Extradition Section Judicial Cooperation Unit, Home Office – Written evidence (EXL0060)

ANNEX C -               Responses to questions raised during the Witness Session of the Minister for Immigration and Security, before the House of Lords Select Committee on the Extradition Act 2003, 16 July 2014

AND

ANNEX D -               Home Office Responses to Committee’s Call for Evidence

Home Office Written Evidence to the House of Lords Extradition Select Committee: Post-Legislative Assessment of the Extradition Act 2003 – September 2014

Contents

Section 1 – Responses to questions raised during the Witness Session of the Minister for Immigration and Security, before the House of Lords Select Committee on the Extradition Act 2003 – 16 July 2014

Question by Lord Hussain on new treaties (Page 22 of transcript)             

Question by the Chairman on ad-hoc treaties (Page 23 of transcript)             

Questions on US extraditions:

              By the Chairman (Page 24 of transcript)             

              By the Chairman (Page 24 of transcript)

              By the Chairman (Page 25 of transcript)             

              By Lord Brown of Eaton-under-Heywood (Page 25 of transcript)

              By the Chairman (Page 25 of transcript)             

              By Baroness Jay of Paddington (Page 25 of transcript)

              By Lord Mackay of Drumadoon (Page 26 of transcript)

Question by the Chairman – Further comment by Minister (Page 28 of transcript)

Section 2 - Responses to the House of Lords Select Committee on the Extradition Act 2003 - Call for Evidence

General

European Arrest Warrant

Prima Facie Case

UK/US Extradition              ..........................................................

Political and Policy Implications of Extradition ..........................................................

Human Rights bars and Assurances

Other Bars to Extradition

Right to Appeal and Legal Aid

Devolution

Section 1

Responses to questions raised during Minister for Immigration and Security’s Witness Session before the House of Lords Select Committee on the Extradition Act 2003 – 16 July 2014

Question by Lord Hussain on new treaties                                          (Page 22 of transcript)

“There are obviously countries with which we do not have any treaties for extradition.  Are you drawing up any new list of countries or are you drawing any new extradition treaties with countries such as Japan, for example?”

The Government has recently concluded a treaty with the Philippines which will shortly be designated for the purposes of Part 2 of the Extradition Act 2003 (“the 2003 Act”). We are not currently negotiating any new extradition treaties, including with Japan. At this stage, we see no business need to seek any new treaties.

The lack of any general extradition arrangement with a territory (i.e. one with which the UK has no treaty and which is not a party to any relevant international convention or scheme covering extradition) does not preclude the UK from making an extradition request to another territory, or executing a request from another territory. 

Question by the Chairman on ad-hoc treaties                                          (Page 23 of transcript)

[James Brokenshire]…“perhaps it might be helpful to the Committee if we were able to write to the Committee and perhaps set out some of those [ad hoc requests] processes in order to inform your consideration?”

[Chairman] “It would be helpful to know exactly how it works in the real world.”

The UK receives several extradition requests each year from territories with which it has no general extradition arrangements (i.e. no treaty and the territory is not a party to any relevant international convention or scheme covering extradition). Some of these requests involve very serious offences. In such cases, section 194 of the 2003 Act gives the Secretary of State the power to enter into “special extradition arrangements” (or ad hoc arrangements) to enable an extradition request to proceed against a particular person.

When the UK receives an extradition request from a territory with which it has no general extradition relations, it is treated as a request to consider whether to enter into special extradition arrangements. It is then for the Secretary of State to consider the facts of the case and whether, in the light of all available information and all relevant factors, the UK should seek to enter into special arrangements. These factors include the seriousness of the offence(s), and whether the bars to extradition in the 2003 Act, including human rights, may be engaged. 

Once a decision to proceed has been made, the Government will seek to agree a Memorandum of Understanding with the territory making the request. This is in effect a “mini-treaty” in respect of the particular person whose extradition is sought. Once the Memorandum has been signed by both parties a certificate will be signed by the Secretary of State to certify that special extradition arrangements under section 194 of the 2003 Act have been made between the UK and the relevant territory. Once this has been done, the provisions of Part 2 of the 2003 Act apply in the same way as they would if the request had been received from an extradition partner with which the UK has general extradition arrangements (with modifications).

In 2013 the Secretary of State agreed to proceed with renewed requests for five men accused of genocide in Rwanda. In 2013 Ministers also agreed to proceed with requests from Taiwan and Bermuda. All these cases are currently before the courts.

Question by the Chairman on US extraditions                                          (Page 24 of transcript)

“How many requested people has the UK extradited to the US since the signing of the US/UK treaty?”

Between 26 April 2007 (when the treaty came into force) and 31 July 2014, 72 people were extradited from the UK to the US.

Question by the Chairman              on US extraditions                                          (Page 24 of transcript)

“How many requested people has the UK extradited from the US since the US ratified the treaty?”

Between 26 April 2007 and 31 July 2014, 38 people were extradited to the UK from the US.

