UK Extradition Law: States Criminal Justice Procedure - Coursework Example

? 0 Introduction Extradition is the ized procedure whereby one country or nation surrenders a convicted or suspected criminal to another country or nation but among the country states, extradition is synchronized by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. In the extradition agreements or treaties the compromise in international law is that a country does not have any commitment to surrender an alleged criminal to a far-off country as one code of self-government is that every country has legal power over the people in its borders. Stevenson, (2006, p. 23 ) reveals ‘such nonexistence of international responsibility and the ambition of the right to require such criminals of other nations have caused a network of extradition agreements or treaties to develop’ and further points out that “the majority nations in the world have signed mutual extradition accords with numerous other nations”. 1 No nation in the world has an extradition treaty with all other nations and for instance, the United States of America has no extradition treaties with several countries, including the United Arab Emirates, People’s Republic of China, North Korea, Namibia, and Bahrain. According to Bassiouni (1996, p. 87) extradition is the delivery of a convicted individual. Or an accused by one country to another nation on whose territory he/she is alleged to have been convicted or committed of a crime. 2.0 Restrictions By concluding treaties or enacting laws or agreements, nations settle on the conditions under which they may perhaps deny or entertain extradition requests. Universal restrictions to extradition comprise of: According to Christopher (2001, p. 345) ‘the failure to execute double criminality is normally the act for which extradition is sought after’’ But “it must comprise of a crime which is punishable by some minimum penalty in equally the requested and requesting and parties”. 2 He points out to the political atmosphere of the alleged crime where the majority of the nations decline to extradite suspects of political crimes, there is the possibility of particular forms of punishment where various nations refuse extradition on grounds that the individual, if extradited, may possibly face torture or get capital punishment. A small number of these nations go as far as to cover all the punishments that they themselves may not direct. Christine (1998, p. 78) writes that the jurisdiction over a crime may be used to refuse any extradition and in particular, the reality that the individual in question is a country’s own citizen, makes that nation to have jurisdiction but he states that the citizenship of the individual in question where particular countries refuse to extradite their own citizens, and instead decide to hold trials for the individuals themselves. In some cases, such as that of Hafiz Muhammad Saeed, the suspect can not face any criminal charges brought against them. 3 Nathaniel (2007, p. 37) avers that most nations involve themselves to deny the extradition requirements if, in the government's opinion, the suspect is wanted for a political crime. He however avers that “many nations and regions, such as Mexico, Macao, Canada, Australia and most European nations, ‘may not consent to extradition if the death penalty might be imposed on the suspect unless they are guaranteed that the death sentence will not be carried out or passed”. 4 Rikhof (2009, pg. 324) gives an example, in ‘the case of one Soering v. United States, the European Court of Human Rights ruled that it could violate Article 3 of the European Convention of Human Rights if it were to extradite an individual to the U. S. from the U.K. in a capital case’. He however discloses that court ruled out that this “was because of the harsh circumstances on death row and the doubtful timescale in which the sentence could be executed and the parties to the European Convention may as well not extradite individuals where they can be at considerable risk of being degradingly treated, inhumanely tortured or punished”. 5 These restrictions are in general evidently spelled out in the extradition agreements that the administration has settled upon. They are, nevertheless, contentious in the United States of America, where some states have the death penalty, since it is perceived by most people as an effort by foreign countries to interfere with the United. 3.0 States criminal justice procedure Den (1996, p. 996-1007) says that in comparison, the United States has frequently convinced nations to break or even change the applicable laws, as claimed in the extradition disagreement with Canada on one Charles Ng. The case of Charles Ng was brought before the Supreme Court of Canada, where it was determined that his extradition to the U.S. did not in any way infringe Mr. Ng's rights as stipulated in the Canadian Charter of Rights and Freedoms and nonetheless, the consequent Canadian case law ruled against the Ng judgment. Consequently in Canada, a prisoner may not be extradited to a nation that permits the death penalties unless some pledges have been made to avert such execution. Nations with a rule of law characteristically take the extradition matter to a review by that government's courts. 