Unrevised

Members present

Lord Inglewood (Chairman)

Lord Brown of Eaton-under-Heywood

Lord Empey

Baroness Hamwee

Lord Hart of Chilton

Lord Henley

Lord Hussain

Baroness Jay of Paddington

Lord Jones

Lord Mackay of Drumadoon

Lord Rowlands

Baroness Wilcox

________________________

Examination of Witnesses

Jodie Blackstock, Director of Criminal and EU Justice Policy, JUSTICE, Michael Evans, Extradition Manager, Kaim Todner Solicitors Ltd, Graham Mitchell and Julia O’Dwyer

Q172 The Chairman: Can I extend a warm welcome to you all and introduce you to the rest of the Committee. First of all, we have Jodie Blackstock who is from JUSTICE. Secondly, we have Michael Evans who is from Kaim Todner Solicitors. Thirdly, we have Graham Mitchell who, as the note tells us, had a very unhappy experience in Portugal. Fourthly, we have Julia O’Dwyer who is Richard O’Dwyer’s mother.

We have a series of questions for you and please, each of you, do not feel that you necessarily need respond to all of them, because some of them may not touch on your experience and knowledge of the extradition system. Please feel free to say as much or as little in response. If you think we are not quite asking the right question, please then interject and tell us what you think we should have asked and what the answer is. What we are here to do is to try to find out—for want of a better way of putting it—the truth behind the system, and so please feel relaxed about the replies you give.

I will start with a general question. Before I do that, if each of you could formally introduce yourselves by name—that is for the benefit of the transcript—and then if you have any absolutely burning issue you want to raise at the outset, as an opening statement, please feel free to do so but keep it concise to a couple of minutes. You will probably find, having seen the kind of questions we are going to ask you, that most of the points will be covered by them. If I could I will start by asking Jodie Blackstock to begin.

Jodie Blackstock: Thank you, my Lord Chairman. I am Jodie Blackstock. I am the Director of Criminal and EU Justice Policy at the law reform organisation JUSTICE.

Michael Evans: Thank you, my Lord Chairman. I am Michael Evans from Kaim Todner Solicitors. I am the Extradition Department Manager. My practice is defence, but I am obviously here to give impartial evidence.

Graham Mitchell: I am Graham Mitchell. Twenty years ago I was wrongfully arrested while on holiday in Portugal. I was cleared of that offence. Two years ago I was arrested on a European Arrest Warrant and charged with murder.

Julia O’Dwyer: Thank you, my Lord Chairman. I am Julia O’Dwyer, mother of Richard O’Dwyer who was threatened with extradition to America in 2011.

Q173 The Chairman: Thank you very much. I will go on to the first of our series of questions. We have heard evidence that the sheer anxiety of waiting for extradition proceedings to conclude is very severe. I would be interested to hear from each of you, from your own perspectives of the way the system works, whether you feel that is a fair comment. Perhaps we can start with Graham Mitchell.

Graham Mitchell: What happened with me was it was a perfectly normal evening. I was sitting indoors with my family. There was a knock at the door and the Serious and Organised Crime Squad, as it was then, entered and said, “We have got a warrant for you for the crime of first degree murder, which you committed in Portugal”. Obviously it came as a massive shock. My wife was aware of it but my two children were not aware of it. They obviously went into shock; I went into shock. You just do not know what to do. You are taken from it being a normal run of the mill day and then suddenly, bang, you have something like that on you. It was 17 or 18 years previously when the original thing had happened. You try your best to forget about it. I suffered from post-traumatic stress disorder and depression as a result of the original offence––the original acquittal rather. Since the European Arrest Warrant I have gone back to square one.

The Chairman: Thank you. Mrs O’Dwyer, what are your experiences in this context?

Julia O’Dwyer: I would describe that initial period when this happens—because it always comes out of the blue, by the nature of serving an extradition warrant, totally unexpected—as sheer terror. When it happened with my son he was already reporting to bail, as requested by the British police who had seen him six months previously and allegedly were investigating a prosecution in this country. He went to report in London to bail and an officer came and said that all the criminal charges in the UK had been dropped. So we had a brief sigh of relief, but then in the next sentence he said, “But here we have an extradition warrant for America instead” and it was like, “What? What is that about?” It was unbelievable.

Richard was taken immediately to the court. There was no explanation. No information was given, not a leaflet about, “This is what is happening”, even just something to read. You are waiting around then to go in front of the court and the Westminster court is full of people being extradited. I went into the court waiting for Richard to come in and saw the judge then rubberstamping everybody off. They were mainly eastern European people being extradited to their own home country, which is a bit different from being extradited to somewhere that is not your home country and that you have never been to. So it was frightening for me to observe all these other people being told, “Yes, come back next week. Get into a van at the back of the court and you will be taken to the airport”. I just thought, “Oh, my goodness, that is going to be happening to Richard in a few minutes”. So that was terrifying at that point. That was the most terrifying day that I can remember, the first day when it happened.

The rest of the time was less frightening because I was working on exploring whatever avenues there might be, researching about the Extradition Act and getting help, getting lawyers and things sorted out. But, yes, I think that was the most immediately terrifying part.

Then it is frightening. As you go through the legal processes, you see it is less and less likely that you are going to win and that your son is going to be extradited, which I said in my statement that I was not going to be letting happen if I could avoid it.

The Chairman: Jodie Blackstock, what do you think?

Jodie Blackstock: Naturally I have not been through this process and I do not directly litigate these cases, like Mike does, so I do not have that direct contact with clients. But I suppose what I can say from a step back is that extradition proceedings are a heightened form of arrest. Of course the police will not consult in the process usually towards arrest with individuals in this country, and that is just compounded in an extradition scenario because the—

The Chairman: Can you say exactly what you mean by “this is compounded in an extradition scenario”?

Jodie Blackstock: The conversation about whether to arrest or not is one that takes place between the issuing and executing authorities. There is no room at that point for involvement of the affected person. It is slightly different sometimes in—

The Chairman: It is not the case in any arrest, is it? My understanding is if you are arrested you are arrested.

Jodie Blackstock: That is the point I am making, other than perhaps in the white collar fraud types of cases where there is sometimes information in advance that gets to the affected person because of the nature of that work. There may be an investigation, for example, of a particular business, so perhaps a person is on notice. The majority of cases, particularly in the extradition field that we are talking about, are as our other witnesses have described. It is a knock on the door and that is the first you hear about it.

The other aspect of it is the waiting after that, and in fact in part 1 cases there may not be that much waiting. It may be very swift, and there are problems with that swiftness. The aim of the framework decision is to have a speedy return and it may be for some people that they are not even able to get legal representation in time. They may not understand the process if they are not familiar with the English language, and so forth. They find themselves in the court with the process you saw of effectively being rubberstamped through from their perspective, and put on a plane and sent home when the proceedings then begin against them. So there is a balance between those two extremes I suppose.

The Chairman: Mr Evans, do you have any thoughts on this, please?

Michael Evans: Yes. Obviously my evidence is anecdotal. It is based on experiences through clients, what I see at Westminster Magistrates’ Court and what I see and hear through my clients. I agree that to an extent there is an issue with the sheer anxiety that comes out of the length of the extradition proceedings––the wait until they conclude––I think more important is the anxiety that arises—and I would say unnecessarily—out of the fear and the expectation of what waits on the other side. I think that is more important, from what I see about where the anxiety comes from. Not about how long the proceedings take to extradite but that it is almost inevitable in most cases and what is going to happen when you get to the other side.

Q174 The Chairman: Particularly for the last two of you at this point, it has been suggested to us that if you find yourself in this predicament it may well be better voluntarily to return to the place where the charge is being brought rather than fight the extradition procedure. Do you have any thoughts about that?

Michael Evans: For me it is completely case by case and person by person, and I note you say return home. There are a lot of people who are facing extradition to a country they do not speak the language of, that they have never been to, that they were perhaps on holiday once in, and that is it. They have no ties with it. It might be a situation where if you are talking about a very minor crime and there is going to be no custody, it might well be the case that you might be better off to go but—I think we might be coming on to it later in this session—I would not advise someone to just go blind. I would never advise someone to consent. I have advised many people not to contest. Those are different things.

You would want to look at likely penalties, likely sentences, not full maximum sentences, and you would want to talk to a lawyer in the other state because you can, with dual representation, solve many problems and avoid extradition.

Jodie Blackstock: I would add to that from the experiences I had conducting our report in 2012, and the two years before that, that voluntary return is perhaps more useful in other countries where there is a land border; it is easy to return and perhaps it is only an hour across the border. It works well in the context of an agreement between defence lawyer in the issuing state and prosecutor in that state. So this is where dual representation applies, and we will speak to that in detail I think in a later question. That arrangement is such that the prosecutor or the court is able to agree for a hearing to take place—it might be before an investigating judge and it is certainly at a preliminary stage—following which the person can then return home. Home in this context is the requesting state. It may be that that can be done in the course of a matter of hours, so that it is not necessary to resort to an arrest warrant.

I think this is where we say repeatedly that it is a draconian measure and there are lesser measures that could be looked at before resorting to the arrest warrant. But the reality is that this is the most effective method for police officers and courts across the European Union at least, and perhaps worldwide, to deal with the problem of prosecuting crime. It is a swift and sudden mechanism, rather than using letters, regulatory and mutual legal assistance.

The Chairman: Before we go on, do you want to say more? Mr Mitchell, you stood trial in Portugal. Is there anything you would like to say about that before we go on to Lady Hamwee?

Graham Mitchell: The public in general tend to accept that the legal system—and the quality of the law for that matter—in all countries is similar to what we have in this country. From my point of view, nothing could be further from the truth. My case and my acquittal were filmed by BBC “Panorama”. During the course of the filming the prosecuting judge was found at the bench sound asleep. The whole witness circle—if you would like to call it that—from the police officers involved to the two supposed witnesses gave evidence. Only since the European Arrest Warrant has been dropped, for want of a better word, there was a civil procedure instigated by a solicitor in Germany for the victim. New evidence came to light in the paperwork that was served regarding the—

The Chairman: Can I interject one question here? Is it right that you did not have proper legal representation in the circumstances of your problem?

Graham Mitchell: Originally or during the European Arrest Warrant?

The Chairman: During the first phase when you first were in Portugal.

