Shameful part 2

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

Last week we said that we would next look at the cogent summary of the extradition law given by Lord Justice Auld in one of the earlier challenges to extradition by Ian Norris (whose case continues alongside that of Mr McKinnon). (Although the case went to the House of Lords and the appeal was allowed in part as will be seen in subsequent articles in this sequence, these passages give the flavour of how the extradition arrangements work). The learned judge stated as follows (passages highlighted in bold for emphasis are my additions, not from the original judgment):

The 2003 Act

29 The extradition sought is under Part 2 of the 2003 Act, namely for territories designated by order for that purpose by the Secretary of State pursuant to section 69, of which the United States is one. Before I turn to the relevant provisions of the Act, I should as a matter of history record that, on 24 February 2006, this court, consisting of Sir Igor Judge P and Cresswell J in R (Norris) v Secretary of State for the Home Department [2006] 3 All ER 1011 dismissed Mr Norris's claim for judicial review of the continued designation of the United States and the consequent applicability of section 84(7) of the 2003 Act forbidding consideration by the court of the sufficiency of the evidence to make a case against him if the proceedings were a summary trial of an information against him. Thus, the district judge was not only not required to consider, but forbidden from doing so, the sufficiency of the evidence upon which the United States Government relied in support of the conduct upon which it relied as constituting extradition offences.

30 In 1972 the United Kingdom and the United States had entered into a treaty on extradition, which had not been ratified by the United States until 1976 and which the United Kingdom did not bring into force as part of our domestic law until 1977. Under the regime of the Extradition Act 1870 (33 & 34 Vict c 52), it was necessary for a requesting state in order to secure extradition to put before the court evidence that would justify committal for trial of the subject of the request if the alleged crime had been committed here, and the 1972 Treaty mirrored that requirement.

31 In 2003 the United Kingdom and the United States entered into a further treaty on extradition, subject to ratification; and the United Kingdom, pursuant, in part, to the new treaty, introduced in Part 2 of the 2003 Act a new extradition regime for requesting states designated by the Home Secretary as category 2 territories. Under this regime, as I have said, it is no longer necessary to put before the court evidence sufficient to justify a committal or a case to answer if the conduct constituting the alleged offence had been committed in this country. It is enough for the requesting designated state to identify the conduct, for the court to consider whether it would, if proved, have constituted an offence in this country and, if so, whether the proposed extradition would be compatible with the individual's Convention rights, before sending the case to the Secretary of State for his decision.

32 The 2003 Treaty has been ratified by the United Kingdom, but not by the United States, with the result that the treaty, unlike the 2003 Act-anticipating mutual ratification-is not formally in force. In consequence, the 1972 Treaty, with its bilateral obligation on each state when requesting extradition to show a prima facie case, which the 2003 Treaty was intended to replace, remains in force. The question for the Divisional Court in R(Norris) v Secretary of State for the Home Department [2006] 3 All ER 1011 was whether the lack of treaty reciprocity in this respect, as a matter of human rights, undermined the legality of the Secretary of State's continued designation of the United States as a category 2 territory under Part 2 of the 2003 Act, dispensing in this country with the need to establish a prima facie evidential case for extradition. The Divisional Court held that it did not, Sir Igor Judge P, with whom Cresswell J agreed, distinguishing between the rights in international law conferred upon the United States and the United Kingdom against each other in the 1972 Treaty and the individual human rights of resident British citizens under the European Convention on Human Rights. Sir Igor Judge P said, at paras 44-45:

"44. The absence of reciprocity nevertheless provides the basis for Mr Jones's primary complaint. He accepted that if the 2003 Treaty had been ratified by the United States within the short period envisaged by article 23, then the extradition arrangements between the two countries would have been far more symmetrical, and that the 1972 Treaty would have ceased to provide the claimant with the treaty rights for which he contends. Indeed, whenever it is so ratified, any such rights will be extinguished. Mr Jones was unable to show any previous authority in the United Kingdom which suggested that the 1972 Treaty, standing alone, created personal rights enforceable by its individual citizens. The treaty specified the circumstances in which the governments of the United Kingdom and United States agreed that extradition would, or would not, take place and they bound themselves to a series of preconditions which would govern the extradition process. Thereafter, the rights of citizens of the United Kingdom were governed by domestic legislative arrangements which ensured that the extradition process should be subject to judicial oversight . The treaty reflected the relationship agreed between the United Kingdom and the United States for the purposes of extradition, rather than the municipal rights of United Kingdom citizens, enforceable against their own government. In brief, therefore their rights were provided and guaranteed, not by treaty, but by domestic legislation.

