FAQs on the US-UK Extradition Relationship
Frequently Asked Questions on the US-UK Extradition Relationship
Updated: April 2013
What’s the purpose of the U.S.-UK extradition treaty?
- The treaty allows both the U.S. and the UK to seek justice for serious crimes affecting each of our countries and our citizens. Without such an agreement, both our countries would be unable to protect our citizens from criminals who flee our borders or commit crimes across our borders.
- The treaty also ensures that extraditions are conducted in a way that is consistent with laws of both our countries. It protects the rights of the accused while providing justice for the victims of serious crime.
- The law enforcement relationship between the United States and United Kingdom is predicated on trust, respect, and the common goals of protecting our nations and eliminating safe havens for criminals.
Is the U.S.-UK extradition treaty unfairly balanced in favor of the United States?
- It’s not. The extradition treaty is fair, and Sir Scott Baker’s review found it to be so. The UK government has accepted the review’s conclusions that there is no imbalance in favor of the U.S.
Wasn’t the treaty created to deal with terrorists? Isn’t the U.S. now misusing that treaty to go after regular UK citizens accused of minor crimes?
- The Treaty was never intended to deal only with terrorism cases. In fact, renegotiation of the treaty began before September 11, 2001.
- The new treaty updated the formal extradition relationship between the U.S. and UK following changes in the UK’s own extradition laws and corrected a previous imbalance that required the US to present its evidence in “prima facie” form, when the U.S. had never required that from the UK.
- The treaty strengthens each country’s ability to extradite serious offenders for a wide variety of crimes – including terrorism and other violent crimes, organized crime, and white-collar crime.
Why can British citizens be tried in the U.S.
for something that isn’t even a crime in the UK?
- They can’t. This is a “dual criminality” treaty. No one can be extradited by either country unless the offense is a crime in both countries and carries a prison sentence of at least one year.
For some of the recent cases – McKinnon, Tappin, O’Dwyer – isn’t it unfair to extradite those individuals, considering the circumstances of their cases?
- In order to protect the rights to due process of individuals facing possible legal proceedings in the U.S., American officials do not generally comment on individual cases. Therefore, we cannot discuss the details of these cases, and will only comment on the treaty and U.S. legal procedures in general.
- Every time the U.S. requests an extradition from the UK, we provide significant evidence to British authorities to back up the request. A suspect must be charged in the U.S. in a charging document that meets the U.S. probable cause standard before an extradition request is submitted to the UK.
- Individuals are only extradited after a UK court has reviewed the case and determined that it meets the legal requirements for extradition.
- In the United States, anyone accused of a crime – including someone extradited from another country -- is innocent until proven guilty. The presumption of innocence is the cornerstone of our legal system.
- The U.S. also respects all due process rights that a suspect may want to exercise in the UK or European courts to challenge his extradition to the U.S., and we guarantee the right to a fair and speedy trial in the U.S. courts.
- Extenuating circumstances, such as a serious medical condition, are taken into consideration in the U.S. judicial system, just as they are in the UK.
If the extradition treaty requires that the offense be a crime in both countries, then why can’t British citizens just be tried in the UK?
- Prosecutors in both countries are the ones who decide where to prosecute a case. They do that according to established guidelines and after a detailed consultation about the circumstances of the case.
- They consider a number of factors, including the location of the victims and where the harm or loss occurred, as well as the location of the accused, the evidence and the witnesses.
- The Baker panel concluded there is no injustice in the current process for determining the ‘forum’ (location) for trying a case, and that instituting a ‘forum bar’ in the UK -- which require judges to determine the forum -- would cause considerable delay in due process for the accused and additional burden on the court, without any change in current outcomes. Judges interviewed for the Baker report could not identify a single case where the “forum bar” would have required a different outcome.
- The treaty does not only apply to citizens of the U.S. or the UK; it applies to anyone accused of a crime in one country that may be located in another country when the warrant for their arrest is issued. Many extraditions between the U.S. and the UK involve third-country nationals.
