Dominic Grieve MP (picture Attorney General's Office)

Reading the debate about the Nat West Three, there are a number of interesting points that can bear a bit more discussion. (The origin of the case is the extradition of three bankers to the United States for alleged offences relating to the collapse of Enron, for which they have not been charged in the UK. Read more about the case here.)

The first is the way in which the debate has centred on the unbalanced nature of the extradition treaty with the United States. For suspects to be extradited to the UK, the American courts need to be shown “probable cause” – this is a term in the Bill of Rights itself. To send suspects the other way, the standard of proof is much lower. There has been some confusion about exactly how much lower – different government ministers have made conflicting statements on the subject during the past week – but there is certainly a difference.

As a result of that of balance, it has been argued by the opposition in parliament that the treaty should be suspended. (You can read the debate here – it is rather fascinating.) I have some quibbles with that.

The tone implied in that argument is that we are doing the Americans a favour by being willing to extradite suspects to the US and that they should return the favour to us. While this statement is correct, it is not complete. There is also the fact that we are doing ourselves a favour by willing to extradite suspects to the US.

If we think that an act, for example theft, is wrong and should be punished as a crime, it is wrong whether it takes place in the UK or in another country. Now, we accept that if the offence takes place in another country, it is down to that country to decide whether or not to treat that theft as a crime, but if they do, we are willing to help them. After all, the victim of that theft in another country might conceivably be a British citizen. We are against theft.

(There are of course some offences that we think are crimes that should be punished, even if they happen in other countries: war crimes, for example, and sex tourism.)

The fact that another country might not render suspected thieves wanted in Britain for prosecution should not, in principle, discourage us from helping them punish their alleged thieves who have fled here.

It is a bit like the arguments that are sometimes used in favour of free trade in negotiations. A tax on imports is mathematically equivalent to a tax on exports, and who would unilaterally tax their own exports? The best approach, so goes the argument, is to open up one’s own markets unilaterally so that, at the very least, one’s own citizens can benefit and, perhaps, that other countries to follow suit. When it comes to the actual negotiations, though, as the difficulties of the Doha round show, no country follows such a strategy in practice.

As Conservative MP Dominic Grieve said,

“It is only when countries on both sides look to their own advantage that one gets an agreement that is binding and durable.”

The disadvantage of unilateral action in this field is that it robs the country that takes such action of much of its negotiating clout in future. It can’t ask for much of a quid if it has already spent its quo.

A multilateral framework for extradition, such as that practised by the European Union, avoids this problem. The pressure on each member state from all the others to stay in step during the negotiations is much greater than that which can be exerted by a smaller country on a larger one.

The second point is, the unbalanced nature of the treaty notwithstanding, the standard of evidence demanded is too low. This is a second complaint in parliament: if there is not enough evidence to prosecute in the UK, then there should not be enough evidence to extradite somewhere else.

Again, there are further questions to be raised. The whole notion of extradition arises because of the division of the world into different criminal jurisdictions. A criminal wanted for trial in Liverpool does not have to be extradited from London, merely put in the back of a van. Federalism is naturally interested when national borders take on a legal or political significance.

It is wrong that a criminal should escape justice because of the intervention of a national border, but also wrong that a suspect should face injustice because a country hands him over to an unfair judicial process. These are the two principles that apply, and the tests involved in the extradition process are there to strike the balance between them.

The best way to ensure that extradition can proceed effectively is to have a common and shared set of human rights standards. That will minimise the risk of an unfair judicial process. Again, take a bow, the European Union.

By contrast, the controversy over Guantanamo Bay has not helped the American image in this regard. Still, it’s in their hands to change things, if they wish.

It was also good to note in the parliamentary debate the acknowledgement of the role of the European Convention and the European Court of Human Rights. They make it possible to have a faster, more effective extradition process within Europe. Of course, these are the “foreign” convention and “foreign” court that some Conservatives have been railing against in recent weeks. Perhaps now, they start to see their value.

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