Statistics suggest that extradition to the US is much less likely to occur than extradition to Europe under the system of European Arrest Warrants. It also seems to be the case that the UK does indeed seem to attract a disproportionately large number of extradition requests.
Extradition is one of those topics which understandably receives a lot of air time in any consideration of directors duties. Keith Packer’s story and that of Ian Norris are just two of many very human accounts of what can happen. Both of those cases involved extradition to the US and it tends to be those cases which generate the most publicity, not least because of perceptions of unfairness in the degree of reciprocity offered by the US authorities. These concerns, which are of course political as well as personal, prompt questions in the House of Commons and elsewhere giving rise to some surprising numbers.
Take the US numbers first; since the current extradition arrangements were put in place in 2004 and up until the end of 2012, 35 UK citizens have been extradited to the US whereas only 5 have made the journey in reverse. Allowing for population differentials, the numbers, whilst noteworthy, are perhaps less than shocking. Interestingly though, Mr Packer who was only threatened with extradition before agreeing to face charges in The States (and others like him) will not feature in these statistics at all.
So what about Europe?
The current extradition system was introduced, as it was for the US, with effect from 2004 under the Extradition Act of 2003. The system of European Arrest Warrants is valid throughout all 26 member states of the European Union. The arrest warrant allows any European Union country to request the arrest and extradition of a wanted person without proving they have a case to answer. Once issued, it requires another member state to arrest and transfer a criminal suspect to the issuing state so that the person can be put on trial. A warrant can be issued for the purposes of conducting a criminal prosecution (not merely an investigation). It can also only be issued for offences carrying a maximum penalty of 12 months or more. The trouble is that there are very many such offences.
Overall during 2010/11, under the system of European arrest warrants, the UK authorities handed over 1,173 suspects or wanted criminals – almost double the number in the previous year. Figures from the Council of Europe show that other European countries made 6,760 extradition requests to Britain in 2011, more than 130 a week, representing a 48 per cent rise year on year. In 2011/12 Britain surrendered 11 people (of varying nationalities) for every person received in return from the Continent. In 2010, 33% of all European Arrest Warrants requests were received by UK authorities.
What these figures of course don’t reveal is what specific offences the individuals were suspected of or convicted for, let alone how many individuals were managers of companies. They do, however, paint a picture which suggests that the UK authorities receive and deal with more than their fair share of such requests. Is this simply because London is a big international commercial centre? Or because the UK attracts more crime and/or fugitives from justice? Or is it because the UK interprets the EU agreement more broadly than other member states? The picture is unclear.
It does seem to be the case that certain states seem to have interpreted the rules more narrowly. The Dutch for example have taken steps to ensure that Dutch citizens cannot be extradited for actions that are not also crimes in Holland, and the French appear rarely to extradite a French citizen for trial in a foreign country. It does not appear that sanctions have yet been imposed on either country by the EU authorities. Germany too seems to have introduced the concept of proportionality into its treatment of requests under the European arrest warrant system, agreeing only to process those applications which it deems to be for “serious offences”.
What conclusions can we draw from any of this? One thing seems clear; in an increasingly globalized economy it is simply unsafe to assume that just because you are working in a UK based business the risk of prosecution is limited to this country. The figures bear that much out at least. Similarly, when it comes to insurance protections in the form of legal advice and assistance in the context of extradition proceedings, it would be unwise to limit that protection, as some D&O policies do, to requests for extradition from the UK. Not only can the requests come from many different countries but they may also be directed to any country in which you happen to find yourself at the relevant time.
There are a number of other points to watch out for in the realms of policy coverage. Perhaps the most important of these is to do with the nature of the trigger point, i.e. the time at which and amount for which insurers are prepared to fund the defence costs protection for an extradition proceeding. Relevant questions include:
- How early in the process is the policy triggered?
- What insurer consents are necessary?
- What degrees of control are insurers seeking to impose on the nature quality and extent of the legal representation?
- Are extensions to cover concealing unwelcome sub limits?