The Human Rights Implications of UK Extradition Policy

The Human Rights Implications of UK Extradition Policy - Human Rights Joint Committee Contents

1 Introduction

1. Extradition is the process where one state seeks the return of a person from another state to face trial or serve a sentence. This process, which is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions,aims to further international co-operation in criminal justice matters and strengthen domestic law enforcement. The law of extradition is based on the assumption that the requesting state is acting in good faith and that a person will receive a fair trial there.

2. The European Arrest Warrant has replaced the previous formal process of extradition between Member States of the European Union (EU). Extradition arrangements with non-EU territories are generally governed by bilateral treaties. The bilateral treaties and the Framework Decision on the European Arrest Warrant are given domestic effect by the Extradition Act 2003. Figures provided by the Home Office show that in 2009-10 the UK surrendered 699 persons to other EU Member States under the EAW procedure and in 2010, 24 persons were extradited to non-EU countries under Part 2 of the Act.[1]

Balancing extradition and rights

3. We fully support the process of extradition and recognise the importance of the process for returning those alleged to have committed a crime to another jurisdiction, including to the UK, in order that they stand trial. This is particularly the case for serious crimes, such as terrorism. As the former Home Office Minister Baroness Neville-Jones noted "the chances of getting someone back are greatly increased by the existence of the system, for all its imperfections [...] the interests of justice are certainly served by both extraditing and facilitating the process under the rules."[2] We agree with this sentiment.

4. It is important, however, to balance the need to return alleged offenders to the country in which the crime took place with the need to respect the rights of those requested for extradition. In our Report we highlight a number of areas where we believe the protection of rights for these persons is significantly below the standard which a UK citizen should expect. This is in part due to the introduction of a streamlined extradition process in the Extradition Act 2003, including the European Arrest Warrant, and the varying human rights protections within the European Union. It is essential that the benefits of the EAW system, particularly with regard to serious crimes, are not offset by reducing the protection of human rights to a level lower than that which existed prior to the introduction of the EAW. We make a number of recommendations in this Report for strengthening the safeguards in the extradition process to ensure that the protection of rights of persons in that process is raised to a reasonable standard. Without these safeguards those subject to extradition are at risk of a serious deprivation of their human rights. It is crucial to ensure a streamlined process of extradition does not reduce human rights protection to an unacceptable level.

5. It is also important that the rights are protected of UK citizens who are the victims of crime where the alleged offender has absconded abroad; in such cases extradition is the only method by which they can be returned to the United Kingdom to stand trial and we recognise this in our Report.

Our inquiry

6. UK extradition proceedings have recently come under scrutiny from parliamentarians, the press and the public, prompting questions about the effective operation of the Extradition Act 2003 and the fairness of extradition arrangements. A number of high-profile cases, including those of Gary McKinnon and Julian Assange, have further intensified this scrutiny.

7. In September 2010, the Government announced it would set up a panel, chaired by Sir Scott Baker, to review the UK's extradition arrangements. This review covers five main areas:

The breadth of the Secretary of State's discretion in an extradition case;
The operation of the European Arrest Warrant, including the way in which those of its safeguards which are optional have been transposed into UK law;
Whether the forum bar to extradition should be commenced[3];
Whether the US-UK extradition treaty is unbalanced;
Whether requesting states should be required to provide prima facie[4] evidence.

In this Report we refer to this panel as the Extradition Review Panel.

8. In December 2010, we launched our inquiry into the human rights implications of UK extradition policy. This Report considers the findings of that inquiry. We consider the human rights implications of extradition for those subject to extradition proceedings and for the victims of crime.

9. Our Report ran in parallel to the Extradition Review Panel, but has no formal connection to it. We intend that our Report will feed into the Extradition Review process and we expect to follow up our inquiry once the Review Panel publishes its recommendations.

10. We are grateful to those who submitted oral and written evidence to the inquiry. We received oral evidence in February and March 2011 from UK based Non-Governmental Organisations with an interest in extradition, individuals with personal experience of the extradition process, representatives from the Police, the Director of Public Prosecutions and a practicing extradition lawyer. We also thank Professor Susan Nash, Specialist Adviser to the Committee for the inquiry.

11. We also received evidence from Baroness Neville-Jones, at that time the Minister of State at the Home Office. We thank the former Minister for her contribution. We note that the ongoing Extradition Review meant that she could not comment on some of the issues covered during the course of our inquiry.

12. The European Commission has recently published a report considering the effectiveness of the European Arrest Warrant, Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.[5] We consider this report where appropriate.

Extradition Act 2003

13. The Extradition Act 2003 provides a framework for extradition proceedings in the UK. It aims to improve the fight against cross-border crime and bring to justice offenders who flee to other counties. The Act came into effect on 1 January 2004 and transposes the Framework Decision on the European Arrest Warrant into domestic legislation and retains, with some modifications, arrangements for extradition to non-EU territories.

