CHAPTER 4: FORUM |
Forum: an overview
130. Forum is the term used to describe the country
in which a prosecution takes place. It arises as an issue in extradition
law where the nature of a crime means that it could potentially
be prosecuted in more than one country.
131. Questions around forum have become increasingly
controversial as the nature of some crimes has changed. Traditional
concepts of extradition involved seeking to return a fugitive
to the country in which he or she had committed a crime. In cases
such as murder or theft the question of forum is clear: the fugitive
should be returned to stand trial in the country in which the
murder or theft occurred. In the modern era crimes involving fraud
on global markets or committed online, for example, raise more
difficult questions of forum. Sir Scott Baker told us, "Often
crimes are committed in not one, two or three countries but a
whole variety of different countries by different individuals
playing different parts, moving around in different places or
simply staying behind a computer in one country not moving at
132. These kinds of cases are increasing. Sue
Patten, Head of Specialist Fraud Division at the CPS, said, "My
colleagues specialising in organised crime
about 70% of their case load involves conduct in multiple jurisdictions".
Rebecca Niblock said that her perception was that "there
are a number of cases involving cross-jurisdictional elements
and that these are on the rise."
Prosecutors' decisions in concurrent
133. The first point at which questions of forum
are considered is during discussions between prosecutors from
the Issuing State and the UK. When an Issuing State is considering
making an extradition request to the UK its prosecuting authorities
will consult the UK authorities. If an investigation has also
been ongoing in the UK, the authorities will discuss which country
would provide the most suitable forum for the prosecution. Such
discussions are based on guidelines provided by the Director of
Public Prosecutions (DPP).
The guidelines include principles to be applied (see Box 6).Box
6: DPP's guidelines for concurrent cases: principles to be applied
|The DPP's guidelines are as follows:
1. "So long as appropriate charges can properly be brought which reflect the seriousness and extent of the offending supported by admissible evidence, a prosecution should ordinarily be brought in the jurisdiction where most of the criminality or most of the loss or harm occurred.
2. Where potentially relevant material may be held in another jurisdiction, the prospects of the material being identified and provided to prosecutors in England and Wales for review in accordance with disclosure obligations in this jurisdiction will be an important consideration in deciding whether appropriate charges can properly be brought in England and Wales.
3. Provided it is practicable to do so and consistent with principles 1) and 2) above, where crime is committed in more than one jurisdiction, all relevant prosecutions should take place in one jurisdiction.
4. Other factors relevant to any determination by CPS prosecutors as to where a prosecution should take place include:
(a) the location of the witnesses, their ability to give evidence in another jurisdiction and where appropriate, their right to be protected;
(b) the location of the accused and his or her connections with the United Kingdom;
(c) the location of any co-defendants and/or other suspects; and
(d) the availability or otherwise of extradition or transfer proceedings and the prospect of such proceedings succeeding.
5. Where all other factors are finely balanced, any delay introduced by proceeding in one jurisdiction rather than another and the cost and resources of prosecuting in one jurisdiction rather than another may be relevant.
6. Although the relative sentencing powers and/or powers to recover the proceeds of crime should not be a primary factor in determining where a case should be prosecuted, CPS prosecutors should always ensure that there are available potential sentences and powers of recovery to reflect the seriousness and extent of the offending supported by the evidence."
134. These guidelines were criticised as not
being adequately clear in cases like those described by Sir Scott
Baker. Anand Doobay said:
"each of the factors is very sensible to
take into account, but they often point in opposite directions.
For example, the first and main factor is that you should bring
the prosecution where most of the criminality occurred or most
of the loss or harm occurred. What if those are two completely
different countries? What if you sat in the UK and carried out
all of your acts in the UK, but, in fact, the harm you caused
was entirely in France? The problem with the list is not that
the list is not sensible; it is how you apply it to the facts
of a given case where each of the factors may point in a different
direction or each of the factors may require you to spend more
money to bring the prosecution. How do you reconcile these things
when you are making your overall decision?"
135. Because of this apparent lack of clarity,
Edward Grange and Rebecca Niblock spoke about there being "cases
in which directly contradictory decisions were made by the CPS".
