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


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.[25] 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".[26]

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 cases.

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."[27] 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".[28]

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 standards."[29]

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 be "harsh".[30]

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.[31]

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).

Article 3

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"[32] 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;[33] what amounts to inhuman or degrading treatment depends on all the circumstances of each case;[34] 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:[35]

·  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".[36]

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".[37] 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."[38]

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."[39] 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.[40] 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."[41]

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".[42]

Article 8

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[43] (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"[44]

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 relative".[45] He 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'."[46]

48.  The Crown Prosecution Service (CPS) made similar points:

    "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".[47]

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."[48]

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."[49] 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 to extradition".[50]

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 8 rights.[51]

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[52] (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."[53]

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."[54]

Articles 5 and 6 have been argued in a number of prominent cases (with varying degrees of success). For example, in Shankaran v India[55] 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[56] 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 witnesses—see 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."[57] 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.[58]

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 lawyer."[59] Generalised 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."[60]

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 … when prison 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 upset—for example by a military coup or violent revolution—examine the question at all."[61]

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".[62] 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".[63] The Joint Committee on Human Rights welcomed this change in approach in its 2011 report.[64]

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".[65] 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."[66]

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 of this.

Assurances

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."[67]

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.[68] 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.[69]

65.  Assurances have been described as "not merely normal but indispensable in the operation of English extradition law".[70] 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."[71] Other witnesses considered that despite this presumption, the courts were "assiduous"[72] 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."[73] Similarly, Mark Summers QC said, "the Othman criteria are sufficiently robust" and that they were "taken seriously".[74]

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[75] (though we note that there may have been factors in Mr Wolkowicz's case that made these generalised assurances adequate).[76] Mr Wolkowicz told us that the assurances were not honoured and the conditions in which he was held were not Article 3 compliant.[77] 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".[78]

69.  A number of witnesses found the practice of offsetting human rights concerns worrying. The Criminal Bar Association said:

    "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".[79]

70.  Similarly, Frances Webber, a former barrister, described assurances as "inherently objectionable" and "inherently unreliable"[80] 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."[81]

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. She observed:

    "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."[82]

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."[83]

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."[84]

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.[85] 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?"[86]

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".[87]

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".[88]

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"[89] 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."[90]

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.[91] Paul Garlick QC mentioned a case in Trinidad and Tobago where prison conditions had been the subject of assurances that were not complied with.[92] 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."[93] 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."[94]

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."[95] 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."[96] 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."[97]

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."[98] The Government's role and responsibility with regard to non-British nationals was less clear—for example, where a Requested Person was the national of another EU country[99] 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".[100]

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 the assurances."[101] This review would include consideration of "The different categories of British citizen, non-British citizen and dual national".[102] 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."[103]

85.  Dr Trapp explained that where an assurance was breached in relation to a British national, the UK's position was clear:

    "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."[104]

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 … The extent to which we can engage in countermeasures, for instance, is incredibly controversial as a matter of international law."[105]

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".[106] Nonetheless, a number of witness emphasised the importance of there being greater "assurance to the assurances", as once breached there was "no clawback"[107] or formal cross border remedy to enable the UK to rectify the situation.[108]

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. (Recommendation 2)

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

26   Written evidence from Sheriff Maciver (EXL0064) Back

27   Written evidence from the Faculty of Advocates (EXL0063) Back

28   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

29   Written evidence from Daniel Sternberg (EXL0051) Back

30   Written evidence from JUSTICE (EXL0073) Back

31    Q123 (Dr Kimberley Trapp) Back

32   Soering v United Kingdom (1989) 11 EHRR 439 Back

33   Harkins and Edwards v United Kingdom (2012) 55 EHRR 19 Back

34   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

35   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

36    Q109 (Paul Garlick QC) Back

37    Q109 (Daniel Sternberg) Back

38     Q110(Ben Keith) Back

39    Q122 (Mark Summers QC) Back

40   See for example, written evidence from the Office of the Chief Magistrate (EXL0043) and the Crown Prosecution Service (EXL0054) Back

