House of Lords - Extradition: UK law and practice - Select Committee on Extradition Law

Extradition: UK law and practice - Select Committee on Extradition Law Contents

Extradition: UK law and practice

CHAPTER 1: INTRODUCTION

1. On 27 March 2014 the House agreed to appoint "an ad hoc post-legislative scrutiny committee to examine the Extradition Act 2003 and Extradition Legislation, to report by the end of the 2014-15 Session".[1]

2. The suggestion for this inquiry came in a letter to the Liaison Committee from Baroness Garden of Frognal in which she said, "the question of extradition remains as high up on the political agenda as ever".[2]

3. The Committee was appointed on 12 June 2014 with the remit "to consider and report on the law and practice relating to extradition, in particular the Extradition Act 2003".[3]

Extradition: general principles

4. Extradition takes place when a person who is accused or convicted of a criminal offence is returned from one country to another to be tried, sentenced or to serve a term of imprisonment. Extradition is a discrete legal process but it operates within the context of other legal, political and international considerations.

5. There are some essential principles which are fundamental to extradition law. It is worth making these explicit as without them it is easy to misunderstand what the rationale behind the law is and how it operates. These principles have guided our thinking and this report should be read with them in mind.

6. The first principle is that extradition is "a form of international cooperation in criminal matters, based on comity (rather than any overarching obligation under international law), intended to promote justice."[4] Because of its cooperative and bilateral nature, it is inherent in extradition that each country accepts to a certain degree the criminal justice systems of other countries. Each country has different views of different crimes and how they ought to be prosecuted and punished.

7. This acceptance is also not absolute. For example, extradition from the UK must be compliant with the European Convention on Human Rights (ECHR). Also, extradition is a two-way process; to refuse extradition to a country may lead to that country not honouring an extradition request from the UK. Maintaining good extradition relationships and honouring our international obligations in this regard ensures that countries do not become safe havens from justice, which would be the direct consequence of not doing so.

8. Secondly, the purpose of extradition is to return the Requested Person to the Issuing State either to stand trial or, if already convicted, to serve a sentence. Extradition proceedings are not therefore concerned with establishing innocence or guilt—that is a matter for trial in the Issuing State. Extradition is, as the Chief Magistrate's Office put it, "simply a gate keeping mechanism."[5] Hence the dictum that it is better that 10 guilty persons go free than that one innocent person suffers has no direct relevance in this context since it is not the arena in which questions of guilt or innocence are determined. It should nevertheless also be recognised that extradition, involving as it does the removal of people from the UK to jurisdictions with which they may have little or no connection, may in some circumstances be considered harsh and distressing in itself. Senior District Judge Riddle spoke of the anticipated "horrors" of extradition leading to people being "very anxious" and that the court saw "significant incidents of selfharm."[6] However, though it may be harsh or unfamiliar, this does not mean that extradition is necessarily unjust.

9. Finally, much of the evidence we received focussed on the impact of the process on the Requested Person and on the perspective of the Issuing State. The purpose of extradition is to enable justice to be done in relation to crimes committed overseas; therefore it must take into account "the impact it has on victims … as a consequence of the crimes committed",[7] as well as the overall importance of supporting the rule of law.

The Extradition Act 2003

10. Until 2003, extradition was governed by the Extradition Act 1989, itself a consolidation of three earlier pieces of legislation.[8] The origins of the law relating to extradition go back hundreds of years.[9]

11. The Extradition Act 2003 ("the 2003 Act") acknowledged extradition as an important tool in dealing with crime internationally; it emphasised that no one should be able to escape justice simply by crossing a border. The 2003 Act sought to provide a quick and effective framework for the extradition of a Requested Person to the Issuing State, provided this does not breach his or her fundamental human rights or one of the other bars to extradition contained in the 2003 Act.