Why is it so much easier to extradite someone from the UK to the U.S. than in the other direction?
- It isn’t. The United States has not denied a single extradition request from the UK under the treaty; the UK has denied 10 requests from the U.S. since the treaty took effect.
- Moreover, extradition requests from the U.S. to the UK have taken as long as 13 years to work their way through the UK and European courts. For extradition requests from the UK to the U.S. the subjects are in most cases extradited within several months.
- A panel of UK extradition experts, led by well-respected retired judge Sir Scott Baker, found that the treaty is fair and balanced. Its report, issued in October 2011, provides considerable data and analysis to support the panel’s conclusions.
- The Baker panel report notes that the U.S. has a population about five times the size of the UK, but there have been fewer than twice the number of people extradited to the U.S. than to the UK. The number of U.S. requests is therefore not disproportionate.
What are the correct numbers of extraditions between the United States and the United Kingdom?
- Based on the numbers provided to Sir Scott Baker’s panel, under this treaty, 130 extradition REQUESTS were submitted from the U.S. to the UK. Of those 130 requests, the UK has refused 10. Of the remaining 120, 77 individuals were extradited from the UK to the U.S.; the other 43 cases remained pending in the UK system, or the individuals returned to the U.S. on their own, or other circumstances made the extradition no longer necessary.
- During the same time period, the UK submitted 54 extradition REQUESTS to the US, of which none have been refused. Of those 54 requests, 38 resulted in extradition of an individual from the U.S. to the UK. In the remaining 16 cases, the individuals either returned to the UK on their own or other circumstances made extradition from the U.S. to the UK no longer necessary.
- We don’t track extraditions by the citizenship of the accused – requests are submitted based on where a person accused of a crime is believed to be, not based on citizenship. We can’t say definitively how many of these requests or extraditions were of U.S. or UK citizens, but citizens of a wide range of countries are represented in these numbers.
- Those statistics are also confirmed on page 472 of the Baker Commission’s report on extradition. Considering the relative sizes of our populations, these numbers do not demonstrate any imbalance in favor of the U.S., particularly since we have never refused a request from the UK.
Why do so many critics say that the standards are not the same? Why can the U.S. request the extradition of British citizens without having to provide any evidence of a crime?
- The U.S. must and does present significant evidence to the UK with every extradition request. UK authorities consider that evidence before agreeing to extradite a suspect.
- The evidentiary standards that each country has to meet to extradite someone are the same.
- In fact, in practice, all extradition requests between the U.S. and UK must meet the evidentiary standards required in both countries. Each country is also always required to present enough evidence to meet our domestic standards – either “probable cause” or “reasonable suspicion” – before prosecutors can issue an arrest warrant and request an extradition from the other side.
Why does the U.S. use a Grand Jury to try people in secret before extraditing them?
- A Grand Jury is not a secret trial. The Grand Jury provides a constitutional protection for defendants in the U.S. system. The Fifth Amendment of the Constitution requires that anyone charged with a felony violation must be indicted (not tried) by a Grand Jury, and its proceedings are secret in order to protect both witnesses and the reputation of the accused. The Grand Jury issues indictments, allowing prosecutors to make an arrest, after reviewing the prosecutor’s presentation of the evidence. For all these reasons, the person charged is often not represented and often is unaware of the investigation, regardless of where the person resides.
- The Grand Jury is a check on the power of the prosecutor, to ensure that there is sufficient evidence to support the proposed charges before a prosecutor can file those charges or request an extradition.
- However, a full and fair trial, in which the accused is fully involved and represented, follows a Grand Jury indictment. The Grand Jury is just one more hoop that the prosecution must jump through before it can take a case to trial, to be sure that there is sufficient evidence to bring charges.
- These practices are no different for persons subject to extradition than they are for anyone in the United States who is charged with a crime.