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


Right to appeal


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]


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


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.


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]


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]


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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