CHAPTER 10: PART 2 COUNTRIES
Introduction
365. Part 1 of the Extradition Act 2003 deals
with extradition to states operating the European Arrest Warrant.
Part 2 of the Act deals with all other countries with which the
UK has extradition arrangements. These Part 2 countries comprise:
(1) countries with bilateral or multilateral
treaties with the UK;
(2) the 19 non-EAW countries that are signatories
of the European Convention on Extradition (ECE); and
(3) Australia, Canada, New Zealand and the US.[386]
366. The 2003 Act gives the Home Secretary the
power to designate countries as Part 2 countries. Designation
is made by statutory instrument subject to affirmative resolution
in both Houses of Parliament.[387]
367. The majority of Part 2 countries, when submitting
an extradition request to the UK must make a prima facie
case in support of extradition.
368. Signatories to the ECE and Australia, Canada,
New Zealand and the US are further designated and are not required
to make such a prima facie case.
Designation
EUROPEAN CONVENTION ON EXTRADITION
(ECE)
369. A number of witnesses raised concerns about
ECE countries that ought not to benefit from the simpler extradition
arrangements provided by the convention.
370. Ben Keith raised Article 3 concerns with
regard to Moldova, Russia, Turkey and Ukraine, stating that these
countries "have serious issues with torture and of
mistreatment of prisoners by police services, security services
and prison guards, rather than just generalised conditions."[388]
371. Ben Keith and Paul Garlick QC drew
attention to the issue of 'political' extradition cases.[389]
Azerbaijan, Moldova, Russia, Turkey and Ukraine were the ECE countries
mentioned in this regard. In referring to Russia, Ben Keith stated:
"if you stand up to the regime in Russia—or
if you are linked to those who stand up to the regime in Russia,
which is more important—you will be punished. So if there
is a high-profile person who is against a particular jurisdiction
and you happen to have worked for them, there is a high probability
that, if you get involved, extradition will be requested."[390]
372. Currently these concerns are handled via
successful arguments to bar extradition on human rights grounds
or to stay proceedings as an abuse of process. Anand Doobay summarised
the position:
"even though there is no requirement to
provide prima facie evidence, if the court is concerned
that its process might be being abused, it can call for evidence.
If it does not receive that evidence, it can draw an adverse inference
… For example, in Russian cases, where there has been a concern
that the prosecutions are politically motivated and without merit,
the courts have been able to consider the evidence about the allegations
through the abuse of process jurisdiction."[391]
373. The Office of the Chief Magistrate stated
that there were countries to which the UK did not extradite people,
despite being Part 2 designated or EAW states, because concerns
were so widespread:
"Prison conditions are a problem. Recently
attacks have been made on prison conditions in Lithuania, Latvia,
Poland, Italy, Romania, Moldova, Russia, the Ukraine, Turkey,
South Africa, Kenya, Greece, among others. In most of these countries
we do not now order extradition because of prison conditions,
or do not do so in the absence of assurances which are not usually
forthcoming. This means in effect that we have extradition arrangements
with many countries to whom in practice we will not order extradition."[392]
374. Given that a number of countries are further
designated but routinely not extradited to, some witnesses said
that it was unclear what the rationale was behind designation.[393]
REVIEW OF DESIGNATIONS
375. In its recommendations, the Baker Review
invited the Government to "periodically review designations
for Category 2 territories".[394]
As part of its response to the Review, the Government accepted
this recommendation.[395]
376. The Home Secretary told us that this review
had begun. She said that "work is now under way in the Home
Office" and that she hoped it would conclude "by the
end of this Parliament."[396]
377. A number of witnesses agreed that the Government
should carry out a review of designations.[397]
There were a variety of suggestions as to what form a review should
take. Some thought designations should be reviewed on a regular
basis. Daniel Sternberg suggested, "Parliament ought to review
the list of territories so designated each year."[398]
378. Rather than an annual review of all Part
2 designations, Edward Grange and Rebecca Niblock urged Parliament
to consider countries on a case-by-case basis and "to look
at countries which can be seen to have consistently flouted decisions
of the European Court of Human Rights, or where there is clear
evidence of politically motivated prosecutions."[399]
379. Some witnesses proposed designation on completely
different grounds to the current arrangements. Dr Ted Bromund
and Andrew Southam of the Heritage Foundation said:
"The UK should seek to create a clear, bright
dividing line: all the European democracies, Australia, Canada,
New Zealand and the US, and other well-established democracies
should not be required to present a prima facie case …
while all other nations should".[400]
380. Some witnesses said one potential outcome
of the review should be that a country's designation be revoked.
The Law Society told us, "The Baker Review specifically concluded
that diplomatic repercussions should not be a legitimate reason
to not revoke a designation, and the Law Society agrees with this
position."[401]
Sheriff Maciver also said, "we have to be more careful about
the countries with whom we enter into extradition agreements and
be prepared to take countries off the Part 2 list."[402]
381. However, others pointed out that options
open to the Government in regard to the ECE were limited. Should
a review of designations conclude that prima facie evidence
was required from an ECE state, the UK would have to withdraw
and renegotiate with individual ECE state parties or seek amendments
to the Convention at Council of Europe level. It would not be
an easy proposition to require ECE states to provide a prima
facie case.
382. Some countries had entered reservations
on signing the Convention which re-imposed the prima facie
evidence requirement. The UK did not enter such a reservation
and it would not be practically possible to do this now. Doctor
Danae Azaria, Lecturer in Law at University College London, told
us:
"The late formulation of a reservation would
render it invalid … its late formulation would not meet the
narrow circumstances in which late formulations of reservations
have been accepted, and in any event, such late formulation would
require the unanimous acceptance of other contracting States in
order to be valid."[403]
383. Anand Doobay also described the limited
options open to the Government:
"You are reviewing the designation of a
country like Russia, which is a party to the Council of Europe
convention. What you cannot do is say, 'We are going to impose
a prima facie evidence requirement on you, because you
have behaved badly', because we do not have the ability to do
that without withdrawing from the convention. What you can do
as a result of your review is probably only say, 'diplomatically,
this is unacceptable. We need you to stop doing it.' There is,
practically, a limit to what you can do."[404]
384. Alternatively, Dr Azaria considered
a range of arguable alternatives (beyond the scope of this report
to consider in detail) including:
· suspending
the ECE's operation in whole or in part in the UK's relationship
with the defaulting state;
· the
UK withholding performance under the ECE; and
· the
UK adopting counter-measures.[405]
385. We received some evidence that the US in
particular should be required to present a prima facie
case when submitting an extradition request.[406]
However, a number of witnesses said that would be inappropriate
whilst not having the same requirement for other Part 2 countries
of greater concern. Edward Grange and Rebecca Niblock said:
"Whilst we are of the view that a requirement
to show a prima facie case is desirable and would lead
to a greater protection for suspects in all Part 2 cases, we are
not of the view that the US is a special case. In fact, we have
more concern at the designation of other Part 2 countries, in
particular Albania, Azerbaijan, Georgia, the Russian Federation,
Turkey and Ukraine."[407]
386. The Home Secretary, in her evidence, accepted
the practical limitations of the review:
"Where countries have ratified the 1957
European Convention on Extradition, we have made it clear that
there will be no requirement for prima facie evidence to
be provided. Some other treaties also remove the need for prima
facie evidence to be provided, so no review will be able to
lead to changes in that respect. Some of the countries that may
be of interest to you may fall into that area. But we are reviewing
whether we have the right designations in place—that could
operate both ways, in terms of countries on the list and those
not on the list but which might be added to it."[408]
PRIMA FACIE REQUIREMENT
387. Some witnesses viewed prima facie
evidence as an essential safeguard, regardless of specific human
rights concerns (see Box 10). Box
10: Prima facie case
| Where a prima facie case is required, the judge must decide whether there is evidence that "would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him" (section 84(1) of the 2003 Act). This is a slight modification of the test which applies in criminal committal proceedings under section 6(1) of the Magistrates' Court Act 1980 where the magistrate is required to see whether:
"if the evidence stood alone at the trial, a reasonable jury, properly directed, could accept it and find a verdict of guilty".[409]
But, whether in the extradition or criminal context, the evidence required to make a prima facie case falls far short of proof of guilt.
If the judge decides the evidence is insufficient to make out a case requiring an answer at a summary trial, he must order the person's discharge (section 84(5)). If the evidence is sufficient, then the judge must proceed to consider human rights issues (section 84(6)). Section 84(7) explains that the need to make out a prima facie case/a case requiring an answer does not apply to further designated Part 2 territories.
|
388. One of the central points made by Liberty
was that the current safeguards and statutory bars in the UK's
extradition arrangements were not sufficient to replace the safeguard
of a prima facie case. They argued it imposed "a standard
for the quality of extradition request that the UK is prepared
to accept, filtering out unmeritorious and speculative requests
for extradition."[410]
They illustrated their position with reference to the case of
Lofti Raissi whose extradition to the US under the previous Extradition
Act was prevented following scrutiny of the prima facie
evidence provided.[411]
389. Other witnesses were less convinced that
a prima facie case requirement was an effective safeguard.
Ben Keith told us that:
"I am always slightly conflicted about the
prima facie case argument, because I am not sure it necessarily
provides a much greater protection than the European Convention
because, in fact, all the political cases I have done have involved
the 1957 convention, so countries have not had to prove a prima
facie case. Even if they did, Russia would just make up the
evidence anyway. It is a shorter document for them to make up
than lots of different witness statements."[412]
390. Similarly, the Law Society argued, "the
requirement of a prima facie case is no panacea. It may
even provide a lesser form of protection for the person whose
extradition is sought than the current statutory bars."[413]
391. The requirement of a prima facie
case was said to be "against the prevailing trend in extradition
proceedings of leaving 'trial issues' for the courts of requesting
States."[414]
Jago Russell from Fair Trials International stated, "we certainly
do not think it is realistic or appropriate to try to return to
decades-old rules, where you used to have prima facie test
cases, et cetera. We are a very long way from that."[415]
COUNTRIES WITH NO EXTRADITION ARRANGEMENTS
392. As noted in paragraph 14, there are
some countries with which the UK does not have extradition arrangements.
In these circumstances, an international convention to which the
UK and the other country are party could form the basis of extradition,
or an ad hoc bilateral treaty could be concluded. However,
the Home Secretary cautioned that:
"There will be countries which for various
reasons may not wish to cooperate with us on certain matters and
also countries where we will have very real concerns about the
conditions in which somebody who was extradited to that country
would be treated. There will be decisions for us in relation to
human rights and safeguards and the judicial systems of other
countries. Those will change over time as well, as different regimes
may operate different systems."[416]
393. We agree with the concerns raised about
some further designated countries. However, withdrawal from the
ECE (and therefore from our extradition arrangements with 19 countries)
would be a wholly unrealistic and disproportionate response. We
are satisfied that extradition requests from countries of concern
are dealt with effectively by the courts, and that the statutory
bars provide the necessary protection to Requested Persons. In
our view, this is the appropriate way of dealing with these concerns.
394. The Government recently began its review
of Part 2 designations. It will not be feasible to remove a country's
designation. Therefore the scope of the review would seem to be
limited to assessing whether additional countries should be designated.
We urge the Government to conclude and publish the findings
of the review of Part 2 designations at the earliest opportunity.
(Recommendation 18)
395. Although it would be impractical to attempt
to remove the Part 2 designation from a signatory to the European
Convention on Extradition, the Government should still consider
these countries in its review. No doubt such consideration would
help to inform the FCO's 'country of concern' reports. Such information
may be useful when considering human rights arguments put in relation
to those countries. (Recommendation 19)
396. The Committee is not persuaded by the
view that a prima facie case requirement ought to be re-introduced
into UK extradition law. In our view this would be a retrograde
step, which would result in more drawn out procedures, with little
material benefit in the light of the existing safeguards, including
the common law abuse of process jurisdiction.
386 The Baker Review stated, "The Government
explained the designation of Australia, Canada, and New Zealand
not because of any treaty obligations but on the basis that they
are democratic states and trusted extradition partners."
(p 270) Back
387
Extradition Act 2003, sections 69(1), 71(4), 73(5), 74(11)(b),
84(7), 86(7) and 223(5) Back
388
Q108 (Ben Keith) Back
389
Q115 (Ben Keith), Q112 (Paul Garlick QC) Back
390
Q115 (Ben Keith) Back
391
Q17 (Anand Doobay) Back
392
Written evidence from the Office of the Chief Magistrate (EXL0043) Back
393
See for example written evidence from Daniel Sternberg (EXL0051). Back
394
The Baker Review, p 332 Back
395
The Government Response to the Baker Review, p 4 Back
396
Q209 (Rt Hon. Theresa May MP, Home Secretary) Back
397
See, for example written, evidence from Daniel Sternberg (EXL0051),
Edward Grange and Rebecca Niblock (EXL0035). Back
398
Written evidence from Daniel Sternberg (EXL0051).
See also Law Society of Scotland (EXL0039) Back
399
Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back
400
Written evidence from Dr Ted Bromund and Andrew Southam (EXL0048) Back
401
Written evidence from the Law Society (EXL0046), see also Q126
(Sheriff Maciver) Back
402
Q126 (Sheriff Maciver) Back
403
Written evidence from Dr Danae Azaria (EXL0087) Back
404
Q17 (Anand Doobay) Back
405
Written evidence from Dr Danae Azaria (EXL0087) Back
406
See, for example, written evidence from David Bermingham (EXL0052) Back
407
Written evidence from Edward Grange and Rebecca Niblock (EXL0035).
See also written evidence from Daniel Sternberg (EXL0051) and
written evidence from Dr Ted Bromund and Andrew Southam (EXL0048). Back
408
Q209 (Rt Hon. Theresa May MP, Home Secretary) Back
409
Schtraks v Government of Israel (1964) AC 556 at 580 Back
410
Written evidence from Liberty (EXL0066), see also Moray Bowater
(EXL0003), Christopher Burke (EXL0012), Philippa Drew (EXL0032),
Rachel Hasted (EXL0004), Jeremy Lewis (EXL0015). Back
411
Lofti Raissi v SSHD (2008) 3 WLR 375 Back
412
Q26 (Ben Keith) Back
413
Written evidence from the Law Society (EXL0046) Back
414
Written evidence from the Crown Prosecution Service (EXL0054) Back
415
Q26 (Jago Russell) Back
416
Q204 Back
| 
