Changes in extradition regime are a pipe dream
CUBISM LAW
OUR special relationship with the US has, of late, appeared rather strained. The noises from across the pond have been somewhat anti-British and not it seems influenced or restrained by any relationship, special or otherwise. The BP oil spill suddenly became the British Petroleum spill and the release of the Lockerbie bomber a British decision; allegedly on the back of lobbying from none other than BP.
What this clearly demonstrated was the lack of inhibition on the part of the US when it came to dealing with its junior partner the UK. By contrast the UK responds with meek diplomacy and overtures in the hope of appeasement.
One area that demonstrates the gulf in equality is extradition. The extradition arrangements between the UK and US are not reciprocal but one sided in a critical respect. The Extradition Act 2003 allows extradition from the UK to a country with which there is no reciprocity with the result that the UK must show “probable cause” for a prosecution when seeking extradition from the US. This is very close to requiring a demonstration of a prima facie case – ie that there is a case for the suspect to answer on the face of the evidence submitted. In practice this means the UK must set out the facts and circumstances sufficient to warrant a prudent person to believe a suspect has committed a crime. In stark contrast the US need only show a reasonable suspicion that the intended subject committed a crime by presenting an “information only request”. Any lawyer worth their salt recognises the test is far lower for the US and skews the arrangement firmly in the US’s favour.
One reason for the US’s refusal to reciprocate is that its constitution prevents it from extraditing a US citizen on the word of another government and without there being a reasonable basis to believe the person committed the offence. US citizens are thus guaranteed a level of protection that the UK does not afford and the UK has entered into an arrangement where there was never going to be reciprocity.
Further, while the purported intent was to deport terrorism suspects harboured abroad the cases and statistics reveal it has instead been aimed at suspected white-collar criminals, a significant proportion of whom were British citizens. The Nat West Three and Ian Norris, former chief executive of Morgan Crucible, demonstrate the point. Ian Norris was ultimately able to successfully appeal his extradition because the House of Lords held that the alleged price fixing was not a crime in the UK at the time of the alleged misconduct and he should thus not be extradited. Gary McKinnon, the computer hacker, is another who faces extradition and whose plight has exposed perceived unfairness in the arrangements. Far from focussing on terrorism the US is able to pluck whosoever it targets with relative ease.
We are now told by Theresa May that the coalition government is committed to reviewing the arrangements. Whether this will result in positive change is far from certain. Any objective review would conclude that there is neither parity or fairness and that safeguards should be implemented to afford UK citizens a similar level of protection to their US counterparts. Another possibility would be to ensure the very high costs incurred as a result of an extradition be met by the country initiating the extradition.
The fear is that the special relationship prevails such that the UK responds with meek diplomacy and overtures to its senior partner, the US. And the likely response of the US? It should come as no surprise that the current arrangements are lauded by the US Embassy which sees no imbalance or need for change. It is generally those at the bottom of the slope who seek to level the field, not those at the top – and the US clearly intends to remain on top.