Making a stand on extradition

Mark Spragg, consultant solicitor, Keystone Law

The Home Secretary has a chance to stand up to the US in the Gary McKinnon case. Will she be brave?


Mark Spragg

Mark Spragg

The US President expressed himself “chuffed to bits” to see our Prime Minister earlier this month. The pair spoke about the ’special relationship’, which has now apparently become an ’indispensable relationship’. Sadly, the discussions are unlikely to lead to any significant change in the extradition arrangements between the two countries.

The Extradition Act 2003 has been used to extradite UK citizens to the US to face trials there, many of which could have been held in the UK.

The act was supposed to streamline the extradition process. It removed some protections for UK ­citizens, and has not speeded things up, as is clear from alleged hacker Gary McKinnon’s case. His extradition was requested 10 years ago and he is still here, although he has pretty much exhausted the legal process.

Briefly, the act removed the obligation on a requesting state to show ­evidence of commission of a crime. It also took away the discretion that the Home Secretary had to refuse extradition in individual cases.

Extradition will be a breach of ­Article 8 of the European Convention on Human Rights (ECHR) – the right to respect for private and family life. When the 2003 act was debated, the Home Office minister reassured ­Parliament that extradition could not take place when it would be contrary to “solid safeguards” under the ECHR. Such a breach is envisaged by Article 8 in cases where “…it is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country […] or for the protection of the rights and freedoms of others”.

Looking at some recent examples I wonder if the ’NatWest Three’ – Christopher Tappin and Richard O’Dwyer – fall under “national security” or “public safety”. It is much more likely that they fall under “the economic well-being of the country”, as Cameron cosies up to Barak Obama. Of course, Article 8 applies when stopping the UK from extraditing an alleged terrorist to Jordan.

After the extradition of the NatWest Three the opposition parties persuaded the then Labour government that there should be statutory recognition that an English court should determine whether a trial should take place in the UK or the ­requesting state. The provision, ­contained in the Police and Justice Act 2006, can be enacted only after a Parliamentary vote, so it is still in limbo. An English court has no authority to determine the appropriate place for trial and, instead, every request for extradition is accepted, the boxes are ticked and a plane takes off.

This Government has forgotten the position it held while in opposition. The danger of hiding behind Lord Justice Scott Baker’s 2011 report and its conclusion that all is well with extradition arrangements produces the absurd results we see. As each party comes to power it is subsumed by
the US powerhouse and rendered ­incapable of independent thought.

The indispensable relationship has condemned Tappin to custody pending trial (or plea bargain) and will ensure that many others follow him. Home Secretary Theresa May now has an opportunity to decide that McKinnon should remain in the UK. Will she be brave enough to say so?


Leave a Reply