Extradition: CPS guidelines & the paradoxical forum bar

One of the most reported extradition stories of the past month was that of Gary McKinnon. But what do we really know about extradition?

Gary McKinnon
Ted Bromund
On 15 November 2012 12:45

In late October, the Crown Prosecution Service, in a step that attracted little public attention, issued new, enforceable guidelines on how to prosecute alleged extradition crimes. The guidelines are interesting partly because they reinforce both modern extradition practice and longstanding tradition.

The CPS has properly reaffirmed the principle that alleged criminal conduct should be tried in the jurisdiction where most of the criminality or harm occurs. In other words, extradition should remain the general preference with trusted partners such as the U.S., Canada, and Australia, when supported by arrangements which provide for evidence standards, an objective test, and safeguards, as is the case with the U.K.-U.S. 2003 Extradition Treaty.

And that is the second reason why the CPS’s guidelines are so interesting. One of the most reported extradition stories of the past month was Home Secretary Theresa May’s decision to refuse extradition for Gary McKinnon, a decision about which the U.S. Department of Justice is reported to be unhappy.  

Along with this decision, the Home Secretary announced other changes to the way Britain handles extradition, including the creation of a forum bar. Those changes drew widespread applause. But the CPS’s guidelines suggest that May’s announcement is far less significant than it seems. To understand why, we need to go back to McKinnon.

The U.S. had fair grounds for expecting that May would approve McKinnon’s extradition. McKinnon was diagnosed with Aspergers’ Syndrome after three courts had supported the U.S. extradition request. When the High Court considered the medical evidence in 2009, it rejected the argument that extradition would breach McKinnon’s human rights.

It is unusual, if not unprecedented, for a British Home Secretary to disagree with the High Court about an extradition case. It is hard to understand how the medical advice on which she based her decision in 2012 could have been so different from advice the High Court took in 2009, especially as the Home Secretary reportedly told the U.S. earlier this year that there were no legal or medical grounds for rejecting McKinnon’s extradition.

Nevertheless, if the latest medical evidence from the experts commissioned by the Home Office was compelling, she could not easily reject it. And in the end, under the Extradition Act of 2003, the decision was hers to take. 

She did not refuse extradition because of any concerns about the U.S. criminal justice system, as the Economist mischievously alleged. She refused on the grounds that, if extradited, McKinnon would likely commit serious self-harm or suicide. The U.S. remains a trusted extradition partner with a free and fair legal system as strong as Britain’s.

While the Home Secretary attempted to position McKinnon’s case as unique, she set a precedent of rejecting extradition on mental health grounds, even after the Courts ruled in favour. That is undesirable, because it means that every future extradition case risks being accompanied by claims of mental illness, and becoming politicized, just as the McKinnon case was.

Wisely, the Home Secretary pre-empted this endless process by announcing that, in future, a British court will take the final decision on whether health and other relevant  considerations allow extradition outside the EU (e.g. to Australia and Canada, as well as the U.S.). That means that no future Home Secretary will be placed in the invidious position of having to disagree with a British court. It also means that misleading public campaigns, like the one for McKinnon, will be starved of oxygen by an extradition process that proceeds completely through the courts.

The Home Secretary’s decision to implement a forum bar was equally popular, though it appeared to play to the public gallery. As Sir Scott Baker has noted in his report on the U.K.’s extradition arrangements, a forum bar is unnecessary. There is no evidence that it would have changed the outcome of any case to date. It will only introduce more delays and provide more grounds for appeals.

The Director of Public Prosecutions is free, and has always been free, to prosecute locally - and independent prosecutors, not judges, are the people best equipped to make these decisions. After all, prosecutors make those decisions every day: every criminal case requires them to consider the public interest and the wider interests of justice in deciding what charges to press, and in what jurisdiction the charges should be brought.

The critics of the 2003 Extradition Treaty have long demanded a forum bar. Their arguments are numerous, varied, and loudly voiced. They are also mistaken.

The 2003 Treaty is not biased against Britain, nor was it designed to deal only with terrorists, nor was it imposed on a reluctant Britain by the United States. The 2003 Treaty requires comparable evidentiary standards for both nations, was intended to cover all kinds of crime, and was the result of a British reform process that began long before 9/11.

Extradition arrangements with the U.S. are based on sensible and modern practices. These provide for protections and an objective standard that is absent from European Union extradition processes. The U.K.-U.S treaty sets a safe and reliable standard for extraditions: it is the EU system that is unsafe and unreliable.

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