A number of high profile cases in recent years have involved these
questions of criminality and loss or harm occurring in different
jurisdictions (see, for example, the cases of McKinnon,
the NatWest 3 and O'Dwyer in Appendix 5).
136. The evidence from the CPS was that they
applied the guidelines consistently but that each case had to
be considered on its own facts, and this would lead to different
outcomes. Nick Vamos said:
"In the case that Sue [Patten] was referring
to, extradition was requested to the US. There, it was detected
in the US, most of the evidence was in the US, co-defendants were
in the US, but there is somebody who happens to be here who is
a prime player in that conspiracy to manufacture and distribute
these images. Nevertheless, the preponderance of the factors that
determine current jurisdiction point towards the US. There was
another case a few years ago where, in a reverse situation, there
was not an extradition because the person was here in the UK,
so we did not need to extradite anybody from the US. However,
in that case the CPS prosecuted and the US was providing support,
assistance, evidence, witnesses, but we led the prosecution. It
really depends on the facts of the specific case: where it was
detected, and all the other factors."
137. The discussions between prosecutors were
also criticised because they took place behind closed doors. Rebecca
Niblock said, "It is difficult for us to find out the reasons
for the decision in order to analyse them and test them and, in
appropriate circumstances, invite a review".
Sue Patten said that where there were "considerations of
concurrent jurisdiction with another country, where this results
in an extradition request and an application for the extradition
of an individual who has been the subject of such a decision,
we provide the defence with a copy of our decision on concurrent
138. In our view, the CPS's criterion of "where
most of the criminality or most of the loss or harm occurred"
is likely to continue to produce unpredictable outcomes. This
is unavoidable. Cases are fact-specific and balances must
be struck where both parties have competing claims. This is particularly
true in the modern era where traditional concepts of crime and
jurisdiction are increasingly out-dated. The current formulation
provides the necessary discretion to the prosecutors to reach
139. It is inevitable that prosecutors' decisions
will be criticised from time to time. Further commentary on
the prosecutors' guidelines for cases of concurrent jurisdiction
and their implementation may help to avoid ill-founded criticism.
Similarly, providing complete and full information to Requested
People about the rationale behind the decision to seek extradition
in cases of concurrent jurisdiction may be helpful. We recommend
the Government consider what additional information could be provided
and issue the necessary guidance to the CPS. (Recommendation 5)
140. Critics of the way in which prosecutors
reach their decisions have long argued in favour of a bar to extradition
on grounds of forum. Liberty wrote:
"The absence of a forum bar has led to a
number of cases of clear injustice over the past decade
Decisions on forum in so-called cross-border
cases are currently made by the two respective prosecuting agencies
in negotiations behind closed doors. In the string of cases highlighted
above, as well the high profile case of Gary McKinnon, UK prosecutions
have not been pursued against the requested persons. This despite
all the alleged activity taking place in the UK."
141. With reference to concurrent cases involving
the US, Isabella Sankey, Director of Policy at Liberty, concluded,
"We think the way to fix this is by having an effective forum
bar on the statute book that would make US prosecutors prove why,
in concurrent-jurisdiction cases, prosecution should take place
in the US, rather than in the UK."
Liberty were in favour of a forum bar like that provided for in
the EAW legislation (see Box 7).Box
7: Forum bar under the EAW
|The Framework Decision establishing the EAW included provisions to bar extradition on grounds of forum. Article 4(7)(a) states:
"The executing judicial authority may refuse to execute the
European Arrest Warrant:
(7) where the European Arrest Warrant relates to offences which:
(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such;"
This Article is drafted in permissive terms so Member States need not implement it, though some have. For example, the French Penal Code implements this provision and therefore allows extradition to be barred if all or some of the relevant offences were committed in French territory.
142. A forum bar was included in the Police and
Justice Act 2006 but was never brought into force. The formulation
in that Act barred extradition on grounds of forum if:
"(a) a significant part of the conduct alleged
to constitute the extradition offence is conduct in the United
(b) in view of that and all the other circumstances,
it would not be in the interests of justice for the person to
be tried for the offence in the requesting territory."
