The Law Society – Written evidence (EXL0046)

Response to the Call for Evidence by the House of Lords Select Committee on Extradition Law

Introduction

1. The Law Society of England and Wales (the Law Society/the Society) is the independent professional body, established for solicitors in England and Wales in 1825, that works globally to support and represent its 159,000 members, promoting the highest professional standards and the rule of law. The Law Society negotiates on behalf of the profession and makes representations to regulators and Government in both the domestic and European arena.
2. This submission is prepared in response to the Call for Evidence launched by the Extradition Law Select Committee of the House of Lords on Extradition Law.

Summary

-          Recent amendments to the Extradition Act 2003 might be perceived to introduce a layer of complexity to the UK’s extradition law, as they involve potentially significant changes to a regime that has been relatively static for the last decade. It may take some time before practitioners become fully acquainted with these arrangements and before their impact can be seen.

-          The Law Society believes that extradition law must be seen to be responsive to the increase in multi-jurisdictional crime. While extradition does not address the problem of parallel criminal proceedings for multi-jurisdictional crime, it may indirectly reduce the prospect of parallel proceedings in jurisdictions which recognise double jeopardy protections.

-          With regard to the European Arrest Warrant (EAW), while there is room for further improvements to the regime, it is clear that the introduction of the EAW scheme has improved extradition arrangements between EU Member States by considerably simplifying and speeding up the extradition process.

-          The Law Society is of the view that the EAW scheme should, even in the absence of any amendments, improve organically as EU Member States become more familiar with the operation of each others' respective criminal justice systems and as common understandings develop. Any amendment of the EAW scheme would need to be carefully considered in order to avoid undermining the efficiency of the process. However, legislative amendments to the EAW scheme might ultimately be the only way to address concerns which have arisen in the EU Member States.

-          There must be regular reviews of countries designated as not required to provide a prima facie case in support of a request, as recommended by the Baker Review.

-          The perceived imbalance in the current UK-US extradition arrangements are due to differing requirements for UK and US extradition requests. In the Law Society's view, this difference is one of form and not substance. Any perceived injustice in US-UK extradition is likely to reflect the differences between the respective criminal justice systems.

General

Does the UK's extradition law provide just outcomes? Is the UK's extradition law too complex? If so, what is the impact of this complexity on those whose extradition is sought?

3. The Law Society is of the opinion that assessing whether legislation and procedural rules relating to extradition provides "just outcomes" is a subjective exercise. For whom should the outcome of extradition be "just" – for the requesting and requested States, for the person whose extradition is sought or for the victim of the extradition offence?  Critical media commentary tends to focus on the position of the States, by asking whether extradition arrangements are appropriately reciprocal; notably in connection with the extradition arrangements between the UK and the US, which are widely (and incorrectly) perceived to be unbalanced. The Law Society would like more clarity on what the measure of a "just outcome" should be.
4. Recent amendments to the Extradition Act 2003 in the Crime and Courts Act 2013 and the Anti-Social Behaviour, Crime and Policing Act 2014 might be perceived to introduce a layer of complexity to the UK's extradition law, in that they involve potentially significant changes to a regime that has been relatively static for the last decade and which may take some time for practitioners to become fully acquainted with. A further potential complexity is inherent in the very nature of extradition – the UK courts, like the courts in every requesting State, have to grapple to some extent with foreign laws and procedures in order to confirm whether an extradition request is valid. For example, where a double criminality requirement has to be met the transposition exercise may not always be straightforward.
5. The impact of any legal complexity on those whose extradition is sought may not be readily apparent. Extradition is likely to be a confusing process to the person whose extradition is sought, under any circumstances. In order to ensure that the person whose extradition is sought is treated justly, despite any legal complexity, the procedural protections available should not be less than those available at trial.

Is extradition law fit for purpose in an era of increasingly multi-jurisdictional crime?

