House of Commons - The US-UK Extradition Treaty

The US-UK Extradition Treaty - Home Affairs Committee Contents

Introduction

1. One of the first commitments made by the Coalition Government was to review the operation of the Extradition Act 2003 and the US-UK Extradition Treaty to make sure that they are even-handed.[1] This commitment was made in the context of widespread political concern about the operation of the UK's extradition arrangements with the USA. Representatives of both Coalition Parties had expressed reservations about the operation of the Treaty while in opposition. Opening an emergency debate called in 2006 by the Liberal Democrats shortly before the extradition of the "NatWest Three",[2] Rt Hon Nick Clegg MP said,

We on the Liberal Democrat Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published in May 2003. [...] the extradition treaty and its enactment through the Extradition Act 2003 is manifestly unfair to British citizens.[3]

During the same debate, Rt Hon Dominic Grieve MP (then the shadow Attorney General), expressed reservations about the new standard of information required by the Treaty—which he described in relation to one case as "very scanty indeed"—and described the lack of forum provisions in the 2003 Act as "a serious flaw".[4] Rt Hon David Blunkett MP, who was Home Secretary when the Treaty was signed, told us that although the 2003 Treaty was in principle an improvement over previous treaties, "the practice has been very different".[5]

2. Since the extradition of the "NatWest Three", there have been several other high-profile cases which have been the focus of public concern. During the course of this inquiry, the Committee took evidence from representatives of several of those involved—Janis Sharp, whose son, Gary McKinnon, has been charged with several counts of damaging computers belonging to the US military;[6] Ashfaq Ahmad, the father of Babar Ahmad, who has been in prison in the UK for more than seven years while an extradition request from the USA is dealt with;[7] Elaine and Neil Tappin, the wife and son of Christopher Tappin, who has recently been extradited to the US to face charges for his alleged involvement in the sale of restricted weapons-system components to Iran;[8] and written evidence from Eileen Clark, who is facing charges for allegedly kidnapping her now-adult children in 1998.[9] This evidence has given us an insight into some of the difficulties experienced by those facing extradition, as well as their families. But it is important to bear in mind that there is another side to each of these stories and the Committee has not heard any of the evidence against the accused in these cases. In this Report the Committee is concerned with the policy framework within which extradition decisions are made by the courts. The Committee has reached no conclusions about any specific case, either past or present.

3. The Prime Minister himself has acknowledged the difficulties surrounding the McKinnon case in particular. In July 2009, when Mr McKinnon lost his judicial reviews against the Secretary of State and the Director of Public Prosecutions, the then-Leader of the Opposition described himself as being "deeply saddened and disappointed" by the decision and went on to say

Gary McKinnon is a vulnerable young man and I see no compassion in sending him thousands of miles away from his home and loved ones to face trial. If he has questions to answer, there is a clear argument to be made that he should answer them in a British court. This case raises serious questions about the workings of the Extradition Act, which should be reviewed.[10]

4. In light of these high-profile, problematic cases, and to give effect to the commitment in the Coalition Agreement, the Home Secretary appointed Rt Hon Sir Scott Baker to carry out a review of the UK's extradition arrangements in October 2010. Sir Scott, a retired High Court judge, was supported in his work by David Perry QC, who has experience of extradition cases as both a prosecutor and defender, and Anand Doobay, a solicitor whose practice focuses on representing the subjects of extradition requests and who is a trustee of Fair Trials International. The Panel's Report was published in October 2011.[11]

5. The Review Panel received 209 written submissions, and held oral evidence sessions in London, Edinburgh, Brussels, the Hague and Washington DC over a total of 12 days. The evidence the Panel gathered remains with the Home Secretary, who has so far refused to publish it, despite our requests for her to do so. The Committee can see no legitimate reason for the Home Secretary's refusal to publish the evidence to the Baker Review. The secrecy surrounding the evidence is as frustrating as it is inexplicable and it is not helping to improve low public confidence in this matter. The Committee recommends that the Home Secretary publish it immediately.

6. The Home Secretary is still considering how to respond to the Baker Report, which makes a number of recommendations for changes to both the US-UK extradition arrangements and the European Arrest Warrant, but does not recommend radical reform of either. The Committee has therefore decided to bring forward this short Report on the US-UK Extradition arrangements as soon as possible. The Committee will return to the issues relating to the European Arrest Warrant, which was also part of our inquiry, in due course.

