Select Committee on Home Affairs Written Evidence

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 UK—reducing 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.


  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 streamlined.


  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 comparable.

  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.


  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.


  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

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