CHAPTER 7: RIGHT TO APPEAL AND THE ROLE
OF THE HOME SECRETARY
Right to appeal
INTRODUCTION
253. The Anti-social Behaviour, Crime and Policing
Act 2014 amended the Extradition Act 2003 to remove the automatic
right to appeal in extradition cases.
254. Under the new provisions, which are yet
to come into force, an application to appeal must be lodged within
7 days of the extradition order being made in EAW cases; and within
14 days in Part 2 cases. Where the notice period is missed the
courts "must not for that reason refuse to entertain the
application if the person did everything reasonably possible"
to meet the deadline.[268]
255. The threshold for leave to appeal to be
granted is that an arguable case can be made. The application
for permission to appeal can be dismissed without a hearing. Nonetheless,
if the application for permission to appeal is refused the Criminal
Procedure Rules[269]
allow the application for permission to be renewed orally at a
hearing.
256. The Government described the anticipated
benefit of removing the automatic right to appeal:
"It is expected to make a positive difference
for those with meritorious appeals against extradition decisions.
As the Baker Review found, the court system is currently burdened
with unmeritorious appeals. This has resulted in many genuine
appeals being delayed and statutory time limits extended. The
change in the Anti-social Behaviour, Crime and Policing Act 2014
will ensure that the appeal process is not used simply as a means
of delaying the extradition process and that unmeritorious appeals
are filtered out of the system, allowing challenges with merit
to be heard and resolved quickly."[270]
257. In addition, we heard that the changes would
bring the appeals process for extradition law into line with other
types of criminal law. Sir Scott Baker said, "There
are very few circumstances these days where there is an automatic
right of appeal in criminal cases. It has been reduced gradually
over the years."[271]
CRITICISM
258. Many witnesses argued that the leave to
appeal provisions were not appropriate in extradition cases.[272]
Extradition was a unique legal situation where "complex issues
involved in an extradition case might not always be resolved at
first instance."[273]
259. An automatic right to appeal was viewed
by some as an important "safety net"[274]
that made up for deficiencies earlier in the process and was "an
important safeguard against wrongful extradition".[275]
Liberty's view was that it "should be re-instated by repealing
the recently inserted leave requirement."[276]
JUSTICE also concluded that a leave requirement "should not
be imposed on Requested Persons."[277]
Legal aid and specialist advice
260. Several witnesses discussed the changes
to the appeal process in the light of criticisms about access
to legal aid and specialist legal advice.
261. All witnesses agreed that it was preferable
for arguments to be fully explored at the earliest possible stage
in the process. However, as noted in Chapter 6, under current
arrangements a Requested Person may not receive the appropriate
advice or have access to legal representation earlier in the extradition
process.
262. By contrast, legal aid is granted automatically
for extradition appeals. As a result, the substantive arguments
may only be "raised for the first time on appeal."[278]
263. Liberty summed up the situation:
"A leave requirement will mean that an arguable
case will need to be made before the High Court within the allotted
period. Many Requested Persons are unrepresented during this period
and will only be able to provide a brief argument/outline in their
appeal notice before seeking expert legal representation once
the appeal is lodged. Unrepresented or badly advised individuals
will be unable to meet the arguable case threshold and it is possible
that a person who is wrongly advised in the magistrates' court
will be extradited before having the opportunity to have that
decision reviewed."[279]
264. Michael Evans said that the fact that issues
might not be addressed until appeal combined with the short period
for lodging an appeal made the system unworkable. He said, "If
you had a longer timescale and legal aid from the beginning of
that for solicitor and counsel before you had to issue the appeal
then maybe that would work, but in a seven-day period in a Part
1 case it is not feasible. You cannot do it."[280]
In his view, these factors could "reduce the number of appeals
but perhaps not for the right reason."[281]
265. The Government said, "From a legal
aid perspective, the Government does not believe that the removal
of the automatic right to appeal an extradition decision will
have any negative effect on the availability of services to the
requested person."[282]
Arguable case
