There are now a number of issues of extradition and procedure on which there is potential conflict between American and non-American law. The extradition issue has caused considerable anxiety among United Kingdom businessmen, who have been alarmed by the case of the so-called Nat West Three and other high profile business cases.
After 9/11, there was a natural willingness in Britain to assist the United States authorities in extradition proceedings against suspected terrorists. With minimum negotiation, the British Home Secretary, David Blunkett, accepted an unequal treaty which somewhat simplified U.S. extradition to the United Kingdom, but virtually eliminated habeas corpus safeguards in extradition cases from the U.K. to U.S. Under the old law, the U.S. had to show that there was a prima facie case that a crime had been committed. Under the new treaty, the U.K. has to show “probable cause” to obtain an extradition order from a U.S. court, but the U.S. prosecutor only has to show that charges have been lodged. Britain has simultaneously agreed to the European Arrest Warrant, which means that any European Court can extradite any British resident without showing justification. The warrant is enough. However, the European arrangements, though unsatisfactory and offering no protection, are at least reciprocal.
In themselves, the extradition rights conferred on U.S. courts removed a traditional protection for the British subject or resident. However, the policies of the Bush administration, and U.S. court rulings on detention of foreigners have caused even greater anxiety.
Part of the anxiety comes from the U.S. practice of plea bargaining. In the Sotheby’s case, there was a price fixing agreement between Sotheby’s and Christies. The Christies side confessed to the offence, and Sotheby’s executives went to prison. This was not an injustice, in the sense that Sotheby’s had committed this offence, but it did reward one competitor for making an accusation against another.
British law only allows plea bargaining in certain cases. In American law it has become the normal way to obtain convictions. Yet the evidence of a co-conspirator, who benefits from denouncing an accused person, must always be suspect. To British eyes it is contrary to natural justice that business “crimes” should be prosecuted with reliance on such evidence. And business crimes in the U.S. are not always criminal in the U.K.
The combination of extradition without prima facie proof with plea bargaining, when the accused come before the U.S. courts, has been both resented and feared.
There is also a widespread feeling in Europe that both “rendition” and “extraordinary rendition” fail to respect the laws of other countries. If an American agency kidnaps a suspect and takes him abroad against his will, that is an offence against almost every national law. It does not cease to be an offence because it has been approved by the U.S. Congress or by an American court. I know of no case in which an American agent has been charged with kidnapping in a British Court, though there was an incident in which an Italian Judge threatened to do so.
To the British this creates a risk in doing business in the United States. It also raises questions about the adherence of U.S. law to legal concepts such as fair trial and habeas corpus. In particular, the Supreme Court has seemed dilatory in dealing with the rights under the U.S. constitution of the victims of extraordinary rendition. The British used to think that the legal traditions of the U.S. and U.K. gave similar protection to the citizen. That belief has been eroded.
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