Post McKinnon case forum bar ‘hugely beneficial’ says White & Case’s Graham

Following the news that the Home Secretary Theresa May has blocked Gary McKinnon’s extradition to US, Alistair Graham, a partner in White & Case’s white collar practice, says the US/UK extradition tide has finally turned away from the automatic extradition of the UK’s citizens without them being able to prove their innocence here.


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Alistair Graham

After more than a decade of campaigning, yesterday’s decision by the Home Secretary Theresa May to block Gary McKinnon’s extradition to the US – the first Home Secretary to do so under the current UK/US extradition treaty – will undoubtedly have a significant impact on the agreement between the two countries.

Although in the present case the Home Secretary relied on the human rights provisions, it is more significant that, finally, the Government has decided to accept and introduce a ‘forum bar’ which will mean that UK citizens can be tried here in appropriate cases rather than having to present their defences in the US.

This provision will provide judges with more discretion in deciding whether it’s in the interests of justice for cases to be tried in the UK – simply, it will allow UK courts to choose to deal with UK issues.

This is a basic safeguard which allows UK citizens, accused of criminal conduct that took place on UK soil, to be the subject of the UK justice system, and not that of another country.

This will inevitably have a huge beneficial impact on future cases but it’s frustrating to consider what should have happened in other extradition cases in the last six years, since the first ‘forum bar’ was proposed in 2006.

In that year White & Case was heavily involved in the development and implementation of a forum bar, with the then Shadow Attorney-General Dominic Grieve and MP Nick Clegg, as part of the defence of our client Ian Norris, the retired former chief executive of Morgan Crucible. Ian was pursued on price-fixing charges and lost his appeal in 2010 and was subsequently extracted to the US for trial there. 

That 2006 provision sat on the statute book but was never activated. Had it been activated cases like that of Ian Norris’ would have been heard here, in the UK. For people like Ian Norris, this comes too late.