Americans are well aware of the horrid faults of their legal system, but they
still like to think that it is the best in the world. Its abuses include
plea bargaining, class actions, Hollywood actions, Guantanamo Bay, racism,
elected district attorneys looking for votes, hick justice in states such as
Arkansas, federal patronage of prosecutors and judges, the politicisation of
the Supreme Court, the squalor and brutality of big federal and state
prisons and the aggressive ruthlessness of tax and regulatory authorities.
In the United States, you can be ruined by the cost of doctors if you get
sick and by the cost of lawyers if you get into court.
There are, of course, honourable lawyers and distinguished judges, some of
whom are among the best in the world. It is the downside of US law that
terrifies Americans and should terrify foreign businessmen.
A British businessman should never become a nonexecutive director of an
American company, since the legal fees, in the event of trouble, can be a
multiple of the board fees. If threatened with a legal action in the US, one
should hire a lawyer who frightens the other side and settle as quickly as
possible. If necessary, go to live in a country, such as Russia, which has
not signed an extradition treaty with the United States; President Putin
will protect you, but you can be sure that the British Government will not.
Before 9/11 Britain had a reasonably fair system of extradition with the
United States, which, among other provisions, required any country seeking
extradition from Britain to produce prima facie evidence that an offence had
indeed been committed. This extradition system exasperated US prosecutors
because it was subject to long legal delays. Even British judges shared this
impatience; good lawyers could defer extradition for years.
After 9/11 both countries wanted rapid extradition of terrorists. The British
had been totally unsuccessful in securing extradition of IRA terrorists from
the US with the American argument that Irish terrorism was a political act.
A treaty was then negotiated that made some modifications of the US rules
but eliminated the UK requirement that a prima facie case for extradition
must be shown. Britain now has similar fast-track arrangements with a number
of Commonwealth countries; there is also a fast-track extradition in the
European Union, but that is subject to European law.
The treaty with the United States was signed in 2003 and came into effect in
2004. It is an unequal treaty in that the required proof of an offence is
quite high in extradition from the United States but virtually nonexistent
in the British case. It is often difficult for defendants to organise their
defence effectively after they have been extradited. That puts them under
pressure to enter the US plea-bargaining negotiations on unequal terms.
The United States Justice Department has been anxious to extend American
regulation of business to the rest of the world, particularly in the areas
of price fixing and of fraud. The NatWest case was a fraud case that arose
out of Enron. If any offence was committed in that case, it was presumably a
fraud against the NatWest bank, which the British authorities decided not to
prosecute. The US authorities decided to prosecute and were able to secure
the extradition of the “NatWest Three”.
There are a number of other outstanding cases. The case of Ian Norris, the
former chief executive of Morgan Crucible, involves a price-fixing charge,
as would the possible prosecution of four senior executives of British
Airways. There is another price-fixing case against Sir Anthony Tennant, the
former chairman of Christie’s. There is a tax case and a computer hacking
case also outstanding.
In all these cases, the British authorities have decided not to prosecute and
the potential penalties in the US are higher than they would be here. About
ten British citizens are currently in jeopardy, but there are more to come.
In several of these cases plea bargaining is an important factor. In the
Christie’s case, Christopher Davidge, the retired chief executive of
Christie’s auction house, was given immunity by the US Department of Justice
and gave evidence against his alleged co-conspirators in Sotheby’s. In the
British Airways price-fixing case, Virgin seems to have sought immunity. It
has given information to the Office of Fair Trading, which has never
prosecuted an individual for price fixing; presumably that evidence has been
sent to the US Department of Justice, which is investigating airline price
fixing.
The risk of a miscarriage of justice is inherent in the US plea-bargaining
system. Two competitors, such as Sotheby’s and Christie’s, or British
Airways and Virgin, may confer together to fix prices; their action might,
at the time, have been legal in Britain, but might have been an offence in
the US. Say one of the competitors senses that this is a risky business and
gets to the authorities first. That competitor may be awarded with immunity
or be allowed to plead guilty to a lesser charge. The other competitor will
be seriously damaged and individuals may go to prison. The informant has two
strong motives to go beyond the truth – one is to get immunity and the other
is to damage his competitor. The evidence of a co-conspirator in a business
case may be perfectly truthful, but it may be self-interested. The
co-conspirator does not come to court with clean hands.