7. In addition to the evidence published with this Report, the Committee held an informal meeting with Louis B. Sussman, the United States Ambassador, who put the US Government's position to us a few days before the extradition debate in the House on 5 December 2011.[12] During our recent visit to the United States, the Committee held a conference call with Bill Pearson, a former Federal prosecutor with experience of making extradition requests to the UIK, and the Committee held a video conference with senior officials from the United States Department of Justice. Mr Pearson told us that, in US law, "probable cause" was a stronger test than "reasonable suspicion", an issue which we consider in more detail below.

8. Concern about the operation of the current extradition arrangements between the USA and the UK should not be allowed to obscure the fundamental point that it is firmly in our national interest to have effective, fair and balanced extradition arrangements with the United States and our other international partners. Criminals must not be allowed to evade British justice by fleeing the country; nor should the UK become a safe haven for those who have committed crimes in other territories. The development of the internet and the rise of international terrorism and organised crime mean that extradition is now more important than ever in the fight against crime. While the Committee has serious misgivings about some aspects of the current arrangements, we are firmly convinced that an effective extradition agreement with the USA is appropriate and clearly in our national interest.

The "probable cause" and "reasonable suspicion" tests

9. The US and the UK signed a new Extradition Treaty in March 2003,[13] replacing a Treaty that had been in effect since 1972 (although the two countries have had treaties since the Jay Treaty which marked the end of hostilities in the American War of Independence).[14] The most significant difference between the 2003 Treaty and its predecessor lies in the Article specifying the documents which must accompany an extradition request.[15] The old Treaty required the request to be accompanied by such evidence as would justify the person's committal for trial according to the law of the state from which extradition was sought ("prima facie evidence"), including evidence that the person requested was the person to whom the arrest warrant referred. The new Treaty requires, for requests made 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".[16] This is known as the "probable cause" test, and was necessary for the Treaty to comply with the Fourth Amendment to the US Constitution when it was signed in 2003 by the then-Home Secretary, Rt Hon David Blunkett MP.[17]

10. There is no corresponding requirement in the Treaty for requests made by the United States to the United Kingdom but under the Extradition Act 2003, requests to the UK must be accompanied by information which would justify the issue of an arrest warrant. That standard is the "reasonable suspicion" test.

11. The difference between the "probable cause" and "reasonable suspicion" tests has been a source of controversy. In 2003, the Minister of State in the Home Office, Baroness Scotland of Asthal, was quite explicit about the difference between the two tests during a debate in the House of Lords on secondary legislation made under the 2003 Act. She explained that the probable cause test was "a lower test than prima facie but a higher threshold than we ask of the United States." She went on to argue that, since the UK does not demand prima facie evidence from Albania, Turkey or Romania, it would be inappropriate to impose a more stringent test on the USA, adding: "We have to take an objective decision about what standards we believe incoming extradition requests should meet. We do not see how that is affected by the fact that another country cannot, for very good reasons, reciprocate. [...] Complete reciprocity has never been a feature of our extradition arrangements".[18]

12. The Baker Report concluded that there was "no significant difference" between the two tests,[19] although Sir Scott conceded to us that the wording of the Treaty might have given rise to the impression that there was: "If it had all been made absolutely clear in the Treaty, there would not have been this problem".[20] Jago Russell of Fair Trials International argued that there was no good reason for the asymmetry in the Treaty:

You don't need to look very hard at the treaty to see that there's a safeguard in that treaty that exists if there is an extradition from the United States but doesn't exist the other way round, and that, quite rightly, strikes a chord with the British public and seems to be unjust. If there is a safeguard that the United States demands for people being extradited from that country, then they should expect that other countries might feel fit to demand the same safeguard the other way round.[21]

13. David Bermingham, who was extradited to the USA as one of the "NatWest Three", told us that the imbalance arose not because the two tests were different but because a person who was sought for extradition from the UK had no opportunity to test the information establishing a "reasonable suspicion" against them in court, whereas a person who was sought for extradition from the USA was entitled to a hearing to test the "probable cause" information.[22]