Graham Mitchell: At the beginning, no. Towards the end, yes. We were held on remand for a year without any trial, without any charge.

The Chairman: Did you have any legal representation?

Graham Mitchell: Yes.

The Chairman: Was it satisfactory?

Graham Mitchell: Yes, but it was arranged privately.

Baroness Hamwee: I want to follow up the point Mrs O’Dwyer made about a leaflet, and it is a question for Mr Evans. Without for a moment impugning your ability to explain things to your clients, from your experience would a leaflet be useful explaining the principles of extradition, or is one situation so different from another that a leaflet could be more unhelpful than helpful?

Michael Evans: I think a leaflet—and I have seen other sessions here where a video has been suggested—is an excellent idea and I would not say there was a single thing wrong with it. A video would have to be very carefully drafted or scripted. I send to every client at the beginning of the case not just a standard file-opening letter but a six-page letter. It is a standard letter, so as and when you get a new language you can have it translated. 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 and what addresses—

The Chairman: Will you send us a copy, please?

Michael Evans: Yes. I might have to update it first.

Jodie Blackstock: The directive from the right to information, which came into force in June last year, requires member states to provide a letter of rights, not only in domestic cases but in EAW cases as well. So this is something that we should already be doing, and it should be available at the police station for people who are arrested on a European Arrest Warrant. I have not seen that. I know that the Police and Criminal Evidence Act codes of practice were updated for domestic cases, largely in a way that we at JUSTICE believe is compliant, although there are some teething aspects of it. But certainly on the issue of European Arrest Warrants there is not, as far as I am aware, a dedicated leaflet.

Baroness Jay of Paddington: Can I ask a practical follow-up to that? Are you suggesting that it should be the responsibility of the police to hand this leaflet if the leaflet was available, because Mr Evans’ helpful letter would not be available until he had been brought into the case?

Jodie Blackstock: No, indeed. It is already the responsibility of the police to give the notice of rights and entitlements to people who are arrested domestically on domestic charges, which has been agreed in association with the Law Society, is published by the Home Office and available on the Home Office website in multiple languages. So it would not be too much effort to do exactly the same in European Arrest Warrant cases.

Q175 Lord Rowlands: The process is draconian and Mr Rees-Mogg, the Member of Parliament who gave evidence to this Committee a couple of weeks back, passionately argued that the European Arrest Warrant cuts across the fundamental rights of habeas corpus. Do witnesses agree?

Jodie Blackstock: In my view extradition is a legitimate process, so long as it follows the rules that are in place between whichever treaty is in place, or Act of Parliament that is in place, and of course we have the part 1 and part 2 arrangement and bilateral arrangements. If they are followed then it serves a legitimate purpose and it would be difficult to find it in breach of habeas corpus. But it is ensuring that the procedural safeguards surrounding it apply appropriately and the procedural safeguards available are appropriate to mitigate the impact of it. I imagine anyone who is arrested anywhere feels it is a draconian process and, as I say, it is just compounded in the extradition scenario because of the language barrier and the lack of knowledge about, as Mike says, where you are going and what you are going to. But I am not sure I could agree to say that it in itself breaches habeas corpus

Julia O’Dwyer: Can I go back to the point about information in a leaflet at the time of being served an extradition warrant? This happens suddenly, as I have described. In my son’s case, he said the extradition warrant was just wafted in front of his eyes, so nothing was given to him to read. Then, when you go to the Magistrates’ Court for the first time, you do not have a lawyer and a legal team. You have a duty solicitor, and so you do not know anything about your case because at that point there is no case. You are completely in the dark and so is the duty solicitor who turns up to represent you, although they will be an expert in extradition. So there is a gap and, until you leave the court, go home and start doing your research for yourself, you may know very little.

When I say a leaflet—and I have already drafted a leaflet as well—I think it is a simple leaflet explaining, “This is what is happening to you, this is what you need to do and what can be done”, in basic language so that anybody in the country can understand it, not full of legal jargon. Then there might be some contact numbers on it to enable them to start looking for what help it is they need in the first instance.

Q176 Lord Mackay of Drumadoon: May I ask two questions, which are not unrelated to what you have been saying so far? We will take them separately, but just to alert you to that. To what extent, from your respective experiences, do you feel that the reason why a prosecution has been brought in one jurisdiction rather than another is a transparent decision and one that is open to challenge? Perhaps you would like to begin, Mr Evans.

Michael Evans: The issue of prosecution decisions, as to where the prosecution takes place, happens and is decided well before we become involved. When we become involved that person is a requested person who, by the legitimate aim of the Act, therefore must be ready for trial in terms of accusation. Essentially these decisions must have been made already, so it is very difficult to challenge it.

Lord Mackay of Drumadoon: At the first stage is it transparent and obvious to you, as an experienced practitioner, what the reason for the decision was?

Michael Evans: No. We would not be given those reasons straight off. You could ask for them and it depends. The CPS may give you those reasons, the requesting state may give you those reasons, but equally they do not have to.

Lord Mackay of Drumadoon: As far as challenging it, you say there is really no means of challenging it at that stage?

Michael Evans: I once challenged, by way of judicial review, a refusal to prosecute, which is rather interesting as a defence practitioner. I took the Metropolitan Police for failure to investigate and the DPP for failure to charge to judicial review. It was an Argentinean extradition request about importation of drugs. A signed statement was given and it really could have taken place. But on legal advice–the judge said quite rightly––we did have to drop it. It was more than an uphill struggle and you just would not be able to challenge it in that sense.

Jodie Blackstock: I can perhaps comment in a European context on the available legislation that covers it. We have a Council of Europe treaty and a European convention on mutual legal assistance that, although they do not expressly deal with the issue of conflicts of jurisdiction, are the mechanisms by which a conversation is had as to which country is the appropriate country for prosecution.

That context is supposed to take into account the Eurojust Guidelines 2003 on which is the most appropriate country. Those guidelines state within them that they have to take account of human rights considerations but they do not go as far as to say due process considerations, which in my view would be incorporating the view of the suspect. It is very difficult to do that of course, naturally, in an arrest context, an investigatory stage context, but when you are considering the best place to prosecute someone—one of the considerations that you must take into account is where the suspect is and where the majority of the criminal activity took place—one might think that the representations that could be made by the suspect were necessary to comply with due process rules.

The scenario that we have at the moment across the world does not incorporate that stage. In the legislation that might be used to do that in Europe, which is a framework decision on the conflicts of jurisdiction, there is not one on the list of 35 that the UK is going to opt back into, so it is not something that we could use. I should say that that legislation does not provide for this expressly either, but again it does say it has to comply with article 6 of the Treaty on the European Union and, therefore, the Charter of Fundamental Rights. I imagine from a defence perspective we would start to incorporate due process into that instrument, but we will not have it in December, unfortunately.

Lord Mackay of Drumadoon: Mrs O’Dwyer, is there anything you would like to say on that?

Julia O’Dwyer: I do strongly feel that extradition in some cases has been treated as the first rather than the last resort. Generally the public would think that extradition is a tool used to return fugitives to the scene of a crime in a country that they have fled away from. As you know, we have had people who have been requested to be extradited to America who have never set foot in that country. Other people have alluded to this in their evidence, that America has lots of money to spend on prosecuting cases, and sometimes I think that the CPS just leave it to them because they have the resources. In my son’s case we had a letter from the then DPP—our lawyer questioned whether the prosecution guidelines had been followed, because there are guidelines for prosecutors in cases of concurrent jurisdiction—who said, more or less, “We only use those for the serious cases”. So I question: then why are they using extradition for a non-serious case in the first instance?

We were also told towards the end of proceedings, by the prosecutor from America, that Richard had been invited previously to America to sort out this matter. I am not sure that an extradition warrant would be regarded as an invitation, but certainly we had no other invitation.

Lord Mackay of Drumadoon: No, not one you would RSVP to.

Julia O’Dwyer: I can say that because all of Richard’s mail came to the home address at that time because he was in university and he had changed his address every year. I would know if there was an invitation because I was opening the mail, and there was not. So I am assuming that they thought the extradition warrant was the invitation.

Lord Mackay of Drumadoon: Mr Mitchell, is there anything that you would want to add?

Graham Mitchell: In my case I was branded a fugitive from justice, someone who had supposedly been living under the radar for 17 years in this country. They said that they had served several attempts to get me to return to Portugal, none of which I had ever received or had any knowledge of.

Q177 Lord Mackay of Drumadoon: Can we move on to the next question I have to ask you? Our Committee has heard that the Crown Prosecution Service will pursue a domestic prosecution if it is in the public interest, even if this prejudices another state’s prosecution. To what extent do you agree that that happens and that it should happen?

Michael Evans: All I would say is that the Crown Prosecution Service can tell you how many times and what those cases are, and should do if they are relying on the fact that they do so often or it is their policy to. The point is that these decisions are made well before the extradition request comes along and we are not party to those decisions. It might well be that if they have made that decision to prosecute here then an extradition request does not come. There may have been discussions beforehand. But, as I say, we are not party to them. They certainly should be able to give you precise figures on how many cases that has happened in.

Jodie Blackstock: I have nothing to add to that.

Lord Mackay of Drumadoon: Do you have anything you wish to add?

Julia O’Dwyer: Not to that, no.

Q178 Lord Hart of Chilton: We have had a lot of evidence about the differences between the approaches of the United States and the United Kingdom. In the United States, the prosecutor who approaches his job with a great deal of zeal, often having come from a major law firm and this is part of his career pattern, in fact has the complete power to direct proceedings. He can go to a grand jury and he can ask it to issue subpoenas to gather evidence. In this country it is totally different because the CPS comments and makes suggestions on the police investigation, but it is a rather different approach from that in America. Do you have any comments on what you have seen in action?

Michael Evans: I think I would agree that the American approach is very different. My experience of it again only comes through what clients have told me once they have gone there and the way you see the extradition proceedings progress. They do not like giving you all the information. They like to wait until their hand is forced. In a recent US case for a husband and wife we started to argue, and it looked realistic, that article 8 was in play with one of them, that the evidence against the wife was lacking. It is only then that they come out with a further statement. So once you are there, I suppose the way that they deal with you is very different.

