House of Lords - Extradition: UK law and practice - Select Committee on Extradition Law

Extradition: UK law and practice - Select Committee on Extradition Law Contents

CHAPTER 11: UK/US EXTRADITION

Introduction

397. The UK's extradition arrangements with the US have been the subject of controversy ever since the UK negotiated a new treaty with the US in 2003. We received many submissions criticising the arrangements. Many of the most high profile cases have involved extradition to the US (see Appendix 5). This ground has already been well-covered elsewhere. For example, whether the UK/US treaty was imbalanced was a question the Home Secretary asked of the Baker Review and the House of Commons Home Affairs Committee published a report specifically on UK/US extradition. This report does not attempt to revisit this area in the same detail.

398. As was noted in Chapter 1, the US is a Part 2 country like many others. Our extradition arrangements with them are the same as with, for example, the Russian Federation. Furthermore, we note that the number of extraditions to the US account for a very small proportion of the number of extraditions from the UK in total. However, the issues relating to the US have attracted more evidence than other Part 2 countries and therefore the arrangements merit a separate chapter.

UK/US Extradition Treaty 2003

BACKGROUND

399. In 2003 the UK concluded negotiations with the US to replace the 1972 Extradition Treaty. The new treaty was brought into effect in UK law under Part 2 of the 2003 Act on 1 January 2004. The US Senate did not ratify the treaty until April 2007.

400. A number of witnesses said that the treaty was unbalanced, favouring extradition to the US. For some this was demonstrated by the numbers of successful requests from the US. Liberty cited Home Office figures stating that between 2004-13 the US:

417

401. Liberty added, "There may be many factors which drive the unusually high traffic of extraditions the US seeks from the UK".[418]

402. The Government rejected the claim that statistics supported the contention that the arrangements were unbalanced. It said that it did not consider that "relying purely on the number of requests made by either party to a bilateral treaty is an adequate way of considering whether or not a treaty is balanced or fair. Indeed, it is not unusual for the number of incoming and outgoing requests made under a bilateral treaty to be very different".[419] It also noted that "14 requests from the US have been refused by the UK between 1 January 2004 and 31 July 2014. During that same time period, the US did not refuse a single UK extradition request."[420]

403. Simply comparing the numbers of people extradited to and from the US is not a reliable method of assessing the operation of the treaty, and does not prove the hypothesis that the treaty is unbalanced. There may be many legitimate factors that underpin the figures. Without much more detailed research the statistics do not allow for sound conclusions. The principle of comity does not require symmetrical justice systems; the important principle is that extradition cannot and does not go ahead where any of the statutory bars are found to apply.

EVIDENTIARY TESTS

404. One of the most controversial aspects of the treaty has been over the evidence required to support extradition requests. Under the 1972 Treaty both parties were required to submit prima facie evidence. Under the 2003 Treaty requests from the UK to the US must be accompanied only by "such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested" (the 'probable cause' test).[421] The Treaty makes no provision for the evidentiary requirements for extradition from the UK to the US so these are governed by the 2003 Act. Under section 71 of the Act, requests from further designated Part 2 countries (including requests from the US) must be accompanied by sufficient information to "justify the issue of a warrant for the arrest of a person accused of the offence" (the 'reasonable suspicion' test).[422]

405. As the US Senate did not ratify the treaty until some time after its provisions were brought into UK law, UK/US extradition operated for over three years on the basis of different agreements. The situation was summarised in a table in the Baker Review (see Table 5).

Table 5: Evidence requirements in UK/US extradition

Period	Requests to the United States	Requests to the United Kingdom
Before 1 January 2004	Probable cause evidence	Prima facie evidence
January 2004 to 26 April 2007	Probable cause evidence	Information satisfying the reasonable suspicion test
26 April 2007 to date	Information satisfying the probable cause test	Information satisfying the reasonable suspicion test

Source: Baker Review, p237

406. Even after the Senate ratified the treaty, the difference between 'probable cause' and 'reasonable suspicion' tests remained a source of controversy. For example, the Islamic Human Rights Commission referred to an "imbalance of threshold requirements".[423]

407. In UK law in general there is a recognised difference between 'belief' and 'suspicion':

424

A similar distinction is made in US law.[425]

408. The Baker Review concluded that there was "no significant difference"[426] between the two tests. The Review noted that:

"(i) Both tests are based on reasonableness;

(ii) Both tests are supported by the same documentation;

(iii) Both tests represent the standard of proof that police officers in the United States and the United Kingdom must satisfy domestically before a judge in order to arrest a suspect."

