Crown Prosecution Service – Written evidence (EXL0054)

 

 

HOUSE OF LORDS COMMITTEE ON EXTRADITION - WRITTEN EVIDENCE ON BEHALF OF THE CROWN PROSECUTION SERVICE             

 

EXECUTIVE SUMMARY

 

Q1.              The CPS believes that the UK’s extradition law provides just outcomes in the vast majority of cases because it embodies a balance between the various competing interests as an essential prerequisite of any decision to extradite or surrender a requested person. The Extradition Act 2003 cannot be characterised as overly-complex.

 

Q2.              On the whole we believe that the existing law is fit for purpose. Rather than focussing on extradition, which often comes at the end of the process, tackling transnational crime requires a greater emphasis on early discussions between prosecutors and investigators in different jurisdictions in cases where jurisdiction to prosecute may potentially be shared.

 

Q3.              The CPS would welcome progress towards making fuller use of mutual recognition measures as alternatives to extradition in appropriate cases. 

                           

Q4.              On balance, the introduction of the EAW has improved extradition arrangements between members of the European Union and increased cross-border co-operation. We would like to see a binding requirement on other States to operate a proportionality filter when considering issuing an EAW. Refusals to execute EAWs on grounds relating to the conditions of detention happen frequently enough to demonstrate that the courts are alive to the need to balance the requirements of comity and reciprocity with the protection of the human rights of the requested person. One possible consequence of re-joining some of the pre-Lisbon Treaty arrangements is that the UK will face infraction proceedings in the CJEU brought by other Member States.

 

Q5.              Requested persons in cases where a prima facie case is not required are not unreasonably prejudiced by this circumstance because the courts are required to apply all the statutory bars including an examination of the impact of extradition on the human rights of the individual requested.

 

Q6.              UK/US extradition arrangements are not imbalanced or asymmetrical. Many of the criticisms supposedly relating to the 2003 Extradition Treaty are in fact related to perceptions of the US system of criminal justice. 

 

Q7.              The principal effect of the removal of the Home Secretary’s role from parts of the extradition process has been to increase the speed with which surrenders take place and to reduce complexity, without a perceptible diminution of the protections afforded to requested persons. The CPS is neutral on the need for a political actor in the extradition process

 

Q8.              CPS decisions on handling cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas are taken in accordance with guidelines issued by the DPP and are not influenced by broader political, diplomatic or security considerations.

 

Q9.              In the context of maintaining a necessary balance between the obligations of comity and reciprocity and the rights of victims of crime on the one hand and the interests of requested persons on the other, the CPS believes that the implementation of the human rights bar by the courts is sufficiently robust.

 

Q10.                            The principles in the Abu Qatada case provide comprehensive guidance on the use of assurances. If the court wanted to monitor post-surrender compliance as a matter of course then the onus ought to be on the court to make or initiate those enquiries. 

 

Q11.              Given its recent introduction it is still somewhat early to speculate on the eventual impact of the forum bar.

 

Q. 12.              The success of the proportionality bar will depend almost entirely on how the NCA and the courts apply the respective tests set down for them in the amended legislation.

 

Q.13.              It is not appropriate for CPS to comment on matters which are the preserve of the Ministry of Justice.

 

Q14.              The CPS has no comment on devolution matters.

 

                                                                                   

 

 


CPS ROLE IN EXTRADITION

 

  1. The Director of Public Prosecutions is under a statutory duty to have conduct of all extradition matters in England and Wales unless expressly asked not to act by the requesting authority abroad. This duty is delegated to the CPS Extradition Unit which is part of the Special Crime and Counter Terrorism Division based at Rose Court in London. The Extradition Unit deals with all export extradition cases, i.e. all those cases in which a fugitive located in England and Wales is sought by a foreign State or Territory whether a category one or two territory.  It does so by representing the foreign issuing judicial authority (in EAW or “Part 1” cases) or foreign state (in “Part 2” cases) in furtherance of the UK’s international obligations under the relevant extradition treaty or convention.

