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30 March 2012

Corker Binning partner comments on US/UK extradition treaty

In an article in Legal Week, Andrew Smith, partner, Corker Binning considers the recommendations of the Home Affairs Committee on how best to remedy the perceived imbalances in the US/UK extradition treaty.

Not so special relationship – overhauling the ‘unbalanced’ UK/US extradition treaty

Earlier today the House of Commons Home Affairs Committee published a report on the US-UK extradition treaty. A further report on the operation of the European Arrest Warrant (EAW) is expected later this year.

Both reports emerge from curious circumstances, coming so soon after the publication of the independent Sir Scott Baker review in September 2011. That review was the most exhaustive analysis of this country’s extradition laws ever undertaken, devoting no less than 51 pages to the US-UK extradition treaty (the report of the Home Affairs Committee stretches to only 10 pages). Many of those who made representations to Sir Scott’s panel gave similar evidence to the MPs comprising the Home Affairs Committee.

So why another report? The simple answer is that the US-UK extradition treaty continues to provoke huge public disquiet. Every few months a case hits the headlines which fuels the perception that the US authorities are acting in an arrogant fashion, either by claiming exorbitant extraterritorial jurisdiction over matters which could be prosecuted in the UK, or by bullying young or vulnerable suspects into an early plea with the threat of lengthy custodial sentences.

The recent and very sad images of UK businessman and suspected arms dealer Christopher Tappin being denied bail in a Texas court, both legs and one arm shackled, have only reinforced these concerns.

Against this background, the Home Affairs Committee makes three recommendations, all of which are aimed at remedying perceived imbalances in the treaty:

1. US prosecutors should be required to establish “probable cause” of the alleged offence in a UK court, which is the same information threshold that UK extradition requests must satisfy in the US.

2. US prosecutors should be required to present an evidential case against defendants so that the evidence can be tested in a UK court.

3. The proposed “forum” bar should be introduced into the Extradition Act 2003, which would allow the decision about whether a matter should be prosecuted in the US or the UK to be taken by a judge in open court after listening to the defendant’s representations.

Of these recommendations, the most important and the one which stands the highest chance of being implemented is the forum bar. Whilst its impact on future cases might not be as dramatic as some claim, it has the potential to benefit a small number of defendants, and if nothing else would generate greater transparency (and improve public confidence) about jurisdictional decision-making in cross-border criminal matters. The forum bar would be an important safeguard and curb the worst excesses of the extraterritorial approach exhibited so aggressively in US prosecution policy.

The Committee’s other recommendations are more problematic. Proposing a “probable cause” test to be applied in the UK’s courts may seem like a simple way of guaranteeing parity, but it overlooks the fact that, before any US extradition request reaches these shores, the US prosecutor will have obtained either a domestic arrest warrant or a grand jury indictment backed by an arrest warrant, both of which require evidence which satisfies an American judge that the probable cause test has been met.

Put another way, a US extradition request can only exist and be relied upon if it has already satisfied the probable cause test. Moreover, as the Committee acknowledges, the legal difference between the tests applied on both sides of the Atlantic is more apparent than real.

It is therefore difficult to envisage the UK Government implementing this recommendation, particularly as the evidence indicates that, relatively speaking, it is easier to extradite suspects from the US to the UK than vice versa.

It is even more difficult to envisage the Government embarking upon a politically regressive step such as requiring US extradition requests to satisfy an evidential test. Quite apart from alienating the UK’s closest diplomatic ally and placing an even greater burden on our already over-stretched extradition courts, this recommendation, even if implemented, would be unlikely to alter the outcome of any of the headline-grabbing cases which have led to the report

Those cases have caused public disquiet not because there is no evidence on which to prosecute but because the UK appears to be the more appropriate jurisdiction in which to prosecute – a perceived injustice which the introduction of the forum bar could resolve.

That is not to say that introducing a higher evidential test is wrong in principle; only that it is politically unrealistic and its practical impact difficult to discern. In these circumstances the Government may feel that the best compromise – and the one which would go some way to satisfying the critics of the treaty without alienating the Americans – would be to introduce the forum bar but to go no further.

Whilst problems exist with the UK-US extradition treaty, in particular the question of where cross-border cases should be prosecuted, the most egregious examples of injustice in this country’s extradition laws arise not from the treaty but from the EAW system and the uncritical faith which our courts are required to place in the criminal justice systems of other EU countries.

The Committee will give its recommendations on the EAW later this year. It is to be hoped that the Committee’s recommendations on the EAW are similarly robust.

Andrew Smith is a partner at Corker Binning.

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