14. Even the Attorney General, now apparently a defender of the Treaty, acknowledged the difficulty of having two tests which were different on the face of it, even if their application was the same in practice:

[...] while there is always an inherently unsatisfactory feeling if you have two different tests to be applied in two different jurisdictions, I think we have to be a little bit careful about suddenly concluding that if that were to be changed, for example, it would lead to some dramatically different outcomes, because I am not sure it would.[23]

15. The Committee accepts that there is a body of respectable legal opinion which suggests that there is little or no distinction in practice between the "probable cause" and "reasonable suspicion" tests. Nevertheless, the imbalance in the wording of the Treaty, which sets a test for extradition from the US but not from the UK, has created the widespread impression of unfairness within the public consciousness and, at a more practical level, gives US citizens the right to a hearing to establish "probable cause" that is denied to UK citizens. It is clear that the US Constitution requires that the Treaty include the "probable cause" test for extradition from the USA to the UK. The Committee can see no reason why an identical safeguard should not be granted to those whose extradition is sought in the opposite direction and we believe it would be in the interests of justice for the Treaty explicitly to offer the same protection to people whose extradition is sought from either country. We cannot imagine that the United States Government would not object to British citizens enjoying the same legal safeguards as US citizens. The Committee therefore recommends that the Government seek to re-negotiate the US-UK Extradition Treaty to specify that the information requirements be the same in both jurisdictions.

The prima facie evidence test

16. Since the abolition of the prima facie evidence test, there is no requirement to produce evidence as to the guilt of the accused in order to effect an extradition; there is a requirement only to produce information—which may include information that would not be admissible as evidence in a trial—to pass the reasonable suspicion test. This applies to extraditions both to and from the US although, as we have noted above, the information test is slightly different in the two territories. The Attorney General was quite clear on this point:

The basis of extradition is that there is a prima facie case, or probable cause, or at least a case made out, which is deemed to be satisfactory and, under the protection of the European Convention on Human Rights, there is a satisfaction that the trial system of the country to which the person is being extradited and the other circumstances, including the risk of the death penalty and other matters, are such that their human rights will not be infringed.[24]

17. In extradition cases, it is for the courts in the requesting territory to determine the guilt or innocence of the accused once extradition has been granted. It would be absurd to require a British court to conduct a full trial to establish the guilt of the accused before they can be extradited to stand trial in the USA, nor should the court in the state from which extradition is requested pre-empt the function of the court in the state which is seeking extradition.

18. However, it is important to bear in mind that the decision to extradite somebody to the USA is considerably more weighty than the decision to charge them with an offence in this country. Shami Chakrabarti of Liberty put it succinctly:

[...] even if you get a wonderful trial elsewhere in Europe or on the other side of the world, being taken from your home, your job and your community, possibly to another language, whatever it is, is a punishment in itself. We are people, not robots.[25]

Janis Sharp, whose son, Gary McKinnon, is the subject of an extradition request from the United States, told us,

Extradition is a huge punishment in itself, massive. If people are extradited they're often incarcerated for years before a trial comes. They also can lose their job; they can lose their family; they can lose their sanity; they can lose their life. It's absolutely horrendous. So that is a huge punishment for a person that's potentially innocent.[26]

19. David Bermingham described the consequences of extradition as "catastrophic".[27] He argued that he and his co-defendants were deprived by their extradition of the ability to defend themselves as they did not have access to evidence and witnesses in the UK that they might have used to mount a defence in the US courts.[28] Extradition to the USA also needs to be seen in the context of the US judicial system, in which defendants are far more likely to enter into a plea agreement than in the UK. The Committee was told that US judges have less discretion over sentencing than their British counterparts, and so sentences were largely determined by the nature of the original charges. This gave prosecutors a great deal of power to negotiate a guilty plea in exchange for a lesser charge. The Committee was told that 97% of defendants in the USA plead guilty under pressure from prosecutors.[29] After the United States Supreme Court's decisions of 21 March 2012 established constitutional grounds for effective legal representation of criminal defendants in plea bargaining, this situation may improve in future.[30] It has also been suggested that those who are extradited to stand trial in the USA were less likely to be granted bail, because the very fact that they had been extradited from overseas would be regarded as evidence that they presented a flight risk.[31]

