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UK–US extradition treaty of 2003

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The UK–US extradition treaty of 2003 was implemented by the UK in the Extradition Act 2003 and came into force in April 2007 following its ratification by the US Senate in 2006.[1][2]

Controversy

The allegedly one-sided[3] treaty allows the US to demand extradition of British citizens and other nationals for offences committed against US law, even though the alleged offence may have been committed in the UK by a person living and working in the UK (see, for example, the NatWest Three), and there being no reciprocal right; and issues about the level of proof required to extradite from the UK to the US versus from the US to the UK.[4] Although it has since been established that they are “effectively” the same levels of proof.

Among other provisions Part 2 of the Act: Extradition to category 2 territories (non-European Arrest Warrant territories) removed the requirement on the US to provide prima facie evidence in extraditions from the UK, requiring instead only reasonable suspicion.[5][failed verification][citation needed] This was necessary to redress the previous imbalance against the US under the 1870 Act, as the UK did not have to provide the more onerous prima facie evidence to extradite from the US.[citation needed] The requirement for the UK is to show probable cause. However, an independent legal review carried out by Sir Scott Baker found that "there is no significant difference between the probable cause test and the reasonable suspicion test. There is no practical difference between the information submitted to and from the United States."[6]

The manner of its implementation caused concern because of alleged secrecy and minimal parliamentary scrutiny.[4][7][8]

In response to these concerns, the Home Secretary Theresa May appointed Lord Justice Scott Baker to conduct an official review of the UK's extradition treaties, with the assistance of two independent extradition experts. The review was directed to address evidence standards and whether the US–UK extradition treaty is unbalanced.[9] Baker's report was presented to the Home Secretary on September 30, 2011, and concluded that there is no substantial difference in evidence standards, that the treaty is balanced and that there is not "any basis to conclude that extradition from the United Kingdom to the US operates unfairly or oppressively".[10][11] The review contradicts the findings of Parliament's Joint Committee on Human Rights (JCHR), which was intended to form part of the government's full extradition review and which called for the government to renegotiate the UK's extradition treaty with the United States to ensure British citizens get the same protection as Americans.[12]

The Home Affairs Select Committee published a report in 2012[13] into the UK–US extradition treaty and Extradition Act, acknowledging the low level of public confidence in the UK's extradition legislation. The committee were particularly critical of the failure of the Home Office to publish the evidence that lies behind the Home Office-commissioned Scott Baker review – the only review to conclude that the US/UK Treaty was not imbalanced. The committee had "serious misgivings"[13] about some aspects of the US/UK arrangements but was at pains to recognise the importance of an effective extradition arrangement between the two countries. With respect to the differing legal standards of evidence required in support of an extradition request, the Committee accepted that there was "little or no distinction in practice between the 'probable cause' and 'reasonable suspicion' tests".[13] The Committee further acknowledged that "extradition imposes a significant burden on the accused".[13] On the most controversial of issues – that of forum – that campaigners have long been seeking to have introduced in British legislation, the committee delivers perhaps its strongest message to Parliament: "The Committee believes that it would be in the interests of justice for decisions about forum in cases where there is concurrent jurisdiction to be taken by a judge in open court, where the defendant will have the opportunity to put his case, rather than in private by prosecutors". The Committee concludes by recognising that it proposes significant amendments to the current legislation given the loss of public confidence in the current system. The Committee urges the government "to act with greater urgency"[13] to rectify the issues the report has identified.

Many say[who?] that the issue of forum is the key reform that will help bring an end to ongoing and future injustices that they say have occurred under the Extradition Act 2003.[citation needed]

In April 2012 it was revealed in a Freedom of Information request to the British Home Office that no US citizens have been extradited from the US to the UK under this treaty for crimes committed while the person was in the US.[14]

US ratification, 2006

The US–UK Extradition Treaty 2003 was first sent to the US Senate for approval in April 2004. But another component of the controversy noted above was a result of the delay of the US in ratifying it into US law. Baroness Scotland, British Minister of State for the Criminal Justice System at the Home Office, travelled to the US on Thursday 13 July 2006 to address this problem. This move was prompted by political criticism of the Extradition Act 2003 within the UK and an opposition proposal to amend the Act in the House of Lords. It also coincided with public disquiet at the case of the NatWest Three who were extradited on the same date.[15] This meant the NatWest three were extradited to the US under the US–UK Extradition Treaty 2003, even though that treaty had not been ratified in the US.

