Partner Bambos Tsiattalou examines the Mike Lynch extradition case and discusses the imbalance in transatlantic extradition arrangements.

Bambos’ article was published in the May editon of The Barrister Magazine and can be found on page 16.

The US is currently attempting to extradite British businessman Michael Lynch via the English courts. This provides yet another example of the imbalance in transatlantic extradition arrangements. Under the terms of the UK–US extradition treaty of 2003, the US can demand extradition of British citizens for alleged offences committed against US law, even if they were committed in the UK. Because this is unreciprocated in the treaty, a significant imbalance arises.

Following the 9/11 attacks, the treaty was originally agreed in the early days of the Blair-Bush “War on Terror”.  Such draconian extradition arrangements were deemed necessary to combat global terrorism. But they offer little protection against US extradition – even for British citizens who are accused of committing crimes in the UK.

The US has repeatedly used the treaty in seeking to extradite British citizens who have not committed terrorist offences. This month, the High Court has been hearing a controversial US application to extradite Lynch in relation to proceedings in the US, where he has been charged with 14 counts of conspiracy and fraud. The charges relate to the $11.6bn sale of his former software company, Autonomy, to Hewlett-Packard in 2011. Meanwhile, HP has sought damages of around £3.7bn in London’s High Court.

After conducting a lengthy investigation, the Serious Fraud Office (SFO) decided not to pursue the matter any further in 2015, having concluded that there was insufficient evidence. Nevertheless, the US authorities still argue that Lynch committed fraud and they want him to stand trial in San Francisco.

Controversy about US extradition requests has become all too familiar. Although the furore surrounding Julian Assange is probably the best-known, there is a lengthy catalogue of those who have endured the same fate.

Among them is Gary McKinnon, hacker and Asperger’s sufferer, whose protracted extradition saga attracted much public sympathy. This eventually culminated in the 2012 decision of then Home Secretary, Theresa May, to block his extradition, on the basis that his risk of suicide following extradition would be incompatible with his human rights.

Since the US criminal justice system is not always held in high regard, there has been sustained public disquiet that the 2003 treaty enables British citizens to be handed over to the US authorities for investigation. Dogged by accusations of bias and noted for its harsh sentencing regime, the US has the highest incarceration rate in the world, with a prison population of over 2.1 million.

Ahead of Lynch’s extradition hearing, a range of senior political and industry figures put their name to a letter calling for him not to be extradited, and for the US-UK extradition regime to be revisited.

The signatories included: former Brexit secretary David Davis, as well as former ministers Andrew Mitchell MP, Lord Maude of Horsham, and Lord Deben, alongside the former chief executive of Rolls-Royce, Sir John Rose, and former Liberal Democrat leader, Sir Vince Cable.  The letter, published in The Times on 12 January, argued: “The Serious Fraud Office considered the case involving Mike Lynch and decided there was nothing worthy of prosecution. The High Court picked over the issues for 10 months. The British legal system is quite capable of dealing with this. But our extradition treaty with the US can mean none of that matters.”

The letter further warned that extradition to the US means “facing a system where prosecutors cut deals offering their own witnesses immunity, while those who want to testify for the defendant risk being dubbed ‘co-conspirators’ and prosecuted. This is not justice.” The signatories argued that the current extradition regime means that any British businesspeople who find themselves “at odds with a powerful US company could face the same fate.”

No doubt, Lynch will be grateful for the support of such influential figures. However, if the courts find against him, he will be entirely reliant upon the government choosing to make a political decision to block his extradition.

In that regard, the letter’s signatories state that their cause has support at the highest levels, arguing that “the Prime Minister accepts the treaty is unbalanced. The Foreign Secretary has railed against it. Politicians on all sides want it changed. We’ve surrendered sovereignty over our own justice system for too long. The Government cannot stand by as another Briton risks being delivered like this to the US justice system.”

