On the issue of where a trial should take place when the suspected offender remained in the UK but the offence affected another country, Lord Lloyd of Berwick has said: “The question as to whether to prosecute must be for the prosecuting authorities and it follows that the question of where to prosecute must also be for them. I cannot see how it can conceivably be resolved by a judge”. The recent review of extradition laws for the government, led by Sir Scott Baker, had a similar conclusion. Nothing in the 2003 Act prevents the director of public prosecutions from insisting a prosecution be brought in the UK. In Gary McKinnon’s case, Lord Justice Stanley Burnton rejected the challenge to the DPP’s decision that the trial should take place in the US, stating it would be “manifestly unsatisfactory in the extreme” for McKinnon to be tried in the UK.
Secondly, she criticises the US ambassador Louis Susman for saying the “probable cause” standard required in the US legal system is broadly equivalent to the UK standard of “reasonable suspicion”. “Probable cause” is defined in US courts as “a reasonable ground for belief of guilt”. Lord Devlin defined the test of “reasonable suspicion” in the UK as that: “The circumstances of the case should be such that a reasonable man, acting without passion or prejudice, would fairly have suspected the person of having committed the offence.” Sir Scott Baker’s review concluded that, while the terms of the respective legal systems differ, the substance of the tests is broadly the same. There is no imbalance in the UK/US extradition treaty.
Alan Johnson MP
Lab, Hull West and Hessle
Published in the Guardian on 5th December
As much as I admire Alan Johnson MP’s attempt to defend the indefensible (Letters, 6 December), quibbling about the difference between “probable cause” and “reasonable suspicion” does little to advance the debate on the UK/US extradition treaty. The legalese here is a red herring. The imbalance lies in a UK defendant being unable to test the validity of evidence in a UK court before an extradition is ordered, whereas a US defendant has a constitutional right to do so, in a US court. This imbalance is self-evident. As for Sir Scott Baker’s review, both prosecutor and defendant could make submissions to the court before the trial forum is determined, were a forum amendment enacted. Politically appointed prosecutors, no matter the transparency of their guidelines, will not be as independent in their determination of forum as the judiciary. Hence the urgent need for reform.
Helena Kennedy QC
Labour, House of Lords
• Where has Alan Johnson been? Does he not know it is perfectly possible for someone to be removed from this country for trial elsewhere without any evidence being produced at all? If he is in doubt let him ask one of our Algerian detainees.