6 Stevenson (2006, p. 23) discloses that ‘these courts can impose particular restrictions on extradition, or puts a stop to it when all is said and done’. For example he says “the courts may consider the accusations to be founded on doubtful evidence, or proof acquired from torture, or if they suppose that the defendant will not be given a fair trial on appearance, or will be subject to inhumane, cruel, or undignified treatment if extradited”. 7 A number of nations, such as Japan, the People’s Republic of China, Austria, France, Russian Republic, Germany and the Republic of China prohibit the extradition of their own citizens either by treaty or by law. These restrictions Epps (2003, p. 67) discloses are sporadically controversial in other nations when, for instance, a French citizen commits a crime in a foreign nation and then proceeds back to their home country, apparently to circumvent prosecution. 8 Epps (2003, p. 67) reveals that these nations frequently have laws in place that offer them jurisdiction over crimes done in a foreign country by or against citizens. But “by the virtue of this kind of jurisdiction, they prosecute and try citizens charged of crimes committed in a foreign nation as if the crime had taken place within the nation's borders”. 9 4.0 Exemptions in the European Union The customary extradition treaty safeguards concerning the dual-criminality, Gilbert (2001, p. 167) argues that the occurrence of prima facie evidence and the prospect of a fair trial have been relinquished by numerous European countries for a list of specific offences under the stipulations of the European Arrest Warrant which is practiced in eight European Union (EU) member-nations, from 1 January 2004, and has been effected by all the members ever since 22 April 2005 however he adds that “advocates of the warrant squabble that the common safeguards are not essential since every EU country is committed by agreement, and frequently by constitutional and legal provisions, to have the right to a reasonable trial, and since all European Union member-state is subject matter to the European Convention on Human Rights”. 10 5.0 Extradition to federations Gil (2004, p. 111) articulates that the federal formation of various nations such as the United States of America may cause certain problems as far as extraditions concerned when the police supremacy and the authority of foreign dealings are held at diverse levels of the federal chain of command even though he gives an example, of “the United States of America, where the majority of criminal prosecutions happens at the government level, and in principal foreign relations takes place on the federal level”. 11 As a matter of fact, under the United States, foreign nations might not have official agreement relations with sub-national divisions such as the individual nations but to a certain extent, they may perhaps have treaty dealings only with the federal administration. As a consequence, a nation that requests to prosecute an individual located in foreign territory will be required to direct its extradition appeal through the federal administration, which will consult the extradition with the demanding nation. Nevertheless Gil (2004, p. 111) avers that ‘owing to the limitations of federalism, any circumstances on the extradition acknowledged by the federal government — such as not to enforce the death penalty — are not obligatory on the nations’. 12 Rikhof (2009, p. 324) says that in ‘the case of Soering v. United Kingdom, the European Court of Human Rights determined the UK was not allowed within its treaty commitments to extradite a person to the U. S, because the country’s federal administration was constitutionally incapable to proffer any obligatory pledges that the death penalty will not be sought after in the Virginia courts even though eventually, the Commonwealth of Virginia itself had to give assurances to the federal administration, which passed those pledges on to the United Kingdom, which then decided to extradite the person to the United States of America’ and “lesser significant problems may crop up owing to conflicting qualifications for the crimes”. Clement (2008, p. 123) gives an example, ‘where in the U.S, crossing state borders is a prerequisite for particular federal crimes or else crimes such as murder’, except that they “are dealt with by state governments apart from certain situations such as the murder of a federal officer”. 13 This transportation clause is missing from the laws of numerous nations. Den (1996, pp. 996-1007) discloses that the subsequent diplomatic communication or extradition agreements or subsequent frequently comprises of language provided that that such criterion ought not to be taken into consideration when scrutinizing if the crime is one in the nation from which extradition ought to apply even though if a person in the United States of America crosses its borders to depart to another state, then that individual has passed a federal border, which means that the federal law may become applicable. 14 At the same time, taking a flight in the U.S. makes someone subject to federal law, as all the airports are deemed to be subject to federal jurisdiction. 