Theresa May, the Home Secretary, has got herself into a pickle in respect of the findings of Sir Scott Baker’s review into the UK’s extradition arrangements. Many independent observers had thought that the review would come to much the same conclusions as the Joint Committee on Human Rights, whose report in June of this year was categoric in its need for a complete overhaul of the system. By contrast, Scott Baker’s message is broadly that the arrangements are fine, and with a few tweaks here and there should be considered fit for purpose.
There are areas where Scott Baker and the Human Rights committee agree, notably the recommendations in respect of the Eurowarrant procedures, where the review commends a proportionality test, which had been sought by many who contributed, ensuring that British citizens can no longer be bundled off to face imprisonment in far off lands for alleged offences such as the theft of a pig.
The most shocking and surprising conclusions, however, are in relation to the “forum” arguments and the fairness or otherwise of the US/UK extradition treaty, which has been the cause of so much angst since the Extradition Act came into force in 2004. Both of these issues became the subject of huge media and public interest in the case of my clients, the NatWest Three, and many cases since, most notably those of Gary McKinnon, Babar Ahmad and Richard O’Dwyer.
During 2006, the Tories and Liberal Democrats in both houses of Parliament tried and failed to change the law so as to permit a judge in the extradition proceedings to make a determination as to whether the case would be better heard in the UK rather than allowing extradition. This so called “forum” amendment was supported by every senior member of the present cabinet. Indeed, the current Attorney-General, Dominic Grieve, and the Solicitor-General, Edward Garnier, both spoke at length in debate in favour of the amendment.
No less vociferous were the Tories and Lib Dems in their criticism of the “lopsided” US/UK extradition treaty, which allows the US to request the extradition of UK citizens without the requirement to produce evidence of an offence.
It was widely expected, therefore, that Scott Baker would echo the calls of the Joint Committee on Human Rights to implement a forum provision immediately and to seek to renegotiate the US/UK Treaty. But the review does no such thing.
On forum, Scott Baker argues that prosecutors are far better equipped than the courts to decide where a trial should be held, and that to have a forum bar to extradition would complicate the process and lead to satellite proceedings in judicial review. Instead, he recommends that the issue be dealt with by more formal guidance being drawn up for prosecutors in deciding which jurisdiction should prosecute. He acknowledges, however, that the ability of a defendant to challenge any such decision by the prosecutors would be limited.
Therein lies the issue. The NatWest Three sued the Serious Fraud Office for failing to investigate their case, arguing that the failure would have the inevitable consequence of their extradition. The High Court concluded that there was no duty in law for the SFO to investigate. Formal guidelines for prosecutors, but with no formal basis for the defendant to make his case as to why he might be tried in the UK, leaves defendants utterly at the whim of prosecutors, and without access to judicial scrutiny of the decisions.
There is a certain illogicality in Scott Baker’s contention that for a judge to oversee such decision-making would be overly burdensome. He suggests that a balanced decision should be taken by the prosecutors, taking into account all relevant factors. It seems strange therefore that the basis of their decision-making could not be put before the courts, and challenged by a defendant.
No less confounding is his conclusion that the terms of the US/UK treaty are not unequal, a position that is diametrically opposed to the one taken by the Tories and the Lib Dems, and so often advanced by senior members of the then opposition in the case of Gary McKinnon. Scott Baker has adopted the narrow argument that the levels of information required of either side are roughly equal, but sidestepped the more pertinent issue: that a defendant facing extradition in a US court can challenge the materials against him, while a UK defendant has no such rights. Christopher Tappin, who is accused of selling batteries that could be used in Iranian missiles, and is awaiting his appeal against extradition, can attest to this. The Kent businessman believed the batteries were to be used in the motor trade in the Netherlands.
It is sometimes instructive to look elsewhere for guidance. The US has bilateral extradition arrangements with more than 120 countries, and is required to provide evidence in support of extradition requests to all but three; France, Ireland, and the UK. France will not extradite its own citizens. Ireland will not extradite if the case could be heard on Irish soil.
A special relationship, indeed.
Mark Spragg is a civil and criminal litigation specialist with Keystone Law
SOURCE: Times Online