CHAPTER 2: HUMAN RIGHTS BAR AND ASSURANCES |
Human rights bar
31. In the course of an extradition hearing,
the judge must decide "whether the person's extradition would
be compatible with the Convention rights", contained in the
ECHR. This applies
to EAW and Part 2 cases and we were told that human rights points
were "argued in virtually every extradition case that goes
to a full hearing".
32. Courts approaching the question of human
rights begin with the presumption that a country with which the
UK has extradition arrangements will not violate the human rights
of a Requested Person. This presumption in favour of the Issuing
State will be stronger in EAW cases because membership of the
EU requires certain legal, judicial and human rights standards
to be met. In Part 2 cases the presumption will generally be stronger
in favour of those that are signatories of the ECHR and the European
Convention on Extradition or with which the UK has long-standing
and close ties. However, this presumption is rebuttable in all
33. Some witnesses were concerned that the presumption
in favour of the Issuing State put the bar too high making it
too difficult to resist extradition on human rights grounds successfully.
The Faculty of Advocates had "concerns over the presumption
that all signatories to the European Convention on Human
Rights will act in accordance with their obligations thereunder.
The jurisprudence of the European Court of Human Rights amply
demonstrates that this has not always been the case."
Noelle Quenivet and Richard Edwards of Euro Rights said there
was "a danger that if the threshold is set too high the rights
become theoretical and illusory".
34. Other witnesses said that the bar was not
too high. Daniel Sternberg, a barrister at 9-12 Bell Yard, said,
"The evolving standards of human rights established by both
the European Court of Human Rights and the UK courts generally
provides sufficient protection from extradition in breach of those
35. JUSTICE accepted that the bar was necessarily
high as the courts were "being asked to predict the impact
of extradition" but noted that the effect of the bar could
36. Doctor Kimberley Trapp, Senior Lecturer in
Public International Law at University College London, said that
she could not cite "any examples where it has been too high"
but was concerned that "it could be too high, particularly
because of the very unique factual matrix" of case law that
defined how the bar was interpreted.
SPECIFIC ECHR ARTICLES
37. Dr Trapp's point refers to the fact
that how the bar is interpreted differs depending on which Article
of the convention is being argued. The interpretation of each
Article has evolved over time through case law.
38. The most frequently cited Articles in extradition
cases are Article 3 (prohibiting torture and inhuman or degrading
treatment or punishment) and Article 8 (protecting the right to
private and family life).
39. A judge must discharge a Requested Person
where it is shown that there are substantial grounds for believing
there is a real risk of inhuman or degrading treatment or punishment
in the Issuing State (see Box 2).Box
2: Article 3 of the ECHR
|Article 3 of the ECHR states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
ECHR rights are either absolute or qualified. Article 3 is an absolute prohibition.
Key principles defining the application and scope of Article 3 include:
· a decision to extradite a person engages the responsibility of the UK under Article 3 where substantial grounds have been shown for believing that the person concerned, if extradited, faces a "real risk of exposure to inhuman or degrading treatment or punishment" if extradited to the Issuing State;
· the treatment alleged must attain a minimum level of severity if it is to fall within its scope;
· a 'real risk' is one that is more than merely fanciful and more than a mere possibility. It does not mean proof on the balance of probabilities, or more likely than not, and may be established by something less than proof of a 51% probability;
· decisions by courts in the UK and the European Court of Human Rights (ECtHR) have interpreted the meaning of Article 3 on a case-by-case basis; what amounts to inhuman or degrading treatment depends on all the circumstances of each case; and
· once a risk of ill treatment is established to the requisite degree of likelihood and severity, the responsibility of the UK is engaged; it is for the Issuing State to dispel the finding of real risk.
Particular principles apply when the issue is whether Article 3 is engaged in respect of Contracting States to the ECHR and Member States of the EU:
· Member States of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary;
· evidence would have to show that there was a real risk of the Requested Person being subjected to torture or inhuman or degrading treatment or punishment;
· this presumption is of even greater importance in the case of Member States of the EU. In such cases there is a strong, albeit rebuttable, presumption that EU Member States will abide by their Convention obligations. Each Member State is entitled to have confidence that all other EU Member States will abide by their Convention obligations; and
· the evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU Member State will have to be powerful; something approaching an international consensus is required if the presumption is to be rebutted.
