Bring back the Prima Facie Test

After 9/11 Britain signed a Treaty with the United States to make extradition easier.  That was a natural response to the threat of terrorism.  However, the Treaty has not been used against terrorists, but against a number of businessmen.  There is now a fear of American extradition, which has led to the suicide of Neil Coulbeck, an innocent witness in the NatWet case.

The 2003 Act, which gave effect to the Treaty, changed the law in respect of the United States and a number of Commonwealth countries.  The main change was that it removed the requirement that there should be prima facie evidence of guilt.  Prima facie is not a very high standard of proof;  it only requires that evidence should be produced on which a reasonable man could think the accused was guilty of a crime.  Yet it is a very important protection.

British businessmen do not trust American criminal law because of plea bargaining, in which the horrors of some American prisons are used as a threat to impel people to plead guilty in return for an agreed sentence.  The difference between a possible fifty years in a violent prison and two years in a country camp can be a very compelling argument.

The U.S. is put at a disadvantage, since this makes businessmen reluctant to trade with the United States when there is the faintest chance of any party to a negotiation – such as Enron was in the Natwest case - being accused of illegal conduct, under the very wide U.S. laws which cover conspiracy.  Counter terrorist laws, and laws against organised crime can apply to ordinary businessmen, and frame the judgment of business transactions.

I do not know whether the 2003 Act is compatible with Human Rights law, but I should have thought not.  We should bring back the prima facie evidence requirement, which still governs extradition to the vast majority of countries.