143. As noted above, the question of whether
to introduce a forum bar was one of the questions the Home Secretary
posed for Sir Scott Baker's review. The review concluded,
"the forum bar provisions should not be implemented. Whilst
a small number of high profile cases have highlighted the issue
of forum, we have no evidence that any injustice is being caused
by the present arrangements."
144. Despite this recommendation, a forum bar
was introduced into the 2003 Act by the Crime and Courts Act 2013.
It was brought into force in England, Wales and Northern Ireland
(but not Scotland) in October 2013. This forum bar is worded quite
differently to the 2006 version. It provides that extradition
may be barred on grounds of forum if a substantial measure of
the criminal activity took place in the UK and the judge decides,
"having regard to the specified matters relating to the interests
of justice (and only those matters), that the extradition should
not take place."
The provisions go on to spell out the "specified matters",
(a) the place where most of the loss or harm
resulting from the extradition offence occurred or was intended
(b) the interests of any victims of the extradition
(c) any belief of a prosecutor that the UK is
not the most appropriate jurisdiction in which to pursue the prosecution;
(d) whether the evidence necessary to prove the
offence is or could be made available in the UK, were the prosecution
to take place here;
(e) any delay that might result from proceeding
in one jurisdiction rather than another;
(f) the desirability and practicability of all
prosecutions relating to the extradition offence taking place
in one jurisdiction, having regard to:
(i) the jurisdictions in which witnesses, co-defendants
and other suspects are located, and
(ii) the practicability of the evidence of such
persons being given in the UK or in jurisdictions outside the
(g) the Requested Person's connections with the
145. The bar now in force also differs from the
version included in the Police and Justice Act 2006 in that it
includes provisions for the UK prosecuting authorities to veto
consideration of forum by the court by producing a certificate
to the effect that they would not prosecute in the UK, even if
most of the criminal action took place in this country. A prosecutor's
certificate may only be questioned on appeal. Consideration to
grant leave to appeal a prosecutor's certificate must follow the
procedures and principles that apply to judicial review.
146. The Government's position was that because
it was "important that the public have confidence in the
way in which the UK's extradition arrangements work"
it was necessary to bring "greater transparency in respect
of where those [concurrent jurisdiction] cases should occur".
147. The forum bar has not been brought into
force in Scotland. However, for many years the Lord Advocate
has had the right to seek the agreement of the court to have criminal
proceedings in Scotland either brought to an end completely (by
an order of desert simpliciter) or suspended (by an order
of desert pro loco et tempore). The Lord Advocate's
power to seek such orders, though not specific to extradition
or to questions of forum, can delay or prevent a prosecution taking
place in Scotland. It may therefore be seen in some ways as not
entirely dissimilar to a prosecutor's certificate.
CRITICISMS OF THE FORUM BAR
148. As noted above, the Baker Review concluded
against introducing a forum bar. In evidence to us, Sir Scott
Baker explained his misgivings:
"One needs to ask: what void is it there
to fill? It was interesting that the magistrates dealing with
extradition cases said that they could not think of any single
case where the result would have been different if the original
forum bar had been introduced. I certainly wonder how many cases
there will be where this will result in a different solution
Why, fundamentally, I do not like the idea of a forum bar is that
the question of a forum bar is that the question of forum
is essentially a prosecutorial decision."
149. Most witnesses did not object to a forum
bar in principle but questioned the effectiveness of the bar in
force. So far, only one case, that of Dibden (see Appendix
5), has made substantive arguments on grounds of forum at appeal.
150. One criticism was that the bar was too prescriptively
drafted rather than simply asking the courts to make an interest
of justice judgment (see Box 8). Rebecca Niblock said that "One
of the great things about an interest of justice test generally
is that it allows for the multitude of different things that can
arise in criminal cases. To limit it to specified matters seems
to circumscribe it."
Similarly, Jodie Blackstock said that "there may be other
considerations that are not incorporated in the legislation that
may have an effect on where the case should be tried. The judge
cannot consider those under the current legislative framework."
Sir Scott Baker described the prescriptive nature of the
bar as "a rather dangerous line of legislation, because it
is always possible that something quite important has been overlooked."
