Writing in City A.M, former government chief whip Andrew Mitchell MP has called for a root and branch review of the UK’s extradition laws.  Mr Mitchell was commenting on the Home Secretary, Priti Patel’s announcement that she will delay delivering her decision on whether to approve or block the pending extradition of former Autonomy Chief Executive Mike Lynch to the US on fraud charges.

In July District Judge Michael Snow sitting at Westminster Magistrates Court ruled against Lynch in the the first stage of his defence to the extradition request. Lynch faces trial in the US on allegations of securities fraud, wire fraud and conspiracy amongst 17 counts all related to the sale of Autonomy to Hewlett-Packard.

One of the central planks of Lynch’s defence was that the conduct related to HP’s takeover of Autonomy took place mainly in the UK and that his extradition was therefore “forum” barred. DJ Snow rejected this argument. The Court also denied Lynch’s request that no decision on his extradition should be made until judgement was rendered in the long-running parallel civil dispute in the High Court between Lynch and Hewlett-Packard. His lawyers argued the High Court case examined many of the same issues raised in the extradition and criminal proceedings against Mr Lynch. DJ Snow may have been swayed by the fact that Mr Justice Hildyard’s decision in that matter may not be handed down for many months.

The ball is now in the Home Secretary’s court. Priti Patel is required to approve the decision of the Magistrates Court before Mr Lynch’s extradition can take effect. Normally, such an approval would be granted without delay but the circumstances surrounding Mr Lynch’s case are proving to be politically controversial.

There has been much debate about the disparity between the US and UK in the US – UK extradition arrangements which Mr Mitchell describes as “unfair, imbalanced and inadequate.“ The US UK treaty allows the US to demand the extradition of British citizens for offences against US law even where they are committed in the UK by a person living and working here. There is no reciprocal right for the UK to demand extradition of a US citizen in similar circumstances.

Furthermore, if the UK seek the extradition of a US citizen they will need to establish “probable cause“ i.e. “information sufficient to warrant a prudent persons believe that the wanted individual has committed a crime“ in accordance with the 4th amendment of the US Constitution. There is no such “safety valve” requirement for the US to produce any evidence or pass a similar threshold test when seeking the extradition of a UK citizen. Instead, all that is required if for the US to make an allegation and produce an arrest warrant for the person requested. Critics say that arrest warrants in the US can be granted on very little evidence which then cannot be scrutinised or challenged in the course of the extradition proceedings in this jurisdiction.

International convention normally dictates that there should be prefect reciprocity in extradition procedures between different countries. The lack of reciprocity is an unusual and heavily criticised feature of the US-UK arrangements.

Even if Priti Patel does decide to approve the Magistrates Court’s decision of DJ Snow, this is not the end of the line for Mr Lynch. His legal team are expected to lodge a request for permission to appeal to the High Court, a process which could take many months to conclude. Applications to the Supreme Court and European Court of Human Rights could follow thereafter.

Mr Lynch’s case has shone a spotlight on the US UK extradition treaty arrangements which many pro-Brexit Conservative MP’s have long agitated against. Welcoming the Home Secretary’s intervention as “far sighted” Mr Mitchell points to Mr Lynch’s track record in investing in a new generation of companies in the UK tech industry. He says the UK should be seen to stand up and protect home grown entrepreneurs who may “upset the US in the course of (their) business.”

Mr Mitchell also identifies one of the two main competing political considerations that the Home Secretary Priti Patel will have to juggle. This is the desire for the Government to “send a message around the world about the sovereignty of the British courts, and the confidence with which anyone can invest and create companies in this country.”

On the other hand the Home Secretary will be wary not to upset the UK’s much vaunted “special relationship” with it’s closest strategic ally, the US, at a time when the Government is looking to forge ever closer economic and political ties with other countries beyond the EU.

In the meantime it seems that Mr Lynch’s fate could depend on not just the legal but also the political dynamics surrounding this request.

Roger Sahota is a specialist in international criminal law and extradition cases. Roger is presently instructed in the case of Sanchez, listed before the European Court of Human Rights concerning a request by the United States of America for the extradition of a Mexican citizen to the US from the UK.

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