Conclusions and recommendations
1 Introduction
1. We
welcome the Government's stance on possible renegotiation of the
Framework Decision of the European Arrest Warrant if necessary.
(Paragraph 27)
2 Human rights and extradition
2. We
have heard evidence that Sections 21 and 87 of the Extradition
Act 2003 do not, in practice, offer adequate human rights protection
for those subject to proceedings and that the courts have set
their interpretation of the threshold too high. We welcome recent
developments that have seen UK courts apply an apparently lower
threshold, as demonstrated in the case of Targosinski v Judicial
Authority of Poland. The defendant should have a realistic opportunity
to rebut the presumption that their human rights will be respected
if extradited to a country which is a signatory to the ECHR or
with which the UK has good relations. (Paragraph 71)
3. Several
witnesses have suggested that defence lawyers should be able to
call upon a wider range of evidence, including reports of the
Committee on the Prevention of Torture, to illustrate human rights
concerns in the requesting country. The human rights bar would
be more effective if material such as reports of the Committee
on the Prevention of Torture were regarded as relevant evidence.
We find the concerns about the effectiveness of the bar persuasive.
(Paragraph 72)
4. The
effectiveness of human rights protection would be improved if
judges in extradition cases took a more active role in the extradition
process, through the implementation of safeguards and the use
of the human rights bar to ensure that the role of a judge in
an extradition case is more than only "rubber stamping"
extradition requests. (Paragraph 78)
5. We
urge the Government and the Extradition Review Panel, when considering
changes to the extradition process, to take into account the rights
of victims of crime, both in the UK and other countries, as well
as the rights of those subject to extradition. The process of
extradition is important in ensuring that criminals are brought
to justice and there is a need to ensure balance between this
and protecting rights of those subject to extradition. (Paragraph
85)
3 Improving the protection of Human Rights in
the Extradition Act 2003
6. 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. (Paragraph 99)
7. 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. (Paragraph 100)
8. 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. (Paragraph 101)
9. We
recommend that the case-law on double jeopardy be codified so
that extradition under an European Arrest Warrant is barred where
the Crown Prosecution Service 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. (Paragraph
104)
10. The
Government should look at how such a safeguard could be implemented
in practice including, if necessary, through renegotiation of
the relevant extradition treaties. (Paragraph 105)
11. 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. (Paragraph 112)
12. 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 European Arrest Warrant, 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. (Paragraph
115)
13. 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. (Paragraph 126)
14. 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.
(Paragraph 127)
4 The European Arrest Warrant
15. We
recognise the importance of extradition and the benefits the European
Arrest Warrant has brought in terms of a quicker, more streamlined
process for surrender within the European Union. (Paragraph 130)
16. We
agree with this evidence and recommend that the Government should
take the lead in seeking to ensure that there is equal protection
of rights, in practice as well as in law, across the EU. (Paragraph
137)
17. We
note the increasing number of European Arrest Warrant requests
received by the UK. We have serious concerns about the disproportionate
impact of extradition where it is requested for a relatively minor
offence. We urge the Government to work with the European Commission
and other Member States to implement a proportionality principle
in the Framework Decision, both for operational reasons and to
ensure that the human rights implications of extradition are not
disproportionate to the alleged crime. (Paragraph 158)
18. Such
a proportionality principle should be contained within the Framework
Decision of the European Arrest Warrant and operate in a similar
way to the tests applied by the Police and the CPS before issuing
a request. We are not convinced that informal guidelines, bilateral
discussions with the authorities of other Member States or a public
interest test operated by the authorities in the requested country
would be operationally practical or successful in the long-term.
(Paragraph 159)
19. The
Government and the Extradition Review may wish to review the list
of 32 offences for which double criminality is not considered,
with a view to whether certain conduct should be excluded from
the definitions of these offences. We recognise, however, that
the Framework Decision expressly excludes double criminality as
a reason for denying the execution of an EAW. We recommend that
this principle be dealt with as part of the renegotiation of the
Framework Decision. (Paragraph 165)
20. We
urge the Government to ensure that other Member States do not
use the European Arrest Warrant for purposes of investigation,
if necessary by amendment to the Framework Decision. We recommend
that, where there are doubts as to the stage of proceedings reached
in the requesting state, the facility for further information
provided by the Framework Decision and the Extradition Act 2003
should be used. 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. (Paragraph 168)
21. It
may be that, if applied, the Directive on the application of the
principle of mutual recognition to the decisions on supervision
could ensure that a person extradited to another EU state could
await trial in the UK, reducing problems in relation to long times
spent in prison before trial. (Paragraph 169)
22.
