Over the last few years, two striking controversies surrounding the US legal system have been the War on Terror and, after Enron, the astonishingly severe federal sentences for fraud. Now the consequences are being felt on this side of the Atlantic.

The badly drafted and ill-considered Extradition Act 2003 has left directors of UK companies exposed to extradition to the US, even when London investigators and regulators, such as the Serious Fraud Office and the Financial Services Authority, have declined to prosecute for conduct committed in London. A finance director or chief executive of a publicly listed UK company could be extradited to the US if their company’s allegedly inaccurate reports are published in a US newspaper to a solitary US shareholder.

This has its origin in three factors. First, US federal prosecutors have become aggressive in their extra-territorial reach. A single electronic or paper communication sent across a US state or national boundary in alleged pursuance of a fraud committed anywhere in the world confers jurisdiction on the US courts to try the entire case. Second, the act has abolished the pre-existing responsibility imposed on the Home Secretary to prevent, in his absolute discretion, an unfair extradition. This power, it appears, previously allowed him to negotiate the appropriate forum for trial, so that proceedings would take place for an obviously UK allegation in London. Third, the former Home Secretary designated the US as a state that does not have to provide evidence that there is a case to answer in an extradition request. David Blunkett signed an extradition treaty with the US in March 2003 which abolished this previous requirement, although it remains necessary for the UK to establish ‘probable cause’ in making a similar request to the US.

This abandonment of protections has, however, given us nothing. The US Senate has declined so far to ratify even this one-sided treaty because, although it was stimulated by the war against terror, civil liberties groups in the US deeply resent the weakening of the traditional ‘political offence’ exception in the treaty, arguing that alleged IRA terrorists will not get a fair trial if extradited to the UK. London businessmen facing extradition requests unsupported by any evidence may not find this imbalance comforting.

What is to be done? Why should an independent legal system tolerate such a lopsided arrangement and accept such limited protection for its own citizens? Every other major state in Europe (except, theoretically, Italy) declines to extradite its own nationals to the US, preferring to accept the obligation to try them in their own states, even where all the conduct has taken place in the US.

The European Convention on Extradition (in force 1957-2003), and the EU 2002 framework decision on Eurowarrants, which the UK has adopted, all permit a requested state to decline to extradite within Europe where it regards the alleged crime as having taken place in substance in its own country. A modest amendment to the Extradition Act 2003 embodying this provision in respect of US extraditions would surely not annoy the US authorities too much. Is the forum for a trial to be decided by which state has the deeper purse and starts investigating first?
Cases are pending before the High Court. The 2003 act, like so much legislation passed by the current administration, prefers to rely on general ‘human rights’ protections rather than black-letter law. The European Convention on Human Rights, which the district judge must consider under the 2003 act, provides in Article 8 that a person has the right to privacy and home life and must not be interfered with unless it is “necessary” to do so. So will this be applied by the higher courts to prevent unjust extraditions of UK citizens? Time will tell, but the case for hard and tangible statutory protection, introduced in Parliament, and an assertion of national legal independence in these matters is overwhelming.

Alun Jones QC, barrister, 37 Great James Street