5 The UK's bilateral extradition treaties |
US-UK Extradition Treaty 2003
Box 5The US-UK Extradition Treaty 2003
|The UK-US extradition treaty was signed on 31 March 2003 and came into force in April 2007, following the US Senate's ratification of the Treaty. The UK's arrangements for extradition to the US set out in the Treaty came into force in advance of this date as they were included within the Extradition Act 2003. As with the European Arrest Warrant, a person can be extradited under the Treaty for any offence with a minimum sentence of one year.
The Treaty provides for the UK to refuse extradition where the offence for which extradition is sought is punishable by the death penalty except where "the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out."
Extradition figures between the UK and US:
|Year||UK arrests for extradition to US
||UK surrenders to US||US surrenders to UK
186. The evidence we received on bilateral treaties with category
2 territories referred largely to the US-UK Extradition Treaty.
In particular, two issues arose in relation to the Treaty: the
perceived lack of balance or reciprocity in the Treaty and whether
a person extradited to the United States from the United Kingdom
would receive a fair trial.
BALANCE OF THE US-UK EXTRADITION TREATY
187. The perceived lack of reciprocity in the Treaty relates largely
to whether each party is required to present a prima facie
case before extradition takes place. When the United Kingdom requests
extradition from the United States, the Treaty requires that the
UK provide "such information as would provide a reasonable
basis to believe that the person sought committed the offense
for which extradition is requested." There is no such requirement
for the US when requesting extradition of a person from the UK.
When debating the Draft Extradition Act 2003 (Designation of Part
2 Territories) Order 2003, which brought the Extradition Act into
force, the then Home Office Minister, Baroness Scotland of Asthall
QC, said that:
"If this order is approved, the United States will no longer
be required to supply prima facie evidence to accompany
extradition requests that it makes to the United Kingdom. This
is in line with the new bilateral extradition treaty signed by
my right honourable friend the Home Secretary earlier this year.
By contrast, when we make extradition requests to
the United States we shall need to submit sufficient evidence
to establish "probable cause". That is a lower test
than prima facie but a higher threshold than we ask of
the United States, and I make no secret of that. The fact is
that under the terms of its constitution the United States of
America cannot set its evidential standard any lower than "probable
188. We asked our witnesses to comment on the controversy
over the lack of reciprocity in the Treaty. Sally Ireland of JUSTICE
told us that the "issue of disparity is not really one that
primarily concerns us" and instead JUSTICE was focused on
ensuring that the Extradition Act 2003 provided sufficient protection
for UK citizens. She noted that the level of proof required for
the extradition of a person from the US to the UK would "probably
be slightly higher than what we have here but not as high as a
prima facie case."
Liberty noted that the UK should "be seeking to incorporate
the sensible constitutional safeguards that benefit US residents"
rather than focusing on the lack of balance in the Treaty.
189. Mr David Bermingham, argued that:
"if you are a United States citizen who is wanted
for extradition by the United Kingdom, you have an absolute right
to a hearing in a United States court where you can challenge
the evidence that has been put in front of the court and present
evidence of your own. If, by contrast, you are a United Kingdom
citizen or somebody ordinarily resident here who is wanted by
the United States, you have no such right."
190. In Mr Bermingham's opinion, the UK extradited
people to the US "without so much as a scrap of evidence
being put in front of a UK court" which was "a grave
disservice to our citizens and other people who may be the subject
191. We asked the then Minister whether there was
room for manoeuvre in adjusting the terms of the Treaty. She told
us that the US and the UK were "two friendly Governments"
and that "if an adjustment can be made which is in the spirit
and intention of the treaty and which improves its operation,
I would expect us to be able to do that."
192. The Government
should increase the proof required for the extradition of British
citizens to the US so as to require sufficient evidence to establish
probable cause, as is required for the extradition of a US citizen
to the UK. This will require renegotiation of the UK-US Extradition
193. The Law Society in its submission to the Extradition
Review Panel said that the disparity in the number of charges
in relation to the UK-US treaty had also led to claims of imbalance,
but noted that "the frequency of requests is not of course
governed by the UK-US Treaty." They concluded that perceptions
of imbalance "may well be a reflection of the nature of the
particular overseas jurisdiction and may perhaps, for this reason,
194. We heard evidence from David Bermingham that
in some cases of extradition to the US, the evidence used was
gathered by UK police in the UK about acts committed on UK soil
and where the CPS had decided not to prosecute. 