The system for removal of EAW requests should be improved or formalised
to prevent repeat arrests where a court elsewhere in the EU has
already refused to execute an extradition request. The Government
should examine whether adopting Article 111 of the Schengen Information
System would help avoid this problem. The Government should also
negotiate membership of the SIRENE system which can be used to
enter information on the execution of EAWs.
(Paragraph 174)
23. The
Extradition Review Panel or the Government should consider whether
the current time-limits provide adequate opportunity for the defence
to postpone a hearing if necessary as long as the court considers
the reasons for the request for adjournment on its merits on a
case-by-case basis. The Government should also investigate the
possibility of replacing time limits with another, less strict,
formulation such as "as soon as reasonably practical",
although we note that this would require renegotiation of the
Framework Decision. (Paragraph 180)
24. We
note that Article 4(6) of the Framework Decision allows the requested
state to deny execution of the European Arrest Warrant issued
for the purposes of serving a sentence where the requested state
undertakes that the sentence will be served in that state. We
recommend that this safeguard be transposed into the Extradition
Act 2003 as this would significantly reduce the impact of such
execution European Arrest Warrants on Article 8 rights. (Paragraph
181)
25. We
recommend that the safeguard in Article 5 (3) of the Framework
Decision be transposed into the Extradition Act 2003. (Paragraph
182)
26. We
recommend that the Extradition Review Panel carefully assess the
applicability of the EU Charter on Fundamental Rights to the European
Arrest Warrant as applied by the UK. (Paragraph 185)
5 The UK's bilateral extradition treaties
27. The
Government should increase the proof required for the extradition
of British citizens to the US so as to require sufficient evidence
to establish probable cause, as is required for the extradition
of a US citizen to the UK. This will require renegotiation of
the UK-US Extradition Treaty. (Paragraph 192)
28. We
recommend that the Government urgently renegotiate this article
of the US-UK extradition treaty to exclude the possibility that
extradition is requested and granted in cases such as that of
Mr Bermingham and Mr Ahmed, where the UK police and prosecution
authorities have already made a decision not to charge or prosecute
an individual on the same evidence adduced by the US authorities
to request extradition. (Paragraph 196)
29. We
note the arguments for increasing the role of the Secretary of
State in the surrender of persons to countries under Part 2 of
the Extradition Act. We are not convinced that changes should
be made and, in any event, any additional powers would need to
be carefully circumscribed to avoid those subject to extradition
requests becoming "political pawns". (Paragraph 202)
6 European Investigation Order
30. We
fully endorse the points made about the European Investigation
Order by the House of Lords EU Committee. We urge the Government
to ensure the inclusion of a provision to allow the refusal of
an European Investigation Order on human rights grounds and a
provision for dual criminality. We also agree that the European
Investigation Order should be available for the use of defence
lawyers, given the difficulties that defence lawyers face in providing
evidence to support their arguments. (Paragraph 212)
31. The
lessons from the European Arrest Warrant must be learned when
negotiating the form of the European Investigation Order. The
Government must ensure that there is an effective proportionality
safeguard in the Directive, in order to ensure that the European
Investigation Order operates effectively and that there are not
numerous requests for information in minor cases. (Paragraph 217)
7 Other issues
32. The
Government should standardise the information received by those
subject to extradition to ensure they receive sufficient, accurate
information on the extradition process and their rights in the
country to which they will be extradited. (Paragraph 221)
33. It
would be helpful if the Government were to provide details of
their procedures in relation to extradition of persons subject
to immigration control and the precautions they take to ensure
that these persons' rights are not infringed through either revoking
their refugee status while they are outside the UK, or through
their refoulement to another country. (Paragraph 224)
34. Extradition
should not be the only method for dealing with suspects of crimes
against humanity: we urge the Crown Prosecution Service to consider
carefully whether such suspects can be tried in the United Kingdom
before extradition proceedings are initiated. (Paragraph 228)
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