41    Q108 (Paul Garlick QC) Back

42   Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back

43   HH v Deputy Prosecutor of the Italian Republic, Genoa (2012) 3 WLR 90 Back

44   Matuszewski v Regional Court in Radom (2014) EWHC 357 (Admin) Back

45    Q112 (Ben Keith) Back

46   Ibid. Back

47   Written evidence by the Crown Prosecution Service (EXL0054) Back

48    Q112 (Daniel Sternberg) Back

49    Q112 (Paul Garlick QC) Back

50   Written evidence from Liberty (EXL0066) Back

51   Written evidence by Kaim Todner Solicitors Ltd (EXL0057) Back

52    Q99 Back

53    Q113 (Daniel Sternberg) Back

54   Soering v United Kingdom (1989) 11 EHRR 439 at 113 Back

55   Shankaran v India (2014) EWHC 957 (Admin) Back

56   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

57    Q113 (Ben Keith) Back

58    Q131 (Mark Summers QC) Back

59    Q113 (Ben Keith) Back

60    Q113 (Ben Keith) Back

61   R. (on the application of Klimas) v Lithuania (2010) EWHC 2076 (Admin) Back

62    Q25 (Jago Russell) Back

63   R. (on the application of Targosinski) v Judicial Authority of Poland (2011) EWHC 312 (Admin) Back

64   Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy (15th Report, Session 2010-12, HL Paper 156) Back

65    Q106 (Daniel Sternberg) Back

66    Q67 Back

67   Elashmawy v Prosecutor General of the Republic of Italy (2014) EWHC 322 (Admin) Back

68   Othman (Abu Qatada) v United Kingdom (8139/09) (2012) 55 EHCR 1 Back

69   MT(Algeria) v SSHD (2010) 2 AC at 22 Back

70   Ravi Shankaran v The Government of the State of India, The Secretary of State for the Home Department (2014) EWHC 957 (Admin) Back

71    Q115 (Paul Garlick QC) Back

72   Written evidence from the Crown Prosecution Service (EXL0054) Back

73    Q115 (Daniel Sternberg) Back

74    Q128 (Mark Summers QC) Back

75   Written evidence from William Bergstrom (EXL0093) Back

76   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

77    Q260 Back

78   Hayle Abdi Badre v Court of Florence, Italy (2014) EWHC 614 (Admin) Back

79   Written evidence from the Criminal Bar Association (EXL0055) Back

80   Written evidence from Frances Webber (EXL0033) Back

81   Written evidence from Kaim Todner Solicitors Ltd (EXL0057) Back

82    Q129 (Dr Kimberley Trapp) Back

83    Q129 (Mark Summers QC) Back

84    Q129 (Professor Rodney Morgan)  Back

85   Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back

86   Written evidence from Ben Keith (EXL0077) Back

87    Q187 (Jodie Blackstock) Back

88   Ibid. Back

89    Q43 Back

90    Q116 (Paul Garlick QC) Back

91   See, for example,  Q128 (Mark Summers QC) and  Q187 (Michael Evans). Back

92    Q114 Back

93    Q103 (Edward Grange) Back

94    Q16 (Anand Doobay) Back

95   Written evidence from the Human Rights Implementation Centre, Bristol University (EXL0031) Back

96   Written evidence from Dr Paul Arnell (EXL0016) Back

97   Written evidence from Daniel Sternberg (EXL0051) Back

98   Written evidence from the FCO (EXL0082) Back

99   In which case he or she may ask for support from the UK under the EU Charter of Fundamental Rights. Back

100    Q200 (Rt Hon. Theresa May MP, Home Secretary) Back

101    Q199 Back

102    Q202 Back

103    Q199 Back

104    Q136 (Dr Kimberley Trapp) Back

105   Ibid. Back

106    Q43 Back

107    Q88 Back

108    Q43 Back


 
previous page contents next page


© Parliamentary copyright 2015