15.
The second, and possibly more serious issue raised by the Oen Yin-Chey case, was that it appeared to open up the possibility of a serious "constitutional challenge to the supplementary treaty. The argument was that the distinction in the supplementary treaty between the process of court review which was available in cases alleging offences of violence and the lack of such a review in other lesser cases was unconstitutional. This claim had not been tested in this particular case, which had been decided on other grounds, and there was a strong likelihood that this line of attack might recur and be successful in a future case. The implications if such an argument were successfully to be put forward were not entirely clear, but it appeared at least possible that the result might well be to invalidate the supplementary treaty altogether. The UK side took note of the position.
McMullen
16. Mr Surena introduced Mr McFall from the US Attorney's Office in New York, who had come to attend the meeting to offer an assessment of the latest position in the McMullen case. Having reviewed the history of the case, Mr McFall indicated that McMullen's latest move to terminate the extradition process on the basis that the supplementary treaty was unconstitutional was still sub judice and was unlikely to be resolved for at least a year. However, McMullen's argument that he had been induced into making the damaging statements which formed the basis of the case against him had been found in July this year to be without foundation. There was nevertheless a risk that this argument might be revived at a later stage in the case. The current position was that McMullen had applied for bail and if he was able to produce evidence showing that he had extraordinary community ties there was a possibility that this application might be successful although even after the passage of some four months McMullen had not as yet produced any such evidence of such ties. A recent cause for concern in the case was the emergency of an ATF agent who had indicated that he was prepared to stand surety for McMullen and to testify on his behalf to the effect that evidence he had given previously was false. In Mr McFall's view, it seemed likely that once decision on the constitutionality point had been obtained and any further "due process" arguments resolved, McMullen and his advisors would seek to attack the judicial system in the UK and argue that he would not obtain a fair trial if he were extradited.
17. In a brief discussion, Mr McFall confirmed that the issue of discovery of documents which had featured considerably in the case up to now no longer appeared to be an issue. However, there was a possibility that this might revive, since McMullen was in the process of challenging the constitutionality of the statement which was taken from him in 1979. There was a strong prospect that there would eventually be a very broad discovery request relating to McMullen's likely eventual treatment in the UK and for information on the nature of the evidence linking McMullen with the offences he was alleged to have committed. As regards the question of