PUBLIC INTERNATIONAL LAW

INTRODUCTION

The development of the legal parameters of law dealing with international

crimes and the application of this law by both international and national

institutions have witnessed historical ebbs and flows1 manifesting a battle

between public international law and domestic law.

Traditionally, international law dealt, almost entirely, with the relations

and activities of states which began to change particularly in the years

succeeding the First World War, when the Covenant of the League of

Nations was drawn up, and after the Second World War which introduced

significant changes in this area.2

This has ushered in an increasing influence of international law into the

domestic arena and as Lord Bingham3 stated:

“To an extent almost unimaginable even 30 years ago,

national courts are called upon to consider and resolve

issues turning on the correct understanding and

application of international law not on an occasional

basis... but routinely and often in cases of great

importance”

Partly, the increasing importance of international law manifests the

increasing number of multilateral treaties to which the United Kingdom is

a party, generating obligations in more fields with which it has to comply,

the increasing number of organisations under such treaties capable of producing rules and rulings under them and a movement toward greater

recognition of human rights that are not dependent on their embodiment

in municipal legislation4 and thus, extradition.

1 J. Rikhof, „Fewer Places to hide? The impact of domestic war crimes prosecutions on international impunity‟ (2009) Crime LF

3 2 P. Sales and J. Clement, „International Law in Domestic Courts: the developing framework‟ (2008) LQR 388. As such,

matters of societal objects such as health, education and economics now fall within the ambit of international law. Individuals

are obviously not excluded from this list.

3 Forward to Shaheed Fatima, Using International Law in Domestic Courts (2005)

4 J. Howell and S. Fatima, „Using International Law in Domestic Courts‟ (2005) available on

<http://www.blackstonechambers.com/applications/dynamic/category.rm?id=1557&contentType=papers> accessed 23/11/2009.

Extradition law is an amalgamation of international and domestic law5

with an obligation on states to extradite due to treaty obligations that

work in tandem with a state‟s domestic extradition law.6 It involves a

complex admixture of levels and forms of regulation7, i.e., incorporating

various levels of international and domestic laws. Here, international law

refers to public international law.

The recent extradition cases of Gary McKinnon and the NatWest Three

which have brought forth so much controversy on the international scene

also serves as a point guard to the literature underlying Extradition,

particularly the United Kingdom (UK)-United States (US) Extradition,

which is the main focus of this essay.

In analysing the primary subject of this essay which is the relationship

between international law and domestic law, references will be made to

the various laws, national and international, that govern extradition,

particularly the Extradition Act 2003 (EA 2003) and the Extradition Treaty

(the Treaty) between the governments of the UK and the US of 2003.

There shall also be a representation of the cases of Gary McKinnon and

the NatWest Three as well as other extradition cases which will be used to

achieve the purpose of this essay. The various criticisms of these afore-

mentioned cases will not be left out. Finally, I shall conclude by summing

up my findings.

INTERNATIONAL LAW AND DOMESTIC LAW

International law denotes those rules and norms that regulate the conduct

of states and other entities which at any time are recognised as being

endowed with international personality, e.g. international organisations

and individuals, in their relations with each other.8 On the other hand, domestic law refers to those rules and norms that regulate the conducts

of members of a state within the particular state.

The reception of international law by a state and its internal effect is a

matter of municipal law9. In other words, a state‟s perception of

international law determines how the international law forms part of their

municipal law10. As such, the relationship between international law and

domestic law is often analysed with reference to the theories of dualism

and monism11.

5 It can also be called national or municipal law and all these names will be used interchangeably in this essay.

6 Harrington, Joanna, „The Absent Dialogue: Extradition and the International Covenant on Civil and Political Rights‟ (2006) 32

Queen's Law Journal, Available at SSRN: <http://ssrn.com/abstract=917739> 7 P. Arnell, „The Long Arm of the United States Law‟ (2007) 37 SLT 267

8 R.M.M. Wallace and O. Martin-Ortega, INTERNATIONAL LAW (6

th edn, Sweet and Maxwell, London, 2009) p.2

9 Ibid p.37

10 Ibid p.38

11 J. Howell and S. Fatima, “Using International Law in Domestic Courts” (2005) available on

<http://www.blackstonechambers.com/applications/dynamic/category.rm?id=1557&contentType=papers> accessed on

Dualism12 sees national and international law as independent of each

other as each operates within its enclosed sphere of influence. While

international law regulates the relations of sovereign states, national law

regulates the internal affairs of a given state. Consequently, this renders

the relevance and application of international law within a state at the

mercy of the municipal law. Dualism does not acknowledge that a dispute can arise between the two legal systems.13

Monism14, on the other hand, adopts a unitary concept of law and sees

both international law and domestic law as part of an integrated legal

system. Therefore, reception of international law does not require any

specific decision taken in accordance with domestic law. In the event of a

dispute between both laws, international law prevails.

