Blocked Transfer Draws Attention to U.S.-U.K. Extradition Treaty

October 18, 2012

World Politics Review on October 18, 2012 released the following:

“By Catherine Cheney

On Tuesday, the British government announced that it would not extradite British hacker Gary McKinnon to the United States, marking the first time an extradition has been halted under the 2003 Extradition Act between the U.S. and the United Kingdom.

McKinnon, who is accused of serious crimes including hacking American military databases, has fought extradition for the past 10 years. But in light of new evidence about his health, British Home Secretary Theresa May, the government’s top authority on domestic affairs, cited McKinnon’s human rights as her main consideration. Extraditing McKinnon would put him at high risk of suicide, she said.

Trend Lines spoke to two experts about perceptions of the treaty, which has at times generated controversy, especially in the U.K.

“In the significant, overwhelming majority of extradition treaties, the requesting country is required to show probable cause that the individual probably committed the crime with which he has been charged,” explained Douglas McNabb, a senior principal for McNabb Associates and an expert in U.S. federal criminal law and international extradition.* “In the U.S.-U.K. treaty, the U.S. is not required to show probable cause. All the U.S. has to do is show a copy of the indictment and the arrest warrant and request that the individual be sent to the U.S.”

On the other hand, McNabb said, if the U.K. sought to have someone extradited from the U.S. to the U.K., the U.K. would be required to show probable cause.

According to McNabb, the treaty was negotiated because the Bush and Blair administrations “wanted to make it easier for the U.S. to have terrorists extradited from the U.K. to the U.S., so they provided for this expedited extradition process,” he said.

The fact that the significant majority of people extradited from the U.K. to the U.S. have been white-collar criminals, not terrorists, he added, has created a rift between the two states.

However, Ted Bromund, senior research fellow in Anglo-American relations at the Heritage Foundation’s Margaret Thatcher Center for Freedom, argued that much of the controversy surrounding the agreement is because it is “misunderstood and mischaracterized” in the U.K.

“It is useful to bear one simple fact in mind: it was Britain that wanted the 2003 treaty, not the U.S.,” Bromund wrote in an email to Trend Lines. “When the U.S. delayed ratifying the treaty, Britain criticized [Washington]. Now many in Britain condemn the very treaty they wanted, which came as part of a long, and completely British, effort to reform their extradition system.”

Most extraditions to and from the U.S. are completely uncontroversial, Bromund explained. McNabb, too, referred to five terrorism suspects who were extradited from the U.K. to the U.S. earlier this month, noting that at the time, “we did not hear anything about this treaty being unfair.”

Bromund said that while the McKinnon case has generated controversy, he does not see any serious risk of fallout for the treaty.

“In the McKinnon case, the U.S. made a perfectly legal extradition request. Britain has (finally) decided not to extradite him, not because of anything wrong with the U.S. or its request, but because Mr. McKinnon is mentally ill,” he explained. “Britain has the right to decide that, so the subject is now closed.”

Both experts pointed to the news that the U.K. plans to create a forum bar as being more significant. In cases where prosecution would be possible both in the U.K. and abroad, the forum bar would enable British courts to block prosecution overseas.

“What upsets those in the U.K. is that if the majority of the criminal conduct occurred in the U.K., as compared to the U.S., then their thought is that these guys ought to be tried in the U.K.,” McNabb said.

“We have seen the U.S. take a very aggressive approach extraterritorially,” McNabb said. Over the past decade, some defendants have raised concerns, and attracted attention, for being “shipped off to the U.S.” for crimes they committed at home. Over time, McNabb said, these cases, combined with the perceived inequality of the treaty, put enough pressure on the British to make some changes.

Bromund expressed concern over the creation of the forum bar.

“Depending on how this is worded — and that is important — this could require British courts to discriminate in favor of British subjects, and thus against foreigners, when considering extradition requests,” he said. In the past, Bromund explained, everyone has been equal before the law in the U.K., with the nationality of the accused making no difference as far as extradition goes. The forum bar could change that, he said.

While the U.K. home secretary has called the 2003 deal “broadly sound,” introducing the forum bar would be a major change to the law, something both experts said is worth keeping an eye on.”

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

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We previously discussed the extradition treaty between the United States and the United Kingdom here.

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To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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Gary McKinnon extradition to US blocked by Theresa May

October 16, 2012

BBC News UK on October 16, 2012 released the following:

“British computer hacker Gary McKinnon will not be extradited to the US, Home Secretary Theresa May has announced.

Mr McKinnon, 46, who admits accessing US government computers but claims he was looking for evidence of UFOs, has been fighting extradition since 2002.

The home secretary told MPs there was no doubt Mr McKinnon was “seriously ill” and the extradition warrant against him should be withdrawn.

Mrs May said the sole issue she had to consider was his human rights.

