Current Issues in US/UK Cross Border Criminal Cases

This article examines two particular areas of white collar crime practice: extradition and the negotiation of plea agreements, including recent guidance and headline cases involving concurrent US and UK jurisdiction.

Introduction - Problems with extradition and plea agreements

The conviction of Ian Norris, the former chief executive of a major UK public company, by a Philadelphia jury in July 2010 marked the end (subject to appeal of course) of a long battle by US prosecutors to secure his extradition from the UK and put him on trial for obstruction of justice charges relating to cartel offences.

The Norris case is just one in a long line of cases where the extradition arrangements between the UK and the US have been challenged at the highest levels in the UK courts. These include the so called "Nat West Three" who were ultimately extradited and pleaded guilty in the US to offences connected to the Enron scandal and the McKinnon case relating to alleged hacking into a Pentagon computer on which a decision is still awaited by the UK home office. Yet more cases, relating not to white collar crime or computer hacking, but to violent crime and terrorism are held up in the European Court of Human Rights which is examining whether whole life imprisonment terms and the "supermax" detention regime may violate article 3 of the European Convention on Human Rights1.

As if this litany was not enough, another case has just started. Chris Tappin, an English golf club president, who is wanted in El Paso, Texas on charges relating to the export of goods to Iran held a press conference on 17 August 2010 to launch his defence to a US extradition request and to promote his case as the next extradition cause celebre.

The new UK coalition government has promised a review of extradition law, including the arrangements between the US and UK. The government's reaction to the McKinnon and Tappin cases will be closely watched by lawyers advising in business crime cases.

Plea agreements in major cases, particularly those involving concurrent US/UK jurisdiction have caused significant controversy which has come to a head this year. In the landmark case of Innospec, a senior English judge laid down a substantial road block to future attempts by prosecutors to negotiate US style settlements in UK criminal and civil cases. The Innospec decision has caused the sentencing hearing in the UK prosecution of BAE to be delayed until the end of this year whereas the US case against the company has already been disposed of with payment of a US$400 million fine on 1 March 2010. Innospec and another case, Dougall, are required reading for all litigators dealing with US/UK related criminal cases. In some cases, the US may be a better place to negotiate a deal than the UK; particularly if the alternative is a long, uncertain battle against extradition.

The prima facie case controversy and where cases involving concurrent US and UK jurisdiction should be tried

The UK Extradition Act 2003 came into force in January 2004 and, although the new Extradition Treaty between the US and the UK had not at that time been ratified, the new act provided for designated countries, of which the US was only one, to be relieved of the obligation formerly required of them to submit written evidence of a prima facie case in support of an extradition request. There is now a long list of countries designated in the same way as the USA including Australia, Canada and Israel as well as all Council of Europe countries.2 The Council of Europe convention on extradition dating back to 1957 provides for extradition without the need for a prima facie case between all member countries.

One might be forgiven for wondering what the fuss has been about over the last six or seven years if all that has happened is that the UK has given the USA the same status in extradition cases as member states of the Council of Europe. The issue that has caused the greatest controversy is the fact that the new US/UK extradition treaty, eventually ratified on 26 April 2007, three years after the Extradition Act came into force, is not entirely reciprocal. Unlike the Council of Europe convention on extradition which applies the same procedural requirements to each signatory state, the US/UK extradition treaty is one sided. US prosecutors no longer have to provide evidence of a prima facie case but UK prosecutors must still show "probable cause" to support an extradition request to the US. Many have argued that this in practice requires a UK prosecutor to establish much the same evidential basis for a request as was formerly required to show a prima facie case.

The US Embassy press release on ratification put the matter rather differently:

"The treaty, and the Extradition Act 2003, have also redressed the unequal balance that existed under the terms of the 1972 Treaty in which the UK required more from the U.S. than they asked of the UK. The U.S. was required to demonstrate a prima facie evidential case in support of extradition requests made to the UK, whereas the UK merely had to demonstrate 'probable cause'.

The 'probable cause' test is broadly comparable to the requirement...