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11 Feb 2014

Merry Neal published in Legal Week – ‘The Amanda Knox case and the politics of extradition law’

In this article, first published on the Halsbury’s Law Exchange blog, Merry Neal breaks down developments in the increasingly complex Amanda Knox case

Late last month the Florence appeals court found Amanda Knox and Raffaele Sollecito guilty of the murder of Meredith Kercher in a unanimous verdict. Adding to the considerable drama of this case,Sollecito was subsequently apprehended close to the border of Austria, although he denies that he was attempting to flee.

The pair were sentenced to 28 years and six months, and 25 years imprisonment respectively. Knox received a higher sentence as she was additionally found guilty of falsely accusing Patrick Lumumba of the crime.

History of the Italian proceedings

Knox and Sollecito were originally convicted of the murder of Kercher in 2009, and were detained in Italian prisons. The conviction was quashed in 2011 due to evidential problems identified with the original trial. The Supreme Court then ordered a retrial in March 2013, stating that the jury which acquitted the pair had not considered all the evidence.

So far, so confusing.

Reasons for reinstating the convictions

The judge who reinstated the murder convictions, Alessandro Nencini, President of the Florence appeals court, stated publicly on 1 February that the court had established a motivation for the murder. The full details of the reasoning will be given in a written judgment which must be published within 90 days. The judge stated, “There were coincidences and on this we have developed our reasoning. We realise that this will be the most controversial part”. Both Knox and Sollecito’s lawyers have criticised the judge for commenting publicly on the case so shortly after the verdict, claiming that his comments demonstrate prejudice.

Extradition – what happens next?

Knox now potentially faces a battle on two fronts: in both the Italian and the American courts.

The verdict will not be finalised until it is approved by the Supreme Court of Cassation. If the verdict is upheld, it would be the usual procedure for Italy to request Knox’s extradition. Any such request would be made by the Italian Embassy in Washington DC to the US State Department. From there it would be sent to the Department of Justice and, if deemed appropriate, it would be passed to the local US Attorney’s office. At this point Knox would be liable to be held in a federal detention centre for the duration of her extradition battle. She would be entitled to a hearing before a district judge at which she would inevitably seek bail – however, in a case such as this where she has been found guilty of murder, it would be the policy of the US Government’s lawyers to object to bail.

On what grounds could she fight extradition?

Knox could not avail herself of any of the prohibitions on extradition under the Italian/American Extradition Treaty. None of the caveats or discretions detailed in Arts 5 to 9 of the Treaty apply to her case. It is also made clear under Art 4 of the Treaty that extradition should not be denied on the ground that the requested person is a US national.

Knox could try to argue that the Italian trial was not fair, and that there was no sound basis for the conviction; the ill-advised comments of Judge Nencini may be helpful in this regard. There is, however, strong circumstantial evidence against Knox – despite what some aspects of the media would have you believe.

Generally, however, it is not for the US courts to review the prosecution case in its entirety. All that established US extradition law requires is that the Italians provide a summary of the facts and evidence against Knox which shows a “reasonable basis to believe” that she committed the offence. It is likely that the evidence against Knox would pass this low bar.

Knox may attempt to argue a constitutional point of law to the US appellate court. Many commentators have focused on an objection based on the American prohibition on ‘double jeopardy’, but that is not quite the case here. Rather, Knox was found guilty at the first trial, but that verdict was not finalised, so a re-trial was ordered, at which she has again been found guilty.

Who has the final say?

If Knox were to fail in the courts, the battle would not be completely over. The US Secretary of State, John Kerry, will have the final say. He retains the power to intervene in an individual case and stay an extradition at his discretion. A similar discretion was removed in the UK by the Extradition Act 2003. Prior to 2003, the Home Secretary had a general discretion to block extradition, perhaps used most famously by Jack Straw in the case of Augusto Pinochet.

Yet the Home Secretary still retained an effective discretion post-2003, thanks to the Human Rights Act 1998 (HRA). All ministers are bound by the HRA, so the Home Secretary could intervene to stop an extradition if that extradition would breach the human rights of a requested person. This was the power used by Theresa May to block Gary McKinnon’s extradition to the US in 2012, on the grounds that, due to his Asperger’s syndrome, it would be a breach of his rights under Art 3 ECHR if he were to be extradited. As a result of that decision – and of criticism of Ms May’s decision not to use the power to block theextradition of Syed Talha Ahsan, who also suffered from Asperger’s – this discretion has now been transferred to the courts (see Part 2 of Sch 20 of the Crime and Courts Act 2013), relieving the Home Secretary of taking a decision which is perceived as having being influenced by political considerations.

The politics of extradition

Extradition law is a unique beast. It is one area of law in which political concerns are not only present, but are inherent in its nature. Any extradition request will involve an analysis of the requesting state’s criminal justice and penal system – the point being that a person should not be sent to a country where they cannot have a fair trial, or where they will be held in inhumane conditions.

This principle works both ways, however. If two countries have an extradition treaty, it is a way of declaring that it is deemed safe to extradite fugitives to each other’s country. Italy and America have had such a treaty since 1984. In this way, compliance with extradition requests demonstrates reciprocity between countries and is an important part of diplomatic relations. It is for this reason that there is always the possibility of the imposition of political pressure when it comes to extradition cases.

America, and the American media, must tread carefully in the Knox case. There has been much criticism of the Italian criminal justice system, with US commentators clamouring for any future extradition request to be refused. This would, however, be a grave insult to the Italians. The Italian system is a legitimate one – the same system which tries and convicts Mafia criminals on a regular basis. Unless there is a sound legal basis on which to refuse extradition, the default position is that America should accede to the request. America has refused Italian extradition requests before, however, for example in the Abu Omar case (albeit that this case involved extraordinary rendition and the involvement of state agents, so it is perhaps not surprising that the Americans did not accede to that particular request).

Watch this space

America is infamous for taking a hard line when it plays the part of the requesting state – look at Edward Snowden, Richard O’Dwyer and Roman Polanski – so it will not lend credibility to their extradition demands if they do not cooperate with Italy in the Knox debacle. If her conviction is finalised, Knox will take her fight as far as she is able through the American courts.

One thing is sure – the unique circumstances of Ms Knox’s case would provide ample material for a team of talented and creative defence lawyers to seek to block or delay extradition. And once those routes are exhausted, it is more a matter of politics.

Merry Neal is a contributor to the Halsbury’s Law Exchange blog – click here to follow Merry on Twitter andclick here to follow the Halsbury’s Law Exchange blog.