The Human Rights Implications of UK Extradition Policy

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

3 Improving the protection of Human Rights in the Extradition Act 2003

86. This chapter examines the suggestions for further human rights safeguards that could apply to extradition proceedings generally.

Most appropriate forum provision

87. Many witnesses argued that the Extradition Act 2003 should be amended to include a forum safeguard. This would require the judge to consider whether it is in the interests of justice for the requested person to be tried in the requesting country and to refuse the extradition request if it is not. This would not apply to extradition requests where the offence had taken place wholly in the requesting country.

PREVIOUS ATTEMPTS TO INTRODUCE A FORUM BAR

88. It was noted by Fair Trials International and Liberty[81] that Article 4(7)(a) of the Framework Decision provides that extradition can be refused where the alleged offence is regarded as having been committed "in whole or in part in the territory of the executing Member State." This, in effect, constitutes a forum bar to extradition.

89. Not all of the optional bars to extradition in Article 4 were transposed into the Extradition Act 2003. The forum bar to extradition was not transposed and neither did the Act include a forum bar for extradition to Category 2 countries. During the passage of the Police and Justice Bill 2006, the House of Lords agreed an amendment to the Extradition Act 2003 to allow a court to bar extradition to both Category 1 and Category 2 countries if it was felt that this was not in the interests of justice:

"19B Forum

"19B(1)A person's extradition to a category 1 territory ("the requesting territory") is barred by reason of forum if (and only if) it appears that—

(a)a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and

(b)in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.

(2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.

(3)This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence."

90. These amendments were incorporated in the legislation alongside an additional clause that required a resolution of both Houses of Parliament to bring the amendments into force. This has never happened. During the House of Commons debate on the Bill, the then Home Secretary John Reid explained the inclusion of the additional clause as follows:

"We have tabled the amendments in their proposed form simply to ensure that the Bill does not fall. As a technical measure to comply with the conventions of both Houses, we have inserted a so-called sunrise provision, which ensures that the amendments never see the light of day. Under the amendments, both Houses would need to pass a resolution before the amendments could come into force. The Government are not, of course, obliged to bring forward such a resolution, and have no intention of doing so."[82]

91. He argued that if the forum amendment were to come into force, it would require the renegotiation of the UK-US Extradition Treaty and other extradition treaties:

"[...] forum does not appear in the treaty at all. If we therefore impose a forum requirement on the treaty, that will be outside the existing treaty. That is not to say that it will never be acceptable to the United States or anyone else, but, in strict legal terms, it would require a renegotiation of the treaty. As I said, it would require a renegotiation not just with the United States, but with approximately 20 other countries."[83]

92. Liberty, however, showed us legal advice provided by Edward Fitzgerald QC and Julian Knowles QC which concluded that "there is [...] no basis on which it can be asserted that enactment of the Forum provisions would place in the UK in breach of its international obligations."[84]

EVIDENCE ON FORUM SAFEGUARD

93. It has been suggested that the Government should enact the forum provisions contained in the Police and Justice Act 2006. It was argued that it would improve the protection of the rights of those subject to extradition, as it would enable a judge to consider Article 8 rights and in many cases would allow the requested person easier access to legal representation and evidence.

94. Liberty suggested that the forum amendment would "ensure recognition of the serious impact of extradition on a person and their family and allow cases to be prosecuted in the country where most evidence is available."[85] David Bermingham told us that when extradited to the United States:

"we were 5,000 miles away from everything that we needed to defend our case, the witnesses and the evidence, all of which were in the UK. We had no access to them and no rights of subpoena when we were in America."

