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CRIME: An Introduction

Extradition Overview 

Contributed by Michael Drury, Kate Chanter and Andrew Watson of BCL Solicitors LLP

It has been a headline-grabbing year in extradition, with a number of significant cases attracting attention, and substantial commentary on how the future looks for UK extradition in light of Brexit.

Extradition has not escaped the reach of the COVID-19 pandemic, with emergency legislation impacting on how hearings are conducted. S.54 and Sch. 24, Part 2 of the Coronavirus Act 2020, in force from 25 March 2020, amend s.206A Extradition Act 2003 (EA) enabling all extradition hearings (Part 1 and Part 2) to be conducted via a live link, subject to an interests of justice test. Previously only remand hearings were covered by s.206A.

One of the effects of the number of high-profile extradition cases this year (Julian Assange, Anne Sacoolas, Vijay Mallya – the latter failing in his Divisional Court appeal despite errors from the Chief Magistrate) has been a healthy increase in public discourse on the subject. At the time of writing, Mr Assange’s journey through the courts continues with his substantive hearing continuing in September 2020. The repercussions will be profound given that, at its heart, the case provides a seminal test of the extradition relationship between the United States and the United Kingdom. The refusal of the US to contemplate the extradition of Anne Sacoolas can only add to the drama. Nonetheless it seems unthinkable for reasons of both law and politics that, as has been touted by some, any extradition decision in the Assange matter will be used as a lever to secure the return to the UK of Ms Sacoolas.

The case of Naqvi, who is wanted by the US on charges of fraud, has seen interesting developments in arguments advanced under Article 3 ECHR. The US Department of Justice has provided undertakings regarding bail and pre-trial detention, effectively accepting the risk of Article 3 breaches in respect of two remand facilities. Chief Magistrate Arbuthnot has granted the US time to deliver yet further assurances strengthening those provided in light of clear issues as to enforceability. It remains to be seen whether and how this may impact Article 3 arguments involving the US more generally: the Divisional Court in Hafeez v USA finding in January 2020 that conditions in New York’s MCC – 23 hours per day solitary confinement in a windowless cell and the life imprisonment that may be imposed – did not fall foul of Article 3 (although a Rule 39 indication from the Strasbourg Court in April 2020 effectively stayed extradition, the Court having been asked whether, with particular regard to the COVID-19 pandemic and Mr Hafeez’s health conditions, conditions were inhumane).

Article 3 arguments involving EU Member States have largely been brought to a halt in 2020. In Bartulis, the High Court acknowledged serious deficiencies within Lithuania’s prison estate but accepted general assurances, whilst Westminster Magistrates’ Court rejected an Article 3 argument involving a Latvian prison in Jasvins. Nonetheless arguments about the effectiveness of assurances concerning Hungarian prisons continue, with a number of conflicting cases before the High Court –Aprasi, Fuzesi and Zabolotnyi, the latter being granted permission to appeal by the Supreme Court.

Within the EU, concerns over the independence of the Polish Judiciary continue. A fourth set (in as many years) of infringement proceedings from the European Commission followed the February 2020 'Muzzle Law,' on the basis that the new judicial disciplinary regime fundamentally undermines the independence of judges and their ability to apply EU law. In a landmark decision, the Higher Regional Court in Karlsruhe, Germany, has refused extradition to Poland on the basis that a fair trial is not guaranteed given the recent judicial reforms, referring to the 2018 CJEU judgment in Celmer (LM). Whilst the German Court has made clear that a final decision rests upon a response from the Polish authorities, this marks the first time that an EU Member State has denied extradition to another EU member on fair trial grounds. It seems only a matter of time before a similar erosion of the principle of mutual trust and recognition spreads to the English Courts, particularly post-Brexit.

Domestically, the overall picture is of the UK trying to find its new place in the extradition world as it detaches itself from the EU. What follows are some examples that we anticipate will have an impact (direct or indirect) on UK extradition law.

Extradition (Provisional) Arrest Bill 

Currently approaching the committee stage of the House of Commons, the Bill will, if enacted, amend Part 2 EA to create a new power of arrest, without a domestic warrant, for extradition requests from one of six 'trusted' countries (Australia, Canada, Liechtenstein, New Zealand, Switzerland and the US) for offences involving a custodial period of three years or more. The purpose of the Bill (amongst others) is to remove the need to apply to a court for an arrest warrant. Following arrest, the person must be brought before a judge within 24 hours; failure to do so will result in discharge. The judge will then determine whether an arrest warrant would have been ordered had it been applied for in the usual way and, if so, the extradition process continues as normal. Concerns of future additions to the list of 'trusted' countries have been assuaged, at least in the short term, by an assurance that additions would have to be approved by both Houses of Parliament, although it is anticipated that many EU members will be added to the list going forward. But the Bill represents the removal of yet more procedural protections for the requested person and would mean, for example, that an arrest could be made on the basis of a Red Notice (hitherto not possible in the UK). In any event, it remains unclear as to why such a power is needed at all given the existing provisional arrest warrant powers.