Question by the Chairman              on US extraditions                                          (Page 24 of transcript)

“How many requests from the US have been refused on human rights” grounds?”

Between 26 April 2007 and 31 July 2014, two extradition requests from the US were refused on human rights grounds.

Question by the Chairman              on US extraditions                                          (Page 25 of transcript)

“How many requested people has the UK extradited to the US after human rights assurances were made?”

This information is not routinely collected. However, following a manual search of our records seven cases have been identified where the UK extradited a person to the US following the receipt of assurances on human rights matters, such as the death penalty.                            

Question by Lord Brown of Eaton-under-Heywood on US extraditions (Page 25 of transcript)

[James Brokenshire] … “I do point to the fact that extradition has been refused by our courts on 14 occasions, whereas on no occasion has the US refused a request from the UK.”

[Lord Brown] “When you come to write to us, can you give us in each of the 14 cases an indication of the grounds that we refused them on?”

Of the 14 extradition requests from the US that were refused by the UK:

• three were refused because the offence was not an extraditable offence;

• three were refused following legal rulings that the statutory time limits in the 2003 Act had not been met;

• two were refused on human rights grounds;

• two were refused because of the passage of time;

• two were refused on health grounds (one of those being on mental health grounds);

• one case was refused on the grounds of the rule against double jeopardy; and

• one case was refused on the grounds that no reasonable cause had been shown for the delay in the case.

Question by the Chairman              on US extraditions                                          (Page 25 of transcript)

“Could you also tell us: 14 out of how many?”

Between 26 April 2007 and 31 July 2014, 106 extradition requests were made by the US to the UK.

Question by Baroness Jay of Paddington on US extraditions              (Page 25 of transcript)

“Do UK authorities routinely ask US prosecutors that requested persons who are UK citizens – or who have strong links with this country – serve in the UK any custodial sentences that US courts impose?”

We do not routinely ask for extradited prisoners to be returned to the UK to serve prison sentences. However, post-sentencing it is possible for prisoners to be returned to the UK to serve their sentence under the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons, to which both countries are signatories[1]. Transfer requires the consent of the individual concerned.

Question by Lord Mackay of Drumadoon on US extraditions              (Page 26 of transcript)

“Can I also ask that, when you reply to the various questions you have been asked, you make it clear how many of the requests for extradition originated with prosecutors at State level and how many originated with prosecutors at federal level?”

The Government does not hold such information. It was not possible from a manual search of Home Office records to identify which cases were made at federal level or which were State level.

Question by the Chairman seeking any further comments by the Minister                                          (Page 28 of transcript)

[Chairman] “Is there anything else you would like to say?”

[James Brokenshire] … “I have been a very keen supporter of something called Operation Captura, which is a scheme conducted with Crimestoppers and with the Spanish authorities to see that individuals are brought back to justice from Spain to the UK.  It has been very successful. Perhaps I may drop the Committee a line on that particular scheme we are operating, because it does give a sense of the power of extradition to see that the rights of victims are properly respected.”

[Chairman] “That is a point I hope we will not lose sight of at any point in the proceedings.  Thank you very much indeed.”

Since 2006, Crimestoppers and the Serious and Organised Crime Agency/National Crime Agency (NCA) have run a joint initiative with the Spanish police called Operation Captura[2] which is aimed at “educating the public about different crime types” and “appealing for information”. Operation Captura works by publicising the names and faces of wanted criminals who are believed to be in Spain so members of the public, both in Spain and in the UK, who identify wanted individuals can anonymously provide information as to their whereabouts. The subjects are then brought back to the UK under an EAW to face justice.

The Government strongly welcomes the work of the initiative and believes that it clearly demonstrates the role and value of the EAW in targeting fugitives from British justice who are believed to be resident in Spain. Government Ministers have taken an active interest in Operation Captura and have met with their Spanish counterparts on a number of occasions to underline their support for it.

The success of Operation Captura means that Spain is no longer an appealing destination for British criminals seeking to escape justice.  Since Operation Captura was launched, 61 of 76 wanted criminals have been arrested and brought back to face justice. The NCA believe this to be clear proof of the effective cooperation that exists between UK and Spanish law enforcement agencies.

Notable successes include the return of:

• Ian WHITE – a tobacco smuggler who masterminded a £6million VAT scam. He was tried, convicted and sentenced to six years imprisonment in his absence in the UK on 11 March 2004. He was arrested as a result of information provided through Operation Captura and was returned to the UK on 20 September 2007 to serve his sentence in the UK.

• John DOWDALL – was wanted in the UK for importing large quantities of cannabis from Spain in 2003. He was tried, convicted and sentenced to five years imprisonment in his absence on 17 May 2005. After being arrested in Spain, he was returned to the UK in September 2007 to serve his sentence.

