The Gary McKinnon case has again caught the attention following the home secretary’s recent announcement on extradition reform. Though the facts and politics of this case are compelling, McKinnon’s case is far from typical and represents the tip of the iceberg.
McKinnon’s extradition was refused, but more than 1,000 extraditions did go ahead last year. Only eight of those were to the US; with 999 under the EU’s fast-track extradition law, the European Arrest Warrant (EAW). Many of these cases are for minor crimes where the financial and human cost of extradition is clearly disproportionate. It is now widely recognised that these need weeding out and there are initial suggestions that the EU court will rule on this in the coming months (see the recent advocate general’s opinion in the Radu case).
Sadly, the problems with the EAW do not end there. We have seen people extradited – both years before their trial even starts and to serve sentences imposed after grossly unfair trials. At the heart of the problem is the assumption that all EU countries fully respect basic rights – apparently meaning countries can extradite without asking too many questions. This may be diplomatically convenient but it is naive at best.
Thankfully, the EU has finally started to work to improve respect for defence rights in Europe, with current negotiations on an important law to guarantee suspects and defendants access to a lawyer. I am also hopeful that the EU court will soon take the opportunity to make it clear that countries must not extradite where there is a real risk that it will result in a human rights violation (Radu). The UK has also said it will work with the rest of Europe to build support for improvements to the EAW, as a condition of remaining part of it after 2014.
Given all of this the US might, understandably, be annoyed that it is so often in the headlines when it comes to extradition reform. In practice, the much vaunted inequality in the wording of the treaty might not be causing problems, but there is at least one issue that needs tackling. The growth of international business and communications means many alleged crimes can now be tried in more than one country. These ‘forum’ decisions have massive implications for defendants: either they defend the case at home, without excessive disruption to work and home life; or they are shipped off to a foreign country and an alien legal system, often to be considered a flight risk and detained pre-trial.
For now, forum decisions are being decided by prosecutors behind closed doors. This has resulted in suspicion that the US is using its diplomatic weight to exercise long-arm jurisdiction over cases that should be tried here. It is equally possible, of course, that the UK is just less willing to spend the time and money prosecuting certain cases. Either way, as the home secretary announced, the best response is a more transparent approach to forum decisions with a back-stop power for the courts to refuse extradition where it is clear that the wrong decision has been made.
The home secretary also decided that, in future, she should not be asked to reach difficult and controversial decisions in individual cases like McKinnon’s. In principle, this is right. Such decisions are best made by independent courts in a transparent fashion after hearing all the evidence.
However, if this safeguard is to be effective, courts cannot shy away from using the power where appropriate or place unreasonably high evidential hurdles for defendants. Sadly, in the EAW context, where there is no political involvement, the courts have not been willing to bar extradition on human rights grounds out of concern for the comity which underlies our extradition arrangements.
The devil will be in the detail, but the reforms outlined by the home secretary could combine the effective extradition arrangements we need with safeguards for basic rights.
Jago Russell is chief executive of Fair Trials International