Sir David Davis writes in the Mail on Sunday about the unjust extradition treaty between the UK and US.


As published in the Mail on Sunday:

It has been just over a week since we re-established our status as an independent, sovereign nation, pursuing our own way in the world.

And yet, in Westminster Magistrates Court last week, we saw a vivid example of Britain already surrendering its sovereignty, this time over its justice system, with the formal arrest of Dr Mike Lynch for potential extradition to America.

Dr Lynch is one of this country’s most successful entrepreneurs. He founded an innovative British company, Autonomy, which in 2011 was bought by Hewlett-Packard. Now American prosecutors are claiming that he should be tried in America on charges about the way he ran that company, and how it was sold to HP, which has accused him of fraud.

But British justice is in motion. The Serious Fraud Office investigated the allegations against him and decided that there was no case for prosecution in 2015.

HP also brought a civil case against Dr Lynch in the English High Court. It has just concluded after ten months of exhaustive testimony and the judge will rule in due course. That case reviewed millions of documents and heard dozens of witnesses in open court.

Dr Lynch himself was on the witness stand for more than a month, one of the longest cross-examinations on record.

There can be no doubt that Dr Lynch has faced justice in the UK, and that whatever the outcome, our system is working.

Yet before the judge can deliver a verdict, the Home Secretary has certified that Dr Lynch should be spirited away to America.

The fact that he was arrested at all brings into sharp relief the problems with our relationship with the United States. When the US Department of Justice requests the extradition of a UK citizen, we effectively have no choice but to cough them up. The UK-US extradition treaty of 2003 says that the Home Secretary ‘must’ process the request.

The US prosecutors have no requirement to prove their case beyond stating ‘reasonable suspicion’, and there is no prima facie consideration of the charges in the UK.

Conversely, for the UK to extradite from the US, we have to clear a higher burden of demonstrating ‘probable cause’, which – unlike in the UK – can be challenged in the courts. After that, the US Secretary of State ‘may’ process the request.

What the US ‘may’ choose to do was made crystal clear in the recent case of Anne Sacoolas and the death of Harry Dunn.

The US-UK extradition treaty is a bad treaty. It was negotiated in secret by Tony Blair’s Labour Government, debated in haste and enacted unilaterally by Blair over strenuous objections from all sides of the Houses of Parliament. Its rapid passage was intended to enable the fast-track processing of potential terrorists after 9/11, yet that is not how it has been used.

The proof of the imbalance is in the numbers. Since 2007, the UK has surrendered 135 UK nationals to the US, 99 of which were for non-violent crimes. During the same period the US has surrendered only 11 to Britain. This cannot be the outcome of a fair system being properly applied.

Dr Lynch now faces the prospect of adding to these grim statistics. In his case, the alleged conduct all took place in the UK, under UK law. We are now looking at the bizarre prospect that a UK citizen could be tried and potentially acquitted by an English judge, where the burden of proof against him is lower, but find himself in a US prison facing a charge where the burden is higher, before the UK case has even been decided.

Why would we give the US justice system priority over our own?

Should Dr Lynch be extradited and denied bail, as most foreign suspects are, he will face appalling conditions that are much worse than anything found in the UK. He will likely find himself in a high-security prison in a cramped cell with gang members, drug dealers and murderers.

And by potentially selling him down that river, we will be sending him to a place where 97 per cent of cases are settled by plea bargains.

People who have previously been extradited to the US have been told that if they pleaded not guilty, they would be denied bail and get 35 years in a high-security US prison, but if they pleaded guilty, they would get only three years, possibly serving some of it in a British jail.

Prosecutors will use this practice to try to convince Dr Lynch to admit guilt to a lesser charge. If he refuses, he will face the prospect of a deliberately intimidating lengthy sentence, and the costs of the trial could run into millions.

Dr Lynch is right to resist extradition. He is standing up for all of us against this unfair system.

It will send a chill wind through ‘global Britain’ if all UK businesses are effectively forced to comply with US laws and standards, and subject to US prosecution if they do not.

It would cripple the City and Britain’s ability to determine its own future.
That is why we need to look again at our extradition arrangements. They affect our ability to set and enforce our own laws.

We need to ensure our arrangements are fair, balanced and based on reciprocity. We need to give British citizens, including our businessmen and entrepreneurs, the protection, certainty and justice that they deserve.