UK: UK/US Extraditions: The New Picture

This article first appeared in Butterworths September 2005.

The UK’s extradition legislation was completely overhauled by the implementation of the Extradition Act 2003 (‘the 2003 Act’).¹ The aim of the 2003 Act was to make it quicker, cheaper and easier for foreign states to extradite UK subjects. This has been achieved by the removal of important safeguards and has rendered UK citizens vulnerable to extradition. The new extradition regime is of particular concern when it comes to requests for extradition from the US. This is because of the aggressive approach to white-collar crime taken by the US Department of Justice (‘DOJ’) and the broad basis on which US courts may assume jurisdiction over a defendant. The writers currently represent Mr Ian Norris, a UK citizen facing extradition to the US. Mr Norris’ case demonstrates the vulnerability of UK citizens to extradition to the US.

The extradition regime between the UK and the US is governed by the 2003 Act² and the 1972 Extradition Treaty between the UK and the US (‘the 1972 Treaty’). A new extradition treaty was agreed between the UK and the US in 2003 (‘the 2003 Treaty’). The provisions of the 2003 Treaty aim to ease the extradition process from both the UK to the US and the US to the UK. The provisions of the 2003 Treaty were implemented in the UK through the provisions of the 2003 Act. However, the 2003 Treaty has not yet been ratified by the US and its provisions are not, therefore, in force in the US.

A request for extradition must be in respect of an ‘extradition offence’ as defined by the 2003 Act. Under the previous regime, the offence had to appear on a list of specified offences considered serious enough to found a case for extradition. However, under the 2003 Act there are now just two essential requirements for an offence to be an ‘extradition offence’. The first is that the alleged conduct constitutes a crime in both the UK and the US, ie, there must be dual criminality. The second is that the crime in each country carries a potential prison sentence of at least 12 months. The result is that almost all financial crimes in the UK will fall within the definition of an ‘extradition offence’; the US can therefore request the extradition in respect of almost any suspected crime where the US courts are prepared to accept jurisdiction.

Perhaps the most troubling change introduced by the 2003 Act is that the US need not provide any evidence of the alleged offences.³ Under the previous regime, the US had to produce evidence showing a prima facie case of the alleged offencesprima case of the alleged offences. However, under the 2003 Act it is enough that the US prosecutor provide an affidavit setting out information about the suspected crimes. As the law currently stands, there are no safeguards regarding the source of information; this is left to the discretion of the individual prosecutor. Even if the defendant is completely innocent of the alleged offences, there is no opportunity for a UK citizen to contest the charges in England. Given the plea bargaining culture in the US and a conviction rate in some US courts of over 90 per cent, the prospect of having to prove innocence in front of the US courts is extremely unappealing.

The 2003 Act contains ‘bars’ to extradition. These bars provide limited possibilities of defending an extradition request, but in most cases of extradition to the US they will be irrelevant. The bars are (i) that there has been a previous acquittal or conviction for the same offence (ie, the rule against ‘double jeopardy’); (ii) that the subject will suffer prejudice on the grounds of race, religion, gender or similar factors; (iii) that extradition is unjust or oppressive due to the passage of time; and (iv) that there are relevant hostage taking considerations. Other than these bars, the only possible defences to extradition are either that the subject is too ill to be extradited or that extradition would be incompatible with the Human Rights Act. In order for any of these defences to be successful, it is clear from the authorities that the circumstances of the case must be extreme.

In line with the Government’s aim of making extradition quicker and cheaper, new statutory time limits on the extradition procedures have been imposed and rights of appeal have been curtailed. The initial extradition hearing at Bow Street Magistrates’ Court must commence within three months of the date of arrest. Even in the most complex cases, that hearing is unlikely to take more than a few days. The request for extradition is then sent to the Secretary of State to make an order for extradition. Under the previous regime, the Secretary of State had discretion whether or not to make an Order for extradition. However, the 2003 Act has removed that discretion and the Secretary of State now performs no more than a rubber-stamping exercise.⁴ Once the Secretary of State has ordered extradition, there are two levels of appeal. The first is to the High Court, the second is to the House of Lords. Appeals to the House of Lords are only possible if the point of appeal has been specially certified by the court as one of public importance. It may also be possible to appeal points under the Human Rights Act to the European Court of Human Rights.

