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17 Jan 2012

Corker Binning lawyer comments on O’Dwyer and Tappin extradition cases

Writing in Legal Week, Andrew Smith, solicitor, Corker Binning, examines the implications of the O’Dwyer and Tappin cases for UK extradition law.

Do O’Dwyer and Tappin cases highlight a need for reform of UK extradition laws?

Last Friday, retired businessman Christopher Tappin learned that he had lost a High Court battle to resist his extradition to Texas on charges of conspiring to export goods for use in Iran’s missile programme. Several hours later, Westminster Magistrates Court ruled that Sheffield University student Richard O’Dwyer could be extradited to New York to face charges of copyright infringement arising from his former website, which linked users to pirated films and TV shows.
These two judgments have again focused minds on the vexed issue of the UK-US extradition treaty. Two questions were asked repeatedly on news channels around the UK. Is the treaty fair and balanced? And if not, how should it be reformed?

Messrs Tappin and O’Dwyer certainly deserve our sympathy – they must now confront the real prospect of being uprooted from their friends and family and transported thousands of miles from home. They are likely to be remanded in custody for many months as they await trial. And they face alarmingly lengthy prison sentences if they are found guilty.

But it is a mistake to explain these cases in terms of an imbalance in the UK-US extradition treaty. Since 2003, the US has made roughly twice as many extradition requests to the UK as vice versa. However, a defendant resisting a US request in a UK court is statistically more likely to win his case than a defendant resisting a UK request in a US court. This point is often overlooked by those who rush to complain that the former Labour Government was merely playing the poodle to the Bush administration when the treaty was signed.

The critics still point to the fact that nine times as many Britons have been extradited as Americans. But that is not proof for the proposition that the treaty is inherently unbalanced. It reflects, more than anything else, the fact that the UK’s prosecuting authorities have not requested the extradition of many US nationals. Of those US nationals who have been requested by the UK, the US authorities have ordered extradition in every case.

Although the treaty does not prejudice Britons wanted in the US, the British public remains keen on reform. Nick Clegg has set up a review panel on extradition led by Sir Menzies Campbell (pictured) – a move seemingly designed not merely to court public opinion, but also to distance his party from their coalition partners, who seem more inclined to accept the conclusions of the earlier review on extradition led by Sir Scott Baker, which broadly supported the status quo. Sir Menzies has already gone public and criticised the treatment of Messrs Tappin and O’Dwyer.

How, then, should the Sir Menzies review approach the UK-US extradition treaty? Some commentators are in favour of raising the evidential threshold that must be satisfied by US extradition requests so that defendants have a greater opportunity to challenge the evidence in the UK’s courts. This proposal, however, is regressive and politically unrealistic given that a whole plethora of the UK’s extradition partners – from EU countries, common law countries such as Canada and Australia, and Council of Europe countries outside the EU such as Russia and Ukraine – need not present any evidence in support of their extradition requests. Other commentators call for special protection for UK nationals. This proposal is similarly flawed: virtually every country in the world extradites its own nationals and it is difficult to advance a principled argument in favour of using nationality as a basis for distinguishing between those accused of crimes.

A more sensible proposal is to bring into force the “forum” provisions in the Extradition Act 2003, which would allow a defendant to be prosecuted in the UK if a significant part of his conduct occurred here and a UK prosecution was in the interests of justice. However, the practical impact of this proposal is uncertain. Sir Scott Baker’s extradition review concluded that the forum provisions would not have affected the outcome of any of the cases decided under the UK-US extradition treaty. It is extremely unlikely that they would assist Mr O’Dwyer given that the links on his former website were accessed in the US and the victims of his alleged actions (the film and TV studios who lost revenue) are based there.
The real issue confronting the Sir Menzies review is not how to reform the UK-US extradition treaty. That is the wrong focus and any recommendations for substantive change would never become a reality. The real issue is how to make extradition (to any country, including the US) a more compassionate process. Sir Menzies might wish to consider three suggestions:

  1. Mutual enforcement of bail decisions. If suspects (such as Messrs Tappin and O’Dwyer) are granted bail by the UK court in their extradition proceedings, they should, if extradited, be granted bail by the US court in their criminal proceedings. And vice versa. This will prevent lengthy incarceration of suspects prior to trial and will give suspects greater access to friends, family and legal advice. As a matter of principle it would also demonstrate the mutual trust in each other’s criminal justice systems which is one of the cornerstones of our extradition laws.
  2. Greater use of prisoner transfer arrangements. If a UK national is convicted abroad and sentenced to a term of imprisonment, he should be given much more information about his ability to serve the sentence in a UK prison, which would bring him closer to friends and family and thereby assist in the rehabilitation process.
  3. Greater transparency about the Eurojust and UK/US guidelines on jurisdiction. Where a case could be prosecuted in two jurisdictions, one of which is the suspect’s home country, more transparency is needed as to the prosecutorial discussions which have led to the decision to initiate criminal proceedings abroad. This would assist the public in understanding why the interests of justice are often best served by criminal proceedings in a foreign country. It would also enable extradition lawyers to understand whether there is any potential for a split jurisdiction deal whereby their clients might plead to separate offences in both jurisdictions but serve a combined sentence in their home country.

Andrew Smith is a solicitor at Corker Binning. Andrew represented Mohammed Lodhi in his long-running battle over extradition to the United Arab Emirates.