Summary of the Human Rights based case against the extradition of Arif Naqvi: General failings in the UK-US extradition treaty
- US prisons unsafe with respect to Article 3 and aspects of Article 5 and Article 8 of the European Convention on Human Rights
- Assurances from US cannot guarantee Article 6 rights
- Plea bargaining system if extradited is racially bias and involves mental coercion
- On-going impact of Covid-19
- Crisis in the US Attorney’s office of the southern District of New York
- Damning report by Senator Elizabeth Warren on reporting of conditions in US prisons – “system is corrupt”
- Flaws in dealing with Mental Health issues in extradition hearings
Context
Arif Naqvi is the founder of Abraaj Capital, which pioneered impact investment, a brand of “caring capitalism” – doing good while making profits – which specialised in emerging markets and grew to having $14 billion under its management. Abraaj raised a series of funds which made investments in health care, education and housing sectors targeting middle-income families in economies like India, Kenya, Nigeria, and other fast-growing states. He was also involved in some controversial deals affecting global geopolitics, like the sale of the Karachi Electric company to the Chinese. Naqvi was a frequent speaker at global gatherings like the World Economic Forum. He was arrested at Heathrow Airport on a US extradition warrant on 12thApril 2019.
The final hearings in this extradition proceeding by the US government against Arif Naqvi took place in Court 1 in Marylebone Magistrates Court on December 14th and 15th.On the 28th January the magistrate, who is about to be promoted to the High Court, ruled that it was safe to extradite Naqvi to the United but instructed that the decision be reviewed by the Home Secretary Priti Patel. Naqvi’s lawyers will appeal.
The Magistrate rejected the defences “Forum” argument and ruled “that a substantial measure of Mr Naqvi’s alleged criminal conduct was not performed in the UK.” Tellingly that Naqvi should be tried in the same jurisdiction as his co-accused in the US. In terms of Article 3, his rights with regard ot proection and safety of his physical and mental health, Hafeez v USA [2020] was cited placing a high test which was felt to be met in the case of Julian Assange: “strong evidence required to establish a violation of Article 3 by reference to prison conditions when the requesting state is a well-established democratic country.” On Article 6 requires the real chance of denial of justice. Commentary by expert extradition lawyers on the judgement concluded:
In assessing the strength of Mr Naqvi’s connection to the UK, one of the specified matters in relation to the interest of justice in section 83A of the 2003 Act, the court had regard to his ‘medical connection’, namely his ongoing receipt of medical treatment in this jurisdiction and the relationship he has built up with those providing his treatment. In Love v US [2018] EWHC 172 (Admin), the Divisional Court provided a non-exhaustive definition of ‘connection’ in the context of this provision, concluding that it would not normally extend to cover medical treatment, unless there was something particular about the nature of the treatment that connected the individual to treatment in the UK. It would appear from this decision, that a longstanding relationship with doctors providing treatment for a mental health condition may create such a connection for the purpose of considering the interests of justice test. The US authorities provided an assurance that bail would not be opposed if Mr Naqvi was returned to the US and subsequent assurances in respect of Mr Naqvi’s pre-trial detention, in the event that, despite that assurance, he was remanded in custody. The court accepted that the US assurance was given in good faith and was binding, but noted that the no assurance can bind a judge in a state where there is a separation of powers and, therefore, there was a risk that the judge before whom Mr Naqvi presents in New York may take a different view of bail to that taken by the prosecution. In light of that residual risk of detention, the court was obliged to go on to consider whether the assurances given in respect of the potential detention facility ensured compliance with Article 3.
PETER AND PETERS
The US is attempting to extradite Naqvi to New York to face charges related to the collapse of his private equity firm Abraaj Capital. The story of the collapse of Abraaj was widely reported at the time. What has been happening in Court 1 has barely registered in the press here or in the US. It is faithfully covered by journalists in Pakistan, Mr Naqvi’s place of birth and citizenship and in specialist legal media. Because of this lack of coverage, the human right issues in this case have not been raised by the human rights community in the UK. It is very important that it is not only Julian Assange who enjoys the support, advocacy, and the visibility of human rights advocates who are opposed to the operation of the US-UK Extradition Treaty or that this support is only given to UK citizens like Mike Lynch .
