive information regarding the identity of activities of security forces personnel. In response, the UK has indicated that it would not be possible to redact the documents and declined to submit the documents for in camera review by the court. In conclusion, the judge ruled: For the foregoing reasons, the good cause appearing therefrom, the court grants Smyth the following presumption: (1) Catholic Irish nationals accused or found guilty of offenses against members of the security forces or prison officials are subjected systematically to retaliatory harm, physical intimidation and death in Northern Ireland. (2) Members of the security forces in Northern Ireland either participate directly or tacitly endorse these actions.
That is the result of the British Government's failure to co-operate with the court and provide the documents. The court has conducted its business on the basis that those presumptions are taken as true. I submit that that represents a gross misconduct of the British case. I hope that we shall hear today which politician, and at what level, decided that those documents should not be submitted to the court, not even in camera, for the judge to consider.
As the case wound its way through the courts, the problems associated with it were compounded by the fact that, on 31 occasions, British Government witnesses refused to answer direct questions in court. That created the impression in America that those officials were rather like the godfathers who appear in mafia movies and refuse to answer questions on the ground that they might incriminate themselves. I should like to be told which politician, or Minister, was responsible for deciding that British Government officials should refuse to answer questions on oath in an American court.
The evidence against Mr. Smyth is flimsy and I believe that he is innocent. Normally, no IRA member denies membership of the organisation; rather he or she refuses to co-operate with the court system. Those IRA men who 1466 escaped from the Maze along with Mr. Smyth went back to bombing and killing, but he got to America, married and settled down to become a painter and decorator. There is nothing in that to suggest that Mr. Smyth is guilty of the crime of which he is charged. He was convicted at a time of hysteria when anyone whom the security forces considered to be a threat was likely to be convicted, on virtually no evidence, in a Diplock court.
The final evidence in my case is absolutely damning. On my advice, I suggested that the American court should call Captain Fred Holroyd as a witness. The House will be aware from the many other questions that I have put in the past that he served for two and a half years in Portadown with distinction and courage. He operated many agents —who put their lives on the line—in the area on behalf of MI6.
Fred Holroyd appeared in court and gave testimony. The British Government, however, were unable to question him because, although they had been given a week's notice, they claimed they did not have enough time to prepare detailed questions. They had no rebuttal to the evidence of Fred Holroyd. Given that the row has gone on for 20 years, it is completely unacceptable for the British Government to say suddenly that they did not have time to prepare questions to challenge his evidence.
I believe that Fred Holroyd finally got his day in court. The British Government had no case to answer the charges that he has made for years, for which he has been rubbished and his reputaion smeared by the British press.
As I came out of the American court I was met, as the House can imagine, by a large number of British journalists and we held a press conference. They asked me whether I had been traitorous and suggested that my behaviour had been outrageous. I can back to them with one simple reply, "Was there anything that I said in court which you would say was untrue?" Not one journalist could point to such an instance.
The conduct of the case has not just been mishandled, but it has damaged Britain's reputation. The Government have pursued an innocent man who is now suffering severely from ulcers after years of worry and strain. I hope that when Mr. Smyth wins his case, as I expect him to do, the British Government will recognise that they made a mistake. They have pursued an innocent man. I hope that they will not drag him through further years of doubt and worry, which will damage his health. I hope that they will let the case drop.
I am sorry that I have overrun my time. I have tried to squeeze my remarks into a shorter speech, but it is not my fault that we have such a problem.

§ The Minister of State, Northern Ireland Office (Sir John Wheeler)
It is customary on these occasions to congratulate an hon. Member on securing an Adjournment debate and I do so now.
In the limited time available to me, I shall try to catch up on some of the points that the hon. Member for Brent, East (Mr. Livingstone) has made, even though his recollection of the proceedings in San Francisco is highly selective. The hon. Gentleman referred to the allegations of a Mr. Fred Holroyd. Her Majesty's Government had 48 hours' notice, not a week, of Mr. Holroyd's appearance before the court in San Francisco. He gave evidence and he 1467 repeated and embellished allegations that he has made over a number of years and which are certainly now well known and in the public domain.
Rather than having his day in court, I am afraid that Mr. Holroyd departed from it. Before the Government could cross examine him and call witnesses to refute some of his extremely serious allegations, he claimed that he had a more important engagement elsewhere. He decided to leave San Francisco rather than to face cross-examination. The judge, in her wisdom, accordingly struck Mr. Holroyd's evidence from the court record—so much for the testimony of Mr. Holroyd.
The hon. Gentleman referred to the Stevens report and the allegation that Her Majesty's Government refused to disclose aspects of that report during the court proceedings. It is important to deal with that issue at the outset of my remarks. Her Majesty's Government refused to disclose or to discuss the report because it is entirely irrelevant to the issue in the Smyth case. The issue is whether a terrorist who is convicted of attempted murder and who escaped from prison should be returned to Northern Ireland to continue to serve his sentence. In any event, Her Majesty's Government would not disclose or discuss the Stevens report because to do so would give information to terrorists about security and intelligence structures in Northern Ireland that could lead only to more death and destruction. I cannot believe that any Member of the House would wish to see that continue.
I am grateful to have the opportunity to respond to some of the hon. Gentleman's remarks about the San Francisco trial in which Mr. James Smyth is engaged. It will help the House to know that Smyth was convicted in 1978 of a number of offences including the attempted murder of a prison officer, John Carlisle, who was shot at in his home in Belfast. For his part in the offence, Smyth was sentenced to 20 years imprisonment.
In 1983, Smyth participated in the violent, mass breakout from the Maze prison with 37 other prisoners. He was subsequently arrested by the Federal Bureau of Investigation on 3 June 1992 in San Francisco, where he had lived for eight years. He had in his possession a false passport in the name of a person who has been dead for many years. He was charged with making a false passport application with another Maze escaper, who had been arrested on the same day. A third Maze escaper, Paul Brennan, was arrested in California in January.
1468 The Government's policy is to return all fugitive convicted terrorists to custody. All three men were convicted of serious crimes and Her Majesty's Government seek the return of all of them. James Smyth's extradition hearing is being dealt with first. It will be the first terrorist case that has arisen since the 1986 United States—United Kingdom supplementary treaty, to which the hon. Gentleman referred. That treaty was negotiated between the British and American Governments to eliminate the so-called political defence. That defence enabled Provisional IRA terrorists to escape extradition by claiming that their offence had a political motive. If it were not for that treaty, James Smyth might have argued that his attempted murder of a prison officer was a political offence and he might have escaped extradition on that basis.
I am sure that right hon. and hon. Members will agree that the 1986 supplementary treaty was an important advance in international co-operation against terrorism. In James Smyth's case, on which the judge has not yet decided, Smyth is arguing that, on return to Northern Ireland and after his release from prison there, he will suffer punishment, detention or restrictions of his personal liberty. Smyth says that that is because he is Irish, Catholic and a nationalist. I can tell the House that the Government have contested that argument resolutely. James Smyth will suffer no such thing. He will be fairly and properly treated in prison, as he was before he escaped; and when he is eventually released, he will be free to go about his business like anyone else in Northern Ireland as part of the United Kingdom.
Right hon. and hon. Members will be aware that the hon. Member for Brent, East, as he disclosed, took it upon himself to give evidence on behalf of James Smyth in San Francisco in October. Hon. Members may recall that the hon. Gentleman told the court that, once elected, the British Government have powers similar to those of the old eastern European regimes. That may surprise hon. Members.