In my view, they use extradition as a bargaining tool with you and also extradition to the US forms part of the punishment. The punishment should not exist until there is any sort of sentence imposed and any finding of guilt, whereas it really does because you are being taken somewhere where you do not have any actual guarantee that you are ever coming home. When you get there, as the couple I am talking about found out, the prosecution suddenly say, “You fought extradition” and that is what they use to block your bail in the United States. Essentially, what that means is, “You used your legal rights in your home country. You did not disappear. You did not run off. You did not hide. You were on bail. You have now been extradited. Oh, you are a risk of flight because you fought extradition. You did not want to come here”.

In my view they are very different and they are over-zealous. You have to remember that these are the people who decide to investigate and then decide whether or not to apply for extradition. I would say it is one person, who is often an elected official, making all of the decisions really on a political basis of, “Look at me, I am tough on crime and I will sort them. I take no nonsense”. It is wrong that all that power should be vested in one body. Just like in Europe we say it must be judge to judge, it must be a judicial authority that looks at this. It is not the case in America. It is a government-to-government request. But, unfortunately, all the power lies in one person and I do not think that is fair.

Lord Rowlands: Mr Evans, you acted in the Eileen Clark case; is that right?

Michael Evans: I did up until Liberty took over.

Lord Rowlands: The Committee was interested in an interview by Mr Clark in the Independent. Have you any thoughts or observations about the case? That was quite a high profile case.

Michael Evans: Eileen Clark is American but she had lived here for a very long time. The simple fact is that she was extradited, she was jailed and then eventually she was bailed to a bail hostel, but the prosecution did not want her out. From what I have read in the Independent newspaper, she agreed to plead guilty in exchange for no jail time, unsupervised probation and the ability to fly straight back home. It is a complete and utter waste of the court time that was used here and a wrongfully used extradition process.

If it really is the case that the total sum of her criminality is viewed in the sense that she should never set foot in jail, then she does not meet the criteria for extradition. But when they threaten, “You will be in jail for X amount of years” and that is all they need to say to the UK, then it is a different story when the judge is looking at it because he does not have what the reality is, what the real sentence is going to be. I think anyone, when faced with the possibility of going to jail in the US for a very long time or agree to plead to this but serve no jail time and go straight home, would be a fool not to.

Q179 Lord Jones: This question is about specialist legal advice. The Committee has heard evidence, in regard to the European Arrest Warrant, that the most effective way to stop extradition is for the requested person to have a lawyer in the requesting state. Does that reflect your experience?

Graham Mitchell: Absolutely. It was exactly my experience. I was lucky enough to have had the help of Fair Trials Abroad, originally in Portugal. I told my wife to get in touch with them. She did, and through that process we were given a specialist extradition lawyer in this country who in turn arranged for a similar thing in Portugal.

Julia O’Dwyer: Although my son’s case was not under the European Arrest Warrant, I think the same can be applied with the US cases because that certainly did help us to sort the matter out with my son. We were not made aware of the need for that. We had a lawyer in America who would do the report about prison conditions and so on, but we did not go further than that. So a lot of the information I got about possible remedies and ways to stop this extradition came from a person who had been extradited, David Bermingham, one of the NatWest Three. He advised me from nearly day one on how to go about stopping the extradition, so it was on his advice that eventually we did seek a specialist. Actually, the specialist lawyer in America approached us. We did not need to go looking for one. So it was beneficial and that was very helpful in helping us to sort matters out. But I have to say that the most priceless support and information came from David Bermingham, because he had a lot of experience and knowledge of the way the US system worked. We followed his advice and we had the best outcome that we could have had, thanks to him.

Jodie Blackstock: I would say that dual representation––namely, having a lawyer in both countries, or indeed wider than that if another country is involved––is essential in extradition cases. When a warrant comes through the lawyer who receives it—like Mike, who is extremely specialised in this area, but I do not know that he would suggest that he knows everything about Romanian law or the law of any other of the 27 member states of the EU—needs to verify every assertion in that warrant as to the appropriate sentence for an offence, the appropriateness of the arrest in the circumstances, the passage of time, the statute of limitation issues. All of those things need to be verified by someone who knows the law in the issuing state. You then have your client’s instructions. They may well assert all sorts of things, if they are from that country, as to problems in that country and their concerns about what they face. I imagine every single person does who is faced with an arrest warrant from that country but, as the lawyer in the executing state, you have no knowledge about whether any of those things are true.

What you see consistently across all of the cases in these courts, where people are arguing against extradition, is that they have to have sufficient evidence to do so. It is not enough to go before a court and assert a problem exists without having sufficient evidence to back it up and particularly on human rights grounds. There has to be clear and cogent evidence of a very high threshold to establish a human rights issue. That cannot be established without the assistance of someone with expert knowledge in the country. It does not have to be an extradition lawyer but it does have to be a criminal lawyer who is regularly undertaking criminal cases and can point you in the right direction of the appropriate academic experts as well. This is the finding that we made in our 2013 report from looking at cases across Europe, and I imagine you can extrapolate that to the world in general.

The deficiency at the moment is the lack of a functioning network of defence lawyers, particularly in the European Union. It is something that has been called for for some time, but the nature of defence work is that you have individual practices and each individual creates their own network. Mike probably has one of the largest. But there are concerns about people receiving these cases on a duty list who perhaps are not so experienced and would not know who to go to for that sort of assistance.

The European Criminal Bar Association has a “find a lawyer” section on its website, but it asserts suggestions for criminal lawyers in different member states. The question is: how do you know the quality of that lawyer? How do you know what their fees are going to be for the work that you want to undertake with them. It may be a very simple question: is this the correct sentence for this offence? They should know that off the top of their heads. I know from colleagues that people can be charged a lot of money for a very simple question and that causes problems in itself.

The principle of dual representation is vital, in my view. That has been recognised by the European Union in the directive on the right of access to a lawyer. It appears in there. It is also a matter currently being considered in the context of a legal aid directive, neither of which the UK is opting into at the moment.

The Chairman: Are you saying to us that we should, or is there something else we should do in domestic law to remedy what you see as a deficiency?

Jodie Blackstock: The UK probably uses dual representation more than anywhere else. It is possible on legal aid—although torturous I imagine—to make these arguments to obtain legal assistance in the issuing state from a lawyer as an expert. Legal aid can be provided in certain circumstances for that evidence to be produced before our courts. It is not so much a problem here of us not complying with that principle; it is an issue of demonstrating to other member states that this is an essential mechanism. We do that most successfully by agreeing to opt in to a measure from Europe that provides for it.

Michael Evans: I would agree totally with everything that has been said. There are plenty of European Arrest Warrants where the issue is a fine. The issue is a hire purchase loan for a laptop that did not get paid off and the person came here. Five years later they are found and they are being threatened with—the European Arrest Warrant just says what the maximum sentence is for fraud. So they might look at this and say, “Seven years in prison for not paying this”, but if you have a lawyer in the requesting state—we always advise people straightaway, “If you can, get a lawyer in the requesting state”—the lawyer will go to the court and say, “He is in the UK. He is living a good life. He can pay the fine. Is that okay?” “Yes, fine.” Pay the fine; warrant disappears. A large majority of cases are from Poland and Lithuania, but other countries as well, where you have somebody who has served the custodial element of their sentence and been released or they have just been given a suspended sentence. I find it interesting that these people do not know each other but they all seem to say, “But I did say to my probation officer I cannot get work here and so I am going to go to the UK and they said fine” and then quite a lot later—I say that because it is too frequent to be just a group of people that meet each other and share information and say, “We will just say that”—you get somebody to go and say, “Look, what you said they needed to do was find work. Well, they found work. They pay taxes. They have a family and he supports two kids. Can you resuspend the sentence?” and the judge says yes.

Then you get the cases where you do not have that dual assistance. The person goes and then they phone you a month later and say, “I am back now. I was there for about two weeks in custody and the judge heard what I had to say and just said, ‘Fine, I will resuspend it. Go back’”. That is where dual representation really works. It is so effective and it would reduce the workload of the courts here.

Q180 Baroness Jay of Paddington: Can we return to the question of legal representation? Mr Evans, you said in your written evidence that no case on extradition should be considered without specialist legal representation but, as we have heard, there are all kinds of difficulties about that and one of them may be the question of means testing legal aid. What is your position on that from the point of view exclusively, of course, of extradition cases?

Michael Evans: I absolutely stand by my view in my written submissions and what I am going to say here. Extradition should not be means tested in terms of legal aid. It is interests of justice tested, and it passes that because it is agreed that it is a breach of your human rights in a sense. Extradition is a serious thing. So it passes the interests of justice test and the means test should not come into it, and does not come into it at a later stage. When you appeal there is no means test and you get solicitor and barrister, and you find that the appeal court works much more efficiently than the lower court and—

Baroness Jay of Paddington: Sorry to interrupt you, but are you suggesting that if there was that kind of representation at the earlier stage things might not go to appeal?

Michael Evans: Absolutely. I think there would be far fewer appeals if you had from day one a specialist extradition lawyer, who is qualified in extradition law, has a duty solicitor extradition qualification, which does not exist but should, and that you are represented by a solicitor immediately and throughout, and if it is serious you get a certificate for counsel. But, absolutely, I think that would reduce the work of the Magistrates’ Court, it would reduce the number of adjournments pending legal aid that eventually is granted, and would reduce the number of hearings needed. Things could be done administratively, agreed and proper advice could be given.

The other thing we do as defence practitioners is we advise our clients, “You cannot argue that. That is unarguable. So let us remove that and let us focus on what is arguable”. It is such a specialist niche area of law that there are specialist judges and specialist prosecutors. There is a special unit for prosecutors. There is a specialist extradition duty solicitor rota just to deal with first appearances, and there is only one court that deals with extradition. So how on earth would somebody who might not even be able to read and speaks a foreign language be capable of navigating through this minefield? It is not the same, in my view, as a domestic prosecution for common assault where you are standing trial in your own country, in your own language, and it is because you have hit somebody once, where you might be then looking at: do they need a solicitor if they can understand the process and they understand what is going on? They are not the same as domestic proceedings. They are niche and they should have a lawyer at all stages. But I think it would save money as well, I really do.

Baroness Jay of Paddington: The cost benefit analysis you think—

Michael Evans: I absolutely do. I have not carried that out. I do not have the figures, but from what I see in court it would go faster. It would have much fewer hearings and the hearings themselves would go a lot quicker.