• Anthony SIMMONDS – was wanted for importing large quantities of cannabis from Spain and failure to declare VAT duty of £4million. Arrested in Spain in December 2006, he was returned to the UK in early 2007. After appearing in court, a sentence of three years imprisonment was handed down.

• Markcus JAMAL – was wanted for conspiracy for murder of Nageeb El Hakem in 2005. He was arrested in Spain following information provided through the Crimestoppers website and returned to the UK in January 2007 where he was convicted and sentenced to 22 years imprisonment.

• James TOMKINS – wanted for the murder of Rocky Dawson in 2006. He was arrested in Spain in 2010 and returned to the UK. He was sentenced to life imprisonment in 2011.

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Section 2

Responses to the House of Lords Select Committee on the Extradition Act 2003 – Call for Evidence

General

1. Does the UK’s extradition law provide just outcomes?

The Government believes that the UK’s extradition law now operate transparently, and in a way which sensibly balances the interests of justice and the interests of victims against the rights of the individual whose extradition is being sought.

In acknowledgement of concerns about the operation of the European Arrest Warrant (EAW), the Government has made several changes to the Extradition Act 2003 (the 2003 Act) in order to better protect UK citizens, and strike a better balance between necessary law enforcement action and civil liberties. Those legislative changes were introduced to Part 1 of the 2003 Act, which implements the EAW, through the Anti-Social Behaviour Crime and Policing (ASBCP) Act 2014. These include:

• requiring the judge to consider whether the alleged conduct and likely sentence a person will receive if extradited and convicted is sufficiently serious to make the person’s extradition proportionate. This is supported by an administrative proportionality check, undertaken by the National Crime Agency (NCA) which identifies the most trivial requests when they are first received and refuses to certify them (section 157 of the ASBCP Act 2014);

• addressing concerns relating to pre-trial detention, so that where a case is not far enough advanced and there are no  reasonable grounds for believing that a decision to charge and/or try the person has been made in the requesting State, the judge must discharge the case. The exceptions to this are where the issuing State can prove that the decisions to charge and try have actually been made, or that the person’s presence is required in the issuing State for the decisions to be made (section 156 of the ASBCP Act 2014);

• allowing for an individual to be temporarily transferred to an issuing State to be questioned ahead of the extradition hearing in the UK, if the person consents.  The changes also allow the person to speak with the authorities in the issuing State (e.g. by videoconference) pending the extradition hearing, if the person consents (section 159 of the ASBCP Act 2014);

• making the 2003 Act much clearer as regards the existing requirement for dual criminality, in particular, setting out that in cases where all or part of the conduct occurred in the UK and the conduct is not criminalised here, the EAW must be refused for that conduct (section 164 of the ASBCP Act 2014); and

• lifting the requirement that individuals lose their right to speciality protection when they consent to extradition (section 163 of the ASBCP Act 2014).

For non-EAW cases, in addition to the pre-existing safeguards that existed in the 2003 Act the Government has introduced the ‘forum bar’. The Government believes that the forum bar, introduced in the Crime and Courts Act 2013, is a positive development in that it ensures that the possibility of a prosecution in this country is always properly considered before a decision to extradite is taken. It is important that the public have confidence in the way in which the UK’s extradition arrangements work and the issue of forum is critical to that.

1. Is the UK’s extradition law too complex? If so, what is the impact of this complexity on those whose extradition is sought?

The Government does not consider that the UK’s extradition law is too complex. Extradition proceedings are criminal proceeding of a particular type in that they do not involve the determination of any criminal charge. At the same time, there is a need to ensure proper protections for those whose extradition is sought.  The Government has sought to provide, through the law, a clear and fair system within which extradition requests can be considered as quickly as possible. Concluding cases quickly and fairly is the best way to reduce any negative impact on an individual. 

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

The Crime and Courts Act 2013 introduced a forum bar to ensure that the possibility of a domestic prosecution is properly explored as part of the extradition proceedings. A key part of this process is that the judge must consider whether a substantial measure of the alleged criminal activity was performed in the United Kingdom. The Government considers that the forum bar was important change to domestic legislation to ensure that extradition arrangements operate fairly. The Government considers that this change will have increasing significance in an era of multi-jurisdictional crime.

3. 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?

The Government has sought to address concerns that extradition can be resorted to too readily as part of the reforms to the EAW. The changes introduced provide for a new bar to extradition in incoming EAW cases on the grounds of “absence of prosecution decision” (section 12A of the 2003 Act). This is intended to ensure that a case is sufficiently advanced in the issuing State (that is, there is a clear intention to bring the person to trial) before extradition can occur, so that people do not spend potentially long periods of time in pre-trial detention following their extradition whilst the issuing State continues to investigate the offence. This change ensures that, in cases where the person is wanted to stand trial, extradition can only go ahead where the issuing State has made a decision to charge the person and a decision to try the person (or is ready to make those decisions). Where it appears to the judge that there are reasonable grounds for believing that either or both a decision to charge and a decision to try have not been taken in the issuing State (and that the person’s absence from that State is not the only reason for that), extradition will be barred.