409. In evidence to us, Roger Burlingame, a former US federal prosecutor, said that the tests were "functionally the same" as he could not think of a case that "would have turned on the difference between those two standards".[427]

410. Others were less satisfied. Isabella Sankey said that the Baker Review had been "a little bit of a fudge around the two evidentiary standards, with the conclusion that it is just very difficult to be precise about whether the two tests are the same." She said that Liberty's view was "We do not think the matter has necessarily yet been investigated".[428]

411. However, Isabella Sankey, in common with a number of witnesses, did not focus on concerns that there was "no reciprocity between the two nations".[429] Rather, witnesses were critical of aspects of the US justice system which they felt made extradition inappropriate or unjust.

412. Given that UK law regards "a reasonable basis to believe" as a higher threshold than "reasonable suspicion", we conclude that the evidentiary tests in our extradition arrangements with the US are different. However, whether this difference has any practical effect is debatable. The view that experience to date demonstrates that they are "functionally" the same is persuasive.

ASPECTS OF THE US JUSTICE SYSTEM

413. One aspect of the US system of justice which a number of witnesses criticised was what one witness called the "notorious 'plea bargaining' travesty".[430]

414. Plea bargaining has been the subject of much discussion in the US generally. A research paper by the Bureau of Justice Assistance estimated that 90-95% of state and federal court cases were resolved through plea bargaining.[431] The Innocence Project (a New York-based legal organisation which works to exonerate wrongly convicted people) estimates that 2.3-5% of all prisoners in the US are innocent.[432] Jed Rakoff (a US District Judge for the Southern District of New York) has noted that if 1% of all convictions were false, given the size of the prison population in the US and the number of cases resolved through plea bargaining, there would be around 20,000 innocent people in prison as a result of plea bargaining.[433]

415. A number of witnesses said that plea bargaining placed undue pressure on Requested People, particularly when they were "far away from home without support, facing an alien justice system".[434] Michael Evans summed it up saying, "anyone, when faced with the possibility of going to jail in the US for a very long time or agreeing to plead to this but serve no jail time and go straight home, would be a fool not to."[435]

416. The degree to which plea bargaining has become a feature in determining sentences in the US, including those facilitated by extradition, was a matter of considerable concern to some witnesses as plea bargaining places considerable power in the hands of the public prosecutor. Michael Evans went so far as to suggest that it might lead to a situation in which the eventual bargain reached with a Requested Person would mean such a minimal sentence that extradition might not have been considered proportionate. He cited the case of Eileen Clark, a US citizen extradited from the UK to the US to face charges of absconding with her children and leaving the US in the late 1990s. After resisting extradition from the UK, Ms Clark pleaded guilty to the charges in the US in return for the possibility of a jail sentence being removed. Mr Evans said, "It is a complete and utter waste of the court time that was used here and a wrongfully used extradition process. If it really is the case that the total sum of her criminality is viewed in the sense that she should never set foot in jail, then she does not meet the criteria for extradition."[436]

417. In evidence to us, plea bargaining was also defended. Roger Burlingame said, "You have a constitutional guarantee of the right to trial. At base, you have the same decision in the United States that you have in the UK, which is whether you are going to challenge the case at trial or you are going to plead guilty and get a slightly better deal than you would get if you challenge the case at trial and lose."[437] Similarly, Amy Jeffress said, "every individual extradited has an absolute right to a trial. If that person is not guilty, they should exercise that right to trial. If the person is guilty, then it is often in that person's best interests to plead guilty, so that they receive the benefit of the plea-bargaining process."[438]

418. Cases arguing against plea bargaining have been heard in a number of courts. In the US, the Supreme Court has ruled in favour of plea bargaining a number of times.[439] The European Court of Human Rights in Natsvlishvili and Togonidze v Georgia recently heard an appeal against Georgia's plea bargaining system. This was the first case at European level to consider plea bargaining's compatibility with the ECHR. The Court described plea bargaining as a common feature across the EU, which breached neither the presumption of innocence nor the right to a fair trial. This was so even in the context of a very high conviction rate in Georgia of around 99% of cases.

419. The Court ruled that plea bargaining in principle was consistent with Convention rights provided the bargain was in practice established in "an unequivocal manner … attended by minimum safeguards commensurate with its importance" (including judicial oversight) and was not contrary to the public interest. With reference to the particular case, it ruled that "(a) the bargain had to be accepted by the first applicant in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and (b) the content of the bargain and the fairness of the manner in which it had been reached between the parties had to be subjected to sufficient judicial review."[440]

420. In the context of plea bargaining post-extradition, the House of Lords has ruled that:

441

421. It is notable that where extradition to the US has been resisted on Article 6 grounds (the right to a fair trial) due to plea bargaining or other factors, such arguments have not been successful.

