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


CHAPTER 3: PROPORTIONALITY


Introduction

95.  The proportionality bar was introduced to address concerns over the disproportionate use of EAWs by some Member States.

96.  The Framework Decision permits the use of an EAW in accusation cases where a person is wanted to stand trial providing the offence in question carries a maximum penalty of at least three years' imprisonment in the Issuing State, or 12 months if the offence is also a crime in the Executing State. In conviction cases where the person has already been found guilty and sentenced, the EAW may be used if the custodial sentence to be served is four months or more.

97.  The thresholds stipulated in the Framework Decision have not always been effective in preventing disproportionate requests. There is no restriction on the use of EAWs for offences which satisfy the sentencing requirements but are relatively minor cases of their type.

98.  The EU's EAW handbook[109] says that an issuing Member State should perform a proportionality test, although this test is not a mandatory requirement of the Framework Decision. In some Member States, the requirement that a prosecution satisfies a public interest test acts as a de facto proportionality test prior to an EAW being issued. In other Member States, there is no prosecutorial discretion, instead the principle of legality means that prosecutors are obliged to use all legal means, the EAW included, to bring an individual to justice.

99.  Although much more detailed analysis of the statistics would be needed to draw statistically sound conclusions about the operation of the EAW, the number of requests received by the UK at least provides an indication of the problem (see Table 1).

Table 1: EAWs received by England, Wales and Northern Ireland
Year Number of requests
2006-073,515
2007-082,483
2008-093,526
2009-103,870
2010-115,770
2011-125,641
2012-136,263
2013-147,881

Source: NCA statistics http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics

100.  The use of the EAW system to request the return of individuals for seemingly trivial matters was the principal issue with the EAW identified by the Baker Review which said, "apart from the problem of proportionality, we believe that the European Arrest Warrant scheme has worked reasonably well."[110]

101.  In its response to the Baker Review the Government said it would "take the opportunity of the 2014 Justice and Home Affairs (JHA) opt-out decision to work with the European Commission, and with other Member States, to reform the European Arrest Warrant so that it provides the protections that our citizens demand."[111]

102.  The Home Secretary told us it became apparent in the course of these discussions that, "while others had similar concerns in some areas … for example on proportionality—there was no appetite for opening up the whole directive."[112] The Government therefore decided to bring forward domestic legislation to introduce a proportionality bar for EAW cases.

Amendments to the 2003 Act

103.  A proportionality bar was introduced as section 21A of the 2003 Act by the Anti-social Behaviour, Crime and Policing Act 2014.[113] It was brought into force on 21 July 2014. It applies to EAW accusation cases only, and limits the factors the judge is empowered to take into account in deciding proportionality, namely:

·  the seriousness of the conduct alleged to constitute the extradition offence;

·  the likely penalty that would be imposed if the Requested Person was found guilty of the extradition offence; and

·  the possibility of the relevant foreign authorities taking measures that would be less coercive than extradition.

104.  Under section 2 of the 2003 Act, the designated certifying authority[114] must be satisfied that a request is properly made out and accompanied by the necessary information. In addition to this, a proportionality check was also introduced into the 2003 Act by the Anti-social Behaviour, Crime and Policing Act 2014. The designated certifying authority must now also "ensure that the most obviously disproportionate cases are filtered out at the very beginning of the process."[115] The amended 2003 Act stipulates that the designated UK authority should not certify an EAW if it was clear:

    "that a judge proceeding under 21A would be required to order the person's discharge on the basis that the extradition would be disproportionate. In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection"[116]

Proportionality check

105.  A number of witnesses told us the proportionality check could serve to lessen the burden on courts and the impact to the individual. Nick Vamos, Head of Extradition at the Crown Prosecution Service, said:

    "If somebody is discharged at court on the basis of proportionality, they have already been arrested; they have been detained in custody; they have been taken to court. Cost resource has been used. That person's human rights have already been interfered with, one might say. It is much better if those cases can be filtered out by the NCA."[117]

106.  One witness said that the extent to which the proportionality check would filter out minor cases would be contingent on how effectively the test was conducted. Edward Grange reported that the courts were still receiving EAWs that although certified as satisfying section 2 of the Act, lacked basic information. He therefore hoped, "the proportionality bar, in bringing in this filtering process on certification, will be effective and active."[118]