He argued that "were you to have a forum clause within the Act that would pretty much do the job, particularly on Article 8."[86]

95. The witnesses referred to in paragraph 84, who asked to remain anonymous, criticised the proposed forum amendment for the impact it would have on the victims of crime. The evidence noted that barring extradition or holding a trial in the United Kingdom "would be an abuse of victims' Human Rights if they and/ or their families [...] had to incur overseas travelling costs to see justice done." The evidence continued that "any proposal to hold trials and allow sentences to be served in UK in export extradition cases is unaffordable, a completely unnecessary burden on the taxpayer and impractical."[87]

96. Jodie Blackstock of JUSTICE argued that the purpose of extradition was to ensure "that criminals do not evade justice. If they can be tried in this country, there is no question of them evading that justice."[88] Charlotte Powell agreed that "I can see why it would be particularly useful for a district judge to be able to exercise his or her discretion on whether the forum conditions should be implemented."[89] The judge would make the decision to apply the bar based on the individual circumstances and so could take the rights of victims into account, as well as the arguments of the requested person.

97. In its submission to the Home Office review, the Law Society agreed that a "forum bar would [...] provide far stronger protection to the person whose extradition is being sought" than defences under the human rights bar on Article 8 grounds. It noted that "Ireland and a number of other European jurisdictions require forum to be considered" and called for the measures in the Police and Criminal Justice Act 2006 to be implemented.[90]

98. We asked the then Minister whether the Government would consider implementing the forum safeguard. She told us that if the Extradition Review Panel recommended a forum safeguard be implemented the Government "would want to look at it positively."[91] She also told us that there may be room to make adjustments to the US-UK Extradition Treaty which were "in the spirit and intention of the Treaty."[92]

99. A forum safeguard provision would allow a judge to refuse extradition where the alleged offence took place wholly or largely in the UK. Parliament has already agreed this principle and the Government should bring forward the relevant provisions of the Police and Criminal Justice Act 2006, in order for Parliament to agree to commence them. It is difficult to understand why this has not yet happened.

100. Government Ministers currently issue an explanatory memorandum to the European Union scrutiny committees of both Houses on each forthcoming EU proposal. However, the legislation transposing these proposals into UK law is not considered by the scrutiny committees. When introducing transposing legislation, the Government should be under an obligation to inform Parliament: how the relevant EU proposal is being transposed into domestic law; whether the transposing legislation would make any additional provisions or omit to transpose any provisions of the EU legislation; any areas where the Government have exercised discretion; and whether any difficulties have arisen during the transposition of the proposal which the Government did not explain to the European scrutiny committees that considered the original proposal.

101. It is important to respect the rights of victims, who will often be residing in the country in which the offence was committed, when deciding the location of a trial. The forum provisions would allow a judge discretion to determine the appropriate location of trial on a case-by-case basis, taking into account the rights of both the requested person and of any victims of crime, as well as any other circumstances, including access to a legal representative and evidence. There should be a general presumption that trials take place in the state where the offence was committed, in the interests of access to that process by the victims of that offence. On this basis, we wholeheartedly support the introduction of a forum safeguard.

102. We note the case-law of the Court of Justice of the European Union (ECJ) on the double jeopardy or non bis in idem principle.[93] In the case Gaetano Mantello[94] the ECJ held that "a requested person is considered to have been finally judged in respect of the same acts within the meaning of Article [4(3)] of the [EAW] Framework Decision where, following criminal proceedings, further prosecution is definitively barred" (para 45) and in Mario Filimeno Miraglia[95] the ECJ required a determination as to the merits of the case before the double jeopardy/non bis in idem principle could apply (para 35). Such a determination can include a decision not to prosecute on the part of the Public Prosecutor.

103. We did not hear evidence on this point, but we are of the view that this case-law strengthens the forum provisions in the Framework Decision and would strengthen a forum provision in the Extradition Act 2003 as it would allow the judge to take into account a decision not to prosecute taken by prosecution authorities which are not judicial in nature (such as the Crown Prosecution Service).[96]

104. We recommend that the case-law on double jeopardy be codified so that extradition under an EAW is barred where the CPS has decided not to prosecute for the same facts. This would strengthen an eventual forum clause. Such amendment could be done by adding a third paragraph to section 12 of the Extradition Act 2003.

