Answers to questions on the Tappin extradition case

Claims made about the unfairness of the 2003 U.S.-U.K. Extradition Treaty are false and Ministers in Her Majesty’s Government should have the courage to say so. These may not popular views, but they are correct

All eyes have been on Christopher Tappin
Ted Bromund
On 22 March 2012 10:24

A few weeks ago, I wrote an article on extradition from the United Kingdom to the U.S., inspired by the furor over the case of Christopher Tappin. The gist of the article was that the U.K. wanted the 2003 U.S.-U.K. Extradition Treaty and the accompanying and broader Extradition Act of 2003, that the claims made about the unfairness of the Treaty are false, and that Ministers in Her Majesty’s Government should have the courage to say so. These are not popular views, in large part because they are rarely if ever expressed in Britain.

So, in the spirit of encouraging debate, I’ll return to the question, and present some new documents that critics of the Tappin case should read.

One popular criticism of extraditions from Britain to the U.S. is that British subjects should be tried in Britain. That is certainly my preference as well: it’s a sound principle of justice that citizens of a country should be tried there if at all possible. And the Treaty respects this principle: to quote its Article 5, “Extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested.” In other words, the decision always rests with British authorities: when they receive an extradition request from the United States, they are completely within their rights to decide whether they wish to charge the individual for that crime before a British court, and conduct the trial in Britain. And no matter what the verdict of that trial, the U.S. has no legal basis to make an extradition claim once the trial is over.

But there are good reasons why not all cases can be tried before British courts. Suppose, for example, that an American commits a murder in London. That case could not be tried before an American court, because the U.S. does not have jurisdiction over London. The case would have to come before a British court, and the American would have to be extradited to Britain to face trial. The reverse is true, if a Briton commits a crime in America, or under American jurisdiction.

The idea that Britons, alone in the world, should have the right to be tried exclusively in Britain, while Britain should have the right to extradite foreigners to stand trial in the United Kingdom, is obviously unfair and will never be accepted by any other nation. If British authorities wanted to charge Mr. Tappin in this case, they were free to do so: the fact that they did not indicates that they did not believe that Britain had jurisdiction to make the charge.

Another criticism is that the evidentiary basis of the Treaty is unfair, and biased against Britain. It is true that the standards are worded differently, but that reflects the fact that the U.S. and Britain have different legal systems. Requests submitted by the U.S. to Britain must satisfy the “reasonable suspicion” test, whereas requests submitted by Britain to the U.S. must meet the “probable cause” test. I encourage anyone who believes there is a substantive difference between these tests to read Sir Scott Baker’s authoritative 2011 report on the 2003 Treaty.

Sir Scott, a learned and distinguished judge, carefully reviews both tests, and concludes “there is no significant difference between the probable cause test and the reasonable suspicion test. . . . We believe that any difference between the two tests is semantic rather than substantive, and the challenge to those who suggest that the tests are in some way different is to articulate precisely what the difference is.”

That is exactly right. It is simply untrue that the 2003 Treaty allows the U.S. to haul Britons off to trial in America without presenting any evidence, or evidence that does not meet British standards. Anyone who claims that it does should, first, go and convince Sir Scott that they know more about the law than he does.

Moving from generals to particulars, other critics claim that, since Mr. Tappin did not visit the United States, he cannot have committed a crime under its jurisdiction. The Treaty addresses this point too, in Article 2:

If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances. If the laws in the Requested State do not provide for the punishment of such conduct committed outside of its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met.

In other words, the drafters of the Treaty were well aware that an individual can commit a crime that falls under British (or American) jurisdiction without being physically on the territory of Britain (or the U.S.). If the U.S. provides evidence that meets the reasonable suspicion test, and if the crime of which Mr. Tappin is accused would be punishable were the situation reversed – in other words, if an American were to commit a similar offense against British law – then the extradition can proceed.  If not, Britain can, entirely, at its discretion, reject or uphold the extradition request. The Treaty places the U.S. and Britain on a completely equal basis.

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