Baroness Jay of Paddington: Lord Inglewood, our Chairman, asked the Government recently whether they were prepared to look again at the cost benefit analysis and I believe the answer was they had no plans to do so.

The Chairman: No plans at present.

Baroness Jay of Paddington: It is interesting to hear the strength of your view on that. Do you share that view, Jodie Blackstock?

Jodie Blackstock: I absolutely share that view. We have said that for many years before the Scott Baker review, and in briefings to Parliament when the changes were proposed for a leave hearing, I should say, because it does affect the issues about a leave hearing before the appeal courts. We were concerned about legal aid at that stage. I can go with everything that you have said there, Michael, about the need for legal aid at the first stage, bearing in mind in particular the experience that Mrs O’Dwyer has indicated about not knowing what you face. The person does not have legal aid in place. There is no requirement, and indeed no lawyer should be expected to undertake work without being paid for it.

A person will appear for their first hearing in the Magistrates’ Court, maybe not even speaking English very well, and have no clue what is going on, because they do not have any legal representation with them. The judge will probably adjourn the hearing. In almost all circumstances they will adjourn the hearing. That does not mean that the person has still not gone through a traumatic experience. Moreover, the costs of that hearing, the interpreter, their detention pending the next hearing and throughout the proceedings, all have to be taken into account. You will have seen the Scott Baker evidence. All the district judges who gave evidence at that point—I see the Green Book on your table there—indicated that it was a matter that needed to be addressed very swiftly. In their view, the cost benefit analysis outweighed the arguments that there are savings to be made from doing a means test. I think that cost benefit analysis has to take into account not only the funding but the delay to the individual and the impact on the individual if they do not have a lawyer to navigate them through the process.

Baroness Jay of Paddington: I think both Mrs O’Dwyer and Mr Mitchell previously this morning, or in their written evidence, have spoken about the personal financial cost. Would you like to give us some background on your own experience of legal aid and legal costs?

Julia O’Dwyer: My son did get legal aid. There were additional costs, like travel and so on up and down to London and going to America and things. I am not sure whether without the legal aid––I had to fund all the extras––I would have been able to afford the legal costs, so that was really appreciated. But it was never in question because it was given. Although I have to say that, two years after my son’s case, our legal team are still having to appeal for their costs through legal aid. They have not been, which is slightly worrying for them. But I do agree and the Scott Baker report does recommend that cases should be legally aided.

Baroness Jay of Paddington: Mr Mitchell, I think you spoke about some private legal help you had.

Graham Mitchell: Yes. First of all, I agree we definitely need legal aid. I did not meet the threshold. I was just over the threshold to get legal aid. I was very lucky in that the solicitor and barrister who were doing the work for us were fairly confident that the extradition warrant would not come to fruition and that I would stay here and, therefore, they would get paid, however lawyers and barristers get paid.

Q181 Lord Brown of Eaton-under-Heywood: I want to ask a couple of questions on a broad basis about the European Arrest Warrant, and I entirely understand and sympathise with your reaction. You are always going to get some draconian process and it ought to be used as a last resort instead of, as readily seems to happen, as a first resort. Therefore, I want to explore—I think mostly with Mr Evans and Ms Blackstock—what alternative and lesser measures can deal with these problems and ensure that it is only used in extremis––only when it is absolutely necessary. Are European Investigation Orders one thing that ought to be happening? What is the state of play with that?

Jodie Blackstock: It has been adopted in Brussels, so the instrument will come into force in 2017, I think. I had not double checked that before I came here today but I can check it. I think it is 2017. It is a Lisbon Treaty measure that the UK has opted into and will apply in this country. Hopefully, what the investigation order will assist with is all of those pre-arrest warrant possibilities of communication of evidence to be received from another country, and also I think most significantly for taking evidence by a live link, a video-link, between the countries prior to issuing the European Arrest Warrant.

It is not yet known how it will function. It is the hope that it will interplay and make the arrest warrant a measure of last resort. But I think it is going to be some time before it will function in that way, and it will require member states to work together in acknowledging that the European Arrest Warrant can apply disproportionately and to use this in its stead. I think it is clear, from looking at the final instrument, that that intention is there because there is a proportionality requirement in that instrument. There are human rights bars in that instrument that do not appear in the framework decision for the European Arrest Warrant. There are various validity checks that are required, so the sort of standards that we would hope to see in the European Arrest Warrant framework decision are there in this new directive, and those conversations did take place as it was being arranged.

Lord Brown of Eaton-under-Heywood: I follow. But when it takes effect, the consequence will be what? In a case that is not yet ready for trial will they use it rather than the European Arrest Warrant in order to carry the investigation that stage further?

Jodie Blackstock: Indeed, that is the hope. In the context of many countries that have investigating magistrates and require that magistrate to endorse the charge and pursue the prosecution, often I hear from colleagues that the European Arrest Warrant is currently used for that stage to take place, whereas with the European Investigation Order it is hoped that that can be used instead. That will take away some of the instances of prematurity that people are concerned about. The European Supervision Order is another that will work in that way because this is the—

Lord Brown of Eaton-under-Heywood: Just before we come to the European Supervision Order, which is a bail arrangement, I want to marry up the European Investigation Orders with mutual legal assistance requests. How do they come into play?

Jodie Blackstock: It will assist mutual legal assistance requests between member states of the European Union. It will require parity with every request that comes in with domestic investigations. It places a requirement to consider an investigation order request with urgency and within a set timeframe, which currently is not required.

Lord Brown of Eaton-under-Heywood: The EIO is a replacement and a better and more effective and streamlined form of mutual legal assistance?

Jodie Blackstock: Yes. There are some aspects that are not included in that for more technical matters, but for the majority of measures currently where mutual legal assistance is used, the investigation order should be able to replace it.

Lord Brown of Eaton-under-Heywood: Perhaps just before we come to Mr Evans, you want to move on to the European Supervision Orders. How do they relate to Eurobail?

Jodie Blackstock: It is Eurobail.

Lord Brown of Eaton-under-Heywood: That is Eurobail?

Jodie Blackstock: That was the final name for it when the measure was adopted. It has just been colloquialised as Eurobail.

Lord Brown of Eaton-under-Heywood: How do matters stand on that? Are we in that?

Jodie Blackstock: We will be in that. It is one of the 35 measures that we will adopt next week.

Lord Brown of Eaton-under-Heywood: So that will make it easier to get bail here pending the possible removal of the person for actual trial to a foreign state, to the requesting state?

Jodie Blackstock: Yes, again, that is the intention of the measure. What is not clear is whether it will be possible to do that in the context of a European Arrest Warrant proceeding as it is ongoing, or whether it will apply in the context of a domestic proceeding pre-European Arrest Warrant where the person is wanting to be in another country, either because they are a foreign national already and they are on holiday and they are picked up, or some other reason why they would prefer to be in another country, which is their country of residence, pending the trial coming on. The primary aim of this instrument is to prevent lengthy pre-trial detention essentially in the requesting state, the trial state. That should mitigate some of the concerns about overcrowding in prison and the length of that detention pre-trial.

Michael Evans: Again, I agree with everything that Jodie Blackstock has said. My view is that, as you said in the beginning of your question, the European Arrest Warrant is used at first instance when it should be the last resort. These measures and other measures that should be in place would lessen or take the sting out of the European Arrest Warrant. You would have the European Arrest Warrant used at the very end of a process where you are talking about a fugitive and you are talking about somebody who has been through the pre-trial investigation, who has been through video-link hearings, who has been on bail from the district court in Warsaw but that bail is supervised by Westminster Magistrates’ Court. So they set the conditions but Westminster supervise the conditions, the police, bail and the tagging and what have you. After all of this, knowing everything, having participated, the person goes missing or refused to go, then you are looking at that. I would say, in answer to the question that you asked before, Lord Rowlands, that is where you reduce the draconian part of the European Arrest Warrant when you put all of the proper measures in place before it.

One of the things that should be introduced, which would also help as well—and I am really passionate about this—is guaranteed repatriation: you cannot assist them from another country unless they are guaranteed to be returned to serve the sentence here. I also think that if you are going to be able to do things by video-link and there is a sentence involved, after a guilty plea, for example, then you do not need to go. You should be able to serve that sentence here because you should be able to be transferred. I think there is a directive on that as well.

Jodie Blackstock: First, that provision exists in the European Arrest Warrant framework decision. It is one that we have been asking the Government for many years to introduce. Unfortunately in the Anti-social Behaviour, Crime and Policing Act, where all these measures were introduced, that was not one of them. It would be a very simple measure for British citizens not to be sent abroad to serve their sentence.

There is an additional measure, the transfer of prisoners framework decision, which the UK has opted into on the list of 35 measures, which would deal with the problem when the person is in the other state and has been tried and convicted there, to then be returned home, again under a mechanism that is swifter and requires more priority than the mutual legal assistance arrangements that we currently have. Those two would mitigate some of the horrors people are finding in prison conditions and the concerns about prison conditions, because they would not even need to be there for any particular length of time.

Video-links is one that I think is important and can be used, particularly as the quality of electronic equipment is improved. People often use a Skype link informally to contact friends and family around the world now. Our courts should catch up with this use of modern technology, because it—

Lord Brown of Eaton-under-Heywood: What would you be using the video-link for, what part of the extradition process?

Jodie Blackstock: Any procedural hearing, short of trial, where actual evidence needs to be taken, in my view, could be considered through video-link. Of course that—

Lord Brown of Eaton-under-Heywood: Does that link up with the European Investigation Order?

Jodie Blackstock: Yes, it does. I am just reinforcing the point that I think it is a measure that we should be using. It would deal with that issue. I think I was talking more about prison conditions in relation to the European Investigation Order and underlining the point about fairness of proceedings and swiftness of proceedings. The video-link is a good and easy mechanism to deal with that problem.

The other one—if I might briefly just state—is about financial penalties. Again, we have a framework decision in place among European nations member states to deal with the problem of non-payment of fines. As Mike indicated, it is quite usual that a conviction warrant is issued because someone has not paid a fine and they have left the country. This is a mechanism; breach of that sentence endorses a custodial term. This measure was brought in to deal with that problem and it is not used as often as it could be. I think it is one where we need to have a lot more co-operation between member states to deal with that problem.