In a dualist state such as the UK, international law and domestic law are

reckoned as separate legal systems, operating on different planes.15 As

such, international law does not form part of its domestic law.16 Although

international law may, at times, apply in domestic law, they do so based on their adoption by the domestic law of the state.17

In practice, the differences between international law and domestic law is

minimised and efforts are being made to achieve harmonisation between

the two systems. In the United Kingdom, there exits:

“... a prima facie presumption that parliament does not intend

to act in breach of international law, including specific treaty

obligations; and if one of the meanings which can reasonably

be ascribed to the legislation is consonant with the treaty

obligations and others are not, the meaning which is

consonant is to be preferred”.18

Similarly, in the United States, it is an established principle of

interpretation that

23/11/2009. However, Bogdandy has stated that monism and dualism should cease to exist as doctrinal and theoretical notions for discussing the relationship between international law and domestic law, arguing that their arguments which are rather hermetic, are not linked to contemporary theoretical debate, and as doctrines, they have proved unsatisfactory since they do not help in solving legal issues. See A. Bogdandy, “Pluralism, direct effect and the ultimate say: on the relationship between international and domestic constitutional law” (2008) 6 I.J.C.L. 399; and A. Bogdandy, “The past and promise of doctrinal constructivism: a strategy for responding to the challenges facing constitutional scholarship in Europe” (2009) 7 I.J.C.L. 378. 12

Or Positivism. 13

R.M.M. Wallace and O. Martin-Ortega opcit p.38. However, if any dispute arises between the two, municipal court will apply municipal law and vice versa. 14

Or Naturalism. 15

Jennings and Watts, Oppenheim’s International Law (9th edn, Peace, 1992) pp.54-55.

16 Apart from customary international law which is not a major part of this essay.

17 P. Sales and J. Clement opcit p.1. This classification reflects the outcome of the comprehensive review and analysis of

domestic law in this respect by the appellate committee in the International Tin Council Case, Re. See Maclaine Watson v Dept of Trade and Industry (1988) 3 W.L.R. 1033 18

Salomon v Commissioners of Customs and excise (1967) 2 Q.B. 116, CA per Lord Diplock; Post Office v Estuary Radio Ltd (1968) 2 Q.B. 740, CA. This is known as the Presumption of Compatibility.

“[A]n act of congress ought never to be construed to

violate the law of nations, if any other possible

construction remains....”19

Therefore, a State is monistic if it automatically accepts international law

as part of its domestic law without an express act of legislature whereas a State is dualistic if international law only forms part of its domestic law if

it has been expressly adopted as such by way of a legislative act.20

International law is the product of relations between states through

international agreements.21 It is hard to explain states‟ compliance with

international law and the only appealing logic to this is a matter of

compliance to maintain reputation. Due to lack of centralized enforcement

mechanism in international law, it is enforced by States themselves.22 But

how is domestic law viewed on the international scene?

DOMESTIC LAW IN INTERNATIONAL LAW

States are the principal persons of international law.23 However, a state

cannot argue as a defence to its breach of international law, its domestic

law24. As such, “each state has a duty to carry out in good faith, its

obligations arising from treaties and other sources of international law,

and it may not invoke the provisions of its constitution or its laws as an

excuse for failure to perform this duty”.25

On the international scene, international law is undoubtedly supreme, as

portrayed by both arbitral and judicial decisions and international

conventions which reflect accepted international law.26 That

notwithstanding, domestic law has a role to play in international tribunals.

Consideration of municipal law may make it possible to ascertain what a State‟s stance is on a particular issue at a given time. Consequently,

international tribunals may choose to look at national legislation which

may be employed as evidence of a State‟s compliance or non-compliance

19

Murray v Schooner Charming Betsy (1804) 6 US 64 at 118. See also Lauritzen v Larsen 345 US 571 at 578 (1953) as cited in R. Wallace and O. Martin-Ortega opcit p.39 20

Fitzmaurice‟s approach denies that there is any common field of application between international and municipal law. It provides that each is supreme in its own sphere. Therefore, only a conflict of differing obligations can occur. This approach seems to largely mirror state practice. See R.M.M. Wallace and O. Martin-Ortega opcit p.38-39 21

Ibid opcit p.63 22

That is if it is enforced. See R. Brewster, „Unpacking the States Reputation‟ (2009) 50 Harvard International Law Journal 231. 23

