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



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.



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]


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]


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]


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

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