PART 1 AND PART 2 OF THE 2003 ACT

12. In 2002, the Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States (the "Framework Decision") was agreed. This was part of the policy to create what is now referred to as a single area of freedom, security and justice. It was implemented into UK law by Part 1 of the 2003 Act. The Framework Decision's stated aim was to abolish "the formal extradition procedure … among the Member States in respect of persons who are fleeing from justice after having been finally sentenced" and to speed up procedures "in respect of persons suspected of having committed an offence."[10] The main features of the fast track procedure which was introduced by the European Arrest Warrant (EAW) against the background of the evolving EU competence in justice and home affairs were:

· mutual recognition: the EAW requires the acceptance of a foreign warrant without inquiry into the facts of the case. There is no requirement for the Issuing State to make a prima facie case;

· exclusively judicial procedure: the executive is removed from the process. Surrender can take place providing that an EAW is certified as being properly made out by a recognised authority;

· removal of the dual criminality requirement for 32 categories of offences (as long as the offence is punishable with at least three years' imprisonment in conviction cases);

· no exception on the grounds of citizenship: though some countries would not extradite their own nationals to other countries, they must do so under the EAW; and

· strict time limits within which surrender must take place.

13. Part 2 of the 2003 Act streamlined the judicial mechanism for extradition to non-EAW countries with which the UK has bilateral or multilateral extradition treaties (see Appendix 7). Some countries falling within Part 2 of the 2003 Act were further designated as not being required to provide prima facie evidence of the case against the Requested Person. Many, but not all, of these countries are signatories of the European Convention on Extradition (ECE)[11] (four others, Australia, Canada, New Zealand and the US, are also further designated).

14. There are many countries with which the UK does not have any extradition arrangements. In some cases this will be for diplomatic or political reasons (for example, the UK has no extradition treaty with Taiwan, a country which the UK does not formally recognise). In other cases—for example, Japan—the reason is less clear. Where necessary, ad hoc extradition arrangements can be brought into force. Under such ad hoc arrangements, once the Home Secretary has recognised a request from a territory with no standing arrangements, extradition follows the same process as for a Part 2 request.[12]

EXTRADITION PROCESS: AN OVERVIEW

15. In brief, the following process applies in extradition cases:

· an extradition request is received by the UK;

· in the case of EAWs the request must be certified as being in order by the designated authority. In England, Wales and Northern Ireland this is the National Crime Agency (NCA). In Scotland it is the Crown Office and Procurator Fiscal Service;

· Part 2 requests are certified by the Home Secretary;

· once a request has been certified, a warrant for the Requested Person's arrest is issued; and

· once arrested the Requested Person is brought before the court for an initial hearing. In England and Wales extradition cases are heard at the Westminster Magistrates' Court. In Scotland they are heard at the Sheriff Court in Edinburgh. In Northern Ireland cases are heard by designated county courts or resident magistrates.

16. At the initial hearing the judge must:

· confirm the identity of the Requested Person;

· inform the person about the procedures for consenting to be surrendered to the Issuing State; and

· fix a date for the extradition hearing if the requested person does not consent to extradition.

17. At the extradition hearing the judge must be satisfied that the offence for which the person is requested constitutes an extraditable offence and that none of the bars to extradition applies (see paragraph 19). If these conditions are met, the court must order the extradition of the Requested Person. If, however, any of the bars to extradition do apply, the judge must order the person's discharge.

18. Appeals may be lodged with the High Court and, if appropriate, the Supreme Court (see Chapter 7 for further discussion of the right to appeal).

BARS TO EXTRADITION

19. The Act is drafted in such a way that a proper extradition request will be honoured unless extradition is prevented by one of the bars contained in the Act. These bars identify certain fundamental limits which circumscribe extradition law in the UK. Extradition may be barred on account of:

· double jeopardy (where a person has already been convicted for or acquitted of the relevant offence);

· extraneous considerations (prosecution, detention or punishment on account of race, religion, nationality, gender, sexual orientation or political opinions);

· the passage of time since the alleged offence;

· the age of the offender (where the offender was so young at the time of the offence that he or she would not be criminally liable in the UK);

· a lack of arrangements to prevent the Requested Person being prosecuted by the Issuing State for a crime other than that for which they were extradited (this is known as 'specialty');[13]

· earlier extradition to the United Kingdom or transfer from the International Criminal Court;

· human rights concerns, as defined by the ECHR (see Chapter 2);

· proportionality (see Chapter 3);

· forum (see Chapter 4);

· physical and mental health considerations which would make extradition unjust or oppressive;

· there being no guarantee of a re-trial for convictions where absence from the trial was not deliberate; and

