1. One of the first commitments made by the Coalition
Government was to review the operation of the Extradition Act
2003 and the US-UK Extradition Treaty to make sure that they are
even-handed. This commitment
was made in the context of widespread political concern about
the operation of the UK's extradition arrangements with the USA.
Representatives of both Coalition Parties had expressed reservations
about the operation of the Treaty while in opposition. Opening
an emergency debate called in 2006 by the Liberal Democrats shortly
before the extradition of the "NatWest Three",
Rt Hon Nick Clegg MP said,
We on the Liberal Democrat Benches have objected
to the extradition arrangements with the USA ever since the text
of the new treaty was published in May 2003. [...] the extradition
treaty and its enactment through the Extradition Act 2003 is manifestly
unfair to British citizens.
During the same debate, Rt Hon Dominic Grieve MP
(then the shadow Attorney General), expressed reservations about
the new standard of information required by the Treatywhich
he described in relation to one case as "very scanty indeed"and
described the lack of forum provisions in the 2003 Act as "a
Rt Hon David Blunkett MP, who was Home Secretary when the Treaty
was signed, told us that although the 2003 Treaty was in principle
an improvement over previous treaties, "the practice has
been very different".
2. Since the extradition of the "NatWest
Three", there have been several other high-profile cases
which have been the focus of public concern. During the course
of this inquiry, the Committee took evidence from representatives
of several of those involvedJanis Sharp, whose son, Gary
McKinnon, has been charged with several counts of damaging computers
belonging to the US military;
Ashfaq Ahmad, the father of Babar Ahmad, who has been in prison
in the UK for more than seven years while an extradition request
from the USA is dealt with;
Elaine and Neil Tappin, the wife and son of Christopher Tappin,
who has recently been extradited to the US to face charges for
his alleged involvement in the sale of restricted weapons-system
components to Iran;
and written evidence from Eileen Clark, who is facing charges
for allegedly kidnapping her now-adult children in 1998.
This evidence has given us an insight into some of the difficulties
experienced by those facing extradition, as well as their families.
But it is important to bear in mind that there is another side
to each of these stories and the Committee has not heard any of
the evidence against the accused in these cases. In this Report
the Committee is concerned with the policy framework within which
extradition decisions are made by the courts. The Committee has
reached no conclusions about any specific case, either past or
3. The Prime Minister himself has acknowledged
the difficulties surrounding the McKinnon case in particular.
In July 2009, when Mr McKinnon lost his judicial reviews against
the Secretary of State and the Director of Public Prosecutions,
the then-Leader of the Opposition described himself as being "deeply
saddened and disappointed" by the decision and went on to
Gary McKinnon is a vulnerable young man and I see
no compassion in sending him thousands of miles away from his
home and loved ones to face trial. If he has questions to answer,
there is a clear argument to be made that he should answer them
in a British court. This case raises serious questions about the
workings of the Extradition Act, which should be reviewed.
4. In light of these high-profile, problematic
cases, and to give effect to the commitment in the Coalition Agreement,
the Home Secretary appointed Rt Hon Sir Scott Baker to carry out
a review of the UK's extradition arrangements in October 2010.
Sir Scott, a retired High Court judge, was supported in his work
by David Perry QC, who has experience of extradition cases as
both a prosecutor and defender, and Anand Doobay, a solicitor
whose practice focuses on representing the subjects of extradition
requests and who is a trustee of Fair Trials International. The
Panel's Report was published in October 2011.
5. The Review Panel received 209 written submissions,
and held oral evidence sessions in London, Edinburgh, Brussels,
the Hague and Washington DC over a total of 12 days. The evidence
the Panel gathered remains with the Home Secretary, who has so
far refused to publish it, despite our requests for her to do
so. The Committee can see no legitimate reason for the Home
Secretary's refusal to publish the evidence to the Baker Review.
The secrecy surrounding the evidence is as frustrating as it is
inexplicable and it is not helping to improve low public confidence
in this matter. The Committee recommends that the Home Secretary
publish it immediately.
