Alison E. Lardo, the 2003 Extradition Treaty Between the United States and United Kingdom: Towards a Solution to Transnational White Collar Crime Prosecution?

• Jurisdiction: United States,Federal
• Citation: Vol. 20 No. 2
• Publication year: 2006

THE 2003 EXTRADITION TREATY BETWEEN THE UNITED STATES AND UNITED KINGDOM: TOWARDS A SOLUTION TO TRANSNATIONAL WHITE COLLAR CRIME PROSECUTION?

INTRODUCTION

With the globalization of the world economy, white collar crime¹is increasingly transnational in nature. Criminal cases involving complex international corporations and transactions are becoming more commonplace.²

These intricate cases, which involve actors abroad or in multiple nations, demand a multi-national effort to effectively combat white collar crime on a global scale.³Because the issues involved in mounting a cross-border prosecution have long plagued white collar enforcement authorities, the demand for a solution is great.⁴Previous solutions, such as the United States' antitrust leniency program, in which criminal defendants are granted immunity for providing evidence on their co-conspirators, have proven to be insufficient in addressing the challenges posed by transnational white collar crime prosecution.⁵

The Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (2003 Extradition Treaty),⁶negotiated on March 31, 2003, and made public in May 2003, provides a new framework for the transnational prosecution of white collar crime.⁷The treaty has provoked controversy in both the United States and the United Kingdom.⁸It was designed to fast track the extradition of terrorists between the two parties.⁹Although it was originally designed to combat terrorism, the United States has heavily employed it to get white collar offenders into the United States for prosecution, and the United Kingdom has thus far cooperated in the joint effort.¹⁰

This Comment explores the way in which the 2003 Extradition Treaty makes the extradition arrangement between the United States and the United Kingdom an ideal solution to the problems faced by prosecutors of international white collar crime. While the 2003 Extradition Treaty does present a helpful prosecutorial model, it was not specifically designed with transnational white collar crime prosecution in mind. As a result, there are certain unresolved issues as to the efficacy of the solution that the 2003

Extradition Treaty provides. The United States and the United Kingdom have made a bold commitment to prosecute international white collar offenders through the 2003 Extradition Treaty. This Comment also demonstrates how a cooperative effort is necessary for effective prosecution of transnational white collar crime.

Part I of this Comment discusses the particular difficulties encountered by prosecutors of international white collar crime. Part II discusses the predecessors to the 2003 Extradition Treaty, the circumstances surrounding the passage of the treaty, the features of the treaty that enhance white collar prosecutorial powers, and the extradition procedure under the 2003 Extradition Treaty. Part III provides two examples of successful white collar crime prosecution through the use of the 2003 Extradition Treaty. Part IV discusses the issues raised by the use of the 2003 Extradition Treaty for the purpose of white collar crime prosecution, including: economics, considerations of international comity between the two nations, and potential human rights violations. Finally, this Comment provides a conclusion and recommendations for further improving extradition procedures in the future.

I. ISSUES FACING WHITE COLLAR CRIME PROSECUTORS

In proposing a solution to the problem of effectively prosecuting international white collar crime, one must first look at the underlying issues and challenges of prosecution. This Part examines the peculiar roadblocks facing prosecutors and national regulators in mounting an attack against international white collar offenders.

Due to the concealed nature of white collar crime, prosecutors often face challenges in gathering evidence, preparing an indictment, and mounting a case against a defendant at trial.¹¹The challenges are multiplied exponentially when the prosecutor is preparing a case against international defendants for activities that did not occur within the nation that is prosecuting the crime.¹²

These challenges are particularly evident in white collar crime prosecutions in which prosecutors need to obtain evidence that may be protected by national secrecy laws, such as banking or financial information.¹³

Prosecutors must also deal with the differing attitudes of other nations toward international white collar enforcement.¹⁴For example, many of the nations in the European Union view white collar crime as an act for which administrative penalties, rather than criminal sanctions, should be imposed.¹⁵