Other changes have been made to ensure that extradition does not take place where it is disproportionate.  In assessing that, the judge must consider (as far as the judge thinks it is appropriate to do so) the possibility of foreign authorities taking measures that are less coercive than extradition.

In addition, there are now provisions to allow the temporary transfer of an individual to the State issuing an EAW (e.g. to be questioned ahead of the extradition hearing in the UK).  There is also a provision which enables video-conferencing, pending the extradition hearing.

The Government also believes that where alternatives to extradition do exist, these should be used. For example, if it is possible to use Mutual Legal Assistance to obtain a statement from a suspect (not an accused person) then that may be a suitable alternative, although this would need to be considered by the issuing authority on a case by case basis.

Within this context it is worth noting the recent adoption of the European Investigation Order (EIO), which will streamline the way in which most EU Member States request and provide evidence to assist in criminal investigations or proceedings. The EIO (Directive 2014/41/EU[3]) entered into force on 22 May 2014 must be implemented within three years of that date. It replaces previous arrangements for the way in which Mutual Legal Assistance is processed and it explicitly states that an EIO is to be issued for the purpose of having one or several specific investigative measure(s) carried out in the Member State executing the EIO (‘the executing State’) with a view to gathering evidence. This includes the obtaining of evidence that is already in the possession of the executing authority. It will contain specific time limits for obtaining evidence and this is likely to see the EIO become a helpful tool in ensuring that extradition is not sought at too early a stage in proceedings.

European Arrest Warrant

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

The Government is clear that the EAW provides the most effective tool in tackling cross border crime and provides distinct advantages over the 1957 European Convention on Extradition (ECE), which is the scheme under which extradition between EU Member States would operate if we ceased to use the EAW. 

Firstly, the process of extradition under the EAW is quicker than under the ECE. In terms of surrender from the UK to another EU Member State, it takes approximately three months to surrender someone using an EAW. However, it takes approximately ten months using the ECE, but can take much longer. There are obvious advantages to having foreign criminals, and alleged foreign criminals, leave the UK more quickly. The most recent estimate suggests EAWs cost on average £13,000 each to process, whereas the figure for extraditions under the ECE is £62,000 (these figures are set out in Command Paper 8897, which includes an Impact Assessment on the EAW and Schengen Information System II at pages 45-46[4]).

Furthermore, the ECE allows territories to refuse to extradite their own nationals. However, under the EAW, EU Member States cannot bar surrender on the basis of the nationality of the person concerned. In non-EAW cases the following EU Member States retain an absolute bar on extraditing their own nationals: Austria, Belgium, Denmark, the Czech Republic, France, Germany, Greece, Latvia, Luxembourg, Slovakia, Slovenia and Spain. Furthermore, outside of the EAW Finland and Sweden have an absolute bar to extraditing their own nationals to countries other than Norway and Iceland, including other signatories to the ECE.

It is because of this nationality bar that ,without the EAW, it is highly unlikely that David Heiss would have been returned to the UK to face justice. In 2008 Mr Heiss stabbed Matthew Pyke 86 times at his flat in Nottingham. He had become infatuated with Mr Pyke’s girlfriend, Joanna Witton, whom he met through a gaming website. Mr Heiss, a German national, was arrested by German authorities in September 2008 under an EAW and was subsequently surrendered to the UK. He was found guilty in 2009 and sentenced to life imprisonment, with a requirement to serve a minimum of 18 years.

A further advantage of the EAW is that under the ECE, if there is a long delay between the offence occurring and the extradition request being made, extradition can be refused due to the length of time that has passed as a result of any State’s statute of limitations legislation. However, under the EAW it is only possible for a territory to refuse surrender for this reason if the acts fall within its jurisdiction under its criminal law. For example, the surrender earlier this year of Francis Paul Cullen to the UK for sexual offences against children, after hiding in Spain for 22 years, would not have happened without the UK operating the EAW. 

The view of the Government has been shared by those who have reviewed extradition arrangements between EU Member States. For example, Sir Scott Baker, in his 2011 Review of the UK’s extradition arrangements concluded that “the European Arrest Warrant has improved the scheme of surrender between Member States of the European Union and that broadly speaking it operates satisfactorily”.

The House of Lords has recently considered this question during its July 2014 opt in-debate where it was acknowledged by Viscount Bridgeman that “It is the view of Sub-Committee F [Home affairs health and education sub-committee of the EU Select Committee] that both these measures (Europol and The EAW) are in the national interest and are vital to our national security. We also argue that the measures would provide the benefits of legal clarity, making a stronger and more consistent application of measures throughout the EU”.

The view is further supported by law enforcement agencies in the UK. The Association of Chief Police Officers, in their evidence to the House of Lords European Union Committee in January 2013[5], called the EAW “vital” and said that “relying on less effective extradition arrangements could have the effect of turning the UK into a ‘safe haven’ for Europe’s criminals”.

