UK-US Extradition Agreement

David Davis Excerpts

Thursday 23rd January 2020 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

Mr Deputy Speaker, while Members make their way out of the Chamber, I will take this opportunity to congratulate you on being the man who effectively announced our departure from the European Union. Your place in history is assured.

Since we agreed the UK-US extradition treaty in 2003, it has been abundantly clear that the British Government of the day struck a truly dreadful deal—asymmetric, sometimes ineffective and often unfair on British citizens. Countless examples down the years have shown that, from the NatWest three to Christopher Tappin, from Gary McKinnon to Anne Sacoolas, the person charged with causing the death by dangerous driving of Harry Dunn. We now risk yet another serious miscarriage of justice with the US extradition request for Dr Mike Lynch, a successful and entrepreneurial British businessmen. Dr Lynch founded an innovative data processing company called Autonomy, which by 2010 was Britain’s largest leading software company. In 2011 it was sold to Hewlett-Packard for £9 billion.

Several years later, Hewlett-Packard claimed that Autonomy was overvalued. Hewlett-Packard sued Dr Lynch for fraud in the United Kingdom. After a lengthy and costly civil trial, Dr Lynch is now awaiting judgment, and I am of course prevented from commenting further on that case due to the sub judice rules, although this is a trial by judge alone, not by jury, so the possibility of undue influence is near zero.

Dr Lynch is now facing almost identical criminal charges in the United States, in yet another aggressive attempt by American authorities to exercise extraterritorial jurisdiction. Despite the Serious Fraud Office deciding that there is no basis for a prosecution in the United Kingdom, the United States authorities are doggedly pursuing his extradition.

Civil cases in this country and the States are decided on the balance of probabilities, a much lower hurdle than for criminal cases, which have to be decided on a “beyond reasonable doubt” basis. If Hewlett-Packard fails to win its civil case against Dr Lynch here in the UK based on that much lower standard of proof than the criminal test, it is inconceivable that the authorities will win a near identical criminal case if it is tried fairly. Accordingly, the case for extradition would evaporate, so the only sensible course of action available to the UK authorities—in this case, the Home Secretary—is to delay the extradition until the United Kingdom judge has made his decision.

This case is important because it is characteristic of the way the American judicial system operates to favour American business. The United States has a tradition of using its broad extradition treaties to cast a wide legal net around the world. As with Mike Lynch, many of these cases are only tenuously linked to the United States. Cases such as those of Ian Norris, the former head of Morgan Crucible, or the NatWest Three all have common themes: they are all British citizens, the alleged crimes all took place on British soil, the United Kingdom system failed to protect them, and the US authorities ultimately got their way.

This does not, by the way, just apply to Britain. In March the US extradited three Credit Suisse bankers for alleged bribes passing between companies in London and Mozambique. The United States tenuously claimed jurisdiction because one transaction was operated through New York. Most of these United States cases are not in pursuit of terrorists or paedophiles or murderers, which is what the extradition treaty was originally designed for.

[Greg Hands (Chelsea and Fulham) (Con)]

I should state that Dr Lynch is my constituent, so I take a keen interest here.

Does my right hon. Friend agree that back in 2003 when the treaty first came in—I was not in the House then, but he was—we were sold it very much on the basis that it was to stop terrorists and committers of serious violence, rather than to deal with these kinds of commercial cases where somebody is effectively looking to repeat a trial, but under US jurisdiction?

[Mr Davis]

My right hon. Friend is exactly right. I was the shadow Home Secretary at the time and I opposed this treaty, but eventually our party gave in on the grounds that it was about paedophilia and terrorism and violent crime. That was the sole basis upon which we accepted what we thought at the time was a treaty that made it too easy for the US to extradite. And of course what we are seeing now is that that is not what is happening: the United States is going after white-collar businessmen and seeking to be the judge, jury and executioner for global commercial deals. Since 2003, some 80% of the extraditions were for non-violent crimes. This seems like very strange behaviour when we consider that this is a country that did not convict any American chief executives in the 2008 crisis, which clearly had some frauds behind it.

Dr Lynch is being charged with several counts of wire fraud, an offence originally designed to make a state crime into a federal crime so that prosecutions could be made by federal authorities. Its application quickly expanded, prompting one federal judge to say it has

“been invoked to impose criminal penalties upon a staggeringly broad swath of behaviour”.

That staggeringly broad swath is now being applied across national borders. In essence, a legal playbook designed to catch and convict mobsters and racketeers has first been repurposed to catch white-collar offenders, and now that repurposing has been extended outside American borders into what should be other countries’ jurisdictions.

The Home Affairs Committee concluded, in a 2012 report on the UK-US extradition treaty, that the US

“has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.”

In a 2011 report on our extradition arrangements, Lord Justice Scott Baker concluded that we do not need to change the rules to ensure that London-based offences are dealt with here in the UK. He was wrong. He failed to give enough weight to the US ambition to extend its extraterritorial jurisdiction on commercial crimes. He also made no allowance for the incredibly one-sided nature of the prosecution and trial of foreign suspects in the US justice system. This is the core problem of our asymmetric and unbalanced treaty with the US.

An American citizen facing extradition to the UK can challenge it in a US court on the basis that there is no “probable cause”, but a UK citizen facing extradition to the US has no right to a “reasonable grounds” hearing. This is what the Joint Committee on Human Rights called in 2011 a

“lack of reciprocity in the Treaty.”