40. With regard to Article 3, we were told there
were two approaches to establishing the likelihood of a breach:
"One is by referring to material that is
in the public domain, such as international material from the
courts and the international consensus. To do that you have to
have a great deal of material to make a compelling argument. The
other is by direct evidence.
In cases where there is direct evidence of either
torture or degrading treatment or punishment, there is no question
of an international consensus".
41. The 'international consensus' test "applies
in relation to EU Member States
. It does not apply to each
and every extradition partner that we have".
Direct evidence of a risk can be used in all cases.
42. Ben Keith, a barrister at 5 St Andrew's Hill,
told us that the international consensus test was not "applied
terribly well" as it was:
"very difficult to show because you have
to have some evidence from the European Court of Human Rights,
which involves a five-year turnaround to get a body of case law
that shows that consensus, or from the European Committee for
the Prevention of Torture reports, which need to show serious
systematic breaches probably not over one report but a number
of reports in a row."
43. However, Mark Summers QC, a barrister
at Matrix Chambers, said that the difficulties in making Article
3 arguments were appropriate as "if we get it wrong there
is another remedy for the requested person: he or she can access
the Strasbourg court directly from that state."
In addition, the international consensus test became unnecessary
where there was direct evidence of a real risk.
44. A number of examples were given of Article
3 arguments being successful.
Paul Garlick QC, a barrister at Furnival Chambers, said,
"If you go before a judge at Westminster and tell the judge
that you have an Article 3 argument they will always allow
you to raise that because of the consequences
I think that
the protection that the Westminster court has given has been far
from illusory; it has been very real."
45. Not all witnesses were content that the Article
3 arguments were as successful as they needed to be. Edward Grange,
a solicitor at Hodge, Jones & Allen, and Rebecca Niblock,
a solicitor at Kingsley Napley, said, "there are still some
people who are extradited to countries where they face a real
risk of torture or inhuman or degrading treatment: this is because
it is extremely difficult to displace the presumption of compliance".
46. Article 8(1) of the ECHR states, "Everyone
has the right to respect for his private and family life, his
home and his correspondence". Arguments in relation to this
Article have evolved significantly in recent years (see Box 3).Box
3: Article 8 of the ECHR
|Article 8(1) ECHR provides: "Everyone has the right to respect for his private and family life, his home and his correspondence." Public authorities may not interfere with private and family life except in accordance with the law and as necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (Article 8(2)). Unlike Article 3, Article 8 is therefore a qualified right.
Baroness Hale in the Supreme Court judgment HH & Others v Deputy Prosecutor of the Italian Republic, Genoa and Others (see Appendix 5) summarised conclusions to be drawn from case law interpreting Article 8 which include: ??
· there is no test of exceptionality;
· the question is always whether the interference with the private and family lives of the requested person and other members of his family is outweighed by the public interest in extradition;
· there is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back;
· that public interest will always carry great weight, but the weight to be attached to it in the particular case varies according to the nature and seriousness of the crime or crimes involved;
· the delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life;
· hence, it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.
As a result of HH and Lady Hale's formulation, the courts now consider a number of factors when weighing up whether the public interest in extradition is proportionate to the interference with family life that extradition involves. This might be seen in a recent case where extradition to Poland on an EAW was resisted on Article 8 grounds. In the course of his judgment, Mr Justice Blake said:
"it is nevertheless the case that since 2012 this court, in the exercise of its jurisdiction to review whether a decision is disproportionate, has been willing to give much greater weight to factors such as the pure passage of time, the age of the offender, the seriousness of the offence, the time served as well as the impact upon third parties"
47. Ben Keith described the impact of HH
as a "sea change in Article 8 cases
prior to HH,
you had to be basically on death's door or have a terminally ill
told us that he had experienced a case where "one of the
district judges said to me, 'If this case had been before me two
years ago I would have ordered your extradition. However, having
looked at what is happening in the High Court, I do not think
it is proportionate and so I am going to order your discharge'."
48. The Crown Prosecution Service (CPS) made
"It seems to us that it has become much
easier to avoid extradition on the basis of Article 8 or because
of delay in seeking surrender where the offence might not be thought
of as particularly serious. Any suggestion that there is a test
of 'exceptionality' has been swept away".
49. As Article 8 is a qualified right, a disproportionate,
not any, interference will be required for a breach to be established.