 

  1. In this capacity the CPS does not act as a prosecutor and, as matter of law, is not a party to the proceedings. In many ways its relationship with the requesting authority or State is akin to a solicitor-client relationship. However, case law in this jurisdiction has established that the CPS is not required to act “unquestioningly” on instructions. There is no general power or discretion to refuse to act, still less to discontinue an extradition case once commenced. Nonetheless, as a public authority the CPS is bound to exercise its extradition functions lawfully (i.e. compatibly with European Convention rights as well as ordinary domestic law). In the event of conflict between instructions from the requesting authority/state and its duty to the court the CPS’s primary duty is to the court. This dual role as representative and public authority is not always properly understood by issuing judicial authorities and requesting States, who sometimes assume either that the CPS has discretion whether to initiate or discontinue extradition proceedings, or that it acts in a quasi-judicial capacity.

 

  1. The Extradition Unit also drafts most import requests to non-EAW territories on behalf of CPS Areas and regionally based Complex Casework Units using information supplied by the local reviewing lawyers. Central Casework Divisions within Headquarters draft their own category two requests. In either case once drafted, the requests are forwarded to the Judicial Co-operation Unit in the Home Office for a formal State-to-State request to be made.

 

  1. As far as outgoing EAW requests are concerned, these are drafted by local prosecutors in CPS Areas, Complex Casework Units and Central Casework Divisions. They are adopted and issued by an appropriate judicial authority which for the purposes of the Extradition Act 2003 (“the 2003 Act”) means a Magistrate or a District or Crown Court Judge.

 

RESPONSES TO QUESTIONS RAISED IN THE CALL FOR EVIDENCE

 

General

 

Does the UK’s extradition law provide just outcomes?

 

  1. First of all, it is important to appreciate that the extradition process is not concerned with establishing the guilt or innocence of the requested person in the way that the domestic criminal prosecution system is. Rather, its focus is on the obligations of the United Kingdom arising from treaties and other international instruments to surrender persons wanted in foreign jurisdictions for the purposes of criminal prosecution or the execution of judicially imposed punishments. Given that focus, the definition of a “just outcome” must differ from that associated with the adversarial criminal prosecution process in this jurisdiction, although it can be difficult to define precisely what that different definition might contain. For present purposes we suggest that achieving a just outcome in an extradition case involves striking an objectively justifiable balance between the obligations of the United Kingdom to uphold the comity of nations, the rights of victims here and abroad to obtain justice and to have their legitimate complaints and allegations adjudicated by a competent court of law according to the laws of the country involved and the rights of the individual sought, most particularly those rights and freedoms guaranteed under the European Convention and other binding fundamental laws. To this we would add that a just system of extradition should operate without undue delay.

 

  1. Judged against this yardstick we believe that the UK’s extradition law provide just outcomes in the vast majority of cases because it embodies that balance as an essential prerequisite of any decision to extradite or surrender a requested person.

 

Is the UK’s extradition law too complex?

 

  1. In our view the Extradition Act 2003 cannot be characterised as overly-complex. On its face it is a relatively straight forward and comprehensive piece of legislation. However, we recognise that a considerable body of case law has emerged over the years both before and since the coming into force of the 2003 Act and that this constitutes a formidable body of jurisprudence that has to be mastered by those involved in the extradition process. It is for this reason that we believe that adequate legal representation, as far as this can be provided within the means of the individual or the State, is an important adjunct to a properly functioning extradition system. That said, the basic issues at the heart of any extradition application, namely does it comply in form and substance with the requirements of the 2003 Act such as to trigger a legitimate obligation on the UK to surrender this person to another country; and can that obligation be fulfilled compatibly with the requested person’s human rights, are in essence very straightforward. Our experience is that the courts are assiduous in complying with them even, or one might say, especially, when the requested person does not have the advantage of qualified legal representation for one reason or another.

 

  1. From the perspective of a prosecuting authority which represents governments and judicial authorities seeking extradition any complexity which does exist within extradition law can often work to the advantage of those whose extradition is sought. We do not suggest that the case law is weighted against those requesting extradition but much of the development in the jurisprudence has evolved in a very fact specific way and this can sometimes make it difficult to predict outcomes in advance and thus to advise requesting authorities how best to present their applications in light of extended interpretations and glosses on statutory language. There are on occasions differing interpretations within the case law which a person wishing to resist extradition can explore to their advantage. In several high profile cases this has led to considerable delay amounting in some cases to many years. However, we believe that it is correct that those who are most directly affected by extradition decisions should have the opportunity to challenge the basis on which those decisions are made, testing the law to its full extent where there is uncertainty.

 

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

 

  1. On the whole we believe that the existing law is fit for purpose. Rather than focussing on extradition, which often comes at the end of the process, we believe that tackling transnational crime requires a greater emphasis on early discussions between prosecutors and investigators in different jurisdictions in cases where jurisdiction to prosecute may potentially be shared. Discussions based on the early and frank exchange of information assist prosecutors to arrive at effective, agreed strategies that can make extradition better targeted and thus more effective, helping to provide better outcomes for the victims of trans-border crimes. This is happening already and is likely to become more widespread and routine in the medium term.  The Director has issued guidance to CPS prosecutors on handling cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas, as recommended by the Scott Baker Review. We also recognise the considerable contribution made by Eurojust to increased prosecutorial co-operation.

 

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?

 

  1. All forms of extradition involve restrictions on the liberty of the requested person and their transfer to another country. Additionally, the processes relating to extradition and the subsequent surrender of the person necessitate the expenditure of considerable resources both on the part of the CPS and by other criminal justice agencies. Therefore, it is important that extradition should only be used in cases where this is clearly appropriate and proportionate to the seriousness of the alleged offending, the likely penalty if the requested person is eventually convicted and the interests of any victim. In recognition of this the CPS issues guidance to its prosecutors to consider proportionality in every case where extradition to this jurisdiction is a possibility.

 

  1. Such restraint is not always displayed in extradition requests from other countries. This causes strains on the system as a whole, something which has been recognised by the UK Government and by the Council of the European Union. A possible solution to issues of proportionality, increasing volumes and unease over lengthy pre-trial detention abroad is to make fuller use of other mutual recognition measures. Such measures might include:

 

 

  1. The Home Secretary has made it clear in various statements to Parliament that the Government is committed to exploring options such as those outlined above. The CPS would welcome progress in this area and is willing to assist such initiatives as far as was legally possible.

 

European Arrest Warrant

 

On balance, has the EAW improved extradition arrangements between EU Member States?

 

  1. We are firmly of the view that, on balance, the introduction of the EAW has improved extradition arrangements between members of the European Union. It has certainly increased cross-border co-operation. In the latest year for which consolidated figures are available (2012-13) 1057 people were surrendered from England and Wales to other Member States and 123 people were surrendered to us. By contrast, in the last year before the introduction of the EAW (2002-03) the UK received 114 requests from the whole of the rest of the world and made 87 requests to other countries. While there may have been difficult cases which have justifiably caught media attention, by speeding up the justice process across Europe the EAW system has proved an invaluable asset in the fight against multi-jurisdictional crime and has assisted in bringing to justice those who would otherwise have been able to exploit national boundaries to evade their criminal responsibilities. As well as considerably reducing delay in the process, the EAW has removed former barriers to the surrender of nationals which some countries operated and, as one recent case involving multiple offences of historical child abuse by a paedophile priest revealed, now prevents offenders hiding behind differing limitation periods in other countries.

 

  1. We understand that the UK Government position remains that the decision to opt-out of the EAW (among other Justice and Security measures) will be followed quickly by a successful application to opt-back-in so that no gap in present extradition arrangements will exist. If, despite these intentions, any gap did emerge we believe that there would be a profound impact on the CPS and wider CJS. Our experience is that extradition under the former system was much more complicated and time-consuming. An increase in the time taken to extradite will mean higher detention costs where the person is in custody and a greater burden on courts and prosecutors through the extended process or need to provide a District Judge at short notice to sign a domestic warrant before a person can be arrested.  Moreover, there will also be an impact on victims and witnesses if there is a long delay before a trial can go ahead in the UK because it has taken much longer for EU Member States to surrender accused persons back to the UK. 

 

  1. In addition, some Member States currently require assurances before surrendering their own nationals that the requested persons will be returned to serve their sentences in their own countries and it is entirely possible that those States may refuse extradition requests for their own nationals should we revert back to the old arrangements.

 

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

 

  1. Much of the criticism of the EAW system arises from a widely held perception that EAWs are being issued and executed in cases involving relatively minor, some would say, trivial offences. As we note above, detention under an EAW has significant impact on the liberty of the individual involved and it requires the expenditure of considerable resources in the executing country. Both of these considerations make an effective argument for EAWs to be used only when the arrest and surrender of the requested person is proportionate to the offence or offences involved.

 

  1. The apparent lack of proportionality in some requests is a problem that has been recognised by many countries not just the UK and is something that the Council of the EU is committed to addressing. The focus at the pan-European level is on restraint by the issuing State (the EU Council is opposed to the introduction of proportionality filters by the requested State). At the moment the recommendation that issuing States should operate a proportionality filter is advisory only. We would like to see this becoming a binding requirement on other States which operate the EAW. However, we recognise that this will require action at a pan-European level and is unlikely given that it would probably involve amendment of the EAW Framework Decision.

 

  1. In the interim we shall assist the domestic courts to implement the new section 21A in the Extradition Act 2003. This provides that a lack of proportionality may operate as a bar to extradition to an EAW territory. Before ordering surrender, extradition judges will be required to be satisfied that taking into account the likely sentence, the overall seriousness of the case and the possibility of other, less coercive measures being used instead, the execution of the EAW is proportionate. In addition, the 2003 Act has been further amended to empower the National Crime Agency (NCA) who receive and administer EAW requests to refuse to accept requests which appear bound to be rejected by our courts on proportionality grounds.

 

  1. In this context we have noted that since at least late 2012 in dealing with appeals against extradition in EAW cases the High Court has been taking a more liberal approach to the interpretation of proportionality where it arises in relation to interference with the requested person’s rights to private and family life guaranteed under article 8 of the Convention.   It seems to us that it has become much easier to avoid extradition on the basis of Article 8 or because of delay in seeking surrender where the offence might not be thought of as particularly serious. Any suggestion that there is a test of ‘exceptionality’ has been swept away a long time ago with the courts reiterating when necessary that in regard to Article 8 exceptionality is a prediction, not a legal test. We have also noted an increasing tendency among some judges to view the sentences imposed in other countries through the prism of English sentencing practice, to an extent that would have been frowned on previously. If these two tendencies continue it is likely to mean that the new proportionality bar will have a not inconsiderable impact on EAW-based extradition in future.

 

  1. Another change to the wording of the EAW which we would welcome is the introduction of a requirement that in EAW accusation cases the requesting State confirms that a decision to charge and try the requested person has been taken by the competent authorities in their jurisdiction. This would assist us in meeting the requirements of the recently introduced section 12A of the Extradition Act 2003 which provides that a failure to take either or both of these decisions operates as a bar to extradition in cases where an EAW has been issued in order to secure the return of a person accused (but not convicted) of an extradition offence. In response to a similar requirement in Irish law all outgoing EAWs drafted by the CPS now contain an appropriate statement to this effect. A similar endorsement on incoming EAWs would, we believe, avoid the need for us to revert to the issuing authority in very many cases where section 12A was in issue.

 

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

 

  1. At the heart of the EAW scheme, and central to its functioning, is the principle of mutual trust and recognition between Member States. This was clearly expressed by Baroness Hale in Re Hilali [2008] UKHL 3, where at paragraph 32 she said this:

 

“The issuing judicial authority will not always know where the person concerned will be found. It cannot tailor the warrant to any particular or idiosyncratic requirements of another Member State. So, while I agree that every issuing State should do its best to comply with the requirements of the Framework Decision, it seems equally important that every requested State should approach the matter on the basis that this has been done: in other words, in a spirit of mutual trust and respect and not in a spirit of suspicion and disrespect. For better or worse, we have committed ourselves to this system and it is up to us to make it work.”

 

  1. Acceptance of this principle and approach enables the expeditious surrender of requested persons between Member States. We know that criticisms have been expressed by, among others, Lord Justice Thomas, as he then was, in his evidence to the Scott Baker Review of the UK’s Extradition Arrangements about what he saw as the variable quality of the judiciary across the European Union.

 

  1. As a matter of principle, domestic courts have always been extremely cautious about embarking on “fact-finding missions” about issues touching on the state of human rights in other jurisdictions. Superimposing “local notions of fairness” undermines the effectiveness of the UK’s treaty relations and is not an obligation imposed by the European Court of Human Rights. There is a presumption that Council of Europe members will be able and willing to fulfil their obligations under the European Convention on Human Rights and Fundamental Freedoms to which they are all signatories, in the absence of clear, cogent and compelling evidence to the contrary (see, for example, Dabas v High Court of Justice in Madrid [2007] 2 AC 31 and Krolik v Several Judicial Authorities of Poland [2012] EWHC 2357 (Admin)). Those whose surrender is sought face the legal burden of proving that the requesting state would not fulfil its obligations under the Convention and the threshold is a relatively high one requiring the establishment of strong grounds for believing that, if surrendered, there is a real risk that the requested person will be subjected to mistreatment amounting to a breach of one or more of their guaranteed rights.

