The hypocrisy of the US-UK extradition act

London, United Kingdom – “My son will not be some poster boy for America, held up as an example by them to show the world that the US gets what it wants,” says a defiant Julia O’Dwyer.

Richard, her 23-year-old son, is anxiously awaiting his fate. His lawyers are preparing to appeal against his extradition to the United States, approved last month by Home Secretary Theresa May.

Richard is accused of conspiracy to commit copyright infringement and criminal infringement of copyright; by the US Immigration and Customs Enforcement agency, who allege his website TVShack hosted links to other sites which streamed “illegal” TV shows and films.

TVShack, which did not store copyrighted material and was run by Richard from his bedroom at university, generated £146,000 in advertising revenue over three years, after two US companies approached him to place ads on the site. Richard, who is attempting to carry on with life “as normally as possible” and continues to attend Sheffield Hallam University, is facing trial and up to 10 years in jail in the US for offences which lawyers say are not even crimes in the UK.  

Regulation 17 of the Electronic Commerce (EC Directive) Regulations 2002 states:

17.-(1) Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where the service provider –

(a) did not initiate the transmission;

(b) did not select the receiver of the transmission; and

(c) did not select or modify the information contained in the transmission. 

Parallels have been drawn between the case of TV Links – R v Rock & Overton cited as the only UK prosecution of a similar hosting site, which resulted with the case being thrown out. Richard’s mother Julia, who is relentlessly fighting day and night against the extradition, tells me there is no justification for her son to be sent to the United States, as the US would never allow this to happen to one of their citizens.  

“Richard is a British citizen who has never ever been to the US. TVShack’s server was not set up and operated from America. Why aren’t they going after the sites which stored the illegal material, instead of intent to make an example out of Richard? If any British citizen appears to have committed a crime in the UK, then they should be tried in the UK and given the right to prove they are innocent under British law of the allegations made against them. Would the US allow this to happen to one of their citizens? No, they absolutely would not. They knew this Extradition Act was a one sided farce, that’s why they didn’t sign up to it like the UK did who rushed it through and now my son is having to pay the ultimate price for that.” 

Politics over principle 

The Extradition Act 2003, signed by former British Prime Minister Tony Blair and President George W Bush, was designed and pushed through Parliament after 9/11. Blair, blinkered, and in the throes of his “special relationship”, did whatever he could to prove that he was the man to help Bush in his “War on Terror”. Doing whatever he could though, has resulted in a chilling situation, where Britons who could not be any further removed from terror suspects, are stripped of all their human and legal rights and shipped across the Atlantic.

This biased, one sided treaty is grossly unjust. If a crime is suspected to have being carried out by a UK citizen on the UK soil, why is the British government (who just in case have forgotten that their first and fundamental duty is to protect its citizens) allowing them to be tried in the US where they don’t live, where the alleged crime didn’t take place, where there are complications and difficulties in summoning witnesses to give evidence and where they are not entitled to the legal aid that they will desperately need?

Moreover, the contentious issue of plea bargains in the US makes a macabre mockery of a justice system where innocent defendants are pressurised to enter into plea negotiations. In turn, the vulnerability, rights and morality of the innocent are exploited to produce results for the US legal system, where 95 per cent of all convictions are secured with a guilty plea, most of them through plea bargaining.

Our British government can see absolutely nothing wrong with agreeing to allow the US to take our citizens on the grounds of “reasonable suspicion” that the accused is guilty. The US is not required to supply a scrap of “prima facie” evidence before a UK court to prove that a crime was committed, so with no questions asked, innocent-until-proven-guilty British citizens are stamped and sent on their way.

However, on this side of the pond, the UK is required to show “probable cause” when requesting for an American to be extradited. But no one will be going anywhere in the US until the US courts have first examined that “probable cause” under the fourth amendment of the US constitution which states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Why isn’t the British government following the US’ lead of ferociously protecting their citizens? Let us take the case of US soldier Robert Bales, accused of killing 17 Afghan civilians in Kandahar. He will not be extradited to Afghanistan, where the alleged crime took place, but will be tried in the US.

That is a separate debate, but nevertheless, an example of how the US will do everything and anything they can to protect their own. Referring back to the US constitution, why then is this coalition government not making sure the rights of the British people “are not violated” and that we are “secure in our persons, houses, papers and effects, against unreasonable searches and seizures?”

