CRIME: An Introduction to London (Firms)

Contributed by Michael Drury, Shaul Brazil, Kate Chanter, BCL Solicitors LLP

Extradition law in England and Wales has continued to evolve in the past year at its usual rapid pace. The following is a brief summary of some of the more interesting developments.

Lauri Love and the forum bar 

February 2018 saw the first successful forum challenge. The forum bar, contained in s83A Extradition Act 2003, was introduced by the then Home Secretary, Theresa May, following her withdrawal of an extradition order against Gary McKinnon in 2012. Mr McKinnon, who suffered from Asperger’s Syndrome, was a British national sought by the United States in relation to hacking of US Government computers. He admitted accessing the computers – claiming that he was looking for proof of UFOs – but challenged extradition on the ground that it would lead to him taking his own life. Following protracted proceedings, his extradition was eventually halted on the ground that it would be incompatible with his human rights.

The introduction of a forum bar gives the court the power to refuse extradition in cases where a substantial measure of the relevant activity was performed in the UK, and the court decides, having regard to specified matters relating to the interests of justice, that extradition should not take place.

Lauri Love is a British National whose case was very similar to Mr McKinnon’s case. He was accused of a series of cyber-attacks on the computer networks of US Government agencies. Like Mr McKinnon, he suffers with Asperger’s Syndrome, as well as depression and severe eczema. Expert evidence was accepted by the Court that he would attempt suicide before extradition to the US. However, at first instance District Judge Tempia rejected the defence arguments and sent the case to the Secretary of State. Mr Love successfully appealed against this order on the grounds of oppression (s91(2) and (3)) and forum (s83A).

The Administrative Court disagreed with two of the district judge’s findings: her analysis as to the prospect that Mr Love would be unfit to plead, and the significance of the absence of a prosecutor’s belief regarding the appropriate jurisdiction. The Court also held that the district judge had significantly underplayed the weight that should be attached to her conclusion that the prosecution could realistically proceed in the UK. However, the case really turned on the Court’s finding as to the nature of Mr Love’s connection to the UK (s83A(3)(g)) based on his medical conditions and the care and treatment they need: his “entire well-being is bound up with the presence of his parents.” A combination of these factors outweighed those preferring extradition and Mr Love’s appeal was allowed.

Permission to appeal to the Supreme Court – “passage of time”

In March 2018, the Supreme Court granted permission to appeal in Konecny v District Court in Brno Venkov, Czech Republic. Mr Konecny had been sentenced to a term of eight years imprisonment in respect of fraud offences dating back to 2004 and 2005. He was tried and sentenced in 2008, in his absence, and it was accepted that he had no knowledge of either events until after his arrest in March 2017. He was entitled to an unequivocal right to a re-trial on his return.

It was submitted on behalf of Mr Konecny that the “passage of time” bar under s14 of the Act was to be calculated with reference to the period from the alleged commission of the first offence, which was 2004. However, the Courts found at first instance and on appeal that this was a conviction case and therefore the passage of time was to be counted from the date that Mr Konecny “became unlawfully at large”. In March 2018, the Supreme Court granted permission to appeal in respect of the following certified question:

“In circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he “accused” pursuant to s.14(a) of the Act, or “unlawfully at large” pursuant to s14(b), for the purposes of considering the “passage of time” bar to surrender.”

Right to a fair trial: Polish EAWs 

Legislation recently came into force in Poland that has given rise to serious concerns regarding the independence of the Polish judiciary and the protection of fundamental rights. The Polish President is now able to determine the constitution of the Supreme Court and 40% of sitting Judges will be dismissed, as the retirement age is lowered from 70 to 65. This issue was considered by the Irish High Court in the case of Artur Celmer, whose extradition was sought by Poland in connection with drug trafficking. The Irish High Court refused to execute the extradition request, citing “interference with the independence of the judiciary, with respect for the rule of law”.

The Irish Court then sought a ruling from the CJEU. In a judgment handed down on 25 July 2018, the CJEU confirmed that Ireland was correct to block the extradition order if it deemed there to be a “real risk that the individual concerned would suffer a breach of his fundamental right to an independent tribunal”. The Court pointed out that maintaining the independence of judicial authorities “is essential in order to ensure the effective protection of individuals, including in the context of the European arrest warrant mechanism”.

The case will now return to the Irish Court to determine the two stage test identified by the CJEU; firstly, whether (based on objective, reliable and up to date material) there is a real risk, connected with a lack of independence of the courts of the issuing Member State, of a breach of the right to a fair trial. If such a risk is present, the Court must then assess whether, in the particular circumstances of the case, there are substantial grounds for believing that following his surrender, the requested person will incur that risk.

Russian cases 

Despite the current strained diplomatic relations between the UK and Russia, increasing evidence of procedural violations in the criminal justice system and continuing non-compliance with Article 3 ECHR in Russian prisons, the UK courts are still willing to extradite to Russia in principle. In the recent case of Russian Federation v Votinov, the court noted that relations between the UK and Russia “have been placed under strain recently” and that “the major concern to this court is whether the [prison] assurances are objectively verifiable”, but nonetheless concluded that the assurances given by Russia were ‘Othman compliant’ and therefore acceptable (Othman v UK).

The UK courts have also continued to dismiss challenges to Russian extradition requests that are arguably based on extraneous factors, often political motivation (s81(a) and (b)). The courts have instead preferred submissions that the person’s Article 6 rights would be breached (Russian Federation v Votinov following the earlier case of Russian Federation v Shuppe).