14. The Act draws a distinction between category 1 territories which are EU Member States, and category 2 territories, which are all other territories with which the UK has extradition arrangements. Category 1 states are dealt with by Part 1 of the Act. Category 2 territories, including the United States, are dealt with by Part 2. Part 3 deals with the procedure for applying for a European Arrest Warrant from a Category 1 state and Part 4 sets out the powers available to the police in extradition cases. The flow charts provided by the Crown Prosecution Service show in detail the process of extradition (see Appendix 1).

Safeguards

15. Modern extradition treaties seek to balance the rights of the individual with the need to ensure the extradition process operates effectively. These are based on principles which are designed not only to protect the integrity of the process itself, but also to guarantee a degree of procedural fairness.These principles include:

the requirement that the requested person has committed an extraditable offence, which is linked to the principle of double criminality;
the rule of specialty;[6]
the political offence exception;
the restriction on return for military and religious offences;
the prohibition on return in death row cases; and
the principle of double jeopardy.[7]

The European Arrest Warrant

16. The European Arrest Warrant (EAW) came into force on 1 January 2004. The EAW is based on the principle of mutual recognition of judicial decisions and an assumption of mutual trust in the criminal justice systems of other EU states. An arrest warrant issued in a Member State is valid in another Member State. Accordingly, the court and the central authority have limited discretion to refuse execution of a valid warrant. This initiative was designed to simplify judicial surrender procedures for the purposes of conducting a criminal prosecution or executing a sentence of imprisonment. Under this scheme, Member States can no longer automatically refuse surrender of their own nationals.

Box 1: Extradition to EU countries

The process of extradition from the UK to other territories takes place in three stages: the arrest of the requested person, an extradition hearing before a District Judge and an appeal by either party to the High Court, and in appropriate circumstances, to the Supreme Court. The process is as follows (section numbers in brackets refer to the relevant section of the Extradition Act 2003):[8]

When an EAW is received by the United Kingdom, the Serious Organised Crime Agency (SOCA) certifies the warrant.
Following the certification, the person is arrested and is brought before a judge to determine whether the person is that who is specified in the EAW; the judge may detain or bail the person. A date is set for an extradition hearing within 21 days unless the person consents to be extradited.
At this hearing, the judge considers whether the offence is an extradition offence (s 10), any potential bars to extradition (s 11), whether the person was convicted in their absence (s 20) and human rights considerations (s 21).
Once the decision is made, the requested person and the requesting judicial authority can appeal to the High Court and apply for leave to appeal to the Supreme Court against a decision of the High Court.
If the decision is made to extradite the requested person, surrender of the person must take place within 10 days of the decision being made final.

17. The EAW is sent between judicial authorities, without involvement of an intermediary, removing the executive from the process. The EAW process reduces and removes many of the traditional bars to extradition. Refusal to execute a valid warrant is only permitted in limited circumstances including:

Double jeopardy (s 12 of the Act);
Extraneous considerations (s 13);
The passage of time (s14);
The person's age (s15);
Hostage-taking considerations (s16);
Specialty (s17);
Earlier extradition to the UK from another category 1 territory (s18) or a non-category 1 territory (s 19).

18. An EAW may be issued for an offence punishable by the law of the issuing state by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed, for sentences of at least four months. The EAW includes a list of 32 serious offences which, if punishable by a custodial sentence of at least three years, can result in extradition "without verification of the double criminality of the act". Thus, if a judge in the requesting state certifies that the offence is included in the European Framework list of 32 offences, the authorities in the requested state are not permitted to consider whether the alleged conduct amounts to an offence in their national law.

19. The EAW only applies within the EU; re-extradition to a third state requires agreement with the Member State which authorised the initial surrender.

Bilateral treaties

20. Part 2 of the Act deals with non-EU territories with which the UK has a bilateral extradition arrangement.

Box 2: Extradition to non-EU countries

The extradition process to a non-EU country with which the UK has a bilateral extradition treaty is as follows:[9]

Extradition request received by Judicial Co-operation Unit at the Home Office.
A district judge at the City of Westminster Magistrates Court may issue an arrest warrant, after which the requested person is arrested if criteria of Extradition Act 2003 are satisfied (s 71) (those criteria are: is the act an extradition offence and is required evidence or information provided?).
At the extradition hearing the judge considers the identity of the person, whether or not it is an extradition offence (s 7), the bars to extradition (s 79), evidence requirements (s 84) and human rights considerations (s 87).
If the judge rules the criteria are met, the case is sent to the Secretary of State.
The Secretary of State considers whether the death penalty (s 94), speciality (s 95) or earlier extradition (s 96) prohibit extradition.
The requested person and requesting country can appeal against the decision of the judge and the Secretary of State to the High Court. Both parties can also apply for leave to apply to the Supreme Court.

21. Several safeguards apply to extradition proceedings with non-EU territories under Part 2 of the Act which do not apply under Part 1. This includes the consideration of whether a prima facie case[10] exists and the double criminality requirement.[11]

22. The UK-US extradition treaty was signed on 31 March 2003 and came into force in April 2007. The UK's arrangements for extradition to the US set out in the Treaty came into force in advance of this date as they were included within the Extradition Act 2003. The UK-US Treaty removes the requirement on the US to provide prima facie evidence when requesting extradition from the UK. The UK is required to satisfy a probable cause requirement when requesting the extradition of US nationals. The probable cause requirement is the standard required by the Constitution in the United States to obtain a warrant for arrest or to search and/or seize (see paragraph 187).