And formation of customary international law. 24

Vienna Convention on the Law of Treaties, (signed 23 May 1969, entered into force 23 January 1980) 1155 UNTS 331, UKTS 58 (1980), Cmnd. 7964, (1969) 8 ILM 679, Article 27. See also the Alabama Claims Arbitration (1872) Int. Arb. 495. 25

Exchange of Greek and Turkish populations case (1932) P.C.I.J. Rep., ser. A/B No. 46. See also Article 13, 1949 Draft Declaration on Rights and Duties of States prepared by the International Law Commission. See also Applicability of the obligation to Arbitrate under section 21 of the United Nations Headquarters Agreement of 26

th June 1947, I.C.J. Rep., 1988, 12.

This means that a State should not seek to evade fulfilling an international obligation because of either the presence or absence of a municipal legislative provision. This, as suggested by Wallace, must be the standpoint at the international level if international law is to succeed and maintain credibility. See R. Wallace and O. Ortega opcit p.40. 26

Ibid.

with international obligations.27 In the Alabama Claims Arbitration,28

the tribunal concluded that neither municipal law nor the absence of them

could be pleaded as a defence for non-compliance with international

obligations.

Consisting of a largely separate set of legal rules and institutions,

international law has long governed relations among states29. It has penetrated the once exclusive zone of domestic affairs to regulate the

relationships between governments and their own citizens, especially

through the growing body of human rights law and international criminal

law.30 What is its effect on domestic law?

INTERNATIONAL LAW IN DOMESTIC LAW

There are various forms by which a treaty can form part of the law of the

domestic law of a State31. A State can expressly adopt international law

into its domestic law32. Thus, there is a transformation of international

law into domestic law by, for example, Act of Parliament33. There is no written constitution defining the internal status within UK of international

law.34Treaties only form part of English law if an enabling Act of

Parliament has been passed35.

A State can also incorporate international law as part of its municipal

law36. There is no general obligation in international law that a treaty

must be incorporated into domestic law37. So, automatic incorporation has

been rejected in the UK as expressed in The Parliament Belge38. This is

normally applicable in monist States like Germany and Italy39. 27

For example the International Tribunal of the Law of the Sea,(1999), 120 I.L.R. 143. See Polish Upper Silesia, (1926) P.C.I.J. Rep., ser.A, no.7 at 22. 28

The International Court of Justice, while confronted with issues relating to company law held that “[I]n this field, international law is called upon to recognise institutions of municipal law that have an important and extensive role in the international field....” See Moore (1872) Int. Arb. 495; the Barcelona Traction, Light and Power Co case (1970) I.C.J. Rep. 3. 29

A. Slaughter and W. Burke-White, The Future of International Law Is Domestic (or the European Way of Law) (2006) 47 HARV. INTN‟L L.J. 2. 30

A. Slaughter and W. Burke-White, An International Constitutional Moment (2002) 43 HARV. INTN‟L L.J. 1. 31

Since the effect of international law in domestic law depends on domestic constitutional arrangements, it is necessary to recall certain fundamental constitutional principles. The primary principle is that of the sovereignty of parliament in the making of laws. 32

O‟Brien J., international law (Cavendish Publishing Limited 2001) p.113. 33

This is known as the doctrine of Transformation. 34

R.M.M. Wallace and O. Martin-Ortega opcit p.40. Therefore, it seems inevitable that an analysis of the extent to which international law is incorporated into English domestic law will have to contend with how to deal with binding norms in international law which have not been enacted by parliament and which may not be consistent with ordinary domestic law. See P. Sales and J. Clement opcit p.390. 35

I. Brownlie Principles of Public International Law (6th edn: Oxford, Oxford, 2003) p.45.

36 This is known as the doctrine of Incorporation.

37 Matadeen v Pointu (1999) 1 A.C. 98 at 116. See also Observer v United Kingdom (1991) 14 E.H.R.R. 153 at 76, as cited in

P. Sales and J. Clement opcit p.421. The executive has no power to alter domestic law and that circumscription equally applies to the executive act of signing and ratifying an international treaty. See Maitland, The Constitutional History of England (1908) p.424. 38

(1879) 4 P.D. 129. Here, there was a collision between the Parlement Belge, which was owned by the King of Belgium, and the British ship and the later sued for damages. The court held that there was no immunity for the ship in spite of an 1876 agreement between Belgium and Britain. 39

Article 10 of Italian Constitution, 1947 provides that “Italian law shall be in conformity with the generally recognised rules of international law”. Also, Article 25 of the Germany‟s Constitution provides that “[T]he general rules of public international law are an integral part of federal law. They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the Federal territory”. It is worthy of note that customary international law forms part of UK domestic law.