6. The Home Secretary is still considering how
to respond to the Baker Report, which makes a number of recommendations
for changes to both the US-UK extradition arrangements and the
European Arrest Warrant, but does not recommend radical reform
of either. The Committee has therefore decided to bring forward
this short Report on the US-UK Extradition arrangements as soon
as possible. The Committee will return to the issues relating
to the European Arrest Warrant, which was also part of our inquiry,
in due course.
7. In addition to the evidence published with
this Report, the Committee held an informal meeting with Louis
B. Sussman, the United States Ambassador, who put the US Government's
position to us a few days before the extradition debate in the
House on 5 December 2011.
During our recent visit to the United States, the Committee held
a conference call with Bill Pearson, a former Federal prosecutor
with experience of making extradition requests to the UIK, and
the Committee held a video conference with senior officials from
the United States Department of Justice. Mr Pearson told us that,
in US law, "probable cause" was a stronger test than
"reasonable suspicion", an issue which we consider in
more detail below.
8. Concern about the operation of the current
extradition arrangements between the USA and the UK should not
be allowed to obscure the fundamental point that it is firmly
in our national interest to have effective, fair and balanced
extradition arrangements with the United States and our other
international partners. Criminals must not be allowed to evade
British justice by fleeing the country; nor should the UK become
a safe haven for those who have committed crimes in other territories.
The development of the internet and the rise of international
terrorism and organised crime mean that extradition is now more
important than ever in the fight against crime. While the Committee
has serious misgivings about some aspects of the current arrangements,
we are firmly convinced that an effective extradition agreement
with the USA is appropriate and clearly in our national interest.
The "probable cause"
and "reasonable suspicion" tests
9. The US and the UK signed a new Extradition
Treaty in March 2003,
replacing a Treaty that had been in effect since 1972 (although
the two countries have had treaties since the Jay Treaty which
marked the end of hostilities in the American War of Independence).
The most significant difference between the 2003 Treaty and its
predecessor lies in the Article specifying the documents which
must accompany an extradition request.
The old Treaty required the request to be accompanied by such
evidence as would justify the person's committal for trial according
to the law of the state from which extradition was sought ("prima
facie evidence"), including evidence that the person
requested was the person to whom the arrest warrant referred.
The new Treaty requires, for requests made to the United States,
"such information as would provide a reasonable basis to
believe that the person sought committed the offence for which
extradition is requested".
This is known as the "probable cause" test, and was
necessary for the Treaty to comply with the Fourth Amendment to
the US Constitution when it was signed in 2003 by the then-Home
Secretary, Rt Hon David Blunkett MP.
10. There is no corresponding requirement in
the Treaty for requests made by the United States to the United
Kingdom but under the Extradition Act 2003, requests to the UK
must be accompanied by information which would justify the issue
of an arrest warrant. That standard is the "reasonable suspicion"
11. The difference between the "probable
cause" and "reasonable suspicion" tests has been
a source of controversy. In 2003, the Minister of State in the
Home Office, Baroness Scotland of Asthal, was quite explicit about
the difference between the two tests during a debate in the House
of Lords on secondary legislation made under the 2003 Act. She
explained that the probable cause test was "a lower test
than prima facie but a higher threshold than we ask of
the United States." She went on to argue that, since the
UK does not demand prima facie evidence from Albania, Turkey
or Romania, it would be inappropriate to impose a more stringent
test on the USA, adding: "We have to take an objective decision
about what standards we believe incoming extradition requests
should meet. We do not see how that is affected by the fact that
another country cannot, for very good reasons, reciprocate. [...]
Complete reciprocity has never been a feature of our extradition
12. The Baker Report concluded that there was
"no significant difference" between the two tests,
although Sir Scott conceded to us that the wording of the Treaty
might have given rise to the impression that there was: "If
it had all been made absolutely clear in the Treaty, there would
not have been this problem".
Jago Russell of Fair Trials International argued that there was
no good reason for the asymmetry in the Treaty:
You don't need to look very hard at the treaty to
see that there's a safeguard in that treaty that exists if there
is an extradition from the United States but doesn't exist the
other way round, and that, quite rightly, strikes a chord with
the British public and seems to be unjust. If there is a safeguard
that the United States demands for people being extradited from
that country, then they should expect that other countries might
feel fit to demand the same safeguard the other way round.
