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


200.  For Requested People to be able to make full and fair use of the extradition process they must have adequate legal advice, have access to legal aid and be able to make use of appropriate expert evidence. These three factors are therefore linked.

Legal advice

201.  Witnesses were generally complimentary of specialist extradition solicitors and barristers. However, concern was raised about the duty solicitor rota which provides legal advice to Requested People who do not have access to a lawyer of their own. Whilst it is a duty rota specifically for extradition work, the only criterion for joining it is to declare oneself able to carry out the work; there is no assessment or qualification (see Box 9).

202.  This may lead to representation by a lawyer with no experience of extradition law, despite the weight of evidence that extradition legislation and case law is niche and complex.[216] Liberty said that:

    "Large numbers of people subject to extradition requests cannot afford a lawyer and so are represented by one of hundreds of duty solicitors signed up to the extradition rota at Westminster Magistrates' Court. However, the majority of individual solicitors have never conducted an extradition case before … the 2003 Act is immensely complex and has generated a vast amount of case law."[217]

203.  There was a concern that lack of expertise could result in poor quality advice to vulnerable individuals. Jago Russell said that Fair Trials International saw "numerous cases" where Requested People received poor representation at the initial hearing.[218]

204.  The duty solicitor role is an important one. Judge Riddle said that his court was "enormously reliant on our duty solicitors."[219] At the initial hearing the Requested Person must decide whether to contest extradition or not. This is clearly a significant decision requiring reliable advice. It may well be in the best interests of the Requested Person to return to the Issuing State rather than enduring the hardships of a full extradition hearing.[220] There was also concern that, if inadequate advice was given at the early stages of proceedings, relevant issues might not be raised at the appropriate point. Jago Russell gave an example of a Polish man whose extradition was discharged on Article 8 grounds at appeal "because it was discovered that he was the sole carer for a very severely disabled daughter". This had not been raised in earlier proceedings because "the duty solicitor, who was not an expert in extradition, had not even noted that fact."[221]

205.  Despite the evidence from some witnesses, the extent to which the rota arrangements caused problems in practice was not clear. Judge Riddle reported that he had only received two complaints regarding duty solicitors in four years.[222]

206.  At present, Westminster Magistrates' Court provides training for duty solicitors, though this is not compulsory. Judge Riddle thought it would not be "very difficult or very expensive for duty solicitors new to the rota to have the ticket."[223]

207.  The MoJ did not believe there to be a serious problem with the current process of self-certification and opposed a ticketing system on the grounds of cost. Hugh Barrett, Director of Legal Aid Commissioning and Strategy at the Ministry of Justice, said:

    "I am not completely convinced that is something that we would want to do in this area, simply because of an issue of cost. Putting in place a ticketing system, mandatory training, examination and potentially an appeal for people who fail will be a costly process."[224]
Box 9: Duty solicitor rota and "ticketing"
All magistrates' courts run a duty solicitor scheme that permits appointed solicitors to represent defendants at the first magistrates' court appearance if they do not have, or have not yet contacted, their own solicitor. To become a duty solicitor, a solicitor must submit a portfolio of some 25 cases dealt with at court and undertake a live-recorded exercise of a first appearance with an actor playing the defendant and the examiner watching and recording the live session. This duty solicitor qualification is called the Criminal Law Accreditation Scheme.

In addition to the general duty rota, Westminster Magistrates' Court has introduced a specialist extradition rota for duty solicitors permitted to represent defendants at the first appearance in extradition proceedings. The appointment simply requires that an existing duty solicitor ask to be put on the specialist extradition duty rota. This is a process of self-certification, without needing to demonstrate experience or expertise in the field. This specialist duty scheme has seen over 400 solicitors appointed to it—how many of these ultimately take extradition cases is unclear.

In recognition of the peculiarities and complexities of extradition law, other parties in the extradition process must be certified as specialist practitioners. For example, appointment to the CPS's expert panel of extradition prosecution Counsel involves a formal competition. Similarly, to be appointed as an extradition judge, a District Judge must first undertake a period of shadowing and approval. The process whereby a District Judge is appointed to undertake extradition casework is sometimes referred to as "ticketing".

In other areas of law, such as asylum and immigration, duty solicitors are required to undergo an externally assessed and accredited "ticketing" process before being added to the rota.

208.  Extradition is a complex area of law. No one should appear before the courts at any stage in the process without access to appropriately specialist legal representation. We recommend that a ticketing system be introduced to manage access to the duty rota in order to ensure proper expertise is available from the earliest point in proceedings to help the Requested Person and the courts. The Government should make the necessary arrangements to require this. (Recommendation 9)

Legal aid

209.  Legal aid is a contribution by the state towards the cost of legal advice,
family mediation and representation in court. Means testing is an assessment of whether an individual meets stipulated criteria and is therefore eligible for state assistance. In England, Wales and Scotland legal aid for extradition cases is means tested. This process is administered by the Legal Aid Agency (LAA) in England and Wales. In Scotland, legal aid is a devolved matter and the process is administered by the Scottish Legal Aid Board (SLAB). Means testing for extradition cases is not in operation in Northern Ireland.

210.  The Baker Review was critical of the impact of means testing for legal aid in extradition cases. It recommended that "careful but urgent consideration, looking at both the financial implications and the interests of justice" should be given "to reintroducing non means-tested legal aid for extradition proceedings in England, Wales and Scotland."[225] A number of witnesses to our inquiry also called for the removal of means testing.


211.  Sir Scott Baker told us that he remained of the view that non-means tested legal aid would overall "create a saving, as well as facilitate the administration of justice."[226] It was for this reason that his review had called for a cost-benefit analysis.

212.  Other witnesses agreed with Sir Scott Baker's assessment that savings could be made. Reductions in the number of individuals held in custody and adjourned proceedings were cited as areas of potential savings. Edward Grange and Rebecca Niblock said that granting legal aid irrespective of means "would curtail delays in the system and save court time through avoiding wasted hearings and … prolonged periods in custody at the State's expense."[227]

213.  The Office of the Chief Magistrate took a similar view:

    "Between February-July 2014 more than 11 cases listed for final hearings were ineffective as a result of delays caused by the LAA. The cost of convening a court and ensuring resources are in place for a final hearing cannot be mitigated by any perceived savings to the legal aid bill".[228]

214.  In its response to the Baker Review, the Government rejected the report's recommendation. It conducted a high-level cost-benefit analysis[229] into the question and concluded that it did not consider that "the business case to reintroduce non-means tested legal aid for extradition proceedings has been made out".[230] See Table 4 for a summary of the estimates used in the analysis.

Table 4: Estimate Annual Costs & Savings Table
Cost Type Annual Increase in Potential Costs Annual Potential Savings
Criminal legal aid costs£450,000
Remand places£100,000 to £550,000
Claims from Central Funds £100,000
Courts£20,000 to £40,000
CPS£20,000 to £40,000
Total£450,000 £250,000 to £750,000

Source: Baker Review, Appendix F, pp 477-78

215.  The MoJ said that any potential saving would be difficult to realise and would not necessarily result in a "cash saving". Hilda Massey, Deputy Director Legal Aid Policy at the Ministry of Justice, told us:

    "the cost­benefit analysis is inconclusive in terms of whether or not there are savings to be made when you weigh up both sides of the argument. Certainly it is easier to see what the costs are to Government than how you might realise those savings, and when you are considering legal aid in the round and the context of the fiscal environment that we are working in currently, Ministers take the view that the cost­benefit analysis is not sufficiently proven to strongly support making an exception in this case."[231]


216.  The majority of applications for legal aid by people facing extradition are successful. The Government told us that this success rate is "in the region of 94%".[232]

217.  However, in the evidence we received concerns were not based on what proportion of people ultimately received legal aid, but the length of time taken for an award to be made. Many Requested People find it difficult to satisfy the documentary requirements of the LAA. Many are migrant workers and are more likely to be self-employed or work cash-in-hand and therefore, according to Jago Russell, "find it incredibly difficult to get the information together to satisfy a means test."[233] The Office of the Chief Magistrate also described this problem:

    "The majority of defendants are either in casual work or between employment and very few have records. Language barriers and personal circumstances will often impact on the ability of defendants satisfying the strict requirements of Legal Services Commission regulations, which are simply too dogmatic and fail to adopt a practical approach."[234]

218.  This problem did not affect those who were remanded in custody during the extradition process. In such cases the Requested Person could self-certify and there was no "requirement to provide supporting evidence"[235] when applying for legal aid.

219.  The LAA are part-way through introducing an e-form to the legal aid application process. Hugh Barrett said that where the e-form had been introduced there had been a 50% reduction in the number of forms that "ping pong back and forth between the Legal Aid Agency and the solicitors firms who are applying for legal aid."[236]


220.  Under the Extradition Act 2003 the timeframe for commencing extradition proceedings depends on whether the case falls under Part 1 or Part 2 of the Act.

221.  In Part 1 cases the permitted period between arrest and the first substantive hearing is 21 days.[237] Part 1 of the Act transposes the Framework Decision on the European Arrest Warrant (EAW) into UK law. The Framework Decision states that an EAW should be executed as a "matter of urgency"[238] and the final decision taken within 60 days in those cases in which the Requested Person does not consent to extradition.[239]

222.  In Part 2 cases the Act states that the first substantive hearing must be no more than two months after the initial hearing.[240]

223.  Several witnesses said that the legal aid application process was causing extradition cases to be routinely delayed. Daniel Sternberg told us that:

    "The real problem with legal aid is getting it in the first place. That is where the real delay is. I have cases—both prosecuting and defending—where cases are fixed and then taken out many times because the defendant does not have legal aid."[241]

224.  As a consequence, the courts were unable to ensure that EAW proceedings commenced within the 21 days stipulated. Sheriff Maciver of the Edinburgh Sheriff Court said that it was "extremely rare for a hearing to take place within the 21 day period and delays as a direct result of legal aid issues are as inevitable as they are undesirable."[242]

225.  The issue appeared to be even more acute in the Westminster Magistrates' Court. Judge Riddle said, "We faithfully tried to stick to 21 days until earlier this year [2014] when it became absolutely obvious that all we were doing was adjourning for 21 days and then adjourning again." To address the situation the Court had "deliberately built in a delay in hearing these cases, so that when a defendant appears in front of us we can say, 'You have had three months to sort out your funding and we are going to go ahead'".[243]

226.  The three month delay in commencing extradition proceedings contravenes the time limits set-out in the Framework Decision on the EAW.[244] In relation to the UK the European Commission's principal concern was delays in dealing with certain EAWs. Olivier Tell, Head of Unit, Procedural Criminal Law at the European Commission, told us, "only in exceptional cases and where there is no consent by the person concerned to be surrendered, the surrender may last as long as 90 days." [245]

227.  We did not receive direct evidence as to the impact of delays in court proceedings on Part 2 cases. However, it seems reasonable to infer, if there is routinely a delay of three months between first appearance and the commencement of substantive proceedings, a final decision might not be delivered within the 60 days stipulated in the 2003 Act.

228.  Beyond the issues of cost to the state, delays in court proceedings draw out the extradition process for the Requested Person. For those not granted bail and held in pre-trial detention this can mean more time spent in custody. Judge Riddle said, "there are undoubtedly people in custody longer than might have been the case."[246]

229.  Factors aside from legal aid could result in delays to court proceedings. Hugh Barrett gave the example of delays in obtaining expert evidence and cautioned, "we should not see reducing the period for legal aid as automatically going to mean that you are going to meet the overall timescale."[247]

230.  The Lord Chancellor said the three month delay in proceedings at Westminster Magistrates' Court was "disproportionate" and a "a source of considerable disquiet that legal aid may routinely be presented as a major reason for a failure to meet such deadlines". He also noted that the LAA was keen to work with the Court so that "applications posing the greatest risk for delay can be flagged at the earliest opportunity whilst those where no delay is expected can be listed much more quickly without the need for an automatic three month delay."[248]


231.  Some witnesses said that an exception to the means testing rules ought to be made for extradition law because it was fundamentally different to other areas of criminal law. Michael Evans told us, "Extradition should not be means tested in terms of legal aid. It is interests of justice tested, and it passes that because it is agreed that it is a breach of your human rights in a sense."[249]

232.  The complexity of extradition law was also cited as justification for making an exception to the legal aid rules. Anand Doobay spoke of extradition being a particularly "technical process" which meant that "there are all sorts of difficulties about having unrepresented defendants going through the magistrates' court process."[250] This was a point also picked up by Judge Riddle:

    "Our basic concern is fairness. It is uncomfortable for us, as judges, to have an unrepresented person, who probably does not speak English, who may not have been in this country very long, alone in court with us with no one to help them but an interpreter."[251]

233.  The MoJ rejected the idea of making extradition a "special case". Hilda Massey said:

    "[The] risk, if an exception is made, is there will be a question of both consistency with the rest of the legal aid system and also a question of whether or not that then opens the door to claims being made that exceptions should be made elsewhere."[252]

234.  Instead of making extradition a "special case" the MoJ believed "the right solution is to make the process work more efficiently and more effectively."[253]


235.  Dual representation refers to the practice of having a lawyer representing the Requested Person in the Issuing State as well as in the UK.

236.  A number of witnesses spoke of the importance of representation in the Issuing State.[254] This was particularly the case in relation to minor offences, outstanding fines or breaches of probation conditions where discussions between a lawyer and the authorities in the Issuing State could find simpler resolutions to matters than extradition, such as paying an outstanding fine. Edward Grange and Rebecca Niblock said that dual representation could be the most effective way of resisting many EAWs and that they advised all of their clients "to get a lawyer in the Requesting State as soon as possible."[255] Michael Evans offered similar advice:

    "we always advise people straightaway, 'If you can, get a lawyer in the requesting state'—the lawyer will go to the court and say, 'He is in the UK. He is living a good life. He can pay the fine. Is that okay?' 'Yes, fine.' Pay the fine; warrant disappears."[256]

237.  A provision on the right of Requested Persons to receive legal aid in both states was included in the European Commission's Directive on access to provisional legal aid.[257] In July 2014, the Government confirmed its decision not to opt in to this proposal.

238.  Jodie Blackstock told us that dual representation "is possible on legal aid—although tortuous, I imagine—to make these arguments to obtain legal assistance in the Issuing State".[258]

239.  We are concerned that the legal aid application process is causing delays to court proceedings. It is not acceptable that individuals are kept in any unnecessary pre-trial detention, from either their own perspective or that of the state. Delays to the extradition process are contrary to the interests of justice and place an additional burden on the taxpayer.

240.  We regret the fact that the district judges at Westminster Magistrates' Court have found it necessary to insert a three month delay into the system. In the light of the Lord Chancellor's comments and the concern expressed by the European Commission, we hope that the Court will keep this automatic delay under review, that the Government will take the necessary steps to eliminate it and that it will therefore be removed at the earliest opportunity.

241.  Extradition proceedings are different to other types of criminal law in not pronouncing on individuals' guilt, but instead deciding whether or not they should be sent to other jurisdictions to stand trial. In contrast to domestic criminal prosecutions, the court proceedings cannot be revisited in this country once the person has been extradited.

242.  Given the weight of evidence put before the Committee and the wide range of estimated costs and savings used in the analysis, we believe the high-level cost-benefit analysis provided to the Baker Review is neither a sufficient nor a credible response to the concerns raised about means testing for legal aid. The Government should conduct and publish a full and detailed cost-benefit analysis. In our view, unless a cost-benefit analysis very clearly favours retaining means testing, the interests of justice should take priority. (Recommendation 10)

243.  This more detailed cost-benefit analysis should include consideration of the savings that could be made by matters being resolved by lawyers in the Issuing State. (Recommendation 11)

244.  It may be that automatic legal aid, followed by a period of means testing using the e-form, would offer a more balanced system, one which removes legal aid if the higher earnings threshold is met. Alternatively, additional funding for dual representation could be offset by fewer proceedings in the UK. Again, if the cost-benefit is balanced, the interests of justice ought to take priority. (Recommendation 12)

245.  In the meantime, the Government should, as a matter of urgency, pursue solutions, such as the e-form, to make the process of applying for legal aid work more efficiently and effectively. (Recommendation 13)

Expert evidence

246.  Solicitors firms can make an application to the LAA for permission to engage an expert witness, for example to provide evidence on prison conditions in the Issuing State. The LAA considers cases and makes a judgment on the rates charged by the requested witness.

247.  In the experience of Judge Arbuthnot, a decision on an application could take some time, with the court sometimes having "to prod the legal aid fund."[259] The MoJ told us that in 90% of cases this judgment is delivered within two weeks.[260]

248.  Some witnesses told us that there was a problem either getting court time to commission expert witnesses (thereby prolonging the process) or enough money to afford the right expert. Daniel Sternberg said, "Getting authority for an expert in itself is something that happens fairly frequently, but the problem is finding an expert who is willing to work for legal aid rates."[261]

249.  Opinion was divided as to the scale of the problem. Rebecca Niblock said that she had never been unable to engage an expert, but could "think of numerous cases where we have not been able to instruct the expert that we would have instructed had we been privately funded."[262]

250.  Ben Keith told us it was "sometimes the quality of expert that is difficult to find for those rates" though he added "Some of the very best experts will work for legal aid rates." He also said, "once you have legal aid, and you have enough time, you will be able to find a suitable academic to assist you."[263] Mark Summers QC told us he had "never had any difficulty either identifying appropriate experts or obtaining authority to instruct them."[264]

251.  Others thought there was only a problem where counsel wished to adduce more expert evidence than courts thought necessary and that the courts had a "very keen judgment" about which arguments were real and which were "specious arguments."[265] Where they were satisfied that there were real arguments to be made, the courts understood the need to get appropriate expert evidence and would allow "sufficient time for proper evidence to be obtained".[266] In the experience of Sheriff Maciver it was "the extent of inquiry and the number of experts that can sometimes cause a problem and lead to legal aid being refused."[267]

252.  Expert evidence is clearly necessary in some cases. From the submissions we have received we have been persuaded that it is possible for the necessary expert evidence to be obtained on legal aid.

216   See for example,  Q36 , written evidence from the Criminal Bar Association (EXL0055) and Kaim Todner Solicitors Ltd (EXL0057). Back

217   Written evidence from Liberty (EXL0066) Back

218    Q34 (Jago Russell) Back

219    Q133 Back

220    QQ133-4 (Senior District Judge Riddle) Back

221    Q34 (Jago Russell); see also  Q180 (Michael Evans). Back

222    Q133 Back

223   Ibid. Back

224    Q146 Back

225   The Baker Review, p 17 Back

226    Q2 (Sir Scott Baker) Back

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

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

229   The analysis was published as Appendix F to the Baker Review. Back

230   The Government Response to the Baker Review, p 6 Back

231    Q147 (Hilda Massey) Back

232    Q149 (Hilda Massey) Back

233    Q27 (Jago Russell ) Back

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

235    Q145 (Hugh Barrett) Back

236    Q149 (Hugh Barrett) Back

237   Extradition Act 2003, section 8(4) Back

238   Framework Decision on the European Arrest Warrant, 2002/584/JHA Back

239   Framework Decision on the European Arrest Warrant, 2002/584/JHA, Article 17(3)  Back

240   Extradition Act 2003, section 75(2) Back

241    Q110 (Daniel Sternberg) Back

242   Written evidence from Sheriff Maciver (EXL0064) Back

243    Q135 (Senior District Judge Riddle) Back

244   Framework Decision the European Arrest Warrant, 2002/584/JHA, Article 17(3) Back

245    Q221 Back

246    Q135 (Senior District Judge Riddle) Back

247    Q150 (Hugh Barrett) Back

248   Written evidence from Rt Hon. Chris Grayling MP, Lord Chancellor (EXL0090) Back

249    Q153 (Michael Evans) Back

250    Q2 (Anand Doobay) Back

251    Q135 (Senior District Judge Riddle) Back

252    Q149 (Hilda Massey) Back

253    Q150 (Hilda Massey) Back

254   See  Q104 (Rebecca Niblock),  Q179 (Graham Mitchell),  Q179 (Michael Evans), and  Q179 (Jodie Blackstock) Back

255    Q104 (Rebecca Niblock) Back

256    Q179 (Michael Evans) Back

257   Proposal for a directive of the European Parliament and of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant proceedings, COM(2013) 824 Back

258    Q179 (Jodie Blackstock) Back

259    Q137 (Deputy Senior District Judge Arbuthnot) Back

260    Q151 (Hugh Barratt) Back

261    Q110 (Daniel Sternberg) Back

262    Q104 (Rebecca Niblock) Back

263    Q110 (Ben Keith) Back

264    Q122 (Mark Summers QC) Back

265    Q107 (Paul Garlick QC) Back

266   Ibid. Back

267    Q122 (Sheriff Maciver) Back

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