The Human Rights Implications of UK Extradition Policy

The Human Rights Implications of UK Extradition Policy - Human Rights Joint Committee Contents

5 The UK's bilateral extradition treaties

US-UK Extradition Treaty 2003

Box 5—The US-UK Extradition Treaty 2003

The UK-US extradition treaty was signed on 31 March 2003 and came into force in April 2007, following the US Senate's ratification of the Treaty. The UK's arrangements for extradition to the US set out in the Treaty came into force in advance of this date as they were included within the Extradition Act 2003. As with the European Arrest Warrant, a person can be extradited under the Treaty for any offence with a minimum sentence of one year.
The Treaty provides for the UK to refuse extradition where the offence for which extradition is sought is punishable by the death penalty except where "the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out."
Extradition figures between the UK and US[191]:

Year UK arrests for extradition to US UK surrenders to US US surrenders to UK

2006 15 16 4

2007 8 8 7

2008 9 6 10

2009 19 16 7

2010 14 10 5

186. The evidence we received on bilateral treaties with category 2 territories referred largely to the US-UK Extradition Treaty. In particular, two issues arose in relation to the Treaty: the perceived lack of balance or reciprocity in the Treaty and whether a person extradited to the United States from the United Kingdom would receive a fair trial.

BALANCE OF THE US-UK EXTRADITION TREATY

187. The perceived lack of reciprocity in the Treaty relates largely to whether each party is required to present a prima facie case before extradition takes place. When the United Kingdom requests extradition from the United States, the Treaty requires that the UK provide "such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested." There is no such requirement for the US when requesting extradition of a person from the UK. When debating the Draft Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, which brought the Extradition Act into force, the then Home Office Minister, Baroness Scotland of Asthall QC, said that:

"If this order is approved, the United States will no longer be required to supply prima facie evidence to accompany extradition requests that it makes to the United Kingdom. This is in line with the new bilateral extradition treaty signed by my right honourable friend the Home Secretary earlier this year.

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 that under the terms of its constitution the United States of America cannot set its evidential standard any lower than "probable cause"."[192]

188. We asked our witnesses to comment on the controversy over the lack of reciprocity in the Treaty. Sally Ireland of JUSTICE told us that the "issue of disparity is not really one that primarily concerns us" and instead JUSTICE was focused on ensuring that the Extradition Act 2003 provided sufficient protection for UK citizens. She noted that the level of proof required for the extradition of a person from the US to the UK would "probably be slightly higher than what we have here but not as high as a prima facie case."[193] Liberty noted that the UK should "be seeking to incorporate the sensible constitutional safeguards that benefit US residents" rather than focusing on the lack of balance in the Treaty.[194]

189. Mr David Bermingham, argued that:

"if you are a United States citizen who is wanted for extradition by the United Kingdom, you have an absolute right to a hearing in a United States court where you can challenge the evidence that has been put in front of the court and present evidence of your own. If, by contrast, you are a United Kingdom citizen or somebody ordinarily resident here who is wanted by the United States, you have no such right."[195]

190. In Mr Bermingham's opinion, the UK extradited people to the US "without so much as a scrap of evidence being put in front of a UK court" which was "a grave disservice to our citizens and other people who may be the subject of extradition."[196]

191. We asked the then Minister whether there was room for manoeuvre in adjusting the terms of the Treaty. She told us that the US and the UK were "two friendly Governments" and that "if an adjustment can be made which is in the spirit and intention of the treaty and which improves its operation, I would expect us to be able to do that."[197]

192. The Government should increase the proof required for the extradition of British citizens to the US so as to require sufficient evidence to establish probable cause, as is required for the extradition of a US citizen to the UK. This will require renegotiation of the UK-US Extradition Treaty.

193. The Law Society in its submission to the Extradition Review Panel said that the disparity in the number of charges in relation to the UK-US treaty had also led to claims of imbalance, but noted that "the frequency of requests is not of course governed by the UK-US Treaty." They concluded that perceptions of imbalance "may well be a reflection of the nature of the particular overseas jurisdiction and may perhaps, for this reason, be unavoidable."[198]

194. We heard evidence from David Bermingham that in some cases of extradition to the US, the evidence used was gathered by UK police in the UK about acts committed on UK soil and where the CPS had decided not to prosecute.[199] We note that Article 5(3) of the US-UK treaty specifically allows extradition where the "competent authorities of the Requested State" have decided not to prosecute, discontinue prosecution or are still investigating. It is this Article 5(3) which enabled the extradition of the David Bermingham.

