The Extradition Act [2003] is a very powerful piece of legislation (the “Act”).

Under this Act, any citizen of the UK can be extradited to the US.

Parts 1 and 2 deal with “category 1″ and “category 2″ territories respectively. There is no definition of “category 1″ and “category 2″ in the Act itself, but “category 1″ territories are all other member states of the European Union and Part 1 of the Act is the United Kingdom’s implementation of the European Arrest Warrant framework decision. Part 2 of the Act is concerned with extradition to all other countries which have an extradition treaty with the United Kingdom. Helpfully, however, the CPS website provides a list of “category 2″ territories, which includes the United States of America.

In both Britain and America, a judge needs to be satisfied that there is an objective reason for the suspect’s arrest before issuing a warrant. The principle is the same in both countries: prosecuting authorities don’t need to show hard evidence that they will later rely on in court, just information that shows that there is a good reason to make the arrest. In the US, prosecutors need to show “probable cause”, which has been defined as “areasonable ground for belief of guilt”. In Britain the phrase is “reasonable suspicion”. Lord Baker concluded in his report that, contrary to popular belief, “there is no significant difference” between the two tests.

The precise reasoning of this is interesting:

7.43 We believe that any difference between the two tests is semantic rather than substantive, and the challenge to those who suggest that the tests are in some way different is to articulate precisely what the difference is and how the difference would apply in any particular case.

7.44 In our opinion it is significant to note that: (i) Both tests are based on reasonableness; (ii) Both tests are supported by the same documentation; (iii) Both tests represent the standard of proof that police officers in the United States and the United Kingdom must satisfy domestically before a judge in order to arrest a suspect.

Of course, this leads one to consider whether what is reasonable in the UK is reasonable. In the UK, Lord Diplock in DPP v Camplin [1978] provided the following:

(para. 4) “As I have already pointed out for the purposes the law of provocation the ” reasonable man ” has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today. “

And indeed, “the Common Law of England has been laboriously built about a mythical figure-the figure of ‘The Reasonable Man'” [Sir Alan Patrick Herbert], but “the man on the Clapham omnibus is a reasonably educated and intelligent but non-specialist person, against whom the conduct of the defendant can be measured”; this concept was used by Greer LJ in the case of Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205.

According to the C4 blog ‘Factcheck’, around twice as many people have been extradited from the UK to America than vice-versa in recent years; between 1 January 2004 and 31 December 2011, the US made 134 requests for extradition to the UK authorities and 75 people were successfully sent to America for trial, and the UK made 57 extradition requests to the US and 40 people were successfully extradited.

It must be a cause for concern how long it has taken to “process” requests  for extradition. Janis Sharp, who is Gary Mackinnon’s mum, has been calling for the UK-US extradition arrangement to be analysed carefully, as fairness and balance must be a critical issue for both countries. Lord Carlile in his letter says explicitly, “By all accounts the uncertainty in this case continues to have a severely detrimental effect on McKinnon’s mental health.  His and his family’s anguish is evident to all.” Gary Mackinnon has been alleged to have been involved in hacking in the early 200s. Richard O’Dwyer is involved in a case involving alleged copyright offences. “The government hasn’t acted in time. This is exactly what we warned against,” according to Isabella Sankey, director of policy for Liberty. “Enacting the forum amendment would have been quite simple. It’s not that we’re arguing that in every case where activity has taken place here we shouldn’t allow people to be extradited. But we should at least be leaving our judges some discretion to look at the circumstances.” Here, it seems perhaps there needs to be a genuine discussion of whether certain jurisdictions are inadvertently indulging in legal imperialism in assuming jurisdiction for alleged crimes for crimes not strictly speaking conducted on their territory, which must be an issue which even Lord Denning would have found rather difficult to resolve; or even if they are not exerting legal imperialism intentionally, should defendants be put on trial at all for alleged crimes committed on the soil of territories elsewhere?  Curiously, recently, in response to a Freedom of Information Act request, the following came back recently dated 11 April 2012 (ht: Julia O’Dwyer):

“From the information available, between January 2004 and 30 March 2012, there have  been 7 known US citizens extradited from the US to the UK. Of those 7, none have  been identified as crimes which were committed whilst the person was in the US.  ” 

There is inevitably a human rights and civil liberties dimension to this. Many people are rightly terrified of ‘secret justice’, and the machinery of our own legislature has recently come under considerable scrutiny. Ken Clarke even wrote in the Daily Mail as follows:

“It’s hardly a secret that I hail from the liberal wing of the Conservative Party. If protecting our democratic society means riding roughshod over historic freedoms – freedom of speech, a free Press, an independent judiciary and open  justice – then truly we have forgotten what we are fighting for”

At a time of writing of this article, it is still uncertain what Theresa May will do in relation to Gary McKinnon’s case, but, if you wish to, you can follow @JanisSharp and @libertyuk, and also @jrodwyer (Richard’s mum).  As for the question I originally posed, “Extradition Act: who’s in control?”, I must admit I have no idea.