COMMENT: US/UK extraditions – swings and roundabouts, or still stuck on the see-saw?

Ever since the UK and US agreed new extradition arrangements in 2003 they have been a constant source of anxiety and debate about whether the Treaty, or the way it is operated, leads somehow to an unfair imbalance that makes it easier for the US to extradite suspects from the UK than vice versa.  Even a comprehensive review in 2013, which concluded that there was no legal imbalance and the subsequent introduction of the ‘forum bar’ has not put these issues to bed.  New life (ironically, mainly in the form of old arguments) has been breathed into the debate by the intervention of five former ministers and MPs on Tuesday into the potential extradition of Mike Lynch, the former CEO of software company Autonomy.  Lynch sold the company to Hewlett Packard for £9bn in 2011 but has been charged in the US for allegedly fraudulently over-inflating its true value.  Meanwhile, our courts have just denied Julian Assange’s extradition to the US on the basis that its Federal prison system could not prevent him from committing suicide, whilst the US has refused to even entertain the extradition of Anne Sacoolas for causing the death by dangerous driving of Harry Dunn.  Is this the normal back and forth of a properly operating extradition system judging each case on its legal and factual merits or, as Mike Lynch’s political supporters argue, is it unfairly weighted in favour of the US?

To answer this question it is instructive to look at each of the arguments put forward in the letter on Lynch’s behalf and subject them to a light, forensic grilling.

First, it is said that the “the treaty is unbalanced” and that the UK has “surrendered sovereignty over our own justice system”.  The latter claim presumably refers to the old contention that UK prosecutors, in particular the SFO in large fraud cases, too readily cede jurisdiction to the US in cases which could be prosecuted on either side of the Atlantic.  These arguments first surfaced in 2007 in relation to the so-called ‘Nat West 3’ and then, most famously, in support of the hacker Gary McKinnon.  The authors of the letter assume that nothing has changed since then but, in fact, the UK/US extradition landscape is now very different. The claim that the treaty is unbalanced was rebuffed comprehensively in a 2013 report commissioned by then Home Secretary Theresa May.  Its authors, former Court of Appeal judge Lord Scott-Baker, David Perry QC and Anand Doobay, concluded that there was no legal imbalance in the treaty or the way it had been implemented in UK law.  They did point out, however, that there might be an imbalance in prosecutorial ambition – with the US more willing to bring charges resulting in extradition requests for suspects who, at least in theory, could be prosecuted in the UK instead.

The practical solution was to encourage greater and closer co-operation between UK and US prosecutors and to introduce Attorney General’s guidelines to ensure decisions in cases of concurrent jurisdiction were made co-operatively based on sensible factors including where most of the conduct took place, where most of the loss or harm occurred, the suspect’s connections with the UK and practical matters such as delay, the position of co-defendants and the availability of evidence.  That recommendation was implemented and appeared to work well for several years.  However, recent reports suggest that relationships between the US DoJ and the SFO are less harmonious and that US prosecutors will ignore the SFOs wishes when they don’t see eye to eye.  Apparently the SFO considered prosecuting Mr Lynch but decided not to, clearing the way for the US charges.  What we don’t know is whether that was a collaborative decision based on the guidelines or a “surrender of sovereignty” as alleged in The Times letter.  It seems premature to conclude that it can only have been the latter.

The legislative solution was the introduction of the ‘forum bar’, also in 2013, which gave UK courts the power to bar extradition in the interests of justice if, broadly speaking, they concluded that the suspect should be prosecuted in the UK instead (albeit, they had no power to compel the UK authorities to bring a charge).  Initially derided as ‘toothless’ by many critics, the forum bar has since been invoked successfully four times to resist extradition to the US, first in the case of the hacker, Lauri Love and as recently as December 2020 in the case of Christopher Taylor, wanted for fraud and computer offences.  US extraditions are less common than many people assume (on average, less than 10 a year) and most do not involve concurrent jurisdiction, so that is a reasonable success rate.  Mr Lynch will be relying on the forum bar at his extradition hearing next month and may well have a good case.  As always, it all depends on the facts.  His supporters’ arguments may be old and tired but, hopefully for his sake, his lawyers’ submissions in court will not be.