6.0 International tensions The rejection of a country to extradite criminals or suspects to another Gilbert (2001, p. 167) avers ‘may perhaps lead to global relationships being tense’. Frequently, the nation to which the extradition is denied will lay blame on the other nation for the refusal extradition because of political grounds in spite of whether or not this is justified. A case in point is that of Ira Einhorn, in which some United States analyst put pressure on President Jacques Chirac of France, who does not interfere in legal cases, to authorize the extradition when the case was being held up owing to divergences between the American and French human rights law. Gilbert (2001, p. 167) states that an additional long-standing instance is Roman Planaski whose extradition the State of California has followed for over 20 years even though for a short phase he was put under arrest in Switzerland, but nevertheless the consequent legal petitions prevented the extradition. 15 The questions concerned are frequently intricate when the nation from which suspects are to be extradited is a democratic nation with a rule of law. Characteristically, in such nations, the final verdict to extradite lies with the state executive or the prime minister, president or the equivalent. On the other hand, such nations normally permit the extradition of the defendant’s recourse to the law, with numerous appeals but these possibly will considerably slow down the procedures. On the one hand, this might lead to unjustifiable international complexity, as the public, journalists and politicians from the appealing nation will request their executive to exert pressure on the executive of the nation from which extradition is to happen, while that executive might not as a matter of fact have the influence to deport the criminal or suspect on their own. 16 On the other hand, Gilbert (2001, p. 167) articulates that ‘particular impediments, or the unwillingness of the local prosecution establishment to present a good extradition case before the court on behalf of the appealing nation, may possibly result from the unwillingness of the nations administrative to extradite’. Gil (2004, p. 111) says that for instance, there is currently a divergence between the United States and the United Kingdom as concerns the Extradition Act 2003 that doles out with the requirement for a prima facie case for extradition he nevertheless points out that this came to a head over the extradition of the Natwest Three from the United Kingdom to the United States of America, for their assumed responsibility in the Enron fraud. Numerous British political influential leaders were profoundly critical of the British administrations handling of the matter. The previous leader of the United Kingdom's Liberal Democrat party, Sir Menzies Campbell, had squabbled that the United States had not sanctioned the agreement principally owing to the influence of what he termed as the (Irish lobby) – which, he, was alleged to have been against the agreement since it possibly will make it easier for Britain to have alleged Ira terrorist suspects extradited from the United States. Gilbert (2001, p. 167) concludes that the precedent of the Natwest Three might at the same time be used to extradite or prosecute Phillip Watts in relation with the Royal Dutch Shell assets scandal. However he hastens to add that the press has carried vocal condemnation of the current extradition preparations from the United Kingdom's commerce community, a number of whom affirmed that they were keeping away from doing business with or in the United States for the reason of legal obligations such as the extradition agreement, amongst other matters.17 Brown (1998, p. 342) reveals that the Extradition Act 2003 (c.41) is an Act of Parliament of the UK which came into force on 1 January 2004 and all export and import extradition requirements which are received or submitted from this date are enclosed by the Act, which concerns with the extradition from and to the United Kingdom in respect of all territories and in that concern the United Kingdom law treaty 2003 US-UK-Extradition. 7.0 Julian Assange case The recent case of Wiki Leaks initiator founder Julian Assange where he submitted an application for the Britain’s Supreme Court to hear his plea against extradition to Sweden, brought about a legal tale that has by now lasted more than a year. His latest strategy came after the High Court in London ruled that the 40-year-old Australian may possibly be sent to Sweden to be questioned over allegations of sexual assault and rape by two women. The High Court received the request from Julian Assange for authorization to take the case to the Supreme Court and the judiciary said the High Court could regard his application for a certificate of law of common public significance. Assange has robustly denied the allegations by claiming that they were politically linked and motivated to the actions of Wiki Leaks, which had angered the U.S by circulating thousands of secret documents. He spent nearly a year under practical house arrest after he was first detained in December 2010. Assange had formerly expressed his fears that his extradition to Sweden could be a precursor to his transfer