107.  The CPS stated, "The success of the proportionality bar will depend almost entirely on how the NCA and the courts apply the respective tests set down for them in the amended legislation."[119]

108.  The Government said that between 21 July 2014 and 5 September 2014, the NCA had refused certification of 14 EAWs. It is not known what proportion of the total number of EAWs for this period this represents. The Government estimated that "savings in excess of £180,000 are likely to have been made to the public purse."[120]

Criticisms of the proportionality bar

TOO PRESCRIPTIVE

109.  The proportionality bar was criticised for being too prescriptively drafted, restricting the courts to specified matters.[121] This led the Criminal Bar Association to question its effectiveness:

    "There is likely to be very little impact of the proportionality bar because it is worded in a way that prevents an overall merits based assessment and so requires a higher threshold than Article 8 of the ECHR meaning that it is unlikely to have any significant impact."[122]

110.  The Lord Chief Justice has issued practice guidance to the Courts on the interpretation of the specified matters.[123] Rebecca Niblock argued that this had been drafted in such a way as to mean that very few cases would be considered disproportionate. She said, "the exceptional circumstances set out [in the guidance] are, with respect, not all that exceptional".[124]

ADDITIONAL LITIGATION

111.  Changes to statute are tested in the courts. Judge Riddle thought that since 2003 extradition law had been tested in the Supreme Court (and the House of Lords before that) more than any other branch of law. Judge Riddle said:

    "I rejoice in this—I think it is a good thing—I predict that any change will be challenged right the way through. Those challenges, it is not often appreciated, bring the work of the first instance courts potentially to a halt."[125]

112.  It was suggested that the proportionality bar would be an additional avenue for litigation. Sheriff Maciver of the Edinburgh Sheriff Court thought the introduction of the bar would have a very significant effect on the workload of the courts:

    "At present section 21 (Human Rights) is argued in virtually every extradition case that goes to a full hearing and that argument is likely now to be joined by a proportionality argument in every case."[126]

RESTRICTION TO ACCUSATION CASES

113.  The restriction of the proportionality bar to accusation cases was criticised by a number of witnesses. Jago Russell questioned what impact the bar would have as "most of these cases are suspended sentences that are reinvigorated after somebody leaves the country."[127] It was suggested that many conviction cases were also clearly disproportionate and therefore the bar ought to be extended to them. Edward Grange and Rebecca Niblock gave an example:

    "a man convicted of drunk cycling in Poland received a sentence of 12 months' imprisonment. This is not an imprisonable offence in the UK. Under the new law, this man would still be extradited, given that the proportionality bar applies only to accusation cases."[128]

APPLICABILITY TO PART 2 CASES

114.  Another criticism of the proportionality bar was that it applied only to Part 1 (EAW) cases. Some said that the more complicated process that Part 2 countries must follow meant they were unlikely to bring trivial and disproportionate claims. A proportionality bar for Part 2 countries was unnecessary and it would therefore be a "solution to a problem that does not exist."[129] Again, the numbers of requests received by the UK from Part 2 countries, being so much lower than those for EAW requests, might be an indication of this point (see Table 2).

Table 2: Number of requests made by Part 2 countries
Year Number of requests
2009-1080
2010-11102
2011-1270
2012-1384

Source: Written submission from the Home Office (EXL0001)

115.  Others said the bar ought to be introduced to guard against the possibility of trivial requests. Whilst fewer extradition requests were received from Part 2 countries, this did not "justify fewer protections for those requested under Part 2."[130] Edward Grange and Rebecca Niblock thought that it was, "inappropriate and illogical to limit the bar to Part 1 cases, particularly given that requested persons are likely to be sent further away from the UK if extradition is granted in Part 2 cases."[131]

ARTICLE 8 CONSIDERATIONS

116.  Prior to the introduction of the bar, proportionality arguments were made under Article 8 of the ECHR. Some witnesses said that the new bar would add nothing to what could already be achieved under the human rights bar. Edward Grange and Rebecca Niblock said that it "appears to echo what is already considered as part of the proportionality exercise in Article 8 ECHR cases."