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

Following the changes introduced to the operation of the EAW, through the ASBCP 2014 Act, the Government is satisfied that the UK’s implementation of the EAW now operates effectively.

Baroness Ludford’s January 2014 report to the European Parliament[6] concluded that the EAW was “in need of reform to ensure that individual rights are not overridden…. [and]….. needed to be used not only effectively but also proportionately and with guarantees that safeguards are respected and human rights are not abused in the process.” The Report proposed proportionality considerations in the executing and issuing State as a key recommendation for reform of the EAW. The Government supported this recommendation in the report. The Government understands that members of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) are likely to have regard to the recommendations that were presented in the recent report of Baroness Ludford (a former MEP), including in relation to proportionality.

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

There are a number of measures which the Government intends to seek to rejoin as part of the 2014 opt-out that will have an impact on the operation of the EAW.

Measures such as the European Supervision Order (ESO - Council Framework Decision 2009/829/JHA) could be used to allow those who have been accused of crimes abroad to be bailed back to the UK whilst they await trial, rather than spend long periods of time in detention abroad. For example, this may have allowed Andrew Symeou to be returned to the UK whilst he awaited trial in Greece.

The Government wants the Prisoner Transfer Framework Decision (PTFD - Council Framework Decision 2008/909/JHA) to be used to it fullest extent so that British citizens extradited and convicted can be returned to serve their sentence here. The PTFD allows EU Member States to transfer prisoners, in some circumstances, without the consent of the prisoner, and restricts the grounds on which receiving Member States may refuse to accept transfers. Where the extradition of UK citizens is ought in conviction cases it is possible for the EAW to be withdrawn and for a request to be issued, under the PTFD, for the UK to take on the sentence.  Currently, only 18 Member States have implemented the PTFD. However, given the onset of Commission enforcement powers on 1 December we expect all other Member States (Poland excepted) to have implemented the PTFD and that this should allow it to be used more frequently as an alternative to an EAW.

The Second Generation Schengen Information System (SISII - Council Decision 2007/533/JHA) is the EU database for exchanging alerts between Member States in relation to people and objects for law enforcement purposes. It has become the primary mechanism for transmitting data about people wanted on EAWs in most EU Member States. SIS II will become the principal way in which the UK transmits and receives EAWs and will give the UK the advantage of receiving EAW alerts in real time. An assessment of the costs and benefits of the UK’s implementation of SIS II was made by the Government in 2014 and published in a Command Paper 8897 (question 4 of this written response refers). The Impact Assessment showed that:

•   access to SISII data would likely lead to an increase in successful extraditions and potentially significant crime prevention benefits;

•   advanced passenger information checks carried out by Border Force would provide police forces with an opportunity to intercept individuals before they attempt to cross the UK border;

•   SISII could also provide long term efficiency savings to the police and the National Crime Agency as information would be more readily available than under the current arrangements reducing the likely time it takes to locate criminals who have absconded from the UK, especially if their precise location is unknown.

Prima Facie Evidence

5. 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?

We believe the full range of statutory bars that are in place, including the new bars to extradition introduced by the Crime and Courts Act 2013 and the ASBCP Act 2014, provide adequate protections for those subject to extradition proceedings.

1. 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?

Currently, under the 2003 Act, prima facie evidence is not required from EU Member States (and Gibraltar, who operate the EAW and fall under Part 1of the Act) and other countries who have ratified the ECE (who fall under Part 2).  In addition, Australia, Canada, New Zealand and the USA (which are also dealt with under Part 2) do not need to provide prima facie evidence. 

The Baker Review made clear that the UK could not require EU Member States to provide prima facie evidence without first withdrawing from the EAW scheme.  The Review concluded, that “the prima facie case requirement should not be re-introduced in relation to category 1 territories.… No evidence was presented to us to suggest that EAWs are being issued in cases where there is insufficient evidence”. The Review also concluded that in both Part 1 and Part 2 cases judges are able to subject cases to sufficient scrutiny to ensure that any abusive request is identified and dealt with appropriately. 

The Baker Review did, however, recommend that the Government periodically review Part 2 designations; a recommendation the Government has accepted[7].

In terms of Parliamentary oversight of any new designation that a territory not be required to provide prima facie evidence , no new designation may be made unless a draft of the relevant order has been laid before Parliament and approved by a resolution of each House. In the Government’s opinion, the affirmative resolution procedure in Parliament the correct method of Parliamentary oversight as it allows for active scrutiny and requires a positive vote on the proposed legislation.

Currently, the Home Office is in the process of preparing legislation for the designation of San Marino and Monaco as territories that would not be required to give prima facie evidence given that they ratified the ECE in 2009.

UK/US Extradition

6. Sir Scott Baker’s 2011 ‘Review of the United Kingdom’s Extradition Arrangements’, among other reviews, concluded that the evidentiary requirements in the UK-US Treaty were broadly the same. However, are there other factors which support the argument that the UK’s extradition arrangements with the US are unbalanced?

