Monday, 16 January 2012

No end in sight to unfair extradition rules

A few days after a student was told he faced extradition to the United States for alleged copyright violation committed in his own front room, which the British authorities show no inclination to prosecute and which may well not even amount to crimes under UK law, it is reported that the Coalition is about to abandon its longstanding promise to reform the system.

Despite strong backbench feeling on all sides (as evidenced in the debate organised by Conservative MP Dominic Raab) and despite her own previous public position, Home Secretary Theresa May is, it is reported, about to rule out any change in the extradition arrangements with the United States or with other EU countries. Instead, she is set to follow the conclusions of a report produced late last year by the senior judge Sir Scott Baker, who decided that everything in the world of extradition was absolutely fine. This should be massively disappointing to anyone who cares about justice.

In a sense, May's hands are tied because of the prevalent (but absurd) political doctrine that once you set up an "independent" inquiry into something you have to do whatever the inquiry recommends - or, at least, that it's politically dangerous to go against the suggestions of the inquiry, even when (as here) the inquiry's recommendations are abysmal. Indeed, the Evening Standard notes that "ministers acknowledge that they will have to take a few hits politically because of the decision, but that they feel bound to accept the former judge's verdict because of the detailed way in which he conducted his analysis of the law."

It would have been popular as well as principled to have introduced new safeguards for British citizens sought by foreign courts. I suspect it would have better reflected her own private views - to say nothing of Lib Dem colleagues such as Nick Clegg. But policy-making in this area as in others has largely been contracted out to "experts", and Baker has spoken. The manifold injustices of the extradition process will remain uncorrected.

A lot of the commentary - and indeed the criticism - surrounding cases such as that of Gary Mckinnon, the "NatWest Three" and now Sheffield student Richard O'Dwyer has missed the point, concentrating on the allegedly unequal nature of the 2003 Extradition Act. There certainly is inequality: British authorities seeking extradition from the USA have to show that they have a prima facie case; US authorities have merely to show British courts that they have correctly identified a suspect. But as the Baker report demonstrated, while formally unequal the rules have relatively little practical impact (though I do wonder what would have happened to Lotfi Raissi). Certainly, several defendants have been able to spin out the legal process in the UK for many years, even under the current regime.

No, the problem with the extradition arrangements between Britain and the USA is not that they are "unequal". If they are unequal, it is merely because Americans enjoy certain constitutional safeguards that we lack; that it good news for Americans, but it does not constitute some sort of dastardly US plot for world domination. Worse, excessive concentration on the "unequal" nature of the treaty with the USA distracts attention from the problems with the European Arrest Warrant, under which a British citizen can be hauled off to any other EU country with even less formality, and fewer safeguards, than if they're being sought by the USA. Sometimes for very minor offences. Take Tracey Molamphy, who spent two weeks in a German prison cell because of a minor incident that had occurred twelve years previously in Portugal. The EAW system is not "unequal", but it is illiberal, arbitrary and dangerous - and the number of people affected is much greater.

Sir Scott Baker's lamentable report (all 400 pages of which can be read here) failed to see what was wrong with either system, perhaps because he was asking himself the wrong questions. On the arrangements with the USA, Baker concluded that there is no significant difference between the US "probable cause" test for arrest and the UK's "reasonable suspicion" test, and that it was not significantly more difficult to extradite someone from the USA to the UK than vice versa. All of which may be true. But these are purely procedural points.

Baker took no account of the aggressive way in which the US authorities seek to exercise extraterritorial jurisdiction, for example in seeking the extradition to face trial of people who have never set foot in the United States. Nor did he recognise the huge difference between standing trial in your own country, with full access to such things as bail, financial support and family, and being hauled off to a foreign land, there to be treated as a fugitive from justice. To someone who may in fact be not guilty, the trauma and life disruption that will inevitably result from such an experience cannot be wiped away by an acquittal. Even where guilt is clear, the process of extradition is often in itself wholly disproportionate to the offence. Nor should it be forgotten that the sentences imposed by US courts, and the prison regime itself, are often much tougher than those in the UK.

Baker even rejected the straightforward amendment of a "forum bar", under which cases would if possible be tried in the UK. He did so apparently on the basis that it would "create delay". For the report, it didn't much matter where a case was tried, so long as the end result (acquittal or conviction) was likely to be the same. And I suppose that as a piece of abstract legal reasoning that might be so. Once again, however, the conclusion completely ignores the massive difference between the two situations from the point of view of the accused. Astonishingly, Baker even suggested that prosecutors were "far better equipped" to make the decision as to the appropriate forum than a neutral court. The lack of imagination, of empathy, of basic decency on show in this chilling report beggars belief.

The judge was much impressed by "the public interest that lies in having and operating effective extradition procedures", but seemed wholly unmoved by the human cost of such streamlined administrative processes on individuals and families caught up in them. Nor did he seem to care about the violence to the rule of law and to basic civil rights that inevitably follows. But in any civilised legal system the rights of individuals must outweigh the convenience of the system. Humanity matters more than efficiency. It is absurd and outrageous that basic and sometimes ancient protections (such as the right to know the evidence against you, the right of habeas corpus and to bail) are set aside when the word "extradition" is invoked.

It's simply not good enough for government ministers, Tory and Lib Dem, who for years have made valid and well-informed criticisms of both the US/UK treaty and the EAW, now to hide behind the drily legalistic and illiberal conclusions of Sir Scott Baker. Politicians, and lawyers, need to appreciate that extradition is a serious matter. The basic rights of citizens should not be so lightly or casually tossed aside.