CHAPTER 8: CHANGES TO PRACTICE
Introduction
291. In the course of evidence a number of changes
to practice were suggested that could help to lessen the impact
of extradition on Requested People. These were things that would
either not require changes to the law or simply require greater
use of existing provisions. There are some other measures developed
at EU level which would also lessen the impact of extradition
which the UK has not opted in to (see Appendix 6).
Video evidence
292. Some witnesses suggested that greater use
could be made of technology to question Requested People prior
to their extradition. The Office of the Chief Magistrate said:
"A more imaginative, and more productive,
approach than legislative change is to increase mutual international
cooperation by a more extensive use of modern technology …
There have been numerous cases where evidence from abroad has
been received by way of Skype … We see no reason in principle
why these procedures should not be followed more commonly in cases
of extradition from the United Kingdom."[308]
293. Jodie Blackstock echoed this, "Any
procedural hearing, short of trial, where actual evidence needs
to be taken, in my view, could be considered through video link".[309]
294. In discussing amendments to the 2003 Act,
the Home Secretary noted that the Government had "made arrangements
in relation to things such as video links on evidence."[310]
Section 21B of the Act enables a Requested Person to request contact
with representatives of the Issuing State, including by video
link.[311]
295. Although Section 21B is now in force, the
Government must also make sure it is technically possible. Christopher
Tappin, whose extradition to the US pre-dated this provision (see
Appendix 5), told us, "Witnesses from the UK are not allowed
to give evidence via a video link to the US. The reason given
by the US Department of Justice is 'They do not have the technology'."[312]
Return on bail
296. Another process which would lessen the impact
of extradition in EAW cases would be making greater use of temporary
transfer powers. The Home Secretary confirmed that "if the
individual subject to the European Arrest Warrant consents, they
can be taken temporarily to give evidence and then brought back
to the UK."[313]
This process could occur prior to formal extradition hearings.
Alternatively, under European Supervision Order provisions,[314]
a person could be subject to bail conditions imposed by the Issuing
State pending trial.
297. Anand Doobay said, "the ideal scenario
would be that in the pretrial phase you would remain on
bail in your home country, making your appearances by video link
and then only attending the trial when you needed to in person."[315]
Such a scenario might avoid experiences like that of the Dunhams
where they spent over four months on bail in the US.[316]
Transfer of sentences
298. Some witnesses said that greater use should
be made of arrangements to transfer extradited people back to
the UK to serve their sentences.[317]
299. Such arrangements are also already possible.
In EAW cases the Framework Decision on Prisoner Transfer allows
for this.[318] Olivier
Tell of the European Commission said the powers should be used
"so that the sentence is executed in the habitual residence
of that person in order to ensure social rehabilitation."[319]
300. The Government also said that the Framework
Decision should be "used to its fullest extent so that British
citizens extradited and convicted can be returned to serve their
sentence here."[320]
301. This is also possible in Part 2 cases. Amy
Jeffress described the position in relation to extradition to
the US:
"there is a process under which that can
be accomplished. In fact, in many recent cases that has happened.
Normally the person has to serve at least a portion of their sentence
in the United States, so that the arrangements can be made."[321]
302. In some countries, the concept of returning
extradited people to serve their sentences in their home country
is deeply rooted. For example, the Netherlands entered the following
Declaration to the European Convention on Extradition:
"Netherlands nationals may be extradited
for purposes of prosecution if the requesting State provides a
guarantee that the person claimed may be returned to the Netherlands
to serve his sentence there if, following his extradition, a custodial
sentence other than a suspended sentence or a measure depriving
him of his liberty is imposed upon him".[322]
Information about the extradition
process
303. We heard in evidence that the extradition
process could be quite confusing as there is little information
provided. Mrs O'Dwyer, said the process was:
"frightening due to a lack of explanation
and information from the Police in the early stages and due to
the aggressive attitude displayed by US prosecutors. I was required
to find out everything for myself from the internet. We would
have appreciated some sort of information leaflet given to us
at the same time as the extradition warrant was being briefly
wafted in front of our eyes with no explanation given."[323]
304. Michael Evans agreed and said that because
of the lack of information he sent "every client at the beginning
of the case not just a standard file-opening letter but a six-page
letter … It explains the procedure, the structure of the
Extradition Act and what stages the judge will go through, that
they have a right of appeal and then how to appeal".[324]
Conditions in transit to Issuing
State
305. A number of submissions came from people
who had been extradited. These submissions included descriptions
of how they had been treated in transit from the UK to the Issuing
State. In some cases, these conditions seem to be excessive given
the nature of the crimes concerned and the fact that they affected
people yet to be convicted. For example, Paul and Sandra Dunham,
a husband and wife extradited to the US (see Appendix 5), described
their flight to the US:
"At this point we were chained up and taken
onto the aircraft we each had a US Marshall sat either side of
us … During the 10 hour flight we were unlocked once so that
we could get a drink but still had one hand chained to the arm
rest".[325]
306. Mr Wolkowicz also gave evidence of
his treatment in transit. He described being forced to sit in
a seat that was not appropriate to his medical condition and being
"hit several times" on the chest in order to force him
to move. He said, "they dragged me by force to this armchair.
