The USA Want To Extradite Me – Am I A Hopeless Pawn In A Legal Chess Game?

Facing extradition proceedings against any country is always a daunting experience, but there is something particularly unsettling when the Requesting Country is the United States. Undoubtedly the USA’s powerful role at the international level and their ample access to resources, along with their long-standing relationship of political cooperation with UK places them in an advantageous position against you.

US-UK extradition is governed by a treaty signed in 2003, and part of the resulting Extradition Act 2003. The treaty has been heavily criticised for being unequivocally favourable to the US, due to the difference in what it has to prove compared to the UK, in order to extradite someone. Notably, the treaty removed the previous requirement for the US to provide “prima facie” evidence, meaning proving your case on the face of available evidence. Instead, all the US has to provide is information, rather than evidence, that there is “reasonable suspicion” of the charges against you.

What this means in practice is that if you want to oppose your extradition to the US, you will not have a right to request the prosecution evidence against you, and the Court will not be ruling in favour or against your extradition to the US based on the strength of the evidence against you.

At the first hearing at Westminster Magistrates’ Court the District Judge will allow the proceedings to open so long as the US extradition warrant meets certain technical requirements. A lawyer will need to be present to advise you on whether those requirements are met, as well as to tell the Court what defence, or ‘bars to extradition’ you’ll be relying on. The Court will give you a final extradition hearing date which will likely take place over the next six months or so, and your lawyer will apply for you to be released on bail conditions if you are in custody.

Aside from a number of technical rules the warrant has to comply with, the Court can’t allow your extradition if it will lead to a disproportionate interference to one of your human rights. The ones that are most frequently used to oppose extradition are the following:

• Article 8, the right to private and family life. Your lawyers will ask you about your family circumstances, whether you are a carer for someone or if you are receiving medical treatment for a health condition. The stronger ties you have to the UK and the more established your family life is here, the less likely you will be extradited to the USA.

• Article 3, the right to freedom from torture and ill treatment. This largely relates to prison conditions and pre-trial detention. At HJA we have a long standing relationship with several prison experts across the USA who regularly provide us with reports on prison conditions and the extent to which your Article 3 risks being interfered with. These experts can also give evidence remotely at your final extradition hearing.

• Article 2, the right to life. You cannot be extradited unless the USA guarantees you will not face the death penalty.

• Article 6, the right to a fair trial. There may be particular circumstances related to your identity and/or the high profile nature of your case that means you will risk not having access to a fair trial. We will be obtaining the relevant expert reports from American legal experts as well as American attorneys to argue this point.

Besides human rights arguments, there are further defences under the Extradition Act 2003 that can be used to stop your extradition. For instance, under section 91 you cannot be extradited if you have a physical or mental condition that would make your extradition oppressive. If this applies to you, we will obtain your medical records as well as instruct the relevant medical or psychiatric experts to address the risk of oppression.

Under section 83A, the “Forum” argument can be raised where, based on the facts of the allegations you are charged with, it would be more in the interest of justice to prosecute you in the UK rather than in the USA. There are further legal defences such as whether the passage of time, under section 82 would make it unjust or oppressive to extradite you, or the rule against double jeopardy, under section 80, if you were previously convicted or acquitted of the same offence the US want to extradite you for.

Finally, if you are wanted for terrorism offences or other serious allegations which you suspect are politically motivated, some special defences can be raised including the political offence exception or the “extraneous considerations” bar to extradition under section 81.

In the extradition team at HJA we regularly represent clients facing extradition to the USA, both on a private basis and with legal aid funding. It is essential that you instruct an expert solicitor early on in the case who can assist you with securing legal aid and instructing an extradition specialist barrister.

To conclude, whilst indeed there are political and legal forces that make extradition requests from the USA particularly challenging, several avenues can be explored to successfully ensure you remain in the UK.

If you are facing extradition and wish to contact us for a consultation on your options, our Extradition Solicitors will be happy to provide legal advice.  Please call us now on 0808 271 9413 or request a call back.