The issues raised by the Naqvi case cover much of the same ground as the issues raised in the case of the founder of wikileaks and some of the same as Mike Lynch. However, there are some important differences between the two. The behaviour of the Department of Justice in its prosecution of this case has been to offer unique concessions to try and secure the extradition. The distance between the original intent of the Extradition Treaty between the UK and the US and it current operation, that support the more general case for reform of our Extradition law, are even more starkly illustrated in the Naqvi case than in the Assange case.
I confine my thoughts on this to the issue of extradition and not the indictment in the Southern District of New York on charges of theft, money laundering and racketeering as the Secretary of State will only be concerned with these issues.
The Naqvi case raises important issues that are generic to the operation of the UK-US extradition treaty and its use by the United States as an extension of judicial activism. The question is the extent to which this is political rather than legal. In the Assange case the arguments have been exhaustively made about the nature of the political prosecution. In cases like Naqvi and the many other cases that relate to financial crime and perhaps also the geopolitics of certain investments, the link to politics may not be as obvious, but it exists.
General failings of UK-US treaty
As I have written on this blog, before there are a number of well-established critiques of the extradition treaty between the UK and the US that have been reviewed in a series of reports, debates, and enquiries. But each time a new case is presented these critiques are renewed.
The heart of the problem is an inequality in the treatment of defendants and a difference in the way in which the treaty is used by the two governments. One problem is the “may” and “must” distinction in the operation of the “probable” and “reasonable” distinction. This is the basis on which extradition is sought. There are further problems with the different crimes that extradition is used to deal with. This is a matter of law and of public policy. There are also profound differences between the conditions in which prisoners are held pending trial and the tariffs that different offences carry because of the basis of the US legal system in plea bargaining.
The British Extradition Act 2003 states that “The Secretary of State must order the person’s discharge” if the probable cause test is met. The equivalent in the US penal code states: “The Federal or District Attorney may order the person….to be tried” if the reasonable suspicion test is met. In the United States the Fourth Amendment to the Constitution ensures that arrest may only lawfully take place if the probable cause test is satisfied: in the United Kingdom the test is reasonable suspicion. Defenders of the treaty argue that this makes no difference in law. However, in operation it does and has made a significant difference. Since the treaty was passed 135 defendants have been extradited from the UK to US, 99 of them for non-violent crimes and only 11 from the US to the UK. There is no normative judgement here, empirically more people have been extradited from the UK to the US than from the US to the UK, it is not an unreasonable assumption to make that this is because it is much easier to extradite in that direction than in the other. The context is therefore inequitable and as a matter of public policy the treaty is flawed for this reason.
Issues related to European Convention on Human Rights
There are other kinds of general questions that are raised. The working assumption of the European Court of Human Rights and Courts with respect to Article 3, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, has generally been that defendants would usually be removed to a state which “had a long history of respect for democracy, human rights and the rule of law” except for cases involving the death penalty. There has also been limited scope under Article 6 because the convention does not require contracting parties to impose its standards on third parties, so “the contracting parties are not obliged to verify whether a trial to be held in a third State following extradition, for example, would be compatible with all the requirements of Article 6.” The requirements under Article 6 comprise a “flagrant denial of justice”. Whilst the USA clearly has a long history with respect to democracy, human rights and the rule of law, this case, and the operation of this treaty more generally, raises the question of the recent history of the United States.
Human Rights Watch and multiple other bodies have charted the deterioration of the United States record on domestic human rights from 2016 onwards. There has been a particular focus on reversing policies “instructing prosecutors to avoid charging crimes that would trigger long mandatory minimum sentences and were aimed at curtailing racial disparities in the federal system.” The racial disparities extend from sentencing to the operation of racial bias in the plea-bargaining system. The rolling back of human rights in the US Justice system will take the incoming Biden administration considerable time to reverse. There was quite rightly a great deal of emphasis in the Naqvi proceedings on the impact of Covid-19 on conditions in prisons. Prisoner’s rights are protected under articles 3, 5 and 8 and Covid-19 has impacted with respect to accommodation, hygiene, clothing and bedding, exercise and recreation and transport, as well as health care. This is connected to the wider issues of the safety of US prisons in general and in particular the Essex County prison that Naqvi might be sent to.
