Extradition Requests by the United States under the Extradition Treaty of 2003 - Case Study Example

On the last day of March 2003, the United Kingdom and the United States of America formalised an extradition treaty intended to replace previous one in a hope to prosecute terrorists and criminals in a speedier way. The 2003 Extradition Treaty has raised much controversy because of its wide-ranging implications and the growing reach of United States Law beyond its borders. It also raised a number of new questions regarding the interplay of international and domestic laws since many believed that it contravened with at least some of UK's international obligation. However, the UK High Court as well as the European Court of Justice has judged that the treaty does not violate the UK or EU law [1]. The 2003 Extradition Treaty was signed as a response to 9/11 and was designed to facilitate swifter transfer of suspects and also to address challenges faced by prosecutors regarding white collar crimes. The Extradition Treaty attempts to solve inadequacies of the past extradition treaties signed between the UK and US. The parliament passed the Extradition Act of 2003 in order to make the treaty a part of British law. Ratification in the US has been delayed however on account of major concerns, most notably by the Irish-American community and civil rights activists. During negotiations for the Extradition Treaty, the US had initially shown hesitation due to concerns over some of the major changes being implemented in it. For instance, even though the treaty quickened the extradition process of terrorist suspects, it restricted the individual rights of an American citizen. The exception of political offence had always been an important aspect of previous extradition treaties. According to Irish American lobbyists, the insignificance of political offence exception in the Extradition Treaty 2003, may lead to US individuals being extradited to UK on the grounds of political offences [2]. Another issue raised by the Extradition Treaty 2003 concerns the allocation of power to Executive Branch for the determining the political motivation behind an extradition request by either country. Politically driven extradition requests were previously determined by the Judicial Branch. The allocation of power to the Executive branch further reduces the political offence exception as the Branch is more politically answerable to UK judicial system than to that of US. Diplomatic tensions could increase by a long margin if an extradition request is found to be politically motivated. This issue is further addressed by the Committee on Foreign Relations in a report to the Senate. The Extradition Treaty 2003 does not change the part played by Judicial Branch in determining the likely implementation of political offence exception to an extradition request. The Article 12 of Extradition Treaty 2003 permits provisional arrest of a suspect before a formal request for extradition is lodged and also permits detention of the suspect for sixty days. Provisional arrest is a common allowance in numerous treaties under which concerned authorities can without formal requests arrest a fugitive in critical situations. The condition of providing a clear case has been a disputable component of the Extradition Treaty 2003. The rest of European Nations with civil law do not require provision of clear case and often it’s troublesome when attempting extradition from the UK. These nations grant extradition on the basis of identity proofs of the suspected individual and the accordance with their treaty requirements [3]. Even though the UK adheres to the same standards for other members of the EU under the Extradition Act 2003, there exist however a number of extra procedural safeguards in place between the EU members and the UK unlike the treaty with the US [2]. For instance, the proposed Framework of the treaty has as a guarantee certain minimum procedural rights for criminal trials across all member states of the European Union. On the other hand, the UK does not have any such guarantees under the 2003 Extradition Treaty that would be taken as assurances of procedural safeguards if a citizen is extradited to the US to stands trial there. A number of policy makers and law scholars have quizzed the government about abrogating the prima facie for the US, a basic element of almost all extradition treaties that the UK is a member of. Although the basic intent of the Extradition Act 2003 was to speed up the extradition of wanted felons between the two states, especially in the face of rising terrorism and 9/11, the reduced requirement of evidence is likely to have significant impact on criminal defendants here in the UK, further complicating the case with domestic laws and also treaties like the European Convention on Human Rights that the UK is a signatory too [1,2]. Extradition Requests by the United States under the Extradition Treaty of 2003 Since the start of 2004, the US has attempted to extradite 43 individual under the new treaty. About half of these have been related to white collar crime while others are related to terrorism or other crimes. Approximately half of the extradition requests were related to white collar crime. The two cases that have attracted the most attention have been that of Ian Norris on grounds of antitrust violations and the 3 NatWest bankers who were extradited for wire fraud [4]. Mr. Norris has been accused by US authorities of seven counts on fixing prices of Industrial products. US prosecutors are expected to prosecute Mr. Norris under the Sherman Antitrust Act. In past, the United Kingdom had always been hostile to the extraterritorial enforcing of American antitrust law. In the context of antitrust laws, UK’s domestic approach regarding extraterritorial legal authority is notably different from the US. For instance, UK takes a view of enforcing jurisdiction as being limited to only anti trust issues over foreign corporations on the grounds of nationality or territorial principal. UK has also stated that jurisdiction can be warranted given that the actions of foreign corporations have taken place within the limits of the state claiming legal authority [4]. The domestic competition law is intended to correct deformations of the competitive modus operandi within the UK. It was not until recently that private prosecutor's actions for violations were allowed to be enforced with respect to the UK competition law in line with the US antitrust laws which can be privately enforced in the US. The liability of corporations according to cartel law is distinctly different between the US and UK. In