On 30 September 2006 the US Senate unanimously ratified the treaty.[16] Home Secretary John Reid said he was "delighted" that Baroness Scotland's visit to the US over the summer succeeded in getting Senate agreement, saying "The treaty is an important measure in our fight against serious international crime".[17]

Ratification had been slowed by complaints from some Irish-American groups that the treaty would create new legal jeopardy for Provisional IRA terrorists who fled to the US in the 1980s[18] and their American supporters.[2]

US cases where the treaty has been applied

From January 2004 to the end of December 2011, seven known US citizens were extradited from the US to the UK.[19] No US citizen was extradited for an alleged crime while the person was based in the US.[14] The US embassy in London reports that, as of April 2013, 38 individuals have been extradited from the US to the UK.[20]

UK cases where the Act has been applied

From January 2004 to the end of December 2011, 33 known British citizens (including 6 with dual nationality) were extradited from the UK to the US.[19] The US embassy in London reported that as of April 2013, 77 individuals had been extradited from the UK to the US.[20] The US argued that this is not disproportionate, due to the US population being about five times larger than the British population.[21]

  • Gary McKinnon – extradition blocked on 16 October 2012 by order of Home Secretary Theresa May, on the grounds that "Mr McKinnon's extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon's human rights."
  • NatWest Three – extradited to Texas on fraud charges against a British bank while they were living in the UK and working for the British bank. Arriving in the US on 13 July 2006 they eventually pleaded guilty to wire fraud in a plea bargain.
  • Babar Ahmad – extradited in 2012 on charges of running web sites supporting the Chechen and Afghan insurgencies while in the UK.[22][23]
  • Syed Talha Ahsan – extradited in 2012 on charges of running web sites supporting the Chechen and Afghan insurgencies while in the UK, co-defendant with Babar Ahmad[23]
  • Abu Hamza al-Masri – extradited to the US on 5 October 2012, among other things accused of conspiring with convicted American terrorist James Ujaama while in the UK.[23]
  • Alex Stone – alleged child abuse, charges subsequently dropped after 6 months in US jail. According to Mr. Stone "there appeared to be no defence to extradition and no evidence at all was presented in this case".[24]
  • Ian Norris of Morgan Crucible – alleged price fixing (while in the UK and price fixing was not a crime in the UK at the time). Extradition overturned by the House of Lords on appeal.[25] Subsequent extradition request on obstruction of justice charges approved in July 2008,[26] extradited March 2010.[27]
  • Wojciech Chodan and Jeffrey Tesler – face extradition over their alleged role in a Nigerian bribery scandal, but argue that almost none of the misconduct they are accused of was connected to the US and that the alleged bribery plot took place mainly in the UK or Nigeria.[28][29]
  • Richard O'Dwyer – extradition request made in May 2011. The extradition request follows the Southern District Court in New York bringing two charges against Richard O'Dwyer for criminal copyright infringement in relation to TVShack.net while in the UK. The two charges, conspiracy to commit copyright infringement and criminal infringement of copyright, each carry a maximum sentence of five years.[30][31]
  • Christopher Tappin – extradition request made in 2010. Accused of selling batteries to be used in Iranian surface-to-air missiles while in the UK. Mr Tappin says he was approached by US agents asking him to ship batteries from the US to the Netherlands who sent paperwork saying that permits were not required and then sought to have him arrested and extradited. A spokesman for Tappin's lawyers said "This is a case in which the Customs agents caused the offence to be committed rather than merely providing an opportunity for the defendant to commit it."[32] On 9 January 2013, Tappin was given a 33-month prison sentence for arms dealing and fined US$11,357 (£7,095).[33][34]
  • David McIntyre, an ex-soldier, was serving in Afghanistan when in July 2012 he was ordered to return to the UK after being accused of fraud following another man naming him in a plea bargain. He was extradited on 3 July 2014.[35][36]

