The US has yet to ratify the Extradition Treaty signed by David Blunkett in 2003, but Roger Smith says the UK should pull out while it still has the chance

Remarkably few people in this global age actually get extradited from the UK – about 50 a year. Annual requests are about double that – 116 in 2003. The largest single number came from the US, but this was only 14. However, some current US extradition requests are causing major disquiet.


The US Justice Department wants three former National Westminster Bank employees – David Bermingham, Giles Darby and Gary Mulgrew – in relation to allegations of fraud around the Enron scandal, which all three deny. It seeks Ian Norris, former chief executive of Morgan Crucible, for allegations of price fixing and it is pursuing Babar Ahmad – an IT support worker at Imperial College – for allegedly establishing a terrorist Web site.


These diverse cases highlight anomalies in a treaty signed by the then Secretary of State for the Home Department, David Blunkett, and US Attorney-General, John Ashcroft, on 31 March 2003. Its intention was to accelerate extradition between the US and UK by removing many of the previous hurdles. In particular, it replaced with a mere statement of facts the previous requirement to provide evidence ‘sufficient according to the law of the requested party … to justify the committal for trial’.


The Home Office obligingly implemented the treaty by putting the US in the appropriate schedule of the Extradition Act 2003; and the UK now allows extradition to the US without consideration of any prima facie merits of the case. Mr Blunkett signed the treaty under the Royal Prerogative. Parliament was not consulted. The text was not even available until the end of May, publication having been delayed ‘for administrative reasons’.


However, the treaty was never fairly balanced and an extra term was inserted for the UK. In addition to requirements on the US, it had also to provide ‘such information as would provide a reasonable basis to believe that the person sought committed the offence’. But the problems go beyond lack of balance in a secret treaty. The US has not kept its side of the bargain. Democracy has inconveniently intervened.


The US Senate has to approve the treaty, and it will not do so. This is largely because of concerns about the treaty’s removal of safeguards usual in the US – for example, the previous treaty had stated that ‘extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions’.


A large Irish lobby in Washington is particularly concerned to block a provision that may assist in extraditions that could involve such ‘political’ circumstances. The Senate is minded to agree.


In the normal run of things, this imbalance might be a bit embarrassing for the UK but hardly noticed. Extraditions are, as we have seen, pretty few in any year and most relate to crimes that are serious but not, in themselves, contentious. In 2001, the latest year for which detailed statistics are available, people surrendered by the UK were accused of the following alleged offences: drug trafficking, theft, murder, fraud, rape, child abduction and kidnapping. The cases often take a bit of time. The inventiveness of lawyers, the complexity of facts and the difficulty of the law stalled the average case for about 18 months before the new Extradition Act speeded things up.


The position has changed in the post-11 September 2001 world – for the US’s partners, if not the US itself. The US has grown somewhat demanding in assertion of its jurisdiction. Mr Ahmad never left the country but the US wants him for a Web site. Mr Norris is wanted for an alleged anti-cartel offence not criminalised in this country at the time. The ‘Enron Three’ are, bizarrely, seeking to judicially review the Serious Fraud Office on the basis that its failure to prosecute them was unreasonable – they allege that the UK authorities have deliberately decided not to prosecute them so as to facilitate their extradition to the US. Mr Ahmad asserts the same. Most expansively, the US asserts its jurisdiction over ‘wire fraud’ in the case of any transaction that passes through a US server.


As a result, well-resourced commercial interests join civil libertarians in concern at the potentially unpredictable actions of US officials. Freed of any requirement to provide evidence, they may well be tempted to conduct what would effectively be ‘fishing expeditions’.


Suspects would be taken to the US and placed under considerable pressure to plea-bargain by long custodial remand periods and the prospect of longer prison sentences than in the UK. In addition, suspects without adequate means might well argue that they would be deprived of effective representation by poor legal services in some states.


Current Home Secretary Charles Clarke seems in no rush actually to send anyone to the US. But, ultimately, his hand is likely to be forced. This one-sided treaty has not been ratified by the US. We should tear up our signature, go back to the position as it was and learn the dangers of avoiding democratic scrutiny through the undemocratic doctrine of a Royal Prerogative that urgently needs to be restricted.


Roger Smith is the director of the human rights campaigning group, Justice