International personality principle upholds that a State must be sovereign

and its jurisdiction within the limits of its territory applies to all

inhabitants. 40 The exercise of jurisdiction remains, basically, a

discretionary matter for the State concerned41. If an alleged offender is in

a territory other than the state seeking to exercise jurisdiction, the lawful

method of securing his return to stand trial is to request his extradition42.

EXTRADITION

“Extradition is a municipal legal procedure, often the subject of treaty

obligations, by which the criminal justice authorities of one state (the

requested State), arrest and surrender to those of another (the

requesting State), a suspect or fugitive convict present in the territory of

the former State and wanted by the latter”43. Extradition as a rule is an

internationalisation of jurisdiction44 and is effected by bipartite treaty.45

Extradition Law

Internationally, the UK is a party to a number of bilateral extradition

treaties46. Its extradition arrangements with the US are governed by

regulation at two levels: international and national. The international

instrument is the treaty between the governments of the UK and US of

2003 (the Treaty)47. On the domestic scene, extradition requests made to

the UK are dealt with under the Extradition Act 2003 (EA 2003).

The Treaty

The treaty has only been in force between the UK and US since April 2007

even though the UK has been acting in accordance with its terms since

40

R.M.M. Wallace and O. Martin-Ortega opcit p.65. 41

R. Wallace International Law. (5th edn. Sweet and Maxwell, London, 2005)

42 R. Wallace and O. Martin-Ortega opcit p.135

43 R. O‟Keefe, “Double-plus good or double trouble” case comment (2009) 68 C.L.J. 9. See also A. Doobay, “The non-taxing

weekly for top practitioners” (2006) 8 Tax Journal. Extradition is also the handing over of an alleged offender (or convicted criminal who has escaped before completing his prison term) by one state to another. 44

C. Bamford, “Extradition and the Commercial World (2007) 28 Comp. Law. 97. 45

See for example treaty of April 2004, between US and UK (Treaty No. 108-23). The treaty replaces the 1972 Extradition Treaty and the 1985 supplementary treaty. See also convention on extradition between the member states of the European Union 1996 and incorporated into UK law by the European Union (EU) reg. 2002, pursuant to the anti-terrorism, crime and security act 2001. There is no duty to extradite in the absence of a treaty. The ILC‟s draft code of crimes, above n 23 seeks to impose an obligation on a state to extradite an individual alleged to have committed crimes to humanity (art. 6). 46

50 of such treaties are cited on the Foreign and Commonwealth website available on <http://www.fco.gov.uk/resources/en/pdf/3706546/Bilatextradition> 47

P. Arnell and A. Reid, “Hackers beware: the cautionary story of Gary Mckinnon” (2009) 18 Information and Communications Technology Law 3.

the 2003 Extradition Act entered into force on 1 January 200448. As such,

requests for extradition to the UK from the US were considered under the

1972 Extradition Treaty49 while those to the US from the UK were

considered under the 2003 Treaty.

Under the Treaty, parties are under a general obligation to extradite

where the terms of agreement are met50. It also defines „extraditable

offences‟ as those offences criminal within both states and punishable by

more than one year imprisonment upon conviction51.

Effects of the Treaty

The UK-US Treaty has three main effects

1) It removes the requirement on the US to provide prima facie

evidence when requesting the extradition of people from the UK but

maintains the requirement on the UK to satisfy the “probable cause”

requirement in the US when seeking extradition of US nationals52;

2) It removes or restricts key protections currently open to suspects

and defendants;

3) It implements the EU-US Treaty on extradition, signed in

Washington on 25 June 2003, but far exceeds the provisions in this

agreement53.

One of the reasons given for the 2003 Treaty was the need for the fast-

track extradition of terrorists. Although terrorism may not have been the

genesis for the 2003 Treaty, it may be right to assume that the

negotiations were accelerated by the attacks54. Also, why the UK sought

48

The US senate only ratified the Treaty on 29 September 2006 even though the only the UK applied it in its extradition cases to the US. 49

This Treaty the US-UK Extradition Treaty of 1972 which preceded the 2003 Treaty. 50

Article 1 of the Treaty 51

Article 2 of the Treaty. Its subsection 4 interestingly states: “If the offence has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstance. If the laws in the Requested State do not provide for the punishment of such conduct committed outside its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met”. 52

This runs contrary to the provision of the 1972 Treaty in this regard under which the UK and US can each insist that the other‟s authorities show a prima facie case (known in the US as the „probable cause‟) on evidence before granting extradition to the other. 53