6. Extradition law, like any other law, must be responsive to the increase in multi-jurisdictional crime. Not only are people more mobile, but also the methods of offending (including by technological means) do not respect territorial boundaries. The availability of extradition is essential to enabling multi-jurisdictional crime to be dealt with/brought to justice, so if multi-jurisdictional crime is increasing it follows that any restrictions on the availability of extradition should be reduced. This has been the case under the European Arrest Warrant (EAW) regime operated by the EU Member States, but extradition arrangements other than between EU Member States have not been "streamlined" in a comparable way.
7. Extradition does not address the problem of which State should prosecute multi-jurisdictional crime, but it may indirectly avoid the prospect of parallel criminal prosecutions of the same offences at least in jurisdictions which recognise double jeopardy protections. The introduction of the forum bar should enable the UK to pursue prosecutions of persons within its territory even if the conduct in question is already the subject of an overseas prosecution. Similarly, the new provisions requiring extradition to be postponed if the person whose extradition is sought has been charged with an offence in the UK should further bolster the ability of the UK authorities to pursue appropriate prosecutions unhampered by extradition requests. Conversely, the existence of functioning extradition arrangements might also incentivise States to exercise extra-territorial jurisdiction and thereby increase the prospect of jurisdictional conflict. The prospect of multiple criminal prosecutions of the same conduct is increasing, but it is not a problem that extradition can or should solve.
8. Instead, the value of extradition is that it enables multi-jurisdictional crime to be prosecuted at a national level. The alternatives would be incomplete prosecutions of multi-jurisdictional crime or prosecution by a supranational entity only.

To what extent is extradition used as a first resort when prosecuting a crime committed in another jurisdiction? Should greater use be made of other remedies?

9. The Law Society does not wish to make any generalisations about the practices adopted in other jurisdictions, whose criminal justice systems will inevitably differ considerably from the common law adversarial system in England and Wales. To the extent that extradition requests might, on occasion, be made prematurely, we note that the criteria for a valid request are such that an investigation would need to be at a reasonably advanced stage in order for them to be satisfied. Furthermore, we do not regard early extradition as problematic per se – particularly in light of the speed with which information is communicated and the ease of traversing national borders, which both increase a fugitive's flight risk. Instead, the focus should be on safeguards to ensure that the rights of an extradited person are respected after extradition has taken place – for example, by restricting the circumstances in which, and the period for which, an extradited person can be detained in advance of trial.
10. Recent amendments to the Extradition Act 2003 may address some of these concerns. Provisions introduced by the Anti-Social Behaviour, Crime and Policing Act 2014 enables the UK extradition court to refuse an EAW where the issuing State has not taken both a decision to charge and to try the person, unless the person’s presence in that country is required in order for such a decision to be taken. The introduction of this provision should go some way to addressing concerns over the lengthy pre-trial detention of British citizens overseas, by discouraging premature extradition requests. A further provision enables the person whose extradition is sought to speak with the authorities in the requesting state before extradition takes place, either by way of a temporary transfer or by video link.
11. Concerns about early extradition may also be addressed by Framework Decision 2009/829/JHA[1] which applies the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. Moreover, a future EU instrument on minimum standards for pre-trial detention[2] could improve the position of extradited persons further.

European Arrest Warrant

On balance, has the European Arrest Warrant (EAW) improved extradition arrangements between EU Member States?

12. While there is room for further improvements to the EAW regime, it is clear that the introduction of the EAW has improved extradition arrangements between EU Member States by speeding up the extradition process. We agree with the Government’s analysis that “the European Arrest Warrant has been successful in streamlining extradition processes and returning serious criminals.”[3]
13. The EAW has reduced the length of extradition proceedings by removing some of the grounds for refusing extradition requests and by imposing strict time limits for acting on requests. Prior to the EAW, extradition of an individual used to take one year, on average. In 2011, the Commission reported that the time for extradition pursuant to the EAW scheme had been cut to an average of 48 days.[4] The extent of the improvement is readily apparent when contrasted with the length of extradition proceedings as between non-EU Member States, whether pursuant to bilateral or multilateral treaties or "special" extradition arrangements.
14. By speeding up the extradition process the EAW scheme should be benefiting both the requesting and requested States, as well as the accused – who should spend less time in pre-trial detention as a result. 
15. We understand that the use of standard forms and procedures associated with the EAW has also introduced a greater degree of certainty of outcome, and thereby improved confidence in mutual legal assistance in general on the part of investigators and prosecutors.

