This article is taken from the October 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

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For a legal commentator, extradition is the story that keeps on giving. It’s where politics and the law collide: it’s the clash between international treaties and individual rights. But it doesn’t always lead to justice.

One of the most fascinating stories I covered as a BBC correspondent was Spain’s attempt to have the former Chilean dictator Augusto Pinochet extradited from London, where he had unwisely chosen to do some pre-Christmas shopping in 1998. Extradition was eventually refused by the home secretary Jack Straw — but not before the UK’s most senior judges were forced to reconsider their decision on the case because one of their number had sat while legally disqualified.

“Extradition” means “handing over”. A country is asked to extradite an alleged criminal or convicted fugitive to another country. Because every state has responsibilities towards people within its jurisdiction, the country where the suspect is living must decide whether to grant the extradition request. In a democracy, it’s judges who decide whether a contested extradition should go ahead. But because a sovereign state cannot be forced to send anyone abroad, the decision must ultimately be one for the government concerned.

At one extreme, there are states like Russia that refuse to extradite their own nationals. The two Russian agents accused of using the deadly nerve agent Novichok in an attempt to kill Sergei Skripal in Salisbury in 2018 will not be extradited to the UK, provided they never leave their homeland again. At the other extreme was Libya, which sent two of its nationals in 1999 to stand trial at a unique Scottish court sitting in the Netherlands, where they faced charges arising from the Lockerbie bombing a decade earlier.

Parliament passed the Extradition Act 2003 to give effect to the European arrest warrant, which allows fast-track extradition between members of the European Union. Mutual recognition is based on the assumption that each EU state can trust the judicial processes of every other member.

Can it really be in the interests of justice to extradite a suspect who could be tried more fairly in the UK?

But extradition may be neither speedy nor automatic, even within the EU. In 2016, Gabriel Popoviciu, a businessman, was convicted of bribery and abuse of power in his native Romania. In 2017, he was arrested in London on a European arrest warrant. In 2019, a district judge ordered his extradition. In June of this year, after considering evidence of “improper, corrupt and criminal conduct” by the Romanian judge who conducted Popoviciu’s trial, the High Court set the warrant aside.

Since the beginning of this year, “surrender arrangements” between the EU and the UK have been governed by the European Union (Future Relationship) Act 2020, which gives effect to a trade and cooperation agreement between the EU and its former member. The arrangements are broadly the same as the European arrest warrant, except that they make it easier for the UK to refuse extradition in cases where it would be disproportionate. EU states remain designated as category 1 territories under the Extradition Act. 

Other countries with which the UK has formal arrangements are included in category 2, which is divided into type A and type B countries. Type A countries do not have to produce evidence to justify the issue of an arrest warrant: an untested summary of the alleged facts is sufficient. The USA is in this category. For type B countries, such as India and some countries in Africa and Latin America, the court must be satisfied that there is a case to answer in the requesting state.

Both types of category 2 case begin with a request to the UK government from the foreign state. If the home secretary certifies that the request has been made in the approved way, the case is sent to a designated district judge at Westminster Magistrates’ Court who considers any bars to extradition. Subject to those and any appeals, extradition must be ordered by the home secretary.

After the US-UK extradition treaty was signed in 2003, there were heated arguments over whether it was lopsided: the UK must show “probable cause” before the US will extradite a suspect while the US needs show only “reasonable suspicion”. However, the former appeal judge Sir Scott Baker concluded in 2011 that the thresholds represented by these two tests were broadly the same. A House of Lords select committee agreed in 2014.

But look at the figures. MPs were told in January that since 2007, when the treaty came into force, 58 people had been surrendered by the US to the UK — 11 of them American citizens — while 135 were extradited the other way.

Dig a little more deeply, though, and it becomes clear that the reason the UK extradites more people to the US than the US sends to the UK is because the US is more interested in bringing prosecutions against foreigners whose actions have damaged its economic interests. The Conservative MP David Davis said in January that, of the 135 individuals extradited from the UK to the US, 99 were charged with non-violent offences. “Instead of seeking justice against dangerous criminals,” he added, “the United States is seeking to be judge, jury and executioner for global commercial deals.”

Davis is certainly onto something there. Since all financial deals go through US computer systems, it’s not difficult for the US to claim jurisdiction against individuals based outside the United States. The government’s response to this concern is the so-called “forum bar”, a reform to the Extradition Act introduced in 2013. It allows the courts to refuse extradition if a substantial measure of the requested person’s relevant activity was performed in the UK and it is not in the interests of justice, as defined by the act, for the extradition to take place.

Defendants extradited to the US face enormous pressure to plead guilty

The forum bar defence has been raised successfully just four times. It worked in 2018 for Laurie Love, a man with mental health difficulties who was accused by the US of compromising government computer networks — and for Stuart Scott, a banker with strong links to the UK, which was where most of the alleged harm took place. In 2019, the forum bar was successfully advanced by Robert McDaid, another defendant with mental health problems. Last year, it prevented the extradition of Christopher Taylor, 58, from Wigan, who was accused by the US of hacking into webcams in nearly 40 countries.

In July, though, a district judge rejected the forum bar defence put forward by Mike Lynch, the British entrepreneur accused of wire fraud following the sale of his software company Autonomy to Hewlett-Packard. Lynch is accused of manipulating Autonomy’s accounts so that HP paid $5bn more for the company than it was worth. He denies all wrongdoing.

