Extradition agreements review is victory for rights campaigners

3 September 2010 by Adam Wagner

Updated, 3 Sep, 16:35 | The Home Office is to announce a review of UK extradition agreements with other countries, including the controversial and some say unbalanced agreement with the United States. This represents a provisional success for campaigners against certain extradition agreements.

According to reports, the review will include the Extradition Act 2003 which implemented into law the UK-United States extradition treaty. It will also consider the European Arrest Warrant, which was used for 50% more arrests last year. The review fulfils the pledge made in the coalition’s program for government to ”review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed”.

Whilst in opposition, both of the coalition partners pledged to act in relation to various high-profile extradition requests. One of Teresa May’s first acts as Home Secretary was to announce an adjournment of the case of Gary McKinnon, providing him with a last-minute reprieve against extradition to the United States. McKinnon was indicted by a US court in November 2002 for hacking into 97 computers in the US Defence Department and NASA. He has fought a 7-year legal battle, arguing that he shouldn’t be extradited as his Asperger’s Syndrome caused an obsession with UFOs

The former Home Secretary, David Blunkett, has told the BBC that the agreement with the US was forged very much in the shadow of the September 11 2001 attacks. He also regrets some of its features:

I am being honest… it wasn’t perfect. Of course we can look back and say  could we have done better.. we were trying to make sure that where we accepted that there was a fair and reliable judicial system we would accept it and acknowledge it as we do our own. And in return, those countries would accept our system…. There is still a debate… about whether we gave away too much… I regret that we weren’t clear enough about the fact that due process and judicial review would be available in difficult and complicated cases which clearly has been the case over the last 7 years unequivocally… and that we didn’t say that we wouldn’t comply until the Congress had ratified themselves which would I think have sharpened the debate in the United States.

The problem, campaigners say, is that whereas the U.S. extradition agreement may have been designed with suspected terrorists in mind, in fact it has been used to extradite many who have nothing to do with terrorism, such as Gary McKinnon. It is also accused of being unbalanced in favour of the US.

The human rights angle

Human rights arguments often play a part in legal challenges to extradition requests. In particular, the UK cannot send a person back to a judicial system which is likely to breach their rights to a fair and public hearing (Article 6 of the European Convention on Human Rights) or if they will be subject to inhuman or degrading treatment or punishment (Article 3).

These arguments sometimes work, for example in Dudko v The Government of the Russian Federation, where a High Court judge doubted whether the Russian justice system, and in particular the role and accountability of a Russian prosecutor, would provide the conditions for a fair trial (see our post).

Similarly, in the ongoing case relating to radical preacher Abu Hamza and three other men, the European Court of Human Rights accepted a preliminary argument that conditions in a US ‘supermax’ prison may not be human rights compatible.

However, human rights arguments are in fact rarely successful. For example, in Khan v Government of the United States of America, Mr Khan failed to convince the High Court that the United States justice system was inherently unfair. Mr Justice Griffiths Williams observed that “there is a fundamental presumption that a requesting state is acting in good faith and the burden of showing an abuse of process rests upon the person asserting such an abuse with the standard of proof on the balance of probabilities”.

The judge’s comments reflect the fact that extradition agreements work on the principle of giving foreign legal systems the benefit of the doubt, as it were. There is a strong assumption that, for example, the US legal system is up to our own standards, allowing for quick and therefore difficult to challenge extraditions.The result of this is that sometimes there simply isn’t time to look more carefully at the substantive merits of the case or obtain the detailed information on a foreign legal system which is needed in order to mount a successful human rights challenge. Moreover, in light of existing extradition agreements, which are meant to allow for easy, quick extraditions, judges are reluctant to look into the merits of a particular case.

Extradition agreements can be useful in ensuring that foreign criminals can be brought to justice in an appropriate jurisdiction. It is also sensible that processes are speeded up in relation to other states whose judicial systems can be trusted. However, requests should not be granted too speedily or with insufficient checks and balances. The new government is therefore right to review the existing laws to make sure that UK citizens are not being unduly subjected to breaches of their rights.

Update 16:35: The Guardian reports that the chief constable for Cambridgeshire has sharply criticised extradition rules. The article contains a useful summary of recent controversial cases, including that of German Dr Daniel Ubani.

• More posts on immigration and extradition law
• The increasing role of human rights law in extradition and deportation cases
• Worries over US justice system as Abu Hamza extradition delayed

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