Yet, from a US perspective, a British government decision to block the extradition of someone suspected of defrauding an American company might be perceived rather differently.  According to reports, the US is in no hurry to agree a trade deal with the UK. As negotiations proceed, it is hard to imagine that realpolitik will not enter into the equation: the US may be reluctant to make concessions if it cannot rely upon cooperation in terms of fraud.

The 2003 treaty made it easier to extradite someone from the UK since it removed the requirement for the US to provide a prima facie case in British courts. Campaigners argue that this is unjust because someone can be extradited without the case being properly tested. Those who support the treaty say it means suspects face similar tests in each country.

The 2010 Home Office review of the UK’s extradition arrangements, conducted by the former Court of Appeal judge Sir Scott Baker, made the case that there was no real difference between the US tests of “probable cause” and the introduction of “reasonable suspicion”. The UK government responded to the review in 2012, saying that “The Government agrees with the Baker review that the Treaty is not unbalanced. It is our clear view that the Government should not renegotiate the US-UK Extradition Treaty”.

The same conclusion was originally drawn in 2003 when the treaty was drafted under a  Labour government. But it now appears that there is considerable opposition to the treaty at the highest levels of the Conservative party.

Last year, Boris Johnson admitted that the UK’s extradition treaty with the US was “imbalanced”. This admission was made in the context of the then Labour leader, Jeremy Corbyn, pressing him on the case of Harry Dunn – a 19 year old motorcyclist whom the British authorities allege was killed by the dangerous driving of the wife of a US intelligence officer in Northamptonshire. The US has refused British requests to extradite her.

While Johnson has so far diplomatically declined to support Lynch’s cause in his capacity as Prime Minister, former newspaper columnist Johnson was vociferous in his support for Garry McKinnon back in 2009 when he wrote in the Daily Telegraph, “It is brutal, mad and wrong even to consider sending this man to America for trial. He has been diagnosed as having Asperger’s syndrome, for heaven’s sake. How can the British government be so protoplasmic, so pathetic, so heedless of the wellbeing of its own people, as to sign the warrant for his extradition?”

An impartial observer would perhaps agree with Johnson’s observation that the US-UK extradition treaty is imbalanced against the UK. However, the argument that Lynch would not get a fair trial in the US is unlikely to stand up in court.

It is self-evident that the US and UK legal systems have similarities as common law jurisdictions. Yet in terms of criminal law, they diverge in important respects, with significant differences in procedure, sentencing, and the admissibility of evidence. Nonetheless, in the 2018  Akın İpek extradition case, despite “serious reservations about the current state of the rule of law in Turkey”, the court ultimately ruled that Akin would have received a fair trial there. In this context, a finding from a UK court that someone could not receive a fair trial in the US would have been extraordinary.

The US fully appreciates that the UK has an independent judiciary. It would not blame the UK government for the decisions of a British judge. However, if Lynch exhausts his legal options against extradition, his last chance will be to appeal to the Home Secretary to block it. At this point, the extradition process morphs from being a legal decision into a political one.

Clearly, political consequences could follow if the Home Secretary were to intervene in Lynch’s favour. If the Biden administration takes the view that the UK is acting to protect those who may have defrauded US companies of billions, American enthusiasm for a trade deal could wane.

Whatever the initial outcome, this case is likely to be appealed. Since it raises significant points of law and important human rights issues, it may end up being appealed to the UK Supreme Court and the European Court of Human Rights. In this circumstance, the inevitable delay would mean that his case may well conclude after a US-UK trade deal is done.  Yet when the UK blocked McKinnon’s extradition in 2012, the US expressed disappointment. Although not a fatal blow, the extradition arrangements create an unnecessary running sore in relations.

The US authorities are bound to use every available legal means to pursue those whom it suspects of having committed crimes against US interests. Simultaneously, the UK will want to exercise justice in its own jurisdiction as it sees fit. The 2003 extradition treaty therefore puts US and UK interests at loggerheads, creating tensions and putting citizens at risk of injustice.

The only solution is to fundamentally renegotiate the US-UK extradition treaty. Given the new US administration, there may be an opportunity to correct the inequity in this system. It seems that the political will may perhaps be there at the highest levels to do so.

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