Is it easier for the United States to have a suspect extradited from the United Kingdom than it is for the UK to get someone handed over by the US?
Ever since the US-UK extradition treaty was signed in 2003, there have been complaints that it favoured the US.
Last September, the home secretary set up an independent review of extradition law, headed by the retired judge Sir Scott Baker.
One of the issues it is considering is whether the US-UK extradition treaty is unbalanced.
The US government rejects that claim, as I was told by Amy Jeffress, the US department of justice attaché to the American embassy in London, on the BBC’s Law in Action programme in February.
‘We believe that the treaty is balanced and we welcome the review because it’s our view that there are a lot of misunderstandings in the media and in the general public about the relationship,’ she said.
Jeffress insisted that it was no easier for the US to have a suspect extradited under the treaty than it was for the UK.
‘There is a misperception that the United States has refused requests from the United Kingdom.
'Since the treaty came into effect [in 2007] the United States has not refused a single request. So I don’t know why that misimpression is out there.’
Perhaps it is because different standards apply in each direction.
‘For extraditions from the United States, the US requires a demonstration of probable cause. For extraditions from the United Kingdom, the UK requires a demonstration of reasonable suspicion.’
However, Jeffress continued, ‘those standards are essentially equivalent in the two systems because both are the standards that are required for a police officer to justify an arrest in each system.
'They are essentially the same and they work out the same in practice’.
But that’s not the view of the MPs and peers who sit on the Joint Committee on Human Rights.
They take the view that ‘reasonable suspicion’ is a lower threshold than ‘probable cause’, basing that conclusion on a statement made by Baroness Scotland when she was a home office minister in 2003.
Committee members called on the government to ‘urgently’ renegotiate its extradition treaty with the US, basing their argument on evidence they took from David Bermingham – perhaps not the most disinterested witness, given that he was himself extradited to the US, convicted of fraud and imprisoned there before being released last year.
There is no prospect that the US will agree to any variation of the treaty, as Jeffress made perfectly clear.
But it is not just the US-UK treaty that the committee wants rewritten.
It calls on the government to renegotiate the EU framework decision on the European arrest warrant, which led to our own Extradition Act 2003.
The committee thinks that countries seeking extradition should show there is a prima facie case – a case to answer – or a ‘similarly robust evidential threshold’ in countries that do not follow common law procedures.
Although prima facie evidence used to be a requirement for extradition, the committee found only limited support for its reinstatement. Lobby groups such as Justice and the Law Society pointed to other ways of challenging inadequate evidence.
Renegotiating two major international treaties could lead to the opposite of what the committee hopes for and is clearly unrealistic.
Michael Caplan QC, a defence solicitor at Kingsley Napley, says ‘the committee’s recommendation that all states should provide prima facie or robust evidence in order to pursue extradition will unfortunately not happen.
'We do not require EU member states to do so and this will not change.’
Why then did the committee put forward recommendations that it knew had no chance of implementation, recommendations that received very little support even from the witnesses it had chosen to call?
Was it trying to make a political point – not necessarily party political but certainly anti-US and anti-EU?
The committee would have been wiser to confine itself to more achievable recommendations, such as the so-called forum safeguard.
There are already provisions in the Police and Justice Act 2006 allowing a judge to refuse extradition where ‘a significant part of the conduct alleged to constitute the extradition offence’ took place in the United Kingdom and ‘it would not be in the interests of justice for the person to be tried for the offence in the requesting territory’.
However, these safeguards were introduced on an opposition amendment and have never been brought into force.
John Reid, home secretary at the time, believed that implementing them would be inconsistent with the US-UK treaty and some 20 other extradition treaties.
However, this is contradicted by legal advice from Edward Fitzgerald QC and Julian Knowles QC. Perhaps significantly, the EU framework agreement allows for a forum bar.
Michael Caplan says it is difficult to see any credible argument against introducing such a bar: ‘It has been contemplated for the past five years and is long overdue.’
The solicitor-advocate also believes that the home secretary should be given much greater discretion, both at the beginning and the end of the extradition process.
That would restore the law to the position it was in before the Extradition Act 2003.
Curiously, we have already reached that position without anyone noticing.
Remember Gary McKinnon, accused of hacking into US military computers so long ago that he used a dial-up modem?
Under what powers did Theresa May decide more than a year ago to defer his extradition?
There are none; but nobody is making a fuss about it.
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