Witnesses generally thought it was being applied fairly.
50. Since HH Article 8 arguments are increasingly
being used to make proportionality arguments. Daniel Sternberg
said that it was being used "by persons who may have committed
very minor offences, such as shoplifting or minor road traffic
offences. Although they may not have children in this jurisdiction,
the fact that they have established themselves here is a basis
on which extradition is being refused."
51. This development of Article 8 led Paul Garlick QC
to conclude, "I think we have seen a softening of that approach,
led by tremendously important judgments like HH
In my judgment we have it about right at the moment."
Liberty, on the other hand, considered the bar in relation to
Article 8 still to be high: "The focus on honouring extradition
treaties means that Article 8 will rarely be successful as a bar
52. Kaim Todner Ltd, a firm of solicitors, maintained
a more hardline view that in all cases extradition could, to an
extent, be considered a breach of a requested person's Article
53. For other witnesses the impact of HH
ultimately remained to be seen. Edward Grange said the interpretation
might change again, at least for EAW cases, in the light of a
proportionality bar having been introduced
(see Chapter 3). Daniel Sternberg said the effect of the judgment
was "like watching a lake into which a very large rock has
been thrown. Ripples are still reaching the edges but the surface
of the water is starting to settle."
Articles 5 and 6
54. We also heard evidence in relation to the
use of Articles 5 (the right to liberty and security of person)
and 6 (the right to a fair trial). The test applied in both of
these cases is that the breach would be 'flagrant' (see Box 4).Box
4: Articles 5 and 6 of the ECHR
Article 5(1) of the ECHR states: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law." The Article goes on to list circumstances under which it may be breached. Article 5 also protects the right to be informed promptly of the reasons for arrest and charge, to be brought promptly before a judge or other authorised judicial officer, to a trial within a reasonable time or to release pending trial, to take proceedings by which the lawfulness of detention shall be decided speedily by a court and release if the detention is not lawful, and to an enforceable right to compensation if not lawfully detained.
Article 6 ECHR protects the right to a fair trial within a reasonable time. In principle, the risk that a trial in the Issuing State will be unfair is capable of being a bar to extradition, as the ECtHR held in Soering: "The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country."
Articles 5 and 6 have been argued in a number of prominent cases (with varying degrees of success). For example, in Shankaran v India the District Judge at first instance was of the view that, but for adequate undertakings, extradition potentially followed by many years' pre-trial detention, would constitute a 'flagrant breach' of the Appellant's rights under Article 5 ECHR.
In VB v Rwanda the Administrative Court ruled that extradition should be refused on Article 6 grounds because there was a real risk of a breach of the right to an independent and impartial tribunal (there were concerns, inter alia, about political influence over the court in Rwanda and the treatment of defence witnessessee Appendix 5).
55. Ben Keith said that, in his experience, arguments
on these grounds were seldom used. In the case of Article 5, he
said that it was "very difficult to show what pre-trial detention
should or should not be in another jurisdiction."
Therefore demonstrating that a Requested Person was likely to
be held not in accordance with the law of the Issuing State was
difficult. Mark Summers QC disagreed. He said that Article
5 was "something that at least does play into my everyday
practice", citing a number of cases as examples.
56. In the case of Article 6, Ben Keith said
that arguments were difficult to make because in the countries
where there was a fear of a flagrant Article 6 breach it was "almost
impossible to fathom how their trial system works for a common
arguments about a country's legal system were therefore difficult
to make, although not impossible, particularly if there was specific
concern that a prosecution was politically motivated:
"You cannot say the whole of the Russian
system or the whole of the Ukrainian system is broken, because
that is too difficult to show, but you can show that those specific
people are unlikely to get a fair trial because of the influence
of the Government or of the FSB or whichever security service
in whichever jurisdiction service it is."
CONSIDERATION BY THE COURTS
57. Some witnesses were concerned that the presumption
in favour of the Issuing State meant that the courts did not allow
sufficient consideration for human rights concerns. Jago Russell
of Fair Trials International referred to the ruling of Mr Justice
Mitting in 2010 that:
"as a matter of principle
conditions in a Convention category 1 state are raised as an obstacle
to extradition, the district judge need not, save in wholly extraordinary
circumstances in which the constitutional order of the requesting
state has been upsetfor example by a military coup or violent
revolutionexamine the question at all."
