Introduction
Extradition is a topic seldom covered, from the point of view of potential injustice, even by what we might call the criminal justice fraternity. One can attribute this lack of interest to many factors including “out of sight, out of mind”, the small number of cases that expose actual injustice, and the fact that these affairs, by definition, are not related to a single country and involve a certain complexity.
Notable instances that have made the UK mainstream media recently are that of Julian Assange, those involved in the Libor scandal and most recently the case of Mike Lynch for which I attach a link to a BBC podcast: https://www.bbc.co.uk/sounds/play/p0jfyb9w?partner=uk.co.bbc&origin=share-mobile
…together with an article from the Times which gives more detail:
- Equitable Handling
The first question that should be raised when looking at the extradition process is whether there is “equitable handling”, that’s to say whether there are vaguely equal reciprocal arrangements in place between the jurisdictions concerned. It is clear that Mike Lynch and his team believe that the current system between the US and UK is weighted in favour of the US. Since Brexit, however, and the fact that internal EU rules no longer apply, the situation is also more complex with respect to EU countries. This is a question akin to miscarriage of justice issues because of the potential damage caused to an individual by the extradition process. The cases of Julian Assange and Mike Lynch clearly set this out but there are many others less newsworthy.
- Punishment by Extradition – Presumption of Innocence
For those amongst us concerned by injustice, therefore, the idea that a person accused by a foreign jurisdiction might have their lives wrecked by the extradition process yet still be presumed innocent, should be appalling. In fact, the very notion of extradition flies in the face of the presumption of innocence because the extraditing jurisdiction is not asked to decide on the guilt or innocence of the accused but merely whether the rules on extradition have been respected. Detention in high security facilities based upon the notion of “flight risk”, simply because there is an international element to extradition is an appalling punishment for the innocent. And, of course, the possibility of creating a convincing defence whilst in a B Cat prison is close to inexistent without substantial and expert outside assistance.
- Injustice for the Poor, Justice for the rich
What the above highlights is the necessity of employing the services of expert counsel. It seems unlikely that this can be done using the Legal Aid system. Mike Lynch had substantial resources due to the case in question, but a person without those resources would presumably have been held in custody in the UK awaiting extradition and then held in custody in the US awaiting trial, in both cases applying the notion of “flight risk”.
- Refusal of Extradition to a Jurisdiction where Conditions are Sub-standard
In the article below we can see the problems of extradition from another standpoint. Here the Netherlands have refused extradition under a European Arrest Warrant on the grounds that the conditions of imprisonment are, in fact, not up to the standards of the extraditing country. If this condition were to be raised in every case and by every jurisdiction one can only wonder what the outcomes might be, given the disparities in conditions across borders. Given the appalling conditions in UK prisons, it is surprising that any jurisdiction could allow extradition to the UK.
- Refusal of Extradition of Defendants in the LIBOR Case
The example below raises issues about crimes not being considered as such across “friendly” jurisdictions. The word “friendly” is used because even the UK will not extradite to “unfriendly” countries where it considers that the accused is unlikely to receive a fair trial. More broadly, therefore, we can point to anomalies which should make extradition much more difficult than it is, or maybe arouse suspicions about political interference in the judicial process as in the Assange case.
https://www.clydeco.com/en/insights/2022/07/the-great-libor-divide
- Reciprocity and Political Expediency
So, the question should be asked about whether the UK is a “soft touch” when it comes to extradition, providing of course that the requesting authority resides in a “friendly” jurisdiction. The very notion of “friendly” implies political interference. Whilst it would be wrong to encourage flight to a jurisdiction by creating substantial hurdles to extradition, it is clear that there are jurisdictions with few extradition treaties or none for its citizens such as Lebanon:
https://www.japantimes.co.jp/business/2023/10/30/ghosn-residence-eviction/
The above article refers to the case of Carlos Ghosn which clearly has political overtones and which underlines that, not only does extradition not imply guilt, and that neither does “flight”, that wealth in matters of extradition has advantages, and that not all justice systems are equal.
Conclusion
Given that the present Prime Minister is the ex-head of the Crown Prosecution Service, he must (or should) be aware of the problems related to extradition. It is high time to look at the adequacy of current arrangements and to shed public light on the issues..