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U.K. Extradition Arrangements with the U.S. Under Review

Britain’s coalition government announced in September that, pursuant to a pledge in its Programme for Government,  it is conducting a review of the U.K.’s extradition arrangements.  The review will be led by a retired Law Lord, who  presided over the inquiry into the death of Princess Diana, and two independent lawyers with expertise in extradition law who have authored a leading treatise in this area.

Extradition legislation in the U.K. was altered in 2003 with the enactment of the Extradition Act.  This Act provided the legislative framework to allow the implementation of the European Arrest Warrant into the national law of the U.K.  It introduced two different categories of countries that the U.K. has extradition relations with and provided for two different requirements for extradition to these countries.   Category 1 countries consist of European Union Member States that have implemented the Council Directive on the European Arrest Warrant,  whilst category 2 countries are all other countries the U.K. has extradition treaties or agreements with.

The announcement of the review notes that it is focusing on the arrangements provided for by the U.S.-U.K. extradition treaty. This treaty has been subject to significant public criticism in the U.K. for being unbalanced and more favorable to the U.S.  In particular, the lack of the requirement for the U.S. to show prima facie evidence to support an extradition request, and differences in the severity of penalties between the two countries for crimes committed, have been at the top of the list of grievances.  The Shadow Home Secretary has stated that he would be surprised if the “review led to any meaningful change in the current arrangements … [as] … whilst the terms of our respective legal systems are different, the substance of the extradition tests applied in each country under the agreement are broadly the same.”  However, members from the coalition government have been concerned as to the operation of this treaty since it was signed.

While the initial impetus behind the U.S.-U.K. extradition treaty was, in part, to provide another tool to counter international terrorism, the majority of extradition cases to the U.S. have been in connection with fraud or drug offenses.  One of the most high profile extradition cases is that of alleged Pentagon hacker Gary McKinnon, who faces up to sixty years in a U.S. prison if convicted of the charges against him.  This case is currently still in process.

In addition to the U.S.-U.K. treaty, the review is going to consider:

  • the breadth of Home Secretary discretion in an extradition case
  • the operation of the European arrest warrant, including the way in which its optional safeguards have been transposed into UK law
  • whether the forum bar to extradition should be commenced
  • whether the US-UK Extradition Treaty is unbalanced
  • whether requesting states should be required to provide prima facie evidence.

The results of the review are expected to be published in late summer 2011.

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