266. Jago Russell from Fair Trials International
told us that whilst he had opposed the introduction of a leave
requirement, the provisions as introduced were not as troubling
as he had feared. He said the arguable case test and the Requested
Person's right to an oral hearing if their leave to appeal was
refused on papers meant it was "not going to be as considerable
an issue as we had feared."[283]
267. Michael Evans thought the arguable case
requirement was in any event unnecessary as the vast majority
of lawyers would not bring unarguable appeals to court. He said:
"the way that it was working before was
more effective because you have to trust barristers. Counsel instructed
would not advance unarguable arguments and the test for permission
is 'is it arguable'".[284]
Spurious appeals
268. Some witnesses said that if the aim was
to weed out spurious appeals being made by litigants in person,
the leave provisions would make very little difference because
the application could be renewed orally, simply adding a layer
of complexity and cost to appeal proceedings without achieving
the aim of reducing hearing times. Daniel Sternberg said, "I
suspect it may not reduce the High Court's workload greatly if
the refusal of permission to appeal can be renewed orally before
a judge."[285]
269. It was suggested that some Requested People
preferred to serve custodial time in the UK, rather than the Issuing
State—what we might call penal tourism. As such, the appeals
process was commonly used as a means to stall extradition and
serve more of the sentence in UK prisons. Judge Zani stated:
"there are people who, to put it bluntly,
would prefer to spend their time in a British prison than in their
local prison, so they will use whatever avenue of appeal there
is, however unmeritorious, not only to slow matters down before
us but also through the appeal process. I would anticipate that
the filtering system would preclude some of these hopeless appeals
getting past first base. Time will tell as to really whether that
will be the case or not. I have my reservations for those people
who are determined to just try whatever they can to stay here."[286]
270. Sheriff Maciver was "not particularly
optimistic that this new provision will effect great improvement"[287]
in the use of appeals to delay extradition and serve sentences
in the UK rather than a harsher regime in the Issuing State.
271. However, the Crown Solicitor's Office said
that the leave requirement "should serve to filter out the
hopeless cases where an appeal is merely used to delay further
the carrying out of the extradition."[288]
Complicate the appeals process
272. Some thought that the leave to appeal provisions
would make the appeal process more problematic. The Criminal Bar
Association said, "it will complicate rather than simplify
proceedings as unrepresented defendants have to comply with more
steps, not fewer."[289]
273. Chapters 2 to 6 demonstrate that extradition
law and its associated case law are complex, perhaps increasingly
so. With this in mind, it is essential that those legitimately
resisting extradition have adequate access to the appeals process.
274. In our view, the leave to appeal conditions
are inextricably linked with the issues of specialist legal advice
and access to legal aid. Without resolving those issues the leave
requirement creates a serious risk that Requested People will
not be able to make full use of the legal proceedings open to
them and could be extradited without having been able to make
their case properly. The short deadlines for requesting leave
to appeal may make this concern more acute. We support in principle
the introduction of a leave requirement for appeals but the Government
should not bring these provisions into effect until there is confidence
that the problems with access to legal aid and specialist legal
advice have been resolved. (Recommendation 14)
Role of the Home Secretary
INTRODUCTION
275. The role of the Secretary of State was also
discussed in the context of appeals. Following the Baker Review,
the Home Secretary transferred her responsibilities with regard
to human rights considerations to the courts.
276. The Crime and Courts Act 2013 came into
effect in July 2013. It amended the Extradition Act 2003 to:
· remove
the Secretary of State's obligation to consider human rights issues
in Part 2 cases. Late human rights representations must now be
raised with the High Court;[290]
and
· amend
the provisions on appeals in Scottish cases.
POLITICAL INVOLVEMENT
277. The Home Secretary explained the rationale
for the changes:
"it is preferable for the courts to be able
to look at all the evidence with the experience that they have
of looking at these issues. It means that you do not get intense
pressure on a single individual to move this way or that way.