Anticipating extradition at the end of the Brexit transitional period (31 December 2020)

The burning question is: 'what comes next for extradition requests between the UK and EU member states?' As of 31 December 2020, the transitional period, which allows the temporary continuance of the current European Arrest Warrant (EAW) under Part 1 EA, comes to an end.

In absence of any substantive alternative arrangement, the prospect of which has all but disappeared, the most obvious conclusion is that the UK will revert to the provisions of the European Convention on Extradition 1957 as of January 2021, which will then form the basis of extradition relations with existing EU Member States.

The effect will be all EU Member States currently designated as 'Category 1' territories under EA will be reclassified as 'Category 2'. This will bring them within the remit of Part 2, which contains the provisions for the UK’s extradition arrangements with countries with which it has a bilateral treaty or multilateral treaty obligation.

There are undoubtedly uncertain times ahead as to how post-December 2020 extradition requests will fare under Part 2. Aside from the more streamlined and transparent EAW process ceasing to apply (although the counter-argument is that the EAW itself had the effect of removing substantive and procedural rights, so this is not a simple equation), the UK’s law enforcement agencies seem likely to be hindered by an inability to access information via the Schengen Information System.

The casualties of the demise of Part 1 EAW cases also include several legislative bars to extradition commonly relied on by the requested person. Both practitioners in the field, and the Courts, will be required to adapt and an abundance of case law precedents can only be expected. The proportionality bar under s.21A EA is arguably one of the most significant losses. Whilst the requested person's rights under ECHR will apply in any extradition case (Part 2 EA stipulates that the requested person must be discharged if extradition is incompatible with their human rights (s.87)), this is arguably not a substitute for the specific considerations as to whether a person's extradition is proportionate in accusation cases, as under s.21A EA. The most commonly argued convention right in respect of proportionality is Article 8 ECHR (right to private and family life). Whilst inevitably a high hurdle to show that extradition would be disproportionate, s.21A enabled this argument to be advanced as a standalone point – forcing the Court to consider the impact of extradition itself on an individual and their (family) circumstances.

The likely remedy to this lacuna in Part 2 cases will be the reinterpretation by the Courts of the proportionality bar through precedent, and practitioners can expect significant development in this area in the aftermath of the transitional period, when the facts of a particular case permit such an approach.

UK–Hong Kong relations 

In July, the UK formally suspended the UK–Hong Kong extradition treaty in response to the imposition in the former British colony of a 'national security law' widely held to be an extension of creeping interference by Beijing, the fear being that individuals extradited to Hong Kong could then in turn be extradited to China. Marking only a part of declining Sino-British relations, the UK's response fits with its growing confidence, particularly considering the fallout from the Huawei saga, that it will seek to assert itself as a country that recognises and espouses the importance of human rights and security.

Russian extradition requests 

As discussed in our report last year, Russian extradition requests continue to pose interesting questions especially in the wake of the 2018 decision in Shmatko. Indeed, in December 2019, the Chief Magistrate gave her judgment in the cases of Tsurcan et al where the Russian Federation issued four separate requests for the extradition of those involved. In what undoubtedly marks a significant blow to Russia, the Chief Magistrate effectively signalled the end of Russian extradition requests on the basis that Russian assurances in relation to prison conditions including so-called 'torture zones' were meaningless as they could not be monitored effectively. The effect of this decision is that Russian requests will not be entertained by the courts when the result (that the assurances will be insufficient) is inevitable. For practitioners, this judgment represents a powerful weapon to deploy should an arrest be made and the question of bail arise, the point being that the requested person should be seeking unconditional bail on the basis that there is no prospect of the extradition case proceeding.

Further damage to Russian requests may have been done by the July implementation of the UK’s own 'Magnitsky Sanctions' regime, in which sanctions were imposed against those who have been responsible for the investigation and mistreatment of Mr Magnitsky (and others). Significantly, this included members of the Russian judiciary who it is said allowed his continued detention and did not intervene. Whilst this is plainly an assessment of historical wrongdoing, it can be said to reflect a critical assessment by the UK Government of the Russian justice system. It provides a useful argument for those who would suggest, in contesting Russian extradition requests, that Russian justice provides scant protection for the individual, does not comply with ECHR norms and is apt to lead to politically motivated outcomes.