It went on to recommend:

“The Government should increase the proof required for the extradition of British citizens to the US so as to require sufficient evidence to establish probable cause, as is required for the extradition of a US citizen to the UK.”

What is more, the US Secretary of State has far greater discretion to refuse an extradition than our Home Secretary. Just look at the rejected extradition request for Anne Sacoolas.

The British Extradition Act 2003 states:

“The Secretary of State must order the person’s discharge.”

The equivalent US code, however, states:

“The Secretary of State may order the person....to be tried”.

That sounds like a minor difference in language, but it has had a very, very big impact.

Since 2007, the UK has surrendered 135 UK nationals to the US, 99 of them for non-violent alleged offences. During the same period, the US has surrendered only 11 people to the UK. That is why countries such as France and Israel refuse to allow their citizens to be extradited. It seems inconceivable, then, that the UK has ceded so much of its discretion, particularly given the extraordinary way in which extradited suspects are treated in the US. Many people think the US justice system is broadly similar to ours. The reality is that it is much more slanted.

If Dr Lynch is unfortunate enough to be extradited and denied bail, as most foreign suspects are—they are taken to be an intrinsic flight risk—he will face appalling conditions that are much worse than anything found in the UK. He will likely find himself in a high-security prison in a cramped cell with gang members, drug dealers and murderers. Take the example of the NatWest Three. They were investigated by the UK authorities in 2001 for financial crimes. The alleged offences took place in London, while the three were employed by a London-based company. After the Financial Services Authority and the Serious Fraud Office decided that there was no basis for a prosecution in the UK, the three were extradited to the US because the Justice Department believed their crimes contributed to the collapse of Enron.

The NatWest three have since written vivid accounts of their experience. As soon as they stepped off the plane in the US, before a trial had even begun, they were treated like convicted criminals. Handcuffed and frogmarched to the jail, they were treated with contempt by marshals and subjected to a comprehensive and intrusive full-body search. It highlighted the classic approach that US authorities take. They were told that if they pleaded not guilty, they would be denied bail and get 35 years in a high-security US prison, but if they pleaded guilty, they would get only three years, possibly serving some of it in a British jail. In the end, they were sentenced to 37 months in a Texas prison because they gave way to the pressure.

That is standard practice in the American system, which has a corrosive over-reliance on plea bargains. Ninety-seven per cent. of cases are settled by a plea bargain in the United States. In the US, mandatory sentencing means that it is the prosecutor who determines the sentence, not the judge, which allows the prosecutor to operate a sort of judicial blackmail. The US imprisons a higher proportion of its citizens than any other country in the world. There are many reasons for that, but no doubt the ferocious use of plea bargains is a major factor.

Once charges have been brought, and after Dr Lynch—if he is unfortunate to suffer this—has spent months in appalling conditions, prosecutors will almost certainly try to convince him to admit guilt to a lesser charge. They will promise a shorter sentence, some of which might be served in the UK, and they will remind him of the huge financial cost of a protracted and complex trial. If he refuses, he will face the prospect of a deliberately intimidating lengthy sentence, and the costs of the trial could run into millions. The rules are set up for him to fail. He will be told that he must run his defence from his own prison cell, where he can only have one ream of paper at a time.

To put that in perspective, Dr Lynch’s trial so far has cost £40 million and has involved over 11 million documents. The opening arguments alone were 1,067 pages and the closing arguments were 4,494 pages. One can easily see how someone in Dr Lynch’s position would be coerced into giving in and admitting guilt, irrespective of the facts. I would not call that a plea bargain; I would call that blackmail. This is nothing like normal British justice. It effectively turns the presumption of innocence into the presumption of guilt.

Mike Lynch could be arrested any day now and sent to the United States to go through this appalling ordeal, but I hope not. I hope that the Home Secretary will use every legal mechanism available to delay this extradition until the judge has made his decision in the civil trial. UK and European law guarantee a right to a fair trial. An extradition before a UK trial has concluded is incompatible with that right, as it pre-empts the judgment of the court. The Home Secretary should therefore delay the extradition on grounds of basic justice, just as my right hon. Friend the Member for Maidenhead (Mrs May) refused the extradition of Gary McKinnon on human rights grounds when she was Home Secretary in 2012. If the Home Secretary certifies the extradition request, it is out of her hands. If she holds off certification, we can let British justice take its course.

In the longer term, we need to take a fresh look at our extradition arrangements with the United States, particularly as we embark on a new trading relationship with them. In the next decade, Britain and the US will develop even closer commercial relationships. Businesses developed by brilliant British inventors will look to merge, co-operate, or sell to big US companies. If the current extradition treaty stands, every one of them could face American extraterritorial legal action and a legal system stacked against them. In the interests of both countries, this has to change. We need to find a way to rein in the US’s extraterritorial tendencies and ensure that our arrangements are fair, balanced and based on reciprocity.

The simplest way to do that is to change the British law to exactly mirror the American law—the Americans cannot possibly complain about that—and say that the Secretary of State “may” extradite, rather than “must”. If the American system insists on trying to exercise extraterritorial jurisdiction in the American interest, perhaps we should mimic Israel and refuse to extradite British citizens for anything other than serious crimes of violence and terrorism. We need to give British citizens, businessmen and entrepreneurs the protection, certainty and justice that they deserve.