A lot of pressure can come from both sides of the argument, so
it is right that cases are taken appropriately through the courts
so that, with their experience and ability to look at all the
evidence, they can look at that properly."[291]
278. The Baker Review concluded that ensuring
that human rights issues arising at the end of the extradition
process were decided by the courts would ensure the process was
a "transparently non-political one".[292]
Most witnesses agreed that extradition ought to be as judicial
a process as possible. Edward Grange and Rebecca Niblock stated,
"We do not think it is beneficial to the rule of law to have
a political actor taking decisions in respect of extradition proceedings."[293]
279. Witnesses said that whilst there may be
a political angle to some extradition cases, this emphasised the
need for it to be a judicial process. The Office of the Chief
Magistrate stated:
"Of course it is entirely appropriate that
in some cases there will be a need to make decisions based on
diplomatic or security considerations, but these should be transparent
and ideally part of the judicial decision making process. The
extradition process is subject to a right of appeal and therefore
safeguards against any injustice an extraditee perceives there
to be."[294]
SIMPLIFY THE PROCESS
280. A number of witnesses thought that moving
the decision making to the courts would expedite proceedings.
Sheriff Maciver said there had been cases "where the intervention
of the Home Secretary has caused inordinate delay and where the
end result has not appeared to be one which can be explained in
law."[295]
281. Sir Scott Baker expressed a similar
view:
"Whatever one's views about the McKinnon
case, the one point nobody could really disagree about is that
it took far, far, far too long before a final decision was made.
This recommendation is designed to speed up the process. It is
also consistent with the way that extradition has been moving
over past years."[296]
282. The CPS said that the effect of the change
was to:
"increase the speed with which surrenders
take place and to reduce complexity, without a perceptible diminution
of the protections afforded to Requested Persons."[297]
REMOVING A SAFEGUARD
283. Some witnesses disputed whether the Home
Secretary could devolve her responsibilities to the courts; her
duties under the Human Rights Act 1998 meant that she was still
responsible for ensuring the extradition orders were compliant
with the ECHR. Jodie Blackstock said, "I cannot see how the
obligation to comply with our human rights obligations can be
removed in such a way … because it is implicit irrespective
of whether the Human Rights Act is expressly disavowed or not."[298]
284. Others thought it was not desirable for
the Home Secretary to devolve these responsibilities. JUSTICE
stated:
"The Human Rights Act (HRA) must continue
to apply to the Secretary of State in extradition proceedings,
who is a public authority for the purposes of the HRA and may
receive relevant information subsequent to an appeal that would
affect the interests of the requested person for which they are
unaware."[299]
285. The involvement of the Secretary of State
was seen by some as an important backstop and "a further
safeguard for persons whose extradition was sought".[300]
It was suggested that the Secretary of State might be privy to
information that was not available to the courts. Jodie Blackstock
said:
"it is incredibly important in the context
of information that may come to light that is not available to
the courts, it is not available to the Requested Person, but perhaps
comes in through diplomatic channels and must be contemplated
before the return."[301]
286. The Home Secretary stated that her role
was a limited one:
"it is not my job as Home Secretary on any
individual extradition request to make those judgments. There
is a certain set of criteria that I have to look at. I think that
there are four issues that have to be addressed to make an initial
decision about an extradition request.[302]
Beyond that, it is for the courts to determine whether the extradition
request should be accepted."[303]
287. Anand Doobay said that Home Secretary did
not have "discretion" in handling extradition appeals,
her role was to decide where there was "sufficient evidence
presented to her to suggest that the person's human rights will
be violated and, therefore, she should not order extradition."[304]
Therefore, devolving responsibilities to the courts could not
result in a loss of discretion.
288. In addition, should new information arise
after the courts have ordered extradition there remained "a
way of dealing with these situations".[305]
The Requested Person could make an application to have the appeal
re-opened.[306]
289. We support the changes that have already
been made to the Home Secretary's responsibilities. Extradition
should, to the greatest possible extent, be a judicial procedure.
