Is this the treaty to which you're referring?
I must admit I'm a little confused here. Is it the case that the 1972 treaty is lopsided in favor of the UK (requiring prima facia evidence for the US to get a UK defendant, but only probable cause for the UK to get a US defendant) and the new treaty will equalize that as (I think) the state dept. release claims? Or that the 1972 treaty demanded prima facia evidence for extradition by either party? Now this Telegraph article I read whilst looking it up claims it doesn't matter, the prima facia case was made anyway, it appears, which confuses matters even more, because the Telegraph uses the term prima facia as being synonomous with probable cause.
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http://www.state.gov/p/eur/rls/fs/34885.htm______________________
Article 8
Extradition Procedures and Required Documents. Article 8 establishes the procedures and describes the documents that are required to support a request for extradition. All requests for extradition shall be submitted through the diplomatic channel. Among other requirements, Article 8(3) provides that a request for the extradition of a person sought for prosecution must be supported by: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging document, if any; and (c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought. The Treaty will not change the evidentiary burden required for extradition requests to the United States. However,
under the new Treaty, the evidentiary requirements for extradition from the United Kingdom are lowered from a "prima facie" standard to what in practice will constitute a U.S. probable cause standard_______________________
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/03/16/nlaw16.xmlHas extradition to the US gone west?
(Filed: 16/03/2006)
Joshua Rozenberg questions the current state of a treaty with the Americans that stretches back to 1794
Has the Government abandoned safeguards for people in Britain facing extradition to the United States? Or is the threshold for extradition to the US pretty much the same as the threshold set by the Americans for extradition to Britain? Those were the views expressed on our business pages this week by Shami Chakrabarti, director of the campaign group Liberty, and Andy Burnham, a Home Office minister.
Extradition involves sovereign states "handing over" people to another country, generally to stand trial. Because states are responsible for everyone within their jurisdiction, they do not normally allow foreign police forces to bundle a wanted person on to a plane without first obtaining permission. The conditions under which permission will be granted are generally laid down in international treaties
Although Britain's first extradition treaty with the US dates back to 1794, the handover arrangements between the two states are now governed by a treaty signed in 1972. But treaties do not normally come into force as soon as they are signed: they must first be ratified by the governments concerned, after various national requirements have been satisfied. The 1972 treaty came into force in January 1977.
Readers of our business pages will know that a new extradition treaty was signed by Britain and the US in March 2003, which no longer requires the requesting state to produce evidence of wrongdoing. But those who believe this treaty is in force, or even partly in force, are wrong. It has been ratified by Britain but not by the US, much to the irritation and embarrassment of the British government. Since ratification by both parties is required, the 2003 treaty has no effect.
So we must go back to the 1972 treaty with the US. That says that "extradition shall be granted only if the evidence be found sufficient according to the law of the requested party&to justify the committal for trial of the person if the offence of which he is accused had been committed in the territory of the requested party".
This is what is described in England as a prima facie case and in the US as showing "probable cause". Those two tests may not be exactly the same, but the treaty makes it clear that the state seeking extradition must show as much evidence as would be needed to send the defendant for trial in the country where he now happens to be.
Where, then, is the imbalance? In 2003, Parliament passed a new Extradition Act, which came into force in January 2004. The 2003 Act allows Britain to divide its friends into two groups. Category 1 covers the 24 other countries in the EU with which Britain operates the European Arrest Warrant. Category 2 includes non-EU countries with which we have other extradition agreements.
Under an order made by the Home Secretary just before the Extradition Act came into force, the US was designated as a category 2 country. The effect of this was dramatic. If extradition is sought by a country in category 2, the district judge no longer needs to decide whether there is a case to answer. Instead, he must send the case on to the Home Secretary for a decision on extradition -provided this would be compatible with the defendant's human rights and so long as other requirements are met.
This is the inconsistency: if the US wants to have someone extradited from Britain, it does not need to produce an arguable case. But if Britain wants someone extradited from the US, it must still produce enough evidence to satisfy the 1972 treaty.
Mr Burnham, the minister, says that Britain requires all requests from the US to show "information that would justify the issue of a warrant for the arrest of the person"; without that, the process cannot begin. But information is not the same as evidence. To assert, as the minister does, that the information required by the 2003 Act "differs very little in practical reality from probable cause" is stretching credulity. The UK has to produce sufficient evidence; the US need only provide information. The terms have different meanings in law.
As Sir Igor Judge, president of the Queen's Bench Division, said in the High Court on Feb 24, "there is a lack of symmetry between the United States and the United Kingdom". This would continue, he said, until either the US ratified the 2003 treaty or the Home Secretary removed the US from the list of category 2 countries. In the meantime, the judge confirmed, "the procedure which applies on one side of the Atlantic does not apply on the other".
He was ruling on an application by Ian Norris, a businessman facing extradition, who told the High Court that it was "unlawful and irrational" for Charles Clarke to keep the US on the category 2 list while the 1972 treaty was still in force. The power to make regulations should be exercised in conformity with international obligations, his counsel argued.
But that claim was firmly rejected by the High Court. As long ago as last summer, Lady Scotland, a Home Office minister, had expressed disappointment about the delay in ratification by the US. But, said Sir Igor, it was "not irrational for the Secretary of State patiently to endure the disappointment expressed by his Minister of State while nevertheless continuing to anticipate that in due course the new treaty will be ratified".
Mr Norris, former chief executive of the carbon maker Morgan Crucible, is accused of taking part in a price-fixing conspiracy and obstructing justice, charges he denies. At a future hearing, he will argue that his extradition is incompatible with his right to respect for his private and family life under Article 8 of the Human Rights Convention.
In the light of Sir Igor's ruling, we can see that Miss Chakrabarti is right and Mr Burnham is wrong about the imbalance.
But the curious thing is that people seem to believe that this was one of the arguments put by the so-called Natwest Three. David Bermingham, Giles Darby and Gary Mulgrew are accused by Texan prosecutors of advising the British bank to sell part of an Enron business for less than it was worth and then pocketing the difference, a charge they deny. On Feb 21, the High Court rejected as "wholly unsustainable" their claim that they should be investigated and, if necessary, tried in Britain.
But perhaps it is not surprising that Alun Jones, QC, who also represented Mr Norris, did not put the "imbalance" argument on their behalf. As Lord Justice Laws said, "although the prosecutor did not have to demonstrate as much, a prima facie case is shown on the documents accompanying the request". So, changing the law would have made no difference to them at all
