The new forum bar – will it stem the increase in US extraditions?

23 October 2013

Figures obtained by Sweet & Maxwell show that the number of those whose extradition is requested by the United States increased from 2011 to 2012. Although the number of arrests is still relatively low (12 were arrested in the UK in 2011 as against 22 in 2012) this is likely to increase in coming years, with the US showing a growing appetite for bringing foreign nationals to face American justice, particularly in complex financial investigations.

With the US able to reach beyond its borders as a result of its dominance in terms of technology as well as the fact that its currency is, for the time being, the world's de facto reserve currency, it is no surprise that the number of those whose extradition is sought by the US is rising. US prosecutors routinely pursue cases against individuals even where the connection to the US is somewhat remote and where the greater part of the conduct arguably occurred in the UK, see for example, the case of Richard O’Dwyer. Thus far, the UK courts have not been able to refuse requests made in these circumstances, despite the inevitable hardship experienced by those who are uprooted from their homes and families to face trial thousands of miles away.

A new bar to extradition which was implemented on 14 October 2013 has the potential to deal with this problem. Known as the "forum bar", it will allow courts to refuse to extradite where it is not in the interests of justice to do so. Although a positive development, the new legislation attempts to limit litigation: prior to this decision on the interests of justice being made by the court, the prosecutor in the case can issue a certificate which effectively vetoes the judge from determining the issue. Whilst it has the potential to reduce the numbers of those extradited to the US, the significance of this development therefore remains to be seen. Given the increasing number of inter-jurisdictional financial investigations, many involving the US, it seems likely that the number of requests made by the US will continue to rise, whatever the approach of the UK courts.

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