The Chairman: Can I come in on a point? What you are describing would undoubtedly relieve some of the terrible sensations that went through Mrs O’Dwyer and Mr Mitchell when the knock on the door came. On the other hand, would this not—and I am now trying to put myself in the shoes of the prosecutor—be a means where any serious criminal would be alerted that the powers of justice were on his tail, particularly if he was abroad and away from his own home country? Would that not be an invitation for him to do a midnight flit, disappear under the radar?

Jodie Blackstock: It might be, but then that is when the arrest warrant comes into play. We have a very sophisticated Schengen information system and Interpol system by which alerts are processed and triggered when someone crosses borders, and they would hopefully be caught through that scenario. In my view, the risk of career criminals and serious criminals taking flight ought not to prevent its use in cases such as the two we have heard about, where people genuinely would be prepared to comply with the investigation and prosecution against them but they have had no knowledge that it was there. Indeed, they may very quickly be able to put forward evidence to show their innocence or that the facts are flawed by way of a communication mechanism that currently does not exist.

Q182 Lord Brown of Eaton-under-Heywood: I was going to explore a bit more on the transfer from prison. Who is going to be serving their sentence over here? Only British citizens? How is it going to work?

Jodie Blackstock: Nationals and residents are on the list, and I think a resident is someone of five years or more who would qualify for it. But not having read it recently and having it in my pack, I do not think you want me to spend time extracting it.

Lord Brown of Eaton-under-Heywood: No. I see. But you say that as a right if you are a British citizen, or have been an ordinary resident here for five years, you are entitled to serve your sentence here; and subject to our own release provisions, you only serve half the time or you are eligible for release on licence after a year. A completely different regime applies to those people. Whatever the sentence may have been in some foreign country, they serve it according to the way we operate domestic prison sentences?

Jodie Blackstock: Yes. The request would have to come from the issuing state that the sentence that they have imposed, so far as possible, is given effect to in this jurisdiction. At the same time, it would have to acknowledge that our sentencing provisions require release after a certain period of time for that particular offence. There is a mechanism in that instrument to deal with consultation about that. Of course it works the other way as well. If a request comes for a British person or a person here who has committed a serious offence and now requests serving their sentence in the other state, we would perhaps have concerns about ensuring that they serve a duly lengthy sentence for their crime. So there is that negotiation and communication possibility there, and ultimately the legislation provides for the issuing state to withdraw it if they are not happy with the sentence as it would be proceeded with in the other country.

Michael Evans: Just very quickly, in terms of repatriation from a part 2 territory, for example, or repatriation for sentence in general, the principle is quite simply that if you had a four-year sentence and you served a year of it abroad, and you have three years left, you are repatriated. Then your sentence becomes a three-year UK sentence and you are released at the halfway point on licence. If you breach those conditions you go back in. It then becomes a UK sentence for what you have left. It is not always beneficial because you will not just serve half of it, you will probably serve a bit more than half of it, but what you have left when you land in the UK becomes a domestic UK sentence.

Q183 Lord Rowlands: There are some other directives in the pipeline on the criminal procedure and I want to ask you whether you think these will have any effect. There is one on presumption of innocence, one on procedural safeguards for child suspects and there is a directive on access to provisional legal aid. Both Government and, indeed our European Committees, have been agonising over these three. Will any of these be of any particular use to ameliorate the effects of the European Arrest Warrant?

Jodie Blackstock: I should first record that we already have three measures that have been adopted by the European Union, two of which will apply and are applying in this country; the right to interpretation and the right to information, which I mentioned earlier.

Lord Rowlands: Yes. We have already been through them.

Jodie Blackstock: They are being monitored by the European Commission as to whether they are being implemented appropriately. They will make a significant difference, because what I have heard a lot in other member states is that the lack of quality interpretation is a real problem in European Arrest Warrant cases. The right of access to a lawyer, again, I mentioned briefly earlier. We already do it in this country. It would not add anything domestically other than obviously the commitment to an important development of safeguards, which we do not do.

Lord Rowlands: But the Government has balked on that one, has it not?

Jodie Blackstock: Yes. Of the three measures that are currently being considered, the presumption of innocence one would require changes to domestic law because it would enhance the right to silence in a way that we do not currently recognise in this country. Obviously from JUSTICE’s perspective that is a good thing because we do feel that the right to silence has been eroded over the past 30 years domestically in this country and it would help to bolster that. The measure on child suspects largely is enforced in this country, but there are certain things about procedural safeguards that perhaps would be enhanced by it.

It is very difficult to see what the measure on legal aid will look like when it is finally determined. It does very little at the moment. Politically it is very difficult to produce it. At the moment it only covers the police station emergency defence for someone who has been arrested and European Arrest Warrant proceedings, both of which are already covered in this country anyway.

But the really important thing about this package of measures is that it aims to enhance and improve domestic standards across the European Union. These are measures that change domestic law, so they do not particularly deal with cross-border criminal investigation. They try to attempt to deal with concerns about what people will face when they get there. The fair trial rights concerns are being alleviated by the use of these instruments. In our view it would be incredibly helpful for the UK to commit to that improvement of standards across Europe. In the political climate it has not chosen to do so, but we have the opportunity at any stage to opt in once they are adopted and it is something we would certainly encourage the UK to do.

Lord Rowlands: Despite the stringent criticisms of the present European Arrest Warrant, you would support us opting in at this stage?

Jodie Blackstock: Yes. Our reasons for that are that we believe it can be reformed most successfully from being a member of it. We have much more persuasive opportunities within Europe to obtain reform on a European stage than we do from being on the sidelines and not continuing to engage. The other aspect of that is we continue to need extradition. There has to be an extradition procedure in place of some form or another. What the European Arrest Warrant does is replace a procedure that allows executive decision-making behind closed doors to affect the lives of people, as it has done previously in part 2 cases. It now places the obligation on the courts to transparently and openly, with legal representation, decide these issues under scrutiny.

Q184 Lord Henley: I was going to get on to the whole question of trials of requested persons taking place where possible in this country rather than abroad if the offence could have been committed in both countries, which is sometimes the case. To what extent do you think that the forum bar would assist with that process and whether that is desirable?

Michael Evans: Personally, I can say quite briefly that I do not think it has any teeth to it. I do not think it is going to work. As I said before, when you get to become a requested person, when you get that title, after you have been arrested for extradition, ready for trial allegedly, these decisions about prosecutions have already been made behind closed doors. You have not been a party to them. When you look at the forum bar and you see that a prosecutor can veto it, essentially, when you look realistically at the terms of it—and as you have heard before, the courts have to consider interests of justice but you are not allowed to consider anything other than these narrow points that we have suggested—I personally do not think that it is going to have any significant effect.

Lord Henley: You have made that clear in your written evidence where you said that you need to remove “the possibility of any political or diplomatic considerations”. Do you think it could be redrafted in such a way?

Michael Evans: Yes, I think it could. I am not a draftsman and I have not thought particularly on how. A proper consultation could take place specifically on forum and done so in a way as open as this where you have heard from all parties involved in these proceedings. It could be, but we would need to hear from a lot of people and it would need very careful consideration. One of the things that does not necessarily happen is that when amendments to Acts are drafted or statutes are drafted in this sense I do not think they really go to the coalface practitioners and say, “Argue against it. Show how that is really that wrong”. From what I believe the judges in the Scott Baker report have said, the district judges had said they could not think of a case where forum would have barred extradition. It is not going to be overused, I would say.

Jodie Blackstock: I would entirely agree. The problem with the forum bar is that a judge will ask the prosecution service what it intends to do. If the prosecution service says, “We are not going to prosecute in this country” then the judge is not going to apply forum bar. That is the end of it really. If you look at the Dibden and Friends decision that was decided recently, you essentially see that set out. When this went through Parliament our organisation, Fair Trials International, the Extradition Lawyers Association and probably the Criminal Bar Association—although I may not be correct in that—all responded saying, “This will not work as drafted”, but unfortunately it was put in very late in the day in the Anti-social Behaviour, Crime and Policing Act and it was not given time for debate and that is why it now appears on the statute book. Unfortunately it is the way the legislative procedure goes sometimes.

What we advocated was the removal of the certificate that the prosecutor could put in place to veto the exercise of the forum bar because the prosecutor’s decision is already taken into account within the legislative framework anyway. We sought a discretion for the judge to consider more aspects than the four limited ones available as to what the interests of justice are. Those have been determined by Parliament but there may be other considerations that are not incorporated in the legislation that may have an effect on where the case should be tried. The judge cannot consider those under the current legislative framework.

The Chairman: Is there any specific one you think has been missed out? That may be a slightly fast ball.

Jodie Blackstock: No, not off the top of my head, no.

The Chairman: No, that is fine.

Jodie Blackstock: I think it would have to be a case-by-case basis.

Lord Henley: Put simply the House of Lords failed in its role as the revising Chamber and I had better be very careful as to where I was at the time.

The Chairman: You may be in a glasshouse.

Jodie Blackstock: There was an awful lot in that Bill, as there is in the current one, and legislative timetabling does not enable everything to be looked at in detail as it should. I will leave it at that.

The Chairman: I am conscious that we are talking rather lawyers’ stuff here, but Julia O’Dwyer or Graham Mitchell, is there anything you would like to add on this?

Graham Mitchell: I do not think I am qualified.

The Chairman: That does not necessarily stop people having opinions.

Julia O’Dwyer: I would just like to add something on the forum bar. Jodie and Michael will know that some years ago a forum bar was revised but was not enacted. In terms of, for example, the United States, the gist of that forum bar was that whenever an alleged crime took place predominantly in this country, that case would be tried in this country. A lot of work was put into the wording which was a bit more extensive than what I have described. As I said, it was never enacted. Here we have now been lumbered with a pretty watered-down version of the forum bar, which others know more about but I think we will not see anybody benefiting from that very much at all.

Lord Brown of Eaton-under-Heywood: Ms Blackstock, you said there were only three or four considerations. It is the new section 19B(3) and then it goes (a) to (g).

Jodie Blackstock: I cannot count. I apologise, Lord Brown.

Lord Brown of Eaton-under-Heywood: It includes a whole host of things, including the extraditee’s connections with the United Kingdom. What is missing? The interests of justice are very widely defined here, are they not?