20. Mr Bermingham told us that the UK is one of only three countries in which the US does not have to produce prima facie evidence for extradition. The others are France, which will not extradite its own citizens to the USA, and the Republic of Ireland, which has a higher forum test than the UK.[32] Witnesses from Fair Trials International, JUSTICE and Liberty all argued that there should be a prima facie evidence test for extradition from the UK.[33]

21. Extradition imposes a significant burden on the accused, who might have to spend many months or years living in a foreign country, often in prison, away from their home, family, friends and job. It would be fundamentally unjust to submit an innocent person to such an ordeal, even if they were subsequently acquitted at trial. The Committee does not therefore believe that extradition should take place without some case being made against the requested person and we recommend that the Government seek urgently to re-negotiate the Treaty in order to introduce an evidence test, while balancing issues such as delay and cost.

The issue of forum

22. The question of "forum"—the country in which it is most appropriate for a trial to take place—has been a significant issue in several high-profile US-UK extradition cases. The first of these was the "NatWest Three", who were extradited to the USA to be charged with defrauding a British bank, which employed them in London. They reported the transactions in question to the Financial Services Authority, which investigated but took no further action, and the Serious Fraud Office decided not to prosecute them. Unusually, they sought a judicial review of the decision not to prosecute them, but were unsuccessful. They were then extradited to face trial in the USA, largely on the basis of material which they had themselves submitted to the FSA in London.[34]

23. The question of forum has also arisen in relation to other cases where the alleged criminal acts were carried out in the UK. They include among others Gary McKinnon, who is alleged to have hacked into US military computer systems from a computer in the UK; and Richard O'Dwyer, who is alleged to have committed copyright infringements through a website he ran from Sheffield. It has been argued in all these cases that the accused, if they are to be tried at all, should be tried in the United Kingdom.[35] The Prime Minister raised the issue of forum with President Obama during his recent visit to the United States and there is now the prospect of further negotiations between the two countries.

24. The growth in international organised crime, including internet-related crime, means that forum will become an increasingly important issue. The Internet provides a vehicle for the commission of crimes where the perpetrator is in one country and the victim is in another.

25. The fact that a person could in principle be prosecuted in the UK is not an explicit bar to extradition. If British prosecutors decide not to charge somebody with an offence, then it is open to US prosecutors to seek their extradition if they believe that the United States has jurisdiction, but it was acknowledged in the case of the "NatWest Three" that there might be circumstances in which the possibility of a UK trial could tip the balance in favour of a conclusion that to proceed with the extradition would amount to a disproportionate interference with the defendant's right to respect for his private and family life under Article 8 of the European Convention on Human Rights,[36] and their ability to mount an effective defence.

26. The current practice is that decisions on forum are taken by prosecutors in the jurisdictions concerned. Guidance for handling criminal cases with concurrent jurisdiction between the UK and the USA was agreed by the Attorney General, the Lord Advocate and the Attorney General of the United States in 2007.[37] The Guidance applies to "the most serious, sensitive or complex" cases and requires prosecutors in the two jurisdictions to consult closely from the outset, sharing information and evidence to develop a case strategy. In such cases, the decision on where to prosecute will depend on a range of issues including practical matters such as which jurisdiction holds the evidence necessary for a prosecution and a defence.

27. There is a provision in the Police and Justice Act 2006 which amends the Extradition Act 2003 to introduce a forum bar. Section 83A provides that:

(1) A person's extradition to a category 2 territory ("the requesting territory") is barred by reason of forum if (and only if) it appears that—

(a) a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and

(b) in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.

(2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.[38]

This provision was inserted by an Opposition amendment in the House of Lords and it has not yet been commenced. The Secretary of State is not required to bring the provision into force unless a resolution to that effect is passed by both Houses of Parliament, though she may do so without such resolutions.[39]

28. The Baker Report concluded that the forum bar should not be commenced as it would create delay and potentially generate satellite litigation. It would require a British court to consider broad and potentially complex issues, such as whether "a significant part of the conduct" took place in the UK and "all the other circumstances" of the case. It concluded that formal guidance to prosecutors was the best way to handle forum issues.[40]

29.