422. Another aspect of concern raised was the contention that where a person had resisted extradition the courts would automatically be refused bail in the US. This was the experience of Christopher Tappin, who was extradited to the US (see Appendix 5). He said, "Bail was opposed because I was not a US citizen therefore I had no ties or family connection to the community and I was automatically deemed a flight risk."[442]

423. Michael Evans said that this was tantamount to a punishment for challenging extradition:

443

424. Similarly, some prison conditions were cited as making extradition to the US excessively harsh. In their written submission, Mr and Mrs Dunham described being held in a 'supermax' prison "designed and in fact used to hold terrorists and dangerous prisoners."[444] Frances Webber, describing her research into such prisons dating back to 2002, said:

445

425. David Bermingham described a number of the prisons in which he was held. Some he described as "hellhole prisons"[446] though he spent the majority of his time in the low security wing of a prison in California which he described as being "not a bad place to be, oddly enough—I was in the army; to me it was a bit like basic training on steroids."[447]

426. As with plea bargaining, the ECtHR has not found US prison conditions to be in breach of the ECHR.[448] Amy Jeffress said:

449

427. The practice in some states of electing judges was also cited as concerning.[450] This has also been the subject of some criticism in the US.[451] Again, Amy Jeffress rejected these criticisms, "Even in those states that have elected judges, those judges take an oath to administer justice and, with very rare exceptions, they do so fairly and impartially, as they are sworn to do."[452]

428. Responding to all of these criticisms in general, Amy Jeffress said:

453

454

455

429. Sir Scott Baker recognised many of the concerns about the US system. For example, he said, "It is very unsatisfactory to see people who have been extradited for whitecollar crime being led off in chains from the aircraft by US marshals. The prison conditions, in some instances, leave a great deal to be desired."[456]

430. However, the Baker Review did not find that these criticisms meant that the UK/US treaty operated unfairly. Anand Doobay summarised the positon:

457

DIFFERENCES IN PROSECUTORIAL CULTURES

431. Some of the criticisms of the UK's extradition arrangements with the US were based on the countries' different approaches to jurisdiction and prosecution. There was concern that the US took an inappropriately broad view of its jurisdiction. Isabella Sankey said that the US might claim jurisdiction based on a connection "as small as a computer being used with a US server based in the US for a matter of months."[458]

432. Others agreed that the US took a broader view of jurisdiction but that did not necessarily make it inappropriate. Anand Doobay said the US took "a more robust view than we would in the UK as to which situations it will prosecute in if there is only 10% of the conduct in the US, but that is not extraterritorial; that is simply that they are taking a decision that we would not take ourselves."[459] Roger Burlingame agreed with this view. He said the difference was a result of "how much attention is focused on those sorts of cross-border, multi-jurisdictional, white-collar cases, terrorism cases and currently US tax evasion cases. They are the kinds of cases where the US is reaching across borders. No one is coming to try to extradite people for marital disputes that lead to dust-ups in south London."[460]

433. The CPS noted that regardless of approaches to jurisdiction, the principle of dual criminality still applied:

461

434. Even where it was agreed that a case might legitimately be considered as concurrent, some witnesses said that the differences between the prosecuting authorities meant that the US would inevitably take precedence. Isabella Sankey said:

462

435. Roger Burlingame disagreed. He said, "Where there are cases where both sides are equally advanced in their investigation and prepared to prosecute, you are not going to have situations where people are being extradited. It is where one country is more advanced in the investigation and ready to go, whereas the other one is not similarly advanced on the same case."[463] If it was the case that the US was more often "more advanced in the investigation" he put that down to "a prosecutorial resources issue" saying that the US had "a huge, huge amount of law enforcement".[464] He described a picture of US prosecutors being "people in their 30s with boundless energy, who are the most Type A aggressive achievers up to that point in their lives … with virtually unlimited resources working around the clock to pursue these kinds of cases."[465]

436. The CPS did not agree that the US had an advantage in prosecutorial discussions, maintaining the view that pursuit of prosecutions by UK authorities was robust. Sue Patten said:

466

437. Nick Vamos also told the Committee that, having been the CPS liaison in Washington, he did not "recognise that universal alpha male/alpha female characterisation that was given to this Committee. Certainly it was true of some people, but I do not think there is any less commitment to prosecuting on this side of the Atlantic."[467]