58. Jago Russell said that such an approach in
which "it was completely beyond the realms of British courts
to examine questions where there is another ECHR state involved"
was "completely inappropriate".
This approach appears no longer to be guiding rule. In 2011, Lord Justice
Toulson noted in a judgment that he felt Mr Justice Mitting
had "put the matter too high".
The Joint Committee on Human Rights welcomed this change in approach
in its 2011 report.
59. The evidence put to us was that the courts
generally did allow human rights concerns to be explored. For
example, Daniel Sternberg said, "Our court process privileges
the argument of human rights over the speedy time limits in which
we are supposed to comply with the framework on the EAW".
Indeed, the time taken by the UK courts and the ECtHR on these
matters was something Amy Jeffress, a former Department of Justice
attaché to the US Embassy in London, pointed out as causing
concern in the US:
"there is a concern about delay in the extradition
process in the United Kingdom. Some cases have taken years
to go through the courts, both in the United Kingdom, and then
in the European Court of Human Rights, when they have been appealed
there. That is the chief criticism that US persons would have
of the arrangements with the United Kingdom."
60. It is right that the human rights bar
is set at a high level. Accusations of human rights breaches are
serious and the courts should be as sure as possible that they
can be substantiated.
61. We are content that the courts' interpretation
of the human rights bar is suitably responsive, where necessary,
to the wide variety of circumstances presented in extradition
cases. This provides a real protection to Requested People without
interfering unduly with the extradition process. The changes in
the application of Article 8 since HH are a welcome confirmation
62. In many cases where the courts find that
there is a real risk of a Requested Person's human rights being
breached, the Issuing State will offer an assurance to the contrary.
For example, a number of cases have found that overcrowding in
Italian prisons is such that a person's Article 3 rights would
be breached if sent there. In the case of Elashmawy v Italy
the Italian authorities provided the following assurance:
"I hereby assure the competent authorities
of the United Kingdom that in the event that ELASHMAWY Mohamed
is surrendered to the European Arrest Warrant issued by the Office
of the Prosecutor General of the Republic attached to the Court
of Appeal in Brescia on 24.10.2013, he will commence and serve
his sentence at the prisons of C.C. Torino or Biella, which are
now not overcrowded, and will not serve his sentence at Busto
Arsizio or Piancenza or any prison that is not compliant with
Article 3 of the ECHR."
63. In some cases assurances will be requested
by the Requested Person's lawyers, in others the CPS, acting on
an Issuing State's behalf, will advise that an assurance is necessary.
The courts may also request that assurances be provided.
64. When considering assurances the courts assess
them against criteria set out by the ECtHR in the case of Othman
(Abu Qatada) v United Kingdom. Although this case was concerned
with the deportation of Abu Qatada to Jordan, its principles are
applicable to extradition law (see Box 5).Box
5: 'Othman criteria'
|In 2012, Omar Othman (otherwise known as Abu Qatada) challenged his deportation to Jordan where he had been convicted in his absence on various terrorism charges. The court found there would be a violation of his Article 6 rights, given the real risk of the admission of evidence obtained by torture at his retrial in Jordan, reflecting the international consensus that the use of evidence obtained through torture made a fair trial impossible. On taking the case to the ECtHR, the Government was able to secure his expulsion with the use of assurances that such evidence would not be admitted.
The ECtHR gave guidance on factors relevant to assessing the quality and weight to be given to assurances, noting it was said that only in rare cases would the general situation in a country mean no weight at all could be given to such assurances:
(1) whether the terms of the assurances have been disclosed to the court;
(2) whether the assurances are specific or are general and vague;
(3) who has given the assurances and whether that person can bind the receiving state;
(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;
(5) whether the assurances concern treatment which is legal or illegal in the receiving state;
(6) whether they have been given by a contracting state to the ECHR;
(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances;
(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring schemes, including providing unfettered access to the applicant's lawyers;
(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(10) whether the applicant has previously been ill-treated by the receiving state; and
(11) whether the reliability of the assurances has been examined by the domestic courts of the rending state.
These criteria confirmed the approach taken by the House of Lords two years previously in the case of MT (Algeria) v SSHD.
65. Assurances have been described as "not
merely normal but indispensable in the operation of English extradition
law". The issue
for some therefore was not whether assurances ought to be part
of the system but how the courts dealt with them.
