Dr. Ted R. Bromund is Senior Research Fellow, Thatcher Center for Freedom, Heritage Foundation.
Hard cases make bad law, the saying goes, and some of the cases that have attracted British attention – and condemnation — to the 2003 Extradition Treaty between the U.S. and Great Britain are indeed hard. But not all of them are. Indeed, most extraditions from Britain to the U.S. – and all of them from the U.S. to Britain – excite no public controversy at all. The Treaty deserves more than to be condemned by anecdote; it deserves to be examined on its merits.
That is exactly what my co-author – Andrew Robert James Southam, a former Home Office extradition case officer – and I have done in a recent publication on the Treaty, and the entire UK extradition system, from the Heritage Foundation. We arrive at three conclusions, none of them reflected in most media and political commentary on the Treaty.
First, you cannot understand the Treaty if you look at it in isolation. It is part – and far from the most significant part – of the entire UK system, which developed over the late 1980s and the 1990s. The process was driven by Britain’s dissatisfaction with its existing extradition system, by developments in Europe – deriving initially more from the Council of Europe than the EU – and by the wider impulse to make it easier for well-established democracies to extradite to, and from, each other. That is exactly what the US-UK Treaty sought to do, and that goal was well-understood in Britain, and formed the basis for its acceptance of the Council’s European Convention on Extradition in 1990, long before the US-UK Treaty was negotiated.
Second, the amount of mythology about the 2003 Treaty that abounds in Britain is amazing. My co-author and I examine and rebut no fewer than ten common fallacies about the Treaty, many of which are expressed by distinguished – and, it pains me to say, frequently Conservative – Members of Parliament. One in particular is worth commenting on here: the argument that Britain should introduce a ‘forum bar’ to ensure that British subjects are tried in the UK, or that the U.K. has the right of ‘first refusal’ in filing charges. This idea received substantial support in a December 2011 debate in the House, and was reiterated as a recommendation in a 2012 report by the Parliamentary Home Affairs Committee.
Let me note – for the record – that as a conservative I am very sympathetic to the idea that sovereign democracies should prefer to try their own citizens in their own courts. But our conclusion is that the demand for a forum bar is an illusion. Under the 2003 Treaty, Britain already has the ‘right of first refusal.’ To make this concrete, if the U.K. wishes to charge Gary McKinnon with a crime and try him in Britain, it has the unquestioned right to do so, and no U.S. extradition request would be permitted if it entailed double jeopardy.
Moreover, no forum bar could operate in all cases. As an American, I would want an American who commits a murder in London to be tried there, and I expect that most Britons would have a similar sentiment about a Briton who commits a murder in New York City. On the other hand, the problems raised by multi-jurisdictional crimes are too complex to be solved by a forum bar. They must be addressed by the same prosecutorial judgment and discretion on which both the U.S. and British legal systems rely in any decision to bring charges.
Third, the principles of the 2003 Treaty are sound and fair, and are in fact a model for the entire U.K. extradition system. The Treaty is based on dual criminality – that is, no Briton can be extradited to the U.S. for something that is not a crime in Britain. It has a proportionality standard, meaning that no Briton can be extradited to the U.S. for unpaid parking tickets. And it has an objective evidentiary standard that is as nearly identical for both countries as our different systems allow. For extraditions from the U.S., the standard is ‘probable cause,’ which has a clear meaning in the U.S. legal system. For extraditions from the U.K., the standard is ‘reasonable suspicion,’ which has an equally clear meaning in Britain. The only difference is that the U.S. standard is contained in the Treaty itself, whereas the British one is contained in Britain’s underlying legislation, the 2003 Extradition Act, as amended.
In our view, it was an error not to include Britain’s standard alongside the American one in the Treaty, because it has created the mistaken impression that the Treaty is biased against Britain. We believe that this error should be remedied by an official exchange of notes between our two countries, which would also provide an opportunity to clarify other misunderstandings and improve Anglo-American cooperation on cross-border crime in other ways. But what is equally urgent in our eyes is for the U.K. to re-examine the rest of its extradition system. Under the European Convention, Britain gives Russia the same legal standing as it gives Australia, which is clearly wrong. The European Court of Human Rights is swamped by cases, steadily more inclined to decide cases against the U.K., and lacking in judicial experience. Even worse, the European Arrest Warrant has none of the virtues of the US-UK Treaty, in that it is entirely possible for a British subject to be removed to a foreign court for stealing a hubcap. Finally, only 10 individuals were extradited from Britain in 2010 under the 2003 Treaty, but over 1,000 were surrendered under the EAW in the same year — and while extraditions to the U.S. are low and stable, the number of removals under the EAW is rising rapidly.
In short, we call on the UK to establish a system that makes extradition to non-democracies possible on only a limited and ad hoc basis, while setting out one clear standard for extraditions to all democracies, be they in the European Union or not. That standard should be the one embodied in the 2003 Treaty, which protect British subjects (and American citizens) from petty charges, gives both governments the right of first refusal, and ensures that none of us can be charged abroad with an offense that is not a crime in our own country. What I regret is that Members of Parliament, and others, use the subject of extradition to play the card of populist anti-Americanism by complaining that Britain was tricked into an oppressive treaty by the US This is not true, and it troubles me that this approach has achieved a certain popularity in the Conservative Party. I expected more of a party that carries Margaret Thatcher’s banner.