13. David Bermingham, who was extradited to the
USA as one of the "NatWest Three", told us that the
imbalance arose not because the two tests were different but because
a person who was sought for extradition from the UK had no opportunity
to test the information establishing a "reasonable suspicion"
against them in court, whereas a person who was sought for extradition
from the USA was entitled to a hearing to test the "probable
14. Even the Attorney General, now apparently
a defender of the Treaty, acknowledged the difficulty of having
two tests which were different on the face of it, even if their
application was the same in practice:
[...] while there is always an inherently unsatisfactory
feeling if you have two different tests to be applied in two different
jurisdictions, I think we have to be a little bit careful about
suddenly concluding that if that were to be changed, for example,
it would lead to some dramatically different outcomes, because
I am not sure it would.
15. The Committee accepts that there is a
body of respectable legal opinion which suggests that there is
little or no distinction in practice between the "probable
cause" and "reasonable suspicion" tests. Nevertheless,
the imbalance in the wording of the Treaty, which sets a test
for extradition from the US but not from the UK, has created the
widespread impression of unfairness within the public consciousness
and, at a more practical level, gives US citizens the right to
a hearing to establish "probable cause" that is denied
to UK citizens. It is clear that the US Constitution requires
that the Treaty include the "probable cause" test for
extradition from the USA to the UK. The Committee can see no reason
why an identical safeguard should not be granted to those whose
extradition is sought in the opposite direction and we believe
it would be in the interests of justice for the Treaty explicitly
to offer the same protection to people whose extradition is sought
from either country. We cannot imagine that the United States
Government would not object to British citizens enjoying the same
legal safeguards as US citizens. The Committee therefore recommends
that the Government seek to re-negotiate the US-UK Extradition
Treaty to specify that the information requirements be the same
in both jurisdictions.
The prima facie evidence
16. Since the abolition of the prima facie
evidence test, there is no requirement to produce evidence as
to the guilt of the accused in order to effect an extradition;
there is a requirement only to produce informationwhich
may include information that would not be admissible as evidence
in a trialto pass the reasonable suspicion test. This applies
to extraditions both to and from the US although, as we have noted
above, the information test is slightly different in the two territories.
The Attorney General was quite clear on this point:
The basis of extradition is that there is a prima
facie case, or probable cause, or at least a case made out,
which is deemed to be satisfactory and, under the protection of
the European Convention on Human Rights, there is a satisfaction
that the trial system of the country to which the person is being
extradited and the other circumstances, including the risk of
the death penalty and other matters, are such that their human
rights will not be infringed.
17. In extradition cases, it is for the courts
in the requesting territory to determine the guilt or innocence
of the accused once extradition has been granted. It would be
absurd to require a British court to conduct a full trial to establish
the guilt of the accused before they can be extradited to stand
trial in the USA, nor should the court in the state from which
extradition is requested pre-empt the function of the court in
the state which is seeking extradition.
18. However, it is important to bear in mind
that the decision to extradite somebody to the USA is considerably
more weighty than the decision to charge them with an offence
in this country. Shami Chakrabarti of Liberty put it succinctly:
[...] even if you get a wonderful trial elsewhere
in Europe or on the other side of the world, being taken from
your home, your job and your community, possibly to another language,
whatever it is, is a punishment in itself. We are people, not
Janis Sharp, whose son, Gary McKinnon, is the subject
of an extradition request from the United States, told us,
Extradition is a huge punishment in itself, massive.
If people are extradited they're often incarcerated for years
before a trial comes. They also can lose their job; they can lose
their family; they can lose their sanity; they can lose their
life. It's absolutely horrendous. So that is a huge punishment
for a person that's potentially innocent.
19. David Bermingham described the consequences
of extradition as "catastrophic".
He argued that he and his co-defendants were deprived by their
extradition of the ability to defend themselves as they did not
have access to evidence and witnesses in the UK that they might
have used to mount a defence in the US courts.