66. As with the human rights bar, Paul Garlick QC
observed, "the courts have always regarded an assurance by
a requesting state as sufficient unless there is a real reason
to doubt them, like a rebuttable presumption."
Other witnesses considered that despite this presumption, the
courts were "assiduous"
in examining assurances. Daniel Sternberg said that where there
was a real doubt about compliance with human rights the courts
regarded assurances as "necessary but not sufficient",
so that whilst "an assurance in itself is something that
will give confidence to the magistrate or to the High Court
that is not enough. You have to show that the assurance will be
implemented and will be carried out."
Similarly, Mark Summers QC said, "the Othman criteria
are sufficiently robust" and that they were "taken seriously".
67. We have seen an example of assurances which
do not appear to have met the criteria but were accepted. Mariusz
Wolkowicz, a Polish national, was returned to Poland on an EAW
subject to assurances about his medical treatment and prison conditions
(see Appendix 5). The assurance was phrased in general terms about
Polish prison conditions
(though we note that there may have been factors in Mr Wolkowicz's
case that made these generalised assurances adequate).
Mr Wolkowicz told us that the assurances were not honoured
and the conditions in which he was held were not Article 3 compliant.
Indeed, he was released early from prison in order to prevent
his human rights being breached. Mr Wolkowicz was in the
process of taking his case to the ECtHR.
68. There are also examples of assurances being
rejected by the courts for being too general. For example, in
Badre v Italy in which the order to extradite was appealed
on the grounds that there was a real risk of a breach of Article
3, Lord Justice McCombe described the assurance given by
the Italian authorities as "general and not specific".
He therefore concluded that "the District Judge was wrong
to be satisfied by this general letter of assurance".
69. A number of witnesses found the practice
of offsetting human rights concerns worrying. The Criminal Bar
"The use of assurances must be of real concern
International, UN and European intergovernmental institutions
and NGOs have consistently stressed the problems of recourse of
assurances as inherently unreliable and often ineffective".
70. Similarly, Frances Webber, a former barrister,
described assurances as "inherently objectionable" and
coming, as they do, from countries already found to be likely
to breach their human rights obligations.
71. Some witnesses said that, even where the
Othman criteria had been satisfied, assurances could not be relied
upon. Kaim Todner Ltd said, "Cultural norms, practices, and
procedures in countries do not simply change overnight with a
letter from a Government minister in one country assuring a Government
minister in another country that all will be fine."
72. Dr Trapp analysed the issue from an
international law perspective, noting the relevance of states'
obligations to co-operate to bring to an end serious breaches
of peremptory norms; for instance, the prohibition against torture.
"States have actively to co-operate to bring
to an end these types of breaches. It occurs to me that seeking
assurances in respect of individuals from states where torture
is otherwise systemic is contrary to at least the spirit of that
obligation, which is to co-operate to bring to an end the general
practice of torture. While I appreciate that there are concerns
about having extradition law shoulder this burden, at the same
time we do need to think about the way in which we develop domestic
law in a way that is compliant with our international legal obligations."
73. Mark Summers QC argued that it was not
"the function of extradition law to bring about regime change".
Although he recognised the concerns about countries with wider
human rights issues, his view was that the purpose of extradition
law had to be limited to ensuring that "a specific defendant
is returned in accordance with the interests of justice and is
accorded his own particular human rights, which is why we have
assurances; the individual's case-specific assurances."
74. Professor Rodney Morgan, Emeritus Professor of
Criminal Justice at the University Bristol, recognised both points
of view but said the "tacit admission" of poor human
rights that providing assurances involved could add pressure to
countries to improve their record, which could have "the
potential to improve matters more generally."
75. There were also practical concerns about
assurances. Edward Grange and Rebecca Niblock were concerned that
"little thought is given to the practicalities" of assurances.
Ben Keith noted that the ability of the courts to consider the
practicalities was limited:
"How for instance can a Defendant convicted
of a serious crime serving 25 years with an assurance that he
will have 3sqm of cell space be said to have that guaranteed for
25 years? What other factors might change in that time? How might
they be treated by other inmates with less space and poorer conditions?"