· abuse of process: although not a statutory bar, when the question arises, under common law, both the Magistrates' Court and the High Court have the power and duty to enquire into an abuse of their processes in extradition proceedings.[14]

AMENDMENTS TO THE 2003 ACT

20. The 2003 Act has been significantly amended four times:

· the Police and Justice Act 2006 which introduced a forum bar that was not brought into force (see Chapter 4);

· the Policing and Crime Act 2009 which, inter alia, introduced provisions to:

· allow alerts requesting the arrest of a person for extradition purposes to be received via the second generation Schengen Information System ("SIS II");

· permit deferral of the extradition process in order to allow domestic proceedings to be concluded or a UK prison sentence to be served; and

· make it possible for a judge to facilitate the Requested Person's appearance at court if remanded into custody by giving a live link direction in Part 1 and 2 hearings (other than the substantive extradition hearing);

· the Crime and Courts Act 2013 which introduced the forum bar now in force in England, Wales and Northern Ireland, and provided for the transfer of the Home Secretary's responsibilities to discharge extradition on grounds of human rights concerns (see Chapter 4 and 7); and

· the Anti-social Behaviour, Crime and Policing Act 2014 which made various amendments to the 2003 Act including:

· introducing the proportionality bar (see Chapter 3);

· allowing for the temporary transfer of Requested People in Part 1 cases;

· providing for leave requirements for appeals (see Chapter 7); and

· requiring a decision to prosecute to be made before an EAW can be executed (see Chapter 9).

Previous inquiries

21. Since the 2003 Act came into force aspects of it have been the subject of some controversy. There have, therefore, already been a number of Parliamentary reports into its operation. The House of Lords European Union Committee has published a number of reports about the EAW and other EU police and criminal justice measures.[15] In June 2011, the Joint Committee on Human Rights published a report into the human rights implications of the UK's extradition law.[16] In March 2012, the House of Commons Home Affairs Committee published a report on the UK's extradition arrangements with the US.[17] In November 2014, this Committee published an interim report on the UK's opt-in to the EAW which concluded in favour of remaining within the EAW.[18]

22. In addition, in 2010 the Government commissioned a review by a former Lord Justice of Appeal, Sir Scott Baker (see Box 1).[19]

23. The controversy which the 2003 Act has attracted is not unique to that Act. Its predecessors, the Extradition Acts of 1870 and 1989, also gave rise to difficult cases (perhaps the most high profile being the extradition of the former Head of State of Chile, General Pinochet, to Spain).[20] Such controversy has not been restricted to the UK; many other countries similarly grapple with the duties of comity between nations in the interests of international justice and the protection of their own citizens.[21]

Box 1: Sir Scott Baker's review of extradition

In October 2010, the Government appointed a panel of three independent lawyers to review the UK's extradition arrangements. It was chaired by Sir Scott Baker, a former Lord Justice of Appeal. David Perry QC, a barrister with 6 King's Bench Walk, and Anand Doobay, a partner at Peters & Peters, were the other members of the panel. The report was presented to the Home Secretary on 30 September 2011 and published on 18 October 2011.

The review panel was asked to look at five areas of extradition law:

(1) the operation of the European Arrest Warrant;

(2) whether a forum bar to extradition should be brought into force;

(3) whether the US/UK extradition treaty was unbalanced;

(4) whether states requesting extradition should be required to provide prima facie evidence; and

(5) the breadth of the Home Secretary's discretion in an extradition case.

In its introduction, the review noted that "in the course of conducting our Review, it became apparent that some of the criticism directed at the Extradition Act 2003 was based on a misunderstanding of how the 2003 Act operates in practice … we were struck by the fact that out of the hundreds of cases that are dealt with by the courts each year, only a handful is relied upon as support for the contention that the existing law is defective."[22]

The panel made a number of conclusions and recommendations. Among them were:

· the introduction of a proportionality test;

· that no additional measures were needed to prevent the use of EAWs as aids to investigation rather than prosecution;

· support for enabling legal representation of Requested Persons in both the Issuing and Executing EAW Member State;

· that a forum bar ought not to be introduced;

· that the UK/US extradition treaty did not operate in an unbalanced manner;

· that prima facie case requirements should not be re-introduced for fully designated Part 2 states;

· that the designation of Part 2 states should be reviewed;

· that the Home Secretary's discretion be removed so that human rights issues arising at the end of the extradition process under Part 2 of the Act should be dealt with by the courts;

· that legal aid should not be means tested; and

· in favour of the transferring of sentences to the UK where appropriate.