105. There appears to be some disagreement over whether the forum safeguard would be permitted under the UK-US Treaty and other bilateral extradition treaties without renegotiation. We did not take detailed evidence on this point and so we come to no conclusion. The Government should look at how such a safeguard could be implemented in practice including, if necessary, through renegotiation of the relevant extradition treaties.

Prima facie case

106. It has been suggested that it be a requirement for a requesting country to present a prima facie case when requesting extradition of a person from the United Kingdom. In the context of extradition, a requirement for a prima facie case would mean that a court could bar extradition if it was not satisfied that a requesting country had shown that the requested person had a case to answer.

107. Those who gave evidence to us were not agreed on whether requiring a prima facie case to be presented in all extradition cases would be a helpful safeguard. Liberty argued that "a prima facie case must be established prior to extradition [...]. Before such a significant engagement of a person's human rights it must be determined whether there is a case to answer." The submission went on to argue that this would provide "an essential safeguard" by ensuring there is a genuine case to answer for all extradition requests.[97] Sophie Farthing of Liberty argued that such a safeguard would ensure "that no one is extradited before it is known that there is a case against them." She noted, however, that "the prima facie case safeguard will not pick up on all cases where there is a potential injustice."[98]

108. Other witnesses did not agree with Liberty that the extra protection offered by requiring a prima facie case to be presented for all extradition requests was enough to justify the difficulty of its implementation. Sally Ireland of JUSTICE argued that "it is important not to attach too much importance to this as a safeguard [...] only in a small number of cases will we say that prima facie would safeguard somebody against wrongful extradition."[99] Jodie Blackstock noted that the European Arrest Warrant had removed the need for a prima facie case in order to make the process of extradition more streamlined and argued that "it is just unrealistic to start looking at importing back a prima facie case." She continued that "we are not going to be able to convince our EU partners that we ought to start looking with more scrutiny at the level of evidence that is provided."[100]

109. The submission of JUSTICE to the Extradition Review argued that requirement for a prima facie case to be presented for European Arrest Warrant requests should not be a priority:

"We do not believe any of these [problems with the EAW] would be solved by insisting on a prima facie evidence requirement. Nor do we believe that it is realistic to attempt to import such a test back into the scheme for requests received by the UK. Should there be doubt about the veracity of a request, the Act allows for dialogue with the issuing state, and indeed many cases have involved lengthy delays whilst further evidence is sought to clarify matters raised on the form, such as identification and types of offence."[101]

110. The Law Society, in its submission to the Extradition Review, did not call for the reinstatement of the prima facie case requirement: "the existing exceptions to the requirement to provide prima facie evidence diminish its status as a general rule [...] the Law Society considers that the robustness and bona fides of a request may be challenged by the alternative avenues provided for under the 2003 Act."[102]

111. There is no optional safeguard in the Framework Decision of the European Arrest Warrant which would allow a requirement for the presentation of a prima facie case to be implemented in UK law. As such, it would require renegotiation of the Framework Decision in order to implement this safeguard. In the case of category 2 countries the situation is more complex and adding a prima facie case safeguard where one does not already exist may require the renegotiation of some bilateral treaties.

112. We agree with Liberty that adding a requirement for the requesting country to show a prima facie case—or a similarly robust evidential threshold in a civil law state— before a person is extradited will improve the protection of human rights of those subject to extradition. In particular, this will require investigatory authorities to assess the available evidence before issuing a request for extradition, particularly within the EU, thus reducing the likelihood that a person could be extradited on speculative charges or for an alleged offence which they could not have committed. We consider the issue of the prima facie case specifically in relation to the US-UK extradition treaty in Chapter 5.