76. Jodie Blackstock, the director of Criminal
and EU Justice Policy at JUSTICE, said that requiring a Requested
Person to contest an assurance having already demonstrated that
there was real risk of a human rights breach was unfair:
"they now have to defeat a diplomatic assurance
that is coming from that country as well in circumstances where
it is clear their human rights would be violated but for the assurance.
That is incredibly difficult to defeat".
77. In her view, while demonstrating a human
rights concern involved proving that a prospective breach was
likely to take place, resisting an assurance involved proving
a negative: that the assurance would not be sufficient. She said,
"It becomes incredibly problematic to keep defeating these
levels of evidence".
MONITORING OF ASSURANCES
78. A number of witnesses said that a difficulty
with assurances was that, despite the Othman criteria requiring
them to be capable of verification, "there is no systematic
approach that is taken to assess ongoing compliance"
once a person had been extradited. Paul Garlick QC said it
was "a very lonely existence for a prisoner in a foreign
jurisdiction who is suffering and cannot get the message out."
79. It is therefore unclear how often assurances
are breached. A Lithuanian case was referred to by some witnesses
in which an assurance in relation to prison conditions had not
been honoured. Paul
Garlick QC mentioned a case in Trinidad and Tobago where
prison conditions had been the subject of assurances that were
not complied with.
As noted above, Mr Wolkowicz said that the assurances provided
by the Polish authorities were not honoured.
80. Edward Grange, among others, said that a
system of monitoring was needed "to ensure that the assurances
that are being given can be carried out."
In Anand Doobay's view, the lack of such a system could create
a "vicious circle" in which assurances from a country
could be "given a great deal of weight, despite the fact
that, actually, none of the assurances is being honoured."
81. In evidence, a number of methods of monitoring
were suggested. The Human Rights Implementation Centre at Bristol
University proposed that assurances ought only to be accepted
from countries party to the Optional Protocol to the UN Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (OPCAT). OPCAT requires signatories to "establish
a national preventive mechanism (NPM). This should be an independent
body (or bodies) which have the 'required capabilities and professional
knowledge' to prevent torture including visiting places where
individuals may be deprived of their liberty."
We note that OPCAT signatories include some ECE countries cited
as being of concern.
82. Other witnesses saw an increased role for
the Government. Doctor Paul Arnell, a Reader in Law at Robert
Gordon University, said, "The responsibility to monitor the
implementation of assurances falls to the UK Government."
Similarly, Daniel Sternberg said, "Monitoring of compliance
with assurances ought to be a function of the UK's foreign policy,
given the diplomatic context in which assurances are provided."
83. The Foreign and Commonwealth Office (FCO)
already conducts a limited monitoring function in relation to
British nationals held abroad. This involves consular officials
making a judgment as to prison conditions and the vulnerability
of particular prisoners. Where a concern is raised that a British
national may be at risk the FCO "will always lobby the authorities
for improvements, if given the authority to do so by the individual
who is incarcerated."
The Government's role and responsibility with regard to non-British
nationals was less clearfor example, where a Requested
Person was the national of another EU country
or where a non-British national was extradited to a third country
(i.e. not his or her home state). The Home Secretary agreed that
the question was "more difficult".
84. The Home Secretary told us that the Home
Office was working "with the FCO to see whether there are
any measures that need to be taken to give greater assurance to
This review would include consideration of "The different
categories of British citizen, non-British citizen and dual national".
However, the Home Secretary also noted, "The very nature
of assurances is such that it is difficult to put in place a one-size-fits-all
model that is going to apply in all circumstances."
85. Dr Trapp explained that where an assurance
was breached in relation to a British national, the UK's position
"if we are dealing with a British citizen,
any injury to a British citizen, as a matter of international
law, is an injury to the UK and the UK is entitled to exercise
diplomatic protection on behalf of that citizen."
86. Such diplomatic protection is discretionary:
the Government is not bound to take measures against the Issuing
State. In cases of breaches of assurances in respect of non-British
nationals, the UK's options were limited:
"We cannot diplomatically protect non-citizens,
even those to whom we have granted refugee status. As a matter
of international law, we have no entitlement to do so
extent to which we can engage in countermeasures, for instance,
is incredibly controversial as a matter of international law."
87. James Brokenshire MP, Minister for Immigration
and Security, said there was an incentive for states to honour
assurances as, "There could be consequences of someone simply
ignoring assurances that had been provided".
