Recent coverage of the ongoing investigation into sex trafficking and other serious offences allegedly committed by (now deceased) American millionaire Jeffrey Epstein and some of his associates, put back into the spotlight the alleged role of very prominent individuals, including Prince Andrew.[1]
Of particular interest are reports noting dissatisfaction on the side of the American criminal justice authorities regarding Prince Andrew’s cooperation with the ongoing investigation.[2] Some even speculate that the US authorities might turn to more drastic measures, including making a formal extradition request to enforce the prince’s cooperation.
The US Attorney-General William Barr is on the record that a request to extradite Prince Andrew is currently not on the table. However, the fact that the Attorney-General even got asked this question about a possible request for the extradition of Prince Andrew points to a broader misconception about the difference between extradition of a fugitive from justice (which Prince Andrew is not, based on information which is currently in the public domain) and mutual legal assistance in a criminal investigation, which is the subject of the apparent dispute between the US authorities and Prince Andrew’s lawyers.
How co-operation is governed
It is public knowledge that in April this year, the US authorities issued a formal mutual legal assistance request to the UK in order to speak to Prince Andrew, in the hope that he can provide the US authorities with information relevant to the ongoing Epstein investigation.
Mutual legal assistance and extradition are forms of international cooperation in criminal matters between nation states. The former concerns provision of information and evidence for purposes of a criminal investigation; the latter the transfer of a convicted criminal or a fugitive from justice from one state to another.
International cooperation in criminal matters in the form of mutual legal assistance between the United Kingdom and the United States is governed by a treaty that was concluded in 1994 and which entered into force in 1996.
The content of this treaty is that of a broad mutual legal assistance framework, and the two parties can request a wide range of mutual assistance measures, including the provision of documents, records and other forms of evidence for purposes of the investigation and prosecution of criminal offences.
The decision to extradite
Mutual legal assistance and extradition are by their nature not purely legal matters for the courts to decide, but are, first and foremost, functions of the executive. The decision to extradite a fugitive, or to provide mutual legal assistance requested by a foreign government, are therefore, for the most part, government (executive) decisions.
This is not to say that there is no role for the courts to play, quite the contrary. The courts play an important role as a judicial check on the manner and form of international cooperation in criminal matters, especially in terms of the protection of human rights and procedural fairness. But the fact that international cooperation is primarily a function of the executive also means that mutual legal assistance and extradition requests concerning high profile individuals are more easily politicised.
This is just in the nature of things.
The executive is, per definition, a more obviously political branch compared to the courts. Having said that, few would argue that matters of international cooperation in criminal matters between states should be a function of the legal system only. Effective cooperation between states is primarily a function of foreign policy, and that, in turn, is essentially a political matter which cannot and, I would argue, should not be determined by the courts.
Therefore, a mutual legal assistance or extradition request, especially one involving a high-profile individual or one concerning a controversial investigation, will inevitably be viewed through a political (foreign policy) lens.
The role of the courts
It was noted above that the courts have an important role to play as a check on the executive. An important recent example is the decision by the UK Supreme Court in the case of Elgizouli versus the Home Secretary, which was handed down in March this year.
This decision by the Supreme Court essentially bars the UK from providing mutual legal assistance to states and in the context of criminal investigations, that could result in the imposition of the death penalty.
This decision clearly affects international cooperation in criminal matters between the UK and countries like the United States, which still impose the death penalty for certain categories of crimes.
But, the Supreme Court decision cannot reasonably be read as to impose a blanket prohibition on the UK government’s ability to cooperate with countries such as the US. The decision has a rather narrow focus on mutual legal assistance in the context of criminal investigations that could result in, or bolster, the imposition of the death penalty upon conviction.
This decision by the UK Supreme Court has gained some significance for the mutual legal assistance standoff between the US authorities and Prince Andrew’s lawyers, with some commentators now speculating that the UK is using the cover of the Supreme Court decision in the Elgizouli case to frustrate mutual legal assistance requests from the US in general and, by implication, as a way to protect Prince Andrew.[3]
Politicising a legal issue
Governments are normally reluctant to comment on the content of mutual legal assistance requests (or even on the existence of such requests in the first place). It serves no purpose to speculate about these matters.
What we don’t have to speculate about is the fact that Prince Andrew’s cooperation is sought in the ongoing investigation into the crimes allegedly committed by Epstein and some of his associates. The fact of that mutual legal assistance request is in the public domain. It is not apparent that the coercive powers of the UK government or UK law enforcement are at present or are imminently going to be enlisted to put pressure on Prince Andrew to assist the US authorities in their investigation.
The prince’s legal counsel insist that there is still a willingness on their side to provide voluntary cooperation. The US authorities seemingly hold a different view.[4]
If it would ultimately come to the point where the US formally, and within the framework of the mutual legal assistance treaty, requests the UK to provide its authorities with evidence obtained from Prince Andrew, the matter will inevitably morph into a difficult political issue, not only because of the inherent nature of international cooperation in criminal matters, but because of the profile of the individual involved.
Unless there are clear human rights concerns as articulated in the Elgizouli case that was decided by the UK Supreme Court, it is hard to imagine any formal, legal objections the UK could raise in terms of its treaty obligations.
However, as we know, international cooperation in criminal matters is not only a legal matter, it is also a foreign policy (political) matter, so all bets are off.
[1] Prince Andrew in war of words with US prosecutors over Epstein, Guardian, 8 June 2020
[2] Britain briefly suspends sending evidence to U.S. law enforcement, in move some see as a sign of fraying relationship, Washington Post, 10 June 2020
[3] Ibid
[4] Prince Andrew in war of words with US prosecutors over Epstein, Guardian, 8 June 2020
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