However, no witnesses offered any suggestions of relevant matters
missing from the list included in the legislation.Box
8: Interests of justice test
|A number of provisions of the 2003 Act require the judge to determine whether a particular order of the court would be in the 'interests of justice'. For example, section 8(5) empowers the judge to postpone an extradition hearing where he or she (presumed independent and experienced in extradition law) believes it to be in the interests of justice. Unlike the forum bar provisions, section 8(5) does not prescribe the factors relevant to the judge's decision. Typically, relevant factors will include the needs of effective case management, costs and fairness to both the parties and victims, as well as the need to honour extradition arrangements. Judicial decisions are potentially subject to appeal or judicial review where relevant considerations are ignored or irrelevant considerations taken into account.
151. The Government's view was that the bar had
been drafted in such a way as to "strike the right balance
between the interests of the individual and the interests of the
152. Another criticism of the bar was that provisions
for a prosecutor's certificate (as describe in paragraph 145)
rendered "the protection conferred by the forum bar illusory".
Liberty said that the existence of the certificate provisions
fettered "judicial discretion undermining the proper function
of the court in blocking unnecessary extraditions".
JUSTICE said that the certificate provisions were "so widely
drawn that it will render the forum bar unworkable".
153. In response to these criticisms, Nick Vamos
"we have made it clear that we would only
issue a certificate once we had applied a Full Code Test. We would
need to receive a full file of evidence, just like in any other
case. We would advise the police on further evidence they might
need to obtain and, once we were satisfied we had a full file,
we would reach a decision. Only once we were capable of making
that decision, and if the decision was not to prosecute, would
we consider issuing a certificate.
It seems to us that the point of a certificate
is if, having considered all of the available evidence in this
country, the UK is not a forum for that offendingand we
have made that decision based on full consideration of all the
facts available to usthen the forum bar does not apply
anymore, because this is not a realistic forum for that case to
proceed. Therefore, you heighten the risk of somebody evading
justice altogether if the forum bar then becomes almost a theoretical
exercise. Somebody's extradition is barred but there cannot be
a prosecution in this jurisdiction because we have considered
all the evidence and said that we would not prosecute it."
154. The CPS submitted a copy of their "Internal
Process for Dealing with Forum Bar Cases", which includes
details of how they apply the certificate provisions, as written
155. Another concern raised about the certificate
provisions was that they would "lead to perverse outcomes
given that extradition will more likely occur in those cases where
a UK prosecutor has concluded that there is insufficient
evidence for prosecution or prosecution is not in the public interest,
perhaps because it is too trivial."
The CPS said that a number of factors might make prosecution in
the Issuing State appropriate even where action in the UK had
been ruled out:
"Where we have said there is insufficient
evidence under our Full Code Test, that does not necessarily mean
that there is not the evidence elsewhere in the country that is
requesting extradition. The offence for which we could prosecute
may be far less serious than the one that is revealed by the totality
of the evidence that is not available to us. We may not be able
to fulfil disclosure obligations in relation to that prosecution
if, for example, there is an informant or a co-operating witness
or undercover officers were engaged in that other country. We
simply would find it very difficult to have access to that information
to make sure that a fair trial was being held here, but the same
considerations for access to that information would not apply
in the country that is requesting extradition. It would be very
156. Some witnesses concluded that it was too
soon to comment confidently on the effectiveness of the bar. It
was noted that so far only a few cases had gone to appeal citing
forum and none had been successful.
157. Other witnesses concluded that the combination
of the prescriptive drafting and the influence of the prosecutor
meant that the bar in force had "no teeth".
Julia O'Dwyer, the mother of Richard O'Dwyer (see Appendix 5),
said that the earlier version of the forum bar would have been
preferable and that "we have now been lumbered with a pretty
watered-down version of the forum bar
I think we will not
see anybody benefiting from that very much at all."
FORUM UNDER ARTICLE 8
158. Forum issues have arisen under Article 8.
David Bermingham, who was extradited to the US, said that the
NatWest 3 had argued that their extradition would breach their
Article 8 rights because "it was not necessary or proportionate
because the case could and should be heard in London."
Although David Bermingham was unsuccessful, the courts have held
that addressing forum by way of Article 8 is a legal possibility.
