A bone of contention with America

Reforming the extradition treaty between the UK and the United States cannot be impossible.

In their report published today, the Commons Home Affairs Select Committee makes a number of recommendations for reforming the extradition treaty between the UK and the United States, which has been a bone of contention ever since it was signed nine years ago. The MPs find it hard to understand why the British Government has been so slow in responding to concerns about the treaty or why the Americans are so adamant that it should not be changed one jot.

But reform of an inter-governmental treaty is not easily achieved. The US maintains that it was negotiated in good faith and is understandably reluctant to reopen it. However, it would be in Washington’s interests to do so, since the perceived imbalance in the arrangements is a gift to anti-American sentiment in this country. It would also be in the interests of justice to do so. As the overwhelming weight of evidence to the committee testified, the treaty seems to give greater protection to an American whose extradition is being sought than it does to a Briton wanted for trial in the US. In America, “probable cause” of a crime must be shown; in the UK the test is “reasonable suspicion”. Some jurists say that these are, in practice, the same thing. But semantic arguments are fruitless because a sense of unfairness will not go away unless this is addressed.

The committee also proposes that where both countries claim jurisdiction, a judge should have the power to decide that a person be tried in the UK, where it is in the interests of justice. This, too, is eminently sensible. There should also be a test of whether the crime for which extradition is sought is proportionate to the hardship likely to be faced by those who are extradited. Making these changes will be difficult, but cannot be impossible.