Roger Gale: Special relationship or coercion? America’s approach to extradition is not the conduct of an ally.

5 Feb

Sir Roger Gale is MP for North Thanet.

A great deal has changed in the US since the election of President Biden. After just a couple of weeks in office he has made sweeping changes to both US domestic and foreign policy, from suspending the construction of the US-Mexico border wall to rejoining the Paris Climate Agreement. However, one thing that has not yet changed is the United States’ coercive use of extradition arrangements.

This became clear just two weeks ago when Biden reaffirmed the Trump administration’s refusal to extradite Anne Sacoolas to face trial for the killing of Harry Dunn. When a spokesperson for the Foreign Office said the refusal “amounts to a denial of justice”, they surely echoed the feelings of Britons up and down the country.

Unfortunately, this is part of a long pattern of the US exploiting the 2003 UK-US Extradition Treaty to exert extraterritorial influence, often in situations related to commercial disputes rather than the terrorism for which it was intended.

On too many occasions the US has sought to extradite British citizens for alleged crimes which have taken place entirely on UK soil. According to figures from June 2020, since 2007 the US has extradited 177 people from the UK, of which at least 99 were accused of non-violent crimes.

The majority of these have been white collar business people who pose no physical threat to UK or US citizens, and yet the US authorities have been allowed to exploit the law to suit their own purpose. In return the American authorities have handed over just 67 citizens to the UK to face trial in Britain.

This coercive approach to extradition, from a country that is one of our closest allies, illustrates why we must re-examine the asymmetry in the 2003 UK-US Extradition Treaty, made law in the Extradition Act 2003, as a matter of urgency.

To extradite from the US to the UK under the 2003 Treaty the UK has to produce prima facie evidence of a crime showing “probable cause”, but to extradite from the UK to the US only requires there to be “reasonable suspicion” and an indictment from a Grand Jury that meets in secret with the defendant not present. Similarly, the legal frameworks are worded to state that the US “may” extradite when requested, while the UK “must” extradite.

This means that, in reality, a UK defendant has to go to court to prove why they should not be extradited which is a reversal of the fundamental principle that a man or woman is innocent until proven guilty. This matters because, once extradited, it is significantly harder to mount a defence within a US justice system, under which an improbable 97 per cent of indictments end in conviction, often via the also coercive “plea bargain” process.

There have been academic arguments over the impact of the differences between the impact in the UK and the US of the 2003 Treaty and whether they represent an imbalance. This debate misses the point. What matters is how the force of law is applied in practice and whether it is being used appropriately and for the reason for which it was originally intended.

The latest pressing example of the problems with the use of the current system is the case of Dr Mike Lynch, whose extradition hearing is taking place next week. Lynch was CEO of Autonomy, a successful British software company which was acquired by the US company HP for $11.7 billion in 2011. After his departure as CEO of Autonomy in 2012, HP wrote down $8.8 billion of Autonomy’s value later that year, and the US is now seeking to extradite Lynch over allegations of fraud associated with the purchase.

Lynch is a British citizen who has lived in the UK throughout his whole life. He ran a UK company under UK law that was listed on the London Stock Exchange. The alleged conduct took place in the UK, and evidence and witnesses relating to the events are clearly available in the UK, as demonstrated by the long-running civil case that was tried in the High Court in 2019-20.

Whatever the rights and wrongs of that case, Lynch demonstrably poses no physical threat to the people of Britain or America. Extraditing him to the US, where his ability to defend himself would be severely curtailed, would run contrary to the Forum Bar protection which prevents extradition if a substantial amount of the alleged activity took place in the UK. It would also make a nonsense of the British judicial system.

The UK does not use its extradition arrangements to assert extraterritorial reach. Not with the US, not with any country. It is unimaginable that the UK would pursue an American person living in the US for actions that occurred in the US under US laws and US regulations. We, rightly, only pursue people, such as Sacoolas, who have fled the UK after being suspected of committing a crime here and not those who have acted entirely on US soil.

The Forum Bar was added to the Extradition Act in 2013 to protect British citizens against an overweening American Department of Justice and it gives UK courts the power to refuse extraditions if the UK is the more appropriate place for the case to be heard. Lynch’s case will test the extent to which the Forum Bar truly protects British citizens.

As we look towards a more global Britain and an evolving trading relationship with the US we must reflect on whether we can acceptably continue to operate under these conditions. How many more Britons who have never even set foot in the US will we allow to be exposed to the whims of the American court system?

The rejection of the extradition request against Lynch is a necessary and vital step towards re-establishing balance in what is at present an unjust agreement. Ultimately, treaty reform must be a long-term consideration if this Government is finally to rectify the issue of UK-US extradition and to honour its duty to protect British citizens.