117.  The Office of the Chief Magistrate thought that at present it was unclear whether the bar would "simply elongate the process or simplify matters." However, Sheriff Maciver was critical of its introduction:

    "In Scotland we have been trying to take a pragmatic approach in relation to old and trivial cases, and particularly in relation to our interpretation of proportionality in the area of delay and oppression under section 11, but the new section brought in by the 2014 Anti-social Behaviour, Crime and Policing Act is decidedly unwelcome."[132]

118.  One witness thought that the interpretation of the Article 8 bar might evolve again for Part 1 cases in the light of the new bar.[133] Another witness said that the issues at stake were important enough to merit two pegs on which to hang proportionality arguments. Michael Evans, a solicitor at Kaim Todner Ltd, said that Article 8 arguments should come "at the very end" of a judge's "consideration of every other bar to extradition", including the proportionality bar. If a case did not "succeed on that, you will move on to Article 8". In his view Article 8 would still be used but "the proportionality bar is a codification of some of the Article 8 considerations that are already made."[134]

119.  Nick Vamos said that the new bar would simplify proportionality arguments as they would no longer need to be crafted to suit the needs of Article 8:

    "Under the proportionality bar, the requested person does not have to have any right to private or family life in the UK under Article 8 for their extradition to be barred by reason of proportionality."[135]

Proportionality and the Issuing State

120.  Some witnesses said that a proportionality test should be undertaken by the Issuing State. The Office of the Chief Magistrate stated that in many cases, "there needs to be a requirement of proportionality and the consideration of other alternatives."[136] Anand Doobay agreed there was a need for the Issuing State to consider proportionality, but cautioned that passage of time and changing circumstances meant there would still be the need for "assessment again in the executing Member State."[137]

121.  The EU's handbook on the EAW recommends that the Issuing State perform a proportionality check. However some witnesses thought this proportionality check should be a "binding requirement."[138] Baroness Ludford, a former MEP and rapporteur on the EAW for the European Parliament's Civil Liberties, Justice and Home Affairs Committee, said, "the European Parliament still thinks that you should have enshrined in EU law this necessary proportionality check in the issuing state, as you now have in a European Investigation Order."[139]

122.  A number of witnesses cited Poland as issuing "a disproportionately large number of extradition requests for minor matters."[140] Figures show that Poland has issued the most EAWs to the UK (see Table 3). Sheriff Maciver said:

    "around 90% of the cases seen in Scotland are Polish, it is disappointing to see that quite a high percentage of these cases are in respect of relatively short sentences, or relatively trivial alleged crimes. There is no similarity between the level of gravity in cases in respect of which Scotland seeks extradition and the level of gravity at which other countries request extradition from Scotland."[141]
Table 3: EAW requests received by England, Wales and Northern Ireland (10 highest issuing states)
Country 2009-10 2010-11 2011-12 2012-13 2013-14 Total
Poland2,238 1,8711,455 1,6641,824 9,052
Germany231 772737 6721,087 3,499
Romania193 561567 6801,015 3,016
Belgium88 293358 376476 1,591
Spain161 254318 408351 1,492
France102 186319 422372 1,401
Netherlands107 316340 268204 1,235
Italy98 209226 332314 1,179
Hungary67 270195 201387 1,120
Czech Republic119 267203 182229 1,000

Source: NCA statistics http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics

123.  The Polish Ministry of Justice told us that the high number of EAWs issued by Poland was a result of the principle of legality (which requires prosecutors to use all legal means to bring an individual to justice rather than having the discretion the principle of the public interest allows) and the fact that "a number of Polish nationals choose the United Kingdom as their destination taking advantage of the free movement of persons." The Polish Criminal Procedure Code will, from July 2015, exempt EAWs from the principle of legality thereby allowing Polish prosecutors more discretion than currently. The Ministry thought the issue of proportionality to be overstated. It noted that even prior to the Criminal Procedural Code being amended, measures such as the dissemination of the EAW handbook and training for judges and prosecutors meant that between 2009 and 2013 the number of EAWs issued by Poland fell by approximately 40%.[142] As a result, the Polish Ministry of Justice was "confident that the issue of proportionality has been successfully resolved."[143]

