The Law – what has changed?

On 31 March 2003, David Blunkett, UK Home Secretary, signed an Extradition Treaty on behalf of the UK with his United States counterpart, Attorney General John Ashcroft, which was promoted on the basis of the need for a streamlined Extradition process to deal with the new global terrorist threat after September 11th.  The UK parliament was not consulted at all and the text was not publicly available until the end of May. The new Extradition Act 2003 brought the key provisions of the Treaty into UK law, and came into effect in January 2004 with the proceedings against BMD the first real test to have been brought under Part 2 of the act.

Part 1, covering seven EU countries, removes the need for an evidential burden and introduces the Eurowarrant provisions.

Part 2, all other countries with which the UK has extradition treaties keep the burden, but 42 countries, including the US, have been granted a fast track process by the UK, which allows them to provide "information" rather than "prima facie evidence" that a crime has been committed. Of these countries, 38 are signatories to the European Convention on Extradition. The other 4 countries are Canada, Australia and New Zealand (all Commonwealth Countries) and the USA.

Evidential requirements in the new UK-US extradition treaty

Article 8 of the UK-US Treaty sets out the new extradition procedures between the two countries. The crucial change is that under the old treaty (Article IX), the requesting state had to provide evidence:

"sufficient according to the law of the requested Party… to justify the committal for trial"

Under the new treaty (art. 8, para. 2(b)) the state seeking extradition must provide:

"a statement of the facts of the offense(s)"

A Home Office press release sought to allay fears by stating that a 'detailed statement of the facts of the case' would be required. The "facts" here do not mean evidence but refer instead to allegations.

This change does not extend to the UK however when trying to extradite a US citizen

 "for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense"

In effect, the evidence requirement on the US has been dropped altogether while the UK must still provide evidence to the standard of a 'reasonable' demonstration of "guilt".

As Justice noted in a briefing on the treaty, the reasoning behind this lack of reciprocity is:

"that the United States has a constitutional protection which prevents it from extraditing a US citizen purely on the say-so of a foreign government. As the UK does not have such a constitutional protection, the UK is at liberty to forego this important safeguard in the interests of speeding up extraditions to the US"

Parliamentary scrutiny and ratification of the treaty

There was no parliamentary debate or scrutiny of the new treaty. It was drafted by Home Office officials and their US counterparts, signed on behalf of the UK by the Secretary of State and then published two months later.

US failure to ratify the Treaty

As of yet the US administration has failed to ratify the treaty, so in effect it is seeking to extradite UK citizens but has not enacted the legislation itself. In part this is due to the powerful Irish-American lobby who believe that it should never be ratified.

This is despite the UK Government’s assurances of a swift and speedy ratification

“The Treaty has not been enforced yet because it has not been signed by the US Senate.  We anticipate that the Treaty will be put before the Senate early in the New Year and approved shortly thereafter.  We do not anticipate that we shall encounter any difficulties in that regard.”

Baroness Scotland (Government Minister).  House of Lords Standing Committee 16 December 2003

The fact of the matter is that the US is in no hurry to ratify this unequal treaty.

To read the act in full click on

http://www.legislation.hmso.gov.uk/acts/acts2003/20030041.htm

To read a critique of the US/UK Extradition Treaty click on

http://www.statewatch.org/news/2003/jul/25ukus.htm