195. Article 5(3) creates a two-fold problem because it allows the extradition of individuals on the basis of evidence which the CPS has deemed insufficient to prosecute in this country and the extradition of individuals where the CPS has decided there is no public interest in prosecuting. We received a submission from the family of Babar Ahmed, whose extradition to the United States is under consideration by the courts, on Mr Ahmed's experience of the extradition process. We thank the family of Mr Ahmed for this submission. In the case of Mr Ahmed, the use by the US authorities of evidence obtained in this country in a UK investigation has led to his incarceration since 5 August 2004.

196. We recommend that the Government urgently renegotiate this article of the US-UK extradition treaty to exclude the possibility that extradition is requested and granted in cases such as that of Mr Bermingham and Mr Ahmed, where the UK police and prosecution authorities have already made a decision not to charge or prosecute an individual on the same evidence adduced by the US authorities to request extradition.

FAIR TRIAL IN THE UNITED STATES

197. We received a number of submissions referring to the US legal system and whether a UK citizen extradited to the United States would receive a fair trial, including from David Birmingham, Harvey Silvergate[200] and Michael Hann.[201] It is not within the remit of this inquiry, or the competence of this Committee, to comment on the legal systems of other countries. In Chapter 2 we considered the effectiveness of the human rights bar to extradition. If such a bar were effective, a requested person could argue that extradition would breach their Article 6 rights to a fair trial and it would be up to the court to consider whether extradition to the US would be in compliance with this right. The witnesses referred to in paragraph 84, who preferred that we do not use their name, noted "it is immaterial if, on the face of it, bilateral treaties override any human rights concerns—there are sufficient safeguards available once extradition proceedings commence."[202] This of course only applies if these safeguards work effectively.

Role of Secretary of State

198. Although the executive no longer plays a role in extradition to Category 1 territories, the Secretary of State retains a role in the extradition of persons to Category 2 territories. The Secretary of State can refuse extradition to a Category 2 country after a court has assented to the extradition on a limited number of grounds. The Law Society noted that "the Secretary of State plays a formal role at two stages" but "neither of which entails any real exercise of discretion."[203]

199. It has been suggested that this role should be increased to provide more grounds for the Secretary of State to bar extradition. The role of the executive has been completely removed under the European Arrest Warrant and so the role of the Secretary of State applies only to Part 2 of the Act.

200. Liberty said that there should be a role for the Secretary of State: "in particular, that he or she should be able to refuse an extradition request in certain circumstances even where extradition has been approved by the court." The evidence noted that a judge is best placed to consider the facts of an extradition case, but discretion of the Secretary of State "is important to ensure that any extradition which would be unjust is stopped notwithstanding earlier court findings."[204]

201. On the other hand, Catherine Heard of Fair Trials International considered that it would be practically difficult to add back in a level of executive discretion, which was not a transparent process: "I think judges are in a better position to deal in a transparent fashion, in open court, in an accountable way with difficult extradition cases."[205] Sally Ireland of JUSTICE noted that a role for the Secretary of State in the extradition process can politicise individual cases: "we have seen media reports of basically political diplomatic negotiations going on between Ministers of different countries about the fate of individual extradites [...] hence the importance of the primary decision-maker being the judicial decision-maker in all cases."[206] This issue was noted by Liberty, who argued that the system in practice had led to individuals becoming "political pawns." Liberty argued, therefore, that any restoration of the power of the Secretary of State should be "limited and narrowly defined."[207]

202. We note the arguments for increasing the role of the Secretary of State in the surrender of persons to countries under Part 2 of the Extradition Act. We are not convinced that changes should be made and, in any event, any additional powers would need to be carefully circumscribed to avoid those subject to extradition requests becoming "political pawns".

191 See EXT 032 for a full breakdown of figures. Figures were not provided for US arrests for extradition to UK. Back

192 HL Deb (2003-4) 644 col. 1062 Back

193 Qq 8-9 Back

194 EXT 6 Back

195 Q 70 Back

196 Q 66 Back

197 Q 240 Back

198 Law Society response to the Home Office Extradition Review, pp13-4 Back

199 Q 62 Back

200 EXT 13 Back

201 EXT 22 Back

202 EXT 3 Back