Procedure for Extradition of Fugitive Offenders in the UK - Essay Example

Introduction Extradition within the United Kingdom is governed both by EU and UK based law. The general provisions are covered in the Extradition Act and the rest are covered through treaties between the US and others. The essay shall focus on the Act, cases that have applied to it and opinion on overall matters shall be made. Definition of extradition Extradition is defined as the process by which a person accused in one state is transferred to another country that was seeking to place the accused person under trial. Usually extradition laws come into effect when a suspect flees one country and enters another yet he/she may be required to take part in trial. To extradite means to return a criminal suspect into his country of origin or in a country in which he is to face trial. Suspects have the right to waive extradition in that they may choose to wilfully go back to the country in which the charges are pending. In certain circumstances the country in which the suspect has fled to may opt not to extradite the individual if they feel that the warranty for prosecution is not valid enough. (UK Parliament, 2000) Since extradition is governed by international laws, then most countries have entered into treaties to determine how suspects may be treated. Some countries may opt not to extradite persons that have been charged with serious crimes. In other circumstances, some countries may be specific about the extradition of persons who have committed serious crimes. In other scenarios, certain countries may have very complicated procedures for extradition and this may eventually lead to legal hurdles for the country conducting the trial. Certain countries such as Canada may not allow extradition if it is found that the suspect is likely to face the death penalty. Usually between the United Kingdom and other states contain information about extraditable offenses, conditions to waive extradition, conditions of entry into the country and what could lead to termination of extradition. In the United Kingdom (or any other country for that matter) an export extradition is one in which the accused committed the crime outside the UK and there is request for that individual to leave the UK for trial. On the other hand, import extradition is one in which there is a request for someone to leave another country and go back to the UK to answer charges there. In other words, it also called the outgoing extradition. However, since the United Kingdom is a member of the European Community, then it must comply with rules and regulations that have been written down by this body. One such instrument is the European Arrest Warrant or the EAW. The latter scheme is a common extradition law that is supposed to apply to all member states of the EC. However, the latter is not an exclusive document that is supposed to be treated independently. Instead, countries are expected to enact national legislations through the use of the EAW. In fact, very few countries within the EU have enacted the EAW. (UK Parliament, 2003) There are varying ways in which countries have implemented the EAW; however, most of the common features include decisions on who is to carry out the extradition and what duration of time is necessary for the entire process. Usually, most countries in the EU expect that extradition should be conducted by a court of law rather than a particular individual such as a government minister. Additionally, countries require that extradition be done in a period that is less than sixty days. Summary of the Conditions for extradition in the UK The details of this act shall be examined below but before getting into the intricacies, it is imperative to look into some of the overall themes involved. In other words there are some minimum requirements that govern the process of extradition in the region. First of all, for extradition to the United Kingdom, the country under consideration must have entered into a treaty or a convention with the country involved. Besides this, the crime under consideration must be one that is covered by the treaty or convention that had been agreed upon by the two parties involved. Most of the time, the offense under consideration must be a type of punishment that will involve either twelve months or more in prison. Alternatively, if the offence under consideration has already been passed then the minimum period that could warrant an extradition is four months. It is also necessary for any extradition to occur, then it must be proved that the person to be returned is going back to answer to prosecution charges. Additionally, extradition could be carried out so as to ascertain that the person under consideration serves his to her due time. On top of the latter, if a person had been convicted, then extradition must be done so as to ensure that the person serves his or her sentence fully. Under the European Arrest warrant, countries are obliged to follow the rules and procedures laid out in this Act only if they have chosen to engage in that scheme. The United Kingdom has accepted to follow these regulations and the rules and procedures have been laid out in the Extradition Act 2003 under the third section of the Act. This section and the other two shall be examined comprehensively later on. But in order to single out how the EU has affected extradition within the region, it is essential to first look at some of the basics that are affecting this matter. According to this regulation, a police officer or a prosecutor has the right to apply for a European Arrest Warrant from a court of law if the offense under consideration falls in line with the stipulations laid out in the latter Act. Additionally, an EAW may be issued only after a UK warrant has been issued. Other conditions that may necessitate some actions include Evidence showing that a person committed the crime A person is at large unlawfully Once the latter facts have been established, then the arrest warrant is then transferred to the country that is expected to perform the extradition. This is then followed by the implementation of the EAW scheme requirements based on the concerned countries' regulation. The