Extradition – The Treaty CAN be made Fair Without any Re-Negotiation.

Britain has had extradition arrangements with other countries for centuries and has quite successfully extradited to and from the British Isles without any great deal of fuss. Suddenly now there is huge outcry and concern over extradition and we have to ask what really has changed. Whilst there is an obvious need for international Justice there is also an obvious need for natural justice and therein lies the problem. There is an undeniable public perception of unfairness about current extradition arrangements and this has to be addressed.

The national concern grew after the then home secretary David Blunket signed, in secret, under the formally decried ‘Queen’s Prerogative’, the 2003 extradition treaty. Parliament was not given the text of the treaty until three months after it was signed. Not an auspicious start. Now we are told how incredibly difficult a task it would be to renegotiate the treaty and, in spite of the influential, cross party, Joint Committee on Human Rights recommending immediate renegotiation, the Home Office mandarins appointed Sir Scott Baker, a retired Judge, to produce his lengthy report in which he carefully avoided the real causes of concern focusing instead on the semantics of the legal definitions rather than on the practical application of the treaty here compared to America. The American constitution guarantees the American citizen the evidential standard of ‘probable cause’ which means in practice, evidence that can be tested in an American court of Law plus the constitution further decrees that a crime committed in a state must be tried in that state. We in Britain have no such guarantees. No evidence is presented to the British Authorities and there is no bar that states if a crime is committed on British soil it should be tried on British soil. Of all the countries with an extradition arrangement with America only the UK is treated in this way. In every other country in the world their people have more rights than do the British.

Personally I see no problem at all in ripping up the 2003 treaty and going back to the previous one, but assuming the alleged difficulty in doing that, there are a few easily enacted procedures that would go a fair way to removing the public perception of injustice.

One main problem is the total lack of evidence required to extradite a British Subject. This apparently came about because the previous extradition treaty demanded ‘prima face’ evidence which was a higher evidential standard as the ‘probable cause’ standard which applied to America. To address this seeming imbalance the 2003 treaty removed the requirement to present any evidence at all to extradite a Brit! This, according to Dominic Grieve our Attorney General, could quite simply be resolved by introducing the same probable cause evidential requirement for all UK citizens in any circumstance.

Another perception is about American Justice or lack of it. Only 2% of American legal cases actually culminate in a trial, fair or otherwise. The ‘Defendant’, without any legal aid,  faces totally disproportionate sentences such as 70 years even as high as 140 years in one recent case, they are invariably refused bail because they are considered a flight risk and incarcerated alongside murderers rapists and seriously violent inmates within a dehumanising prison regime for lengthy periods of time often up to years and furthermore it is made painfully clear that defence witnesses and evidence will not be easily forthcoming… but…of course, if you plead guilty to a lesser charge, or give evidence against some other individual, then there will be no need for an expensive trial and the sentence will  be reduced to a more realistic 18 months  or so. All of this happens without any contestable evidence ever being presented. This is not an exaggeration. This is factual and, by no stretch of the imagination, is this the ‘presumption of innocence’ that is supposedly the very essence of justice both here and in America. This could easily be assuaged by a simple UK insistence of evidential disclosure and a refusal to extradite until the prosecution is literally trial ready.

No one objects to extradition when someone goes to America commits a terrible crime such as murder or rape and flees back to Britain. Where the problem arises is when the person being extradited has never set foot inside America and the ‘crime’ might not even be a crime in the UK. According to Justice Riddle who gave evidence to the Home Affairs Committee, those cases are extremely rare. Mr Riddle, who is the main judge for all extradition cases, has dealt with thousands of extradition cases yet has not had to deal with a single case with an extra territorial, cross border element.  Since this occurrence is so rare I cannot understand why an amendment to the Police and Justice Act which is already on the statute books called the forum amendment has not yet been put into force. This amendment gives the judge the power to decide which territory would be the most appropriate one for trial. As it stands at the moment I do not think a judge can properly decide this being based as it does at the moment, on merely allegations and not evidence, but if the UK were to be given the probable cause evidential standard, then perhaps the Judge could make such a viable decision. Personally I think the forum amendment should be modified to the effect that since cross border cases are in fact so rare, such cases should be dealt with in the way America does – if the crime was committed on British soil, the crime should be tried on British soil. Then in effect the UK would have a procedure equal to that applied in America and there could be no room for criticism or complaint and, importantly, the treaty need not be changed.

Having said that, there is one part of the treaty which I do take exception to. The treaty states that the allegations cited must be called ‘the facts of the case’ not ‘the allegations of the case’ a highly pejorative statement. Not that important I know but as I said before there should always be a presumption of innocence, not a presumption of guilt, not ‘allegations’ being referred to as ‘facts’.

There is one other minor area which could also be addressed. As it stands, the cost of all extradition cases US/UK and the European Arrest Warrant is borne by the UK taxpayer. If, as I think it should be,  the requesting country bears the cost of the many thousands of cases now heard, perhaps they would then think twice before extraditing someone for something as trivial as stealing bars of chocolate.

SOURCE: Natcompass.wordpress.com

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