Memorandum submitted by the Home Office
1. Extradition takes place between the United
States and the United Kingdom under the auspices of the 1972 Extradition
Treaty, as amended by the 1985 Supplementary Treaty (which disapplied
the political bar to extradition for acts of terrorism). Those
arrangements remain in force.
2. An entirely new treaty was signed on
31 March 2003 by the then Home Secretary, David Blunkett, and
the former US Attorney General, John Ashcroft. The purpose of
this treaty was to modernise and extend the arrangements for extradition
between the two countries and to introduce latest best practice
in extradition, including greater flexibility to facilitate further
modernisation as necessary.
3. The main modernising provisions are:
The replacement of a list of offences
to define extradition crimes by a sentence threshold of 12 months'
imprisonment in both countries.
Provision to enable temporary surrender
to the requesting jurisdiction if the person is serving a sentence
for a different offence in the requested jurisdiction.
Provision for the waiver of specialty
protection if the requested state consents.
Replacement of the requirement for
prima facie evidence to support extradition requests to the UK
with a requirement for information that would justify the issue
of a warrant of arrest for the offence in the UKreducing
a mismatch in the evidential requirements between the two jurisdictions.
4. The new treaty will come into force upon
the exchange of the instruments of ratification, and will replace
the provisions of the 1972 Treaty, as supplemented, at that point.
The new treaty has not yet been ratified by either the UK or US
but is shortly to be subject to hearings of the US Senate Foreign
Relations Committee (SFRC). Subject to that Committee's advice
and consent and a vote by a two thirds majority of the full Senate,
it will be sent to the United States President for ratification.
The US authorities have advised that the Treaty is on the agenda
for the next meeting of the SFRC on 15 November, along with other
law enforcement treaties.
5. Although the 2003 UK-US Treaty is not
yet in force, certain of its provisions were given effect in the
UK when the Extradition Act 2003 came into force on 1 January
2004. These provisions, however, are not specific to requests
from the US; they apply to all requests made by any state designated
under the relevant part of the Act, and in respect of all requests
made to the UK from 1 January 2004.
6. The 2003 Act followed exhaustive consultation
on the basis of the Review of Extradition published in March 2001,
and the Extradition Bill published in draft on 27 June 2002. Although
consideration of the Bill was accelerated after the atrocities
of 11 September 2001 it was not instigated as a consequence of
them. The purpose of the Act was two-fold, generally to replace
the previous legislation, which was largely a consolidation of
19th century statutes, with modern provisions enabling streamlined
and effective handling of 21st century crime; and specifically
to give effect to the European Arrest Warrant governing extradition
between EU member states.
7. A key provision of the new Act is its
express link to the Human Rights Act:. For the first time the
provisions of the Human Rights Act have been incorporated into
the Extradition Act 2003 itself. As a result a District Judge
cannot order a person's extradition if he or she believes that
would amount to a serious breach of their human rights.
8. The 2003 UK-US Treaty was drafted to
reflect the modernising provisions of the 2003 Act. Like the Act,
negotiations were accelerated after the events of September 2001,
but had been under consideration before then.