The Government has no reason to believe the treaty is unbalanced. Indeed, we believe that it operates fairly.

The argument about whether or not the US/UK treaty is unbalanced has tended to focus on the greater numbers of people requested by the US compared to that requested by the UK.  However, we do not consider that relying purely on the number of requests made by either party to a bilateral treaty is an adequate way of considering whether or not a treaty is balanced or fair. Indeed, it is not unusual for the number of incoming and outgoing requests made under a bilateral treaty to be very different. For example, the UK has bilateral treaties with Brazil and Thailand. 

Between 2007 and July 31 2014 the incoming and outgoing request figures for these territories are as follows:

Consequently, the Government does not consider that simply reviewing the number of incoming and outgoing requests as concerns the US/UK treaty is the correct methodology for determining whether or not it is balanced.

It is also worth noting that 14 requests from the US have been refused by the UK between 1 January 2004 and 31 July 2014. During that same time period, the US did not refuse a single UK extradition request. Each extradition request, in both territories, is considered on its own merits.

Given the figures, set out above, the Government considers that comparing numbers of requests is not a valid way to assess whether the provisions of the treaty are balanced.

The Baker Review considered fully the UK-US extradition treaty and reached the conclusion that it does not operate in an unbalanced manner.  The Review concluded:  “Nor is there any basis to conclude that extradition from the United Kingdom to the US operates unfairly or oppressively.  For these reasons we have concluded that there is no basis for seeking to renegotiate the 2003 Treaty”. 

Political and Policy Implications of Extradition

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

The role of the Secretary of State in extradition cases has changed significantly in recent years. Under the Extradition Act 1989, the Secretary of State played a major part at both the beginning and end of the extradition process. At the beginning of the process, the Secretary of State made the decision to submit the extradition request to the magistrate by issuing an authority to proceed, or an order to proceed. At the end of the process the Secretary of State made the decision whether to order surrender. The Secretary of State had a wide general discretion to consider whether or not to order extradition at the end of the process.

The involvement of the Secretary of State meant that there was a large measure of duplication in the decision-making process and an opportunity for challenges to the Secretary of State’s decision by way of applications for judicial review.

The 2003 Act reduced the Secretary of State’s involvement to consideration of a narrow range of issues, including whether to certify the request as properly made, and consideration of the death penalty, specialty, earlier extradition from another territory, and earlier transfer from the International Criminal Court. Under the 2003 Act human rights matters are considered by the courts. The Secretary of State has no involvement in the EAW process.

However, under the Human Rights Act 1998 and the 2003 Act, the Secretary of State still had to consider human rights issues that arose after the extradition procedures had been completed. This led to Part 2 cases being drawn out while people made repeated applications for the case to be reconsidered by the Secretary of State.

The Baker Review recommended that the Secretary of State’s involvement should be limited further by removing human rights matters from his or her consideration, as these were thought to be more appropriately the concern of the judiciary. The Review pointed out that allowing people to raise late human rights representations with the Secretary of State was a source of delay, sometimes for months and even years.  The Review described the situation as unacceptable, recommending that the courts should decide all human rights issues in order to speed up the process and ensure the process remains transparent.  It also concluded that “the Secretary of State’s involvement as regards the death penalty, specialty and the other grounds in section 93 which do not involve the exercise of discretion, are matters with which she is best able to deal.” The Government accepted this recommendation.

The removal of consideration of human rights matters by the Secretary of State was brought about by the Crime and Courts Act 2013.  Those subject to extradition under Part 2 of the 2003 Act must now raise any late human rights representations with the courts.

There are a number of advantages in ensuring that human rights issues arising at the end of the extradition process are decided by the courts rather than the Secretary of State. Firstly, the courts are able to facilitate management of the case without undue delay. The courts have emphasised the importance of finality in litigation and the particular importance of that principle in extradition cases. Second, the process is a transparently non-political one. This is important for the person whose extradition is sought and will remove any perception that a decision may have been influenced by political considerations. The courts are also better placed to take into account any relevant case law.

1. 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?

The 2003 Act was intended to limit the executive’s role in extradition to the greatest possible extent and thus remove any perception that decisions are taken for political reasons or influenced by political considerations. The EAW scheme in particular is a form of judicial surrender and requires judicial authorities in EU Member States to mutually recognise each other’s decisions.

However, the Government considers that is also legitimate for the Secretary of State to play some role in the extradition process, and this remains the case in Part 2 cases (even after the change made by the Crime and Courts Act 2013, set out above).  In Part 2 cases, the Secretary of State receives the extradition request, decides whether to issue a certificate in respect of the request and, after the extradition hearing, decides whether to make an extradition order.  When deciding whether to make an extradition order the Secretary of State must consider the death penalty, speciality protection and earlier extradition from a third country or transfer to the UK from the International Criminal Court. The Baker Review concluded that such matters “are matters with which she is best able to deal.”

