MPs: UK must overhaul US extradition treaty now

The extradition treaty between the US and the UK needs to be radically overhauled without delay, given the cases of NASA hacker Gary McKinnon and Richard O'Dwyer, among others, MPs have urged.

MPs have called for an overhaul of the US-UK extradition treaty, which has prompted public outcry over cases such as that of NASA hacker Gary McKinnon (pictured). Image credit: Tom Espiner/ZDNet UK

British authorities must provide court-worthy evidence to their US counterparts to make an extradition request, while the US needs only to prove a reasonable belief that the person committed the crime, the Home Affairs Committee noted in a report released on Friday. Growing public unease about the unfairness of the arrangement means the government must act immediately, it said.

"The treaty is unbalanced, making it easier to extradite a British citizen to the USA than vice versa," the committee's chair Keith Vaz said in a statement. "The cases of Gary McKinnon, Richard O'Dwyer and Christopher Tappin have highlighted public concern that these arrangements are one-sided."

"Prosecutors must be required to produce evidence in support of an extradition request, and the accused should have the right to challenge that evidence in court," he added.

Extradition rules

Under the current agreement, the US does not have to supply 'prima facie' evidence that would stand up in a court of law about the alleged crimes of the accused. It only needs to establish 'probable cause', or a reasonable belief that the accused is guilty. By contrast, the UK has to establish 'reasonable suspicion'. Also, a British citizen has no right to a hearing in a US court to establish probable cause, unlike US citizens.

Given this situation, the British government should push for the treaty to be amended so that the same test for extradition applies to both UK and US requests, the committee said. Secondly, it should bring in a 'forum bar' to extradition, where a judge could order a case to be heard in the UK if both countries have jurisdiction. In addition, it should negotiate the use of an evidence test before extradition to stop potentially innocent people from languishing in jail until their trial.

Self-confessed NASA hacker McKinnon has attracted a lot of public attention and protests over his extradition. In his case, US authorities have not had to supply any 'prima facie' evidence to back prosecution claims that he caused tens of thousands of dollars damage perpetrating "the biggest military hack of all time". They have been seeking the extradition of McKinnon since 2005, and McKinnon's defence team has been pushing for changes to the extradition treaty since at least 2007.

"I'm delighted by it," McKinnon's solicitor Karen Todner told ZDNet UK on Friday. "It's exactly what we've been pressing for, for the last five years."

Todner has argued for the cases of McKinnon, Tappin, and O'Dwyer to be heard in the UK. Home secretary Theresa May signed an extradition order for O'Dwyer, who faces US copyright infringement charges over his TVShack website, in March.

Burden on the accused

"Extradition imposes a significant burden on the accused, who might have to spend many months or years living in a foreign country, often in prison, away from their home, family, friends and job," said the committee. "It would be fundamentally unjust to submit an innocent person to such an ordeal, even if they were subsequently acquitted at trial."

During the committee's evidence gathering, US ambassador Louis Susman defended the status quo. "The US-UK treaty is balanced, fair and needs no changes," he said in a statement to the MPs. "The United States has never denied an extradition request from the UK under the treaty. The UK has refused on seven occasions."

Susman added that the standards of 'probable cause' and 'reasonable suspicion' are the same, and that the US has a policy of not seeking the death penalty for extradited Britons.