I’m going to be following a pretty interesting extradition case here in Boston, involving Alexander Hilton, who has been charged with attempted murder in Scotland. The case is interesting to me for a couple of reasons. First, US/UK judicial assistance in criminal cases was a central issue in the Belfast Project case, and so I am interested in looking at another example of how cooperation between the two countries works in practice. Second, in late 2011 I wrote about United States v. Kashamu, 656 F.3d 679 (7th Cir. 2011), a case involving a contested US request for extradition from England, and so I thought it would be interesting to look at a contested Scottish request for extradition from the US.

Hilton, then a student at St. Andrews University, was accused by the Scottish authorities of the attempted murder of Robert Forbes, a fellow student, in March 2011. The claim was that Hilton induced Forbes “to consume a quantity of methanol mixed with red wine.” After the Scottish authorities made a request for extradition, Hilton was arrested on a complaint brought by the US Attorney under 18 U.S.C. § 3184.

Hilton conceded that there was a valid extradition treaty, that the crime charged was covered by the treaty, and that the government had shown probable cause to believe that he had committed the offense charge. However, he resisted extradition. He pointed to his mental health problems, which the magistrate judge could not justify relief. He also claimed that extradition would violate his constitutional rights because under Scots law, Hilton would be tried by a jury of 15, and he could be convicted by a majority vote of the jury.

The magistrate judge rejected this argument and issued a certificate of extraditability. At first glance, her decision seems clearly correct, since as Hilton himself acknowledged, the Supreme Court had previously upheld the constitutionality of non-unanimous verdicts in criminal cases, and in any case it would be very surprising if the United States could extradite defendants only to foreign countries that follow US practice with regard to juries, since many countries do not use juries.

Hilton has now filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 against the Secretary of State, the Attorney General, and the US Marshal for the District of Massachusetts. In the petition, he makes the same arguments his mental health and about Scots jury procedure that he made to the magistrate judge, and also arguing that the Senate’s consent to the US/UK extradition treaty was not fully informed. If the Senate had been fully informed, Hilton asserts, it would not have consented to the treaty without an appropriate reservation.

These arguments seem to me unlikely to succeed. The most interesting part of the petition, to me, is the discussion of reciprocity. Hilton pointed to cases in which the UK courts have denied US requests for extradition on the grounds of the defendant’s mental health. In United States v. Tollman, [2008] EWHC 184 (Admin), for example, the High Court affirmed a decision refusing to extradite a defendant who was suffering from “pseudo dementia” on the basis of her mental condition. And in Aswat v. United Kingdom, an April 2013 decision of the European Court of Human Rights, the court held that a mentally ill defendant’s extradition was impermissible because the defendant was at risk of being imprisoned at the “supermax” prison in Florence, Colorado (though I question the relevance of Aswat insofar as there is no indication that the conditions of imprisonment in Scotland would amount to torture or inhuman or degrading treatment, and though I question the overall rationale of Aswat given that the claim was simply that there was no guarantee that the defendant would not be assigned to the “supermax” prison). Last, Hilton pointed to the Home Secretary’s decision not to extradite Gary McKinnon, who suffered from Asperger’s syndrome and depression, where she found that extradition would create such a high risk of suicide that it would constitute a violation of the defendant’s human rights. So the suggestion is that what is sauce for the goose is sauce for the gander. If I had to guess, I would say the most likely outcome is for the court to agree that considerations of mental health can be considered in making extradition decisions, but that they are for the executive rather than for the judiciary—as was the case in the McKinnon case.