The then Prime Minister Tony Blair commented that the Treaty was “justified in a Post September 11 context”. See B. Hayes, “The new UK-US Extradition Treaty” Statewatch analysis no 17 available on <http://www.statewatch.org/news/2003/jul/25ukus.htm> accessed 1/12/2009. 54

A. Doobay, “United Kingdom: The US/UK 2003 Extradition Treaty- An American Perspective?” (2006) Peters & Peters, available on <http://www.mondaq.com/article.asp?articleid=37284&login=true> accessed on 1/12/2009.

fit to lower the evidential threshold is not explained and there are

suggestions that the Treaty was negotiated in secret55.

Although the negotiation of treaties by the UK is entirely a matter for the

executive acting under the Royal Prerogative56 and which does not need

Parliamentary approval of signature of treaties, it must be implemented

domestically by legislation57 if it is to affect the individual rights in the

UK58.

EA 2003

The EA 2003 applies to extradition requests received on or after 1

January, 2004. It, inter alia, gives force to the Treaty59 and introduced a

new scheme of extradition to and from the UK largely found in two sets of

arrangements, Part 1 and Part 260.

The former deals with extradition within the 27 Category 1 territories that

have implemented the Council Framework Decision of 13 June, 2002 on

the European Arrest Warrant (EAW)61. However, this will not be dealt on

much as it is not relevant to this essay.

The later generally covers „Category 2 States‟ with which the UK has

regular extradition dealings, including the US.62 It retains a limited role

for ministers who have the final say and preserves the role of the judge

but on information only, not probable cause, in the case of category 2

states.

Subsequent to a Category 2 request meeting the required formalities, and

where that state is exempted from providing evidence, the Court63 must

consider64 whether any bar to the extradition exists65. EA 2003, provides

55

K. Thomas, “The New Extradition Regime- How Unjust Is It?” (2006) 8 J.I.B.F.L. 331. On 31 March 2003, it was announced in the House of Lords that a new extradition Treaty had been negotiated and would be signed later on that day. This was apparently the first public statement about the Treaty and it was not subjected to Parliamentary scrutiny. See also B. Hayes opcit. See also Lord Goodhart, “Extradition of Bankers To The USA” (2005) 4 J.I.B.F.L. 96 56

Lord Goodhart, “Extradition of Bankers To The USA” (2005) 4 J.I.B.F.L. 96. 57

Just like the EA 2003 and the Designation Order 58

K. Thomas opcit. See also Lord Goodhart, opcit 59

Ibid. See also P. Arnell and A. Reid opcit p.4. 60

There are also arrangements for more exceptional situations. These relate to international treaties containing extradition provisions with which the UK is a party (s.193) as well as a section bordering on extradition with a state with which the UK has no other extradition arrangements. 61

It is designated as such by SI 2003/3333, SI 2004/1898, SI 2005/365, SI 2005/2036, SI 2006/3451 and SI 2007/2238. This is listed on the Home office website on <http://police.homeoffice.gov.uk/operational-policing/extradition-intro1/extrad-part-1/> accessed on 1/12/2009. 62

It encompasses territories of non-EU members of the European Convention on Extradition or the London Scheme for Extradition within the Commonwealth. This is stated on the Home office website on <http://police.homeoffice.gov.uk/operational-policing/extradition-intro1/extrad-part-2/> accessed 1/12/2009. Category 2 States have been designated as such by The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, SI 2003/3334, SI 2004/1898, SI 2005/365, SI 2005/2036, SI 2006/3451, SI 2007/2238 and SI 2008/1589. 63

Bow Street Magistrates‟ Court in England and Wales or the Sheriff Court of Lothian and Borders in Scotland. 64

According to the EA Act

for bars to extradition which includes human rights grounds, specialty,

double jeopardy and extraneous considerations.66

GARY MCKINNON67

McKinnon, a British residing in the UK who has Asperger‟s Syndrome68

had gained unauthorised access to computers belonging to and used by

the US government over the internet between 2001 and 2002. He hacked

into 73,000 computers including those belonging to the US army, navy

and the National Aeronautics and Space Administration69 and had deleted

critical data70.

The compromises were traced to his computer and in 2002, authorities in

the United States traced McKinnon to London which led to the seizure of

his computers pursuant to a request for mutual legal assistance. Forensic

analysis confirmed that McKinnon had indeed hacked into the American

computer systems, installed software, scanned a large number of

computers and affected their integrity which rendered the computers

unreliable71.He was interviewed twice during which he admitted

responsibility.

