Written by Ben Keith and Louisa Collins of 5 St Andrew’s Hill
Extradition is where the law and politics collide. Nowhere else is the issue of other countries’ human rights examined more closely. Extradition cases are frequently on the front pages of the newspapers as the cases are often used as political tools and a measure of diplomatic cooperation.
A few decades ago, there were a number of countries where criminals could hide. The Great Train Robber, Ronnie Biggs, escaped to Brazil from prison in the UK in the 1960s. No extradition treaty existed between the countries and it wasn’t until the late 1990s that a formal request was made, which ultimately proved unsuccessful. Spain became known as a sanctuary for British criminals, gaining the name ‘Costa Del Crime’ in the 1970s and 80s, during a period when there was no extradition arrangement between the two countries. This has now changed completely. There are few places where criminals can hide without being extradited.
Extradition law is the transfer of persons accused or convicted of criminal offences between jurisdictions. It is governed by the Extradition Act 2003 and comprises of a number of different types of extradition request. The first is the European system of the European Arrest Warrant (EAW). It is a speedy system built around the concept that those members of the EAW scheme, who are largely members of the European Union, can be trusted to adhere to basic human rights and international law standards of fair trial and proper treatment in custody. The EAW has enabled the extradition of over 12,000 individuals from the UK to the EU in the last nine years.
The non-EU cases are fewer and often more complex. The likes of Russia and the USA make frequent requests to the UK. Some countries must still prove a prima facie case before extradition is allowed, for instance India and the UAE. Finally, there are those countries from which the UK receives ad hoc requests, for instance Rwanda and Kuwait.
As cross-border crime has increased, so too has the cooperation between states to fight it. Countries want to prevent themselves from becoming safe havens for fugitives from justice. This has prompted an increase in extradition treaties as well as other forms of crime-fighting collaboration.
As terrorism, crimes against humanity and trafficking have become more prevalent, there is a greater need for a global legal mechanism to bring perpetrators to justice. However, there is widespread concern that the flipside is that the extradition process is a punishment in and of itself and can be used as a form of oppression by one state against an individual beyond its borders.
It is such a fear of oppression which has prompted the ongoing Hong Kong protests against the proposed extradition bill between mainland China and Hong Kong. The worry is that the bill would render the people of Hong Kong subject to Chinese criminal jurisdiction, undermining the autonomy of their region. In particular, the law could be used as a tool by the authorities to target political enemies and would undermine human rights.
The impending spectre of Brexit looms large in extradition law and will make extradition more difficult and cumbersome for governments. For all its faults, the EAW has made extradition between EU states fast and effective. It has enabled the UK to request the arrest of suspects within hours and for the extradition to take place in a matter of weeks. Through the bastions of mutual cooperation and trust between the member states the EAW has proved to be an effective, if often disproportionate, tool of law enforcement.
Extradition is frequently in the news. In the Julian Assange case, a Swedish extradition request was issued to the UK regarding allegations of sexual assault. A protracted legal battle then ensued, in which Assange sought to resist extradition. One of the arguments was that he would be extradited from Sweden to the US to be tried for putting secret US documents into the public domain. Assange sought asylum in the Ecuadorean embassy in London to avoid extradition to Sweden. His asylum status was withdrawn in April 2019, after he had spent nearly seven years inside the embassy. His extradition is now sought by the US for charges relating to espionage, arising out of documents illegally obtained and made public concerning the Iraq and Afghanistan wars and information on secret intelligence sources. His case is scheduled to be heard in early 2020.
Extradition arrangements work bilaterally. ‘Import’ extradition requests refer to requests from the UK for accused and convicted criminals to be returned to face trial or serve a sentence. The extradition of Jack Shepherd (“the speedboat killer”) from Georgia to the UK earlier in 2019 is a recent example of the extradition process working this way round. Shepherd went on the run before his trial at the Old Bailey where he was found guilty of manslaughter by gross negligence following a speedboat crash on the River Thames which killed Charlotte Brown. Shepherd fled and hid in the Georgian capital, Tbilisi, for months before handing himself into the police. He was then extradited to the UK in April 2019 in order to serve the six-year prison sentence imposed.
Extradition can be misused by governments. The UK’s relations with Russia have soured after the Salisbury attack but extradition arrangements still remain active. Many requests have been found to be made on political grounds or as a result of corporate raiding where businesses have been taken over under threat of force. Ukraine continues to make political requests for opposition politicians on spurious grounds and the UK courts have discharged all of those requests so far.
Two recent cases which highlight the delicate balance of politics and extradition proceedings are Russian Federation v Mr A, a case involving Russian corporate raiding where discharge was secured on the grounds that local politicians had forcibly seized control of the business and made up false allegations against Mr A. In a recent Ukrainian case, a Ukrainian opposition politician alleged that the then President of Ukraine had fabricated the case against him. These are just a few examples of where law and politics collide in extradition cases involving former Soviet countries.
Other recent cases have examined the issue of human rights breaches in Poland when the government has attempted to subvert the rule of law by purging independent judges and replacing them with government appointments. There are real problems with Europe’s prisons and the UK has been at the forefront of examining the state of European prisons that extraditees are sent to, examining prisons in Lithuania, Belgium, Bulgaria, Romania, Hungary, France, Portugal, Italy, Greece and Spain.
Turkey and its politics remain hot topics as the Turkish system creaks under the weight of an oppressive regime. In the leading case of LMN v Turkey the Divisional Court examined the mistreatment of inmates in Turkish prisons and the lack of available psychiatric care, finding Turkey to be in breach of fundamental human rights.
The case of Laurie Love has given the new forum bar some teeth, allowing the courts to discharge requests (so far only USA requests) when the conduct has taken place in the UK. These cases are important in cases where the USA looks to prosecute across borders and may give a useful defence in some cases.
The case of Azerbaijan v Hajiyeva dealt with the linked case of the first Unexplained Wealth Order in the UK. The Azerbaijani government has requested extradition on the basis of a fraud against the Bank of Azerbaijan where much of the proceeds had been spent in Harrods and on luxury property.
Extradition law also deals with the complex issues of Mutual Legal Assistance in criminal cases and the use and abuse of Interpol Red Notices and their removal. It is a fast-moving and fascinating area of law to practise in. It is unpredictable and like no other area of law in that the political landscape of the surrounding countries directly impacts cases and is constantly evolving.
We are not sure how Brexit will permeate in the weeks, months and years to come. No doubt in 12 months' time the legal and political landscape of extradition will have significantly changed, but just how it will do so, no one quite knows.