We note that Article 5(3) of the US-UK treaty specifically allows
extradition where the "competent authorities of the Requested
State" have decided not to prosecute, discontinue prosecution
or are still investigating. It is this Article 5(3) which enabled
the extradition of the David Bermingham.
195. Article 5(3) creates a two-fold problem because
it allows the extradition of individuals on the basis of evidence
which the CPS has deemed insufficient to prosecute in this country
and the extradition of individuals where the CPS has decided there
is no public interest in prosecuting. We received a submission
from the family of Babar Ahmed, whose extradition to the United
States is under consideration by the courts, on Mr Ahmed's experience
of the extradition process. We thank the family of Mr Ahmed for
this submission. In the case of Mr Ahmed, the use by the US authorities
of evidence obtained in this country in a UK investigation has
led to his incarceration since 5 August 2004.
196. We recommend
that the Government urgently renegotiate this article of the US-UK
extradition treaty to exclude the possibility that extradition
is requested and granted in cases such as that of Mr Bermingham
and Mr Ahmed, where the UK police and prosecution authorities
have already made a decision not to charge or prosecute an individual
on the same evidence adduced by the US authorities to request
FAIR TRIAL IN THE UNITED STATES
197. We received a number of submissions referring
to the US legal system and whether a UK citizen extradited to
the United States would receive a fair trial, including from David
Birmingham, Harvey Silvergate
and Michael Hann.
It is not within the remit of this inquiry, or the competence
of this Committee, to comment on the legal systems of other countries.
In Chapter 2 we considered the effectiveness of the human rights
bar to extradition. If such a bar were effective, a requested
person could argue that extradition would breach their Article
6 rights to a fair trial and it would be up to the court to consider
whether extradition to the US would be in compliance with this
right. The witnesses referred to in paragraph 84, who preferred
that we do not use their name, noted "it is immaterial if,
on the face of it, bilateral treaties override any human rights
concernsthere are sufficient safeguards available once
extradition proceedings commence."
This of course only applies if these safeguards work effectively.
Role of Secretary of State
198. Although the executive no longer plays a role
in extradition to Category 1 territories, the Secretary of State
retains a role in the extradition of persons to Category 2 territories.
The Secretary of State can refuse extradition to a Category 2
country after a court has assented to the extradition on a limited
number of grounds. The Law Society noted that "the Secretary
of State plays a formal role at two stages" but "neither
of which entails any real exercise of discretion."
199. It has been suggested that this role should
be increased to provide more grounds for the Secretary of State
to bar extradition. The role of the executive has been completely
removed under the European Arrest Warrant and so the role of the
Secretary of State applies only to Part 2 of the Act.
200. Liberty said that there should be a role for
the Secretary of State: "in particular, that he or she should
be able to refuse an extradition request in certain circumstances
even where extradition has been approved by the court." The
evidence noted that a judge is best placed to consider the facts
of an extradition case, but discretion of the Secretary of State
"is important to ensure that any extradition which would
be unjust is stopped notwithstanding earlier court findings."
201. On the other hand, Catherine Heard of Fair Trials
International considered that it would be practically difficult
to add back in a level of executive discretion, which was not
a transparent process: "I think judges are in a better position
to deal in a transparent fashion, in open court, in an accountable
way with difficult extradition cases."
Sally Ireland of JUSTICE noted that a role for the Secretary of
State in the extradition process can politicise individual cases:
"we have seen media reports of basically political diplomatic
negotiations going on between Ministers of different countries
about the fate of individual extradites [...] hence the importance
of the primary decision-maker being the judicial decision-maker
in all cases."
This issue was noted by Liberty, who argued that the system in
practice had led to individuals becoming "political pawns."
Liberty argued, therefore, that any restoration of the power of
the Secretary of State should be "limited and narrowly defined."
202. We note
the arguments for increasing the role of the Secretary of State
in the surrender of persons to countries under Part 2 of the Extradition
Act. We are not convinced that changes should be made and, in
any event, any additional powers would need to be carefully circumscribed
to avoid those subject to extradition requests becoming "political
191 See EXT 032 for a full breakdown of figures. Figures
were not provided for US arrests for extradition to UK. Back
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