Friday, December 20, 2019

Extradition in the Harry Dunn Case "would establish an extraordinarily troubling precedent.”

Where the legal immunity of USG personnel will be reduced

The UK Crown Prosecution Service announced today that it approved the filing of criminal charges against the American driver in the Harry Dunn case, and that it will make a request for her extradition.

The other piece of news to come out today is that the Commonwealth and Foreign Office has completed its review of the bilateral agreement pertaining to U.S. personnel at RAF Croughton and found that American staff members at the base at some point in time had “pre-waived” their immunity against criminal prosecution in the UK, but that this was not done for their family members. Accordingly, the family members have more immunity than the employees do. The only certain legal consequence to come out of the accident that killed Harry Dunn is that the immunities of Croughton personnel will be limited or ended.

From the WaPo this afternoon, American diplomat’s wife is being charged with causing the death of British teen Harry Dunn:
Anne Sacoolas, the wife of an American diplomat, is being formally charged with “causing death by dangerous driving” in the case of a crash on British soil that killed teenager Harry Dunn in August.

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“Following the death of Harry Dunn in Northamptonshire, the Crown Prosecution Service has today authorised Northamptonshire Police to charge Anne Sacoolas with causing death by dangerous driving,” Chief Crown Prosecutor Janine Smith said in a statement.

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In Britain, causing death by dangerous driving carries a maximum penalty of 14 years in prison and a disqualification from driving for at least two years.

“We express our deepest sympathies and offer condolences to the Dunn family for their loss,” a U.S. Department of State spokesperson said Friday. “We will continue to look for options for moving forward. We are disappointed by today’s announcement and fear that it will not bring a resolution closer. … We do not believe that the UK’s charging decision is a helpful development.”

The UK Guardian had this statement from the lawyer of the American driver, Anne Sacoolas refuses to return to face Harry Dunn charges:
A statement from the lawyer for Anne Sacoolas came after the Crown Prosecution Service announced it was bringing charges over Dunn’s death in August. Amy Jeffress said the potential 14-year sentence was “not proportionate” for what was “a terrible but unintentional accident”.

The statement said: “Anne is devastated by this tragic accident and continues to extend her deepest condolences to the family. Anne would do whatever she could to bring Harry back. She is a mother herself and cannot imagine the pain of the loss of a child. She has cooperated fully with the investigation and accepted responsibility … This was an accident, and a criminal prosecution with a potential penalty of 14 years’ imprisonment is simply not a proportionate response.”

Jeffress said they had been talking to the UK authorities about how Sacoolas could “assist with preventing accidents like this from happening in the future, as well as her desire to honour Harry’s memory … But Anne will not return voluntarily to the United Kingdom to face a potential jail sentence for what was a terrible but unintentional accident.”

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The CPS said it had started extradition proceedings.

It said: “The Home Office is responsible for considering our request and deciding whether to formally issue this through US diplomatic channels. Our specialist extradition team will be working closely with the UK Central Authority at the Home Office to do this.”

Dunn’s father Tim added: “We set out so long ago and we believed and we believed and we believed, and we’ve done it, we’ve done it, we’ve got the charge. This is it, it’s amazing, it’s absolutely amazing. Justice. Whatever happens now it doesn’t matter, we’ve got what we wanted.”

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The Foreign Office is to remove an anomaly that helped Sacoolas leave the UK, claiming diplomatic immunity after her car crashed into Harry on 27 August, killing him and prompting a long diplomatic tug of war between the US and the UK.

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Under arrangements agreed in 1964, US staff members at the base “pre-waived” their immunity against criminal prosecution in the UK, but this was not done for their families. The Foreign Office has rejected freedom of information requests on the terms of the 1964 agreement saying it is not in the national interest.

One option being explored is to extend this automatic waiver to family members so their degree of protection is the same as for staff.

So then, the action in the Harry Dunn case now moves on to the matter of whether the Amertican driver can be extradited to the UK. And that's where we need the counsel of a specialist in international extradition and national security law. Someone like this (who, by the way, is the lawyer representing Anne Sacoolas).

In that legal specialist's primer on extradition law and practice in the United States we learn that the final stage of an extradition request is a "certification by court and decision by the Secretary of State."
If the court ‘deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention’, it will issue a certification of extraditability (18 USC Section 3184). The Secretary of State has final discretionary authority over whether to extradite a person found extraditable by the court (18 USC Section 3186; United States v. Kin-Hong, 110 F.3d 103, 109, 110 (1st Cir 1997)).

That's the same Secretary of State who has already refused a request for waiver of the driver's diplomatic immunity. What are the odds he will now agree to her extradition?

Today's statement by a State Department spokesman on the decision to charge the American driver ended with this: “The use of an extradition treaty to attempt to return the spouse of a former diplomat by force would establish an extraordinarily troubling precedent.” That makes the American position perfectly clear.

The driver will not return to the UK voluntarily, and the USG will certainly not agree to her extradition. That means it's all over except for the posturing. The UK police, Foreign Office, and Prime Minister will presumably do all within their power to advocate for the driver's return, but that will have no effect.

As for the family of Harry Dunn, will the criminal charges alone be the catharsis that allows them to grieve and move on with their lives? I'd like to believe the father's statement that "we’ve done it, we’ve done it, we’ve got the charge. This is it, it’s amazing, it’s absolutely amazing. Justice. Whatever happens now it doesn’t matter, we’ve got what we wanted.” I'd like to believe it, but I can't, not after they've spent months of emotional investment, abetted by the tabloids, in the hope of a trial and punishment.

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