Nonetheless, a number of witness emphasised the importance of
there being greater "assurance to the assurances", as
once breached there was "no clawback"
or formal cross border remedy to enable the UK to rectify the
88. We accept that assurances are an established
part of the process and we believe the courts take their scrutiny
of assurances seriously. However, assurances are only used
where serious fears of human rights breaches have been demonstrated.
We therefore believe that assurances should always be handled
carefully and subjected to rigorous scrutiny, particularly to
ensure that they are properly and precisely drafted, and comply
fully with the Othman criteria. The importance of ensuring that
they are genuine and effective cannot be overestimated. They must
provide Requested People with real protection from human rights
abuse. No doubt the CPS emphasises this to Issuing States
when discussing assurances.
89. With this in mind, we believe the arrangements
in place for monitoring assurances are flawed. It is clear that
there can be no confidence that assurances are not being breached,
or that they can offer an effective remedy in the event of a breach.
90. The UK has an obligation to avoid foreseeable
risks of human rights breaches. Assurances help the UK to meet
its obligation by addressing those risks demonstrated in court.
However, without an effective monitoring system we cannot know
whether assurances do in fact avoid the risks foreseen by the
courts. Therefore, it is questionable, in our view, whether
the UK can be as certain as it should be that it is meeting its
human rights obligations.
91. The Home Secretary told us that the Home
Office and FCO were reviewing the issue of monitoring. We welcome
the Government's review of the monitoring of assurances as we
are concerned that the current arrangements via consular services
fall well below what is necessary.
92. We urge the Government to complete its
review of the monitoring of assurances as a matter of urgency.
Given the interest both Houses of Parliament have taken in the
UK's extradition law and the importance of this issue, the Government
should present the outcomes of this review to both Houses for
debate. (Recommendation 1)
93. As part of its review, we recommend the
Government make arrangements for the details of assurances to
be collated and published regularly to improve the transparency
of the process, not least so that the international community
and the authorities in a Requested Person's home state can have
greater information about when assurances have been required.
94. The courts should continue always to take
into account evidence which suggests that previous assurances
from an Issuing State have not been honoured. However, the Othman
criteria require assurances only to be theoretically capable of
verification; they ought also to explain how they would be verified
in practice and how any breaches would be remedied. We therefore
recommend that greater consideration be given to including in
assurances details of how they will be monitored. The Government
and CPS should be particularly astute to request such details
when they are seeking assurances. (Recommendation 3)
25 Extradition Act 2003, sections 21(1), 21A(1)(a)
and 87(1) Back
Written evidence from Sheriff Maciver (EXL0064) Back
Written evidence from the Faculty of Advocates (EXL0063) Back
Written evidence from Noelle Quenivet and Richard Edwards (Euro
Rights) (EXL0044). Noelle Quenivet is an Associate Professor at
the Law Department of the University of the West of England, Bristol.
Richard Edwards is a Senior Lecturer in Law at the University
of Exeter. Euro Rights is a blog focusing on the ECHR. Back
Written evidence from Daniel Sternberg (EXL0051) Back
Written evidence from JUSTICE (EXL0073) Back
Q123 (Dr Kimberley Trapp) Back
Soering v United Kingdom (1989) 11 EHRR 439 Back
Harkins and Edwards v United Kingdom (2012) 55 EHRR 19 Back
For example, in Carl Peter Vernon, Gregory Hamilton, Fraser
Heesom v Republic of South Africa ((2014) EWHC 4417 (Admin))
at first instance the defence expert gave evidence that some inmates
preferred to reside in a communal cell, despite widespread overcrowding.