THE NATWEST THREE72

In July 2006, the so-called NatWest Three, bankers David Bermingham,

Giles Darby and David Mulgrew (the appellants) were extradited to

Houston, Texas to face charges of fraud and insider dealing. It is said that

they conspired with Enron‟s chief financial officer73 and its managing

director to defraud their former employer, a subsidiary of Royal Bank of

Scotland, which own NatWest Bank74.

65

On the basis of the rule against double jeopardy, the passage of time, political factors and Human rights grounds.

66 See A. Doobay, „Extradition‟ opcit p.1.

67 McKinnon v United States (2007) EWHC 762 (Admin); (2007) 157 N.L.J. 554.

68 Asperger‟s Syndrome is not a mental illness per se, but a development disorder on thee Autism Spectrum. This was

diagnosed by Cambridge Professor Simon Baron-Cohen, a well known expert on adult Asperger Syndrome who believes that McKinnon should not be treated as an ordinary criminal but as someone with a disability. 69

Otherwise known as NASA 70

McKinnon v United States (2007) EWHC 762 (Admin); (2007) 157 N.L.J. 554 71

McKinnon v Government of the USA, [2008] U.K.H.L. 59, at para. 15 72

R. (on the application of Bermingham) v Director of the Serious Fraud Office and Bermingham and others v the Government of the United States of America and the Secretary of State for the Home Department [2006] E.W.H.C. 200 (Admin); [2007] Q.B. 727; [2007] 2 W.L.R. 635 (herein after “Bermingham”) 73

Enron was a US Company who was a client of the UK Bank 74

A UK bank

The appellants were alleged to have caused the bank to sell its interests

in a limited partnership for US$1m to an entity which they controlled

knowing that it was worth much more. It was argued that each received

in excess of US$ 2.4m on sale of the partnership while the Enron

conspirators allegedly made US$10m75. They pleaded guilty to conspiracy

in Texas and gave evidence against the NatWest Three which was used to

indict the men in Texas on charges of wire fraud and aiding and abetting

wire fraud76.

Further discussion on these cases will be limited to the under-listed

subheadings:

EVIDENTIAL REQUIREMENT IN THE UK-US EXTRADITION TREATY

A reading of the Treaty reveals a level of disparity between the evidential

requirements of each nation in that whereas the US is only obliged to

provide information to show the request is valid, any UK request has to

be supported by such information as would provide a reasonable basis to

believe that the person sought committed the offense for which

extradition is requested77.

In effect, the evidence requirement on the US has been dropped

altogether while the UK must still provide evidence to the standard of a

reasonable demonstration of guilt. The reason behind this lack of

reciprocity is:

“[T]hat the United states has a constitutional protection which

prevents it from extraditing a US citizen purely on the say-so

of a foreign government. As the UK does not have such a

constitutional protection, the UK is at liberty to forego this

important safeguard in the interests of speeding up

extraditions to the US”78.

75

K. Thomas opcit p.333 76

Bermingham. 77

G. Davies, „Extradition post the NatWest Three‟ (2006) 156 NLJ 1542. Article 8, paragraph 3 (c) of the Treaty. This runs contrary to the provision of the 1972 Treaty in this regard under which the UK and US can each insist that the other‟s authorities show a prima facie case (known in the US as the „probable cause‟) on evidence before granting extradition to the other. 78

S. Alegre , Justice briefing on extradition to the USA The UK-US Treaty of March 2003 and the EU-US Agreement of June 2003, July 2003, available on <http://www.justice.org.uk/images/pdfs/extraditionusa2.pdf> accessed on 2/12/2009. Probable cause is a requirement in the US Bill of rights which cannot be amended. See C. Warbrick, “Recent Developments in UK Extradition Law (2007) 56 I.C.L.Q. 199 at 204. This originated in the Fourth Amendment to the United States Constitution. See K. Thomas as cited in P. Arnell and A. Reid, “Hackers beware: the cautionary story of Gary McKinnon” (2009) 18 Information and Communications Technology Law 1 at p.8

Total reciprocity in extradition relations is however not possible because

of the difference between legal systems, rules of evidence and case law79.

Alan Johnson‟s (Alan)statement that the issue of a less evidential

threshold is merely academic in McKinnon‟s case because the later

admitted much of the claims alleged against him, and as such, left no

room for evidential imbalance provoked controversy in the House of

Commons.80

It was against this backdrop that the NatWest Three fought their

extradition battle and the case highlights the imbalance in the countries‟

extradition arrangements81. “It is this asymmetry which has led to the

accusation that the NatWest Three... have been harshly treated82.

