Non-extradition of French nationals: why Ghislaine Maxwell was refused bail in high-profile criminal case in New York

As widely reported, Ghislaine Maxwell, daughter of media tycoon, the late Robert Maxwell, was denied bail in a high-profile case criminal case brought in the Southern District of New York following her arrest and charge for facilitating and participating in acts of sexual abuse of minors by her long-time friend Jeffery Epstein. Her trial is unlikely to take place much before July 2021, given the backlog of 2020 cases caused by the COVID-19 pandemic.

Bail hearing

At a video link hearing in New York on 14 July 2020, Maxwell pleaded not guilty to the charges. Prosecutors successfully persuaded the court that she was a flight risk and should be incarcerated pending trial.

In their objections to bail, prosecutors cited Maxwell’s significant means, her attempts to evade arrest and her French citizenship. The final point is significant, as France does not extradite its own citizens. Prosecutors argued that if Maxwell absconded to France whilst on bail she would be out of reach of the US authorities and able to evade US justice.

French citizenship and “non-extradition” states

France is not alone in declining to extradite its own citizens. Other so-called “non-extradition” states include Austria, Brazil, China, Germany, Russia and Switzerland. The term is somewhat misleading because such states do have extradition arrangements for other nationals.

One reason for this approach is that the French authorities (like other civil law jurisdictions) have a wide legal authority to prosecute crimes committed by or against their citizens overseas. A notorious example of “non-extradition” is France’s refusal to extradite Roman Polanski to the US for child sex offences committed in the 1970s, a case that may not have been far from the New York court’s mind when it denied Maxwell bail.

The refusal to extradite one’s own citizens contrasts with common law jurisdictions, like the UK, which does extradite its citizens but (with some exceptions) does not have legal authority to prosecute crimes committed by or against its citizens overseas. The system can result in unfairness where citizens of common law jurisdictions are extradited and prosecuted whereas potential co-defendants evade justice. The ability to prosecute in the home jurisdiction does not always translate into action.

The Maxwell case is an example of the double edged nature of the protection afforded to citizens of “non-extradition” states. Whilst it prevents extradition from within their own country, it may make it more difficult to secure bail in proceedings in other jurisdictions.