Why are we cheerfully waving off British citizens at the US’ first request? Surely, the UK is not frightened to stand up to the US, scared to risk ruining a “special relationship” between “friends”?

No extradition reform in sight

In The Coalition: our programme for government, David Cameron and Nick Clegg promised: “We will review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed.” Well, Prime Minister and Deputy PM, we are still waiting and wondering why it isn’t even handed, two years after you made yet another promise that has not been fulfilled.

Our government, I’m sure will point to the Scott Baker Review as proof that they have acted, but the report concluded with the ground-breaking revelation that the “treaty does not operate in an unbalanced manner”. Sir Scott Baker is wrong and seems happy to stand in solitude over his muddled and deluded declaration. Liberty has led the condemnation stating: “We don’t just disagree with this review but are completely baffled by it.”

Figures requested from the Home Office show that between January 1, 2004, and December 31, 2011, the UK made 57 extradition requests to the US. In the same period, 134 incoming requests were received by the UK from the US.

The British public are deeply uneasy and uncomfortable with the fact that British citizens are permitted to be sent across the world under this grotesquely unfair and unbalanced treaty. This is further supported by the Parliamentary Joint Committee on Human Rights, who published a report, concluding the act does not provide effective protections for the human rights of those extradited from the UK.

They urgently urged the British government to renegotiate the treaty – that seems to have fallen on deaf ears. Last month, the Commons Home Affairs Select Committee expressed particular concern “that it is easier to extradite a British citizen to the USA than vice versa”. In their report, they warned the government: “Such extradition arrangements are now threatened by loss of public confidence in the UK and there is a risk that, with time, that lack of confidence will translate into wider disaffection.”

Cameron & Co would do well to pay heed to the recent public reaction over the extradition of 65-year-old Christopher Tapppin whose life could end in an American jail. Speaking outside Heathrow airport in February, before being flown to El Paso, Texas, escorted by US marshals, Tappin said:

“I look to Mr Cameron to look after my rights and he’s failed to do so. I have no rights. Abu Qatada is walking the streets of London today and we cannot extradite him. He has more rights than I have. If I was a terrorist I wouldn’t be going to America. I think it’s a shame, a disgrace. The Conservative government, while in opposition, promised to reform the law and they failed to do so and they’ve let me down, they’ve let you down, they’ve let the whole country down.” 

Fate of Richard O’Dwyer

David Cameron is now safely back to the UK after his recent four-day visit to the US. Watching the Prime Minister gush how “the special relationship is in a good place” and how “Barack tucked me up in bed” is not only extremely nauseating and cringe worthy, but incredibly insulting to Richard O’Dwyer, Christopher Tappin, Gary McKinnon and their loved ones.

Where was the staunch declaration and reassurance that this contentious Extradition Act 2003 is a top priority for both leaders, and that it is to be overhauled to ensure “it is even-handed” as promised?

Obama cannot even pretend that the Extradition Act, and in particular, the case of Richard O’Dwyer is not on his radar. The fate of Richard O’Dwyer is something that deeply concerns the US. In a recent Google online question and answer session, the number one voted question to be put to Barack Obama out of 135,000 submitted was concerning his extradition. Michael Mozart, an anti-piracy critic and satirical toy reviewer from Connecticut, challenged the president with his question: 

“Why are you personally supporting the extradition of British citizen Richard O’Dwyer for solely linking to copyright-infringing works using an extradition treaty designed to combat terrorism and to bring terrorists to judgment in the USA?” 

Obama, clearly flustered, desperately tried to wriggle out of associating himself with the extradition, saying it had nothing to do with him and it was the decision of the Justice Department. He then evaded answering the question and attempted to wrap things up as quickly as possible.  

The recent ruling in favour of extraditing terror suspect, Abu Hamza to the US could not be a clearer indication that the Extradition Act 2003, designed to deal with terrorism, should absolutely not be used to determine the fate of Richard O’Dwyer, Gary McKinnon and Christopher Tappin. This argument is not about anti-American sentiment, but an exposé of the abuse of a dangerous, chilling act which is exploiting the legal and human rights of innocent-until-proven-guilty British citizens. 

Siobhan Courtney is a British freelance broadcast journalist and writer. She is a former BBC World News presenter and BBC News journalist who has reported and written for BBC Newsnight.