Jodie Blackstock: They are, but they are limited to that list. The judge shall only take into account matters (a) to (g).

Lord Brown of Eaton-under-Heywood: No, but I am struggling to think of anything that the judge cannot take into account that he might otherwise want to.

Jodie Blackstock: As am I off the top of my head, Lord Brown, but as I say there may well be a case-by-case basis that would require the judges to exercise their discretion differently and at the moment it is fettered by this mandatory list.

The Chairman: Maybe if you have any thoughts you could write and tell us, please?

Jodie Blackstock: I will.

Baroness Hamwee: Just to follow that up, the comment was made that the judge asks whether there is going to be a prosecution here and if the answer is no, end of story, so maybe there is something about practice that you might like to follow up on, as well as what is or is not in the amended statute.

Jodie Blackstock: Yes. The difficulty ultimately arises that judges will not want to be taking a decision that will prevent a prosecution taking place anywhere. If they have the indication from the Crown Prosecution Service that they do not have sufficient evidence to satisfy their full code test, that it is both procedurally and publicly in the interests of justice to proceed with an investigation and prosecution in this country, then the judge is not going to make a different decision from that. That is ultimately the problem with a forum bar anyway. It is hard to see any form of words that can get around that difficulty. Unless the court were to be advised by legislation that their decision must not take into account whether a prosecution would take place at all and merely consider the interests of justice as a concept affecting the victim and defendant or suspect of the crime, I do not see how we will avoid judges giving effect to a prosecution decision.

Q185 Baroness Hamwee: Thank you. I think our Chairman was asking me to ask about article 8. Mr Evans, you have said that it is still the main proportionality argument despite the introduction of a proportionality bar. The question is about the relevance of proportionality, as you have all experienced it in your own cases and observed it in others. I do not know where you would like to start. The observation came from Mr Evans.

Michael Evans: My view is that the article 8 consideration for the judge should technically really come at the very end of his consideration of every other bar to extradition. It is recognised that extradition would amount to a breach of your article 8 rights but the question is whether or not it is a proportionate breach. Proportionality as the balancing exercise in article 8 is always going to be used, in my view, because it is always going to be relevant. If you have not succeeded on every other bar, then you have a safeguard at the end that says that you might not quite be there on section 14, which is passage of time, because the judge has decided you are a fugitive, not in the classic Goodyear and Gomes sense because you actually fled a jurisdiction but that you were here when you were convicted in your absence. The judge may have decided that that still makes you a fugitive. You cannot use section 14 there for an oppression argument but you might fit it into article 8.

Article 8 also does not just look at what your crime is or what the level of the offence is, but it looks at the effect on other people. That effect on other people also really importantly could be when you are weighing up what the level of the offending alleged is. Taken at the prosecution’s highest in the European Arrest Warrant or the request, factors to consider are that this guy might be the sole provider for a young family or a carer for a wife or a child. He might be, more interestingly, an employer whose business would go completely down the drain if sent abroad to another country, put in pre-trial detention, only to come back, found not guilty but the business has gone and the 15 local employees have all lost their jobs and are claiming unemployment benefits.

Article 8 is something that you can use to weigh up all of these factors in one argument where you look and say, “Well, where do the scales lie?” and you ask the judge to look at everything. That is why article 8 will always still be used, should always still be used, but the proportionality bar is a codification of some of the article 8 considerations that are already made.

Baroness Hamwee: To the supplementary, “Should the proportionality bar be extended beyond the part 1 European Arrest Warrant accusation cases?”, you would say, “Well, it is not going to make so much difference”?

Michael Evans: I think it should be. It should be conviction cases as well because, as I have talked about already, you have these cases where the person has been convicted in their absence. You have these cases where the person has served their sentence custodial element and has come over here and they are on a conviction warrant or a fine, but realistically if they pay the fine, the problem goes away. So it should be applicable to part 1 conviction as well and it should be applicable to part 2 because it matters. It is proportionate.

Baroness Hamwee: Yes, but you would be arguing article 8 most of the time?

Michael Evans: If you do not succeed on that, you will move on to article 8.

Baroness Hamwee: That is what I meant really.

Michael Evans: But procedurally it comes before article 8.

The Chairman: Again, we are rather on legal matters. Do either of the non-lawyers have any thoughts?

Graham Mitchell: With my case, the passage of time was the thing that swung it in the end although I was, and still am, the primary carer for my two stepchildren. The article 8 was something that the legal guys talked about with us at the time.

Lord Brown of Eaton-under-Heywood: Could I just ask one supplementary of Mr Mitchell? You were acquitted when you were initially tried in Portugal in 1995.

Graham Mitchell: That is right.

Lord Brown of Eaton-under-Heywood: Not unnaturally, back you come. Then apparently in 1996 the Supreme Court of Portugal overturned your acquittal. Is that something you ever learned about?

Graham Mitchell: No. Not until—

Lord Brown of Eaton-under-Heywood: Not until you were arrested 17 years later. Is that it?

Graham Mitchell: Even later than that. Not until we got the services of our lawyer in Portugal was the first time we became aware of that.

Lord Brown of Eaton-under-Heywood: I see. After your rearrest 17 years later?

Graham Mitchell: Yes.

Lord Brown of Eaton-under-Heywood: Do you happen to know what efforts they made to notify you of this?

Graham Mitchell: No. Again, it is one of the great unsolved questions. These European Arrest Warrants come along and wreck your life and when it is finished and it has been thrown away, as it was in my case, that is it. You have no recourse. You cannot say to them, “Why did you do this?”

Lord Brown of Eaton-under-Heywood: Had you been living a peripatetic life in this country?

Graham Mitchell: Absolutely not. I am a press photographer. I have been vetted to enter Downing Street and Buckingham Palace. I receive a military pension. I was very far from being under the radar.

Jodie Blackstock: Perhaps I may add about proportionality from our perspective here. I should firstly say it is welcomed that the Government has made an effort to introduce this stage here. If a case really does engage a very minor offence and it is one that the Lord Chief Justice has listed in the practice direction, the matter may fall away then without having to proceed to any further argument. That will mitigate some of the impact and stress upon the individual, but the article 8 argument still remains, for all of the reasons that Michael said and that is very important.

It is something that needs to be done on an EU level. The European Parliament has produced a resolution and recommendations for reform, which I have mentioned in my written evidence. There is a list there of reforms that they think are necessary that would attempt to mitigate this, as well as a proportionality check in the issuing state because there is little that the executing state can do once the arrest warrant is produced. We are then in the scenario of trying to balance international obligations against the impact on the individual. If that can be mitigated even before that commences because EU legislation says these minor offences ought not to be sought, the problem does not even arise.

One of the other things that we recommended, coming from Baroness Hamwee’s suggestion about notification and Lord Brown’s suggestion about notification, is a measure to deal with the issuing of summons for prosecutions against people, which would be a prearrest warrant procedure. Lots of lawyers I have spoken to in other EU countries have raised this as an issue because, like Mr Mitchell, there are many business people who find themselves on a European Arrest Warrant who have international websites, who are freely available to be found and served with a summons, and who certainly say in the hypothetical that they would be more than willing to support the investigation against them in any way that they can, but they only hear about it on a European Arrest Warrant. There was one particular case that went all the way to the German Constitutional Court on this very issue of proportionality in that context, from Greece, who was freely available to be found but no effort was made to do so. That is an area I think, where efforts could be made to prevent the draconian impact of the arrest warrant.

Lord Brown of Eaton-under-Heywood: That is another thing in the list, like the European Investigation Orders?

Jodie Blackstock: It is just in my head at the moment. It is not something on the table unfortunately.

The Chairman: Can we just think about category 2 cases in this context, because category 2 is a more complicated and convoluted procedure. Is there evidence of any proliferation of disproportionate attempts to extradite under category 2 or is in practice the fact that the procedure is more complicated a sift?

Michael Evans: I do not think that it is a sift. I do not think so in that sense. The requests that I have seen from part 2 territories do tend to be serious allegations. I am not suggesting that that is necessarily exactly what it turns out to be at the end or anything like that, but the requests contain serious allegations. When you are looking at proportionality, the prosecution’s case at its highest is a really weighty factor in that balancing exercise. The article 8 consideration does come into part 2 requests. It can do and it will do if we were to receive a request from a part 2 territory for what we would say was quite a minor offence, and we could because all it is about is what the maximum sentence for that type of crime is. A very minor fraud or a theft on a very low level still might carry an equivalent sentence here and a sentence there that could meet the criteria for extradition. In that case, you might have a very strong article 8 proportionality argument.

Yes, it could happen and there are serious cases. Article 8 has stepped in on part 2 cases, I believe, but it is not so prevalent that that does not mean that it should not be legislated that there is a bar available for the day that it comes along.

The Chairman: Any other thoughts? Otherwise we will move on.

Jodie Blackstock: I simply agree with that.

Q186 Lord Empey: Good morning. May I ask you a question about the role of the Home Secretary? Obviously the Home Secretary’s role in the extradition process has been greatly reduced. We have heard that moving decision-making to the courts was critical in improving the extradition arrangements. To what extent would you agree with that statement?

Michael Evans: I would not really. I would not for the reason that is often overlooked that the Home Secretary’s involvement begins with receiving the request, then the Home Secretary certifies that request, “Is it made in the right form? Is it from the right territory?”, produces a certificate and sends it to the court where the court takes over. The court has always has a human rights consideration in terms of its decision whether to send it back to the Secretary of State. Then it goes back to the Secretary of State. She is still involved; she was involved at the beginning and she is still involved then. She does have powers to stop the extradition. I would say they are really limited powers so they are very rarely going to be used.

The other observation I would make is that the amendment has said that the Home Secretary will not consider or cannot consider human rights considerations when making a decision. I would disagree. I would still like to one day argue that she does.

The Chairman: Are you telling us that it is wrong that she cannot or are you telling us that the provisions that say that she cannot are, in fact, in breach of the human rights legislation anyway?

