TODAY Ian Norris, the former chief executive of Morgan Crucible, will be in
the High Court, in the latest round of his long fight against extradition to
the United States to face charges of price-fixing.
He is not alone. There has been an endless procession of Britons this year
attempting to avoid the “perp walk” accompanied by American law enforcement
officers to a courthouse and jail in the US. Their predicament has united
business, human rights and legal communities in an unprecedented alliance to
express concern that Britain has become a soft touch for foreign governments
— often driven by their own political as well as legal agendas — who want to
extradite British nationals and others who live here.
There are obvious dangers of sentimentality and xenophobia floating around
this issue. So students are invited to take a cool view of the question Extradition
to foreign courts: are our laws fair? in this year’s Times Law Awards
competition sponsored by the leading set of chambers One Essex Court.
With a distinguished judging panel chaired by the Lord Chancellor and
including the Lord Chief Justice and the Editor of The Times, the
competition offers an unrivalled opportunity for students to present their
views at the highest level. It comes at a time, moreover, when efforts are
being made in the House of Lords to win changes to the extradition system.
The case that more than anything triggered current controversy was the stand
by the NatWest Three to avoid extradition to Texas to face charges of fraud.
As a by-product of the collapse of Enron it was a classic instance of the
Americans and the British seeing the issue from entirely different
perspectives. For the United States, it was a matter of bringing to book a
bunch of “bad guys” for being involved in a monumental American-based scam.
On this side of the Atlantic, critics argued that our laws made it too easy
for UK residents to be extradited to face charges for actions that had
allegedly taken place in the UK itself.
But the NatWest Three case is the tip of the iceberg. Indeed, such people were
probably far from the minds of British legislators when they passed the
Extradition Act 2003 that sets the scene for the current regime.
The trigger was 9/11. This galvanised international co-operation and
crystallised the need — long felt in some quarters — to pull down the
seemingly endless procedural obstacles to extradition to create a fast and
effective way of dealing with global criminality and terrorism. The 2003 Act
therefore brought in a fast-track European arrest warrant for 32 offences.
Crucially UK citizens can be extradited now even if their actions do not
constitute an offence in Britain. The basic premise is that the justice
system of each member state is fair because each subscribes to the European
Convention on Human Rights. But critics argue that this assumption is deeply
flawed, saying that standards of justice vary hugely, with some countries
paying lip service to the ECHR.
So in its zeal to leave no hiding place for frontier-skipping malefactors, has
the British Government gone too far? In the interests of pragmatism, has
natural justice been sidelined? Defenders of the current laws argue that
before, suspect fugitives were able constantly to evade foreign courts
(often on technicalities). This denied justice to victims of crimes
committed overseas and it was only right for the Government to seal the
loopholes and speed up the extradition process.
But what is meant by “fair”? Do current legislation and procedures measure up?
And what,if any, reforms are needed? Arguably the most serious defect in the
arrangements, critics say, is that British residents have lost the right to
have a prima facie case established against them by foreign accusers. In
many cases, as long as sufficient evidence is provided to justify an arrest
warrant, that is enough for removal. Then there is the linked issue of
double standards. Does it matter, for example, that the US does not have to
show a prima facie case while the UK, by contrast, has to show “probable
cause” when seeking extradition from the US? How important is reciprocity in
judging fairness?
And what of the nature of the crime? As matters stand in Britain, an
extraditable offence is one carrying a sentence of one year or more. But
such a broad principle is riddled with opportunities for contrary
interpretations. First, there is the issue of the “equivalence” of crime.
Legal codes vary from one country to the next and it is not always easy to
equate one crime with another. As the defence for Ian Norris points out, the
offence of which their client is accused (price-fixing) was not a specific
statutory offence in the UK at the time when it allegedly took place. This
resulted in the attempt by US authorities to make it fit another category
entirely (conspiracy to defraud). Fair or unfair?
Then there is the penal dimension. Is it relevant to issues of “fairness’’
that a crime in Britain carrying a penalty of 12 months carries a 20-year
sentence in the country to which the accused person is being extradited? As
Ben Strong, a barrister at One Essex Court, points out, extradition is
necessary so that criminals who commit serious crimes abroad can be brought
to book. But the process for sending a suspect overseas must be fair to the
guilty and the wrongly accused alike. The question is whether the ease with
which extradition can occur overrides basic ideas of fairness and justice.