DOUBLE CRIMINALITY

The Treaty83 sets out the new extradition procedures between the two

countries. As with the old treaty84, the offences in question must satisfy

„dual criminality‟85 and be punishable in both states by a minimum

custodial sentence of one year or more86.

In Category 2 cases87, there exists a double-criminality requirement

stipulating that persons may only be extradited if the crime alleged by the

requesting state is also criminal in the UK88.

McKinnon has been charged with a number of offences against Section

1030 of Title 18 of the United States Code,89 which makes it an offence to

79

C. Warbrick, “Recent Developments in UK Extradition Law (2007) 56 I.C.L.Q. 199 at 204. This reciprocity was lost when the UK ratified the Treaty and the US to do so which they later did. This means that while the UK had to show probable cause in a US court to seek the extradition of an individual from the US, the US only had to provide information- usually in the form of an affidavit, setting out the charges against the suspect and relevant arrest warrant. 80

The Home Secretary‟s reply to David Burrowes‟s (Member representing Enfield Southgate)question of why he doesn‟t want to intervene on Gary‟s extradition to the US. This is available on <http://news.bbc.co.uk/1/hi/uk/8389310.stm> accessed 3/12/2009. This was criticised by Damian Green, Shadow Immigration Minister who said the above statement entails that the Home Secretary disagreed with the Attorney General, Baroness Scotland who in 2003 expressed that there was an imbalance in the evidential threshold provisions of the treaty against the UK. 81

G. Davies opcit p.1542 82

K. Thomas opcit p.331 83

Article 8 of the 2003 Treaty 84

The 1972 UK-US Treaty 85

Extradition treaties normally relate only to serious crimes and impose the same obligations on both the parties concerned, e.g. the offence must be designated a crime under the domestic laws of both countries. 86

Article 1 of the 2003 Treaty. 87

In terms of sections 137 and 138 of the EA 2003 88

P. Arnell, “The long arm of the United States law” (2007) 37 S.L.T. 267. 89

Entitled „Fraud and related activity in connection with computers‟ (the code)He was specifically charged with seven counts of violating subsections (a)(5)(A)(i), (a)(5)(B)(i) and (a)(5)(B)(v) of the Section 1030 of the code.

knowingly cause electronic transmissions that intentionally cause

unauthorised damage to a protected computer90.

The equivalent United Kingdom cases are found in the Computer Misuse

Act 1990 with the additional possibility of liability arising under the

Aviation and Maritime Security Act 1990. At the relevant time, the

Computer Misuse Act 1990 provided for three principal offences:

„unauthorised access‟91, „unauthorised access with intent92 and

„unauthorised modification‟.93

HUMAN RIGHTS

When an extradition request has been made, the judge in the requesting

state must consider whether the extradition would be compatible with the

European Convention on Human Rights (ECHR)94.

The judge will start from the presumption that all countries which have

general extradition arrangements with the UK95, will have systems of

justice which afford rights to a defendant which are equivalent to those

guaranteed by the ECHR96.

McKinnon argued, in respect of human rights, that his Article 8

Convention rights would be unlawfully infringed. The court held that there

were not the „exceptional‟ circumstances necessary in his case to hold

human rights as a bar to the extradition. The final judicial stage of

McKinnon‟s opposition to extradition took place in Strasbourg at the

European Court of Human Rights (ECTHR).97

90

This is contained in the first provision of the code. A protected computer is defined as one used exclusively by the US Government, by subsection (e)(2) of section 1030. It is another offence to knowingly cause such a transmission, intentionally access a protected computer without authorisation and thereby recklessly or otherwise cause damage that either causes a financial loss greater than US$5000 or causes damage to governmental computer systems used in national defence, national security or administration of justice purposes. This is contained in the second provision of the code. Conviction under section (a)(5)(A)(i) carries with it the risk of a fine and a period of imprisonment of up to ten years. This is contained in section 1030(c)(4)(A) 91

Section 1 commonly referred to as hacking offence. This offence attracts a maximum jail term of ten years as increased by the Police and Justice Act 2006 from the previous provision in the 1990 Act. 92

Section 2. This also attracts a maximum jail term of ten years. 93

Section 3. This was later known as „unauthorised acts‟ offence which has been in force in Scotland since the 1st of October

2007 and is principally designed to attack activities impairing the operation of computer systems. The Police and Justice Act 2006 also created the new ancillary offence under Section 3A of making adapting, supplying or obtaining articles used to commit offences under the 1990 Act. the unauthorised offence attracts a maximum twelve-month sentence . See P. Arnell and A. Reid opcit p.3. The Aviation and Maritime Security Act 1990 created the offence of endangering ship navigation which suffices by a serious interference of a person with the operation of the apparatus or navigation used for maritime navigation. Section 12 (1)(b) and (2) of the Act. the offence of endangering ship navigation attracts a life sentence. 94

A. Doobay, “Extradition” (2006) 8 Tax Journal Issue 849 p.6 95

Such as the USA 96

A. Doobay, “Extradition” opcit 97

Interestingly, the substantive arguments put forward were not akin to those made in the House of Lords to the effect that plea bargaining system entailed a breach of his fundamental rights.

