The most recent extradition treaty between the United Kingdom and the United States was signed in Washington on 31st March 2003 ("the 2003 Treaty").
The 2003 Treaty was signed by David Blunkett, the then Home Secretary, for the Government of the United Kingdom. Parliament was not consulted and the text of the treaty was only made public after it was signed. Even though the 2003 Treaty does not substantially differ from the 1972 Treaty between the US and the UK1 (as supplemented by the 1985 Treaty2) there was an outcry in the UK over the fact that it was negotiated and signed in secret3 as it removed the fundamental protection of providing evidence for those in the UK facing extradition requests from the US.4
The 2003 Treaty has been ratified by the UK and in accordance with the Ponsonby Rule5 it will have been laid before Parliament for at least 21 sitting days before its ratification. However, there is no requirement for any positive action on the part of Parliament prior to ratification as the power to make treaties is a Prerogative power vested in the Crown.
The 2003 Treaty was sent by the US President George Bush to the Senate Committee on Foreign Affairs in April 2004. It has not yet been ratified by the US and during a House of Lords debate last July, Baroness Scotland of Asthal, Minister for the Criminal Justice System, said that the US might not ratify the 2003 Treaty until 2007.
The UK’s extradition arrangements with the US have come under the spotlight because of two high profile extradition requests made by the US- the first for three former Natwest bankers alleged to have engaged in a fraud with former senior officers of Enron6 and the second for Ian Norris, the former chief executive of Morgan Crucible, alleged to have taken part in cartel activity in the US and to have perverted the course of justice by seeking to frustrate the subsequent criminal investigation in the US.7 All of these individuals have been ordered to be extradited and the outcome of the appeals in both cases is expected shortly. Our interest in extradition arrangements with the US has been heightened by emerging details of the US practice of engaging in rendition which allows the return of suspects without affording them the protections which are part of extradition arrangements.
Much has been written in the UK to explain the controversial aspects of the 2003 Treaty from a UK perspective. The most significant development has been the decision of the Government to give effect to the provision of the 2003 Treaty removing the need for the US to provide prima facie evidence to support an extradition request despite the failure of the US to ratify the 2003 Treaty.
However, little attention has been paid in the UK to the reasons why the Treaty has not yet, some two and a half years after it was signed, been ratified by the US. This article seeks to explore some of the arguments which have been used to oppose ratification of the 2003 Treaty in the US.
Reasons for Introduction of the 2003 Treaty
The aim of the treaty was to modernise, streamline and accelerate the extradition process between the US and the UK by removing hurdles and barriers. One of the reasons given for the 2003 Treaty was the need for the fast-track extradition of terrorists and the Prime Minister Tony Blair commented that the new treaty was "justified and right in a post September 11 context." Although terrorism may not have been the genesis for the 2003 Treaty, it is probably true to say that the negotiations were speeded up as a result of the attacks.
Reasons for the reluctance to ratify in the US.
A number of issues have been raised by those who oppose the ratification of the 2003 Treaty by the US.
In a report prepared for Congress in 2004, a number of these criticisms were explained. It was said by those who opposed ratification that the 2003 Treaty:
- Eliminates the political offence exception for any offence allegedly involving violence or weapons, including any solicitation, conspiracy or attempt to commit such crimes;
- Transfers responsibility for determining whether the extradition request is politically motivated from the courts to the executive;
- Allows for extradition even if no US federal law is violated;
- Disregards any US statute of limitation;
- Removes the need for the UK to show facts sufficient to prove the person requested is guilty of the crime charged - mere unsupported allegations are sufficient;
- Allows for "provisional arrest" and detention for 60 days upon request by the UK;
- Applies retroactively for offences allegedly committed even before the ratification of the treaty.
These reasons are considered briefly below:
- Elimination of the political offence for any offence allegedly involving violence or weapons, including any solicitation, conspiracy or attempt to commit such crimes
- Transfer of the responsibility for determining whether the extradition request is politically motivated from the courts to the executive
- Allowing for extradition even if no US federal law is violated
- Statute of limitation
- Elimination of the need for any showing by the UK of facts sufficient to show the person requested is guilty of the crime charged - mere unsupported allegations are sufficient
- Allowing for "provisional arrest" and detention for 60 days upon request by the UK
- Applying retroactively for offences allegedly committed even before the ratification of the treaty.
