Paul Arnell – Written evidence (EXL0016)

 

Response to Call for Written Evidence by the Select Committee on Extradition Law

 

Dr Paul Arnell, Robert Gordon University, Aberdeen

September 2014

 

 

  1. The United Kingdom’s extradition arrangements largely operate satisfactorily. They recognise the importance of addressing international and transnational criminality and the UK’s international and EU legal obligations and yet bar the extradition of accused and convicted persons in the light of egregious circumstances.

 

  1. In the vast majority of cases the Extradition Act 2003 (2003 Act) operates to produce just outcomes. Extradition requests to the UK are generally dealt with fairly and timeously, with the various bars to extradition giving requested persons adequate protection. The 2003 Act, Human Rights Act 1998 and ultimately the European Convention of Human Rights 1950 condition all extraditions with human rights protection.

 

  1. An important point that requires emphasis is that the 2003 Act directly gives effect to international treaties and an EU Framework Decision that the UK Government has agreed. These are the product of political negotiation, operate on a reciprocal basis and, in essence, place considerable trust in the criminal law and criminal justice systems of third states. During the course of negotiations it can be reasonably assumed that factors such as the sentencing policies, prison conditions and health systems in these states were taken into account. Parliament enacted the 2003 Act to enable the UK to carry out its international extradition obligations as far as possible in light of its other at times competing obligations in the areas of human rights and international criminal co-operation. It is not for the courts – in the UK or Europe – to usurp or defeat the Government’s will as expressed through Parliament in the form of the 2003 Act.

 

  1. UK extradition law is not overly complex. The substantive rules in the area are necessary to ensure that the law is effective and balances the competing interests that will inevitably arise when a request is contested. Admittedly, extradition law gives rise to novel and unusual enquiries, for example into the nature of systemic corruption in Albania and prison conditions in a US ‘super-max’ gaol. However, the legal tests to be applied to such situations are relatively settled. They are found in European Court of Human Rights (ECtHR) and Supreme Court jurisprudence. Procedurally, the extradition process is rightfully conditioned with relatively strict time limits, which act to address a historic criticism of extradition in the form of the considerable length of time the process has taken to come to conclusion.

 

  1. Crime around the world is increasingly multi-jurisdictional and of an unprecedented scale. The United Nations Of­fice for Drugs and Crime in 2011 estimated that the annual turnover of transnational organised crime groups and networks was $870 billion. The UK is not immune to this. In contrast to the multi-jurisdictional nature of crime is UK criminal law. It has been, and remains, predominately territorial. Particularly, the law generally requires a connection between the act and UK territory for a crime to be committed within it. This is both appropriate and logical but also enhances the importance of extradition. The UK relies on the law of extradition in order to ensure that criminals are prosecuted – including UK nationals – for crimes committed abroad. The UK cannot be a global policeman, prosecuting crimes committed outside its territory where there exists no other connection to it. A generally territorial criminal law, in conjunction with a thorough and efficient system of extradition is a wholly reasonable approach for the UK to take. Indeed, there is not another approach that is readily apparent or appropriate.

 

  1. Extradition is not properly conceived as a first resort, or any resort, in the prosecution of crime committed in non-UK jurisdictions. Instead, it is a tool that allows the transfer of accused and convicted persons where authorities in third states make a request. Admittedly, the question of a UK prosecution has arisen in the light of a request, for instance in the cases of the ‘NatWest Three’ and Gary McKinnon. The Forum Bar also requires consideration of prosecutorial decisions in England and Wales and Northern Ireland in certain circumstances. However, possible prosecution within the UK and decisions on extradition are rightfully distinct, being based upon different considerations.

 

  1. The EAW has greatly improved extradition arrangements between EU Member States. The system of judicial surrender, based upon a Framework List of offences and foregoing the provision of evidence properly reflects the principles of trust and co-operation upon which the EU is founded. This is not to suggest that there are not concerns. The prosecution policies of Poland and the prison conditions and delays in criminal justice in members including Greece are factors that should be addressed. The responsibility for so-doing, however, is not the UK’s, but rather is that of the Member States in question and the EU. The EU’s Charter of Fundamental Rights and Freedoms, together with the fact that all EU Member States are party to the ECHR, provide an avenue to those subjected to an EAW where concerns exist as to the human rights situation within a fellow Member State.

 

  1. The existing statutory bars to extradition, including the relatively new forum and proportionality bars, provide sufficient protection to requested persons where the requesting state need not provide the UK evidence of a prima facie case against that person. Regular re-consideration of the list of territories exempt from providing prima facie evidence should take place, with a view to remove those that it is thought no longer appropriate to designate and similarly to add territories where it is thought appropriate to do so. The rationale underlying these decisions must be that the territory and its criminal justice system are such to merit a high degree of trust. This, in turn, must depend upon that state’s adherence to the rule of law and the human rights protection it gives accused and convicted persons.

 

  1. The UK’s extradition arrangements with the United States are in law similar to those with other territories designated as not having to provide prima facie evidence. The prima facie evidence requirement exists to ensure that extradited persons have committed an offence against the law of the requesting state. It has not been suggested, to the present author’s knowledge, that the US has requested individuals who have not committed an offence against its law.

 

  1. The operation of extradition between the UK and the US is notable on account of the relatively high number of requests made to the UK from the US, the notoriety of a number of those cases and certain features of the US criminal justice system including the length of prison sentences imposed, its plea bargaining system and the conditions within certain of its prisons. These have been considered by various courts in the UK and by the ECtHR and have been held to be compatible with human rights.