In Norris v the US,
Lord Phillips of Worth Matravers said:
"Extradition proceedings should not become
the occasion for a debate about the most convenient forum for
criminal proceedings. Rarely, if ever, on an issue of proportionality,
could the possibility of bringing criminal proceedings in this
jurisdiction be capable of tipping the scales against extradition
Unless the judge reaches the conclusion that the scales
are finely balanced he should not enter into an inquiry as to
the possibility of prosecution in this country."
159. This, however, has not yet been fully tested
in the courts and therefore it is not clear how it would be applied
in detail. For example, in the case BH v the Lord Advocate
(which involved the extradition of a husband and wife with a number
of children, two of whom were born while extradition proceedings
were under way), the High Court of Justiciary in Scotland found
that extradition could not be discharged on Article 8 grounds
and therefore it was "unnecessary, following Norris,
to consider the possibility of a prosecution in this country."
However, when the case was heard on appeal, Lord Hope of
"The best interests of the children do however
suggest that the High Court of Justiciary was wrong to hold, as
Lord Reed indicated in para 101 of his opinion, that it was
unnecessary to consider the possibility of a prosecution in this
country. It will not be necessary to do this in every case. But
I would make an exception here."
160. Despite the final decision to order the
extradition of both parties in BH, this case suggests that
successful forum arguments could conceivably be made in the context
of Article 8 if a trial in this country would have a far less
severe impact on the private and family life of the Requested
161. In the light of this more developed approach
to discussing forum, Nick Vamos noted that:
"those cases where forum was argued under
Article 8 probably took longer, because the jurisdiction
was more complicated and the factual basis upon which the court
was being asked to consider those cases was far more complicated.
Forum bar now actually makes it simpler to bring those arguments."
EXTRADITION OF OWN NATIONALS
162. One witness referred to a "sense that
if you are a British national or resident and it is possible for
you to be prosecuted in the United Kingdom, you should be prosecuted
are some countries which do not extradite their own nationals
but this has not been the case in UK law for over a century.
163. However, a number of witnesses said that
there should be a presumption that if a British national could
be tried in the UK, he or she ought to be tried here. For example,
David Bermingham said:
"If a case could be heard here, we ought
to think very carefully about the fact that, as a first priority,
it ought to be
it should be incumbent upon a requesting
state to make the case as to why putting someone on a plane in
chains to the far side of the world to be locked up in prison
is better than the case being dealt with in the UK."
164. Similarly, Liberty proposed a forum bar
based on "a presumptioncapable of rebuttal by a Requesting
Statethat an extradition will not proceed if the alleged
activity for which extradition is sought took place in part in
165. These variations on the forum bar are proposed
to deal with the concerns that "Once extradited, a requested
person is separated from friends, family and their emotional support
For some they were necessary because they viewed it as inappropriate
for extradition to be used in cases where the Requested Person
has not "even set foot"
in the Issuing State.
166. Arguably, the impact of extradition on a
person resident in the UK is more properly addressed by consideration
of Article 8 of the ECHR as this can already take into account
all aspects of his or her life and relationships in the UK (see
167. The forum bar is still a new element
to extradition law. It is too soon to come to a view on its effectiveness.
In the light of this conclusion, it is not yet clear whether
a Requested Person in Scotland is less protected from extradition
than a person elsewhere in the UK. However, it is certainly clear
that in Scotland a Requested Person has fewer opportunities to
present forum arguments.
168. It may be that a wider 'interests of
justice' test ought to be allowed in the forum bar but, on the
basis of the evidence we have heard, that is far from certain.
With only a small number of cases having gone to appeal, it is
too soon to conclude that the bar is too restrictive.
169. Unless case law demonstrates that the forum
bar slows down extradition proceedings excessively, we conclude
that having a process whereby prosecutors' decisions can be directly
scrutinised in open court is a valuable addition to the 2003 Act
and has potential to make this part of the process more transparent.
This may be a useful addition to the law given our conclusions
in paragraphs 138 and 139.
170. We are content that the provisions concerning
the prosecutors' certificate do not undermine the bar. The forum
bar should not prevent extradition where a prosecution in the
UK would not be possible. The CPS's approach to the certificate
appears to us to be a proportionate use of the power to ensure
that this does not happen. We also note that the other bars
to extradition are unaffected and would remain available to the
Requested Person where forum arguments have not been successful.
