Summary of Conclusions and Recommendations
Human Rights Bar and Assurances
1. It is right that the human rights bar is set
at a high level. Accusations of human rights breaches are serious
and the courts should be as sure as possible that they can be
substantiated. (Paragraph 60)
2. We are content that the courts' interpretation
of the human rights bar is suitably responsive, where necessary,
to the wide variety of circumstances presented in extradition
cases. This provides a real protection to Requested People without
interfering unduly with the extradition process. The changes in
the application of Article 8 since HH are a welcome confirmation
of this. (Paragraph 61)
3. Assurances are only used where serious fears
of human rights breaches have been demonstrated. We therefore
believe that assurances should always be handled carefully and
subjected to rigorous scrutiny, particularly to ensure that they
are properly and precisely drafted, and comply fully with the
Othman criteria. The importance of ensuring that they are genuine
and effective cannot be overestimated. They must provide Requested
People with real protection from human rights abuse. (Paragraph 88)
4. We believe the arrangements in place for monitoring
assurances are flawed. It is clear that there can be no confidence
that assurances are not being breached, or that they can offer
an effective remedy in the event of a breach. (Paragraph 89)
5. It is questionable, in our view, whether the
UK can be as certain as it should be that it is meeting its human
rights obligations. (Paragraph 90)
6. We welcome the Government's review of the
monitoring of assurances as we are concerned that the current
arrangements via consular services fall well below what is necessary.
(Paragraph 91)
7. We urge the Government to complete its review
of the monitoring of assurances as a matter of urgency. Given
the interest both Houses of Parliament have taken in the UK's
extradition law and the importance of this issue, the Government
should present the outcomes of this review to both Houses for
debate. (Recommendation 1) (Paragraph 92)
8. We recommend the Government make arrangements
for the details of assurances to be collated and published regularly
to improve the transparency of the process, not least so that
the international community and the authorities in a Requested
Person's home state can have greater information about when assurances
have been required. (Recommendation 2) (Paragraph 93)
9. We recommend that greater consideration be
given to including in assurances details of how they will be monitored.
The Government and CPS should be particularly astute to request
such details when they are seeking assurances. (Recommendation
3) (Paragraph 94)
Proportionality
10. The operation of the EAW, in particular the
absence of an effective proportionality check by the Issuing State,
means the Government was right to introduce the proportionality
bar into domestic legislation. (Paragraph 126)
11. We see no reason why the proportionality
bar should not be extended to conviction cases given the number
of EAWs received for trivial matters; the Government should therefore
legislate accordingly. In order for the bar to be effective the
National Crime Agency must be resourced accordingly and we also
call on the Government to ensure that adequate resources are in
place. (Recommendation 4) (Paragraph 127)
12. We hope that over time improved practice
will develop throughout the EU making the proportionality bar
practically redundant. (Paragraph 128)
13. We do not believe there to be a similar systemic
risk of disproportionate requests to justify a proportionality
bar for Part 2 countries. (Paragraph 129)
Forum
14. In our view, the CPS's criterion of "where
most of the criminality or most of the loss or harm occurred"
is likely to continue to produce unpredictable outcomes. This
is unavoidable… The current formulation provides the necessary
discretion to the prosecutors to reach sensible conclusions. (Paragraph 138)
15. Further commentary on the prosecutors' guidelines
for cases of concurrent jurisdiction and their implementation
may help to avoid ill-founded criticism. Similarly, providing
complete and full information to Requested People about the rationale
behind the decision to seek extradition in cases of concurrent
jurisdiction may be helpful. We recommend the Government consider
what additional information could be provided and issue the necessary
guidance to the CPS. (Recommendation 5) (Paragraph 139)
16. The forum bar is still a new element to extradition
law. It is too soon to come to a view on its effectiveness. (Paragraph 167)
17. It may be that a wider 'interests of justice'
test ought to be allowed in the forum bar but, on the basis of
the evidence we have heard, that is far from certain. With only
a small number of cases having gone to appeal, it is too soon
to conclude that the bar is too restrictive. (Paragraph 168)
18. We conclude that having a process whereby
prosecutors' decisions can be directly scrutinised in open court
is a valuable addition to the 2003 Act and has potential to make
this part of the process more transparent. This may be a useful
addition to the law given our conclusions in paragraphs 138 and
139. (Paragraph 169)
19. We are content that the provisions concerning
the prosecutors' certificate do not undermine the bar. The forum
bar should not prevent extradition where a prosecution in the
UK would not be possible. The CPS's approach to the certificate
appears to us to be a proportionate use of the power to ensure
that this does not happen. (Paragraph 170)
20. We do not consider that there should be (nor
under the EAW scheme could there be) an absolute bar to extradition
merely because it is sought in respect of a UK national whose
criminal activity was performed entirely in this country. (Paragraph 171)
21. We recommend that where a person is normally
resident in the UK the courts should be particularly astute to
ensure that:
(a) no other less draconian measures are available
to progress the case to a just outcome;
(b) the forum bar has been fully explored in
court;
(c) all relevant Article 8 arguments have been
fully evaluated to ensure extradition is not disproportionate;
and
(d) due consideration has been given to the possibility
of obtaining assurances as to:
(i) the prospects of pre-trial bail; and
(ii) the transfer back to the UK of at least
part of any eventual sentences. (Recommendation 6) (Paragraph 173)
Extradition and Other Areas of Law
22. It is not right that a person facing extradition
is unable to present sensitive material in order to resist extradition
without prejudice to others. (Paragraph 189)c
23. We recommend that the Government bring forward
proposals to amend the 2003 Act to provide for an independent
counsel procedure in order to enable sensitive material to be
used in extradition hearings. (Recommendation 7) (Paragraph 190)
24. The Committee has not heard sufficient evidence
to comment usefully on how extradition law ought to interact with
proceedings in the Family Court, child abduction cases and people
trafficking law. However, clearly these are areas where further
investigation is necessary. We recommend that the Government commission
a review into these matters. (Recommendation 8) (Paragraph 199)
Legal Advice, Legal Aid and Expert Evidence
25. We recommend that a ticketing system be introduced
to manage access to the duty rota in order to ensure proper expertise
is available from the earliest point in proceedings to help the
Requested Person and the courts. The Government should make the
necessary arrangements to require this. (Recommendation 9) (Paragraph 208)
26. It is not acceptable that individuals are
kept in any unnecessary pre-trial detention, from either their
own perspective or that of the state. Delays to the extradition
process are contrary to the interests of justice and place an
additional burden on the taxpayer. (Paragraph 239)
27. We regret the fact that the district judges
at Westminster Magistrates' Court have found it necessary to insert
a three month delay into the system. In the light of the Lord Chancellor's
comments and the concern expressed by the European Commission,
we hope that the Court will keep this automatic delay under review,
that the Government will take the necessary steps to eliminate
it and that it will therefore be removed at the earliest opportunity.
(Paragraph 240)
28. We believe the high-level cost-benefit analysis
provided to the Baker Review is neither a sufficient nor a credible
response to the concerns raised about means testing for legal
aid. The Government should conduct and publish a full and detailed
cost-benefit analysis. In our view, unless a cost-benefit analysis
very clearly favours retaining means testing, the interests of
justice should take priority. (Recommendation 10) (Paragraph 242)
29. This more detailed cost-benefit analysis
should include consideration of the savings that could be made
by matters being resolved by lawyers in the Issuing State. (Recommendation
11) (Paragraph 243)
30. Again, if the cost-benefit is balanced, the
interests of justice ought to take priority. (Recommendation 12)
(Paragraph 244)
31. The Government should, as a matter of urgency,
pursue solutions, such as the e-form, to make the process of applying
for legal aid work more efficiently and effectively. (Recommendation
13) (Paragraph 245)
32. From the submissions we have received we
have been persuaded that it is possible for the necessary expert
evidence to be obtained on legal aid. (Paragraph 252)
Right to Appeal and the Role of the Home Secretary
33. 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) (Paragraph 274)
34. 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.
