Wednesday, February 15, 2006

Extradition from Britain to Belgium and Spain and the United States—Denied and Approved and Hearing

There are three extradition cases that seem particularly interesting. The first concerns Christopher Colin Hunt, the second concerns Hedi Ben Youseff Boudhiba, and the third involves Gary McKinnon.

Mr. Hunt has seen his extradition to Belgium barred due to lapse of time, and because the documents were invalid.[1] Justices George Newman and Janet Smith ruled that Mr. Hunt—who is wanted on a Belgian warrant for smuggling cigarettes—could not be extradited because the warrant “did not identify which law he allegedly had violated,” and “years of delay in bringing charges would make prosecution unjust.”[2] As the Justices noted, Mr. Hunt voluntarily traveled to Antwerp nearly 7 years ago “to be interviewed about alleged laundering of proceeds from cigarette smuggling in the previous two years.”[3] However, because the extradition request had been delayed for years and there had been “full cooperation,” it was reasonable to infer “that the subject may be lulled into a false sense of security.”[4] Thus, Mr. Hunt will not be extradited to Belgium. How this will impact his ability to travel to other countries with which Belgium has extradition relations is unclear.

The second extradition case is a bit more high-profile. Mr. Boudhiba was born in Tunisia and he is wanted in Spain because he is “accused of being part of a group that helped the September 11 attackers.”[5] His alleged assistance to al Qaeda consisted of helping “provide money and false documents.”[6] Mr. Boudhiba’s case is controversial because “experts say [he] has the mental age of an eight-year-old.”[7] An argument against extradition was made on mental-health grounds, but Lady Justice Smith and Mr. Justice Newman said that “Spain is a civilized country. The evidence shows that, if extradited, proper examination will be made to ascertain whether he is fit to stand trial. Such examination will also establish whether he is a suicide risk and whether he is in need of psychiatric treatment.”[8] That said, “[i]t would not be unjust or oppressive to extradite him to Spain.”[9]

Spain is a Category 1 Territory under the British . Under Section 11 of that legislation, the and Magistrate Judge “must decide whether the person’s extradition to the category 1 territory is barred by, among other things, reason of double jeopardy, age, likelihood of the death penalty, specialty, or “extraneous considerations.” The extraneous considerations are covered by section 13, and they cover only prejudice based on race, religion, nationality, or political opinions. Section 21, however, allows the Magistrate Judge to decide whether the individual should be extradited on human rights ground under the Human Rights Act of 1998. In June of last year, the Magistrate Judge ruled that Mr. Boudhiba could be extradited.[10]

Finally, British District Judge Nicholas Evans has announced that Mr. McKinnon—who “is accused of breaking into American defence computer” systems—“will not be extradited to the US if guarantees about his safety cannot be made.”[11] Addressing the prosecution, Judge Evans said “All you have to do is satisfy the court he is not at risk, … [a]nd if you cannot, then there is a problem.”[12] The “risk” involved is the potential for Mr. McKinnon to be sent to Guantanamo Bay.

According to the US government, “between February 2001 and March 2002, the 40-year-old computer enthusiast from North London hacked into dozens of US Army, Navy, Air Force, and Department of Defense computers, as well as 16 [NASA] computers.”[13] While the US government claims that he caused US$700,000 worth of damage by moving and deleting files, he claims he was merely looking for “evidence of a UFO cover-up.”[14]

During extradition hearings yesterday, it was argued that he “could be tried under severe new American anti-terror laws” and “sent to Guantanamo Bay” because his activities are alleged by the US to be “calculated to influence and affect the US government by intimidation and coercion.”[15] Arguments against extradition based on Guantanamo Bay are becoming quite common. We have seen them made by (who is in the Netherlands), , , and now Mr. McKinnon. Judge Evans apparently takes the possibility of Mr. McKinnon’s detention at Guantanamo seriously because he has ordered the US to provide assurances that no such reclassification of Mr. McKinnon’s status will occur.[16]


[1] , Associated Press, Feb. 15, 2006. (subscription only).
[2] Id.
[3] Id.
[4] Id.
[5] , Reuters, Feb. 15, 2006.
[6] Id.
[7] , The Guardian, Feb. 15, 2006.
[8] Id.
[9] Id.
[10] Id.
[11] Bobbie Johnson, , The Guardian, Feb. 15, 2006.
[12] Id.
[13] Clark Boyd, , BBC News, Feb. 15, 2006.
[14] Id. We briefly mentioned Mr. McKinnon on our Transnational Crimes Computer Crime .
[15] , The Daily Record, Feb. 15, 2006.
[16] Johnson, supra note 11.

posted by McNabb Associates, P.C. @ 10:56 AM