References

  1. ^ Human Rights Joint Committee (22 June 2011). "The UK's bilateral extradition treaties: US-UK Extradition Treaty 2003". The Human Rights Implications of UK Extradition Policy. Retrieved 8 August 2012.
  2. ^ a b Torres, Carlos (30 September 2006). "Senate Unanimously Ratifies US, UK Extradition Treaty". Bloomberg L.P. Retrieved 12 September 2008. Ratification had been slowed by complaints from some Irish- American groups that the treaty would create new legal jeopardy for US citizens who opposed British policy in Northern Ireland.
  3. ^ Binyon, Michael (28 June 2006). "Onesided treaty was meant to handle terrorist suspects". The Times. Archived from the original on 11 June 2011. Retrieved 2 May 2010.
  4. ^ a b "FactCheck: Are UK–US extradition rules lopsided?". Channel 4 News. Archived from the original on 27 January 2010. Retrieved 29 April 2010.
  5. ^ "Hacker loses extradition appeal". BBC News. 31 July 2009. Retrieved 2 May 2010.
  6. ^ "US extradition law not biased against Britons – judge". BBC News. 18 October 2011. But Sir Scott's 486-page report finds: 'In our opinion, there is no significant difference between the probable cause test and the reasonable suspicion test. There is no practical difference between the information submitted to and from the United States.'
  7. ^ "I beg to move, That this House do...: 12 Jul 2006: House of Commons debates". TheyWorkForYou. Retrieved 25 September 2016.
  8. ^ Hayes, Ben. "Statewatch analysis no 17: The new UK-US Extradition Treaty" (PDF).
  9. ^ "The Rt Hon Sir Scott Baker will lead an independent panel to conduct a review into the UK's extradition arrangements". Home Office. 14 October 2010. Retrieved 8 August 2012.
  10. ^ "US extradition law not biased against Britons – judge". BBC News. 18 October 2011.
  11. ^ "A review of the United Kingdom's extradition arrangements". Home Office.
  12. ^ "US extradition law not biased against Britons – judge". BBC News. 18 October 2011. The review contradicts the findings of Parliament's Joint Committee on Human Rights (JCHR), which called for the Government to renegotiate the UK's extradition treaty with the United States to ensure British citizens get the same protection as Americans. In a report in June, the committee said US authorities should have to show enough evidence to establish probable cause before a Briton can be extradited.
  13. ^ a b c d e "The US–UK Extradition Treaty" (PDF). Home Affairs Committee. London: House of Commons. Retrieved 27 March 2012.
  14. ^ a b "No American citizens extradited to UK over crimes allegedly committed in US". The Daily Telegraph. 1 May 2012. Not one US citizen has been extradited to Britain as a result of crimes said to have been committed in America since a controversial transatlantic treaty came into force, it has been disclosed.
  15. ^ "UK to act over NatWest 3 treaty". BBC News. 10 July 2006. Retrieved 12 September 2008.
  16. ^ Torres, Carlos (30 September 2006). "Senate Unanimously Ratifies US, UK Extradition Treaty". Bloomberg L.P. Retrieved 12 September 2008.
  17. ^ "Reid welcomes US extradition move". BBC News. 30 September 2006.
  18. ^ Blair, William G. (14 December 1984). "U.S. judge rejects bid for extradition of I.R.A. murderer". The New York Times. Retrieved 10 November 2014.
  19. ^ a b Home Office (16 February 2012). "Details of numbers of US citizens extradited to the UK versus UK citizens extradited to the US". WhatDoTheyKnow.
  20. ^ a b "Frequently Asked Questions on the US-UK Extradition Relationship". US Embassy in London. Based on the numbers provided to Sir Scott Baker's panel, under this treaty, 130 extradition REQUESTS were submitted from the US to the UK. Of those 130 requests, the UK has refused 10. Of the remaining 120, 77 individuals were extradited from the UK to the US; the other 43 cases remained pending in the UK system, or the individuals returned to the US on their own, or other circumstances made the extradition no longer necessary. During the same time period, the UK submitted 54 extradition REQUESTS to the US, of which none have been refused. Of those 54 requests, 38 resulted in extradition of an individual from the US to the UK. In the remaining 16 cases, the individuals either returned to the UK on their own or other circumstances made extradition from the US to the UK no longer necessary.
  21. ^ "Frequently Asked Questions on the US-UK Extradition Relationship". US Embassy in London. the US has a population about five times the size of the UK, but there have been fewer than twice the number of people extradited to the US than to the UK. The number of US requests is therefore not disproportionate.
  22. ^ "The trials of Babar Ahmad: from jihad in Bosnia to a US prison via Met brutality". The Observer. 19 March 2016.
  23. ^ a b c "Abu Hamza among five terror suspects extradited to US". BBC News. 6 October 2012.
  24. ^ Stone-Lee, Ollie (10 March 2006). "Extradition fight man attacks law". BBC News. Retrieved 2 May 2010.
  25. ^ Hotton, Russell (13 March 2008). "Ian Norris wins appeal against US extradition". The Daily Telegraph. London. Archived from the original on 21 March 2008.
  26. ^ Farrell, Sean (26 July 2008). "Norris loses US extradition battle but says he will appeal". The Independent. London.
  27. ^ Croft, Jane (23 March 2010). "Norris extradited to US". The Financial Times. Archived from the original on 2022-12-11. Retrieved 8 August 2012.
  28. ^ Evans, Rob (1 December 2010). "Retired UK businessman faces extradition to US". The Guardian. London. Retrieved 10 November 2014.
  29. ^ Evans, Rob (20 April 2010). "Retired sales executive to be extradited to US for Nigerian bribery trial". The Guardian. London. Retrieved 10 November 2014.
  30. ^ Mitchell, Stewart (16 June 2011). "UK student vows to fight copyright extradition". PCPro. Retrieved 10 July 2011.
  31. ^ Masnick, Mike (17 June 2011). "Why IS the Justice department Pretending US Copyright Laws Apply In The UK?". TechDirt. Retrieved 10 July 2011.
  32. ^ "British businessman 'entrapped' by US agents". The Daily Telegraph. London. 17 August 2010.
  33. ^ "Christopher Tappin given 33-month sentence by US court". ITV News. 9 January 2013. Retrieved 29 July 2015.
  34. ^ Milmo, Cahal (9 January 2013). "Christopher Tappin jailed for 33 months for arms-to-Iran scheme". The Independent. London.
  35. ^ "Dave McIntyre was extradited on 3 July 2014 to the US pending trial". Archived from the original on 2 May 2013. Retrieved 25 Nov 2016.
  36. ^ "British soldier with mental disorder extradited to US". The Guardian. Retrieved 25 Nov 2016.

Further reading

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