There is nothing wrong with extradition. The principle that one country can seek to prosecute a person resident in another is a worthy one, and a cornerstone of international justice. Nonetheless, as David Cameron visits Barack Obama in Washington, he is correct to point out that Britain and America have an extradition problem. This is a problem not in principle, but in practice.
Chris Tappin, an Orpington businessman, was extradited to Texas last month. He is accused of having conspired to export sanctioned defence technology to Iran. Almost certainly, the US authorities believe themselves to have a sound case against him. This case, however, has not been presented before a British court. Nor has it been presented before Mr Tappin. Yet he has been taken from his home, flown across the globe, and now resides, pending trial, in solitary confinement.
Richard O’Dwyer, a 23-year-old Sheffield Hallam University undergraduate, is alleged to have earned tens of thousands of pounds by providing access to pirated material on his website, TVShack. Certainly, American copyright holders would want to see somebody who allowed people in America to infringe copyright to be tried in America, and this is the substance of the allegations against him. Yet they are only allegations. On the basis of the nature of these allegations — not their veracity — a British judge has ruled that he, too, must cross the Atlantic. Without a successful appeal, he will.
Gary McKinnon, an alleged computer hacker who suffers from Asperger’s Syndrome, has been fighting extradition for ten years. Mr Cameron is known to be sympathetic to his case and is expected to raise it with Mr Obama. It is right that he should do so, but he should also raise the other two. At issue is not the guilt or innocence of any. Rather, it is the problem that, irrespective of this, before this has even been examined, extradition still occurs. This does not look like justice.
The 2003 Extradition Act was designed to enable the prosecution of terrorism suspects. As David Davis, MP, observed, “the truth of the matter is that we will have far more Gary McKinnons extradited than Osama bin Ladens”. Numerous critics have derided the act as one-sided. For an American to be extradited to the United Kingdom, authorities in this country must show evidence of supposed guilt, thereby displaying “probable cause” — as demanded, before any arrest, by the Fourth Amendment to the US Constitution.
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With Britain having no equivalent constitutional requirement, the same does not occur in reverse. In effect, this means that while an American court will consider probability of guilt before allowing an extradition, a British court will only consider the quality of the application.
This disparity is described, too often, as one of the larger partner in the special relationship behaving with belligerent muscularity. This is a mischaracterisation. The American legal system is not without flaws, but remains one of the fairest and most transparent on the globe. The problem lies with the incompatibility of the act with British law. Even if (as an American court might protest) those subject to extradition to the US have had their cases heard before a grand jury, like any American, before charges are brought, elementary justice dictates that if they are to be detained in their own country, they should face a prima facie case in their own country too.
Justice should not leave one with a sense of injustice. America is a beacon of liberty to the world, and the extradition process, as it stands, is not beneficial to its interests. Mr Obama and Mr Cameron should, indeed, reconsider this treaty. They must do this not because of any one case, but because Britain and America have a closeness born out of shared values that, in cases such as these, are resoundingly betrayed.