the US, corporations can be held liable on the basis of any antitrust violations whereas, corporate criminal liability is not supported by the U.K. Enterprise Act cartel offence. Furthermore, UK is also required to implement its competition policy as a part of the European Community along with being an active member of the policy [5]. Domestic laws in the UK regarding cartels as criminal and this is evident through the Enterprise Act 2002. The main objective of this act was of deterrence. Despite the many steps that UK has taken for adjusting its competition policy in accordance to that of US, significant differences remain. For instance, the UK cartel offence includes the dishonesty condition. The dishonesty condition of the act reflects the seriousness of the cartel offence. However, many critics suggest that as the term “dishonesty” remains undefined, it makes it harder to convict offenders [6]. In contrast, the US Sherman Act being based on conspiracy is more likely to lead to altered enforcement [7]. All this is key to analysing the case of Ian Norris's extradition. The UK High Court announced its verdict on the extradition of Mr. Norris, rejecting the defendant's arguments. He had argued on two issues namely the Secretary of State's approval of the extradition request and the designation of the US as a nation that doesn't need to give prima facie evidence. The first issue raised by Mr. Norris's team focused on human rights violations under the European Convention on Human Rights which the court rejected. This again shows the interplay of international and domestic law in court decisions. Mr. Norris's other argument was also rejected since the Act was passed by the parliament and was perfectly under the powers of the legislative branch [8]. The case of the Natwest bankers also involves interplay between domestic and international law. The 3 employees of Greenwich NatWest in London challenged the decision by the Serious Fraud Office to not prosecute them in the country and secondly they appealed the Home Secretary's decision of approving their extradition. If the Serious Fraud Office had decided to prosecute them, the Act of 2003 would stop any extradition under the double jeopardy rule. The rule however does not stop extradition in instances where officials may have prosecuted but chose not to. Thus the first argument was rejected by the High Court in its verdict on June 2006. The second argument was rejected on a similar note as to the case of Ian Norris that the Home Secretary does not have the authority to bar extradition except if the accused are likely to face death penalty or have been extradited from another county to the UK [9]. Problems with the 2003 Extradition Treaty Even though the treaty has been a major step in dealing with terrorism and white-collar crime in the two countries, the 2003 Extradition Treaty has a significant number of short comings, one of which is how domestic laws and International laws and treaties are dealt with in the case of discrepancy. The treaty and the subsequent Act passed by the parliament were designed with the purpose of improving law enforcement efforts to deal with terror suspects, and as such the treaty has a number of ramifications for all extradition requests made by the United States to the United Kingdom. White-collar crime has been a special focus in this regard as the US Justice Department has sought to extradite several high profile executives and bankers to the US from the UK. It also has significant implications for Scotland as a number of cases in the last few years have shown the reach of US laws that have come to overtake domestic laws and international laws especially those relating to human rights and death penalty in particular [4]. Implications for the Business Community Businessmen based in the UK have been increasingly vocal in their protests of the 2003 Extradition Treaty and have argued that it has the potential of restraining corporate executives and board members of large organisations from conducting business in the United States since laws of the UK, US, and those that are internationally applicable all apply to them in a manner that is not conducive for doing business. Complicated proceedings and the threat of extradition that directors and bankers face as a result of new treaty could deter them from utilising forms of communication that are based in the US for instance as a result of fear of indictment under mail and wire fraud statutes for instance. This problem is further compounded by the fact that no prima facie evidence is required making the likelihood of extradition that much more real and serious. The punishment on account of many of these crimes can runs into several years, heavy fined and bans from becomes board directors. Business organisations rely in an extraordinary way on communication tools like email and telephone to conduct business which can all be used against them in an extradition request from the United States [10]. International over-regulation is one of the biggest concerns of the business community that is exacerbated by the 2003 Extradition Treaty making them accountable under US, UK and international laws and thus could overly burden U.K. businesses in complying with U.S. regulations more stringently [4,5]. Human Rights Concerns Even though the elimination of certain procedural precautions from the Extradition Treaty 2003 has provided prosecutors with solutions regarding white collar crime prosecution, their removal raises human right violations concerns. The Section 87 of the Extradition Act 2003 offers a safe-conduct to extradition in case of violation of human rights. In this situation, the magistrate determines whether the person’s extradition is attuned with the international convention rights in the context of Human Rights Act of 1998. The case is forwarded to the Secretary of State of the Home Department in case of violation of human rights who then decides whether or not the individual is to be extradited. Attorneys of the NatWest bankers as well as the attorneys of Mr. Norris had argued that Articles Six and Eight of the domestic Human Rights Act were violated by the Extradition Treaty 2003 [11]. International laws and treaties have been made part of UK legal system through legislation like the Human Rights Act of 1998 which incorporates the different provisions of the European Convention on Human Rights. Article Six of the above Act provides minimum due process guarantees including "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" [11]. Furthermore, Article Eight ensures the right to privacy of home, family and also correspondence. The