22 Oct 2016, 47 mins ago

The UK-US extradition treaty signed March 2003, came into force April 2007, following the US Senate’s ratification of the Treaty. The terms, equivalent to those of the European

Arrest Warrant, give power of extradition of a person for any offence with a minimum one-year sentence.

In accordance with Articles 2 and 3 of the European Convention on Human Rights, the UK will refuse extradition for an offence punishable by the death penalty, except where “the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out.”

The Treaty has been criticised for being unequivocally favourable to the US. This stems from the requirement of the two legal systems to establish a prima facie case before the extradition takes place.

The UK, in order to warrant an extradition from the US, must provide to the US “such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.” Probable cause must rightfully be established. Such legal obligations pertaining to the process of extradition from the US to the UK is however not equated by the US.

The Treaty allows for UK to US extradition of UK and other citizens for an offence committed against US law, despite the alleged offender having committed such crime in the UK, where he works and resides. This situation has been exemplified in the Enron Three Case, where three businessmen were extradited from the UK to the US under the 2003 Treaty. Again, this threshold does not apply when extraditing a citizen from the US to the UK.

The UK, in accepting the terms of the Treaty, has put the needs of its citizens first. The issue subsists, however, for the accused. Article 2 of Protocol 4 of the Human Rights Act 1998 provides for a right to freely move within a country once lawfully there. Certainly, this is a qualified privilege, but how can the Protocol be set aside without probable cause? The answer may lie in the simple fact that the UK has signed, but never ratified Protocol 4.

According to the former Court of Appeal Judge Sir Scott Baker, in his “Independent review of the United Kingdom’s extradition arrangements”, the treaty “does not operate in an unbalanced manner.” This may be true, when looking at the Brits’ interests exclusively, but what remains of the accused once he is extradited?

The US holds the record for the world’s highest incarceration rate. Effectively 95% of criminal cases in the US lead to a conviction. Under this data, an alleged criminal, once extradited to the US, is virtually guaranteed a criminal conviction.

Certainly, many explanations can be given as to why the US holds such a high conviction rate, with 95% of criminal defendants being guilty, being an unlikely one. Instead, more can be said about the US’ Mandatory sentencing laws, leaving no discretion to the judge for leveraging a sentence, looking at the particular circumstances of each case.

In turn, this will push defendants to accept a bargaining plea in order to avoid a longer sentence and trial. This will largely depend on the charges brought by the Prosecutor, who has a very wide discretion on the charges he is allowed to bring. One of the common techniques of plea-bargaining is dropping more serious charges in exchange for the defendant accepting guilt for a lesser charge.

The prerequisite for extradition in the 2003 Treaty, taken in conjunction with the likelihood of an accused being convicted once extradited to the US, should push the UK to change the requirement for extradition from the UK to the US to create a threshold equal to that from the US to the UK. This will require a re-negotiation of the 2003 Treaty.

Alexandra Isenegger