person to be extradited is expected to return to the United Kingdom in a period that does not exceed days after an arrest has been conducted. It should be noted that the latter procedure applies to those persons who may be operating within countries that fall within the EU and have chosen to implement the EAW. In instances where a country has opted to look for other alternatives, then other additional conditions must be met. (UK Parliament, 2000) For non EAW countries, the United Kingdom will be required to make a request to the country under consideration on specific basis. In other words, this can be achieved through random arrangements with that respective country. In other circumstances, this may be done through multinational conventions or in other circumstances; the UK may need to engage in a bilateral arrangement. All in all, the arrangements must be such that they have been agreed upon between the two countries. The details of these procedures can be seen in the latter section. Detailed description of the Extradition Act 2003 Extradition within the United Kingdom is comprehensively covered by the Extradition Act 2003. This Act was passed in the latter year and then implemented in the subsequent year. All the export and import extraditions are covered by this Act and details are given about the special conditions relating to specific countries. The Extradition Act is divided into three parts. Part one is restricted to those territories that are covered by the Secretary of State with regard to the matter. However, persons may not be included in part 1 of the Act if their crime may lead to the death penalty. It states that a warrant will be issued with intentions to arrest and extradite a person. This warrant must contain formation about the person's identity, particularly if the arrest, circumstances under which the person has committed the crime. Additionally, details must be given with regard to the sentence that must be given in the matter. (UK Parliament, 2003) It should also be noted that the person covered under this section, is one who has prompted a warrant from a court of countries emanating from territories in this section of the Act. Also, that person must be liable to serve prison sentences in that respective country or they must be expected to be detained or anything to that effect. It should be noted that a certificate can also be used to make up a warrant by the authority under consideration. This is in order to ascertain that the mandated authority is given the function to arrest. In certain circumstances, the Secretary of State may choose to give different authorities in the entire UK region. Under the arrangements of part 1 of the treaty, a constable to police is supposed to execute the arrest of a particular individual. When this is done, then the suspect is supposed to be given details about his crime and due procedures of UK arrests must be followed. When the police fail to adhere to this, then a suspect does have the right to protest against this issue in a court of law. When a judge feels that due procedure was not followed during the extradition arrest, then he / she has the right to dismiss extradition charges. (UK Parliament, 2003) It should be noted that in England, Scotland, Wales and Northern Ireland, the judge presiding over the extradition case has the same powers as a magistrate that would be handling complaints against that specific individual with regard to the matter. Consequently, any adjournment of the extradition hearing must be done in such a manner that there are custody arrangements or there are bail arrangements. It should be noted that extradition may be barred if it is found that a suspect falls in any of the following categories; double jeopardy, extraneous considerations, age, passage of time, earlier extradition to the UK from a non part 1 territory or one from a part one territory. If it is found that these matters have been adhered to in the affirmative, then a judge has the right to discharge the suspect. However, if a suspect does not fall in any of the latter categories, then he is obliged to continue with the process. (UK Parliament, 2003) It should be noted that a judge has the right to discharge an individual if it is found that the extradition warrant has been done in order to do any of the following arrangements; Exercise racial prejudice Exercise age prejudice Exercise gender prejudice Sexual orientation prejudice Etc If the country under consideration has a special arrangement with the UK and is a commonwealth country or a British overseas with territory, then a certificate must be issues to show that such an arrangement does in fact exist. The question of human rights is also covered under this section and has been the basis upon which most extradition cases after the Act have been appealed. A judge must not extradite an individual if this extradition would contravene any of the Human Rights Act of 1998. The country under consideration must be such that it adheres to these rights. On top of that, if a judge finds that the respective individuals has mental or physical condition, then magistrates must discharge the case or adjourn it in order for further investigations to be conducted. One of the most interesting aspects with regard to extradition is the issue of appeals. A person has the right to file for an appeal against an extradition when they feel that the appropriate judge handling the matter did not do so in a proper manner. Appeals are to be handled by the High Court against an extradition order. However, for section 46 of the Act, then an appeal must only be granted in the event that it is a matter of the law and nothing else. The second part of the Act revolves around extradition cases in the Hong Kong section of the People's Republic of China. This extradition is normally conducted by an authority that has been approved by the Secretary State to be acting on behalf of the latter government. Part 2 of the extradition Act 2003 (or the rules regarding extradition of people from territory 2) is such that it can contain minor changes on terminologies used such as substituting the term justice for sheriff or the term complaint for information. (UK