A decade ago I wrote an article for the Guardian about the fundamental unfairness of the US extradition treaty. Back then, British citizens risked being hauled before American courts over allegations of criminality in the UK. Politicians on the left and right issued condemnations. The US pressed on regardless.
Today, there are different cases, but substantially the same system with the same unaddressed problems.
In 2011 the computer hacker Gary McKinnon was the target. He had broken into US computer systems in search of classified documents about unidentified flying objects. American authorities, unconcerned about his diagnosis with Asperger’s syndrome, accused the would-be UFO hunter of intimidation and coercion.
Eventually, the then home secretary Theresa May blocked the extradition. But the government of the day, with its characteristically à la carte attitude towards human rights, did not address the fundamental issue: the extradition treaty itself. It remains, and so does the risk to any of us of being plucked from our homes on behalf of the US authorities.
This week it is the turn of the businessman Mike Lynch to try to fend off an extradition attempt. He sold a British company he had founded to the US firm Hewlett-Packard, and the two parties subsequently fell out. A British civil court is already considering the dispute, but the US insists on a criminal case on its soil. Lynch must appear before a judge to argue for permission to remain in his own country.
It would be wrong to say that nothing has changed since 2011. A measure known as the forum bar now exists. This enables courts to stop some extraditions – if they decide that a substantial measure of alleged criminal activity took place in the UK, and that it would be in the interests of justice for the extradition to be refused.
However it is no guarantee of success. Yes, the extradition of Julian Assange was recently refused, but on grounds that, were he exposed to what Americans euphemistically call “special administrative measures” in US prisons, his mental health would deteriorate to the point where he would take his own life.
What are those “measures”? The court was told about a prisoner barred from associating with other prisoners even outside his cell and from communicating with his lawyer via email. Long periods in solitary confinement are common. Little wonder a British court found that, given Assange’s mental health, extradition would be “oppressive”.
But the forum bar has not dissuaded the US. Its attempts to claim Britons for its justice system are as audacious as ever. We remain unprotected by our own government.
Despite all this, last month a Conservative minister, Chris Philp, rejected the case for making any change at all. Where a “grave injustice” was threatened, he said, then UK courts could act. With that, the House of Commons shut up shop for the day and MPs went home.
Perhaps the oddest aspect of this debate is its Groundhog Day character. Time after time the British public is shocked by the extradition system, politicians normally implacably opposed to one another agree something must be done, and the treaty endures. Why is that? Assiduous lobbying by the US perhaps, or just timidity?
The lack of reform makes looking back at my decade-old article on this subject rather wearying. Back then I asked why, if a case concerned allegations of criminality in Britain, the US should object to its being tried in the UK. The question remains unanswered.
For now, the best hope is simply that our courts can repulse repeated extraterritorial attempts by the US to forcibly remove British citizens. We should not have to live with the risk of undergoing that ordeal on the say-so of US prosecutors. Ministers must act. It would reflect a sorry political failure if I had to write another piece about an unjust extradition system in 2031.
Helen Kennedy QC is a Labour peer