Yet, in these extradition cases, the co-conspirator’s evidence will never even
be seen by a British court; under the 2003 treaty, it is irrelevant. The US
authorities do not have to produce a prima facie case; they merely have to
show that they are bringing charges. Even if the US authorities were as wise
as Solomon, it would be against natural justice to extradite British
citizens with no opportunity to learn the case against them and no
opportunity to reply to it.
The 2003 treaty was negotiated in the post9/11 anxiety about terrorists; it is
not being applied to terrorists, but to ordinary businessmen for regulatory
offences, which would not be criminal in Britain. It is all very
embarrassing. We do not want to tell the Americans that the defects of their
justice system have become notorious. Yet the 2003 treaty invades human
rights and, in European terms, may well be illegal as well as unjust.
The treaty was supposed to be for terrorists not executives, and that is where the fault lies. Rightlywe should shoulder the blame for the dispartity but america should use it for its intended use, not punish men who have never commited an offense under british law. How can a deal be done with british companies in britain be an offense in america?
maximus, aberdeen, UK
In America a serial rapist got 150 years with parole after 135 years
.
In the UK one has just got life, with parole after 5 years.
5 YEARS!
I know which justice I prefer.
Peggy W, Blyth, England
I suspect all legal systems have their own inherent unfairnesses or problems however Blair's sell out over extradition just to please his master in the white house was unacceptable. Most people inBritain would like to see more US style draconian laws for fraud in Britain as happened under the Enron scandal as well as accountability when manslaughter occurs. However, this is a matter for the British government, not the US and to allow its citizens to be extradited on currently non offences as far as the UK is concerned is wrong. The US always practices the 'do as I say rather than as I do' approach in many areas including trade, arms sales and now the unbalanced extradition laws. Luckily, even though Blair is a poodle when it comes to these issues, at least the EU stands up to US and threatens like for like retribution when the US tries to pull a fast one to benefit itself. No one wants a trade war but a level playing field is essential for fair international trade.
Mike, Alicante, Spain
There are still some decent people in America. They have a hard time being heaard. They are not represented by their government. And there is little hope of help for them within the corrupted sdtructures of the nation today. The only thing they can really hope for is that some others (Why not Europe?!) will start standing up to the bullies running things in America. Our systgem of injustice shouldn't be allowed to leave our borders.
Guantanamo, Abu Ghraib, and such evils are inte4rnationaal concerns. Our misbehavior in the UN is, too.
Buck Burris, Peoria, IL
To Claudia (Atlanta, US)
"America is bad compared to what?" you ask.
"To the image it has of itself"
That's what.
No other country presumes to be the best, the Number One, the smartest and the strongest, and the one to shove "democracy" down the throat of other countries by hook or by crook. Of course the people who think they are the best usually don't know what happens anywhere else. They can't even find a country on the map. Did I say country? make that another state...
Mrs. J, Carlsbad, CA
Recently Antigua and Barbuda took the US to the WTO over its refusal to allow online betting by US customers with licensed operators in their territories. The US allows such betting within the US (negating the 'moral issue' defence) and the WTO found against the US for this reason, a decision upheld on appeal. Its action having been ruled illegal the US now says that it will take the unprecendented legal step of changing the international commitments it made under the 1994 GATS treaty regulating the trades and services amongst the 150 WTO members. It is refusing to pay compensation because internet betting was never mentioned in the initial negotiations (it is also not mentioned in the Wire Act that the US uses to prosecute operators). The US looks to the WTO for protection on such issues as cheap imports from China. The clear perception of the US is that it changes the rules to suit itself and those of us who still support that country increasingly do so through gritted teeth
David, Oxford,
Is all this criticism of the USA (whether justified or not) just the opening shots in the war that is to come? USA versus the world! An uncontrolled superpower blundering from one geopolitical faux pas to the next? Pity really, the majority of Americans I have met have been friendly and hard working. Nice people who just want to get on and enjoy life much like the rest of us.