Parliament, 2003) Section three of the Extradition Act applies on the issue of extradition to the United Kingdom. In order for a warrant to be issued for this matter, then a constable or a police officer must have evidence to show that the said individual has committed the crime and that there is sufficient evidence to show that the respective individual has in fact made his way to other parts of the world. The conditions following the warrant are determined by the location of the suspect. If the person falls within the European Union, then the following Acts come into place Section 72 of the criminal justice Act Section 7 of the Judicature Act 1978 Section 1 of the Magistrate's courts Act Section 7of the Bail Act 1076 Article 20 of the magistrate's court act The statement written for the arrest of the individual under consideration must be such that the reason for the arrest warrant is given, the nature of the matter is specified and that other such matters are placed under consideration. The rules and exceptions made with regard to these matters largely reflect the assertions made in part 1 for those countries conducting extraditions. In other words, issues surrounding the provision of extradition from the latter territories must also be adhered to by the United Kingdom depending on the category which they emanate from. (UK Parliament, 2003) Treaties on extraditions between the United Kingdom and other parts of the world The most recognisable treaty between these two countries is the one between the UK and the United States. This is because most cases apply to the latter country and also because there are a number of interactions between the United Kingdom and the US. The United Kingdom had been particularly cooperative about this matter owing to the fact that its parliament had ratified the treaty earlier than other members of the US Senate. This was the case because there were certain protesters who felt that they needed to protest against the passing of the law. It was asserted that the United States Senate was slow to assent the treaty following the case of the British offenders who were facing extradition charges. They lost their battle for extradition and they had to answer to charges in Houston. (Torres, 2006) The main essence of the US-UK treaty was to speed up extradition of individuals and hence the restoration of justice for international crimes. In other words, this can be achieved through the minimisation of procedures required for extradition of suspects between these respective countries. On top of that, the latter countries have also agreed upon temporarily surrendering individuals that may already be serving their terms in one of the latter countries. Cases The Gray McKinnon case One such example is the case of Gary McKinnon of North London. This individual had been accused by the United States for entering into their computer system and finding out information from ninety seven NASA and US military computers. Given the fact that he had been located in the United Kingdom at the time the United Kingdom filed for those complaints, and then there was a need for extradition to occur by the United States. Upon application by the US, the UK's home secretary granted the United States the request that they had made for extradition. During the extradition process, most of his lawyers asserted that the latter individual had been treated unfairly by the United States by issuing threats and that extraditing him would lead to further abuse of his rights. (Cooper, 2006) The latter assertions were also coupled by claims that the accused would serve an extremely long sentence i.e. a period of forty five years and that this part of this sentence would not be in his native land which is the United Kingdom. These two matters were the grounds for appeal by the suspect's lawyers. However, the judges who presided over the case said that these grounds were insufficient. This decision was put into force even despite the assertion made by some of his lawyers that McKinnon was in danger of receiving capital punishment as hinted but some US authorities. They asserted that this was seen as a form of intimidation by these respective groups against McKinnon. Consequently, the lawyers felt that McKinnon was in danger of being treated as a cyber terrorist by the United States and that extraditing him would put him in danger of meeting those challenges. It should also be noted that his lawyers claimed that the accused was in danger of being denied repatriation to his country of origin because the US want him to spend the rest of his life in prison and in that country. The truth of the matter was that the accused has acknowledged committing hacking crimes. He claimed that he had gained access into the files of the US military during the period at which he been accused i.e. between February and March of 2001 and the subsequent years. In his defence, he asserted that the reason behind his actions were not terrorist - based or even criminally based. Instead, the defendant claimed that there was lax security on the part of the United States military and that he entered into these networks merely out of curiosity's sake and nothing more. The latter case was instrumental in highlighting how the House of Lords adheres to the extradition rules on grounds for appeal. The UK court judges have a right to reject cases when they feel that the grounds for appeal are not valid enough as stated in the Extradition Act of 2003. The other important factor that was brought out by this particular case was the role of the European Union with regard to extradition cases. This was seen in the fact that McKinnon had tried soliciting for appeal from the European Court of Human rights on the basis of his poor health. He wanted to have his case heard in the United Kingdom and explained that he had sperger's Syndrome which is a particularly sensitive issue. Even some of his campaigners used this case of his illness to support his stay within the country. As a matter of fact, Gary's support was so intense that his supporters held peaceful demonstrations outside the US embassy. (Cooper, 2006) Other people argued that his health illness was what created an obsessive tendency to