Extradition review backs status quo, leaves some completely baffled

19 October 2011 by Adam Wagner

A review of the UK’s extradition laws by a former Court of Appeal judge has found that existing arrangements between the UK and USA are balanced but the Home Secretary’s discretion to intervene in human rights cases should be removed.

The review by Sir Scott Baker was commissioned shortly after the Coalition Government came to power, fulfilling the pledge in its programme for government to ”review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed”. In my September 2010 post I said that the review marked a victory for campaigners against certain extradition agreements, most notably the supporters of alleged Pentagon hacker Gary McKinnon (pictured).

Extradition is the name given to the formal legal process by which persons accused or convicted of crime are surrendered from one State to another for trial or punishment. Extradition law constitutes a system of agreements between states which make it easier to extradite, for example, criminal suspects if a certain level of evidence is provided and procedures complied with.

The campaigners who prompted the review have been less than enthused by its result, which mostly backed the status quo. In summary, Sir Scott found:

• The European Arrest Warrant (in the news most recently in relation to the attempted extradition of Wikileaks founder Julian Assange to Sweden) “has improved the scheme of surrender between Member States of the European Union and that broadly speaking it operates satisfactorily“. However, some member states are issuing too many warrants, a problem which is being addressed by the European Union and Commission.

• A “forum bar” rule, whereby suspects would be tried in the country where the bulk of their offences had been committed, should not be implemented as it would “create delay and has the potential to generate satellite litigation”

• The United States/United Kingdom Treaty, which campaigners for Gary McKinnon amongst others have argued is unbalanced against the UK, “does not operate in an unbalanced manner” and there is “no significant difference between the probable cause [US] test and the reasonable suspicion [UK] test“.

• The prima facie case requiring the requesting State should be required to provide evidence establishing a prima facie (at first sight) case against the accused person should not be re-introduced (it was first recommended in 1868) .

• The Secretary of State’s discretions relating to competing extradition requests and national security should “remain as they are” and should not be increased. However, her discretion in human rights matters should be removed as “they are more appropriately the concern of the judiciary.”

• As to extradition claims in cases where asylum claims have been made before they have begun, the Extradition Act 2003 should be amended so that extradition cannot take place until an asylum claim has been finally determined. This is in order for the UK to comply with the Refugee Convention.

• Means testing for legal aid is too slow for those facing extradition. The Government should look into removing the means testing requirement or giving the courts discretion to grant legal aid in some cases.

• There are a number of extradition cases pending before the European Court of Human Rights (such as this one by cleric and terrorist suspect Abu Hamza). Some have been before the court for over three years, and this delay should be taken up by the government.

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