Jodie Blackstock: That is the argument we made at the time when it was suggested. It was a remarkable small bit of drafting in a very large Bill, again, which purports to suggest that the human rights obligations under the Human Rights Act that apply to the Home Secretary no longer apply. That cannot be right, but Parliament can do so if it had issued a section 19 notice, if it deems it appropriate. I do not believe the Government took that course in presenting that piece of legislation to Parliament, but it is another thing that has sneaked through unfortunately. As Michael says, nevertheless I cannot see how the obligation to comply with our human rights obligations can be removed in such a way anyway because it is implicit irrespective of whether the Human Rights Act is expressly disavowed or not.

Lord Empey: Can I just pick you up before Mrs O’Dwyer and Mr Mitchell come in? You said it had been sneaked in. Why do you think the Government wanted to diminish the role of the Home Secretary in this process?

Jodie Blackstock: The intention is laudable. It is to ensure that proceedings take place before the courts in an open and transparent fashion. Why it was necessary to remove the human rights obligation I do not know. The only thing I can think is that it was an attempt to reduce delay by having repeat review after the courts have determined an issue, which is what occurs in part 2 cases.

Lord Empey: You do not think there was a political consideration that perhaps the Home Secretary would be enabled in future to keep her head down in controversial cases?

Jodie Blackstock: I could not possibly comment on the intention in that regard, but I would certainly want to argue that it still applies nevertheless. Indeed, it is incredibly important in the context of information that may come to light that is not available to the courts, it is not available to the requested person, but perhaps comes in through the diplomatic channels and must be contemplated before the return. If there were to be a sudden military coup in the particular jurisdiction, for example, or any other intelligence came about that affected this individual in particular, that information comes to the Home Secretary not to the court or to the requested person. It is somewhat unfortunate in the lowest terms that this provision purports to remove the obligation for those matters to be taken into account.

Q187 Baroness Jay of Paddington: This is a progression from the discussion about the human rights issue, but can I ask you to comment because it is something we have talked about in previous sessions, which is the political issue that Lord Empey has raised about getting assurances from other countries about the human rights concerns you may have in an extradition case? I think it was Mr Evans who rather trenchantly said cultural norms and practices in countries do not simply change overnight with a letter from a government minister in one country assuring a government minister in another country that all will be fine. In a sense, again this involves the political and diplomatic issues. Do you want to expand on how you do in fact get assurances fulfilled?

Michael Evans: Currently there is an issue with Lithuanian cases and I am sure you are aware of it and understand and know that Kaunas Prison is the prison that is the subject of the assurances and that people will go to Kaunas. The assurance was breached and then they have come back and said, “It was a technical problem. We will make sure it does not happen again” and we are currently back in with some new witness statements of people who are in police detention and in different prisons. As this Committee has touched on before, the real problem with assurances is the monitoring of them once somebody disappears into the ether of wherever it is they have been sent.

If they are a British national with a strong family network and the assurance is that they will go only to such and such a prison, it may be that that can be monitored very well because that strong family will keep on finding out what is going on. They will fly out there and keep checking. But when we send somebody who is, let us say, a Lithuanian to Lithuania and there is no legal aid to follow it up and there is no one following it up, I would say that person gets lost and there is no way of checking that these assurances are being abided by. It should be very obvious to other member states and to requesting states in part 2 that if you give this country an assurance and you breach that assurance then my view is you should realise you do not get a second chance.

Baroness Jay of Paddington: But if it is one of the political considerations that you touched on with Lord Empey that the Home Secretary is no longer formally part of this process, presumably an assurance given to a senior member of the British Cabinet is very significant in political and diplomatic terms and that might give it better authority. That is the question I am getting at.

Michael Evans: I agree, but a part 2 assurance should come through diplomatic channels to be a proper assurance. Again, I do not think that we can say that the role of the Home Secretary has just been removed apart from a notional point. The Home Secretary and future Home Secretaries will still have to be involved in these processes. I think it is right that when you get to this sort of state level of assurance from state to state that human rights consideration might come back in.

Lord Empey: Do Mrs O’Dwyer or Mr Mitchell wish to make a comment?

Julia O'Dwyer: I cannot comment on a personal experience of conditions in other countries but I am aware that, for example, assurances have been given in respect of people being extradited to America, assurances have been given to the European Court of Human Rights on prison conditions, and extradition has then taken place. As this Committee has not yet heard from any people who have actually been extradited, for example to America, it might be useful and I think it would give added value to the work of this Committee if it was to call oral evidence from some people who have been extradited just to see how that stacks up. Do those assurances reflect the experience of the people who have been subjected to those prisons, for example in America?

Jodie Blackstock: Bearing in mind that there does not seem to be any mechanism for monitoring the assurance, perhaps that is something that ought to be looked at more closely as to how the UK is monitoring assurances given to it and accepted by our courts so that we can ensure that in future cases where people are returned those assurances can be relied on. I accept that it is a difficult thing to do because if you accept an assurance then by the nature of it you are saying that you believe the assurance as it is given to you. The line of cases we have seen recently, particularly with Lithuania, are very interesting on the facts on the ground as to how those assurances have not been complied with. A monitoring mechanism and a requirement to report, perhaps to Parliament, would be very useful in this field.

The Chairman: Can I follow that up before we move on? First to the point from Mrs O’Dwyer, we have had quite of lot good, valuable written evidence from people who have been extradited and of course that is exactly equivalent in every respect to oral evidence. Just to move on, we have talked about monitoring and we have talked about enforcing assurances. I would like to ask you what you think would be appropriate. When Don Pacifico was insulted by the Greeks, Lord Palmerston sent in a gunboat. We clearly cannot do that. How do you think this kind of thing ought to work in the real world?

Jodie Blackstock: We cannot enforce a legal remedy once someone has left the UK. That is certainly clear. We can seek that at a European level. It is one of the things in the parliamentary report that is suggested as an amendment to the European Arrest Warrant framework decision and that legal remedy could explore how assurances are upheld. But I think the monitoring mechanism and the requirement to report on monitoring is really vital to defence lawyers in subsequent cases. Where they are able to demonstrate that assurances are not being complied with, that is very relevant information for the court to know in a subsequent assurance.

The Lithuanian example is telling. The practice that appeared to be happening—you will know more than me, I have simply read the judgment—is that if they were UK nationals there was a requirement to put them in the assured prison but if they were Lithuanian nationals they did not get the benefit of that, even though the assurance had been given to the UK courts before their return. That is a stark example of it not being upheld. Why it should differ if you are a UK national or a Lithuanian as to whether or not you get poor conditions is not a decision for Lithuania to take if a UK court has said that we accept the assurance.

Michael Evans: I think the wording of the assurances perhaps should be tighter. Where you need an assurance alarm bells should start to ring because it means that potentially there is an issue in that country. Where you have specific assurances about one individual, they are quite easy to monitor. It would not take somebody long to follow up on whether or not that person is where they should be. It is very difficult where you have a group assurance that no person will go to these prisons.

Jodie Blackstock: I would just add to that that it is an interesting pattern that has arisen from looking through the cases and monitoring it. The difficulty for people who are trying to prevent their extradition in circumstances where they believe their human rights will be violated is bad enough. The threshold they have to satisfy because this is a prospective breach––it is not something that has already happened––is they have to produce cogent evidence to satisfy that there is a real risk that this will happen. That has to be right, otherwise how do we have any functioning system at all. But once they have satisfied that, they now have to defeat a diplomatic assurance that is coming from that country as well in circumstances where it is clear their human rights would be violated but for the assurance. That is incredibly difficult to defeat because you are in a position where you now have to say, “I know the prison is terribly overcrowded. I know I am facing physical violence when I go there, but I cannot assert that I am not going to be placed in this new shiny prison that has been made particularly for UK nationals to be housed in when they are returned”. It becomes incredibly problematic to keep defeating these levels of evidence and that is why the monitor will be so important.

Lord Brown of Eaton-under-Heywood: One suggestion we had at an earlier session was that at the same time as the assurance is given the requesting state likewise assures us that there can be diplomatic monitoring of the compliance with that assurance. Why could not that be the way ahead and it then be incumbent on the diplomatic representation to notify the National Crime Agency, who deal with all these cases, what the upshot is of that monitoring so that that would inform future cases?

Jodie Blackstock: When you said diplomatic monitoring, do you mean by the issuing state authorities or by the requesting state?

Lord Brown of Eaton-under-Heywood: No, by our representative, the consular representative.

Jodie Blackstock: That sounds very sensible.

Michael Evans: I would agree.

Lord Hussain: In your experience are there any recent examples whereby non-British citizens have been extradited and an alarm has been raised that the promises have not been kept, the conditions have not been kept, and what has been the result of that?

Michael Evans: This is the Lithuanian example. It is Lithuanians being extradited to Lithuania and there is evidence to say that the courts have accepted here that the prisons are not Article 3 compliant but one is, so the assurance is that those Lithuanians will go to that prison and it is not happening, or if they do they are then moving on.

Lord Hussain: Is there any way that they can be helped?

Michael Evans: That comes down to diplomatic relations because the courts here will not have jurisdiction over the Lithuanian authorities. Again I suppose it is the issue of we are now getting evidence to say, “Well, hang on second, you are not complying with this, we are not sending anyone else”, at which point they will send another assurance. I think we might be back at the situation again now.

Jodie Blackstock: Of course it is whether there is a national remedy available to them in Lithuania to then seek damages for wrongful imprisonment or something. It may come back to the question of dual representation continuing after the extradition to work in both ways to assist, but really once they have gone from our shores we do not have any jurisdiction over them at that point.

Q188 Lord Rowlands: Will the forthcoming removal of the automatic right to appeal remove an important safeguard or help us to filter out hopeless cases because they have been used to delay?

Michael Evans: I think it is a real shame. I do not think it will filter out hopeless cases. If I start with the procedure, what they have changed is the appellant’s notice: it is an application for leave to appeal. We are using these forms now anyway, they have asked us to, but when it comes in we will have seven days in part 1 cases—14 days in part 2— from the date of the extradition order, including that date, to complete all of the information that they require. They are requiring full grounds, all the evidence from below to be attached to it, who it was served on. They are asking us to provide all relevant authorities, fact summaries and any documents required for the appeal that will later on be used in the appeal. It is hard enough to get to see your client within seven days and just issue an appeal.

