Peter Binning and David Campbell explain how the government has decided against offering enhanced protection from extradition where conduct takes place in the UK as well as the US



The home secretary recently announced that the government would not be enacting the 'forum' provisions in the Police and Justice Act 2006. This is a body blow to those who have campaigned for greater protections in extradition cases, where alleged criminal conduct took place both in the UK and in a foreign jurisdiction. The US extradition cases of the NatWest Three and Ian Norris have been at the centre of the debate.



If brought into force, section 42 of the Police and Justice Act would amend the Extradition Act 2003 to add 'forum' as a potential bar to extradition. That is, where a significant part of the conduct alleged to constitute the extradition offence takes place in the UK, the court would have power to prevent extradition if it concluded that it would not be in the interests of justice for the person to be tried for the offence in the requesting territory. Similar protection does exist in other countries, such as Ireland.



The earliest that the provisions could have been implemented was 12 months after the Police and Justice Act 2006 came into force - 8 November 2007. The announcement by the home secretary suggests that the forum amendment has effectively been shelved.



The US, in particular, has made numerous requests for extradition of British nationals, and a number of these have featured cases where the conduct alleged occurred in both jurisdictions. However, the decision by the home secretary on forum should not perhaps have come as much of a surprise. At the outset, the forum amendment was a token offering to the Conservatives to overcome opposition to the Police and Justice Act.



Yet it is striking that the government was prepared to allow an Act to be passed by Parliament and then justify its failure to introduce the forum protection by saying that it would make the 2003 Act 'inconsistent not only with the US-UK treaty but also with a lot of other territories designated as extradition partners'. Any change must now await a change of government, as the opposition parties still support the forum provisions.



That the writing was on the wall for the 'forum' provisions started to become clear when the Attorney-General's office published Guidance for handling criminal cases with concurrent jurisdiction between the UK and USA in January 2007. This provides for a system of early contact between UK and US prosecutors where there are cases involving concurrent jurisdiction, namely criminal conduct that has occurred in both the UK and US, and which could be tried in either jurisdiction.



The guidance established the procedure for early sharing of information and consultation between prosecutors in the jurisdictions with an interest in the case. Where prosecutors are unable to reach agreement, the offices of the Attorney-General should take the lead with the aim of resolving the issues.



A specified lawyer designated as the liaison officer would be appointed at the relevant prosecuting department, such as the Crown Prosecution Service, Serious Fraud Office, and Revenue & Customs Prosecution Office. They would liaise with their counterparts at the Office of International Affairs (OIA) at the US Department of Justice. Similarly, where a UK prosecuting lawyer becomes aware that a case might have concurrent jurisdiction, he should contact their liaison officer, who will contact the OIA and the Attorney-General's office. The guidance envisages early strategy discussions between US and UK prosecuting authorities.



Of note is that the guidance clearly states that it does not create any rights on the part of a third party to object to, or otherwise seek review of, a decision by UK or US authorities regarding the investigation or prosecution of a case or issues related thereto. This was undoubtedly a direct result of the proceedings instigated by the NatWest Three aimed at preventing extradition to the US. The proceedings included a judicial review of the failure of the Serious Fraud Office to prosecute the case against them in the UK. If successful, the instigation of criminal proceedings in the UK would have delayed and perhaps effectively prevented any extradition to the US.



Where allegations are based on conduct in the UK, the prospects of a trial in the US or another country are truly daunting. The benefits to the applicants in having a case tried in the UK rather than the US are many, including, at least for the time being, access to adequate publicly-funded legal representation. It is noteworthy that the trial of the NatWest Three was reported to have been delayed until 2008 as a result of difficulties for at least one defendant in securing legal representation (prior to recent news of a plea bargain).



Access to overseas witnesses is another problem. In the case of the NatWest Three, they sought an order from the court to allow five UK-based witnesses to testify by video deposition, arguing that those witnesses are in fear of attending the US to give evidence. Of even more concern to defendants facing trial in the US, is that the likely penalties are substantially higher should they be found guilty or plead guilty to criminal offences. Prison sentences are markedly greater in length in the US and the prison regime is significantly harsher.



The home secretary's decision on forum means that the Attorney-General's guidance is the only potential barrier to extradition in cases where forum is an issue. However, the aim of the guidance is merely to provide a structure for the two prosecution agencies to reach agreement on mutually beneficial investigation and prosecution strategies. It does not address the issue of where cases should be better prosecuted, and is silent on any formula for resolving competing prosecutorial claims on defendants by the

two jurisdictions.



In short, there is nothing in the guidance to prevent the extradition to the US of a UK citizen where any part of the conduct complained of occurs within the US, even if the bulk of the conduct occurred within the UK.



Since the 2003 Act came in to force in January 2004, there have been 45 successful extraditions from the UK to the US. The shelving of the forum amendment does nothing to suggest that this trend will be reversed in the near future.



Peter Binning is a partner and David Campbell an assistant at London firm Corker Binning, which specialises in criminal and regulatory litigation