Extradition to the USA also needs to be seen in the context of
the US judicial system, in which defendants are far more likely
to enter into a plea agreement than in the UK. The Committee was
told that US judges have less discretion over sentencing than
their British counterparts, and so sentences were largely determined
by the nature of the original charges. This gave prosecutors a
great deal of power to negotiate a guilty plea in exchange for
a lesser charge. The Committee was told that 97% of defendants
in the USA plead guilty under pressure from prosecutors.
After the United States Supreme Court's decisions of 21 March
2012 established constitutional grounds for effective legal representation
of criminal defendants in plea bargaining, this situation may
improve in future.
It has also been suggested that those who are extradited to stand
trial in the USA were less likely to be granted bail, because
the very fact that they had been extradited from overseas would
be regarded as evidence that they presented a flight risk.
20. Mr Bermingham told us that the UK is one
of only three countries in which the US does not have to produce
prima facie evidence for extradition. The others are France, which
will not extradite its own citizens to the USA, and the Republic
of Ireland, which has a higher forum test than the UK.
Witnesses from Fair Trials International, JUSTICE and Liberty
all argued that there should be a prima facie evidence
test for extradition from the UK.
21. Extradition imposes a significant burden
on the accused, who might have to spend many months or years living
in a foreign country, often in prison, away from their home, family,
friends and job. It would be fundamentally unjust to submit an
innocent person to such an ordeal, even if they were subsequently
acquitted at trial. The Committee does not therefore believe that
extradition should take place without some case being made against
the requested person and we recommend that the Government seek
urgently to re-negotiate the Treaty in order to introduce an evidence
test, while balancing issues such as delay and cost.
The issue of forum
22. The question of "forum"the
country in which it is most appropriate for a trial to take placehas
been a significant issue in several high-profile US-UK extradition
cases. The first of these was the "NatWest Three", who
were extradited to the USA to be charged with defrauding a British
bank, which employed them in London. They reported the transactions
in question to the Financial Services Authority, which investigated
but took no further action, and the Serious Fraud Office decided
not to prosecute them. Unusually, they sought a judicial review
of the decision not to prosecute them, but were unsuccessful.
They were then extradited to face trial in the USA, largely on
the basis of material which they had themselves submitted to the
FSA in London.
23. The question of forum has also arisen in
relation to other cases where the alleged criminal acts were carried
out in the UK. They include among others Gary McKinnon, who is
alleged to have hacked into US military computer systems from
a computer in the UK; and Richard O'Dwyer, who is alleged to have
committed copyright infringements through a website he ran from
Sheffield. It has been argued in all these cases that the accused,
if they are to be tried at all, should be tried in the United
The Prime Minister raised the issue of forum with President Obama
during his recent visit to the United States and there is now
the prospect of further negotiations between the two countries.
24. The growth in international organised crime,
including internet-related crime, means that forum will become
an increasingly important issue. The Internet provides a vehicle
for the commission of crimes where the perpetrator is in one country
and the victim is in another.
25. The fact that a person could in principle
be prosecuted in the UK is not an explicit bar to extradition.
If British prosecutors decide not to charge somebody with an offence,
then it is open to US prosecutors to seek their extradition if
they believe that the United States has jurisdiction, but it was
acknowledged in the case of the "NatWest Three" that
there might be circumstances in which the possibility of a UK
trial could tip the balance in favour of a conclusion that to
proceed with the extradition would amount to a disproportionate
interference with the defendant's right to respect for his private
and family life under Article 8 of the European Convention on
and their ability to mount an effective defence.
26. The current practice is that decisions on
forum are taken by prosecutors in the jurisdictions concerned.
Guidance for handling criminal cases with concurrent jurisdiction
between the UK and the USA was agreed by the Attorney General,
the Lord Advocate and the Attorney General of the United States
The Guidance applies to "the most serious, sensitive or complex"
cases and requires prosecutors in the two jurisdictions to consult
closely from the outset, sharing information and evidence to develop
a case strategy. In such cases, the decision on where to prosecute
will depend on a range of issues including practical matters such
as which jurisdiction holds the evidence necessary for a prosecution
and a defence.