113. When we heard evidence from people who had been subject to an extradition request, Mr Edmond Arapi explained how an EAW request was issued for his extradition to Italy for an offence he could not have committed, as he was in the United Kingdom at the time. He told us that "the EU warrant [...] is fighting the impossible. If they want you somewhere, whether you have evidence or not, they will send you there regardless."[103] In cases such as this it might be that a prima facie test would help prevent wrongful extradition, as it would allow the judge the possibility of considering the evidence presented and barring extradition where there was clearly a case of mistaken identity. Fair Trials International argued that Mr Arapi's case showed the need to amend the Extradition Act to allow the UK to seek more information where there may be a case of mistaken identity.[104] The Police explained to us the process by which the person sought for extradition was identified and it seems likely to us that cases of mistaken identity are most often on the part of the requesting country.[105] A prima facie requirement would enable a judge to consider whether enough evidence had been provided to show the requested person had a case to answer. As noted above, JUSTICE argued that the Act allowed for dialogue with the issuing state to receive further information on subjects such as the identity of the requested person.

114. Witnesses reported that European Arrest Warrant requests were made for investigative purposes.[106] In relation to the case of Michael Turner, who was extradited and released without being charged, Jodie Blackstock of JUSTICE expressed concern that requests for extradition would still be successful even with a prima facie safeguard since "if they were in a position to be able to seek extradition in the case [...] they are going to be able to provide and support their request with evidence which will satisfy the prima facie test."[107]

115. We note, however, that the Article 15(2) of the Framework Decision provides the possibility for further information to be requested from the requesting state. We recommend that, in cases where identity is disputed or where there are doubts as to the stage of proceedings reached in the requesting state, this facility to request further information be used. We recommend that the UK devote negotiating efforts to securing longer time limits for cases where an information request has been made. Where identity is disputed, as in the case of Mr Arapi, the requesting state should be asked to provide a copy of the national identity card or passport or other photo ID. Where there are doubts as to the proper use of the EAW, the requesting state should be asked to provide information on the indictment process under their national law, the stage of proceedings reached, the date set for the first hearing and an assurance that the individual will not be interrogated on arrival.

Legal representation in extradition cases

116. In Chapter 2, we set out comments from witnesses on the effectiveness of the human rights bar to extradition. One of the three main reasons given for the ineffectiveness of the bar in protecting human rights of those subject to extradition requests was the difficulty for the defence to provide evidence in support of a case against extradition. Witnesses discussed with us two issues: the importance of legal representation in the requesting country and the adequacy of legal representation in the United Kingdom.

117. In order to make a successful defence against extradition on human rights grounds we were told that it was important to have legal representation in both the requesting and the requested country. Catherine Heard of Fair Trials International argued that legal representation in both countries was "absolutely crucial for a number of reasons" including quickly gathering evidence showing a risk of a breach of rights if extradited. She explained that a legal representative in the requesting country would be able to contact the prosecutor's office to overcome difficulties such as cases of mistaken identity and the possibility of the requested person paying a fine rather than receiving a custodial sentence, which would lessen the Article 8 implications of extradition. She concluded that "it could reduce the cost and the time as well as the human impact of an extradition request to make sure that legal representation is in place in both countries."[108]

118. Jodie Blackstock, representing JUSTICE, said she would "absolutely agree" with this argument.[109] A lawyer in the requesting, as well as the requested, country would be able to challenge the issuing of a warrant in the requesting country, provide information about the nuances of the legal system in the requesting state and help provide evidence to meet the level of proof required to bar extradition on human rights grounds. She noted that "we are fortunate in this country that legal aid is provided [...] where it is possible to show that expert evidence from the other country is required, but it is very ad hoc."[110]

119. Charlotte Powell agreed that it was important for a requested person to have the assistance of a lawyer in the requesting country. She told us that "if legal aid were automatic in extradition hearings, both for the provision of funding of services by defence lawyers in the United Kingdom and of a lawyer to represent them in a foreign state once returned, that would smooth the process for the requested person." She argued that courts had been reluctant to provide the certificate for counsel required to obtain expert evidence from abroad, further increasing the difficulties for defending a client on human rights grounds.[111]