Mike, Epworth, UK
Once again it is the "terrorism" smokescreen, that is used to bypass the norms of natural justice. Too many commentators are now waking up to the injustices of the terrorism related laws; I wonder what would have happened if these same people had been more sceptical whenever, messrs Blair and Bush applied the "terrorist" label to those from muslim backgrounds rather than waited for injustice to reach the City?
Hussain, London,
The UK's record on prosecutions brought by the Serious Fraud Office hasn't been too successful, wasn't there a big case a few years ago that just collapsed as the prosecutors had trouble explaining it to the jury ?
Maybe this is something similar so the SFO is happy to pass the buck and let Uncle Sam do it for them.
The existing law was signed by both governments so if it's inequitable - fix it !
Stan(expat), Texas, USA
I agree with others - if extradition arrangements are unfair that is a criticism of the British Govt not the US.
However, as a lawyer (qualified in the UK and Australia) of 25 years standing I can say your description of the US legal system as inherently unfair is wrong. Europe's pathological hatred of the US makes any rational discussion difficult, but, for a start, most of the failings in the US you mention can also be found in the UK.
We have plea bargaining in the UK but it's secret, a critical failing in terms of justice. And Hick justice? Visit a court in some of our county towns. Racism? Please. And patronage? The old boy network in the UK legal system is notorious.
True the US elects its officials - but it is a democracy and the election of public officials is part of the concept of accountability (unknown in the UK). Whereas the UK doesn't elect its upper house or its head of state and has no constitutional guarantees of freedom. You are on very weak ground.
Hugh, London,
Oh, my word. I know for an absolute fact that the justice system here vacuums. It is DISGUSTING to see plea agreements being struck over drunk driving, rape, homicide and child molestation. I happen to know of a near-molestation case of a teenager, and guess what? The fellow is not on any sex offender list and gets away with nothing but probation. Did the story make the papers? Was it in the local police blotter? No, because his relatives are at the police department. And I live in no hick town, thank you.
I think we did better in the days where the posse came and got you when you violated the law. At least the posse got around to it within a year... I'd imagine it was just as accurate in administering justice as our system today. And way cheaper!!
But it's OUR problem, and you Britons have yours. I know that I vote my conscience every election time, but often there isn't enough information to make a good decision or worse, judges are appointed and we get no say.
Mrs. C., Kansas City, MO, USA
Forgive me Claudia but I agree with your opinion that Europe and America are different cultures indeed, but not with the way you're putting it. What makes the European continent less multicultural than America? Not to mention the sparsity of population, excuse me, but what? There are less populated areas here too, Sweden being an example. I apologize for the off topic out burst.
Leaving all issues of what's considered right and wrong on the various sides of the Atlantic aside, the problem Britain seems to be facing here is certainly the cause of its own work in the negotiation chambers. I hope the next administration sees to fix this as onesided deals are never a good thing.
Kristofer Dingwell, Göteborg, Sweden
Sirs,
You and the rest of the bleeding hearts in the Europe are always up for a dig a the Yanks.
It's true that the extradition agreement is a bit one sided, however the British Government sanctioned the damned thing, lock stock and barrel. Crying foul after all this time is fatuous.
As for the rest of the article about the failings of our Justice system, well, you don't live here so get over it and yourselves. I have lived here in America for many years and don't have to carry ID, don't have to register or de-register with Mr Plod when I move, as I did in Holland and Germany, and have the right to protect hearth and home with reasonable alacrity without running the risk of imprisonment as is the case in England. America is not perfect, but I wouldn't live anywhere else.
Minuteman, Carlisle Village, America/Ohio
Please !!!! ENOUGH ANTI-US rhetoric.
The reason the extradition treaty is unbalanced is b/c there is an appalling LACK OF CIVIL RIGHTS protections in the UK for its citizens that allows for the extradition in question. It's not an equalized treaty b/c after securing our independance from England, we established a constitution with a BILL OF RIGHTS which offers significant protection to persons in the US. Your anger is misplaced - protect your citizens better and the extradition treaty issue goes away.