She said it was now for the Director of Public Prosecutions, Keir Starmer QC, to decide whether he should face trial in the UK.

Mrs May said: “Since I came into office, the sole issue on which I have been required to make a decision is whether Mr McKinnon’s extradition to the United States would breach his human rights.

“Mr McKinnon is accused of serious crimes. But there is also no doubt that he is seriously ill.

“He has Asperger’s syndrome, and suffers from depressive illness. The legal question before me is now whether the extent of that illness is sufficient to preclude extradition.

“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.”

Mrs May also said measures would be taken to enable a UK court to decide whether a person should stand trial in the UK or abroad – a so-called forum bar.

It would be designed to ensure extradition cases did not fall foul of “delays and satellite litigation”, she said.

“I believe extradition decisions must not only be fair, they must be seen to be fair. And they must be made in open court where decisions can be challenged and explained,” she said.

“That is why I have decided to introduce a forum bar. This will mean that where prosecution is possible in both the UK and in another state, the British courts will be able to bar prosecution overseas if they believe it is in the interests of justice to do so.”

Mr McKinnon, from Wood Green, north London, who has been diagnosed with Asperger’s syndrome, a form of autism, faced 60 years in jail if convicted in the US.

Mr McKinnon’s mother Janis Sharp was delighted with the decision, saying: “Thank you Theresa May from the bottom of my heart – I always knew you had the strength and courage to do the right thing.”

His MP, David Burrowes, who had threatened to resign as a parliamentary aide if Mr McKinnon was extradited, welcomed the decision.

Mr Burrowes, Conservative MP for Enfield Southgate in north London, tweeted: “Compassion and pre-election promises delivered today.”

BBC legal correspondent Clive Coleman said it was a dramatic decision – the first time a home secretary had stepped in to block an extradition under the current treaty with the US.

Shami Chakrabarti, director of civil rights group Liberty, said: “This is a great day for rights, freedoms and justice in the United Kingdom.

“The home secretary has spared this vulnerable man the cruelty of being sent to the US and accepted Liberty’s long-standing argument for change to our rotten extradition laws.”

Mark Lever, chief executive of the National Autistic Society, said he was “delighted that the years of waiting are finally over for Gary and his family”.

But Labour former home secretary Alan Johnson criticised the decision and claimed Mrs May had made a decision which was “in her own party’s best interests but it’s not in the best interests of this country”.

He said: “Gary McKinnon is accused of very serious offences. The US was perfectly within its rights and it was extremely reasonable of them to seek his extradition.”

Shadow home secretary Yvette Cooper asked Mrs May about the implications of her decision: “Clearly other people subject to extradition proceedings or immigration proceedings do cite medical conditions as a reason not to extradite so it would be useful for Parliament and the courts to understand the tests you have applied and whether that will set precedent in other cases.”

American lawyer, David Rivkin, a former White House adviser, said the decision was “laughable”, adding, “Under that logic, anybody who claims some kind of physical or mental problem can commit crimes with impunity and get away with it.”

US extradition expert Douglas McNabb said the US Attorney’s Office would be furious and he suspected it would ask Interpol to issue a red notice – making other nations aware there was an outstanding arrest warrant for Mr McKinnon in the US – which would mean he could be arrested if he left the UK.

The family of terror suspect Babar Ahmad said while they welcomed the decision not to extradite Mr McKinnon, questions had to be asked.

Mr Ahmad was one of five terror suspects, including radical cleric Abu Hamza al-Masri, extradited to the US earlier this month. His co-accused, Talha Ahsan, who was also extradited, was diagnosed with Asperger’s in June 2009, according to a European Court of Human Rights judgement.

Both are accused by US authorities of running a pro-jihad website.

Mr Ahmad’s family said: “Why within the space of two weeks, a British citizen with Asperger’s accused of computer-related activity is not extradited, while two other British citizens, one with Asperger’s, engaged in computer-related activity are extradited. A clear demonstration of double standards.”

US authorities have described Glasgow-born Mr McKinnon’s actions as the “biggest military computer hack of all time” and have demanded he face justice in America.

They insisted his hacking was “intentional and calculated to influence and affect the US government by intimidation and coercion”.

The Americans said his actions caused $800,000 (£487,000) worth of damage to military computer systems.

Mr McKinnon has previously lost appeals in the High Court and the House of Lords against his extradition, but two years ago a High Court judge ruled Mr McKinnon would be at risk of suicide if sent away.

Earlier this year Mrs May put the decision on hold to allow Home Office appointed psychiatrists to conduct an assessment.

They also concluded Mr McKinnon would be likely to take his own life if he was sent to face trial in the US.

Mr McKinnon was arrested in 2002 and again in 2005 before an order for his extradition was made in July 2006 under the 2003 Extradition Act.”

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and the United Kingdom here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

Email: