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

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)


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)


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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