Exemption from the prima facie
case requirement
76. Clause 83 relates to the prima facie case requirement,
which is essentially the rule that a state requesting an extradition
must establish that the suspect has a prima facie case to answer.
Clause 83(1) states that a judge must decide, in relation to an
extradition request, whether there is evidence which would be
sufficient to make a case requiring an answer by the person if
the proceedings were the summary trial of an information against
him or her.
77. Clause 83(6) effectively allows the Government
to exempt a category 2 territory from the prima facie case requirement.
It provides that a judge must not make a decision under
Clause 83(1) where the category 2 territory to which extradition
is requested has been designated for the purposes of Clause 83(6)
by Order in Council. Clause 205 provides that any such Order in
Council will be subject to a negative resolution procedure, whereby
it may be annulled in pursuance of a resolution of either House
of Parliament.
78. Currently, extradition requests between Council
of Europe member states are not subject to the prima facie case
requirement.[32] That
is because the European Convention on Extradition, which currently
governs all extradition within Europe, does not allow for the
prima facie requirement to be imposed.[33]
The Convention imposes an obligation on each member state to surrender
a suspect to any other requesting member state, subject to certain
requirements. The Convention specifies that an extradition request
must be accompanied by the following documents:
- the applicable warrant of arrest or conviction
and sentence or detention order
- a description of the person in respect of whom
extradition is sought, together with any other information which
will help to establish his or her identity
- a description of the extradition offence, including
the time and place of commission, a legal description of the offence
and a reference to the relevant legal provisions
- a copy of the relevant enactments or, where this
is not possible, a statement of the relevant law.[34]
79. We asked the Home Office to explain in what circumstances
the Government envisages it might use Clause 83(6) to designate
certain category 2 territories as exempt from the requirement
to demonstrate a prima facie case. The Home Office responded that
it intends to designate all Council of Europe member states that
are not EU member states as category 2 territories. Extradition
arrangements with these countries will continue to be governed
by the European Convention on Extradition; the Government therefore
needs the ability to exempt these countries from the prima facie
case requirement.
80. The Home Office also told us that they believe
there is a case for removing the prima facie evidential requirement
from certain Commonwealth countries and bilateral treaty partners.
We understand from the Home Office that there are no current plans
to negotiate bilateral extradition treaties with any new countries.
81. We are concerned that Clause 83(6) would allow
the Government to exempt states, other than those European states
that are signatories to the European Convention on Extradition
but not EU members, from the prima facie case requirement. We
endorse the argument of Liberty on this point, that the prima
facie case requirement provides a valuable safeguard against oppressive
extradition requests by ensuring there is genuinely a complaint
against the defendant supported by the evidence. We are concerned
that exempting certain countries from the requirement to demonstrate
a prima facie case may place too much power in the hands of the
authority issuing the extradition request in the requesting state.
82. Consequently, we consider that the power delegated
by Clause 83(6) is too broadly defined. As currently drafted,
Clause 83(6) would allow any territory whatsoever to be designated
as exempt from the prima facie case requirement. We recommend
that the power delegated should be specifically limited to a power
to make Orders in Council to exempt from the prima facie case
requirement only:
- those European states that are signatories
to the European Convention on Extradition but that are not EU
members
- any other state with which the UK has a bilateral
agreement which requires that state, in making an extradition
request, to meet evidential requirements equivalent to those set
out in the Convention.
Relaxing evidential requirements
for establishing a prima facie case
83. The Bill would make several modifications to
the existing evidential requirements applicable to the prima facie
case requirement. The explanatory notes to the Bill state that
it is intended to simplify the rules governing the authentication
of foreign documents.
84. Clause 83(2) provides that, in deciding whether
there is a case to answer under Clause 83(1) (see paragraph 76
above), the judge must treat a statement made by a person in a
document as admissible evidence if:
- the statement is made to an appropriate police
officer, and
- if the person were to give direct oral evidence,
it would be admissible.
85. However, Clause 83(3) has the effect of weakening
the evidential requirements set out here. It provides that a summary
in a document of a statement made by a person must be treated
as a statement made by the person in the document for the purposes
of Clause 83(2). JUSTICE and Liberty argued that Clause 83(3)
tends to erode the high standard of evidence that should be required
from a category 2 territory issuing an extradition request, in
seeking to establish the existence of a prima facie case. In particular,
they are concerned that the clause effectively removes, or at
least dilutes, the prima facie case requirement. Liberty described
the clause as effectively allowing "something to come before
the court which is not effectively evidence at all" and which
might have "no authenticity whatsoever".[35]
Currently, most witness statements are statements made to judges,
or to equivalent judicial authorities. Clause 83(3) would appear
to allow a summary in a document of a witness's statement
to be treated as if it were actually a sworn statement
by that person, for the purposes of determining whether it is
admissible evidence under Clause 83(2).
86. We consider it vital that an appropriately rigorous
standard of evidence continues to be required from countries seeking
to establish the existence of a prima facie case. The prima facie
case requirement provides a valuable safeguard against oppressive
extradition requests by ensuring there is genuinely a complaint
against the defendant supported by the evidence. We agreed with
the concerns about Clause 83(3) expressed by JUSTICE and Liberty.
We recommend that Clause 83(3) be deleted from the Bill, so
that a summary of a statement will not be admissible evidence
for the purposes of Clause 83(2).
87. Clause 134(2) provides that a document is "duly
authenticated" if it purports to be either signed by a judge,
magistrate or other judicial authority or authenticated by the
oath or affirmation of a witness, Clause 134(3) goes on to provide
that a document that is not duly authenticated can still be received
in evidence in proceedings under Part 2. We are concerned that
Clause 134(3) appears to undermine the rigorous evidential standards
that we consider should be required to establish the existence
of a prima facie case. We draw Clause 134 to the attention of
the House.
32 Council of Europe member states are Albania, Andorra,
Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina,
Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Georgia, Greece, Hungary, Iceland, Ireland, Italy,
Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova,
the Netherlands, Norway, Poland, Portugal, Romania, Russian Federation,
San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, the
"former Yugoslav Republic of Macedonia", Turkey, Ukraine
and the United Kingdom. The fact that extradition requests between
Council of Europe member states are not subject to the prima facie
case requirement explains why Part 1 of the Bill has no provision
addressing the prima facie case requirement. Back
33
The European Convention on Extradition Order 1990 (SI, 1990, No
1507) reiterated that, in relation to certain countries, it was
no longer necessary for a prima facie case to be made out. Back
34
Article 12 of the European Convention on Extradition. Back
35
Q 94, Q 97. Back