 

  1. Notwithstanding that presumption, the courts are prepared to refuse to surrender requested persons where the necessary legal burden is discharged by cogent evidence. In one recent example (Badre v Italy [2014] EWHC 614 (Admin)) the court discharged the requested person because it was not satisfied that detention in Italian prisons was compatible with his rights under Article 3 of the Convention. Jurisprudence from the European Court of Human Rights indicates that the same approach can and, in appropriate cases, should be applied to apprehended breaches of other guaranteed rights, for example where the fugitive has suffered or risks suffering “a flagrant denial of a fair trial” in the requesting country. However, this is a stringent test of unfairness and it is noteworthy that since the possibility that an issue might exceptionally be raised under Article 6 by an extradition decision was recognised by the Strasbourg Court in Soering v United Kingdom (1989) 11 EHRR 439 neither the European Court nor the High Court has ever found that an expulsion would be a violation of Article 6. 

 

  1. Whilst refusals to execute EAWs on grounds relating to the standards of justice - including for these purposes the conditions of detention – in the requesting State are rare, it does happen frequently enough to demonstrate that the courts are alive to the need to balance the requirements of comity and reciprocity with the protection of the human rights of the requested person. It is also important to keep in mind that the practical alternatives to reliance on the good faith and integrity of requesting States are limited.  In a Europe where people move around much more than they did, there is a need for a system for returning someone who has offended in one country back to that country to face charges or to serve sentences, at least in relation to non-trivial offences.  A system in which all of the evidence was tested in our courts before someone was returned is, in our view, impractical. Even if it were desirable as a matter of principle (and we do not believe it is) to transfer the enquiry into guilt and innocence to the courts of the requested State, the domestic court is unlikely to be seized of more than a fraction of the evidence that would be available to the foreign court. The inherent delay would be totally inimical to the principles underlying extradition and detrimental to the interests of the requested person and the victims and witnesses involved. While neither the courts nor the CPS can avoid their responsibilities to act compatibly with the human rights of requested persons, it is also important to appreciate that most of the time we are returning to the country of origin somebody who offended in that country and who, in the absence of their decision to come to this country, would have been dealt with under that legal system. Of those surrendered to other countries in 20012-13 under the EAW scheme 43 (or less than 5%) were British nationals.

 

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

 

  1. The precise details of our renewed relationship with the European Union on matters of justice and security have yet to be finalised as far as we are aware and so it is premature to speculate on the changes, if any, that that relation will entail. However, as a consequence of re-joining some of the pre-Lisbon Treaty arrangements the UK will have to accept the jurisdiction of the Court of Justice of the European Union (CJEU) in relation to those matters. This raises the possibility that the UK will face infraction proceedings in the CJEU brought by other Member States on the basis that a request for surrender has been refused on grounds that are incompatible with the European law, in particular, the EAW Framework Decision (FD).
  2. Infraction is not an inevitable consequence of a discrepancy between the FD and domestic law. For instance, Ireland goes beyond the provisions of the FD in requiring assurances from requesting States that a decision to charge and to try has been taken and, as far as we are aware, this has not been challenged in the CJEU.

PRIMA FACIE CASE

  1. We answer together all four questions under this heading in paragraph 5 of the call for evidence.

 

  1. The decision to designate certain territories as not requiring a prima facie case is a matter of Government policy enacted by Parliament in, for example, in sections 64(5), 65(5) and 84(7) of the 2003 Act. As such, it is not appropriate for the prosecuting authority to comment upon the policy, the rationale for it or the level of parliamentary oversight that is provided for such designations.

 

  1. As a matter of practical application we do not believe that requested persons in cases where a prima facie case is not required are unreasonably prejudiced by this circumstance. The extradition courts in this jurisdiction are bound to apply all the statutory bars including an examination of the impact of extradition on the human rights of the individual requested. There is also a well-established abuse of process jurisdiction which can be used to examine the legitimacy of extradition requests. In our view, these arrangements provide sufficient protection for requested persons.  