international case law addressing extradition in accordance to the European Convention on Human Rights states that concerned states may violate the provisos of the Convention by means of returning the individual to the requesting state instead of extra-territorially implementing the European Convention on Human Rights in the requesting state. Hence, states parties subjected to the European Convention regarding human Rights are bound not to extradite a person to a requesting state where the rights of that person may be violated [9]. For instance, in the case of Soering v. United Kingdom, the European court concerning human rights governed that UK would be violating the European Convention on Human Rights in case of extradition of the defendant on account of murder charges which could result in death penalty in the requesting state. This ruling of the European Court of Human Rights is codified within the 2003 Extradition Act, "the Secretary of State must not order a person's extradition to a category 2 Territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 Territory." [11] According to 2003 Extradition Act, extradition of a citizen can only be refused by the Secretary of State of the Home Department if there is a threat of death penalty being awarded or if the person is already someone who has been extradited to the UK from somewhere else. As such the Secretary is not permitted under the act to take into account human rights concerns. In case, the defendant finds the Secretary’s decision unfavourable he or she can appeal to the High Court as in the case of the NatWest bankers as well as Mr. Norris [9]. To speak specifically about the case of the NatWest bankers, the High Court did not find any violations of Article Six and Eight of the human Rights Act and therefore, in line with the European Convention on Human Rights. This goes on to show how international law and domestic law come into play with each other and affect the decisions of the court. The central complain in the NatWest case under Article Six was that the defendants would not get a fair trial if extradited. In this regard, the High Court was of the view that the Sixth Amendment of the US Constitution very much compensated of the tights under Article Sixth of the European Convention on Human Rights. Under laws of the United Kingdom person must show "a clear risk of suffering a flagrant denial of a fair trial," something that was not evident according to the High Court’s verdict [9]. The analysis of the High Court regarding the European Convention on Human Rights’ Article Eight argument raised in the case also included an assessment about privacy interference of the defendants’ home and family life and declared that the cost of such action was in line the aim of reducing crime. This evaluation of proportionality is called as the margin of appreciation which allows the parties to vary from the guaranteed rights of the European Convention on Human Rights as long as the restriction on the right and the public policy principle for the restriction are proportional. According to the reasons provided by the High Court for its decision, the strong interest of general public regarding honouring of extradition treaties outweighs the interests of NatWest bankers for preventing separation from their families. Here, it is clearly evident that domestic laws are neglected for upholding international laws in extradition matters [4]. The analysis of Article Eight also addressed the standard extradition case which requires the defendant to be a fugitive possessing nationality of the requesting state. In contrast, the NatWest bankers had UK nationality. Civil law countries such as European Union members do not extradite individuals with their nationality. However, no such policy is followed in common law nations such as United Kingdom and the United States. Even though, European Union nationals are safe guarded from extradition by this and also for countering the decreased evidential standards. However, UK citizens are not safeguarded by such policy from US extradition requests [6]. After thorough analysis of all arguments, the High Court classified the NatWest case as not a typical extradition case but rather a case in which the requesting state was only demanding the return of its subjects. The case was not considered significant enough to involve human rights violation [9]. Even though, the human rights based appeals argued by NatWest bankers and Mr. Norris were both ineffective, there can be future situations in which human rights concerns can entail in extraditions due white collar crime prosecution. It was recognised in the NatWest case that the individual rights according to Article Eight under the European Convention on Human Rights interfered with the extradition but however, the High Court ruled it to be permissible. The NatWest case does provide a wary condition for US prosecutors to not transgress the limits of proportional intervention with the rights of the Convention while prosecuting in certain positions, such as passage of long periods can formulate the prosecution as oppressive and unjust. At present, the UK courts are impervious to arguments concerning human right violations in cases which cover extradition as determined by the Extradition Treaty 2003 [9]. Bibliography 1. Doobay A. The non-taxing weekly for top practitioners. Tax Journal. 2006. 849:8 2. Sanders M. Britain Can Still Block the "Long Arm' of US Extradition. Fin. Times. 2005. Aug 15;15. 3. Garlick P. The Mysterious Case of the New U.S. Extradition Scheme. New L J. 2004; 154:739. 4. Wheatcroft P. Tougher on Businessmen than Terrorists. Times. 2005. Nov 12;58. 5. Retired City Exec Fights Extradition to U.S. as Lopsided Treaty Comes Into Play. Lawyer. 2005. May 9;7. 6. Tait N. Test Case Has Widespread Implications for Executives. Fin. Times. 2006. Jan12;3. 7. Langran, Robert, and Martin Schnitzer. Government, Business, and the American Economy. Lanham: Rowman & Littlefield Publishers. 2007. 8. Grant, J. K. Extradition As a Tool for United States Antitrust Enforcement: Implications of the U.K. Decision Norris V. Secretary of State for the Home Department. Brooklyn Journal of International Law. 2007. 33:209-236. 9. Binning, P. The NatWest Three Case Highlights the Disparity in Extradition Safeguards Which Continues Despite the Extradition Treaty of 2003. The New Law Journal. 156. 2006. 7246:1625-1625. 10. Langdon-Down G. Stand and Deliver. L. Soc'y Gazette. 2004. Nov 18:20-21. 11. Wijngaert, Christine van den. Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box? International and Comparative Law Quarterly. 1990. 394:757-779. Read More