Previous consideration of the Extradition Act 2003 by the Committee

23. Our predecessor Committee considered the draft Extradition Bill in the 2001-02 Session.[12] The Committee considered whether the Bill in its draft form would provide adequate protection of human rights of a person subject to extradition. The Committee concluded that the requirement for a judge to consider the impact of extradition on a suspect's Convention rights would "provide adequate protection for Convention rights." In this report we reassess this conclusion through post-legislative scrutiny of the effectiveness of the Act from a human rights perspective. The Committee also raised human rights concerns in relation to the following aspects of the draft Bill:

The lack of clarity on the face of the draft Bill in relation to the provisions of the Extradition Act 1989.
The lack of express provision for mental or physical capacity to be a bar to extradition.
The potential for removing the rule under which a person may not be extradited to face trial for a political offence.
The weaknesses in the draft Bill in relation to assurances provided by the requesting country in relation to respect for rights.

The Government responded to this Report, which the Committee published in its Report on the Extradition Bill.[13] In this Report, the Committee concluded that it was satisfied the Government had addressed the first and second points of concern noted above. The Committee drew the attention of each House to its view that there should be an express provision written into the Bill in relation to assurances provided by requesting countries on respect of the rights of the suspect. The Committee did not feel that any of the changes in the Bill from the provisions in the draft Bill raised any significant human rights concerns.

Previous scrutiny of the extradition process

24. A number of other Committees of both Houses have previously considered the extradition process. During the negotiation of the European Arrest Warrant, both the House of Lords Select Committee on the European Union and the House of Commons European Scrutiny Committee considered the proposal in detail. In a letter to the Minister, Mr Bob Ainsworth MP, the Chairman of the Select Committee on the European Union noted that the European Arrest Warrant "will be a major step forward in the [...] fight against crime and the establishment of an area of freedom, security and justice" but went on to note "a number of difficulties and problems" with the text, including in relation to the protection of rights.[14] The European Scrutiny Committee raised concerns including "the absence of any explicit reference to the European Convention on Human Rights [...] the abandonment of dual criminality and the lack of definition of the offences for which this safeguard is being abandoned."[15] The Committees reported on the EAW before it was agreed in its final form in the European Union and before it was transposed into UK law in the Extradition Act 2003.

25. A number of Committees have considered the extradition process after the coming into force of the Extradition Act 2003. The House of Lords European Union Committee considered the EAW again in 2006.[16] The House of Commons Justice Committee considered the EAW as part of their inquiry Justice issues in Europe.[17] The Home Affairs Committee has also considered extradition policy in the United Kingdom in this session.[18]

Renegotiation of the Framework Decision on the European Arrest Warrant

26. We note that as an EU-wide initiative, implementing changes to the Framework Decision governing the EAW is more complex than amending UK legislation. Depending on the nature of the change, implementing certain recommendations would require renegotiation of the Framework Decision at EU level. In terms of possible renegotiation, the Minister told us that:

"if the level of dissatisfaction with this piece of legislation is very great indeed, it would be right to try to do something about it. I do not take the view that in no circumstances would we be willing to reopen. It would be difficult and one also has to bear in mind the fact that you might get outcomes that were unwanted as well as ones that we wanted."[19]

27. In this Report we make recommendations that would require renegotiation of the Framework Decision. We welcome the Government's stance on possible renegotiation of the Framework Decision of the European Arrest Warrant if necessary.

1 See EXT 032 for a full breakdown of extradition figures. Back

2 Q 216 Back

3 The forum bar would allow a judge to consider the most appropriate location for the trial in an extradition offence if the alleged offence took place largely or wholly in the United Kingdom. Back

4 A prima facie case refers to evidence which, if not rebutted, would be sufficient to found a conviction. In the context of extradition, a requirement for a prima facie case would mean that a court could refuse extradition if it was not satisfied that a requesting country had shown that the requested person had a case to answer. Back

5 COM (2011) 175 available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0175:FIN:EN:PDF Back

6 The speciality rule prevents a person for being tried for an offence other than that for which they were extradited. Back

7 That a person should not be tried twice for the same offence. Back

8 See EXT 17A for a flowchart depicting the process of extradition provided by the Crown Prosecution Service Back

9 See EXT 17A for a flowchart depicting the process of extradition provided by the Crown Prosecution Service Back

10 A prima facie case refers to evidence which, if not rebutted, would be sufficient to found a conviction. In the context of extradition, a requirement for a prima facie case would mean that a court could refuse extradition if it was not satisfied that a requesting country had shown that the requested person had a case to answer. Back

11 The double criminality requirement is that the alleged offence is a crime in both the requesting and requested country Back

12 Joint Committee on Human Rights, 20^th Report (2001-02): Draft Extradition Bill (HC Paper 1140, HL Paper 158) Back