The Government published its response to the review in October 2012.[23] It agreed with some of the recommendations (such as the introduction of a proportionality bar and removal of the Home Secretary's discretion) but not others (such as the means testing of legal aid and the introduction of a forum bar).

The inquiry

24. The Committee began its work in June 2014. We held 16 public evidence sessions and heard from 43 witnesses. We also received 93 pieces of written evidence. We are grateful to all those who provided evidence. Members of the Committee also visited Westminster Magistrates' Court to witness a number of extradition hearings. We are grateful to the Senior District Judge, his colleagues and staff for facilitating these useful visits. We also thank Charlotte Powell, our Specialist Adviser, for her advice and support.

25. Our inquiry has been evidence-led and this report reflects the balance of the evidence we received, including some issues beyond the scope of our initial Call for Evidence which were raised during the inquiry.

26. One area on which we received only limited evidence was the importance of extradition from the point of view of those seeking justice for crimes committed against them. As noted in paragraph 9, the needs of the victims and of the wider community to have justice done are essential to the purpose of extradition. For example, the Iranian and Kurdish Woman's Rights Organisation told us that:

27. Our evidence, including some submissions from those who had been extradited, gave details of a number of extradition cases. Though particular cases may be used to illustrate points made in evidence, we do not attempt to make judgments on whether extradition was correct in particular cases, which would be inappropriate for this Committee to seek to do.

28. In our Call for Evidence, published before the independence referendum in Scotland, we asked for submissions about extradition law and devolution. We received very little evidence on this topic and therefore this report does not consider the existing settlement or the possible implications of further devolution or independence. However, we did take evidence from witnesses on how the system currently works in Scotland and Northern Ireland where the law is largely (though not completely) the same as in England and Wales.

29. The report's structure covers two broad areas. Chapters 2 to 8 address issues which arise in the course of extradition proceedings (the bars to extradition, legal aid, appeal and so forth). Chapters 9 to 11 discuss the two different categories of extradition partners: the EAW countries governed by Part 1 of the Act and the Part 2 countries. Because of the controversy which has surrounded some cases and the weight of the evidence submitted to us a separate chapter on the UK's extradition relations with the US is included. However, it should be clear that the law and procedures which govern extradition to the US are exactly the same as those that apply to other Part 2 countries not required to provide a prime facie case.

30. It should be noted that extradition law in the UK has been evolving in recent years: for example, by judgments in relation to the human rights bar (see Chapter 2) and by the introduction of proportionality and forum bars (see Chapters 3 and 4). Our report is concerned with the law as it is now, including recent developments and their impact. These developments mean that many of the cases referred to in evidence submitted to us now need to be read in the light of subsequent changes which may have mitigated previous criticisms.

1 HL Deb, 27 March 2014, col 594 Back

2 Liaison Committee, Review of select committee activity and proposals for new committee activity (1st Report, Session 2013-14, HL Paper 145) Back

3 HL Deb, 12 June 2014, cols 527-28 Back

4 A Review of the United Kingdom's Extradition Arrangements ['the Baker Review'], 18 October 2011, p 20

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf [accessed 3 March 2015] Back

5 Written evidence from the Office of the Chief Magistrate (EXL0043) Back

6 Q134 (Senior District Judge Riddle) Back

7 Written evidence from [Anonymous] (EXL0041) Back

8 Criminal Justice Act 1988, Part 1; Fugitive Offenders Act 1967; and Extradition Act 1870 (as amended) Back

9 Between 1174 and 1794, England concluded five extradition treaties. However, the modern law of extradition started to develop in the nineteenth century, when the United Kingdom began to negotiate extradition treaties with foreign states. Notable developments included the Jay Treaty with the United States (1794), and treaties with France and the USA in 1842 and 1843 respectively. Back

10 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States, 2002/584/JHA Back

11 European Convention on Extradition: http://conventions.coe.int/Treaty/en/Treaties/Html/024.htm [accessed 3 March 2015] Back