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19 Oct 2011

Scott Baker’s extradition review – no whitewash

The human rights organisation Liberty is “baffled” by it. The mother of Gary McKinnon calls it “pathetic”. The Home Secretary, on the other hand, says she is “very grateful” for it.  Sir Scott Baker’s review of the UK’s extradition laws, released to the public yesterday after one year of work and at a reported cost of £250,000, has certainly provoked a range of reactions. At 486 pages in length, the one accusation nobody could make is that Sir Scott’s analysis lacks thoroughness.

The key conclusions are as follows:

• The US/UK extradition treaty, which Nick Clegg once decried as lop-sided, “does not operate in an unbalanced manner” because “there is no significant difference between the probable cause test [the US evidential test applied by the UK courts] and the reasonable suspicion test [the UK evidential test applied by the US courts]”.

• The European Arrest Warrant (EAW), much criticised for allowing individuals such as Andrew Symeou to be extradited and detained overseas without any consideration of the underlying evidence, “has improved the scheme of surrender between Member States of the European Union and that broadly speaking it operates satisfactorily”. The report does, however, recognise the overwhelming volume of EAWs issued on the basis of trivial charges and says that the European Commission should address this problem through a proportionality requirement.

• The “forum” bar to extradition, whereby defendants would be prosecuted in the country where the bulk of the conduct comprising the offences has occurred, should not be implemented because it would “create delay and has the potential to generate satellite litigation”.

• The “prima facie” test, whereby the requesting state would have to tender evidence of the alleged crime upon which, taken at its highest, a jury properly directed could convict the defendant, should not be re-introduced because this would require an overhaul of the EAW Framework Decision where a request is made by an EU state, and where a request is made by a non-EU state our judiciary are able to subject cases to an appropriate degree of scrutiny.

• The Secretary of State’s discretion in relation to human rights matters on non-EU requests should be removed because “they are more appropriately the concern of the judiciary”.

Much of the opprobrium which has greeted the report has focused on its conclusions about the UK/US extradition treaty. This is unsurprising but hardly warranted. The US is a convenient enemy and in Gary McKinnon there is a sympathetic cause célèbre. However, regardless of the precise semantic difference between probable cause and reasonable suspicion, the reality is that, since their shameful and ultimately unsuccessful attempt to extradite Lofti Raissi, US prosecutors have had little difficulty in adducing cogent evidence which satisfies not only the probable cause test but also the older (and more difficult) prima facie test.

The evidence cited at page 472 of the report suggests that the UK/US treaty is not lop-sided and does not prejudice those accused or convicted of crimes in the US. On the contrary, out of 112 US extradition requests received in the UK between 2004 and 2011, 73 defendants were extradited and seven cases were discharged. 49 UK extradition requests were received in the US over the same period but 38 defendants were extradited and no cases were discharged. Put another way, the average defendant stands a statistically higher chance of being extradited to the UK from the US than vice versa.

Putting the UK/US treaty to one side, Sir Scott’s report recognises that real problems continue to affect our extradition laws. Instead of advocating legislative change which might address those problems, the report favours a less radical approach, recommending prosecutorial guidance or greater political understanding. One example of this approach is the report’s suggestion that the UK Government should “use its best endeavours” at EU level to ensure that other Member States, particularly Poland, understand the recommendation of proportionality in the EAW Handbook.

Another example arises from the prima facie test. The report is right to recognise that re-imposing the prima face test for EU countries and for trusted judicial partners outside the EU (such as Australia and Canada) would create unnecessary delay and strike at the heart of the EU Framework Decision and the UK’s diplomatic relations generally. However, signatories of the Council of Europe Convention of Extradition (ECE) such as Russia, Azerbaijan, Ukraine and Moldova, are also on the list of countries for whom the prima face test does not apply. Whilst it has been that way since the ECE came into force in the UK in 1991, it is, to say the least, rather alarming that Russia, whose human rights record is the subject of persistent and severe criticism, does not need to produce a single scrap of evidence of criminality when issuing an extradition request to the UK.

The report recognises this problem but points out that other protections are enshrined in the UK’s extradition laws, notably the abuse of process jurisdiction, and that judges are able to identify abusive requests without the need to examine the evidence. The statistics cited at page 464 of the report supports this point: out of 25 requests received from Russia since 2004 nobody has been extradited; one defendant has been extradited to Ukraine after six requests; one to Moldova following two requests; and nobody has been extradited to Azerbaijan despite four requests.

But the statistics tell us only part of the story. If a country is required to advance a prima facie case in its extradition requests, an analysis of that case which indicates that it has no proper evidential foundation can be used to support a wider submission on the abusive nature of the foreign proceedings and/or the ulterior motives driving them. In other words, a re-introduction of the prima facie case for a very limited range of countries would positively assist defendants in relying upon the very protections (such as abuse of process) which the report advocates.

But instead of advocating a new approach to the ECE (such as re-ratification with a reservation), the report only goes as far as recommending that CPS guidance should be issued which reminds the prosecutor of its obligation to disclose “evidence about which it knows and which destroys or severely undermines the evidence upon which the requesting state relies”. Whilst this guidance would be welcome, it is clearly of only limited assistance where the requesting state is under no obligation to adduce any evidence and does not do so.

These criticisms aside, the report is a welcome and carefully argued rebuttal of some of the criticisms made about the UK’s extradition laws. It is not the whitewash which many are claiming. It’s more a reflection of the practical reality of extradition practice and the significant practical problems in changing the current arrangements with, in particular, the USA and members of the Council of Europe, however much we may dislike some aspects of their criminal justice systems.

Corker Binning is a law firm specialising in extradition and general criminal work of all kinds. For more information, call us on 0207 353 6000.

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