 

  1. If prima facie evidence were to be required in all extradition cases it would almost certainly lead to more protracted and complex extradition proceedings. Requested persons would routinely be entitled to give and call evidence in proceedings concerning the sufficiency of the evidence against them. A broad requirement for prima facie evidence would also go against the prevailing trend in extradition proceedings of leaving ‘trial issues’ for the courts of requesting States. The approach of not pre-empting the function of the court of the State seeking extradition by applying  a prima facie case requirement before the trial proceedings take place  is one adopted in other common law jurisdictions such as Canada, Australia, New Zealand and the United States.

 

UK/US EXTRADITION

 

  1. The Call for Evidence notes at paragraph 6 that Sir Scott Baker’s Review of the UK’s Extradition Arrangements, among other reviews, concluded that the evidentiary requirements in the UK-US Treaty were broadly the same. It goes on to ask, however, whether there are other factors which support the argument that the UK’s extradition arrangements with the US are unbalanced.

 

  1. The evidence which the CPS gave to the Scott Baker Review both orally and in writing is a matter of public record. In our written submission we said this:

 

“There is relatively a high volume of extradition between the UK and the US, and in respect of requests from the US, the following considerations are relevant:

 

(a)               Any request must comply with the formal requirements of the Act which sets out minimum standards for the content of a request to amount to a valid request;

 

(b)               All requested persons enjoy the full range of protections under Part 2 of the 2003 Act, including full respect accorded to their Convention rights;

 

(c)               Requests from the United States in practice invariably provide extensive details of the criminal conduct alleged (often greater detail than is provided by those States which must give prima facie evidence). The information provided in the affidavits which form part of the requests, without exception, goes far beyond a bald assertion an offence has been committed.

 

The CPS generally experiences no difficulty in securing the assistance and co-operation of the United States Government. There is a predictable and relatively uncomplicated procedure which does not prove onerous for the United Kingdom. In general, the content of US and UK requests is often similar in terms of information provided and overall length: The US requests consist of a sworn detailed affidavit, usually from a prosecutor. Requests to the US from the United Kingdom contain the sworn depositions usually of a CPS lawyer setting out the relevant law and a hearsay statement summarising the evidence, provided by the investigating police officer. Requests made to the US are executed quickly and almost invariably lead to the surrender of requested persons in a timely manner.”

 

  1. This remains our position. We do not accept the proposition that UK/US extradition arrangements are imbalanced or asymmetrical. The Scott Baker Review observed that a number of criticisms supposedly relating to the 2003 Extradition Treaty, in fact related to the US system of criminal justice.  We would agree with this observation.  The differences between the UK and US criminal justice systems that might give rise to a perception of imbalance include:

 

 

  1. We agree with the conclusion of the Scott Baker Review that should a combination of these or any other factors operate in an individual case to give rise to injustice or oppression then the 2003 Act allows for proper protections against extradition.

 

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?

 

36.     The principal effect of the change to extradition arrangements with other EU Member States from a State-to-State basis to one based on the mutual recognition of judicial orders has been to increase the speed with which surrenders take place and to reduce the complexity previously associated with extradition through “the diplomatic channel”. A limited monitoring exercise of cases in 2012 revealed that on outgoing extradition the average length of the case was 63 days from first hearing to final order, including appeals. That is significantly different to the position before the introduction of the EAW, and it is a huge benefit from a prosecutorial point of view. There are other benefits too which we outline briefly in paragraph 13 above. Taken together these advantages have led us to conclude that, on balance, the introduction of the EAW has improved extradition arrangements with other EU States.
 
37.     However, this assessment is not to be taken as an argument against there being any role for the Home Secretary in extradition arrangements. It may be more appropriate for extradition arrangements between our closest neighbours within the European Union to operate without any involvement by the Executive than it is where arrangements are based on international treaties having their origins in diplomatic relations between Sovereign States. The CPS is essentially neutral on that point but notes the observation in the Scott Baker Review Report  (at paragraph 9.23) that even in relation to extradition under Part 2 of the 2003 Act there are some matters with which the Secretary of State is better placed to deal with than the courts and vice versa. Certainly, the change introduced by the Court and Crimes Act 2013 which ensures that human rights issues arising at the end of the extradition process are decided by the courts rather than the Secretary of State has had the advantage of reducing delays without, as far as we can perceive on the small number of cases involved, diminishing the protections afforded to requested persons.

