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Shameful part 1

On ways in which the present state or application of the law is unacceptable.

There are many things to be proud about about the legal and political system of this country. In the main judges are hard-working and of high quality. I do not believe there is any judge sitting in this country who could be bribed. Although there are aspects of the way MPs have claimed expenses which are unattractive, and which I'm not wishing to seek to excuse, nonetheless I do not believe that on the whole there will be many if any countries with less corruption amongst politicians, and many with a great deal more.

It is against that generally positive background that certain aspects of legislation and operation of the system stand out. In criticising the decisions made I am not necessarily suggesting that the decisions were wrong in law, but I'm definitely saying that on the assumption that that is what the law provides then, to quote the Dickensian phrase, the law is an ass.

Although I have mentioned it before, the recent hearings regarding the computer hacker Gary McKinnon have meant that we must return to the topic of extradition arrangements with the United States.

I would not regard myself as I the least bit anti-American. I think that certainly in the legal sphere, we have a huge amount to learn from them. This applies whether you look at the application of psychology and its implications for the trial process in terms of books and papers available for advocates, or the way that the American Bar Association organise events which (as an associate member) one finds both informative, perfectly located for the wow factor, and enjoyable. Americans tend to be far from the shallow characters one might expect from a cursory perusal of their TV output. The West owes a huge debt of gratitude to the United States without which (whilst in no way deprecating efforts from within this country and elsewhere such as Russia in World War II) the West would almost certainly have succumbed to the Nazi jackboot in World War II, or the Stalinist one thereafter. Therefore this is not a "have a kick at the detestable Americans" piece.

Having said all of that, the problem about having an immensely powerful ally (still much less of a problem than having an immensely powerful enemy) is that such allies have a tendency to get what they want. Certainly when one considers the terms of the mutual extradition treaty which has been entered into between our countries, that has proved to be the case. One will recall that the background to this arrangement was many years of the government here attempting to extradite IRA terrorists, frequently unsuccessfully. Of course in the post 9/11 world, attitudes towards terrorists in the United States, and soldiers and others battling against terrorists, have changed dramatically. However there is no doubt that the idea of the mutually agreed extradition treaty was that it was going to facilitate the transfer of terrorists between the US and the UK.

The effect of this was to mean that the potential to challenge any extradition was enormously limited. The effect was best summed up by Lord Justice Auld in one of the earlier challenges to extradition by Ian Norris (whose case continues alongside that of Mr McKinnon). The extract is somewhat lengthy, but it summarises the position is simply and we will set out the extract in next week's article and then proceed to consider the consequences and effect.

Michael J. Booth QC