The numbers behind the extradition controversy

U.K-U.S. extradition arrangements are fair, balanced, objective and safe

Abu Hamza's extradition to the US has caused controversy - should it?
Ted Bromund
On 15 October 2012 12:47

The decision of the European Court of Human Rights that Abu Hamza and four other terror suspects – including Babar Ahmed – can be extradited to the United States has raised, yet again, a hue and cry against the Extradition Treaty between the United States and the United Kingdom. Most British commentators believe that the Treaty is biased against Britain. We disagree, and have argued the case at length in a recent paper published by The Heritage Foundation.

One popular argument against the current Treaty – negotiated in 2003 – is that more suspects are extradited from Britain to the U.S. than the other way around. As the Economist noted recently, between 2004 and 2012, England and Wales extradited 83 people (while refusing nine requests, by its count), and the U.S. extradited 41 (with no refusals).

The implication, of course, is that the 2003 Treaty is biased against Britain. Focusing on extraditions is misleading: it is not the number of people extradited but the number of extradition requests that will reveal any supposed disproportion, for successful extraditions are a consequence of compliance with law and treaty requirements.

And it should be obvious that extradition requests will not match up neatly with population trends. Alleged criminals are not that obliging. For instance, between 2004 and 2008 Spain extradited 104 people to Britain while making only 27 such requests. This has not resulted in any national campaign by the Spanish authorities against this imbalance.

But if you want to talk about numbers, consider this: the ratio between U.S. and U.K. extradition requests is not going up. It is going down. Since 2003, U.S. requests have outnumbered British ones by over two to one (130 to 54). By comparison, between 1964 and 1994, the U.S. filed almost three times as many extradition requests (301) in Britain as Britain (108) did in the U.S.

Before 2003 there were periods when the ratio of U.S. requests was significantly higher than it is today. Between 1963 and 1973, as the Baker Review noted, the U.S. made 28 extradition requests compared to five from Britain. Between 1989 and 1994, the U.S. submitted approximately 122 requests compared to 31 made by the U.K., roughly a fourfold difference. So in the supposedly golden days before the 2003 Treaty, the U.S. made proportionately more requests than it does today.

The fact remains that it is harder to extradite from Britain than from the U.S. Since 2003, no U.S. court has rejected a British extradition request. By comparison, Britain courts have turned down at least nine U.S. requests. Let us repeat that: the U.S. has rejected no British extradition requests, but the U.K has rejected American ones.

As recently as March 2012, the U.K. Supreme Court rejected an application on human rights grounds, finding that the U.S. extradition request was for a civil commitment not a penal or criminal sanction.

Despite the events of 9/11, the ratio of U.S.-U.K extradition traffic is falling, and the number of extradition requests remains low. This dispels another accusation against both the 2003 Treaty and the 2003 Act on which it rests: that these were hurried efforts to extradite alleged terrorists to the U.S., and have since been abused to extradite for other offenses, particularly white collar crime.

Wrong. These changes were initiated solely by Britain to amend and update all its extradition arrangements with all countries for all offences, not just terrorism.

The Home Office does not keep information on nationality, so it is hard to tell whether more British subjects have been extradited after 2003 than before. But this is beside the point. Britain does not now, and it did not in the past, distinguish between its citizens and those of other countries when considering extradition requests. Neither does the U.S. This is the correct approach.

Under British domestic criminal justice proceedings, the courts do not make this distinction. It should not be applied to alleged criminal conduct carried out in or against a foreign country. What the critics are calling for is a radical break with British tradition: discrimination in favor of British subjects, and against foreigners, in British courts of law.

Critics often ask why the U.S. files more extradition requests in Britain than Britain does in the U.S. The answer is primarily that the U.S. is a much larger country than Britain, so it naturally prosecutes more cases, a tiny fraction of which will involve requests for extradition.

But broader differences between the U.S. and Britain may also matter. Twice as many Britons visit the U.S. annually as Americans visit Britain, and the British economy is substantially more globalized than the U.S.  In short, the British have more opportunities to enter U.S. jurisdiction than Americans do with British jurisdiction.

Nor is the process of extradition inhumane. Opponents of the 2003 Treaty – like the Economst, or convicted fraudulent banker David Bermingham, one of the NatWest Three – make much play with the fact that Babar Ahmed has been in jail fighting extradition to the U.S. since 2004. What is surprising is that the treaty opponents frequently couple criticism of this “eternity in a high-security prison without charge or trial” with the claim that – as Menzies Campbell put it last month – the Treaty puts “the threshold for resisting extradition on human rights [grounds] . . . at a level which effectively deprives the person of any human rights protections at all.”

Babar Ahmed has been in jail for eight years because he has been taking the fullest possible advantage of the legal protections afforded by the 2003 Extradition Act. It is completely contradictory to argue, on the one hand, that the U.S. can extradite British subjects without facing any legal obstacles, and then on the other to condemn the British system for providing so many protections that it takes eight years to complete a case.

As Lord Judge, the Lord Chief Justice, put it recently: “Any case that takes eight years through a whole series of judicial processes to come to a conclusion . . . is a source of real fury to me.” Just so.

It is completely right for those subject to extradition to receive legal protection, and while we believe that Britain should withdraw from the European Court of Human Rights, extradition should remain what it is under the 2003 Act: primarily a judicial procedure, with the protections afforded by that Act – which include an objective test that is absent in the procedures for extraditing persons to E.U. countries. But that is the point: those protections exist today.

If Babar Ahmed had been genuinely outraged about the amount of time he spent in a British jail, he could at any time have dropped his opposition to extradition and cut short his indefinite stay at Her Majesty’s pleasure.

Of course, that approach has risks: if convicted by a U.S. court of law, it might have landed him permanently in a U.S. jail. Given that alternative, he rationally took the approach of trying to fight extradition while his supporters sought to discredit the 2003 Treaty. This was his best chance of avoiding prosecution.

But it is shameful that his supporters have been able to use the protections afforded by the 2003 Act, and respected by the Treaty, as a way to undermine the legitimacy of both.

U.K-U.S. extradition arrangements are fair, balanced, objective and safe.

If you want extradition to protect the rights of the accused, it is sometimes going to take a long time. On occasion, it is going to produce results that are controversial, or that some people do not like: that is the nature of any legal process. And that is what extradition is in Britain and the U.S. today: a legal process.

Ted. R. Bromund is senior research fellow in The Margaret Thatcher Center for Freedom at the Heritage Foundation. Andrew Robert James Southam is a former extradition case officer in the International Criminal Policy Directorate of the U.K. Home Office

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