Sophie Kemp and Jill Lorimer: Double standards shame our treaty with America


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The McKinnon case has brought into the spotlight the apparent inequities in the extradition arrangements between the UK and the US. The perceived lack of reciprocity has created widespread political condemnation and public disquiet.

The extradition treaty between the UK and US was signed in Washington in March 2003 and, in April 2007, was ratified by the US. Under the treaty, the UK is required to provide "such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested". There is no parallel requirement in the treaty for requests made by the US.

On the face of it, it appears that the US authorities need provide little more than the name of the accused person and a brief outline of the facts of the case.

It is easy to understand the commonly held view that the US can demand the surrender of a UK citizen on a whim, while its own citizens are afforded a much higher degree of protection.

However for a British judge to issue a warrant for the arrest of a person sought by the US, section 71 of the Extradition Act 2003 does require "evidence that would justify the issue of a warrant for the arrest of a person accused of the offence". In other words, the judge is expected to apply the same standards as he or she would in respect of a person suspected of committing an offence in the UK.

The reality is that the two systems are much more closely aligned than it first appears. Neither state needs to demonstrate a prima facie case in support of their requests. The much lower standard of reasonableness applies, which is in practice easily met. The effect on both sides of the Atlantic is that such requests are "fast tracked" and extremely difficult to oppose.

In fact, the arrangements between the US and the UK are in reality little different to those between the UK and many other countries. Under the European Arrest Warrant scheme, the requirement for EU states, including France, Germany and Italy, to demonstrate a prima facie case against the person sought was abolished. So there is no requirement to back up a request with any evidence.

It is also frequently said that the treaty was agreed to facilitate the extradition of terror suspects in the wake of 9/11. In fact, the need to move towards a fast track system had long been recognised, although the climate at the time undoubtedly accelerated the process. Furthermore, the treaty is not limited to serious criminality but applies to any offence carrying imprisonment of one year or more.

Perhaps the real issue is whether a British citizen should be extradited to stand trial in any foreign country without evidence first being presented to a British court to show there is a case to answer. The stress and expense of defending potentially unfounded criminal allegations in a foreign jurisdiction is a daunting prospect. The McKinnon case raises fundamental questions about the fast track extradition process and looks likely to continue to fuel public demand for review.

Sophie Kemp and Jill Lorimer are extradition experts at the law firm Kingsley Napley

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