The letter goes on to say that “(t)he government cannot stand by as another Briton risks being delivered like this to the US justice system.”  This may be a political rallying cry but it misses the point that, unlike many other countries, neither the UK nor the US provide any special protection against extradition for its own citizens.  Mr Lynch’s nationality is legally irrelevant to whether he can be extradited to the US, save that one factor under the forum bar is his “connections with the United Kingdom”, which is not dependent on citizenship.

Finally, the letter suggests that the extradition of Mr Lynch could set a precedent whereby “(a)ny British businessman or woman who finds themselves at odds with a powerful US company could face the same fate. That means facing a system where prosecutors cut deals offering their own witnesses immunity, while those who want to testify for the defendant risk being dubbed co-conspirators and prosecuted. This is not justice.”

First, the erroneous reliance on British nationality is repeated.  Second, this argument appears to be predicated on the assumption that all the changes introduced since 2013 to prevent unjust extradition to the US are not working.  Third, it does not appear to be limited only to cases of concurrent jurisdiction but to any extradition to the US at all, based on concerns about aggressive plea bargaining.  That aspect of the US criminal justice system is certainly open to serious criticism: US prosecutors have huge power compared to their UK counterparts to threaten charges carrying eye-watering sentences to ‘flip’ co-operating witnesses and pressurise defendants into pleading guilty. The proportion of US Federal cases settled this way is alarmingly high.   US prosecutors and judges might put that down to a reflection of guilt. Others, including the authors of the letter, would say that the system plays against a defendant from the beginning and unless they have huge financial resources, the energy to fight, and the willingness to risk a very long jail sentence, the easier route is to just take the deal.   Unfortunately for Mr Lynch, in the extradition context these arguments have never held much sway.  Most recently, Julian Assange argued that “the US federal system operates to secure pleas through coercive plea-bargaining powers” but District Judge Baraitser limited her response in her judgment to noting that the European Court of Human Rights, in the US extradition case of Babar Ahmad, has confirmed that plea bargaining is neither unlawful nor improper.  The closest the UK courts have come to setting a threshold for coercive prosecutorial conduct that might prevent extradition to the US was in Gary McKinnon’s case in 2008, where the House of Lords held that, although the lower court had expressed some “cultural reservations” about US-style plea bargaining, this stance was “somewhat fastidious” and the courts were obliged to “accommodate legal and cultural differences between the legal systems of the many foreign friendly states with whom the UK has entered into reciprocal extradition arrangements.”  Ironically, many of the aspects of the US criminal justice system criticised in the letter are the same ones that the SFO consistently has been encouraged to ape in an attempt to increase its fear factor and success rate.

The letter does not mention the potential imbalance in sentences depending on where Mr Lynch was prosecuted.  US sentences are normally higher than the UK equivalent for the same conduct, especially in fraud cases.  The UK courts have considered this issue before and found it not to be, in itself, a bar to extradition.  Nor is the potential sentence differential even a relevant factor when considering the forum bar.  However, this argument can cut both ways depending on who is making it.  In Anne Sacoolas’ case her lawyers have pointed to the higher sentence in the UK for death by dangerous driving, compared to what she would face for “a terrible but unintentional accident” in the US as a reason why it would be unfair to extradite her.

US assurances on prison conditions?

The US authorities have indicated they will appeal the ruling that Julian Assange can’t be extradited because of his risk of suicide in prison.  Lauri Love’s extradition was barred on similar grounds, in addition to the forum bar.  Many other jurisdictions have overcome such rulings by giving bespoke assurances to the UK court regarding the suspect’s precise regime and conditions of detention.  Traditionally, the US authorities have been very loath to do the same on the policy basis that the application of their own law in their own jurisdiction should not be subject to conditions imposed by a foreign court.  However, if that is the only way to secure Assange’s extradition, it will be very interesting to see whether they will make an exception.  If not, although his risk of suicide was supported by cogent expert evidence, we may see the “Love/Assange” defence reappear in future US extradition cases.