Let us say we get these issued and they are decided on paper; once we have issued it we will get a representation order for a solicitor and counsel. As soon as we have issued it and it has been decided on paper, we will go to see the client, as we would normally do, and we will take the client’s instructions and advise them. If it is a hopeless appeal that is unarguable, as barristers and solicitors do in our duty to the court, we tell them that the appeal is unarguable and that provides a filter. If it then comes back on paper as a decision to refuse permission, the amendment allows us to renew that orally. We already have solicitor and counsel so therefore we are now having an automatic oral hearing that was already listed in the previous right to appeal.

Lord Rowlands: So it is a form of appeal anyway, is it?

Michael Evans: Yes, but I think the way that it was working before is more effective because you have to trust barristers. Counsel instructed would not advance unarguable arguments and the test for permission to appeal is “is it arguable”, but if that test fails on paper we get to renew it orally. I do not see how it is going to change anything.

Lord Rowlands: Have you had experience yet?

Michael Evans: No, because it is not in force.

Lord Rowlands: It is not in force yet?

Michael Evans: It is not in force yet, so we are still on the old system. I think more importantly about injustice. If this is designed to filter out appeals that they think are unarguable, in a lot of the article 8 cases that came on, especially through my firm, we have picked up cases where the person has been arrested, taken straight to the Magistrates’ Court, had their extradition order the same day and not really known what has gone on. The person has been advised by a duty solicitor who has put him or herself down on the rota as being an extradition specialist—there are over 400 listed and I can tell you now that is not even close; there are far fewer people who specialise in extradition—who has said, “You should not contest this extradition”. The extradition is ordered, the person is remanded in custody, we have managed to get to see them, and then when we go with counsel and take full instructions and analyse everything we find there is a serious problem. They are the sole carer for perhaps a mentally ill partner or they are the breadwinner for the family, and you think why has nobody considered to ask them about their circumstances when there is a clear article 8 bar.

In those article 8 cases on appeal where extradition was ordered at first instance or very quickly after that we then took on—and many other solicitors take on in the same way—the very fact that they succeeded and that the appeal was allowed means that that automatic right of appeal is not only necessary but it is vital and should not be taken away. The other thing is if you did not have a representative at the Magistrates’ Court because of means testing then you have to do all of this on your own. If you did have a solicitor at the Magistrates’ Court, their rep order can cover issuing the appeal because it covers that seven-day period, but the legal aid agency will strike out any legal research because solicitors apparently are not allowed to do any legal research.

Lord Rowlands: What about the arguable case? Is that appropriate?

Michael Evans: It is what happens anyway. Barristers would not go and stand in front of a judge, unless they had their full armour on, and argue something totally unarguable. They would have said beforehand, “It is unarguable. We will go and advise the client”. What we then do is advise the client that it is unarguable and they should withdraw and if they refuse to withdraw then we say we have to withdraw representation and they would then decide that they want to continue or not.

Lord Rowlands: There are a very large number of appeals.

Michael Evans: There are, but a lot of those appeals get withdrawn. If you had a longer timescale and legal aid from the beginning of that for solicitor and counsel before you had to issue the appeal then maybe that would work, but in a seven-day period in a part 1 case it is not feasible. You cannot do it.

The Chairman: Is there a cause of the problem right at the start of the process with the 400 solicitors, some of whom perhaps are not as good at it as they might be, or is the fault somewhere else in the process?

Michael Evans: I think we have touched on a lot of it already. The first thing is that it is means tested, so in the lower court if you had a solicitor representing you all the way through and they said it was arguable they could get the appeal put in, instruct counsel and then go further with it, but if they said it is unarguable then you would be properly advised that you have no grounds to appeal. I think Jodie is going to come on to the unrepresented, which is where it strikes hard and is totally unfair, especially in a different language and in custody. You are only relying on the kindness of prison officers to help you fill out a form with no interpreter and agree to fax it to the court and then on the CPS. If that officer is not there that day then you do not have your appeal and off you go.

Q189 Lord Rowlands: Reading your CV, you have been rather successful in both Westminster Magistrates and in the High Court on quite a significant number of appeals. Is there a common pattern to your success? Are most of these article 8 successes?

Michael Evans: No. There are article 3s, article 8s and section 2s. I think this is to do with extradition being a political issue as well, as in between states and diplomatic relations, and unfortunately you have to make every case individual. You are saying to a judge, “The prison conditions are atrocious, they breach article 3 in respect of my client’s situation”, and it is through that experience that good extradition lawyers who know how to argue these points do seem to succeed more than others but there is no training. To be a duty solicitor there is absolutely no element of extradition training whatsoever, so to go on that duty list at Westminster you just have to say, “I want to go on the duty list because I know extradition”. It does not mean you practise it or you have ever managed a case in extradition or you have even had an extradition case before. You might just want to say, “I have read the Act and I am fine with it”. That is only the list of cases I have represented in. We have a team of nine or 10 people and we have lots of others.

Lord Rowlands: What I am trying to get at is are there proportionately more appeals in extradition cases than in any other kind of case?

Michael Evans: You mean criminal cases?

Lord Rowlands: Yes.

Michael Evans: I would have thought there must be.

Jodie Blackstock: Yes, because there is a leave requirement as much as anything else. In the majority of criminal cases currently there is legal representation. The consideration is entirely different. In criminal cases you are dealing with appeals on a decision that is wrong in fact or law on the substantive law. In extradition cases you are dealing with whether the test has been applied properly and whether you can scrabble together sufficient evidence to support your human rights claim. The reason why these sorts of cases taken by Kaim Todner and so forth are successful is that they are able to get the evidence together because they have strong links across the world with lawyers and academics in those countries who can assist them, and through battle scars they have appreciated what you need to do.

If you do not have a representative—and a significant number of these cases fall into that category—you are having to attempt to put your own appeal in without really knowing how to argue or articulate your case in a way that will satisfy a leave-stage sifting judge on the papers. The danger from our perspective is that people will not have representation in time and not be able to satisfy the tests that apply. The Supreme Court considered that aspect in 2012 in the Lukaszewski case, which was a Polish case where it was apparent that the prison officers in Wandsworth were doing their best to help individuals fill out the forms for appeal and perhaps doing not a very good job of it. What we now have is a situation where they will be sifted out and I do think that is of real concern. Coupled with the means testing at the initial stage and the very short time in which you have to appeal, that may well reduce the number of appeals but perhaps not for the right reasons.

Michael Evans: I would finally add to that the reason why in this country in a lot of other matters you need leave to appeal—I am not sure of the exact reasons but the difference in extradition proceedings is that in the proceedings in this country you are still here, you are still with your family, they can still visit you and you always have the CCRC.

Lord Rowlands: The stakes are even higher.

Michael Evans: The stakes are huge. If you do not get your appeal in on time or you do not get your automatic right to say, “This is wrong and it should be appealed” then you might be off to Argentina, Brazil, America or Poland. You do not know when you are coming back, if you are coming back, and the stakes are huge in that sense. They are not the same; they are not comparable.

Q190 The Chairman: We have gone on now for more than two hours and I am conscious of that and feel that you have all given us a very full measure, so thank you. Before finally concluding, is there anything any of you would like to say to us to cover something you think matters and we have not touched on?

Michael Evans: I do, very briefly. It is an issue about post-extradition matters. I feel that once people are gone, British citizens for example, especially to America—and I have former clients there at the moment—this country does forget about them. They are still citizens of this country and there are two examples I would use; one is bail and one is healthcare. 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. I would like to see this country saying, “You are an accused person. Our presumption is innocent until proven guilty and we have had you on bail here for the whole time and you have not committed any bail offences. You have complied with your bail and we will therefore fund accommodation for you”. I do think it is right. You should not be forced to be in prison because you have been extradited against your will to a land where you do not speak the language or you cannot afford to live without working.

The other issue is healthcare. Another client who is out in America—he has actually managed to be on bail—needed a heart operation for a longstanding condition and he wrote, through his MP, to the UK Government who advised him that they could not fund anything. It was going to cost $28,000, and they advised him he should go back to jail because he would get healthcare if he went to jail and gave up his liberty. I think that needs to be brought to the attention. It is also post-extradition matters that are very important that need to be considered when we are talking about sending someone away and hopefully bringing them back one day as well. As it happens, he has had the operation; the doctors agreed to do it for I think $3,000 to be paid later. But again, like the Wandsworth prison officers and like the people who have managed to persuade someone to let them stay at their house, it is relying on the kindness of individuals and not relying on the state and your country that you have paid taxes to and been a citizen of for your whole life.

Lord Brown of Eaton-under-Heywood: This is a proposal exclusively for UK nationals who are removed abroad, is it?

Michael Evans: Yes, UK residents and UK nationals.

Lord Brown of Eaton-under-Heywood: Resident for five years?

Michael Evans: I think it is not something that has been considered and it should be thought about and brought to the attention of the powers that be. There is a sense that you are completely forgotten once you are gone and certainly not supported. Other than that, I would just like to thank you for the opportunity.

Julia O'Dwyer: I would like to say, Lord Chairman, that I do commend the work that you are doing on this Committee, but it is really not necessarily possible for you to be in the shoes of someone who has been extradited, and nobody is immune to that. It might be a bit of a joke at the moment but we might see the Mayor of London being served with an extradition warrant to America for not paying his taxes there, as has been in the press recently. Potentially that could happen, so nobody is immune.

I know we alluded earlier to the evidence that has been provided from some victims and many other stakeholders in extradition, but I really feel that some of those people who have been extradited have some terrible, upsetting, distressing stories and experiences to tell and it is not necessarily all going to come across on paper. I feel that it would be a shame if you did not hear some of those stories. I know that, for example, there are three or four people who have been extradited to America and returned home who have given written evidence and I am sure some of them would give oral evidence. I think it would be a real shame if that was not included in this piece of work that you are doing.

Jodie Blackstock: May I add one final comment from JUSTICE? Now that the UK has committed to opting back into the European Arrest Warrant and the other measures that flank it, I think we are in a unique position to be calling for reform in Europe of this instrument. There is the mechanism for a member state initiative for proposing new legislation in Brussels. It is something the UK could put effort into. As we approach the potential referendum for reform of our position in Europe, which may or may not occur under a new Government, it is something where the work has already been done to a large extent by the European Parliament and we could have significant impact upon the European Arrest Warrant if it was amended at a European level.

The Chairman: Thank you very much indeed to each of you. We are very grateful.