MPs must vote to change it, and protect British citizens against increasingly audacious court actions from the US
'Strengthen protection for British citizens" – that's the rallying call of Monday's motion for debate in the House of Commons. But surely there's little need to remind government in this regard? Isn't that, after all, their primary duty?
Just ask 23-year-old Richard O'Dwyer how protected he feels by his government. As a result of our extradition laws, he's facing a battle royal in the courts to try to avoid being hauled out of Sheffield Hallam University to face trial in America – on breach of copyright charges. Ask Babar Ahmad, the British IT analyst from London who has spent the last seven years in prison while decisions are made on his fate. The Crown Prosecution Service has just confessed it hasn't even seen the evidence which is said to support the US request to extradite him.
And ask Christopher Tappin, who was looking forward to an enjoyable retirement presiding over the union of golf clubs in Kent. Instead he's spent the last 18 months in fear of being extradited on charges of exporting batteries from the US, from what turned out to be a fictitious company set up by the US authorities for entrapment purposes. Entrapment is unlawful in this country, so any such prosecution based on these tactics would be thrown out of English courts.
Sadly, the list goes on. Why? Because ever since the Extradition Act 2003 came into force, foreign jurisdictions have succeeded in extraditing citizens and non-national residents from these shores on the basest of evidence. In many of these extraditions, if a crime had been committed at all, it was committed in the UK and therefore should be prosecuted in the UK (the "forum" argument).
The devastating effect of these basic flaws in the legislation has become increasingly evident as each new person's plight comes to light. Many have commendably campaigned on the issue for years, not least Liberty, Fair Trials International and those behind Friends Extradited. Yet six years on, they're still having to bang the same drum.
While the numbers of individuals being extradited under the European Arrest Warrant to EU countries are the highest (more than 6,000) since the regime was introduced in 2004, it's clear the US also considers it has considerable extraterritorial reach. It claims jurisdiction over cases that have a limited connection to the US, and is fully able to do so under the current US-UK treaty and passive prosecutorial guidelines.
Louis Susman, the US ambassador, has been doing the rounds of MPs recently, apparently desperate to preserve the status quo. That in itself may suggest how favourably the US looks on the US-UK extradition treaty, and raises another question with a seemingly obvious answer: in whose interests is the UK government supposed to act? If there is a case to be answered concerning allegations of criminality that occurred in the UK, why should the US object to the case being tried in the UK?
To my mind, where there is clear evidence to a criminal standard of a crime being committed either in the UK or from the UK and jurisdiction is being contested, an English court should be required to determine the strength of the evidence and the "forum conveniens" – that is, the location of any prosecution. The court's decision on forum should be based on clear guidance – the nationality of the defendant and the victim; location of both the prosecution and defence evidence, witnesses, and so forth. Yet as it stands there is no statutory right for a UK defendant to challenge extradition on forum grounds.
The US ambassador is keen to ensure that this virtual extradition-on-demand process is here to stay. He is reported to have gone so far as to say of the US-UK extradition treaty: "It is now incumbent on the UK government to stand in support of it", in the face of the potential vote against it by MPs.
Perhaps now is the time to remind the ambassador what one of his own US senators, Chris Dodd (a Democratic candidate for the 2008 presidential election), said when asked in 2006 to urgently ratify the US-UK treaty because the then prime minister, Tony Blair, was having trouble selling it to the British people: "I'm not going to do it because they want me to! I have an obligation to the people here and to my constituents. We cannot go around tailoring our own laws because a foreign power is putting political pressure on us to do so or because critics of Tony Blair's do not like something. Where would America be today if we did that?"
Quite. Let's hope our own parliamentary representatives will be as bold now that they have a chance, finally, to vote for greater protection for British citizens.