They tied me up there in every possible way."[326]
Other matters
ONGOING MEDICAL CARE
307. Some witnesses noted the access to medical
care people have post-extradition. Jodie Blackstock explained
that having an ongoing medical condition was rarely grounds for
resisting extradition for a non-British national as "an alien
cannot be permitted to remain in the UK to access medical treatment
which may be better than that available in the country of his
nationality."[327]
308. Two witnesses also referred to the medical
condition of Mr Dunham. Andrea Leadsom MP (in whose
constituency the Dunhams live) told us that Mr Dunham had
an ongoing heart condition. Whilst in the US he required a new
heart monitor. The necessary operation was "estimated to
cost at least $20,000 by the time he went in to hospital"
but she was informed by the FCO that the UK could not fund this
without there being "a reciprocal agreement with the other
country, an arrangement we do not have with the United States."[328]
Michael Evans said, "As it happens, he has had the operation;
the doctors agreed to do it for I think $3,000 to be paid later."
However, he criticised the solution relying "on the kindness
of individuals".[329]
309. The FCO, in describing more broadly what
support is offered to British nationals held abroad said, "Prisoners
Abroad are also able to make payments for certain medical services,
to ensure that British Nationals can access these."[330]
ACCOMMODATION IN THE ISSUING STATE
310. Some witnesses said accommodation in the
Issuing State could be a problem pre-trial. This was because a
Requested Person was unlikely to be granted bail if he or she
had no-where to live. Michael Evans referred particularly to the
situation in the US:
"If you are extradited to America and you
actually manage to convince a judge to say, 'I will give you bail
if you have an address', your average Joe Bloggs is not going
to have the money or the wherewithal to find an apartment and
pay for it while they are not allowed to work and are restricted
to being inside that apartment. Unless you are lucky enough to
know somebody who is willing to put you up or willing to go out
on a limb for you, you are stuck."[331]
311. David Bermingham told us this had been his
experience and that bail had only been granted once his lawyer
said he would accommodate him. He said that in the US:
"You have to make out a case as to why you
should be granted bail. The problem was that we were not US citizens:
we did not have green cards or anything like that. We had no social
security numbers, we had no place of abode and no means of earning
income. We would have failed every one of the tests."[332]
312. The inherent risk of distress caused
by removal from one's place of residence persuades us that there
is scope in some cases to make greater use of existing legislation
and to improve practices in order to lessen the impact of extradition.
We make this recommendation particularly bearing in mind the
fact that in most cases Requested People have yet to be found
guilty of any crime.
313. Changes in practice should include: providing
better information to Requested People about the process; making
greater use of video evidence; making greater use of temporary
transfer to the Issuing State pre-extradition and pre-trial release
on bail in the UK; and increasing the use of transfer of sentences
when appropriate.
314. We recommend the Government take the
necessary steps, such as issuing guidance to the courts and seeking
agreements with other countries, to make these changes. Where
reciprocal commitments from the UK are required to achieve agreement,
these should be given. (Recommendation 15)
315. In the case of EAWs, the Government and
the European Commission should work to establish further guidelines
on the execution of EAWs to ensure that they are conducted in
the least hostile manner possible. (Recommendation 16)
308 Written evidence from the Office of the Chief Magistrate
(EXL0043) Back
309
Q181 (Jodie Blackstock) Back
310
Q192 Back
311
Written evidence from the Home Office (EXL0001) Back
312
Written evidence from Christopher Tappin (EXL0028) Back
313
Q192 Back
314
Council Framework Decision on the application, between Member
States of the European Union, of the principle of mutual recognition
to decisions on supervision measures as an alternative to provisional
detention, 2009/829/JHA Back
315
Q23 (Anand Doobay) Back
316
Written evidence from Paul and Sandra Dunham (EXL0047) Back
317
For example, see written evidence from JUSTICE (EXL0073) Back
318
Council Framework Decision on the application of the principle
of mutual recognition to judgments in criminal matters imposing
custodial sentences or measures involving deprivation of liberty
for the purpose of their enforcement in the European Union, 2008/909/JHA
Back
319
Q223 Back
320
Written evidence from the Home Office (EXL0060) Back
321
Q73 Back
322
Council of Europe, 'List of declarations made with respect to
treaty No. 024': http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=024&CM=8&DF=&CL=ENG&VL=1
[accessed 3 March 2015] Back
323
Written evidence from Julia O'Dwyer (EXL0050) Back
324
Q174 (Michael Evans) Back
325
Written evidence from Paul and Sandra Dunham (EXL0047) Back
326
Q262 Back
327
Written evidence from JUSTICE (EXL0073) Back
328
Written evidence from Andrea Leadsom MP (EXL0085) Back
329
Q190 (Michael Evans) Back
330
Written evidence from the FCO (EXL0082) Back
331
Q190 (Michael Evans) Back
332
Q246 Back
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