In a country (UK) in which the authorities can enter your home without a warrant for over 125 different specious reasons (including the search for land mines in your garden!), in which the Chancellor can decree that taxes will increase tonight without any form of redress or even debate, in which CCTV invades and dominates every single aspect of your lives, it's humourous to read your angst against a society that offers far more protection to its citizens.
Amused American, London aka CCTV Central,
The US justice system is designed for prosecution and conviction. Every time its shortcomings are publicized the government launches another fear campaign on the public to get people in line. One of the reasons for this pro conviction mentality is that both political parties groom their future candidates for office by having them serve as prosecutors. (The recent Justice Department attorney firings highlighted this.) Also, the vast majority of judges are former prosecutors as are many of those selected by the two political parties to run for office. Another problem for the accused is that many crimes in the US have been made federal offenses allowing key constitutional protections guaranteed in state courts to be eliminated.
Patrick, Macon, US
The benefits of the Union, outraged ones, and I'm not talking about the Treaty between Scotland and England of 1707.
The USA negotiated a Treaty that the UK freely entered into. The terms of that Treaty reflect the relationship between the parties; the USA whistles and the UK comes running. That 'special' relationship isn't going to change under Broon either; unwritten and unrepresentative this 'Union' will remain.
Stop whining chaps and mind your manners when in the presence of your masters, not the Scottish Mafia you continually deride in London, rather the Neocons in Washington.
That's the realpolitik out of the way, now let's look at things legal. Human rights have readily been put to one side in the UK; to criticise the USA for the falings of its justice system reminds this reader of pots calling kettles black.
Time for an element of your readership to realise that Westminster has no great influence on anyone, anywhere, anymore.
The Empire's gone, the UK too.
Dave, Dundee, Scotland
Might it be reasonable to ask why price fixing was legal in the UK? What else can directors get away with here that they can't elsewhere?
colin, Shrewsbury UK, uk
In Chicago a federal trial will decide whether Conrad Black is to serve over 100 years in prison. Black is British. His 3 co-defendants are Canadian and British. The federal prosecution granted a plea bargain to the main witness that results, when this trial concludes, in his imprisonment for 6 months at golf therapy in Canada. I knew golf could be punishing. Most of the other witnesses have been granted immunity from prosecution. All have an ax to grind. The case is a business dispute that one side managed to interest the prosecutors in and, once interested, have brought to bear the threat of asset forfeiture, unlimited jail time, massive legal fees, etc. One observer told me that there are really no criminal trials in the vast federal courts in Chicago except the Black case. Could it be that the vast powers of the government make pleas the only alternative to 100 years in prison for something that may not be a crime? Does US jurisdiction now include Britain and Canada?
Warren Oppitz, Eureka, USA CA
Mr Rees-Mogg has obviously forgotten innocent victims of British justice, such as Derek Bentley, Guilford Four &
Birmingham Six.
Then he's forgotten unpunished criminals like the West Midlands Serious Crime squad. And who knows what really happened to Sir James Anderton, during the shoot-to-kill investigations ?
English "justice" contains any number of miscarriages of justuce. The only edge ENglish "justice" seems to have is that it does not include that crime against humanity - The Death Penalty.
Dave Cawdell, phoenix, Arizona, USA
If the treaty is not fair, CHANGE IT.
Or maybe there are some activities that are viewed as more criminal in the UK than in the US. Maybe the UK could ask for extradition of Board members of gun manufacturers whose products wind up killing British citizens in Britain. Certainly if their company made deadly pahrmaceuticals or foodstuffs, you would.
Look carefully at the treaty.
Bill, Hampden Sydney, Virginia
No. I don’t know anything about the extradition treaty except such as you have described the absence of a prima facie requirement, but your article is inadequate, shall we say unjust, because you haven’t said why Britain, or is it England, should have agreed to such an apparently one-sided arrangement. There must be a reason more than just post 9/11 haste, but is it too ‘sensitive’ for broadcast in this article? It would seem to be, and therefore qualifying British justice, which does have it’s own defects. I could tell you some things about Sotheby’s and Christie’s which show that they don’t mind taking unfair advantage when in a superior position. Indeed I think one could reasonably describe that attitude as a British trait.