27. There is a provision in the Police and Justice
Act 2006 which amends the Extradition Act 2003 to introduce a
forum bar. Section 83A provides that:
(1) A person's extradition to a category 2 territory
("the requesting territory") is barred by reason of
forum if (and only if) it appears that
(a) a significant part of the conduct alleged to
constitute the extradition offence is conduct in the United Kingdom,
(b) in view of that and all the other circumstances,
it would not be in the interests of justice for the person to
be tried for the offence in the requesting territory.
(2)For the purposes of subsection (1)(b) the judge
must take into account whether the relevant prosecution authorities
in the United Kingdom have decided not to take proceedings against
the person in respect of the conduct in question.
This provision was inserted by an Opposition amendment
in the House of Lords and it has not yet been commenced. The Secretary
of State is not required to bring the provision into force unless
a resolution to that effect is passed by both Houses of Parliament,
though she may do so without such resolutions.
28. The Baker Report concluded that the forum
bar should not be commenced as it would create delay and potentially
generate satellite litigation. It would require a British court
to consider broad and potentially complex issues, such as whether
"a significant part of the conduct" took place in the
UK and "all the other circumstances" of the case. It
concluded that formal guidance to prosecutors was the best way
to handle forum issues.
30. Mr Julian Knowles of Matrix Chambers argued
that the US claimed exorbitant jurisdiction in some cases:
The problem with the US arises not just because of
the treaty. It arises because of the overzealousness of US prosecutors
and their whole approach. There is probably nothing we can do
about that but that is a problem. The US also has quite an exorbitant
extraterritorial jurisdiction, which is why you get cases like
Babar Ahmad's or Gary McKinnon's. It has the power to reach out
around the world andprovided there is a very, very tenuous
connection with the USit generally has the power to prosecute.
The Baker Report notes that the offences of wire
fraud (with which the "NatWest Three" were charged)
and mail fraud are defined in US law in such a way that the United
States can prosecute if any communications system in the United
States is used in any fraudulent scheme. This could mean the US
claiming jurisdiction because an e-mail had been routed through
a server in that country.
31. The vast majority of witnesses before the
Committee were firmly in favour of introducing the forum bar.
Jodie Blackstock of JUSTICE told us that their concern about the
Treaty largely rested on forum issues and that there was a real
risk of people being extradited to the USA to be tried for things
they had done in the UK.
Shami Chakrabarti of Liberty argued that the forum bar could be
introduced without renegotiating the Treaty.
Ms Gareth Peirce, the solicitor to Babar Ahmad, suggested that
prosecutors might be making assumptions about forum too early
in a case, rather than seriously investigating the possibility
of a prosecution in the UK.
32. The current arrangements for determining
the forum in which a person should be tried are in our view unsatisfactory.
Decisions are made by prosecutors, behind closed doors, without
the accused having any opportunity to make representations. It
appears to be very easy to engage the jurisdiction of the US courts
without ever entering the country, since activity on the internet,
including sending and receiving e-mails, can involve the use of
communications systems based in the United States, as can use
of the US banking system.
33. The fundamental principles of human rights,
democracy and the rule of law require that justice is seen to
be done in public. The Committee believes that it would be in
the interests of justice for decisions about forum in cases where
there is concurrent jurisdiction to be taken by a judge in open
court, where the defendant will have the opportunity to put his
case, rather than in private by prosecutors. Indeed, Parliament
has already legislated for that to happen. The Committee therefore
recommends that the Government introduce a "forum bar"
as soon as possible.
34. In the light of the five month delay to
the Baker Report, we welcome the Prime Minister's announcement
that UK and US teams will look further at the extradition arrangements
but, given widespread public concern regarding the issue and continuing
extraditions during this period, we urge the government to act
with greater urgency.