(Paragraph 289)
35. We are content that the courts are able to
deal with late appeals in the Home Secretary's place. (Paragraph 290)
Changes to Practice
36. 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.
(Paragraph 312)
37. 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. (Paragraph 313)
38. 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) (Paragraph 314)
European Arrest Warrant
39. 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) (Paragraph 315)
40. We believe that the EAW provides an improved
system of extradition between Member States and we support the
UK having opted back in to it. (Paragraph 362)
41. We believe the Government should be working
towards a model whereby the EAW is an instrument of last resort,
used in the event that other mutual assistance and flanking measures
are inadequate. We ask the Government to set out its plans for
implementation of the measures already adopted as a matter of
priority, and to review and re-evaluate those mutual assistance
and criminal procedural rights measures which it has not yet joined.
(Recommendation 17) (Paragraph 364)
Part 2 Countries
42. 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. (Paragraph 393)
43. We urge the Government to conclude and publish
the findings of the review of Part 2 designations at the earliest
opportunity. (Recommendation 18) (Paragraph 394)
44. 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) (Paragraph 395)
45. 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. (Paragraph 396)
UK/US Extradition
46. Simply comparing the numbers of people extradited
to and from the US is not a reliable method of assessing the operation
of the treaty, and does not prove the hypothesis that the treaty
is unbalanced. There may be many legitimate factors that underpin
the figures. Without much more detailed research the statistics
do not allow for sound conclusions. The principle of comity does
not require symmetrical justice systems; the important principle
is that extradition cannot and does not go ahead where any of
the statutory bars are found to apply. (Paragraph 403)
47. We conclude that the evidentiary tests in
our extradition arrangements with the US are different. However,
whether this difference has any practical effect is debatable.
The view that experience to date demonstrates that they are "functionally"
the same is persuasive. (Paragraph 412)
48. Much of the evidence we received about aspects
of the US justice system is concerning. Some of the accounts we
received from those who had been extradited to the US were, in
places, quite moving. The risks of such experiences are inherent
to extradition to any foreign jurisdiction, although we are concerned
that some conditions and procedures in the US may not always be
worthy of the tacit approval that extradition implies. (Paragraph 440)
49. The ECtHR has considered whether these concerns
ought to prevent extradition to the US. It has found that extradition
to the US does not constitute a human rights breach because of
these concerns. The ECHR is, correctly, the UK's baseline for
considering whether the justice systems of other countries makes
extradition human rights compliant. We do not, therefore, propose
any changes in our legal arrangements with the US. (Paragraph 441)
50. It is clear from the evidence that, rightly
or wrongly, a sentiment remains that pre-trial conditions in the
US risk being excessively harsh. This is particularly the case
for those assessed in the UK as presenting a low risk of either
being violent or absconding, but who are nevertheless subjected
to the use of force on flights or detention in high security facilities,
and for non-US residents unable to provide a suitable bail addresses.
(Paragraph 443)
51. We urge the Government to make representations
to the US authorities to agree the treatment of those extradited
from the UK, with particular regard to transfer, pre-trial detention
and bail. (Recommendation 20) (Paragraph 444)
52. We do not consider the US to be a special
case. The Government ought also to make similar representations
to any extradition partner whose conditions do not breach the
ECHR but might be considered excessively harsh. (Recommendation
21) (Paragraph 445)
53. The outcome of these representations should
be formalised into a Memorandum of Understanding in order to clarify
the positions of each country in relation to the standards of
treatment expected when a person is extradited. (Recommendation
22) (Paragraph 446)
54. We do not take the view that the US's interpretation
of jurisdiction is inappropriate. The US is clearly more active
in prosecuting cross-border crimes than many other countries but
this does not mean its interpretation is excessive. (Paragraph 448)
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