In October 2012, British Home Secretary Theresa May announced that computer hacker Gary McKinnon would not be extradited to the USA. It marked the end of a ten-year battle. Some commentators argued that the request for extradition should never have been made in the first place and that, once again, it highlighted the unequal Anglo-American extradition treaty. McKinnon, who suffers from Asperger’s Syndrome, hacked into secure US government files in 2002 in an alleged attempt to find out more about UFO’s. The USA suspected him of terrorism and demanded that Britain hand him over. A very modern story… right?
In simple terms, extradition is the legal process by which one country hands over a fugitive to another country where that person has been accused or convicted of a crime. As a concept, it originated with the Ancient Egyptian and Chinese civilisations. Following an unsuccessful Hittite invasion of Egypt, an extradition agreement formed part of a peace treaty signed between Ramses II and the Hittite King, Hattusili II. Amazingly, this text still exists. It wasn’t until the Treaty of Falaise in 1174AD that an English monarch officially made provisions for extradition. The treaty between Henry II and William of Scotland set out a mutual extradition agreement between the Scots and the English.
One of the earliest, and most notorious, recorded case of extradition within Britain dates back to 1591 when an Irish nobleman and rebel Brian O’Rourke fled to Scotland. The monarch at the time, Queen Elizabeth, demanded that O’Rourke be transferred from Scotland to England. She used the 1586 Treaty of Berwick to secure O’Rourke’s custody. He was sent to the Tower of London and then executed at Tyburn on the 3rd November 1591. It was an exceptional case and an important precedent, but what of Anglo-American extradition agreements?
The first Anglo-American extradition agreement appears as a clause within the 1794 Jay Treaty. It was a shaky piece of legislature that although modest and short lived, established a number of important principles that have continued to structure the Anglo-American approach to extradition to this day – it ensured that extradition was dictated by law and not foreign policy and that it was non political (i.e. the only crimes listed were murder and forgery). Fast forward nearly forty years and we find what the UK Home Office claims is the earliest example of a proper and ‘modern’ extradition agreement.
In the year 1842 a treaty known as the Webster-Ashburton Treaty was created between the USA and Great Britain. Created to address the Northeast Boundary Dispute in America, it also specifically dealt with the surrender of alleged offenders in cases of murder, assault with intent to commit murder, piracy, arson, robbery and forgery. Most significantly, the judiciary took on an even greater role. As a result dozens upon dozens of people were extradited to and from Britain in a relatively short space of time and during the 1860s the process of extradition came under considerable strain. The United States complained that the list of offences enumerated in the Treaty was too narrow. In the twenty-two year period between 1846 and 1868, the total number of extradition requests from England to the United States was 53 and outgoing requests amounted to 36.
So there we have it. Even in the mid nineteenth century the proportion of extradition orders was incredibly uneven.