Extraordinary Extradition
Advocate David Le Quesne, partner and
Giles Baxter, legal assistant, Viberts – Jersey Lawyers
This month another Rwandan genocide suspect was discovered living on welfare benefits in Britain, having been granted asylum by the Home Office. Emmanuel Nteziryayo is one of many said to have directed militiamen in the slaughter of thousands of refugees. You will find a similar story told about Charles Munyaneza and Celestin Ugirashebuja, also living in Britain.
The Rwandan government has requested the extradition of each of these suspects but despite evidence presented to the Home Office, which in the case of Munyaneza includes 40 witness statements, not one application has been granted.
Contrast this with the fact that there are currently over 20 ’white-collar’ criminals waiting to be extradited to the USA, to follow in the footsteps of other British businessmen, such as the NatWest Three and Ian Norris, the former chief executive of Morgan Crucible.
This striking disparity is largely the result of the UK’s controversial Extradition Act 2003 and the 2003 Extradition Treaty between the United Kingdom and the United States. In October 2004 Jersey adopted the Extradition (Jersey) Law 2004. This Law is closely based on the controversial United Kingdom Act, so what follows applies to Jersey just as it does to the UK.
Originally justified by the British government as a tool in the war on terror, the Extradition Act was designed to fast track the extradition procedure. It achieves this in part by removing the evidential burden on certain reciprocating nations in their applications for extradition.
In the past, when the USA applied for an extradition, it had to show that it had a prima facie case against the individual whom it sought to extradite from the UK (i.e. that there is a credible case). Today, by virtue of the 2003 treaty, the USA no longer has to meet this standard. There is no longer a requirement for any supporting evidence to form part of the extradition application.
Added to this is the concern that the UK has allowed extraditions such as the NatWest Three to proceed despite the USA not having actually ratified the treaty. Accordingly, there is no reciprocity between the two nations. When the UK or Jersey requests an extradition from the USA, we still have to show a prima facie case.
The case of the NatWest Three is linked to the demise in 2001 of the Enron Corporation. Briefly, the NatWest Three are accused of conspiring to persuade their employer, Greenwich NatWest, to sell its stake in a Cayman investment company at a massive undervalue to a company controlled by a co-conspirator, who in turn arranged for the company to be sold on to Enron at its true value. It is alleged that the balance of the transaction was divided up between the conspirators. Having lost various appeals, the Three were finally extradited to the USA last month.
Whether the NatWest Three committed the crime or not is irrelevant to this discussion. What is important is that despite the alleged crimes being committed in Britain and the alleged loss being suffered by a British organisation, due to the combination of just one meeting, four items of correspondence and one wire transfer amounting to the offence of "wire fraud" in the USA, the Americans were able to extradite the NatWest Three without the need to present any evidence against them.
It would seem therefore that the potential exists for extradition requests to be made in circumstances where individuals concerned are not aware that their actions have constituted a crime. In Ian Norris’ case, the extradition is sought in relation to price-fixing offences that did not actually exist in the UK at the time of the events in question. Such is the uncertainty that insurers are now offering policies to cover extradition expenses.
Under the Extradition Act, so long as the conduct is criminal in the UK, or in our case Jersey, it does not matter that the offences charged are not the same. This makes sense to a degree. However, to ensure that the required criminality exists, the USA only has to describe the conduct complained of in terms that resemble a crime under our law. In the Norris case, for example, they have used "conspiracy to defraud" and "perverting the course of justice".
There is room for wide ranging discussions about a country’s duty to protect its citizens, but for present purposes we concentrate on the practical effects of the new extradition law and how it might threaten the business community in Jersey.
Ignorance of the law is no excuse. If you exceed the speed limit, it is an offence even if you did not know what the limit was. That principle is generally accepted. What is worrying about the new extradition law is that a relatively small transgression against, for instance, a USA law can lead to the threat of extradition, and you may not even know that the matter in question has anything to do with the USA...until the request is received and you realise that somebody in the USA had something to do with what may have been a complicated multi-jurisdictional transaction in which you or your organisation played only a small part.
Business professionals in Jersey now have no more protection from extradition than in the UK. It is true that the Jersey Law has allows us more control over extradition applications than hitherto, because previously Jersey extraditions were dealt with by the UK; but it is hard to ignore the fact that, by adopting the same controversial measures as the UK, we have paid a high price.
The way the law works is that an individual can be extradited to a ’designated territory’ for committing an ’extradition offence’. This terminology has a very similar wide interpretation to that in the UK Act. Applications will be heard before the Magistrate’s Court, which will consider whether the alleged offence falls within the required definition and whether extradition will be compatible with the suspect’s human rights. If the answer to both is ’yes’, the individual may be extradited without any enquiry into the merits or the evidence.
’Designated territories’ are in two categories and, as in the UK law, those countries in the first category, which include the USA and most European countries, have nothing to prove when seeking extradition other than to show that the person is accused of committing an ’extradition offence’. This can be achieved by simply producing a statement to that effect. In contrast, second category territories must show that there is sufficient evidence for the person to stand trial (which was the test under the old UK and Jersey law).
Should we be afraid? Could the NatWest Three happen over here? Clearly it could. When you send your next email to a colleague or client based in America, you may have just written your own indictment without even knowing it.
In fact the Enron saga actually did sail fairly close to these shores. It was reported in one national paper at the time that a Jersey based company was suspected of being used to help Enron hide its debts. Whatever the truth of that story, it would seem that if it happened post 2004, an American investigator would only have to come up with an ’extraditable offence’ and you could be on your way to the USA, without any enquiry in Jersey as to the strength of the case against you.
Currently, pressure is being put on the British government to review the existing extradition law. This is both on the broad civil rights ground that a country should not allow its citizens to be extradited simply on the request of another country, and on the grounds that, in the case of the USA, there is not the required reciprocity. Two very weighty arguments.
Jersey now has its own extradition law, which may prove that we are mature enough to stand on our own feet and manage our own extradition, but in that case are we mature enough to reflect on this law, with the benefit of hindsight? Are we independent and mature enough to, for instance, say that a law based upon reciprocity will not be applied to a country, such as the USA, which does not reciprocate?