We were established in March 2014 to conduct post-legislative scrutiny into the law and practice relating to extradition, in particular the Extradition Act 2003 (the 2003 Act). The 2003 Act was introduced to modernise and streamline the UK's extradition procedures. It did this by bringing into UK law the European Arrest Warrant (EAW) scheme (a fast-tracked process of surrender between EU Member States) and by simplifying the process of extradition to other countries. Since its introduction, the 2003 Act has been the focus of much controversy, with critics arguing that it did not provide the necessary safeguards to prevent injustice. Its supporters have argued that the law needed updating as the previous extradition regime took too long and was not fit for purpose as crime became increasingly global, particularly in the light of the rise of online crime.
A number of reports and inquiries into the Act have been conducted, mostly recently by Sir Scott Baker at the request of the Home Secretary.
Our consideration of extradition law is based on some founding principles. We believe that to misunderstand these principles is to misunderstand extradition law:
· extradition is based on comity and cooperation between states. This requires countries to accept, within limits, the criminal justice systems of others;
· although such acceptance is a founding assumption, it is not absolute. For example, the UK has a responsibility to protect those it extradites from foreseeable human rights abuse;
· extradition is not a process concerned with determining the innocence or guilt of a personthat is a matter for trial in the Issuing State; and
· the fundamental purpose of extradition is to bring criminals to justice. The interests of the victims of crimes must therefore always be considered.
Our findings suggest that, although there are aspects of the law and practice which are of concern, there is no systemic problem with the UK's extradition regime. We do, however, reach a number of conclusions and make recommendations.
We are concerned about the system of accepting assurances to offset the risk of extradition leading to human rights abuse. Although we conclude that the courts are effective in balancing the need to protect human rights against the public interest in the administration of justice through extradition, we do not believe that the system of seeking, accepting and monitoring assurances provides sufficient confidence that the UK is meeting its human rights obligations. We believe we need, in the Home Secretary's words, "greater assurance to the assurances".
A number of changes have been made to the 2003 Act in recent years. These include the introduction of a proportionality bar (see Chapter 3) and a forum bar (see Chapter 4), changes in how legal aid is provided (see Chapter 6), amendments to the appeals process (yet to be implemented) and the removal of aspects of the Home Secretary's role (see Chapter 7). Although we received evidence on each of these changes, they are still new elements to the extradition regime and have yet to be fully tested in the courts.
Although it is too soon to say whether the proportionality bar, aimed at preventing the execution of EAWs for trivial offences, will be effective, we believe it was necessary for the Government to introduce such a bar. Similarly, the forum bar (which allows people to challenge extradition on the grounds that any prosecution should be in the UK) may or may not prove a real protection against inappropriate extradition. However, we note that there is the legal possibility of presenting forum arguments on human rights grounds, particularly since the welcome change in the application of Article 8 of the European Convention on Human Rights. Because of this, the forum bar and other factors it will be necessary to explore fully the impact of extradition on those who are not fugitives from crime in the traditional sense (see paragraph 172).
We noted the view expressed in the report by Sir Scott Baker that legal aid ought not to be means tested in extradition cases. We are sympathetic to this view, particularly as we believe that the cost-benefit analysis conducted by the Government on this issue was not sufficiently detailed to be useful. We recommend that the Government carry out a more precise analysis of the cost of removing means testing. Unless such an analysis concludes clearly in favour of retaining means testing, we believe legal aid ought to be awarded automatically in extradition cases. We make this recommendation bearing in mind that in most cases Requested People have yet to be convicted of any crime.
We also took evidence on the different extradition processes provided for by the 2003 Act: the EAW system for EU Member States and the system that applies to other countries. The EAW is a valuable tool in the fight against cross-border crime in the EU. However, we agree that it has been overused and, in some cases, misused in the past. Changes to UK and EU legislation, and developments in practices elsewhere in the EU should make such use much less likely in the future. We recommend that the Government continue to work with the European Commission and other Member States to ensure that there are the necessary procedural rights and mutual assistance measures to make the EAW an instrument of last, rather than first, resort.
We recognise the criticisms of the system in relation to other countries (including the US) such as the lack of a requirement for many countries to provide a prima facie case. Although some witnesses called for the reintroduction of a prima facie case requirement for all extradition requests, we believe this would be a retrograde step. We conclude that the existing law and practice provide sufficient opportunities to prevent inappropriate extradition.
Even appropriate extradition may be regarded as unfair or harsh by those subjected to it. With this in mind, we recommend that the process of extradition should be softened where possible to lessen its impact on those extradited, particularly where they have not yet been convicted of any crime. This should include, for example, providing greater information about the process or coming to arrangements with countries about returning people on bail pre-trial.