 

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

 

38.     The Select Committee will be aware that section 208 of the 2003 Act gives the Secretary of State power to direct that a Part 1 warrant should not be proceeded with and to discharge a requested person in a Part 2 case in the interests of national security. This is a matter established by primary legislation on which the CPS cannot comment, save to observe that we are unaware of any case in which this power has been exercised.

 

39.     Internally, the Director has issued guidance to CPS prosecutors on handling cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas. These guidelines are to be followed wherever we are aware that an investigation in this country is running parallel to an investigation in one or more other countries, where questions will arise as to whether one jurisdiction should be in the lead and where any subsequent trial or trials should be held.

 

40.     The guidelines set out a body of principles (modelled, to a large extent on similar principles emanating from Eurojust) to be applied in deciding where a case with concurrent jurisdiction should be prosecuted. The principles are set out in Appendix 1 to this submission. All are legally relevant factors and none require any consideration to be given to political, diplomatic or security considerations. Decisions on where to prosecute must conform to these broad principles and as with all public statements of policy the Director’s guidelines can and have been used as a basis on which to challenge prosecutorial decisions in the courts.

 

41.     For completeness it might be noted that considerations of national security may have some tangential relevance where the court has to decide whether extradition is barred by reason of forum. Sections 19B(4) and 83A(4) provided in identical terms that in deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the requesting territory concerned. We cannot point to any example in case law where this has been of application.

 

HUMAN RIGHTS BAR AND ASSURANCES

 

Is the human rights bar as worded in the Extradition Act 2003, and as implemented by the courts, sufficient to protect requested people’s human rights?

 

42.     Please see our general conclusion in paragraph 25 above. In the context of maintaining a necessary balance between the obligations of comity and reciprocity and the rights of victims of crime on the one hand and the interests of requested persons on the other, we believe that the implementation of the human rights bar by the courts is sufficiently robust.

 

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?

 

  1. The practice of accepting assurances as to the treatment of a requested person if extradited has recently been approved both by the Strasbourg Court (Othman (Abu Qatada) v UK [2012] 55 EHRR 1) and by the High Court here (Ravi Shankaran v The Government of India [2014] EWHC 957 (Admin). Indeed, in the Shankaran case Sir Brian Leveson P accepted the submission made by counsel for the requesting State that undertakings and assurances were “not merely normal but indispensable in the operation of English extradition law”. Unsurprisingly, we would respectfully agree with this appraisal.

 

  1. In a case where assurances have been provided by the receiving State, those assurances constitute a relevant factor which the court will consider in determining whether a requested person faces a real risk of ill treatment in the country to which he or she is to be removed. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill treatment. It is recognised that there is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. As cases such as Badre v Italy, Republic of South Africa v Dewani [2012] EWHC 842 (Admin) and a number of cases involving prison conditions in Lithuania reveal, the courts in this country are assiduous in examining the practical effect of the undertaking as well as its content.

 

  1. In its judgment in Abu Qatada the European Court of Human Rights laid down a set of principles that should be followed in relation to the giving and accepting of assurances. It seems to us that this provides comprehensive guidance on the factors that courts should take into account when considering the quality of assurances and whether in the light of the requesting State’s practices they can be relied on. Not every factor will be relevant to each case or carry the same weight. 

 

  1. Prominent among these factors is the requesting State’s record in abiding by similar assurances, which implies that the court should have access to an objective evaluation of a State’s past performance.  However, whilst the CPS would have a duty to bring to the attention of the court and defence any material of which it was aware suggesting that an assurance will be not be kept, including previous breaches by the requesting State, if the court wanted to monitor compliance as a matter of course then our view is that the onus ought to be on the court to make or initiate those enquiries.  In an adversarial system, the emphasis tends to be on the parties putting information before the court but in relation to monitoring of assurances the court may need to be more proactive.