30. Mr Julian Knowles of Matrix Chambers argued that the US claimed exorbitant jurisdiction in some cases:

The problem with the US arises not just because of the treaty. It arises because of the overzealousness of US prosecutors and their whole approach. There is probably nothing we can do about that but that is a problem. The US also has quite an exorbitant extraterritorial jurisdiction, which is why you get cases like Babar Ahmad's or Gary McKinnon's. It has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.[41]

The Baker Report notes that the offences of wire fraud (with which the "NatWest Three" were charged) and mail fraud are defined in US law in such a way that the United States can prosecute if any communications system in the United States is used in any fraudulent scheme. This could mean the US claiming jurisdiction because an e-mail had been routed through a server in that country.[42]

31. The vast majority of witnesses before the Committee were firmly in favour of introducing the forum bar. Jodie Blackstock of JUSTICE told us that their concern about the Treaty largely rested on forum issues and that there was a real risk of people being extradited to the USA to be tried for things they had done in the UK.[43] Shami Chakrabarti of Liberty argued that the forum bar could be introduced without renegotiating the Treaty.[44] Ms Gareth Peirce, the solicitor to Babar Ahmad, suggested that prosecutors might be making assumptions about forum too early in a case, rather than seriously investigating the possibility of a prosecution in the UK.[45]

32. The current arrangements for determining the forum in which a person should be tried are in our view unsatisfactory. Decisions are made by prosecutors, behind closed doors, without the accused having any opportunity to make representations. It appears to be very easy to engage the jurisdiction of the US courts without ever entering the country, since activity on the internet, including sending and receiving e-mails, can involve the use of communications systems based in the United States, as can use of the US banking system.

33. The fundamental principles of human rights, democracy and the rule of law require that justice is seen to be done in public. The Committee believes that it would be in the interests of justice for decisions about forum in cases where there is concurrent jurisdiction to be taken by a judge in open court, where the defendant will have the opportunity to put his case, rather than in private by prosecutors. Indeed, Parliament has already legislated for that to happen. The Committee therefore recommends that the Government introduce a "forum bar" as soon as possible.

Conclusion

34. In the light of the five month delay to the Baker Report, we welcome the Prime Minister's announcement that UK and US teams will look further at the extradition arrangements but, given widespread public concern regarding the issue and continuing extraditions during this period, we urge the government to act with greater urgency.

35. The Prime Minister's recent visit to the United States emphasised the importance of the special relationship between the two countries. Welcoming the Prime Minister to the White House, President Obama said of the relationship between the US and the UK

We stand together and we work together and we bleed together and we build together, in good times and in bad, because when we do, our nations are more secure, our people are more prosperous, and the world is a safer and better and more just place.[46]

The Committee shares those sentiments, recognising that the extradition Treaty between the UK and the US is an important part of that alliance.

36. The Committee is proposing significant changes to the extradition arrangements between the US and the UK not because we are critical of the American justice system but because we recognise the importance of robust extradition arrangements between our two countries. Such extradition arrangements are now threatened by loss of public confidence in the UK and there is a risk that, with time, that lack of confidence will translate into wider disaffection. We believe that the Government should act now to restore public faith in the Treaty by rebalancing the requirements for the provision of information, urgently opening negotiations about the re-introduction of an evidence test, and introducing a forum bar. The Committee believes that these changes will allow for a fair and balanced system of justice between the US and the UK as regards extradition.

Annex: Statement to the Committee by United States Ambassador Louis B. Sussman

Let me start by thanking the committee for meeting with me today on an issue of great importance to the United States.

I welcome this opportunity to make the case for the US-UK Extradition Treaty in its current form. To correct the myths and inaccuracies that have arisen in recent years. And to answer your questions.

Alongside me this morning are Amy Jeffress, the Department of Justice attaché at the Embassy, who will provide any necessary legal expertise— and Robin Quinville, minister-counselor for political affairs.

First and foremost, I want to be very clear that we believe our extradition relationship works, it is fair and balanced, and it promotes the interests of justice in both our countries.

My government strongly supports this treaty.

And I believe that having signed the treaty, and having had it tested both through the British justice system and by independent experts, it is now incumbent on the UK government to stand in support of it.

This is what strong, enduring, bilateral alliances are built on: treaties and agreements that enshrine shared values and give us the legal authority to pursue common goals.

Unfortunately, however, our extradition treaty continues to be widely and wrongly condemned by some in Parliament and in sections of the British media.

