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

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

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 all."[148]

132. These kinds of cases are increasing. Sue Patten, Head of Specialist Fraud Division at the CPS, said, "My colleagues specialising in organised crime … estimate that about 70% of their case load involves conduct in multiple jurisdictions".[149] 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."[150]

Prosecutors' decisions in concurrent cases

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).[151] 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;

(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:

152

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".[153] 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".[154] 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 jurisdiction".[155]

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 sensible conclusions.

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)

Forum bar

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 …

all

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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."[157] Liberty were in favour of a forum bar like that provided for in the EAW legislation (see Box 7).[158]

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.[159]

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 Kingdom, and

160

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."[161]

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."[162] The provisions go on to spell out the "specified matters", namely:

(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;

(b) the interests of any victims of the extradition offence;

(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 UK; and

(g) the Requested Person's connections with the United Kingdom.

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.[163]

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"[164] it was necessary to bring "greater transparency in respect of where those [concurrent jurisdiction] cases should occur".[165]

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:

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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."[167] 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."[168] 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."[169] 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 prosecutor".[170]

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".[171] Liberty said that the existence of the certificate provisions fettered "judicial discretion undermining the proper function of the court in blocking unnecessary extraditions".[172] JUSTICE said that the certificate provisions were "so widely drawn that it will render the forum bar unworkable".[173]

153. In response to these criticisms, Nick Vamos explained:

"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 offending—and we have made that decision based on full consideration of all the facts available to us—then 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 evidence.[174]

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."[175] 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 much factspecific."

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.[176]

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".[177] 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."[178]

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."[179] 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,[180] 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."[181] However, when the case was heard on appeal, Lord Hope of Craighead said:

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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 Person.

161. In the light of this more developed approach to discussing forum, Nick Vamos noted that:

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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 here".[184] There are some countries which do not extradite their own nationals but this has not been the case in UK law for over a century.[185]

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:

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164. Similarly, Liberty proposed a forum bar based on "a presumption—capable of rebuttal by a Requesting State—that an extradition will not proceed if the alleged activity for which extradition is sought took place in part in the UK."[187]

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 network".[188] 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"[189] 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 Chapter 2).

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 differences.

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 in court;

(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

149 Q77 Back

150 Q90 (Rebecca Niblock) Back

151 Attached as Appendix 1 to the written evidence from the Crown Prosecution Service (EXL0054) Back

152 Q13 (Anand Doobay) Back

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