Henry Percy, London, UK
The problem in the US is politicians from the president down, with few exceptions, are lawyers. Therefore nothing will be done to fix the system. The whole country is run by lawyers. My advise to non-US citizens is stay away from the US legal system including anyone getting involved in US business. Also keep US lawyers out of your country at all costs. I go as far as suggesting don't come as a tourist in case anything should happen.
Robert Batt, Schuylkill Haven, Pennsylvania, USA
Note to Billy Two-Names: If you can't do the time, don't do the crime.
Peter Taber, Vero Beach, FL
A good few of these criticisms illustrate two things -- the Mr. Rees-Mogg is a solid member of the Establishment, and favours those failings of the UK justice system that protect the establishment.
He describes as abuses:
Plea bargaining -- by which he means the mechanism by which white collar crime convictions are secured in the US while in the UK every major white collar case has failed and prosecutors never bothered with the Equitable.
Class actions -- by which victims of price fixing and systematic ripoffs such as banks secure at least a modicum of justice. Have you ever wondered why the banks feel free to cheat you! The UK needs US style class actions.
Elected district attorneys looking for votes -- maybe, but Eliot Spitzer was elected and had state jurisdiction over what the feds would not chase
Federal patronage of prosecutors and judges, huh!
Aggressive ruthlessness of tax and regulatory authorities -- would be nice to see it in the UK, and insider trading heaven
MacK, London/Washington/Tokyo,
I have read the article and I am left with one nagging queation, WHY ARE YOU DUMPING ON THE AMERICAN SYSTEM OF JUSTICE? The laws were changed by the Blair government! The U.S. is simply following the new rules. Since GB came to power it has been easy to stick it to America, God knows the man can't walk and chew gum at the same time. But no ones' system of justice is perfect...now lets all take a deep breath...peace to all.
Mark Willmott, Kitchener, Ontario, Canada
Claudia - the fact that Britain signed up to a one-sided treaty that forces it to send to you people that in the UK would never see a court is quite clearly something that the British Government needs to address. The fact that America keeps Guantanamo and refuses to extradite people to the UK is one that America needs to explain - or not, but then cannot expect infinite goodwill.
d'argent, London,
The US and many democratic nations’ justice system is attorney/lawyer driven and delivery of justice is too slow to act as a deterrent. If one employs the best attorney, one can get away with most of the crimes! This applies to the US more than many other nations.
The extradition issue is highly politicalzed and national interest is the most important consideration. Here most of the nations are causing the unforgivable damages.
A criminal wanted in one nation should not be given asylum or shelter in another nation. From this angle, extradition of treaties of the US, UK and many nations are highly flawed and they tend to protect their citizens, even if they have committed major crimes in other nations. For better enforcement of laws, this ought to be uniform and fair.
Regards,
Krishna R. Kumar, Udupi, India
Rees-Moog gives a good summary of some of the main flaws of the US system in his first paragraph, even if he is rather generous in his description of the obscenity that is the US penal system. He overlooks the endemic corruption, consequent largely upon the money injected into crime by drugs prohibition, and the ongoing removal of longstanding protections against abuse through the fearmongering "homeland security" structure, as well as the death penalty, that sets in stone the often all too fallible verdicts of the corrupt and incompetent state.
There is little point in Americans trying to defend their broken system by asserting that other countries' systems are also flawed. This is obviously true, and opinions will inevitably differ over which has the worse flaws.
The point is that each nation tolerates different flaws in its own system for particular cultural reasons. Citizens should not be exposed to the flaws of other countries' systems unless for very good reasons.
Randal, Sheffield,
We begin with a diatribe that barely sticks to the subject (references to the American health system?) and only barely supports most of the rest of the article (whether the extradition treaty is symmetrical). I have to say that while I read European press to get other viewpoints, too often it is clear that what is written is as much about the authors negative attitude toward the US than any insightful look at the issues.
(And quite amusing are comments on the article that find it so shocking that attacking the US would cause "defensive" responses. It is hard to see how one could disagree with the article without, in someway, defending at least something. Yet clearly these posts can only be unreasoned responses. It seems likely that the poster would regard the the lack of criticism of the US itself as lack of reasoning.)