Compliance with EU legislation

124.  There was concern as to the consequences of the UK enacting a proportionality bar in domestic legislation. The Law Society said that unilateral action risked "inconsistent approaches."[144] Other witnesses questioned the compatibility of the bar with European law. Professor John Spencer, Professor Emeritus of Law at the University of Cambridge, said, "I foresee that it could eventually result in the European Court of Justice in Luxemburg having to make a ruling on the matter."[145] Whilst acknowledging that the question of compliance was an issue, Anand Doobay said that if European legislation was not forthcoming, it was "understandable that individual Member States are having to take action to try to deal with it themselves."[146]

125.  The Home Secretary told us that it was unrealistic to expect the Commission to give "blanket guarantees" that the UK would not be subject to infraction proceedings. However, she said:

    "this is not something where the United Kingdom is out on a limb. These are areas where other Member States have, through various means, applied similar arrangements within their own domestic decision-making processes as well."[147]

126.  In principle, it is for the Issuing State to take a view of the seriousness of a crime in its territory. The UK's role is to ensure the human rights of the people it extradites are properly protected. That said, the operation of the EAW, in particular the absence of an effective proportionality check by the Issuing State, means the Government was right to introduce the proportionality bar into domestic legislation.

127.  We see no reason why the proportionality bar should not be extended to conviction cases given the number of EAWs received for trivial matters; the Government should therefore legislate accordingly. In order for the bar to be effective the NCA must be resourced accordingly and we also call on the Government to ensure that adequate resources are in place. (Recommendation 4)

128.  We hope that over time improved practice will develop throughout the EU making the proportionality bar practically redundant.

129.  We do not believe there to be a similar systemic risk of disproportionate requests to justify a proportionality bar for Part 2 countries.


109   Revised version of the European Handbook on how to issue a European Arrest Warrant, 17 December 2010: http://register.consilium.europa.eu/doc/srv?l=en&f=ST%2017195%202010%20REV%201 [accessed 4 March 2015] Back

110   The Baker Review, p 317 Back

111   The Government response to the Baker Review, p 3 Back

112    Q194 Back

113   Extradition Act 2003, section 21A as inserted by the Anti-social Behaviour, Crime and Policing Act 2014, section 157(2) Back

114   In England, Wales and Northern Ireland the designated certifying authority is the National Crime Agency (NCA); in Scotland, it is the Crown Office and Procurator Fiscal Service. Back

115   Written evidence from the Home Office (EXL0060) Back

116   Extradition Act 2003, section 7A Back

117    Q85 Back

118    Q99 Back

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

120   Written evidence from the Home Office (EXL0060) Back

121   See for example  Q6 (Sir Scott Baker). Back

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

123   Consolidated Criminal Practice Directions (2014) EWCA Crim 1569, 23 July 2014, paragraphs 17A.2-5: http://www.judiciary.gov.uk/wp-content/uploads/2014/07/new-CPDs-consolidated-with-amendment-no_2-july-2014.pdf [accessed 3 March 2015] Back

124    Q98 (Rebecca Niblock) Back

125    Q142 Back

126   Written evidence received from Sheriff Maciver (EXL0064) Back

127    Q30 (Jago Russell) Back

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

129    Q85 Back

130   Written evidence from Liberty (EXL0066) Back

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

132   Written evidence from Sheriff Maciver (EXL0064) Back

133    Q99 Back

134    Q185 (Michael Evans) Back

135    Q85 Back

136   Written evidence from the Office of the Chief Magistrate (EXL0043); see also  Q6 (Anand Doobay) Back

137    Q7 (Anand Doobay); see also  Q26 (Jago Russell). Back

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

139    Q170 (Baroness Ludford) Back

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

141   Written evidence from Sheriff Maciver (EXL0064) Back

142   Written evidence from the Polish Ministry of Justice (EXL0084) stated, "the number of EAWs issued by Poland dropped from 4844 per year (2009) to 2972 per year (2013). This represents a reduction of about 40%." Back

143   Written evidence from the Polish Ministry of Justice (EXL0084) Back

144   Written evidence from the Law Society (EXL0046) Back

145    Q29 (Professor John Spencer); see also  Q155 . Back

146    Q7 (Anand Doobay) Back

147    Q197 Back


 
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