Novel arguments were made that he would suffer torture or inhuman

degrading treatment due to the conditions in which he would be detained

if convicted in the US.98 This argument is partly based on his suffering

from Aspergers Syndrome, a form of autism. At the ECTHR, McKinnon‟s

lawyers first requested and were granted interim relief to the effect that

McKinnon would not be extradited until ECTHR heard the arguments

which it did and refused them99.

The ECHR established the non-refoulement principle100 within the scope of

its Article 3, that the extradition of a person from an ECHR state party to

another country where there is a serious risk that this person could be

subjected to torture or to inhuman or degrading treatment or punishment

would amount to a violation of Article 3101.

Alan, in his response in the House of Commons stated that this issue has

been brought before the courts102 and they have decided that McKinnon‟s

condition does not suffice for a protection under Article 3 of the ECHR

based on all the evidence that his lawyers have put up on his behalf103.

Summarily, Alan told the Commons the extradition would not breach

human rights but accepted there were concerns over Mr McKinnon's

health. "The reality is that he hadn't stood up for a UK citizen who's

extremely vulnerable to the point where he is suicidal, and should be

physically contained because of the extent of his mental illness, aligned to

his Asperger's Syndrome."104

In NatWest Three, the appellants submission that they should, if at all, be

tried in England instead of the US and that a contrary decision infringed

their rights under the Human Rights Act, 1998 was discountenanced. A

trial in Texas would not violate their rights to fair trial105 and while their

right to family life106 will be disrupted, this was not disproportionate under

existing Strasbourg jurisprudence and English authority107.

98

This is in line with article 3 of the ECHR. 99

See „Hacker loses extradition appeal‟, 28 August 2008, available at <http://news.bbc.co.uk/1/hi/uk/7585861.stm> accessed 2/12/2009 100

Soering v United Kingdom (1989) 11 E.H.R.R. 439 101

In R (Wellington) v Secretary of State for the Home Department (2008) U.K.H.L. 72, (2009) 1 A.C. 335, the House of Lords grappled with the difficult question whether a sentence of life imprisonment imposed by the state seeking extradition raises an issue under Article 3 ECHR. See also M. Milanovic, “Extradition and life imprisonment” (2009) 68 C.L.J. 248. 102

From the Lower courts to the House of Lords 103

This was a response to the question posed to him by ,inter alia, Chris Huhne, the Liberal Democrats Home Affairs Spokesman who asked him if, given the worsening situation of his medical condition, the Home Secretary cannot intervene in that regard based on his powers to halt extradition and if it was not a breach of his rights to extradite to him to the US where he stands a risk of over 60 years imprisonment and suicide based on his condition. 104

David Burrowes criticism on the McKinnon‟s extradition order, available on <http://news.bbc.co.uk/1/hi/uk/8389310.stm> accessed 3/12/2009. 105

European Convention on Human Rights, 1950, Article 6. 106

Ibid Article 8. 107

K. Thomas opcit

CONCLUSION

Extradition has in its own way, brought about interplay between

international law and domestic law. While so much controversy surrounds

the practical aspect of the concept, it is worthy to mention that

Membership of the European Union and the enactment of the Human Rights Act 1998 have incorporated two bodies of substantive international

law into English domestic law108.

It is axiomatic that municipal courts have not and cannot have the

competence to adjudicate upon or enforce the rights arising out of

transactions entered into by independent sovereign states between

themselves on the plane of international law109. Coupled with the partial

enforcement mechanism which States offer to international law, it is

obvious that both laws have to co-exist to give birth to an ideal world

community where laws are not threaded.

International relations is obviously a wonderful concept and if it could bring fraudsters like the NatWest Three to book and discover the acts of

McKinnon who, if he was not traced, would have brought havoc to the US

and indeed, the entire world, the war against terror would not be an effort

in futility.

108

J. Howell and S. Fatima opcit p.1 109

JH Rayner (Mincing Lane) ltd v DTI [1990] 2 AC 418 as cited in the International Tin Council case opcit, per Lord Oliver. This is known as the principle of non-justiciability.

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