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



174.  In the course of our inquiry it became clear that, from time to time, there is an interaction between extradition law and other overlapping areas of law. These issues arose during our inquiry and had not been included in our Call for Evidence. We have therefore received only limited evidence on them. However, these appeared to us to be important issues worth noting in our report.

Extradition and sensitive material


175.  The issue we received the most evidence on was how sensitive material could be dealt with during extradition cases. This was something recently considered by the Supreme Court. In the case of VB v Rwanda[190] the Supreme Court considered whether:

    "in the absence of any relevant statutory power, it is open to the district judge hearing the extradition proceedings (a) to use a closed material procedure to receive evidence which the appellants wish to adduce, or (b) in the alternative in relation to some of such evidence to make an irrevocable non-disclosure order providing for the disclosure of such evidence to the Crown Prosecuting Service ("CPS"), but prohibiting its disclosure to the GoR [Government of Rwanda]."[191]

176.  Arguments were put to the Court that, although the Extradition Act 2003 did not expressly provide for a closed material procedure (where evidence could be heard in private sitting with one of the parties excluded) or non-disclosure orders (where evidence could be heard in private by both parties on the basis that it would be kept confidential), extradition was similar enough to other areas of law in which these procedures were allowed that they ought also to be available in extradition hearings. A majority of the Court held that the 2003 Act allowed no implied exception to the principle of open justice allowing such powers or procedures.[192] Further legislation would therefore be needed to provide the courts with such powers.

177.  In evidence, the Committee heard that there were a number of situations in which a Requested Person might want to adduce sensitive evidence in the course of an extradition hearing. These included:

·  where the person feared persecution in the Issuing State but was not in a position to apply for asylum in the UK[193] (this was the case in VB v Rwanda where one of the four Requested People was a British citizen and therefore asylum was not an option);[194]

·  where a person wished to demonstrate a real risk of human rights breach by relying on evidence provided by those who would not want their evidence being communicated back to the Issuing State (again, in VB v Rwanda there were fears that evidence from people in Rwanda would put those witnesses at risk of persecution by the Rwandan authorities or the wider community); and

·  where a person wished to adduce evidence that would put witnesses in danger for reasons other than from persecution by state authorities, such as persecution by the wider community on religious or other grounds.[195]

178.  It was not clear how many cases were affected by these issues in practice. One witness summed it up as being "a minority, but not a de minimis minority. There is a concern. There is a problem."[196]


179.  Two broad solutions were proposed to us, each already used in other areas of law and each presenting difficulties in extradition. All witnesses agreed that the Supreme Court ruling made it clear that legislation would be needed.[197]

180.  The first solution would be to impose disclosure conditions on sensitive evidence. In deportation cases it is possible, under certain circumstances, for material about the home state to be used on condition it is not further disclosed to that country. In extradition this would require the CPS, acting as the lawyers for the Issuing State, to withhold information from their clients. This would give rise to a difficulty not present in deportation. Deportation cases are between the people concerned and the UK; the home state is not a party in the proceedings in the UK: it is simply the destination of the person concerned. Extradition cases are between the Requested People and the Issuing States, with the UK authorities acting on an Issuing State's behalf in a client-solicitor relationship; the Issuing State is actively seeking the return of the Requested Person and engages the services of the CPS to fulfil that task.

181.  Because of these differences Helen Malcolm QC, a barrister at Three Raymond Buildings, said:

    "I have real difficulties with the idea that you can call the evidence in front of counsel for the requesting state and order that lawyer not to disclose to his own client what has been said … I do not see any way in which they can be privy to information without disclosing it on to their client … The whole point is that the CPS is just the solicitor for the requesting state, so I have problems with non-disclosure orders."[198]

182.  The second solution would be to provide for closed hearings in which an independent Counsel represented the Issuing State. This would allow for evidence to be presented and, to a degree, tested without compromising the client-solicitor relationship between the CPS and the Issuing State. A similar procedure is available in asylum cases where the defence is represented in closed hearings by a Special Advocate allowing sensitive material to be tested before the judge assesses its credibility.

