CHAPTER 5: EXTRADITION AND OTHER AREAS
OF LAW
Introduction
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
BACKGROUND AND SIZE OF PROBLEM
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]
POSSIBLE SOLUTIONS
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]
Trafficking
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
| 