The US accepted that a substantial measure of Lynch’s conduct was performed in the UK. But, after considering all the factors listed in the Extradition Act, District Judge Snow rejected Lynch’s claim that extradition would be contrary to the interests of justice. The Serious Fraud Office, which decided in 2014 that it did not have enough evidence to prosecute Lynch in the UK, had concluded that the US would be a more appropriate jurisdiction for a trial.

Although Lynch had strong, long-standing ties to the UK, Snow concluded that all the other factors strongly favoured trial in the United States. They included “the huge financial losses caused to HP in the USA, the losses suffered by American investors and the significant reputational damage caused to HP”.

There was evidence from the US Bureau of Prisons that it could provide appropriate care for Lynch’s medical problems. The only evidence to the contrary was provided by an “unreliable partisan witness”, as Snow described him. The district judge was confident that Lynch would “serve any sentence in a level 3 prison whose purpose was to care for the chronically ill”.

Can it really be in the interests of justice to extradite a suspect who could be tried more fairly in the UK? That question was raised after the ruling by Nick Vamos, an extradition specialist at the law firm Peters & Peters. “Especially in high-profile fraud cases,” he said, “the US criminal justice system relies heavily on ‘flipping’ junior employees.” These potential defendants are offered reduced sentences if they admit wrongdoing and give evidence against others. That’s possible because US prosecutors have a major say in sentencing.

“The equivalent UK framework, to the obvious frustration of the Serious Fraud Office director Lisa Osofsky, does not permit such easy flipping,” Vamos added. “Heavy-handed plea-bargaining tactics employed by US prosecutors are often viewed as coercive and unfair on this side of the Atlantic.”

Defendants extradited to the US face enormous pressure to plead guilty, Davis pointed out in January. “They are told that if they refuse a deal, they will be denied bail and face decades in a maximum-security prison. But if they plead guilty, they will receive a much lighter sentence in an open prison.” Defence costs could run into millions, the MP added. “It takes a brave person to turn down the easy route.”

It would be a retrograde step to give foreigners less protection than Britons

The UK government has no answer to this fundamental point. “Although the practice of plea bargaining in the United States is not one that we have in this jurisdiction,” replied the Home Office minister Chris Philp carefully, “I do not think I would agree with the general proposition that the US justice system is inherently unjust and that it is so bad that we cannot allow anyone to be taken there from this jurisdiction because the system is so terrible that justice will not be done.” And if there was the risk of grave injustice in an individual case, a court could reject extradition. 

The minister may have been thinking of the grounds on which District Judge Baraitser had discharged Julian Assange in January. She found it would be oppressive to extradite the WikiLeaks founder to a country where he might face so-called special administrative measures — such as limits on correspondence, visits and phone calls designed to prevent the disclosure of classified information. Baraitser was persuaded that if Assange was subjected to these “extreme conditions”, his “mental health will deteriorate to the point where he will commit suicide”.

In response, the US offered diplomatic assurances that it would not impose special administrative measures unless Assange committed future acts that met the tests for these measures. He would also receive any clinical and psychological treatment recommended by a clinician. If convicted, he could apply — following any appeals — to serve his sentence in Australia.

These assurances may prove to be a game-changer. They helped persuade Mr Justice Swift to let the US appeal against Baraitser’s ruling. He also said it was arguable that she had got the law wrong when deciding that extraditing Assange would be oppressive: it’s claimed she erected a hurdle that no state could meet. The third ground on which Swift granted permission was that Baraitser should have notified the US of her provisional view and given it the chance to provide assurances.

Two further grounds were dismissed as unarguable by Swift but allowed by the High Court in August when the US renewed its application for permission to appeal. These related to evidence given about Assange’s mental health by Michael Kopelman, a retired professor of neuropsychiatry. Kopelman had deliberately not revealed that Assange had fathered two sons with his partner, Stella Moris, during his seven-year stay at the Ecuadorian embassy in London. Baraitser found that “Kopelman’s decision to conceal their relationship was misleading and inappropriate” — but still relied on his evidence.

At a full hearing planned for the last week of October, the US will be able to argue all five grounds of appeal. The losing side could then appeal to the Supreme Court if permission is granted and the High Court concludes that the case raises a point of law of general public importance. That happened in 2012 when Assange unsuccessfully challenged an extradition request by Sweden. But the only prediction we can safely make about the Assange case is that it is utterly unpredictable.

We cannot insist on changes in the US any more than we can change the laws of China or Russia

Do these cases tell us our extradition arrangements require further reform? Davis argues that if the US is going to insist on exercising extraterritorial jurisdiction in its own interests, perhaps the UK should refuse to extradite British citizens for anything other than serious crimes of violence and terrorism. In my view, it would be a retrograde step to give foreigners such as Assange, Popoviciu and Pinochet less protection than Britons such as Lynch. Of course, British citizenship carries privileges. But the UK owes duties to everyone within its borders.

And what of Davis’s argument that the UK must rethink its relationship with the US on extradition so that we have arrangements that are balanced, fair and reciprocal? That’s as realistic as expecting the US to reform its lax firearms laws, its unbalanced criminal trials, its over-long prison sentences and its continued use of the death penalty. 

We cannot insist on changes in the United States any more than we can change the laws of China, Russia or our European neighbours. And provided the US continues to respect our own legal principles, we risk jeopardising international relations if we try to stop it from pursuing those who break its laws from afar.

None of this should come as any surprise to suspects like Lynch and Assange. They knew perfectly well how their alleged conduct would be regarded in the US. We cannot blame them for seeking sanctuary. But nobody should blame the UK if that sanctuary is denied.