171. We do not consider that there should
be (nor under the EAW scheme could there be) an absolute bar to
extradition merely because it is sought in respect of a UK national
whose criminal activity was performed entirely in this country.
172. However, we note that there are cases where
a person is a fugitive from a country in which he or she has physically
committed a crime and cases where a person has not left the UK
but has been engaged in, for example, cyber-crime or international
fraud. In both instances the offences may be serious but the sense
in which the Requested Person is a fugitive is different. In the
latter cases, the UK is the Requested Person's home (with all
the connections and ties which that implies) and, as such, they
are different from those cases where a person's presence in the
UK is a means to escape justice and seek a safe haven. In our
view, questions of forum alone do not adequately address these
173. We recommend, therefore, that where a
person is normally resident in the UK the courts should be particularly
astute to ensure that:
(a) no other less draconian measures are available
to progress the case to a just outcome;
(b) the forum bar has been fully explored
(c) all relevant Article 8 arguments have
been fully evaluated to ensure extradition is not disproportionate;
(d) due consideration has been given to the
possibility of obtaining assurances as to:
(i) the prospects of pre-trial bail; and
(ii) the transfer back to the UK of at least
part of any eventual sentences. (Recommendation 6)
148 Q5 (Sir Scott Baker) Back
Q90 (Rebecca Niblock) Back
Attached as Appendix 1 to the written evidence from the Crown
Prosecution Service (EXL0054) Back
Q13 (Anand Doobay) Back
Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back
Q93 (Rebecca Niblock) Back
Q83 (Sue Patten) Back
Written evidence from Liberty (EXL0066) Back
Q57 (Isabella Sankey) Back
Written evidence from Liberty (EXL0066) Back
Code de procédure penal, Article 695-24: http://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000006182918&cidTexte=LEGITEXT000006071154&dateTexte=20150116
[accessed 3 March 2015] Back
Prospective sections 19B and 83A of the 2003 Act as inserted by
the Police and Justice Act 2006, section 42 Back
The Baker Review, p 13 Back
Extradition Act 2003, sections 19B and 83A as inserted by the
Crime and Courts Act 2013, section 50 Back
Extradition Act 2003, section 19(E)(1) and (2) Back
Written evidence from the Home Office (EXL0060) Back
Q10 (Sir Scott Baker) Back
Q95 (Rebecca Niblock) Back
Q184 (Jodie Blackstock) Back
Q12 (Sir Scott Baker) Back
Written evidence from the Law Society (EXL0046) Back
Written evidence from Liberty (EXL0066) Back
Written evidence from JUSTICE (EXL0073) Back
Supplementary written evidence from the CPS (EXL0075) Back
Written evidence from Liberty (EXL0066) Back
For example, see written submission by Edward Grange and Rebecca
Niblock (EXL0035), Q11 (Anand Doobay), Q71 and Q81
(Nick Vamos). Back
Written evidence from Kaim Todner Solicitors Ltd (EXL0057) Back
Q184 (Julia O'Dwyer) Back
Norris v Government of United States of America (2010)
UKSC 9 at 67 Back
B H, K A S or H v The Lord Advocate, The Scottish Ministers
(2011) HCJAC 77 at 101 Back
BH (AP) and another v The Lord Advocate and another
(2012) UKSC 24 at 60 Back
Q81 (Nick Vamos) Back
Q5 (Anand Doobay) Back
In the course of a case of extradition to Switzerland in 1877
the Requested Person resisted extradition on the basis that the
UK's treaty with Switzerland precluded the surrender of British
nationals. In his judgment the Lord Chief Justice, Sir Alexander
Cockburn, said "I am chairman of the commission on the subject
of extradition, and I will take care that, if possible, this blot
upon the law shall be removed, so as to prevent an Englishman
who commits an offence in a foreign country from escaping with
impunity." (R v Wilson (1877) 3 QBD 42) Back
Written evidence from Liberty (EXL0066) Back
Written evidence from Janis Sharp, the mother of Gary McKinnon