 

  1. The partial removal of political input and discretion in the extradition process has been beneficial. Political input should be completely removed. The rule of law supports the removal in that the extradition process should apply equally to everyone subjected to it. Political input in the process can lead to justifiable criticisms, and provide the UK’s extradition partners and its critics a possible justification for refusing UK requests and/or a ground for criticism. The existing bars to extradition, including that a request that is made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, gender, sexual orientation or political opinions offer adequate protection.

 

  1. Decisions to prosecute and decisions to extradite are, and should be, based upon distinct factors. The former, in England and Wales, turn on the factors within the Code for Crown Prosecutors, January 2013, and in Scotland in the Crown Office and Procurator Fiscal Service’s Prosecution Code, May 2001. The latter turn on the place of origin of the request and are based upon the terms of the EU or public international legal obligation to act. That noted, it is not possible to completely disentangle prosecutorial and extradition decisions. This is because single acts can give rise to criminal offences in more than one location and, more specifically, that extradition is barred on account of a previous prosecution according to the rule against double jeopardy. 

 

  1. Political and diplomatic considerations should play no role in either prosecutorial or extradition decisions. The rule of law, in a domestic and international sense, mandates that conclusion, as do the EU’s Eurojust Guidelines, Making the Decision - Which Jurisdiction Should Prosecute?, found in Annex A of its Annual Report 2003. The guidelines contain the presumption that it is the territorial state – where majority of criminality occurred or where the majority of the loss was sustained that should prosecute. Following these, accused persons should be extradited to that territorial state. As between the UK the US, the Agreement for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America 2007 is less precise in iterating the factors that should be considered in coming to decisions about prosecution in the face of concurrent jurisdiction. 

 

  1. The extradition and surrender of nationals and the general applicability of the criminal law on the basis of one’s nationality or residence are both relevant to the discussion of the relationship between extradition and prosecutorial decisions. The UK’s position on both is relatively clear. Historically it has had no qualms in extraditing its nationals. That view continues today. It has only exceptionally extended its criminal law on the basis of nationality or residence. Where it has done so evidential difficulties, prosecutorial disinclination and deference to third states with a territorial interest have militated against the prosecution of offences on that basis. Both of these positions – the extradition of UK nationals and the exceptionality of non-territorial applications of the criminal law – are wholly reasonable and should be maintained.

 

  1. The human rights bar to extradition, as interpreted by UK courts with reference to ECtHR jurisprudence, operates satisfactorily. It acts to protect requested persons from egregious violations of human rights. The tests developed by the courts set the hurdle quite high. The bar is not easily or readily invoked. This is appropriate in light of the interests served by the extradition process and the trust placed in the national and regional human rights systems of the UK’s extradition partners.

 

  1. Where assurances have been received from a third state in regard to the future treatment of a requested person courts should apply a presumption that they will be followed. The question as to the bona fides of the third state is one which is not suited to judicial determination. As such it should be considered to be non-justiciable in all but the most extreme of cases.

 

  1. The responsibility to monitor the implementation of assurances falls to the UK Government. Where assurances are not honoured it becomes a matter for the UK Government to make representations to the authorities in that state. The rendition of persons to that country must cease until it can be demonstrated to the satisfaction of the Government that they will be upheld. 

 

  1. The impact of the forum bar will be slight. This is because the facts underlying extradition requests almost always demonstrate a substantial connection with the requesting state in the form of the harm caused occurring within it. To the author’s knowledge not a single case over the past several years would be a legitimate candidate for a successful argument based upon forum. Cases such as those concerning Ian Norris, the ‘NatWest Three’ and Gary McKinnon did indeed have connections to the UK, to the extent that a ‘substantial measure’ of the requested persons relevant activity took place within it however all of these cases also gave rise to losses and harm in the US.

 

  1. The impact of the entry into force of the proportionality bar is less easily foreseen. This is because a version of it has been applied for some time as developed in ECtHR and UK jurisprudence. Indeed, a growing number of cases can be identified where appeals against extradition orders have been allowed because it was held disproportionate to extradite. Of 279 relevant cases identified via Westlaw and Lexis-Nexis, over the period 1 July 2013 to 30 June 2014 human rights were successfully invoked in 43. An example is Balodis-Klocko v Latvia, [2014] EWHC 2661 (Admin), where it was held that it would be disproportionate to extradite a convicted person where he had served over 8 years of a 10 year sentence for robbery, was HIV positive and had a wife and child in the UK. The proportionality bar as found in s 21A(b) of the 2003 Act is more limited in scope than that developed in the case law (it is also limited to Category 1 accusation extraditions). For example, it limits the matters the judge can take into account in coming to a decision on proportionality in 21A(3)(a)-(c), excluding the health of the individual and the existence of children or other family. As the human rights bar remains alongside the proportionality bar, it is reasonable to assume that both will operate in the same case. In light of this it is not unreasonable to conclude that the proportionality bar will not have a material impact.

 

  1. The present devolution settlement in Scotland is, to this point, fit for purpose in the area of extradition. It is notable that the substantive law in the area of extradition has diverged as between England and Wales and Scotland for the first time relatively recently in that the forum bar has not been brought into force in Scotland. It is desirable for the whole of the UK to act under a single set of extradition rules – where possible and reasonable to do so.

 

  1. Scottish independence will have a significant impact upon extradition within the British Isles. Whilst there is some debate about an independent Scotland’s membership of the EU it is reasonable to assume that in due course Scotland would become an EU member state and as such the EAW scheme will govern extradition between Scotland and the rest of the UK.

 

27 August 2014