How should the wording or implementation of the EAW be reformed?

16. We are aware that the Baker Review recommended amendments to improve the efficiency of the EAW scheme, by way of both legislative amendments and enhanced dialogue and cooperation at EU level. The Law Society agrees with this recommendation but adds the following considerations:

• The EAW scheme should, even in the absence of any amendments, improve organically as EU Member States become more familiar with the operation of each others' respective criminal justice systems and as common understandings develop.
• Any amendment of the EAW scheme would need to be carefully considered in order to avoid undermining the efficiency of the current process.
• Legislative amendments to the EAW scheme might be the only way to address concerns which have arisen in the EU Member States.

17. A key amendment to the EAW scheme which has been mooted for some time now is the introduction of an express proportionality requirement. The principle of proportionality already exists in EU law – in accordance with Article 5(4) of the Treaty on the European Union (TEU), "under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties". The extent to which this principle is reflected in the EAW scheme has been unclear since the inception of the process, in the absence of an express reference in the EAW Framework Decision. The issues which arose as a result have been well publicised, and were fully examined in the Baker Review.
18. The introduction of an express proportionality requirement into the EAW regime would function as a de minimis principle, preventing extradition for trivial offences. Such a proportionality check is now a feature of the domestic implementation of the EAW regime, following amendments to the Extradition Act 2003.[5] As a result, extradition requests made in respect of trivial offences should no longer be acted on by the UK authorities. Other EU Member States have also amended their legislation and procedures, in order to ensure that their requests are proportionate – for example, we understand that Polish prosecutors no longer apply the principle of legality when seeking to issue an EAW and that sentencing laws in Poland have been amended to reduce reliance on suspended custodial sentences.
19. Introducing a similar proportionality requirement into the EAW regime would ensure that the same approach is adopted by the other EU Member States. In the Law Society's view, this would be preferable to the current position, as Member States could adopt inconsistent approaches to proportionality in their implementing legislation. It would also make the EAW scheme consistent with the EIO scheme. Article 6(1) of the recently adopted Directive on the European Investigation Order provides that an EIO may only be issued if "it is necessary and proportionate for the purpose of the proceedings [...] taking into account the rights of the suspected or accused person". 
20. We note that the introduction of a proportionality requirement is also supported by the European Parliament, which in its resolution of 27 February 2014 recommended that the Commission review the operation of the EAW scheme and submit, within a year, a legislative proposal for its amendment.[6] In particular, the European Parliament called for the introduction of a “proportionality check when issuing mutual recognition decisions, based on all the relevant factors and circumstances such as the seriousness of the offence, whether the case is trial-ready, the impact on the rights of the requested person, including the protection of private and family life, the costs implications and the availability of an appropriate less intrusive alternative measure.”

Are standards of justice across the EU similar enough to make the EAW an effective and just process for extradition?

21. The European Parliament in its 2014 resolution also recommended the introduction of a mandatory refusal ground where there are substantial grounds to believe that the execution of the request would be incompatible with the executing Member States’ obligation under Article 6 TEU and the Charter. A similar position is already adopted in the UK’s implementing legislation, which requires extradition to be refused if it would not be compatible with the Convention rights of the person whose extradition is sought. The Law Society would support the introduction of an express requirement to this effect into the EAW scheme for the same reasons that it would support the introduction of an express proportionality requirement – in order to ensure consistency throughout the EU.
22. Such an amendment would not, however, address the variation in standards of justice across the EU. While the common membership of the ECHR ensures a base level of procedural protections in the EU Member States, increased procedural rights protections are required to support the operation of mutual recognition instruments such as the EAW Framework Decision. The "roadmap" measures agreed as part of the EU Stockholm programme have sought to address this need, and the Law Society regrets that the UK has not opted in to all of these instruments. In particular, the Law Society regrets the UK Government's intention not to opt into the proposed Directive on provisional legal aid and legal aid in EAW proceedings.[7]

How will post-Lisbon Treaty arrangements change the EAW scheme once the UK opts back in to it?

