UK: The US/UK 2003 Extradition Treaty - An American Perspective?

Introduction

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:

  1. Eliminates the political offence exception for any offence allegedly involving violence or weapons, including any solicitation, conspiracy or attempt to commit such crimes;
  2. Transfers responsibility for determining whether the extradition request is politically motivated from the courts to the executive;
  3. Allows for extradition even if no US federal law is violated;
  4. Disregards any US statute of limitation;
  5. 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;
  6. Allows for "provisional arrest" and detention for 60 days upon request by the UK;
  7. Applies retroactively for offences allegedly committed even before the ratification of the treaty.

These reasons are considered briefly below:

  1. Elimination of the political offence for any offence allegedly involving violence or weapons, including any solicitation, conspiracy or attempt to commit such crimes
  2. 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

  3. Transfer of the responsibility for determining whether the extradition request is politically motivated from the courts to the executive
  4. 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.

  5. Allowing for extradition even if no US federal law is violated
  6. 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

  7. Statute of limitation
  8. 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.

  9. 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
  10. 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

  11. Allowing for "provisional arrest" and detention for 60 days upon request by the UK
  12. 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.

  13. Applying retroactively for offences allegedly committed even before the ratification of the treaty.

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.

Conclusion

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.

Footnotes

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

3 See "The mysterious case of the new US extradition scheme" Paul Garlick QC [2004] NLJ 738

4 Article 8.

5 See 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.