The Government acknowledges that judicial decisions can have diplomatic consequences in extradition cases, but that this can also be said for judicial decisions in domestic criminal and civil cases. At this stage, the Government sees no need to increase or alter the Secretary of State’s role.

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

Decisions on whether or not to prosecute individuals in the UK are purely a matter for the prosecuting authorities. There is no political or diplomatic involvement in this decision-making process.

In Part 1 cases, decisions whether or not to extradite a person are for the courts and there is no Ministerial involvement in the case. 

In Part 2 cases, the Secretary of State (or Scottish Ministers in requests to Scotland) has only a limited role to play in the process. When deciding whether to order extradition, the Secretary of State must consider the death penalty, speciality protection and earlier extradition from a third country or transfer to the UK from the International Criminal Court.

Section 208 of the 2003 Act enables the Secretary of State to prevent a person's extradition where it would be against the interests of national security. It applies where the Secretary of State believes that the person was acting for the purpose of assisting in the exercise of a statutory power when carrying out the alleged conduct. It also allows that the person is not liable under the criminal law for the alleged conduct as a result of an authorisation given by the Secretary of State. Subsection 4 provides a further condition that must be met if a person's extradition for an offence would be against the interests of national security.

If these factors apply, the Secretary of State can issue a certificate to this effect. Having issued such a certificate, they can direct that the relevant Part 1 warrant or extradition request (Part 2) not to proceed. The Secretary of State may also order the person's discharge.

Human Rights bars and Assurances

9. 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?

The Government believes the bars in sections 21 (in Part 1 of the 2003 Act) and 87 (in Part 2 of the 2003 Act) provide robust and effective protections for the human rights of those whose extradition is requested. These sections set out that if the judge decides extradition would not be compatible with an individual’s human rights, the judge must discharge extradition. 

The Baker Review also concluded that the human rights bar provides appropriate protection against prospective human rights violations in the requesting territory. The Review was satisfied that these sections, alongside the other safeguards contained in the 2003 Act, provided a fair and transparent mechanism for contesting requests. Furthermore, Baker did not consider that the safeguards “operated so as to cause or permit manifest injustice or oppression”. The human rights bar has operated no differently under the 2003 Act as it does under the Extradition Act 1989. Although the Government has removed the ability of the Secretary of State to look at late human rights representations, the Government has amended the legislation to provide those subject to extradition proceedings with the ability to raise late human rights matters with the courts.

10. 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?

As set out above, the courts have the final say on human rights and must bar extradition if they are of the view that it would be incompatible with human rights.  It is the role of prosecuting authorities, the Secretary of State and Scottish Ministers, as appropriate, to seek assurances where they see fit; but, ultimately, it is a matter for the judge to consider whether the assurances which have been provided are sufficiently robust.

In order to help the judge reach their decision, the Government and Crown Prosecution Service (CPS) have, in the past, obtained assurances from requesting States on a number of issues including use of the death penalty, prison conditions, and non-refoulement (sending a refugee from a territory back to the place where he/she had been persecuted). For example, assurances obtained from the US on the use of the death penalty have been accepted by the courts in a number of cases, with extradition going ahead. However, assurances are not always found to be sufficient- a recent request from Ghana was refused following death penalty assurances (decision is currently subject to appeal).  Assurances have also been obtained from requesting territories on prison conditions. These are generally accepted by the courts.

It is in the interests of the requesting territory to abide by any assurances given as any failure to do so would impact adversely on subsequent requests.

1. 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?

The factors to be taken into account when considering assurances is a matter for the courts.

The Government believes it is important that it is important that assurances given are respected, and does its best to monitor compliance. Proposals are currently being developed to improve the monitoring of assurances.

Other Bars to Extradition

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

The Government believes the forum bar is having a positive impact. It has improved the overall transparency of the UK’s extradition arrangements and ensures that the possibility of a prosecution in the UK is always properly considered before a decision to extradite is taken.

12. 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?

The introduction of the proportionality bar is already having a positive impact.

The legislative changes are designed to ensure that the most obviously disproportionate cases are filtered out at the very beginning of the process, by the NCA, before the person is arrested and court proceedings commence.  

For cases which reach court, the judge must order the person’s discharge where the judge decides that extradition would be disproportionate, bearing in mind ,so far as the judge thinks is appropriate:

• the seriousness of the conduct;
• the likely penalty; and
• the possibility of the relevant foreign authorities taking less coercive measures than extradition.

This will ensure that British citizens will not be surrendered for trivial offences. This change is designed to ensure that British citizens benefit from the protections they can reasonably expect whilst allowing our police and prosecutors to benefit from the EAW to the maximum extent possible.