In order to ensure that British interests are well protected, the Home Secretary appointed a 'blue ribbon' panel of legal professionals to evaluate the United Kingdom's extradition treaty with the United States.

That panel was led by the esteemed judge Sir Scott Baker and included two highly-respected lawyers.

Both lawyers have significant experience in extradition proceedings: one from representing the accused; the other from representing governments.

As part of its work, the panel invited all interested parties to provide written submissions of their views on the issues. They received more than 200 responses.

In addition, hearings and meetings were held with affected organizations and individuals, including officials from the UK, the US, and European governments.

Anyone holding a grievance with the treaty was given the fullest opportunity to express their concerns and their criticisms.

The panel also spent a week in the United States meeting with senior government officials and attorneys from the Departments of Justice and State who handle extradition matters.

I was briefed on those meetings and I know that the panel members were thoroughly prepared and their questioning—as you may expect from lawyers—was rigorous.

The panel also studied the extradition procedures in both countries—which are described in considerable detail in the final report—and it examined extraditions that have been concluded under the treaty to date.

In short, they conducted an exhaustive, meticulous and considered review.

They gathered substantial evidence and applied solid reasoning. And they reached the only conclusion that could be supported by the facts: that the US-UK treaty is balanced, fair, and needs no changes.

Even so, the myths and inaccuracies persist.

Many were repeated as recently as last week during a Parliamentary debate and its subsequent press coverage.

Accusations from Members of Parliament such as "24 Britons have been extradited to the US under the new arrangements and just one American to Britain"; or claims in the media that the Baker Review's conclusions came "despite mountains of evidence to the contrary" — are simply not true.

So I would like to take this opportunity to set out some of the facts.

First, it is not the case, as some claim, that it is easier to extradite someone from the UK than from the US

The United States has never denied an extradition request from the U.K. under the treaty. The UK has refused on seven occasions.

Second, the standard that each country has to meet to extradite someone is the same.

I would like to repeat that: the standard is the same.

Third, the US does not get special treatment. The UK domestic extradition law is the same for the US, Australia, Canada, Israel, Russia, and Turkey.

Fourth, neither country can ask for an extradition if the crime allegedly committed is not a serious crime in both countries.

And fifth, the United States does not seek the death penalty for any individual extradited from the UK.

In last week's Parliamentary debate, we also heard repeatedly the clarion call: 'British Justice for British Citizens'.

So let me address that too.

The UK authorities always begin by considering whether or not an individual can and should be tried in the UK instead of being extradited to the US

And under the terms of the treaty, all extradition hearings are held in UK courts — as are subsequent appeals.

It is only when these avenues have been exhausted—when UK prosecutors, the courts, and the Home Secretary have all affirmed that the request is proper—that an extradition goes ahead.

The constant use of skewed arguments and wilful distortion of the facts by some to advance their own agendas remains of great concern to the United States.

It would be wrong to view the extradition treaty through the prism of individual cases where sentiment and emotion can cloud reality and lead to misrepresentation.

Nor should we confuse the US-UK Treaty with concerns surrounding the European Arrest Warrant—a completely different issue than the extradition process in our treaty.

One has nothing to do with the other.

One of the virtues of our system of justice—as with yours—is that we believe firmly that criminal matters must be resolved in court, not in Parliament, nor in the media.

In all cases, I put my faith in the courts—in this country and in my own—to reach the right decisions based on facts, on law, and on evidence, taken in accordance with due process.

I also have total confidence that the UK government will accept the findings of the independent Baker Review and uphold the integrity of the US-UK Treaty.

Thank you for your time. I am happy to take any questions.