In the area of antitrust, criminal prosecutions and jail sentences for antitrust violators in Europe are extremely rare.¹⁶It is difficult for the United States to obtain cooperation in prosecuting international offenders when those individuals may be in nations that do not share the same aggressive view on white collar crime prosecution as the United States.¹⁷

Related to the problem of differing attitudes toward white collar crime enforcement is the domestic problem facing legislators and regulators who attempt to create laws to combat international white collar crime.¹⁸While national authorities may impose regulations that diminish criminal activities, the regulations may not reach corporations with transnational connections.¹⁹

The ability to prosecute individual white collar offenders for the purpose of deterrence is extremely important due to the limitation on preventative measures.²⁰

Prosecutors also face challenges in prosecuting international white collar offenders because they may lack the immense resources necessary to develop a successful case. For example, the U.K. Serious Fraud Office²¹has a poor track record in prosecuting complex commercial price-fixing cases.²²

Finally, prosecutors of international white collar offenders must obtain the arrest and transfer of the defendant to the prosecuting territory.²³Defendants often evade prosecution by remaining outside the territory of the prosecuting state.²⁴When a nation is willing to cooperate and extradite an individual to the prosecuting nation, prosecutors must embark on a complicated and lengthy journey through political and legal hurdles to obtain custody of the individual.²⁵Considering the above issues regarding evidence gathering, lax attitudes towards white collar crime enforcement, an inability to regulate beyond national borders, and a lack of prosecutorial resources, in conjunction with the increasing instances of white collar crimes with international dimensions, there is great need for a multilateral solution between nations.

II. 2003 U.S.-U.K. EXTRADITION TREATY

Extradition treaties are the primary tool white collar crime prosecutors utilize to prosecute an international defendant.²⁶Extradition is one element of the framework of transnational criminal law that supports mutual assistance between states in criminal enforcement.²⁷As defined by the United States Supreme Court, extradition is "the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender."²⁸Extradition treaties are necessary to invoke proper criminal jurisdiction because states are not required to extradite fugitives under international law.²⁹For example, the United States has extradition treaties with around sixty percent of the nations in the world.³⁰

To make a successful extradition request, the requesting nation must first have jurisdiction over the offense charged.³¹The "objective territorial principle" is the most common basis for jurisdiction when prosecuting a crime committed outside the prosecuting nation.³²Extradition treaties are extremely helpful to U.S. prosecutors because courts are more willing to find jurisdiction when the parties to the treaty intended for extraterritorial application of jurisdiction.³³The "objective territorial principle" is increasingly applied in interpreting antitrust and other commercial legislation in order to assert jurisdiction against regulatory offenses committed abroad that have an effect in the United States.³⁴Antitrust is the most notable area in which the United States has extended jurisdiction to crimes committed outside its borders.³⁵

The 2003 Extradition Treaty was negotiated in the wake of the attacks of September 11, 2001 to align the extradition policy between the United States and the United Kingdom in order to facilitate the war on terror by allowing for the easy transfer of terrorist suspects between the two nations for prosecution and trial.³⁶While the 2003 Extradition Treaty was designed with an eye towards combating terrorism, it addresses many of the challenges that prosecutors must surmount in a white collar crime prosecution. The following Part discusses the prosecutorial shortcomings of previous extradition treaties between the United States and the United Kingdom and the ways in which the

2003 Extradition Treaty provides a solution.

A. Shortcomings of the Previous U.S.-U.K. Extradition Relationship

The United States and the United Kingdom have long been dedicated to mutual assistance in criminal enforcement through bilateral extradition treaties.³⁷While the two nations are committed to a cooperative effort in criminal prosecution, the extradition relationship between them has evolved at such a slow pace that the law enforcement capabilities have not been greatly enhanced with each successive treaty.³⁸In the past, the United States and the

United Kingdom were hesitant to revise the extradition relationship and willing to preserve preexisting outdated provisions that represented a more conservative view of extradition.³⁹The extradition policy shared by the two nations was largely reactionary until the negotiation...