The changes introduced by the ASBCP Act 2014 in relation to proportionality have already ensured that people who are wanted for minor offences have not been pursued. Since these changes came into force on 21 July 2014, and up until 5 September 2014, the NCA has found 14 cases to be disproportionate, refusing to certify these. Given the estimated cost set out in Command Paper 8897 (see question 4) of £13,000 for processing an EAW, this indicates that savings in excess of £180,000 are likely to have been made to the public purse.

Right to Appeal and Legal Aid

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

With the exception of the introduction of an upper income financial eligibility threshold for defendants appearing before the Crown Court[8] and the changes to criminal legal aid for prison law[9], the Government’s legal aid reform programme has had no impact on the scope and eligibility criteria governing access to criminal legal aid representation. Therefore, access to legal aid by a requested person facing extradition proceedings at the magistrates’ court, as well as potentially the High Court, remains unchanged.

The last substantive change to the eligibility criteria for criminal legal aid at the magistrates’ court dates back to October 2006 with the introduction of the current means testing regime. Means testing was subsequently extended to the Crown Court between January and June 2010. All criminal proceedings before the High Court, Court of Appeal and the Supreme Court remain non means tested. During the period covering the start of August 2012[10] and the end of July 2014 nearly 2,000 requested persons applied for criminal legal aid for representation at Westminster Magistrates Court. In approximately 95% of these cases, the requested person qualified on means and was granted publicly funded representation.

During the same period, in 98.7% of all cases, a completed criminal legal aid application form for extradition proceedings at the magistrates’ court was processed within the target time of two working days. It is noted that in some cases, delays can arise if the application submitted by the solicitor on behalf of their client is not complete. When this happens the application is returned to the solicitor so that missing information and evidence can be provided. In some cases, it may take several weeks for the solicitor to comply with such a request. Therefore, this can impact on the timely progression of an extradition hearing.

It is recognised that where a defendant has been remanded into custody by the court, this may present practical difficulties in allowing the defendant to secure supporting evidence from their home address. It might be anticipated that this would be a particular challenge in extradition cases given the proportion of requested persons who will have been remanded into custody by the court. However, it is noted that in all court remanded cases (though not police custody cases), the Legal Aid Agency (LAA) does not require the defendant to provide evidence of their financial means.

The LAA has worked closely with solicitors representing clients at extradition proceedings to improve both awareness of, and compliance with, the requirements of the criminal legal aid application process. The planned introduction of e-form applications in November 2014 is expected to reduce the number of applications that may be rejected as incomplete by prompting the solicitor for missing information and evidence. This will mean that the application cannot be submitted until all the relevant fields have been completed and a mandate is signed.

An electronic date stamp can be obtained with minimal information to ensure that where eligible, legal aid is backdated appropriately. This is anticipated to reduce the risk of any potential delays to the court. Whilst it is not expected that the use of e-forms will become mandatory until summer 2015, in those areas where the e-form has already been piloted on a voluntary basis, uptake by solicitors has ranged from 30% to 70%.

In some extradition cases, the requested person may rely heavily on services delivered by the court duty solicitor scheme. In order to ensure that the scheme provides sufficient capacity, in July 2013 the LAA doubled the number of duty solicitors allocated to extradition proceedings at City of Westminster Magistrates’ Court.

Currently, solicitors, barristers and Fellows of the Chartered Institute of Legal Executives wishing to undertake duty solicitor work, including at the City of Westminster Magistrates’ Court, are required to have successfully completed the relevant training module set by The Law Society – ‘The Criminal Litigation Accreditation Scheme’ (CLAS). It is appropriate that any wider concerns about the quality of services provided by solicitors be addressed to the relevant regulatory body. The Law Society is the approved regulator for solicitors and has oversight of the CLAS, and the Solicitors’ Regulation Authority is its independent regulatory arm.

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

Section 160 of the ASBCP Act 2014, which provides a right of appeal for both the requesting territory and requested person, subject to leave of the High Court, will be commenced shortly.  It is expected to make a positive difference for those with meritorious appeals against extradition decisions. As the Baker Review found, the court system is currently burdened with unmeritorious appeals. This has resulted in many genuine appeals being delayed and statutory time limits extended.  The change in the ASBCP Act 2014 will ensure that the appeal process is not used simply as a means of delaying the extradition process and that unmeritorious appeals are filtered out of the system, allowing challenges with merit to be heard and resolved quickly.  

Section 160 also sets out that the High Court is not to refuse to entertain a late application for leave to appeal simply because it is given late if the person did everything reasonably possible to ensure notice was given as soon as possible.

From a legal aid perspective, the Government does not believe that the removal of the automatic right to appeal an extradition decision will have any negative effect on the availability of services to the requested person.

Devolution

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

The Government believes that the law operates effectively in every jurisdiction in the UK.

1. How might further devolution or Scottish independence affect extradition law and practice?

Both the Government and Scottish Government have said that there can be no ‘pre-negotiations’ on independence in advance of the referendum. Given this, the question of how potential future extradition issues for Scotland would be affected by further devolution or Scottish independence cannot be addressed at this time.

15 September 2014

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