UK-US extradition arrangements – a balanced act?

On 21 October 2011 the report of the panel headed by Sir Scott Baker tasked with reviewing the UK’s extradition arrangements was made public. The remit of that review included the much asked question – whether the UK-US extradition treaty is unbalanced?

On 21 October 2011 the report of the panel headed by Sir Scott Baker tasked with reviewing the UK’s extradition arrangements was made public. The remit of that review included the much asked question – whether the UK-US extradition treaty is unbalanced?

It became apparent from much of the post publication press comment that many anticipated the answer to be no. The answer, according to the review panel, was that there was no significant difference between the respective tests for extradition and that criticism flowed from a misunderstanding of how the Extradition Act 2003 operated in practice.

That finding prompted Shami Chakrabarti of Liberty to declare, “We don’t just disagree with this review we are completely baffled by it” and Janis Sharp, Gary McKinnon’s mother, said the result was a “whitewash”.

So are the review’s conclusions baffling or is a misunderstanding of the arrangements in practice causing some to question correct conclusions?

The primary complaint appears to be that 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 reflects the Constitutional requirement in the Fourth Amendment to the US Constitution which guarantees “the right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures…and no warrants shall issue but upon probable cause, supported by oath or affirmation…” There is, of course, no such constitutional protection in the UK and this was mirrored by the inclusion of Article 8 (3) (c) in the 2003 Extradition Treaty:

“for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested”.

This, probable cause test, is evidently unilateral and does not apply to requests made to the United Kingdom. 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.

The review addresses this lack of reciprocity with reference to the reasonable suspicion test  as contained within section 71(2) of the 2003 Extradition Act so that a UK judge “may issue an arrest warrant if there are reasonable grounds for believing that: 

a)     The offence in respect of which extradition is requested is an extradition offence.

b)     There is information that would justify the issue of a warrant for the arrest of a person accused of the offence within the judge’s discretion.”

It argues that the test to be applied in the UK is similarly based on reasonableness, is supported by the same documentation and, inter alia, to argue any difference between the two is semantic rather than substantive.

This line of argument is not convincing. Baroness Scotland QC as Home Officer minister admitted, when debating the Draft Extradition Act 2003: “By contrast, when we make extradition requests to the United States we shall need to submit sufficient evidence to establish probable cause. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. The fact is under the terms of its constitution the United States of America cannot set its evidential standard any lower than probable cause”.

One might, on the face of those words, wonder if semantic legalese was a tool employed by the review panel to paper over the inability of the US to sell (or extradite) its citizens (nationals and non-nationals) short whilst the UK had no such minimum standard in place. The argument that the US probable cause test better enables an examination of the substance of the allegations is difficult to counter when Baroness Scotland has conceded the evidential threshold to be higher than that applied in the UK.

The review, in defence of its conclusions, raises another consideration; that any request from the US to the UK must include a copy of the warrant or order of arrest that can only be satisfied if the probable cause test has been satisfied. In essence then that the probable cause test is applied in the US in order for an extradition request to emanate to the UK. The problem with that argument is the lack of transparency and reliance on the US, as the requesting state, to self regulate. Moreover Article 5 (3) specifically allows extradition where the competent prosecuting authorities have previously decided not to prosecute or to discontinue proceedings or continue investigating. This effectively means that even where the prosecuting authority found there was insufficient evidence or that it was not in the public interest to prosecute a prosecution was nonetheless enabled by an extradition.

Ultimately, whatever wisdom is contained in this report, the perception of imbalance will likely remain until the arrangements can be seen to deliver equality and justice. In the meantime one anticipates calls for the review to be reviewed.

 Dan Hyde is a consultant at Cubism Law