"45. That forms the context in which to consider the Order, which deprives the claimant of the protective condition found in article IX 1972 Treaty . The protective conditions in the 1972 Treaty, and in particular article IX, cannot obstruct, or hinder, or postpone the application of the 2003 Act, or defer the impact of the new legislative structure. The Act itself does not provide that the wide powers granted to the Secretary of State may not be exercised, or that he should postpone making designation orders, or delay the enforcement of those orders until reciprocity is achieved."

33 Accordingly, under the new 2003 Act procedure, the requesting state does not have to provide evidence to support the charges in respect of which it seeks extradition. The Act effectively transfers from the United Kingdom judge to the foreign court the task of deciding whether the evidence tendered by the prosecuting authority is sufficient to justify a trial. The adequacy of the evidence is thus for the foreign, not the United Kingdom court. Ms McClain, in her affidavit, explained how that is determined in the United States:

"Under the federal law of the United States, a criminal prosecution is commenced when a grand jury files an indictment. The purpose of the grand jury is to review the evidence of crimes presented to it by the United States law enforcement authorities. After independently reviewing this evidence, each member of the grand jury must determine whether there is probable cause to believe that a crime has been committed and that a particular person committed that crime. If at least 12 jurors find that the evidence they have reviewed provides probable cause to believe that a particular person committed the crime, the grand jury may return an indictment. An indictment is a formal written accusation that charges the particular person, now a defendant, with a crime, identifies the specific laws that the defendant is accused of violating and specifies the date and place where the charged crime occurred." (My emphasis.)

34 In so far as relevant to the issues in this case, the 2003 Act sets out a series of questions for a judge before whom an extradition request is made. If the answer to any of the questions is in favour of the person the subject of the request, the judge must discharge him. If, and only if, they all go against him, the judge must, pursuant to section 87(3), send the case to the Secretary of State for his decision whether to extradite the person. These are the questions for the judge relevant to the circumstances of this case: (1) whether, as required by section 78(2), the material put before him, includes "(c) particulars of the offence specified in the request" (not in issue); (2) if that and the other requirements of section 78(2) are satisfied, whether, pursuant to section 78(4), among other matters, "the offence specified in the request is an extradition offence", namely one in which "the conduct would constitute an offence" punishable with a custodial penalty of at least 12 months if it occurred in this country (section 137(2)(b)-issue 1(1)-the conspiracy to defraud issue-and issue 1(2)-the double criminality issue); (3) if so, whether, pursuant to section 79, there are no bars to extradition, including (c) "the passage of time", namely where, as stated in section 82, it appears that "it would be unjust or oppressive to extradite [Mr Norris] by reason of the passage of time since he is alleged to have committed the extradition offence"-issue 3-the delay issue; and (4) whether, pursuant to section 87, Mr Norris's extradition would be compatible with his European Convention on Human Rights within the meaning of the Human Rights Act 1998-issue 4-the human rights issue.

35 I preface my discussion of these issues by referring to the strong underlying public interest in extradition cases of giving effect to our reciprocal treaty obligations in an era where international cooperation has become of great importance to the safety and wellbeing of all state parties to such treaties: see most recently R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin) at [40], per Hale LJ, echoing a number of similar sentiments expressed by the House of Lords and Court of Appeal over the last few years. ".

This thus specifies the questions which must be asked in relation to an extradition. It shows how limited are the grounds of challenge. However those do include a human rights issue. We will consider the impact of these next week.

Michael J. Booth QC