23. The Law Society welcomes the Governments' intention to opt back into the EAW, as outlined in our written submissions on the exercise of the block opt-out.[8]
24. Post-Lisbon, the Court of Justice of the European Union (CJEU) will exercise a broader review jurisdiction over the EAW scheme. The court has previously had limited oversight of the operation of the EAW scheme, as a result of preliminary reference requests made by courts in Member States who, unlike the UK, had consented to the CJEU’s jurisdiction over third pillar measures. The UK's domestic implementation of the EAW scheme will now become reviewable. However, the difference may not in practice be significant, as the UK courts have in the past nevertheless had regard to the CJEU's interpretations of the EAW Framework Decision.[9]

Prima Facie Case

In circumstances where a prima facie case is not required, do existing statutory bars (the human rights bar, for instance) provide sufficient protection for requested people?

25. The requirement of a prima facie case is no panacea. It may even provide a lesser form of protection for the person whose extradition is sought than the current statutory bars, as outlined in the Law Society’s response to the Baker Review.[10]

Are there territories that ought to be designated as not requiring a prima facie case to be made before extradition? What rationale should govern such designation? What parliamentary oversight of such designation ought there to be?

26. The Law Society sees no reason in principle why certain territories should not be exempt from the requirement to demonstrate a prima facie case in support of an extradition request. As outlined in the Law Society’s response to the Baker Review, this position reflects the UK's obligations as a signatory to the European Convention on Extradition 1957 not to require requests to be accompanied by evidence of a prima facie case unless it enters a reservation to this effect.
27. The Baker Review considered this question in some detail, and concluded that the existing statutory protections should be supplemented by periodic reviews of designated Category 2 territories so as to take proper account any adverse judicial pronouncements. The Government accepted the need for periodic reviews of designations,[11] and the Law Society hopes that such reviews are indeed being carried out. The Baker Review specifically concluded that diplomatic repercussions should not be a legitimate reason to not revoke a designation, and the Law Society agrees with this position.

US/EU Extradition

Are the UK's extradition arrangements with the US comparable to other territories that do not need to show a prima facie case? If so, should the US nonetheless be required to provide a prima facie case, and why?

28. As outlined in the Law Society's response to the Baker Review, there is a perceived imbalance in the current UK-US extradition arrangements due to the different requirements for UK and US extradition requests. Under the current UK-US treaty, US requests in accusation cases only need to identify the person sought, the facts of the offence, the applicable law and provide a copy of the domestic arrest warrant and any charging document. UK courts do not, therefore, assess the strength of evidence in extradition proceedings relating to US requests. By contrast, UK requests must additionally set out such information as would provide a reasonable basis to believe that the person sought committed the offence.
29. As the Baker Review concluded, the difference is one of form and not substance.[12] A US court needs to be satisfied, before issuing a domestic arrest warrant, that there is 'probable cause'. This is effectively the same as a requirement to provide a prima facie case.
30. The Law Society agrees with this conclusion and sees no obvious reason why the UK should seek to renegotiate its Extradition Treaty with the US so as to insert a prima facie case requirement. In our response to the Baker Review, we indicated that any perceived injustice in US-UK extradition cases may be less a result of the absence of a reciprocal prima facie evidence requirement than of the differences between the respective criminal justice systems. In its response to the Baker Review the Law Society noted that there is little scope for the UK courts when considering a US extradition request to take into account the practical realities of the disparity between the respective criminal justice systems such as the very different approaches to the availability of legal aid and to the practice of plea bargaining, the different sentencing practices and different conditions of detention. To date, such differences have not been found to violate the right to a fair trial under Article 6 ECHR or to merit a stay of extradition proceedings as an abuse of process.

Political and Policy Implications of Extradition

What effect has the removal of the Home Secretary's role in many aspects of the extradition process had on extradition from the UK?