US Prisons and the Elizabeth Warren Report
What is striking in this case is the extent to which the Department of Justice has conceded that the normal facilities that would be used were not fit for purpose. The nearest prisons to the Court in which the case will be heard is the MCC in Manhattan. The prison in which Jeffery Epstein committed suicide. It has been the subject of decades of investigation into inhumane conditions. The conditions at Essex County Jail have been assessed by independent witnesses and by the ACA. The independent witnesses brought for the defence in the Naqvi case catalogued the problems with the facility as I summarised in my blog on the hearing: Essex County Jail is a very tough place: inherently dysfunctional, dangerous, and psychologically debilitating – like almost all US prisons. Exercise areas are dominated by gangs who control access to phones and tablets. Standards of cleanliness are low and unsafe. Medical care is haphazard, it can take weeks to get medication and it is not clear if the pharmacy would have the medication needed for a prisoner with on-going medical conditions. There is a model of how the prison is meant to be sanitised during the pandemic, but witnesses doubted that this model was followed. The guards at Essex County come from the same communities as many of the inmates, very few of whom are white collar criminals. As they come from the same communities, they often turn a blind eye to violence against prisoners who come from different communities.
The defence of the prison offered in the case was based on statements by the Warden and reports from American Correctional Association. A December 2020 report by Elizabeth Warren on the operation of the ACA, which is the accrediting body for private prisons in the US, concluded that the system of inspection was corrupt: “The ACA currently counts over 1,200 accredited facilities; since 2007, only four have been denied accreditation. The groups provide three months’ notice and preparation tools for audits, “essentially providing the answers to the test in advance,” as the report puts it. And the ACA’s seal of approval lasts three years, with facilities conducting “self-reporting” in the interim.” The report: “A review of available evidence suggests that that accreditation has little to no correlation with detention facility conditions and practices, and therefore little to no value whatsoever,” the report states. “The result has been the rubber-stamping of dangerous facilities and the waste of millions of taxpayer dollars.” Warren recommends that the Department of Justice and Department of Homeland Security stop paying the ACA for accreditation and instead establish a “rigorous, independent, and transparent” oversight process.” It will take considerably time for the Biden administration to act on this report. Until it does, the assessment of prisons by the ACA clearly cannot be relied upon or trusted and therefore the ability of these facilities to protect prisoner’s rights is unsubstantiated.
Not only have the DOJ accepted that the MCC is not fit for purpose by offering up Essex County as an alternative they have also provided an undertaking from the United States Marshall’s Office that Mr Naqvi would be transported from Essex County in New Jersey into Manhattan each day for the hearings and that the Judge would adapt the sitting times in the court to this arrangement. Not only can the ACA reported standards presented of Essex County not be trusted, expert witnesses for the Defence also stated that this undertaking would not be honoured by the US Marshall’s office in practice. Joshua Dratel, a highly experienced attorney and President of the Association of Criminal Defence Lawyers told the court that he did not believe Naqvi could avoid MCC altogether. Dratel stated that irrespective of the assurance, it is highly likely he would be moved to MCC: “Every single trial that I have had with the SDNY in the past decade involving any defendant, has resulted in people being detained at MCC…I don’t see how the Marshal service is going to tolerate bringing Naqvi alone and putting resources in for this. Nor will they risk the ire of a judge”. If the undertaking was broken, then the UK courts will not be able to do anything once Naqvi is in the US: “People get extradited and then assurances are meaningless.” Critiques of assurances in extradition cases are well established. A review of the operation in a European context of countries with long histories of democracy, human rights and the rule of law, was titled: Not worth the paper they are written on. If Naqvi was not transferred to MCC, the witnesses argued that he would not have time and facilities to prepare his defence and that on the days he was to appear in court he would miss meals and have insufficient time for consulting with this defence team.
US Attorney’s Office in Southern District of New York
The other aspect of recent history that might concern us is the conduct and record of the United States Attorney’s Office (USAO) for the Southern District of New York. In the case of United States of America, v Ali Sadr Hashemi Nejad, the USAO was found by the Judge to have withheld evidence such that on retrial the case against the defendant was dismissed. She instructed that every member of the office read her damning judgment in full. Aside from the misconduct of this office in recent cases, there is the question of a deeper political motivation for this kind of prosecution and the related issue of the independence of the prosecutors. In cases involving European extraditions this issue has been raised in a number of recent cases including a case with Germany.