35. The Prime Minister's recent visit to the
United States emphasised the importance of the special relationship
between the two countries. Welcoming the Prime Minister to the
White House, President Obama said of the relationship between
the US and the UK
We stand together and we work together and we bleed
together and we build together, in good times and in bad, because
when we do, our nations are more secure, our people are more prosperous,
and the world is a safer and better and more just place.
The Committee shares those sentiments, recognising
that the extradition Treaty between the UK and the US is an important
part of that alliance.
36. The Committee is proposing significant
changes to the extradition arrangements between the US and the
UK not because we are critical of the American justice system
but because we recognise the importance of robust extradition
arrangements between our two countries. Such extradition arrangements
are now threatened by loss of public confidence in the UK and
there is a risk that, with time, that lack of confidence will
translate into wider disaffection. We believe that the Government
should act now to restore public faith in the Treaty by rebalancing
the requirements for the provision of information, urgently opening
negotiations about the re-introduction of an evidence test, and
introducing a forum bar. The Committee believes that these changes
will allow for a fair and balanced system of justice between the
US and the UK as regards extradition.
Annex: Statement to the Committee
by United States Ambassador Louis B. Sussman
Let me start by thanking the committee for meeting
with me today on an issue of great importance to the United States.
I welcome this opportunity to make the case for the
US-UK Extradition Treaty in its current form. To correct the
myths and inaccuracies that have arisen in recent years. And
to answer your questions.
Alongside me this morning are Amy Jeffress, the Department
of Justice attaché at the Embassy, who will provide any
necessary legal expertise and Robin Quinville, minister-counselor
for political affairs.
First and foremost, I want to be very clear that
we believe our extradition relationship works, it is fair and
balanced, and it promotes the interests of justice in both our
My government strongly supports this treaty.
And I believe that having signed the treaty, and
having had it tested both through the British justice system and
by independent experts, it is now incumbent on the UK government
to stand in support of it.
This is what strong, enduring, bilateral alliances
are built on: treaties and agreements that enshrine shared values
and give us the legal authority to pursue common goals.
Unfortunately, however, our extradition treaty continues
to be widely and wrongly condemned by some in Parliament and in
sections of the British media.
In order to ensure that British interests are well
protected, the Home Secretary appointed a 'blue ribbon' panel
of legal professionals to evaluate the United Kingdom's extradition
treaty with the United States.
That panel was led by the esteemed judge Sir Scott
Baker and included two highly-respected lawyers.
Both lawyers have significant experience in extradition
proceedings: one from representing the accused; the other from
As part of its work, the panel invited all interested
parties to provide written submissions of their views on the issues.
They received more than 200 responses.
In addition, hearings and meetings were held with
affected organizations and individuals, including officials from
the UK, the US, and European governments.
Anyone holding a grievance with the treaty was given
the fullest opportunity to express their concerns and their criticisms.
The panel also spent a week in the United States
meeting with senior government officials and attorneys from the
Departments of Justice and State who handle extradition matters.
I was briefed on those meetings and I know that the
panel members were thoroughly prepared and their questioningas
you may expect from lawyerswas rigorous.
The panel also studied the extradition procedures
in both countrieswhich are described in considerable detail
in the final reportand it examined extraditions that have
been concluded under the treaty to date.
In short, they conducted an exhaustive, meticulous
and considered review.
They gathered substantial evidence and applied solid
reasoning. And they reached the only conclusion that could be
supported by the facts: that the US-UK treaty is balanced, fair,
and needs no changes.
Even so, the myths and inaccuracies persist.
Many were repeated as recently as last week during
a Parliamentary debate and its subsequent press coverage.
Accusations from Members of Parliament such as "24
Britons have been extradited to the US under the new arrangements
and just one American to Britain"; or claims in the media
that the Baker Review's conclusions came "despite mountains
of evidence to the contrary" are simply not true.
So I would like to take this opportunity to set out
some of the facts.
First, it is not the case, as some claim, that it
is easier to extradite someone from the UK than from the US
The United States has never denied an extradition
request from the U.K. under the treaty. The UK has refused on
Second, the standard that each country has to meet
to extradite someone is the same.
