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14 May 2020

Anne Sacoolas and Dr Lynch a tale of 2 extraditions

6 mins

The case of Harry Dunn has been in the headlines again as the press have excitedly reported that Anne Sacoolas, the US citizen wanted by the UK for his death, is on the Interpol “wanted” list.

It’s unclear how long Ms Sacoolas may have been on the list and whether it is “news” as Interpol do not publicly name all those on the list, but this has reportedly been confirmed by UK police. So what does this mean for Ms Sacoolas?

Interpol stands for  International Criminal Police Organization, but despite its name, Interpol does not carry out any actual investigations. It is a data sharing Inter-governmental organization with 194 member states across the world. If Interpol receive a request from one of its member states to place an individual on the Red Notice “wanted list” , as long as the request complies with their constitution, Interpol will notify National Crime Bureaus in its 194 member states that an individual is wanted in that member state. Those responsible for acting on the Interpol request are the national police force, in the UK’s case the NCA (National Crime Agency).

In Ms Sacoola’s case the US Government rejected a request by the Home Office to arrest Ms Sacoolas for allegedly causing the death of Harry Dunn by claiming that she has Diplomatic Immunity. This is disputed by the UK Government.

It is this rejection that appears to have triggered the UK Government to make the Interpol request as their attempts to have her extradited to face trial have failed. Some commentators have suggested it is questionable whether Interpol have the power to issue a Red Notice to those who have Diplomatic Immunity. This is something to be explored.

But what impact does this have?

In the UK, an Interpol Red Notice does not carry the power of arrest. If Ms Sacoolas were to travel to the UK, the police would be alerted by the port when she arrives and, depending on whether or not an extradition arrest warrant is in existence, she may be arrested. In other jurisdictions Interpol Red Notices carry the power of arrest so she could face immediate arrest and detention while the UK are notified that she is in their jurisdiction. An extradition request from the UK may well follow.

Ms Sacoolas therefore remains protected as long as she remains in the US, but if she were to travel, she could be at risk of detention, almost anywhere in the globe and then, presumably, the UK would make a request for extradition and proceedings would be instigated. There is of course the possibility that a change in the US administration could also involve a change to their approach to this extradition request.

Many commentators have raised concern regarding the alleged inequality between the US and UK when it comes to extradition, with some MPs recently forcibly speaking in parliament citing the Sacoolas case but also the historic cases of the Natwest 3, David Norris, Gary McKinnon and more recently Dr Mike Lynch and his company Autonomy. Extradition from the UK-US is also currently under the spotlight due to the Assange case which is currently ongoing.

UK-US Extradition is governed by the 2003 Treaty and Extradition Act 2003 (part 2). There is no requirement to make a finding of “probable cause” or a case to answer to extradite to the US (or UK), but the requirements of the Extradition Act have to be met before extradition can take place. Extradition can be challenged on a number of grounds, including (amongst other arguments) delay, dual criminality, human rights and, following a 2014 amendment to the Act after the Gary McKinnon case, the forum bar.

The forum bar was largely introduced to deal with the perceived imbalance in the UK’s extradition arrangements with the United States following the high profile cases of the Natwest 3, Norris and McKinnon where it was argued that some of the alleged criminality had taken place in the UK and therefore the United States was not the proper forum for any trial. The court can bar extradition where a substantial element of the alleged criminal conduct took place in the UK and it is in the interests of justice to do so.

In deciding whether it would be in the “interests of justice” to bar extradition the court is limited to considering the following matters:

  • The place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur.
  • The interests of any victims.
  • The belief of the UK prosecutor that the UK is not the most appropriate jurisdiction to prosecute the requested person.
  • Whether the necessary evidence is or could be made available in the UK.
  • Any delay that might result from proceeding in one jurisdiction rather than another.
  • The desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having particular regard to the jurisdictions in which witnesses, co-defendants and other suspects are located, and the practicability of such persons giving evidence in the UK or in outside jurisdictions.
  • The requested person’s connections with the UK.
  • Whether the relevant authorities in the UK have decided not to take proceedings against the person in respect of the relevant conduct.

In order to avoid satellite litigation the prosecutor can issue  a certificate if they formally decide that a prosecution should not be brought in the UK because the case does not meet the test under the Code for Crown prosecutors (insufficient admissible evidence or not in the public interest) or there are national security concerns regarding disclosure of sensitive material.

The extradition case of Dr Lynch is yet to be heard but he is still in the midst of a civil claim in the High Court regarding his alleged conduct which is the subject of the US extradition request. Undoubtedly forum will feature in his challenge to extradition and will be interesting to observe as very few cases succeed on this basis.

In the meantime, Ms Sacoolas will undoubtedly choose to limit her travels to the US, indefinitely and not just due to Covid-19 restrictions, otherwise she is at risk of arrest, detention and protracted litigation either resisting extradition to or defending a prosecution in the UK.

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