 

OTHER BARS TO EXTRADITION

 

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

 

  1. The revised and expanded version of the forum bar came into force on 14 October 2013 and it is still somewhat early to speculate on its eventual impact. So far, the issue of forum has been raised only in a handful of extradition hearings before Westminster Magistrates’ Court and none of the challenges to extradition on this basis have been successful at first instance. The first appeal to the High Court in the case of Dibden v Tribunal de Grande Instance de Lille, France (CO/899/2014) was decided on 18th July 2014. The approved judgment is awaited but in broad terms the Divisional Court endorsed the approach of the District Judge in giving great weight to the prosecutor’s belief that the UK was not the appropriate jurisdiction in which to prosecute. The court took the view that section 19B of the 2003 Act was not intended to invite a review of a domestic prosecutor’s belief on grounds short of irrationality.

 

  1. It may be worth noting in this context that in their evidence to the Scott Baker Review the extradition judges at Westminster Magistrates’ Court could not think of any case already decided under the 2003 Act in which it would have been in the interests of justice for it to have been tried in the United Kingdom rather than in the requesting territory.

 

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

 

  1. This is an even more recent innovation to extradition practice. It came into force on 21 July 2014 and so far has only been raised in a handful of first-instance cases. We make a tentative suggestion at paragraph 24 above that the proportionality bar could have a not inconsiderable impact on EAW-based extradition if the High Court continues to apply the more liberal approach to proportionality evidenced by recent decisions in relation to Article 8 challenges. However, until the changes are bedded in, it is impossible to say with any precision how effective they will be in removing comparatively trivial cases from the extradition system.

 

  1. There is even a risk that the introduction of the new measures will increase the amount of time and the resources required to deal with extradition requests from EAW territories if the extradition judges routinely require to be provided with additional information from the requesting authorities e.g. on likely sentences or on viable alternative measures, in order to come to come to a decision on proportionality. The success of the initiative will depend almost entirely on how the NCA and the courts apply the respective tests set down for them in the amended legislation.

 

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 advice to requested persons?

 

  1. The availability of legal aid does not directly affect the CPS, except where delay in determining a requested person’s eligibility for assistance prolongs the overall length of a case by producing the need for additional adjournments. We share the common view that the extradition process should be as short and as efficient as possible and anything which has the potential to introduce or unnecessarily prolong delay is to be deprecated. We are aware of the strong views on the subject expressed by the President of the Queen’s Bench Division in the case of Stopyra v District Court of Lubin, Poland [2012] EWHC 1787 (Admin) but do not feel that it would be appropriate to comment on matters which are clearly the preserve of the Ministry of Justice.    

 

What has been the impact of the removal of the automatic right to appeal extradition (sic)

 

  1. This amendment is not yet in force.

 

DEVOLUTION

 

  1. The CPS has no comment on this topic.

CROWN PROSECUTION SERVICE

Date 2014

 

 

APPENDIX 1

Principles to be applied in deciding where a case with concurrent jurisdiction should be prosecuted

    1. So long as appropriate charges can properly be brought which reflect the seriousness and extent of the offending supported by admissible evidence, a prosecution should ordinarily be brought in the jurisdiction where most of the criminality or most of the loss or harm occurred.
    2. Where potentially relevant material may be held in another jurisdiction, the prospects of the material being identified and provided to prosecutors in England and Wales for review in accordance with disclosure obligations in this jurisdiction will be an important consideration in deciding whether appropriate charges can properly be brought in England and Wales.
    3. Provided it is practicable to do so and consistent with principles 1) and 2) above, where crime is committed in more than one jurisdiction, all relevant prosecutions should take place in one jurisdiction.
    4. Other factors relevant to any determination by CPS prosecutors as to where a prosecution should take place include:
      1.                 the location of the witnesses, their ability to give evidence in another jurisdiction and where appropriate, their right to be protected;
      2.                 the location of the accused and his or her connections with the United Kingdom;
      3.                 the location of any co-defendants and/or other suspects; and
      4.                 the availability or otherwise of extradition or transfer proceedings and the prospect of such proceedings succeeding.

 

    1. Where all other factors are finely balanced, any delay introduced by proceeding in one jurisdiction rather than another and the cost and resources of prosecuting in one jurisdiction rather than another may be relevant.

 

    1. Although the relative sentencing powers and/or powers to recover the proceeds of crime should not be a primary factor in determining where a case should be prosecuted, CPS prosecutors should always ensure that there are available potential sentences and powers of recovery to reflect the seriousness and extent of the offending supported by the evidence.

 

12 September 2014

Version 3 – 29 August 2014