183.  This option also has downsides. Clair Dobbin, a barrister at Three Raymond Buildings, raised an objection on a point of principle. She said that in extradition cases there was "a particular need to interrogate and test the kind of evidence that is relied upon" but that the closed procedure model involved "shutting out a party to the litigation".[199]

184.  There were practical concerns too. Jeremy Johnson QC, a barrister at 5 Essex Court, referred to such procedures as "cumbersome and costly".[200] Helen Malcolm QC described her experience of performing a similar role in immigration cases:

    "The fact is that you are normally swung in at about 24 hours' notice. It is often not in London. You are dealing with advocates who you have never met before. You get two or three feet of papers and a huge amount of instructions, which by definition are immensely general because it is before you have seen the information. So the defence are trying to cover every possible base, you have a 24 hour-period where you panic and then you do your best in court. That is a very slangy way of describing it, but that tends to be what happens on the ground—entirely in my own case, I should say. There is a constant fear that you are missing a really good point."[201]

185.  However, despite these issues, Helen Malcolm QC concluded that "It is certainly much better than nothing, which is the alternative."[202]

186.  Overall, witnesses agreed that if these procedures were appropriate in the asylum and deportation context it was difficult to justify, in principle, the different treatment of extradition proceedings. Witnesses differed over what should be the solution to this difficulty.

187.  For both proposed solutions witnesses had serious reservations. Raza Husain QC, a barrister at Matrix Chambers, supported the idea of using closed proceedings with an independent Counsel representing the Issuing State but described it as "the least worst option."[203] Jeremy Johnson QC preferred a non-disclosure power but said he recognised the objections to it and that "every solution is imperfect."[204]

188.  In its response to these views, the CPS said that it would be "difficult to legislate in isolation" to require the CPS to withhold information from an Issuing State. They said, "To be coherent and effective any statutory derogation from that duty would also have to extend to any lawyer who might potentially be instructed on behalf of a foreign state."[205]

189.  This is an area of law in which the rights of an individual to put as strong a case as possible against his or her extradition must be balanced against the Issuing State's legitimate interests. However, it is not right that a person facing extradition is unable to present sensitive material in order to resist extradition without prejudice to others.

190.  We recommend that the Government bring forward proposals to amend the 2003 Act to provide for an independent counsel procedure in order to enable sensitive material to be used in extradition hearings. (Recommendation 7)

Family Court proceedings

191.  Extradition cases sometimes raise issues that are more commonly the subject of Family Court proceedings. This overlap usually arises in the course of Article 8 arguments where the court may be asked to consider the position of the dependants of a Requested Person and what alternative care arrangements might be made if extradition were ordered.

192.  According to the evidence submitted by Amelia Nice, barrister at 5 St Andrew's Hill (assisted by barrister colleagues),[206] issues which may arise in this area include:

·  how the court liaises with the social services to get the necessary information about the Requested Person's family life;

·  the time it may take for proper assessments to be made by the social services;

·  the fact the social services would normally assess a family situation as it is at the time whereas an extradition hearing requires prospective information about what would happen if the Requested Person were extradited. This may make assessments incomplete, less helpful than required or even counter-productive;

·  how information is disclosed from the Magistrates' Court to the Family Courts; and

·  the fact that family proceedings are routinely held in private, unlike extradition hearings. This may lead to extradition hearings using evidence submitted from a Family Court which is redacted to such an extent that it is unusable.

193.  Amelia Nice also referred to "numerous cases of the Family Court refusing to disclose CAFCASS[207] reports or details" to the Magistrates' Court.[208] Our evidence from the Senior District Judge and his colleagues demonstrated that they were aware of these issues. Judge Arbuthnot said:

    "Particularly from the Article 8 perspective, when you have someone saying they are the sole carer for a child or children and you say to the requested person via counsel, 'What is going to happen were the court to make an order that you be extradited?' and they say, 'I do not know', it puts the court in a very difficult position."[209]

194.  For this reason the written evidence from the magistrates said that they would "welcome the ability to appoint and pay for a report by a CAFCASS officer, or similar, in cases where extradition of a parent may be incompatible with the human rights of a child."[210]

195.  The Ministry of Justice (MoJ) said giving magistrates the authority to commission evidence would be "problematic", as the LAA could only sanction payment for expert reports for legal aid recipients and it could cause "tensions if the defence solicitor did not regard the report as necessary."[211]