Many Europeans wonder why they aren't heard more in the US. An honest look at what Americans hear out of Europe might help them understand.
David Summers, Menlo Park, CA
"Yet the 2003 treaty invades human rights and, in European terms, may well be illegal as well as unjust."
Quite so. A strong argument in favour, not of repealing the Human Rights Act, but of extending its ambit. David Cameron et al please take note.
Peter, London,
The cornerstone of a civilized society - presumption of innocence; can the Americans say, hand on heart, they have applied this rule consistently in Guatanamo Bay?
Derek, Hong Kong,
Richard Clarke is indeed correct to say the blame for our one-sided extradition arrangements with the USA is the fault of our (incompetent) Labour government. And there are very many here who recognise our criminal justice system in relation to serving prison sentences has been undermined over recent years.
But, to imply that non election of judges and of police chiefs - whether desirable or not - is undemocratic is wrong. Democracy is the will of the people. The extent to which that manifests itself in elections is their democratic decision.
Ralph Griffiths, London, UK
I hope Mr Rees-Mog is wrong about this, because this treaty would prove to be one piece of shocking evidence of Tony Blair's total subservience to Bush.
AKPAN, Canterbury/Kent, UK
Once again, more "balanced" critiques of America coming from Europe. Okay that was sarcasm. The problem with all these anti-American articles is not that America is not without faults, as of course we are, the problem is, we are bad... uhh, compared to what? The European system? The European systems are perfect? Better? First of all you have to compare apples to oranges here as we are multi-ethnic land of 300,000 spread out over huge and, yes sometimes sparsely populated "hick" areas. We have a totally different reality here. To act like our faults are somehow always worse is the new modern day European racism. It's a sad fact of life for us.
Claudia, Atlanta, USA
So what's wrong with the legal system in Germany or Austria ?
Reinhard Becker, Eisenach, Germany, EU
Quite humorous how the two comments posted by those of American persuasion is taking a defensive stand, but I guess that's what one gets when identifying with a nationality rather than being a person of common sense.
Nils Forsgren, Umeå, Sweden
It is also quite telling that America still doesn't get it with respect to terrorism. Britain wants to extradite Irish terrorists to stand trial in the UK, but America is quite comfortable to continue to protect these evil do-ers even if that means undermining the 2003 agreement.
What's the point of making agreements with people who can't even get the basics of criminal justice right?
Peter Dawson, Edinburgh, Lothian
Thank you, I have never understood the ins and outs of this before.
As America turns inwards it is likely to squander the goodwill it has among people such as me who consistently defend it against the opinions of the liberal left. But then my America is the America of the Declaration of Independence and the Bill of Rights. It is not that of the Christian right, the gun lobby and of bullying lawyers. I believe that the world needs America as an outward looking, liberal democracy as much as it have ever done in modern history. How tragic that America seems increasingly unable to rise to this challenge.
Geoffrey, Sydney, Australia
Don't blame the Americans for the one-sided extradition law. Blame the British government, which always places the interests of the British people last.
Don't criticise the American justice system when your own system allows murderers back out on the street in a matter of a few years.
In America judges and police chiefs are elected by the people. That's called "democracy" - obviously, no place for that in the UK.
Richard Clarke, Chicago IL, USA
Are you saying that the Americans are using a treaty to destroy Britain as a commercial competitor? How clever!
Ike Eisenhower, Brisbane, Australia
Rees-Mog is right in this particular. British authorities should never extradite anyone to the US accused of violating our so-called "business laws". As for American justice in general, Americans are certainly aware of the faults in it. Europeans, by contrast, labor under the delusion that all is well with them. I would rather face a court of monkeys than fall into the legal system of Germany or Austria.
Doug Forbes, Wheeling, USA
Hear! Hear! Fair is fair and our extradition treaty with the US is not fair. It should be struck off immediately and a new treaty negotiated by a UK government less deferential to the US. I'm waiting for Mr. Brown to step up to the plate and to jealously guard Britain's interests abroad so that we can have equitable relations with all.
Doug, Aberdeen, UK