FactCheck: Are UK-US extradition rules lopsided?
Updated on 12 July 2006
Imbalance exists but not for reasons always given
The Claims
"I think it is a very substantive, lopsided difference between the obligations on both sides."
Nick Clegg, Liberal Democrats home affairs spokesman
Press Association, 12 July 2006
"In the attorney generals view the test applied by the US - of probable cause - is roughly analogous to the one applied in this country."
Tony Blair, Prime Minister
Prime Minister's Questions, 12 July 2006
Background
Nick Clegg called an emergency debate on the UK's Extradition Act on the eve of the extradition of the so-called 'Natwest Three' to the United States. The three are charged of fraud in relation to collapsed US energy giant Enron.
Both the Liberal Democrats and the Conservatives claim that the 2003 Extradition Act has created an imbalance between the conditions by which a UK citizen may be extradited to the US and the conditions on which a US citizen can be extradited to the UK, making it easier to extradite people from the UK than from the US.
The government previously admitted that there was an imbalance in extradition procedures but now claims that conditions for extradition are broadly comparable and in line with the standards and burden of proof applied to other countries.
In an answer to Lib Dem leader Menzies Campbell on the issues in PMQ's today Tony Blair said that the test applied by the US is "roughly analogous" to that applied in this country.
Analysis
So who's right? Prior to the 2003 Extradition Act extradition orders between the UK and other countries were subject to prima facie evidence. Prima facie is Latin for 'at first look' or 'on its face' and refers to the presumption that evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at the trial.
The Extradition Act was introduced following government embarrassment over the long-drawn out extradition procedure of General Pinochet.
In a bid to simplify extradition procedure, the 2003 Act abolished the need for evidence when extraditing to most countries in the world, and removed the safety valve of government intervention in cases.
The treaty has not formally been ratified but the main elements were enshrined in British law in 2003 through the Extradition Act.
Now if the US, or indeed any country in Europe and the Commonwealth, seek extradition from the UK they need only to make an allegation and have a warrant for their arrest.
But while across European and Commonwealth countries there is reciprocity in extradition procedures, Constitution provisions within the US system state that another country has to have evidence of the crime for which the person is being extradited.
For the UK to extradite someone from the US however they would need to establish 'probable cause' which the US constitution's fourth amendment has defined as "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime".
As recently as December 2003 Baroness Scotland admitted that the Act introduced an imbalance in extradition procedures between the UK and the US. She told the Lords committee in December 2003 that, "When we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that."
In Article 8 of the Act the necessary requirements for extradition are laid out. A copy of the warrant or order of arrest is required as well as a copy of the charging document, if there is one. Point 3c lays out the special case for the US.
It says: "For requests to the United States such information as would provide a reasonable basis to believe that the person sought committed the offence" is required.
For extradition from the UK to the US however now such evidence needs to be provided.
"It's terribly unfair and lopsided," QC Paul Garlick told FactCheck. He says that a warrant for arrest - the only item now needed for extradition to the UK - can be granted on very little evidence.
A Home Office spokesperson said that according to its "current legal advice" the situation between the two countries is broadly analogous and says that it has changed its mind on the imbalance between the two countries having seen the act "in practice" over the last few years.
But Garlick says that the act was rushed through with little parliamentary scrutiny and that the US is "now the only country in the world without perfect reciprocity" in extradition proceedings from or to the UK.
But while opposition MPs claim that following September 11 the UK government granted the US special extradition privileges to help bring terrorists to justice, Julian Knowles QC says that the imbalance is rather due to the specifics of the US constitution.
"They can't reciprocate due to their Constitution," Knowles told FactCheck.
Rather than lobbying for reciprocity between the two countries, Knowles says that the UK should reinstate the safety valve that was previously in place to protect citizens from extradition and which most countries still have in place.
Prior to the Extradition Act 2003 the Home Secretary could intervene at the last minute if an extradition was seen to be "wrong, unjust or oppressive".
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Verdict
Opposition parties are right to say that there is an imbalance in extradition proceedings between the UK and the US in favour of the US. However, the reasons behind the imbalance are not due to the granting of special privileges for the US, as is claimed
Sources
Prime Minister's Questions, 12 July 2006
Extradition Treaty between UK and US, 31 Mar 2003
Related Links
Judge rules in favour of extradition, 21 Feb 2006
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