to the United States to face as yet unstipulated charges of spying. A lower court had originally permitted his extradition, but he successfully appealed to the high court which rejected his dispute. However, Assange made his submission for the Supreme Court to listen to the case just one day prior to the legal time limit. Under English law, the Supreme Court can only reflect on his appeal if his lawyers could persuade the high court judges that the case is of particular public interest. They are expected to do so by looking at the status of the European Arrest Warrant system under which Assange was initially arrested. Swedish prosecutors were seeking to question him on suspicion of two cases of sexual molestation and allegations of rape by two Swedish women. In their decision the two judges rejected Assange's arguments’ that the Swedish warrant was unacceptable since it was issued by a prosecutor and not a court of law. 8.0 Gary McKinnon Den (1996, p. 996-1007) argues that Gary McKinnon deserved to be tried in the correct jurisdiction especially when the when the United States’ ambassador to the United Kingdom, Louis Susman said that the battle to stop McKinnon from being extradited to stand trial in the United States was over and done with’. He argued that McKinnon had taken down the U.S. whole defense system by hacking computers which made the U.S. very susceptible. His remarks had come in the wake of a review of extradition dealings carried out by the previous appeal court judge, Sir Scott Baker, which gave extensive approval to the status quo. Earlier on the United States attorney had visited the UK and had said that the U.S. would persist in taking all the necessary steps to have McKinnon extradited to the United States of America so as to be detained to answer charges for the alleged crimes he had committed. Omer (1997, p. 56) discloses that to show how unfair the extradition laws can be, the UK argued that McKinnon’s mental health condition could make it a serious breach of his human rights if he were to be extradited since he had caused no suffering or danger to nay one except to himself even though he had caused some embarrassment. It was alleged that the damage he caused was worth some $ 700,000 but the figure was probably just a fraction of it. The UK wanted to make it clear that they did not want McKinnon to escape being punished for the offense, but that they wanted him to be tried in the correct jurisdiction where he would get a hearing free from paranoia and hysteria that may occasionally go together with security cases in the United States. If the UK might overlook the medical evidence, McKinnon may be accountable in the British courts instead of being extradited to the United States so as to be tried for like other alleged international hackers for what he did in north London, which would bring the sad episode to an end. 9.0 Conclusion Brown (1998, p. 342) reveals that ‘matters of international law concerning extradition have been confirmed as controversial in cases where a nation has removed and abducted a person from the region of another country without formerly appealing for permission, or subsequent to normal extradition dealings and such abductions are more often than not in violation of the domestic law of the nation in which they happen, as infringements of laws which forbid kidnapping’, numerous countries in addition deem abduction as an infringement of international law and in particular of a ban on subjective detention. A small number of nations have been alleged of kidnapping so as to outwit the formal extradition procedure. Reference 1. Stevenson, T 2006, Senior executives attack invidious, one-sided treaty, The Daily Telegraph, London pg. 23. 2. Gil, Yun-hyeong 2004, New York, OUP pg. 3. UN list of extradition information by country 1996, pg. 65. 4. Nathaniel, B 2007, A brief primer on international law, London, UP pg. 37. 5. Rikhof, J 2009, The impact of domestic war crimes and prosecutions on international impunity, pg. 324. 6. Clement, J 2008, International Law in Domestic Courts: the developing framework pg. 123. 7. Shaheed, F 2005, Using International Law in Domestic Courts pg. 205. 8. Christine, W 1998, Reconciling Extradition with Human Rights, The American Journal of International Law pg. 78. 9. Epps, V 2003, The Development of the Conceptual Framework Supporting International Extradition, Loyola of Los Angeles International and Comparative Law Review pg. 67. 10. Gilbert, G 2001, Aspects of Extradition Law. Boston: Martinus Nijhoff Publishers pg. 167. 11. Christopher, H 2001, Extradition, Politics, and Human Rights. Philadelphia: Temple U P pg. 345. 12. Bassiouni, M 1996, International Extradition: United States Law and Practice, Dobbs Ferry, N.Y.: Oceana Publications pg 87. 13. Brown, S 1998, Primacy or Complementarity, Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, Yale Journal of International Law pg. 342. 14. Den, W 1996, International Criminal Law and Procedure. Aldershot; Brookfield, Vt.: Dartmouth Publishing Co, pg. 996-1007. 15. Omer, Y 1997, International Law Documents Relating to Terrorism, London, Cavendish pg. 56. 16. Gross, L 1948, The Peace of Westphalia, American Journal of International pg 91. . Read More