He attributed this fact to reflecting a personal history of not
living alone and as a possible means of acquiring the protection
of other inmates. Nevertheless, the judge ruled that the overcrowding
was such that regardless of the preference of some inmates, the
overcrowding would constitute an Article 3 violation; in Harkins
and Edwards v United Kingdom, the ECtHR noted that failure
of a state to provide a certain level of medical treatment within
its jurisdiction has been held to be an Article 3 breach but similar
violations have not always been demonstrated in extra-territorial
cases; and, in general, a country imposing a longer or harsher
sentence than would be the case in the executing state does not
necessarily constitute an Article 3 breach. Back
See Krolik (and others) v Several Judicial Authorities in Poland
(2013) 1 WLR 490, as summarised by Lord Justice Aikens
in Elashmawy v Italy (2015) EWHC 28 (Admin) Back
Q109 (Paul Garlick QC) Back
Q109 (Daniel Sternberg) Back
Q110(Ben Keith) Back
Q122 (Mark Summers QC) Back
See for example, written evidence from the Office of the Chief
Magistrate (EXL0043) and the Crown Prosecution Service (EXL0054) Back
Q108 (Paul Garlick QC) Back
Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back
HH v Deputy Prosecutor of the Italian Republic, Genoa (2012)
3 WLR 90 Back
Matuszewski v Regional Court in Radom (2014) EWHC 357 (Admin) Back
Q112 (Ben Keith) Back
Written evidence by the Crown Prosecution Service (EXL0054) Back
Q112 (Daniel Sternberg) Back
Q112 (Paul Garlick QC) Back
Written evidence from Liberty (EXL0066) Back
Written evidence by Kaim Todner Solicitors Ltd (EXL0057) Back
Q113 (Daniel Sternberg) Back
Soering v United Kingdom (1989) 11 EHRR 439 at 113 Back
Shankaran v India (2014) EWHC 957 (Admin) Back
Vincent Brown aka Vincent Bajinja, Charles Munyaneza, Emmanuel
Nteziryayo, Celestin Ugirashebuja v The Government of Rwanda,
The Secretary of State for the Home Department (2009) EWHC
770 (Admin) Back
Q113 (Ben Keith) Back
Q131 (Mark Summers QC) Back
Q113 (Ben Keith) Back
Q113 (Ben Keith) Back
R. (on the application of Klimas) v Lithuania (2010) EWHC
2076 (Admin) Back
Q25 (Jago Russell) Back
R. (on the application of Targosinski) v Judicial Authority
of Poland (2011) EWHC 312 (Admin) Back
Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy
(15th Report, Session 2010-12, HL Paper 156) Back
Q106 (Daniel Sternberg) Back
Elashmawy v Prosecutor General of the Republic of Italy
(2014) EWHC 322 (Admin) Back
Othman (Abu Qatada) v United Kingdom (8139/09) (2012) 55 EHCR 1 Back
MT(Algeria) v SSHD (2010) 2 AC at 22 Back
Ravi Shankaran v The Government of the State of India, The Secretary
of State for the Home Department
(2014) EWHC 957 (Admin) Back
Q115 (Paul Garlick QC) Back
Written evidence from the Crown Prosecution Service (EXL0054) Back
Q115 (Daniel Sternberg) Back
Q128 (Mark Summers QC) Back
Written evidence from William Bergstrom (EXL0093) Back
Mr Wolkowicz appealed the order to extradite. In the course
of its ruling, the High Court noted that the District Judge had
been "satisfied with the observations of the Polish Judicial
Authority that there was no evidence that any penal institution
had failed to provide proper medical care for Wolkowicz."
(Polish Judicial Authority v Mariusz Wolkowicz (alias Del Ponti)
(2013) EWHC 102 (Admin) at 29) Back
Hayle Abdi Badre v Court of Florence, Italy (2014) EWHC
614 (Admin) Back
Written evidence from the Criminal Bar Association (EXL0055) Back
Written evidence from Frances Webber (EXL0033) Back
Written evidence from Kaim Todner Solicitors Ltd (EXL0057) Back
Q129 (Dr Kimberley Trapp) Back
Q129 (Mark Summers QC) Back
Q129 (Professor Rodney Morgan) Back
Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back
Written evidence from Ben Keith (EXL0077) Back
Q187 (Jodie Blackstock) Back
Q116 (Paul Garlick QC) Back
See, for example, Q128 (Mark Summers QC) and Q187
(Michael Evans). Back
Q103 (Edward Grange) Back
Q16 (Anand Doobay) Back
Written evidence from the Human Rights Implementation Centre,
Bristol University (EXL0031) Back
Written evidence from Dr Paul Arnell (EXL0016) Back
Written evidence from Daniel Sternberg (EXL0051) Back
Written evidence from the FCO (EXL0082) Back
In which case he or she may ask for support from the UK under
the EU Charter of Fundamental Rights. Back
Q200 (Rt Hon. Theresa May MP, Home Secretary) Back
101 Q199 Back
Q136 (Dr Kimberley Trapp) Back