290. We are content that the courts are able
to deal with late appeals in the Home Secretary's place. The
combination of the 'arguable case' threshold, the ability to renew
an application orally and the requirement that the courts consider
a late appeal "if the person did everything reasonably possible
to ensure that notice was given as soon as it could be given",[307]
mean that late applications which require the courts' attention
could be heard.
268 Extradition Act 2003, sections 26(5), 103(10) and
108(7A) as inserted by the Anti-social Behaviour, Crime and Policing
Act 2014, section 160(1)(c) Back
269
The Criminal Procedure Rules (rule 17.22), 6 October 2014: https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/crim-proc-rules-2014-part-17.pdf
[accessed 3 March 2015] Back
270
Written evidence from the Home Office (EXL0060) Back
271
Q3 (Sir Scott Baker) Back
272
See for example written submission from JUSTICE (EXL0073), written
evidence from Liberty (EXL0066) and Q188. Back
273
Written evidence from the Law Society of Scotland (EXL0039) Back
274
Q92 Back
275
Written evidence from the Law Society of Scotland (EXL0039) Back
276
Written evidence from Liberty (EXL0066) Back
277
Written evidence from JUSTICE (EXL0073) Back
278
Q3 (Anand Doobay) Back
279
Written evidence from Liberty (EXL0066) Back
280
Q188 Back
281
Q189 (Michael Evans) Back
282
Written evidence from the Home Office (EXL0060) Back
283
Q34 (Jago Russell) Back
284
Q188 Back
285
Written evidence from Daniel Sternberg (EXL0051) Back
286
Q139 (Judge Zani) Back
287
Written evidence received from Sheriff Maciver (EXL0064) Back
288
Written evidence from the Crown Solicitors Office (EXL0034) Back
289
Written evidence from the Criminal Bar Association (EXL0055) Back
290
Extradition Act 2003, section 108 as inserted by the Crime and
Courts Act 2013, section 50 Back
291
Q208 Back
292
The Baker Review, p 292 Back
293
Written evidence from Edward Grange and Rebecca Niblock (EXL0035).
See also Q19 (Sir Scott Baker). Back
294
Written evidence from the Office of the Chief Magistrate (EXL0043) Back
295
Written evidence from Sheriff Maciver (EXL0064) Back
296
Q19 (Sir Scott Baker) Back
297
Written evidence from the Crown Prosecution Service (EXL0054) Back
298
Q186 (Jodie Blackstock) Back
299
Written evidence from JUSTICE (EXL0073), see also written evidence
from Kaim Todner Solicitors Ltd (EXL0057). Back
300
Written evidence from the Law Society (EXL0046) Back
301
Q186 (Jodie Blackstock); Back
302
Extradition Act 2003, section 93(2): "The Secretary of State
must decide whether he is prohibited from ordering the person's
extradition under any of these sections: (a) section 94 (death
penalty); (b) section 95 (specialty); (c) section 96 (earlier
extradition to United Kingdom from other territory); (d) section
96A (earlier transfer to United Kingdom by International Criminal
Court)." Back
303
Q208 Back
304
Q19 (Anand Doobay) Back
305
Q19 (Sir Scott Baker) Back
306
The circumstances in which an appeal can be re-opened were affirmed
in Taylor v the US (2009) EWHC 1020 (Admin). The same criteria
as laid out in the Civil Procedure Rules apply: "52.17.(1)
The Court of Appeal or the High Court will not re-open a final
determination of any appeal unless - (a) it is necessary to do
so in order to avoid real injustice; (b) the circumstances are
exceptional and make it appropriate to re-open the appeal; and
(c) there is no alternative effective remedy." Back
307
Extradition Act 2003, sections 26(5), 103(10) and 108(7A) as inserted
by the Anti-social Behaviour, Crime and Policing Act 2014, section
160(1)(c) Back
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