120. We wrote to the Secretary of State for Justice, Rt Hon Kenneth Clarke MP, to ask what legal aid was available for a requested person to pay for a lawyer in the requesting country. He explained in his reply that if a defendant wished to apply for legal aid in the requesting country, the defendant would need to apply for legal aid in accordance with the procedures in that country.[112]

121. Charlotte Powell also raised concerns about the level of legal representation in the United Kingdom provided to people requested for extradition. She told us that the majority of people subject to extradition would be seen by a duty solicitor for only around half an hour before their trial, most of which will be spent completing the legal aid form. This may leave only five or so minutes to discuss "the intricacies of the Extradition Act and the personal circumstances of the requested person." In some cases, people from abroad will not have the requisite information to complete the legal aid forms and may be unrepresented at their extradition hearings.[113]

122. Charlotte Powell explained further that as a large number of people involved in extradition proceedings are foreign nationals, they often have difficulty in supplying the evidence required (tax returns, hours worked, bank balances, rent and partner's income) to secure legal assistance. This means that "even though a requested person's low earnings might qualify them for legal aid, for many it is impossible to provide the necessary documentation." She suggested that a holistic approach to legal aid, where it was granted to all involved in extradition proceedings automatically, would help in this respect.[114]

123. In its submission to the Extradition Review, the Law Society noted that "anecdotal evidence suggests that the introduction of means testing in the Magistrates' Courts effectively denies access to legal aid for defendants in extradition proceedings, where the time taken to process applications exceeds the length of those proceedings."[115]

124. The Secretary of State for Justice explained that any individual subject to extradition proceedings could apply for legal advice subject to a financial means assessment and an "Interests of Justice" test. He continued that given the adverse impact of extradition on the liberty and livelihood of an individual "it is likely that in most cases the "Interests of Justice" test will be met." He expressed confidence that the level of service provision met the legal obligations of the UK under the ECHR.[116]

125. When asked whether defendants have sufficient time with a duty solicitor, the Secretary of State noted that the Extradition Review Panel had met with Ministry of Justice officials "to explore the interaction between the provision of legal aid services and the overall processes for handling extradition cases." He continued that it was likely that "MoJ will undertake further analysis of the legal aid arrangements to help inform the Review Panel's recommendations." Other witnesses also commented on the strict time limits in the European Arrest Warrant which can also create problems for legal representation.

126. We have heard compelling evidence on the importance of dual representation for a requested person in order to ensure that their rights are safeguarded. We do not believe that the present provision of legal representation meets these needs. We recognise, however, the current climate of reduced funding for legal aid. We urge the Government to examine the provision of legal representation in extradition proceedings in order to ensure that people subject to extradition are properly represented both in the requesting and requested country. We welcome the Extradition Review Panel's consideration of this issue. Legal representation in both countries for persons requested for extradition would make the human rights bar and other safeguards in the extradition process more effective in protecting rights.

Securing adequate protection of rights

127. When our predecessor Committee considered the draft Extradition Bill in the 2001-02 Session, it was satisfied that the requirement for a judge to consider the impact of extradition on a suspect's Convention rights would provide adequate protection for those rights. Our inquiry, and specifically this and the previous Chapter, has considered whether that judgment has been borne out in practice and has revealed that the mere presence of such a "human rights bar" in the statutory framework is not enough to secure effective protection for human rights. For such protection to be practical and effective it is necessary to go beyond such generalised provisions and to spell out in detail in the statutory framework some specific and detailed safeguards of the rights in question.

81 EXT 5 and EXT 6 Back

82 HC Deb (2006-7) 6 Nov 2007 c662 Back

83 Ibid. Back

84 Legal advice obtained by Liberty, November 2009, available at: http://www.liberty-human-rights.org.uk/pdfs/policy11/liberty-submission-to-jchr-extradition-inquiry-january-2011.pdf Back

85 EXT 6 Back

86 Qq 61-3 Back

87 EXT 3 Back

88 Q 10 Back

89 Q 155 Back

90 Law Society response to the Home Office Extradition Review, p.12 Back

91 Q 227 Back

92 Q 240 Back