UK – USA Extradition | Extradition Defence | Kangs Extradition Defence Solicitors
In this article, Hamraj Kang considers the UK-USA extradition law in the light of the recent much publicised decision in the case of Mike Lynch, founder of the software FTSE 100 company Autonomy, where Westminster Magistrates’ Court authorised his extradition to the USA on the grounds that he committed fraud in the process of selling his company to Hewlett-Packard for £7 billion.
Our team of extradition lawyers, headed by Hamraj Kang, takes great pride when defending clients sought by a wide range of countries in relation to extradition proceedings before Westminster Magistrates’ Court and the High Court.
Our Extradition Team is readily able to cover proceedings before Westminster Magistrates’ Court, often at short notice if a client has been arrested and produced pursuant to an arrest warrant issued on behalf of a Requesting State.
We are able to assist UK Nationals sought by a foreign government as well as non-UK Nationals being sought by their home country.
We appreciate that some requests by certain Requesting States can be politically motivated and we seek to defend such matters with vigour on behalf of our clients.
USA v Mike Lynch
The USA Government accuses Mike Lynch of orchestrating the largest corporate fraud ever committed in Britain. The USA seeks to extradite him from the UK to the USA to face seventeen counts of fraud arising from the sale of Autonomy to Hewlett-Packard in 2011.
The central allegation is that Mike Lynch, and other company executives at Autonomy, artificially and dishonestly inflated the turnover and profits of the company in order to secure its sale to Hewlett-Packard.
Mike Lynch denies the allegations and fought the extradition request by the USA Government.
However, following a contested hearing at Westminster Magistrates’ Court, District Judge Snow ruled he was satisfied that the request for extradition to the USA was lawful and in the interests of justice. He therefore ordered Mr Lynch’s extradition.
The District Judge refused the defence request to adjourn ruling on the extradition case until the settlement of an ongoing civil court action between Hewlett-Packard and Mike Lynch.
The matter is now with the Home Secretary to approve or deny the extradition request. If approved by the Home Secretary, Mr Lynch will appeal the decision to the High Court.
What Is The Basis For Resisting A Request For Extradition To The USA?
The overriding difficulty with defending extradition requests made by the Government of the USA is that there is no requirement for the USA to demonstrate that a prima facie case exists against the Requested Person. This is as a result of the USA being categorised as a Category 2, Type A territory under the Extradition Act 2003.
As a result, generally speaking, the Requested Person cannot resist extradition on the basis that he/she has not committed the offence and seek to prove their innocence in the extradition hearing. The purpose of the extradition hearing is not to determine the guilt or innocence of the individual but to ascertain if it is in the interests of justice for the person to be extradited.
This means that extradition is decided on the basis of an ‘unproven case’ provided the USA Government has met the requirements of the Extradition Act 2003 and the Requested Person cannot satisfy one of the Statutory Bars to Extradition.
The dominant defence argument in many extradition cases involving the USA is ‘Forum’ and this was true in the Mike Lynch case. It was argued that Mr Lynch was a UK Citizen, he operated a UK based company listed on the Stock Exchange in England and the conduct in question also took place in the UK. On those bases, the correct forum for any criminal trial should be the UK.
There have been other recent cases where arguments other than Forum or in addition to Forum have been successfully deployed in extradition proceedings.
For an analysis of such recent decisions, please see our previous article ‘Extradition to the USA | Kangs Extradition Defence Solicitors’.
Is the UK-USA Extradition Treaty Fair?
The Mike Lynch case is one of a long line of cases which have attracted support for the proposition that the current Extradition Treaty is one-sided and favours the USA.
Critics, including prominent political figures and former cabinet ministers, have vocally argued that the Extradition Treaty affords the USA disproportionate power over the lives of British Citizens and point to the fact that there is no reciprocal power for the UK Government to exercise such control over citizens of the USA.
The divergence in the respective ‘reach’ and ‘power’ of the two nations is, perhaps, demonstrated by the refusal of the USA Government to extradite Anne Sacoolas, the alleged driver of the motor vehicle that killed motorcyclist Harry Dunn on a country road in Northamptonshire.
The UK authorities wish to interview Anne Sacoolas on suspicion of causing death by dangerous driving but the request has not been met with approval by the USA. This is a further high-profile example that starkly highlights the fact that the UK extradites many more of its citizens to the USA than the USA extradites to the UK.
It is clear that the ‘long arm’ of USA law enforcement will continue unabated unless and until the Extradition Act 2003 is amended. Critics of the current regime argue that any UK citizen is at risk of extradition to the USA if their conduct is even tenuously linked to either the USA or American individuals, corporations or institutions, despite the fact that the individual may never have set foot in the USA.
It does not appear that the USA will be altering its approach to making extradition requests any time soon and there is likely to be a continual flow of extradition requests for white collar allegations such as money laundering and wire fraud.
The USA is not the only country afforded such ‘extradition powers’. A number of other countries are also not required to adduce a ‘prima facie’ case against the requested person by virtue of also being categorised as Category 2, Type A countries under the Extradition Act 2003.
However, the USA has been the one country on this list to utilise such powers on a regular basis leading many to suggest that it has done so indiscriminately, leading to extradition requests for individuals who have extremely limited association, contact or ties with the USA.
The suggestion that the USA is acting as ‘the world’s policeman’ is refuted by the USA as it claims only to pursue extradition requests that are in its national interest (usually by virtue of alleging loss or damage to USA based individuals or corporations).
For the time being at least, it appears that the ‘long arm jurisdiction’ of USA law enforcement will continue to demand the extradition of UK based individuals.
How Can We Help?
We appreciate that the ‘long arm jurisdiction’ of the USA has led to a number of individuals finding themselves at the centre of a contested extradition case.
We can assist you as follows:
- Advise you at the police station on initial arrest under the terms of an arrest warrant
- Represent you at the first hearing at Westminster Magistrates’ Court and advise in relation to securing bail
- Prepare a robust defence case and guide you through the court process and provide guidance on how to contest the extradition proceedings
- Instruct a leading extradition law barrister to present your case in court
How to Contact Us | Kangs Leading Extradition Solicitors
Our Extradition Team is available to assist clients throughout the country.
We aim to work proactively with our clients and secure the services of the very best Extradition barristers in an effort to secure a favourable resolution to matters.
We provide initial no obligation discussion at our three offices in London, Birmingham and Manchester.
Alternatively, discussions can be held virtually through live conferencing or telephone.