Law lords defy US on extradition

Landmark ruling after 125 years of agreement
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The Independent Online
THE English courts have stunned the US government by refusing to deport a British citizen to face trial in the United States for the first time since extradition law was enacted in 1870 .

At a hearing last Monday which received no publicity, the Law Lords lifted the threat of deportation from Graham Tomlins, 47, a Northampton businessman accused of fraud in Georgia. Lords Browne-Wilkinson, Goff and Nicholls ruled that the evidence against Mr Tomlins presented by the US Justice Department was "worthless" and that an earlier magistrate's decision to agree to the extradition was "irrational and perverse".

The US government's lawyers had told the Lords that treaty obligations meant they "must" return Mr Tomlins to the US.

But Mr Tomlins's solicitor said that for decades the US justice authorites had wanted and got "extradition on demand" even though they have on occasions refused to send IRA suspects to Britain. It was a victory for common sense and justice, he said.

The ruling came in a week which saw two middle-aged Englishwomen - Sally Croft and Susan Hagan - convicted in Oregon of conspiring to murder a US federal attorney while they were living in the Bhagwan Shree Rajneesh commune in 1985. The decision of the English courts last year to extradite the women and the refusal of Michael Howard, the Home Secretary, to overturn it deeply disturbed leading lawyers and politicians, including Lord Scarman, the former Law Lord, Tony Blair and Paddy Ashdown.

Also last week a San Francisco court ruled in favour of the extradition to Britain of the Maze Prison escaper Jimmy Smyth. Smyth is to appeal. That ruling ran counter to precedent: previously, US courts had refused British requests for IRA suspects, notably in the case of Joe Doherty, who fought through the New York courts for years and won, only to be deported to Britain as an illegal alien.

Mr Tomlins was wanted in the US to face charges of fraud in Atlanta, where his sister-in-law Zeeta McKnight and her husband Jim ran a loan company. Mr Tomlins went out for two weeks in 1991 to help them set up a computer database.

After he left the US, his relatives were arrested. The company had been taking fees from poor people in Atlanta and promising to arrange loans for them in return - but the loans never came.

Zeeta McKnight struck a plea bargain with prosecutors. In return for a reduced sentence, they expected her to give evidence against her husband. But in the witness box she said her husband was innocent and that Mr Tomlins had organised the fraud with her. The court believed her, freed Jim McKnight and demanded the extradition of Mr Tomlins from Britain.

The US authorities pressed the case even after Mr Tomlins's lawyers got affidavits from the McKnights' grown-up children saying their father had beaten up their mother and told her not to implicate him. "Blame that limey brother-in-law of yours," he said.

A stipendiary magistrate in Bow Street, central London, upheld the extradition request last year, but the Divisional Court threw it out. The US went to the House of Lords to seek leave to appeal. James Lewis, representing the US Justice Department, told the Law Lords: "You must, as a matter of comity [friendship] under the treaty, return him." The Lords disagreed.

Edward Fitzgerald, QC, one of the country's leading authorities on extradition law, represented Mr Tomlins. "This is the first time since the Extradition Act of 1870 that Britain has refused to extradite a citizen to the United States on the merits of the case against him," he said.

For Andrew McCooey, Mr Tomlins's solicitor, the victory was a consolation in a week of bitter disappointment. He had acted for Ms Croft and Ms Hagan and fought unsuccessfully to stop them being sent to Oregon.

"The Americans expect extradition on demand," he said. "The British courts and government have given them a blank cheque in the past and got little or nothing in return. We have failed to admit that their justice system can get things wrong.This courageous decision is a victory for common sense and justice."

Legal nightmare, page 3