Child abduction

196.  According to Amelia Nice's evidence, there is a "relatively small, but increasing" number of cases where a person might be requested from the UK on charges of child abduction. However, extradition proceedings alone make no provision for the child concerned. Without civil proceedings to ensure the return of the child, a person may be extradited to face abduction charges despite uncertain childcare arrangements for the child left in the UK. In one case a mother had taken her children from Sweden. The Swedish authorities successfully extradited her back to Sweden and her children were looked after by a friend in the UK. Some weeks later the Swedish authorities arranged for the return of the children to Sweden.[212]

197.  Amelia Nice concluded that:

    "It would thus be useful if the extradition courts could consider the possibility of civil proceedings and make relevant enquiries, particularly if it is submitted (or found) that it would be in the best interests of the child to be returned to the requesting state with their parent/s. This is far preferable to the rather blunt conclusion reached in some cases that where some family care or local authority care is available for a child, such care is necessarily sufficient."[213]


198.  Amelia Nice's evidence raised the issue of cases where the Requested Person claims to be the victim of human trafficking. Ms Nice referred to a "lack of guidance" and "scarcity of decisions"[214] which might inform the courts how best to deal with this situation. The relevant issues include:

·  how extradition hearings should interact with the obligations that the ECHR places on a state where a person has been the victim of trafficking;[215]

·  how the courts can make a proper evaluation of whether the claim is true; and

·  what assessment the courts can make of what potential there might be for being re-trafficked if extradited.

199.  The Committee has not heard sufficient evidence to comment usefully on how extradition law ought to interact with proceedings in the Family Court, child abduction cases and people trafficking law. However, clearly these are areas where further investigation is necessary. We recommend that the Government commission a review into these matters. (Recommendation 8)

190   VB, CU, CM, EN v Westminster Magistrates' Court, The Government of Rwanda (2014) 3 WLR 1336 Back

191   VB, CU, CM, EN v Westminster Magistrates' Court, The Government of Rwanda (2014) 3 WLR 1336 at 2 Back

192   Lord Toulson dissented from the majority judgment saying "I would hold that justice, and the respect for human rights on which the MoU was expressly predicated, require that at some stage in the process the evidence should be able to be considered" .(VB v Rwanda at 84) Back

193   In Poland v Dytlow (2009) EWHC 1009 (Admin) at 14 the High Court ruled that "all the indications in the 2003 Act are that the existence of refugee status does constitute a valid objection to the extradition of the refugee." Back

194    QQ231-2 (Clair Dobbin) Back

195    Q232 (Helen Malcolm QC) Back

196    Q232 (Raza Husain QC) Back

197   See, for example,  Q234 (Clair Dobbin) and  Q235 (Raza Husain QC). Back

198    Q234 (Helen Malcolm QC) Back

199    Q234 (Clair Dobbin) Back

200    Q235 (Jeremy Johnson QC) Back

201    Q235 (Helen Malcom QC) Back

202   Ibid. Back

203    Q237 (Raza Hussain QC) Back

204    Q235 (Jeremy Johnson QC) Back

205   Written evidence from the Crown Prosecution Service (EXL0092) Back

206   Written evidence from Amelia Nice (EXL0086) Back

207   The Children and Family Court Advisory and Support Service Back

208   Written evidence from Amelia Nice (EXL0086) Back

209    Q137 (Deputy Senior District Judge Arbuthnot) Back

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

211   Written evidence from the Ministry of Justice (EXL0091) Back

212   Ljungkvist v Sweden, (2013) EWHC 1682 (Admin), described in the written evidence from Amelia Nice (EXL0086) Back

213   Written evidence from Amelia Nice (EXL0086) Back

214   Ibid. Back

215   Article 4, the prohibition of slavery and forced labour, is interpreted as including "a procedural obligation to investigate where there is a credible suspicion that an individual's rights under that Article have been violated".European Court of Human Rights, Guide to Article 4 of the Convention: Prohibition of slavery and forced labour, second edition, June 2014, p 14: http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf [accessed 3 March 2015] Back

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