438. Both Nick Vamos and Sue Patten cited examples of UK and US authorities working closely together. Sue Patten described a case involving "a website that was facilitating fraud and it was a global matter" which was investigated by the NCA, supported by evidence provided by the FBI and prosecuted in the UK.[468] Nick Vamos referred to the prosecution of Anonymous hackers[469] which used evidence and witnesses from the US but was prosecuted in the UK. He said, "it did not seem like there was any desire by the Americans to just override UK prosecution and extradite those people".[470]

439. One difference between UK and US prosecutors that was noted was that US prosecutors have investigatory powers. Nick Vamos explained that "the US prosecutor can drive the investigation. It is very different from the UK prosecutor. We are referred cases by the police, who conduct the investigation, and we can advise or suggest. We do not direct it; we do not drive it. It is not our investigation."[471]

440. Much of the evidence we received about aspects of the US justice system is concerning. Some of the accounts we received from those who had been extradited to the US were, in places, quite moving. The risks of such experiences are inherent to extradition to any foreign jurisdiction, although we are concerned that some conditions and procedures in the US may not always be worthy of the tacit approval that extradition implies.

441. However, the ECtHR has considered whether these concerns ought to prevent extradition to the US. It has found that extradition to the US does not constitute a human rights breach because of these concerns. The ECHR is, correctly, the UK's baseline for considering whether the justice systems of other countries makes extradition human rights compliant. We do not, therefore, propose any changes in our legal arrangements with the US. Of course, all of the normal bars to extradition apply in US cases and if the US were found by the courts to be seriously or systemically in breach of the ECHR, they would (as the courts have done with other countries) become far more circumspect about ordering extradition to the US, potentially to the point of refusing extradition very frequently.

442. It must be recognised that were the UK courts to find certain aspects of the US system of justice so objectionable as to constitute a bar to the extradition of a UK national so too would we be unable to extradite to the US any other Requested Person. If, for example, the usual plea bargaining processes there were held to constitute an abuse of process (contrary to what was held by the House of Lords in McKinnon), US citizens in the UK would be entitled to resist extradition to the US no less than our own nationals and the UK would speedily become a safe haven for all those seeking impunity for crimes in or against the US.

443. Having said that, ensuring extradition arrangements with the US command general public support is very important. The fact that no breaches of the ECHR have been found in relation to extradition to the US ought to provide that support. However, it is clear from the evidence that, rightly or wrongly, a sentiment remains that pre-trial conditions in the US risk being excessively harsh. This is particularly the case for those assessed in the UK as presenting a low risk of either being violent or absconding, but who are nevertheless subjected to the use of force on flights or detention in high security facilities, and for non-US residents unable to provide a suitable bail addresses.

444. In the light of these concerns, we urge the Government to make representations to the US authorities to agree the treatment of those extradited from the UK, with particular regard to transfer, pre-trial detention and bail. (Recommendation 20)

445. However, we do not consider the US to be a special case. The Government ought also to make similar representations to any extradition partner whose conditions do not breach the ECHR but might be considered excessively harsh. (Recommendation 21)

446. The outcome of these representations should be formalised into a Memorandum of Understanding in order to clarify the positions of each country in relation to the standards of treatment expected when a person is extradited. (Recommendation 22)

447. We would hope that the US authorities would be open to this recommendation as it must be to their advantage as much as ours for the public to have confidence in our extradition arrangements.

448. We do not take the view that the US's interpretation of jurisdiction is inappropriate. The US is clearly more active in prosecuting cross-border crimes than many other countries but this does not mean its interpretation is excessive.

417 Written evidence from Liberty (EXL0066) Back

418 Ibid. Back

419 Written evidence from the Home Office (EXL0060) Back

420 Ibid. Back

421 The wording in the treaty reflects accepted definitions of the 'probable cause' test contained in the Fourth Amendment to the US Constitution. Back

422 The wording in the treaty reflects the 'reasonable suspicion' test common in UK law. Back

423 Written evidence from the Islamic Human Rights Commission (EXL0062) Back

424 A, B, C, D, E, F, G, H, Mahmoud Abu Rideh, Jamal Ajouaou v Secretary of State for the Home Department (2005) 1 WLR 414 at 229 Back

425 In Terry v Ohio (392 U.S. 1 (1968)), the US Supreme Court ruled that stop and search could be permissible subject to a police officer on the basis of reasonable suspicion whereas a more rigorous search or seizure would require reasonable belief to satisfy the 'probable cause' test of the Constitution's Fourth Amendment. Back

426 The Baker Review, p 1 Back

427 Q55 Back

428 Q54 (Isabella Sankey) Back