To what extent is it beneficial to have a political actor in the extradition process, in order to take account of any diplomatic consequences of judicial decisions?

31. The Home Secretary's previous ability to exercise discretion provided a further safeguard for persons whose extradition was sought. It follows that the removal of this discretion meant that extradition could only be resisted through the courts.

To what extent are decisions of where to prosecute certain crimes and whether to extradite influenced by broader political, diplomatic or security considerations?

32. Considerations or international relations and national security considerations could potentially influence decisions to prosecute – for example, a decision might be taken not to prosecute if it would involve public disclosure of information or material that could harm international relations and national security. However, as a general rule political, diplomatic and security consideration tend not to play a prominent role in the guidance governing the exercise of prosecutorial discretion. Specifically as regards multi-jurisdictional offences, the Law Society notes that the Director of Public Prosecution's Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities[13] do not expressly contemplate that decisions to prosecute should be influenced by broader political, diplomatic or security considerations.
33. The Law Society sees no reason in principle why the considerations governing decisions to extradite should be any different – provided that there is an avenue for scrutinising and if necessary challenging such decisions, whether by judicial review or by the constitutional convention of ministerial accountability. However, we note that such considerations might in certain circumstances breach the UK's international obligations – for example, where extradition requests are made in support of prosecutions of overseas bribery. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, to which the UK is a signatory, states in Article 5 that the investigation and prosecution of the bribery of a foreign public official shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved. Whilst this obligation does not expressly extend to the UK's provision of mutual legal assistance and extradition, a decision not to extradite a person accused or convicted of bribing an overseas public official might be argued to breach Article 5 if it is based on diplomatic considerations.

Human Rights Bar and Assurances

Is the human rights bar as worded in the Extradition Act, and as implemented by the courts, sufficient to protect requested people's human rights?

Is the practice of accepting assurances from requesting states to offset human rights concerns sufficiently robust to ensure that requested people's rights are protected?

What factors should the courts take into account when considering assurances? Do these factors receive adequate consideration at the moment?

To what extent is the implementation of assurances monitored? Who is or should be responsible for such monitoring? What actions should be taken in cases where assurances are not honoured?

34. The courts in England and Wales are, as public authorities for the purposes of the Human Rights Act 1998, obliged to act compatibly with the ECHR in the course of extradition proceedings like in all legal proceedings.  In addition to the human rights bar, the courts also exercise an inherent jurisdiction to dismiss extradition proceedings as an abuse of process. Persons within the UK's jurisdiction would also have recourse to the European Court of Human Rights, and could seek interim measures to further safeguard their rights.
35. Diplomatic assurances must be treated with caution as they are necessarily an imperfect protection, and the courts must guard against their systematic use as a way for the UK to avoid its international obligations. The negotiation of and decision to place reliance on diplomatic assurances are inherently political decisions.

Other Bars to Extradition

What will be the impact of the forum bar brought into force under the Crime and Courts Act 2013?

36. Some commentators have suggested that the ability of a prosecutor to issue a certificate effectively preventing reliance on the forum bar renders the protection conferred by the forum bar illusory. An assessment of its impact is, however, premature.

What will be the impact of the proportionality bar in relation to European Arrest Warrant applications recently brought into force under the Anti-social behaviour, Crime and Policing Act 2014?

37. The Law Society believes that the symbolical significance of the proportionality bar should not be underestimated. An assessment of its impact is, however, premature.

Right to Appeal and Legal Aid

To what extent have changes to the availability of legal aid affected extradition practice, and the provision of specialist legal aid to requested persons?

What has been the impact of the removal of the automatic right to appeal extradition?

38. It is too early to assess what the impact will be of changes to the availability of legal aid and the removal of the automatic right to appeal extradition.

Devolution

14. Are the devolution settlements in Scotland and Northern Ireland fit for purpose in this area of law?

How might future devolution or Scottish independence affect extradition law and practice?

39. The Law Society is not in a position to respond to these questions.

12 September 2014

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