1 JANUARY 2004
9. Although numbers are small and must therefore
be treated with caution, there is evidence to suggest that the
new provisions of the Act are having a beneficial effect. Justice
delayed is justice denied and requests from the US governed by
the Extradition Act 1989 took on average 30 months to conclude,
from arrest to surrender. By contrast, requests from the US governed
by the 2003 Act, which have been concluded, have taken on average
only seven months. When the UK makes requests to the US, those
take on average five months to conclude. The implementation of
the 20003 Act has corrected the severe imbalance in the time taken
to handle requests, though the process in the US remains more
10. There are 48 territories that do not
need to provide prima facie evidence to the UK when making an
extradition request. There are a further 67 territories, with
which we have bilateral or multilateral extradition arrangements,
which do have to provide prima facie evidence in support of an
extradition request. It is not possible, or even desirable, to
rank countries according to how much they are trusted as extradition
partners. However, it seemed appropriate to include the US in
the first category. This category is made up of three batches
of countries. The first is EU territories that are operating the
European Arrest Warrant. The second is signatories to the 1957
European Convention on Extradition (ECE). The third is made up
of Australia, Canada, New Zealand and the US who were added in
2003. In passing the Extradition Act 2003, the Government was
seeking to modernise extradition law. It is a feature of modern
extradition law that trusted extradition partners do not require
prima facie evidence from eachother. It is a system that has worked
well in Europe since 1957, and between the UK and our ECE partners
since 1991, when the Convention was implemented in the UK. In
that time a large number of requests to the UK from ECE countries
have been processed. Since the addition of the four new countries,
by way of the 2003 Act, it has continued to work well.
11. When making a request to the US, the
UK must meet the "probable cause" evidence test. The
Extradition Act 2003 requires the US to provide "information
that would justify the issue of a warrant for the arrest of a
person accused of the offence within the judge's jurisdiction,
if the person whose extradition is requested is accused of the
commission of the offence" when making a request to the UK.
Whilst it is impossible to precisely approximate provisions in
the laws of different countries, these provisions are broadly
12. There are safeguards contained in the
Extradition Act 2003 to protect individuals who may find themselves
to be the subject of an extradition request. In Part 2 of the
Act, which would apply in the case of requests from the US, the
District Judge must consider whether extradition should be barred
on any of six grounds. This might be by reason, to take two examples,
of extraneous considerations (that is prosecution, punishment
or prejudice on the grounds of a person's race, religion, nationality,
gender, sexual orientation or political opinions) or if extradition
would be incompatible with any of a person's rights under the
European Convention on Human Rights (ECHR). In addition, the Secretary
of State must consider whether extradition should be barred on
a further three grounds; the death penalty, speciality arrangements
and earlier extradition to the UK. If either the District Judge
or the Secretary of State upholds any of the bars to extradition
then they must order the person's discharge.
HAVE US PROSECUTORS
13. Following a number of high profile US
extradition requests for so-called "white collar" crimes,
it has been claimed that provisions that were designed to facilitate
the extradition of suspected terrorists are being employed to
request the extradition of those wanted for "white collar"
crimes. Since the coming into force of the Extradition Act 2003
in the UK, the Home Office has received 43 requests from the US,
of which 23 have been for offences falling under the categories
of fraud/theft/robbery/financial. Aside from the point that "white
collar" crimes are no less "criminal" than any
other sort of offence, the gravity of which is signified by the
length of the sentence, there is nothing in the new Act or Treaty
which was intended solely as a response to acts of terrorism.
As noted above, the instruments were modernised to keep pace with
general developments in criminality in the 21st century, whether
in respect of terrorism, organised crime, fraud or any other manifestation
of modern criminality.
US/UK TREATY SUBJECT
14. The new Treaty was negotiated following
the procedures laid down in the Ponsonby Rule, which has been
in operation since 1924. There was no Parliamentary scrutiny of
the new UK-US Treaty prior to signature because there is no constitutional
requirement for Parliament to approve a treaty. It is therefore
also the case that all extradition treaties since 1924 would have
been negotiated without the approval of Parliament.
15. However, it is necessary to designate
a country under the relevant Part of the Extradition Act 2003
before extradition can be operated between our two countries.
This requires secondary legislation subject to the affirmative
resolution procedure. Therefore, the Extradition Act 2003 (Designation
of part 2 Territories) Order 2003, which designated the US as
a country that no longer needs to provide prima facie evidence,
was subject to Parliamentary scrutiny and was debated in both
Houses. Under SI 2003 3334, laid on 18 December 2003, Parliament
expressly considered, and agreed, the designation of the US as
a territory not required to support requests with prima facie
evidence. This provision came into force on 1 January 2004.
14 November 2005