The 2003 Treaty has already been the subject of opposition by a number of civil rights organisations in the US, such as the American Civil Liberties Union and Irish-American organisations. A large Irish-American lobby in Washington was particularly concerned to block this change as it was argued that it might allow in extraditions in political cases. The lobbyists were trying to persuade legislators that the 2003 Treaty went against everything that the Declaration of Independence stood for as the new treaty removed the safeguard in the 1976 treaty that "extradition shall not occur if the person sought establishes to the satisfaction of a competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality or political opinions." The 2003 Treaty also reduces the type of offences that will qualify as political offences and thus not be sufficient to form the basis for extradition.88
Article 4(3) of the 2003 Treaty states that extradition shall not be granted if the competent authority in the country receiving the extradition request determines that the request is politically motivated. In the US the executive branch has been designated as the competent authority for the purpose of this Article. There has been concern that decision making has been removed from the Courts. It is not clear what procedure the executive would adopt in dealing with any submissions on this issue or what burden or standard of proof would apply. There is also a perceived difficulty in the US executive making this determination given ongoing diplomatic interaction between the US and the UK. Any finding that a request made by the UK was politically motivated would be sensational and would have obvious ramifications for the relationship between the UK and US Governments.
Like the 1976 treaty, the 2003 Treaty limits extradition to conduct unlawful in both countries. The 2003 Treaty also requires extradition for extra-territorial offences if the country receiving the extradition request would have extra-territorial jurisdiction for the conduct which is the subject of the request. However, even if the country receiving the request would not have extra-territorial jurisdiction then it is still be able to grant extradition if it wants to do so.9 Therefore the US would be permitted to grant a British extradition request for an individual charged with a violation of British law on the basis of conduct committed entirely within the US (even if the conduct were completely lawful under US law). This has led to concerns in the US but the inclusion of this power is understandable given the increasing use by the US of its extra-territorial jurisdiction as seen in the case of Norris mentioned above. The US seems to wish to allow the possibility that it could extradite a person from the UK for conduct committed entirely outside of the US and which would be lawful in the UK.10
No account can be taken, under the 2003 Treaty, of any expiry of a limitation period for prosecution. The UK does not have a statute of limitation for criminal offences. However, the 1972 Treaty allowed extradition to be refused if the extradition offence was barred by lapse of time in either the country making the request or the country receiving the request. There has been opposition in the US to what is seen as the removal of a necessary protection for those facing extradition requests from the UK.
The 2003 Treaty does insist that the documentation accompanying a request from the UK includes information to provide a reasonable basis to believe that the person sought committed the offence for which the extradition is requested. The main concern in the US seems to be that the 2003 Treaty removes the need for evidence to be provided by the UK.11
This refers to the authority to arrest the individual sought for extradition before receiving the formal request required to initiate extradition proceedings. The 2003 Treaty is very precise in its description of the information that must accompany a request for provisional arrest. The most significant change in the 2003 Treaty is that release of an individual after the 60 period has elapsed without the formal request being received is now discretionary. Under the 1972 Treaty a person had to be released if the formal request was not provided within the 60 day period. There is an obvious and understandable concern that without the requirement to discharge a person if the request has not been received within 60 days a person may end up remaining in custody for a significant length of time and no request may in fact be made.
This is not an abnormal provision in extradition treaties. However, it is normal that for offences alleged to have been committed before ratification, the relevant conduct must have been unlawful at the time it was said to have been done. Given the earlier comments under (3) above, there is concern about the lack of such a restriction in the 2003 Treaty.
The concern that the 2003 Treaty has generated in the US is somewhat surprising. The 2003 Treaty does not contain a large number of radical changes to the previous treaties. However, perhaps the difficulties experienced in the US are more attributable to the system used to ratify treaties. The US system allows for detailed scrutiny of the treaty and provides time and opportunity for interested parties to comment on unwelcome changes. Conversely the UK system for ratification offers no such opportunity. It is perhaps for this reason that the US has not yet ratified the 2003 Treaty whereas the UK has ratified it and has given effect to one of its most controversial provisions.
The challenge to the decision to ratify the 2003 Treaty in the UK has in fact come in the form of a judicial review brought by the lawyers acting for Mr Norris. His application has recently been heard and we will await the ruling with interest.
1 The 1972 Treaty was given effect to in the UK by United States of America (Extradition) Order SI 1976/2144.
2 The 1985 Treaty was given effect to in the UK by United States of America (Extradition) (Amendment) Order SI 1986/2020
3See "The mysterious case of the new US extradition scheme" Paul Garlick QC  NLJ 738
4 Article 8.
5See further http://www.fco.gov.uk/Files/kfile/ponsonbyrule,0.pdf
6 The Government of the United States of America v Bermingham, Darby and Mulgrew
7 The Government of the United States of America v Norris
8 Article 4(2)
9 Article 2(4)
10 However, this does not take account of the UK’s domestic legislation governing extradition, the Extradition Act 2003, which will probably not allow this.
11 See comments above on the removal of the need for the US to provide evidence or even information which provides a reasonable basis to believe that the person sought committed the offence for which extradition is requested.
Anand Doobay is a partner in the Extradition and Mutual Assistance Team at Peters & Peters. He is co-author of the recently published Jones and Doobay on Extradition and Mutual Assistance. He would like to thank Alex Forbes for her help in writing this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.