I would like to repeat that: the standard is the
Third, the US does not get special treatment. The
UK domestic extradition law is the same for the US, Australia,
Canada, Israel, Russia, and Turkey.
Fourth, neither country can ask for an extradition
if the crime allegedly committed is not a serious crime in both
And fifth, the United States does not seek the death
penalty for any individual extradited from the UK.
In last week's Parliamentary debate, we also heard
repeatedly the clarion call: 'British Justice for British Citizens'.
So let me address that too.
The UK authorities always begin by considering whether
or not an individual can and should be tried in the UK instead
of being extradited to the US
And under the terms of the treaty, all extradition
hearings are held in UK courts as are subsequent appeals.
It is only when these avenues have been exhaustedwhen
UK prosecutors, the courts, and the Home Secretary have all affirmed
that the request is properthat an extradition goes ahead.
The constant use of skewed arguments and wilful distortion
of the facts by some to advance their own agendas remains of great
concern to the United States.
It would be wrong to view the extradition treaty
through the prism of individual cases where sentiment and emotion
can cloud reality and lead to misrepresentation.
Nor should we confuse the US-UK Treaty with concerns
surrounding the European Arrest Warranta completely different
issue than the extradition process in our treaty.
One has nothing to do with the other.
One of the virtues of our system of justiceas
with yoursis that we believe firmly that criminal matters
must be resolved in court, not in Parliament, nor in the media.
In all cases, I put my faith in the courtsin
this country and in my ownto reach the right decisions
based on facts, on law, and on evidence, taken in accordance with
I also have total confidence that the UK government
will accept the findings of the independent Baker Review and uphold
the integrity of the US-UK Treaty.
Thank you for your time. I am happy to take any
Conclusions and recommendations
1. The Committee can see no legitimate reason for the Home Secretary's refusal to publish the evidence to the Baker Review. The secrecy surrounding the evidence is as frustrating as it is inexplicable and it is not helping to improve low public confidence in this matter. The Committee recommends that the Home Secretary publish it immediately.
2. Concern about the operation of the current extradition arrangements between the USA and the UK should not be allowed to obscure the fundamental point that it is firmly in our national interest to have effective, fair and balanced extradition arrangements with the United States and our other international partners. Criminals must not be allowed to evade British justice by fleeing the country; nor should the UK become a safe haven for those who have committed crimes in other territories. The development of the internet and the rise of international terrorism and organised crime mean that extradition is now more important than ever in the fight against crime. While the Committee has serious misgivings about some aspects of the current arrangements, we are firmly convinced that an effective extradition agreement with the USA is appropriate and clearly in our national interest.
3. The Committee accepts that there is a body of respectable legal opinion which suggests that there is little or no distinction in practice between the "probable cause" and "reasonable suspicion" tests. Nevertheless, the imbalance in the wording of the Treaty, which sets a test for extradition from the US but not from the UK, has created the widespread impression of unfairness within the public consciousness and, at a more practical level, gives US citizens the right to a hearing to establish "probable cause" that is denied to UK citizens. It is clear that the US Constitution requires that the Treaty include the "probable cause" test for extradition from the USA to the UK. The Committee can see no reason why an identical safeguard should not be granted to those whose extradition is sought in the opposite direction and we believe it would be in the interests of justice for the Treaty explicitly to offer the same protection to people whose extradition is sought from either country. We cannot imagine that the United States Government would not object to British citizens enjoying the same legal safeguards as US citizens. The Committee therefore recommends that the Government seek to re-negotiate the US-UK Extradition Treaty to specify that the information requirements be the same in both jurisdictions.
4. Extradition imposes a significant burden on the accused, who might have to spend many months or years living in a foreign country, often in prison, away from their home, family, friends and job. It would be fundamentally unjust to submit an innocent person to such an ordeal, even if they were subsequently acquitted at trial. The Committee does not therefore believe that extradition should take place without some case being made against the requested person and we recommend that the Government seek urgently to re-negotiate the Treaty in order to introduce an evidence test, while balancing issues such as delay and cost.