Mr Norris’ case is one of the most high profile extradition cases of late. Mr Norris is the ex-CEO of The Morgan Crucible Company plc (‘Morgan’), a blue-chip UK company involved in the manufacture of carbon products. Morgan is said to have been involved in a European cartel that was extended to the US. Despite the fact that the alleged cartel was Europe-based and dealt with by the European Commission in 2003, the US authorities have proceeded with indictments against certain individuals, including Mr Norris, in respect of peripheral instances of price-fixing that are said to have occurred in the US.

Under the old regime, price-fixing would not have been an ‘extradition offence’ because it did not appear on the specified list of extraditable offences. However, under the 2003 Act, even though price-fixing offences were not criminal in the UK at the time they were said to have been committed, the DOJ’s request has proceeded on the ground that price-fixing may amount to the English common law crime of conspiracy to defraud. The DOJ is not deterred by the fact that a UK citizen has never before been prosecuted for conspiracy to defraud in relation to price-fixing offences. The basis of the request for extradition is that this is potentially a crime in the UK that carries a 12 month prison sentence and is therefore an ‘extradition offence’.⁵

There is no opportunity for Mr Norris to substantially contest the charges in front of the English courts. The request for extradition is based on the information set out in the US indictment and in an affidavit by one of the prosecuting lawyers at the DOJ. The English courts must accept this information and are unable to look to the evidence, or lack of evidence, relating to the charges.

Mr Norris’ case also illustrates the fact that the DOJ will target UK citizens in circumstances where the conduct complained of took place primarily outside the US. It is of no consequence that the vast majority of the evidence required for a substantive defence to the allegations is based outside the US; there is no concept of ‘natural forum’ in extradition. If extradited, Mr Norris will have to mount his defence to the charges from the US, thousands of miles away from where the actual evidence is based, and possibly from prison if bail is not granted.

Public interest in the extradition regime over recent months has been immense as the extradition process in Mr Norris’ case and other extradition cases proceed through the English courts. Political interest has also started to focus on the lack of protection for UK citizens and the imbalance between the provisions for extradition from the UK to the US and from the US to the UK. As noted above, the US have to date not ratified the 2003 Treaty and there is no indication that the 2003 Treaty will be ratified this year. This means that it is far easier to extradite UK citizens to the US than it is to extradite US citizens to the UK. However, even when the 2003 Treaty is ratified, the provisions will not be reciprocal for the US and the UK. Most notably, the UK will still need to provide evidence of the alleged crime to a standard of ‘probable cause’ in any request for extradition from the US, compared to the mere requirement of ‘information’ when the US is requesting extradition from the UK.

To date, the US has submitted around 45 applications for extradition to the UK. Of these, more than half relate to persons accused of white-collar crimes. It is interesting to note that the introduction of the current extradition regime was motivated in large part by the terrorist events of September 11; yet of the persons so far extradited under this regime, not one has related to terrorism. It is clear that the US DOJ intends to use its powers to target white-collar crime.

Under the current regime, UK businesses must be alert to the risk of investigation and prosecution by US authorities. Almost all UK businesses have some link to the US, whether it be a direct link (for example, a subsidiary or branch office) or an indirect link (for example, a customer or a shareholder); even links to the US that would be viewed by most as tenuous may be sufficient to found jurisdiction in the US. It is certainly the case that an individual can fall within the jurisdiction of the US courts without ever having carried out any substantive business in the US or, indeed, visited the US. It is not inconceivable that an email or fax that crosses State boarders may be sufficient to provide the US courts with grounds for jurisdiction.

In light of the DOJ’s aggressive approach to extradition and the provisions of the current UK:US extradition regime, it is vital that all UK businesses increase their focus on any potential violations in the US, even if the likelihood of prosecution in the US seems remote.