hack into other people's files. They claimed that this was a syndrome that was synonymous to autistic persons and that the latter individual did not know what he was doing. This was the reason why the case dragged on for a period of six year before prior notice. Additionally, this very basis was the reason why some people looked up to Prime Minister Gordon Brown for assistance at that time. The Milan Spanovic Case Another case that has been tried in relation to extradition charges was one made about a Balkan war criminal living in the United Kingdom. The suspect is known as Milan Spanovic. He had been arrested for a minor offense in the UK and upon investigation, it had been found that the there was an international warrant for the arrest of this individual. Besides this, it has also been found that the latter individual had been guilty of engaging Serbian antireligious activities. An international warrant for his arrest revealed that this individual had been burning churches, looting homes and performing other forms of destructions against the Catholic Church. (Cooper, 2006) This was also related to the fact that he had also been engaging in crimes against innocent civilians. It had been explained that this individual had tortured and fired shots at the latter group of persons. He had already been convicted and sentenced to a period of twenty years in his absenter. This case was particularly interesting in that it contained a political element to it. In the year 1995, in the village of Maja, the minority groups at that time were Serbs while the rest were form other groups. Consequently, the latter group may have felt a need to affirm their importance through attacks against the Maja people. Close to forty people carried out the attack but only half of them were identified and one of them was Spanovic. It had been explained in international media that the war in Croatia erupted as early back as in 1991, when Serbians who happened to be the minority decided to rebel against the government which had taken over from a previous Serbian group. (Cooper, 2006) The latter individuals' case was heard in court and the court ruled in his favour. The latter case was important in highlighting how the international warrant is an important part of the arrangement since it has gone a long way in bringing to justice criminals who committed crimes against large groups or those whose crimes had a dramatic effect upon the lives of the people within their country. The Benfica case Another case that was instrumental in showing the importance of the Extradition Act 2003 was that of a Portuguese football club manager located in London; Antonio Azevedo. This individual had been accused of negating in fraud where he had even served a sentence of four years starting from 1997 to the 2000. The accused had embezzled some of the finances that had been set aside for the sale of a Russian goalkeeper that was to enter into this club. However, this same country opted to release him after hearing his case again in 2004. His fate was however not sealed when a short while after leaving the court that had tried his case, he had been rearrested. During subsequent periods, this individual had been faced with multiple accusations thereafter and after some time, it had been found that he had left the country and was now living in London. Upon confirmation following extradition rules, it had been found that he identity met those ones that had been laid out in the arrest warrant and the latter individual was also arrested and tried. The Ian Norris case Ian Norris's case was peculiar to other cases in that he was able to win an appeal against extradition. The extradition Act of 2003 indicates that the House of Lords is supposed to examine whether the crime under consideration applies to both countries. Ian Norris had been accused of conducting crime fixing within the United States during the nineties. (Hotton, 2008) The reason why the latter individual was able to win the case was that the crime was not applicable in both countries at that time although it is today. This brings out the fact that the time upon which a crime was committed can make the difference between winning an extradition or loosing one. When asked to comment about this extradition, Mr Norris claimed that there was a one sidedness to the treaty that the United Kingdom and the United States made with regard to the matter. His words were echoed by critics of the treaty claiming that the US stood to benefit a little more than the UK did when it came to this matter, on top of this, the accused claimed that he was in indeed content with the fact that the justice in the UK has adequate powers to override unfairness in certain treaties. The United States wanted to arrest Norris for colluding with members of a cartel who engaged in the sale of electronic components. The US claimed that this individual had been working hand in hand with other component sellers to fix prices and thus undercut consumer rights. It had also been put forward that there were a number of interest groups that began criticising the case. This was because decisions made in that appeal would affect the business community in the UK, human rights experts and political groups. Norris' lawyers put out the fact that the United Kingdom enacted the enterprise Act in the year 2002; years after Norris had allegedly committed the said crimes in the US. Consequently, this was reason enough to eliminate some of the problems that were being experienced in those areas. (Farrell, 2008) The former NatWest Banker case This was another controversial case owing to the fact that it would be the first case in the United Kingdom to implement the assertions on the UK - US extradition treaty. This case occurred at a time when the US was still pondering the signing of the treaty between the UK and itself. Thereafter, the Senate passed this treaty and the latter group was then extradited to the United States for trial. The three members were as follows Giles Darby Gary Mulgrew David Bermingham (The BBC, 2006) These were all employees of an organisation known as NatWest. These employees had been accused of engaging in wire fraud which could eventually have led to the