December 2011

Conclusions and recommendations

1. The Committee can see no legitimate reason for the Home Secretary's refusal to publish the evidence to the Baker Review. The secrecy surrounding the evidence is as frustrating as it is inexplicable and it is not helping to improve low public confidence in this matter. The Committee recommends that the Home Secretary publish it immediately. (Paragraph 5)

2. Concern about the operation of the current extradition arrangements between the USA and the UK should not be allowed to obscure the fundamental point that it is firmly in our national interest to have effective, fair and balanced extradition arrangements with the United States and our other international partners. Criminals must not be allowed to evade British justice by fleeing the country; nor should the UK become a safe haven for those who have committed crimes in other territories. The development of the internet and the rise of international terrorism and organised crime mean that extradition is now more important than ever in the fight against crime. While the Committee has serious misgivings about some aspects of the current arrangements, we are firmly convinced that an effective extradition agreement with the USA is appropriate and clearly in our national interest. (Paragraph 8)

3. The Committee accepts that there is a body of respectable legal opinion which suggests that there is little or no distinction in practice between the "probable cause" and "reasonable suspicion" tests. Nevertheless, the imbalance in the wording of the Treaty, which sets a test for extradition from the US but not from the UK, has created the widespread impression of unfairness within the public consciousness and, at a more practical level, gives US citizens the right to a hearing to establish "probable cause" that is denied to UK citizens. It is clear that the US Constitution requires that the Treaty include the "probable cause" test for extradition from the USA to the UK. The Committee can see no reason why an identical safeguard should not be granted to those whose extradition is sought in the opposite direction and we believe it would be in the interests of justice for the Treaty explicitly to offer the same protection to people whose extradition is sought from either country. We cannot imagine that the United States Government would not object to British citizens enjoying the same legal safeguards as US citizens. The Committee therefore recommends that the Government seek to re-negotiate the US-UK Extradition Treaty to specify that the information requirements be the same in both jurisdictions. (Paragraph 15)

4. Extradition imposes a significant burden on the accused, who might have to spend many months or years living in a foreign country, often in prison, away from their home, family, friends and job. It would be fundamentally unjust to submit an innocent person to such an ordeal, even if they were subsequently acquitted at trial. The Committee does not therefore believe that extradition should take place without some case being made against the requested person and we recommend that the Government seek urgently to re-negotiate the Treaty in order to introduce an evidence test, while balancing issues such as delay and cost. (Paragraph 21)

5. The fundamental principles of human rights, democracy and the rule of law require that justice is seen to be done in public. The Committee believes that it would be in the interests of justice for decisions about forum in cases where there is concurrent jurisdiction to be taken by a judge in open court, where the defendant will have the opportunity to put his case, rather than in private by prosecutors. Indeed, Parliament has already legislated for that to happen. The Committee therefore recommends that the Government introduce a "forum bar" as soon as possible. (Paragraph 33)

6. In the light of the five month delay to the Baker Report, we welcome the Prime Minister's announcement that UK and US teams will look further at the extradition arrangements but, given widespread public concern regarding the issue and continuing extraditions during this period, we urge the government to act with greater urgency. (Paragraph 34)

7. The Committee is proposing significant changes to the extradition arrangements between the US and the UK not because we are critical of the American justice system but because we recognise the importance of robust extradition arrangements between our two countries. Such extradition arrangements are now threatened by loss of public confidence in the UK and there is a risk that, with time, that lack of confidence will translate into wider disaffection. We believe that the Government should act now to restore public faith in the Treaty by rebalancing the requirements for the provision of information, urgently opening negotiations about the re-introduction of an evidence test, and introducing a forum bar. The Committee believes that these changes will allow for a fair and balanced system of justice between the US and the UK as regards extradition. (Paragraph 36)

1 The Coalition: our programme for government (Cabinet Office, May 2010), p. 14 Back

2 For evidence from David Bermingham, one of the "NatWest Three", see Qq 208-279 Back

3 HC Deb, 12 July 2006, col. 1396. Although Mr Clegg referred to "British citizens", citizenship is largely irrelevant in extradition cases and it is quite common for people to be extradited to the country of which they are a citizen. Back

4 Ibid, cols. 1410 & 1420. He was referring to the Morgan Crucible Case Back

5 Q 3 Back

6 Qq 60-78 Back

7 Qq 79-102 Back

8 Qq 417-430 Back

9 Ev 77 Back

10 Conservative Party press release dated 31 July 2009, Grayling says McKinnon extradition is "very disappointing". Back

11 A Review of the United Kingdom's Extradition Arrangements (following Written Ministerial Statement by the Secretary of State for the Home Department of 8 September 2010). Presented to the Home Secretary on 30 September 2011 (hereafter, "the Baker Report"). Back

12 The Ambassador's statement to the Committee is published as an Annex to this Report. Back