The way in which financial crime is treated in the UK and the US is substantially different. Corruption Watch recently reviewed the two jurisdictions in a major report, they concluded:
A company committing an economic crime in the US is far more likely to be hit with heavy criminal, civil and regulatory penalties than one in the UK….many of the companies that have been penalised in the US are British banking institutions. The UK is effectively outsourcing its corporate financial crime enforcement to the US…Large fines for financial crime from UK financial institutions or for financial crime committed in the UK or with major impacts on the UK economy, meanwhile, which could be going to the UK Treasury, are instead going into the US Treasury. Corruption Watch conducted an in-depth analysis of the enforcement of major corporate fraud and money laundering cases in London and New York over the past ten years. We found that: When banks in London and New York were implicated in manipulating the London based inter-bank lending rate, or Libor: The UK did not bring a single corporate criminal prosecution. The US brought criminal enforcement actions against seven of the big banks and imposed nearly £1.6 billion in criminal fines.
This illustrates that the level of judicial activism is a matter of policy, that the underlying charges are criminal rather than civil and that the policy is based on maximising economic return and penalties. If Naqvi is extradited and tried on the current indictment, then he is threatened with over 300 years in prison and huge fines. Given the track record of the US government outlined above it is highly likely that these charges will be pressed, and additional charges introduced which will also be criminal charges. Under UK law if individuals or entities sought to bring a civil action against him or the CPS prosecuted Mr Naqvi for the recovery of funds, then the penalties and process would be in an entirely different category to the charges and the potential punishments under US law. It should be noted that at the hearing on the extradition the defence side claimed that all funds had been returned to investors.
Mental Health and Extradition
At the very end of the Naqvi hearing the question of mental health was raised and some short extracts from the reports were read in open court. This seems to be an invasion of privacy and a questionable process that might be looked at by the Court. There was no need for the details of the fragile state of Mr Naqvi’s mental health to be announced in this way.
The challenge for the defence is to show that the US even after having been informed of concerns of the impact of the decision to extradite and the conditions of pre-trial detention, cannot provide guarantees of adequate psychiatric care. Paul Arnell has written extensively on this issue, and reviewed the bars to be met if extradition is to be rejected on mental health grounds. The assessments put forward in this case were of a clear suicide risk if the decision to extradite is made. Therefore, any undertakings by the US to provide care are irrelevant if the court accepts that the very decision to extradite could trigger self-harm. Arnell raises broader questions of the need to address the position of mental health in extradition and concludes tellingly:
A single applicable bar, which failing an authoritative judicial pronouncement, is needed to clarify and standardise the rules applying to requested persons at risk of suicide. Presently, the three applicable bars serve the cause of obfuscation as much as the law and individuals concerned. A similar process of standardisation is also called for in the use and content of diplomatic assurances, especially in cases where fitness to plead is an issue. Here, as above, coherence and consistency are served through law that is settled and therefore applied similarly in different cases. Overall, it is clear that the law has tentatively recognised the particular issues arising in extradition mental health cases. This is to be welcomed. It is now time, however, for the law to take stock of that recognition and to legislatively and judicially accept that a number of the issues arising within mental health cases are distinct and demand specific and systematic regulation.
Conclusion
The innate inequalities in the operation of the UK-US extradition treaty have been exploited by US prosecutors because there are deep differences between the intent of the treaty and the operation of the treaty in practice. The intent was that the treaty would be used to deal with terrorists, violent offenders, and sex offenders. Therefore, the UK government accepted the inequality of threshold for action in the belief that this would be needed in the “war on terror”. The operation has been entirely different from this intent. The treaty has been used as an extension of judicial activism with a broadly economic interest by the government of the United States, in fact the treaty is part of the extraterritorial jurisdiction that the Department of Justice has pursed in commercial matters. The consequence is that the individuals who are extradited from the UK to the US endure the harsh, unsafe, and often inhumane conditions of US detention are usually facing civil charges. Further defendants are put under extreme psychological pressure by the excessive prison tariffs that are attached to crimes which carry light or no custodial sentences in other jurisdictions. In turn these tariffs and the inherent inhumanity of the US penal system amount to a situation akin to cruel and unusual punishments, if not torture, forcing the individuals to plead away their rights in a bargain for lower sentences. Accepting guilt which either does not exist or is unproven. All of this is in the context of a period in US history in which human rights have been rolled back by the Trump administration, racial bias in the exercise of law enforcement and the justice system has expanded, Covid-19 has put prisoners at serious risk of infection and the very office that is prosecuting this case has been found to be withholding evidence to secure convictions.
