The Big Question: Is extradition a fair way to deal with international crime?

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The Independent Online

What is extradition and why is it in the news?

Sovereign states have a duty to protect their citizens from being taken to a foreign country to face trial for a crime they are alleged to have committed there. But under international law, governments have agreed to surrender their nationals if the requesting state complies with a number of safeguards. These conditions are normally set out in a bilateral treaty and will include an obligation to provide supporting evidence to show the accused has a case to answer.

The crime must be serious enough to warrant jurisdiction and it must be something that would be punishable in the defendant's home country.

Governments can also refuse extradition requests if the citizen might face torture or the death penalty. UK laws on extradition are in the spotlight because three British bankers claim they are the victims of an extradition deal between America and Britain that has denied them justice.

Why do we need extradition treaties?

Without them it would be easy for criminals to commit crimes in one country and then seek sanctuary in another. Ronnie Biggs, the Train-robber, famously benefited from the absence of adequate extradition arrangements between Brazil and Britain. He spent more than 30 years at liberty knowing that he was safe from British justice. It was only in 2001, when his health was failing, that he agreed to return to Britain. Film director Roman Polanski, who has French citizenship, has avoided extradition to the US on statutory rape charges dating from the 1970s because France does not extradite its own citizens.

Who says there's a problem with UK extradition law?

David Bermingham, Gary Mulgrew and Giles Darby, expected to be extradited to the United States on Thursday, have mounted a high-profile campaign against being handed over to the US for trial. The three, who deny their guilt, are accused of an £11m fraud in which their former employers NatWest were allegedly advised to sell part of an Enron company for less than it was worth.

The three men argue that because the alleged crime took place in Britain they should be tried in this country.

They are also concerned that under a treaty signed with Washington, the extraditing country does not have to produce evidence to show there is a case to answer.

Their campaign has united business interests and human rights groups. Unless they can raise a $1m (£540,220) bail bond they could be held in an American jail for two years awaiting trial.

Is this case unique?

Not really. The NatWest men are three of a number of accused awaiting to be sent for trial in America under the Extradition Act 2003, which came into force two years ago and was intended to accelerate the extradition of terror suspects. Some of the others are also businessmen facing allegations of white-collar crime. A less high-profile case is that of Babar Ahmad, a British man facing extradition to America under the same legislation. He is accused of having links with terrorism. Lawyers for Mr Ahmad will go to court today to try to block his extradition. They will be arguing over the validity of American assurances that he will not be subject to the death penalty or military detention. Gary McKinnon, who has been accused of hacking into US military and Nasa computers, is also strenuously fighting extradition. Although the facts of all these cases are very different the principles at stake are the same.

Isn't extradition to the US a two-way street?

In theory. But the Americans have refused to ratify the extradition treaty that would give British prosecutors the same powers as their American counterparts. The Extradition Act 2003 in effect incorporates our side of the treaty. The Act has been called a "constitutional disgrace" by the Liberal Democrat leader, Menzies Campbell. It is certainly of immense embarrassment to the Government that the fast-track extradition system has not been ratified by the Americans. But human rights groups, such as Liberty, say the US is right not to sign an agreement that allows countries to send people for trial thousands of miles away without proper safeguards. Since 2004, when the Act came into force, Britain has received 44 applications for extradition from the UK to America while we have made just nine requests.

Why can't we have just one extradition treaty for the world?  

This is a utopian dream. Such a proposal goes to the heart of the relationship between the citizen and the state. As Britain is discovering, it is politically damaging to be seen to be too compliant with requests for extradition of home-state nationals. It is much more politically expedient to negotiate with states on an individual basis. In the 1970s and 1980s dozens of criminals fled to Spain's Costa del Sol where they were protected from British prosecutors. Since then it has been very much in Britain's interest to have a bilateral agreement with Spain. The flow of extraditions between the two countries is in Britain's favour.

Will the US change its law?

The Home Office Minister, Baroness Scotland is in Washington to try to persuade the US Senate to ratify the 2003 extradition treaty. If she succeeds it would put us on an equal footing with America in terms of extradition requests. But she will have to hurry. Opposition peers are planning to amend the Extradition Act in the House of Lords. The Liberal Democrat constitutional affairs spokesman, Lord Goodhart, wants to to halt extradition to the US without evidence of guilt being provided. The Government, he says, should never have agreed to abolish the need for evidence when the American government seeks extradition, while leaving it necessary when Britain is seeking extradition.

Should Britain allow its citizens to be tried in foreign courts?

Yes...

* Justice is only seen to be done if the crime is properly prosecuted in the country where the victims of that crime live.

* How can we expect other countries to agree to send their citizens for trial in Britain if we refuse to hand over ours?

* In the fight against international terrorism we must have a quick and effective international extradition system.

No...

* We have a criminal justice system capable of ensuring a fair trial for any Briton accused of committing a crime abroad.

* The long, drawn-out process of extradition is a punishment in itself and can be worse than any final penalty.

* If it becomes too easy for foreign states to extradite British citizens then Britons will be reluctant to travel abroad.