collapse of the energy giant Enron. It was alleged that they had taken part in the sale of part of the company that amounted to a total of about four point two million pounds. In the Extradition Act of 2003, the US is considered as one of the countries under which suspects can be extradited under a fast process. However, critics claim that since the US had not yet approved the treaty, then there was no reciprocal arrangement by the Americans in case a crime against the UK was committed. Members of the US senate who opposed the treaty claimed that there was no equivalent arrangements in the UK with regard to the burden of prove that the court requires when suspects are to be taken into trial. However, members of the UK side claimed that there was a need to balance both sides of the divide through the creation of system in which legal evidence from both sides must be equal. In other words, there is a need for one to look into the matter of probable cause between these groups. It should be noted that this treaty had been passed in order to tackle the issue of terrorism that was seen was an international matter. However, with time, the Act came to be seen as one of the most promising with regard to corporate crimes. (The BBC, 2006) In this treaty, the United States is required to issue a warrant for the arrest of an international criminal. In the warrant, they are expected to outline some of the reasons behind the provision of the warrant. In other words, both the United States and the United Kingdom need to have probable cause in the event that they would want to extradite someone from the other country. This was the point of contention that caused the delay in the passing of the treaty within the US senate because of the perceived differences that exist between the UK and the US systems. The Conservatives and the liberals both had a different take on the perceived differences and this is eventually what caused the delay. However, the United States eventually approved the treaty thus causing the three suspects to be tried in the latter country. In their arguments, the suspects claimed that they did not commit anything like wire fraud and this was the reason why a trial within the United Kingdom would be appropriate for them. On top of that, if the case had been tried before the ratification of the US-UK treaty, then there would be double standards for the two countries with the US benefitting and the suspects being denied justice. Consequently, most of them put themselves in a tricky situation. It should be noted that there was a political element to it because some of the members of Congress effect that it would be anti-American to adhere to the treaty. However, this was not the case and the treaty was passed in its full setting without approval from other members of the divide. Recommendations The extradition Act of 2003 has worked for certain individuals as seen in the examination of cases covered by the Act. However, there have also been some controversies concerning the issue. For example, in part 2 of the Act non European arrest warrants have been debated by a number of experts. For example it has been stated that; "the presiding judge must be satisfied with the request for extradition in that it must contain admissible evidence to carry out a prima face against that particular suspect." The latter condition applies to territory 2 countries but does not apply to other countries such as Canada, Australia and New Zealand. Consequently, some of the countries that are in constant interaction with the United Kingdom such as the US are not required to adhere to such obligations. In fact, the Act requires the UK to adhere to some of the provisions in the Act but the same does not apply to the United States when there is a need for the country to extradite. Consequently, there is some unfairness in the treatment of the matter. (Blair, 2008) It should also be noted that extradition Acts and extradition laws in general within the United Kingdom have been the subject of debate when it comes to meeting the needs for defence once a UK citizen has been extradited to the United States. This is because they are not entitled to the provision that other persons from the United States are entitled to. Additionally, it has been asserted that the United Kingdom had sound legislations for prosecution of cases in their internal environment but the same may not be said of some of the countries that it has entered into agreement with in other parts of the world. Conclusion UK extradition policies have served their purposes in certain instances because of the fact that some individuals have been able to apply for appeal and won them. In other circumstances where evidence is not overwhelming then it can be said that justice was served. (The BBC, 2006) On the other hand, it has been noted that there are double standards in section two of the Act. Additionally, there are challenges in the criminal charge expenses that individuals must adhere to when tackling some of the challenges that arise out for serving sentences within the United States in this regard. References UK Parliament (2000): The Fugitive Offenders Amendment Regulations 2000; Stationery Office Limited Publishers The BBC (2006): The UK to Act over NatWest Treaty, Retrieved from http://news.bbc.co.uk/1/hi/business/5163982.stm accessed on 2nd January 2008 Torres, C. (2006): Senate Unanimously ratifies US, UK extradition Treaty; Bloomberg Blair, W. (2008): US judge rejects bid for extradition of IRA; New York Times Hotton, R. (2008): Ian Norris wins appeal against US extradition; The Daily Telegraph Farrell, S. (2008): Morris and US extradition Battle; The Independent The UK Parliament (2003): Official text of the Statute, retrieved from http://www.opsi.gov.uk/acts/acts2003/ accessed on 2nd January 2008 Cooper, B. (2006): UK Hacker looses extradition fight, retrieved from http://www.news.bbc.co.uk/2/hi/technoloy/47156172.stm accessed on 2nd January 2008 Marcus, P. (2003): Criminal Procedure in Practice; National Institute for Trial Advocacy UK Parliament (2003): Extradition Treaty; Report Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affair by Command of Her Majesty, May 2003 Read More