5. The fundamental principles of human rights, democracy and the rule of law require that justice is seen to be done in public. The Committee believes that it would be in the interests of justice for decisions about forum in cases where there is concurrent jurisdiction to be taken by a judge in open court, where the defendant will have the opportunity to put his case, rather than in private by prosecutors. Indeed, Parliament has already legislated for that to happen. The Committee therefore recommends that the Government introduce a "forum bar" as soon as possible.
6. In the light of the five month delay to the Baker Report, we welcome the Prime Minister's announcement that UK and US teams will look further at the extradition arrangements but, given widespread public concern regarding the issue and continuing extraditions during this period, we urge the government to act with greater urgency.
7. The Committee is proposing significant changes to the extradition arrangements between the US and the UK not because we are critical of the American justice system but because we recognise the importance of robust extradition arrangements between our two countries. Such extradition arrangements are now threatened by loss of public confidence in the UK and there is a risk that, with time, that lack of confidence will translate into wider disaffection. We believe that the Government should act now to restore public faith in the Treaty by rebalancing the requirements for the provision of information, urgently opening negotiations about the re-introduction of an evidence test, and introducing a forum bar. The Committee believes that these changes will allow for a fair and balanced system of justice between the US and the UK as regards extradition.
1 The Coalition: our programme for government (Cabinet
Office, May 2010), p. 14 Back
For evidence from David Bermingham, one of the "NatWest Three",
see Qq 208-279 Back
HC Deb, 12 July 2006, col. 1396. Although Mr Clegg referred to
"British citizens", citizenship is largely irrelevant
in extradition cases and it is quite common for people to be extradited
to the country of which they are a citizen. Back
Ibid, cols. 1410 & 1420. He was referring to the Morgan Crucible
Q 3 Back
Qq 60-78 Back
Qq 79-102 Back
Qq 417-430 Back
Ev 77 Back
Conservative Party press release dated 31 July 2009, Grayling
says McKinnon extradition is "very disappointing".
A Review of the United Kingdom's Extradition Arrangements (following
Written Ministerial Statement by the Secretary of State for the
Home Department of 8 September 2010). Presented to the Home Secretary
on 30 September 2011 (hereafter, "the Baker Report"). Back
The Ambassador's statement to the Committee is published as an
Annex to this Report. Back
Extradition Treaty between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of the
United States of America (United States No. 1 (2003), Cm 5821. Back
For a history of US-UK extradition arrangements, see Part 3 of
the Baker Report . Back
Article 8 of the 2003 Treaty, Article IX of the 1972 Treaty. Back
Article 8(3)(c). Back
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized." Back
HL Deb , 16 December 2003, Back
Baker Report, paragraph 7.42. Back
Q 130 Back
Q 28 Back
Q 213 Back
Q 107 Back
Q 109 The Attorney was talking about extradition in the wider
sense, not just to the USA, hence the reference to the prima
facie evidence test which does not apply in US extradition
Q 30 Back
Q 69 Back
Q 255 Back
Q 249 Back
Q 10 (Gareth Peirce, solicitor to Babar Ahmad) & Q 39 (Julian
Knowles of Matrix Chambers). Back
Missouri v. Frye and Lafler v. Cooper Back
Q 93 Back
Ev 72, para 32 Back
Qq 30 ff. Back
Q 248 Back
See, for example, HC Deb, 1 December 2009, cols. 975ff; HL Deb,
19 May 2011, col. WA 358; HC Deb 24 November 2011, cols. 147WHff.
 QB 727, quoted in the Baker Report, p. 206. Back
Available at www.publications.parliament.uk/pa/ld200607/ldlwa/70125ws1.pdf. Back
This section applies to category 2 territories, which includes
the USA. Section 19B deals with category 1 territories (those
which operate the European Arrest Warrant). Back
Police and Justice Act 2006, Schedule 13, paragraph 6. Back
Op. cit., p. 230. Back
Q 38 Back
Op. cit., pp. 218-219. Back
Q 29 Back
Q 34 Back
Q 6 Back
Remarks by President Obama and Prime Minister Cameron of the United
Kingdom at Arrival Ceremony (White House Press Office, 14 March