EXTRADITION: An Introduction
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Extradition involves the forceable transfer of accused or convicted persons from one jurisdiction to another in order to face trial or serve a sentence for a criminal offence. To a certain extent, 2020 has been perhaps an even more unusual year for extradition law than many other practice areas. The curtailment of free movement for all of us has had a profound effect upon the extradition courts’ everyday practices as well as upon the arguments raised by practitioners and the ongoing impact remains uncertain.
Extradition and the Pandemic
The crisis brought about by the coronavirus has meant that we have all had to adapt our normal working practices. The legislators have been forced to enable more hearings to be conducted remotely, prompting the introduction of Schedule 24, Part 2 of the Coronavirus Act 2020, which came into force on 25th March 2020. That particular section applies to the Extradition Act 2003 and serves to expand the courts’ powers, enabling live links to be used. Of particular significance is that extradition hearings are no longer precluded from using live links, if the appropriate judge is satisfied that it is in the interests of justice to do so.
Whilst that prompt amendment signified a means of avoiding a huge backlog of cases, the technology and practical methods to accommodate the changes lagged behind. Difficulties arose when defence advocates used the ‘Cloud Video Platform’ (or ‘CVP’) as there was initially no way by which they could have a video-conference with their client. This was particularly challenging where, for example, documentation was provided prior to a hearing. The other downsides of being able to present the best evidence over a screen are all too obvious. However, there has since been a national relaxation on restrictions, which has enabled many more hearings in-person.
One of the more obvious effects of the pandemic has been the travel restrictions which have limited the number of international flights, causing a reduction in the number of removals of individuals whose extradition has been ordered. The Divisional Court considered the legality of repeated short-term extensions to the ten-day period in which extradition on an EAW must take place in Cosar v Governor of HMP Wandsworth,  EWHC 1142 (Admin). The Court found that the coronavirus pandemic satisfies both criteria under Article 23 of the Framework Decision, which permits a postponement to extradition where removal is prevented by circumstances beyond the control of any Member State or, exceptionally, on the basis of serious humanitarian reasons. The Court held there was no requirement that a requested person be notified of any application to extend the time for removal or to be able to make representations at a hearing. Irwin LJ did state, however, that it would be ‘good practice’ to provide such notification and that requested persons should have continued access to legal representation. The coronavirus travel restrictions are capable of resulting in considerable delay and requested persons may need advice on whether remedies such as judicial review of the extension decision, an application for bail, or an application to reopen a permission decision are applicable.
The Impact of Politics
Extradition is a fast-moving area of practice in which the arguments raised evolve to reflect the prevailing political conditions both between the United Kingdom and Requesting States and also within those States. Accordingly, case-law is constantly challenged and re-visited in response to current events. Whilst ‘mutual trust and confidence’ in our extradition partners has always been the courts’ default position, since 2003, with the introduction of the Extradition Act 2003 and the European Arrest Warrant scheme this position has been fortified, rendering it extremely difficult to resist extradition to fellow Council of Europe States. Notwithstanding this difficulty, both technical and human rights arguments are regularly advanced to oppose extradition.
The primary area of human rights litigation within extradition cases relates to the prison conditions in which requested persons may be held. Within Europe, challenges have been brought in respect of a number of countries where prison overcrowding and/or material conditions are capable of giving rise to a real risk of the requested person suffering inhuman or degrading treatment. Recent litigation has involved Lithuania, Hungary, Romania, Bulgaria, Greece and France. Where the Article 3 threshold has been reached, requests are made under the ‘Aranyosi procedure’ (see the CJEU decisions of Aranyosi and Căldăraru C-404/15 and C-659/15) for government assurances regarding the conditions in which extraditees from the UK will be held. Consequently, legal challenges have also been brought to scrutinise the application and enforcement of these assurances. Assurances highlight the very political nature of this area of law. A court will be slow to ignore the promises of a state and therefore clear evidence of a flaw/inconsistency is often required to undermine an assurance.
Technical arguments against extradition tend to fall into two categories;
1. Challenges to the adequacy and content of the individual requests and
2. Broader challenges concerning the procedures in the requesting states.
These arguments are designed to ensure that it is possible to properly determine from the request or EAW what a person is accused of and whether there is a criminal offence disclosed on the papers (sections 2 and 10 for Part 1 cases and s78 and s138 for Part 2). It is also necessary for the proceedings to have progressed sufficiently in the requesting state to avoid an accused person being extradited before there is an intention to charge/try them (section 12A for Part 1 cases only). The 2003 Act also imposes requirements that the requesting state can guarantee a retrial where a conviction has been imposed in the absence of the requested person, provided this was not deliberate absence (sections 20 and 85).
Mutual Legal Assistance
Over the past almost two-decades since the 2003 Act was introduced the Court has found itself dealing with large volumes of extradition requests from European jurisdictions with comparatively few from the rest of the world. This is a reflection of the much more complex process involved in making requests for those who are not signatories to the European Framework Decision on Extradition and Mutual Legal Assistance 2002. This balance of work has materially impacted the evolution of case-law and practice, both of which have changed immeasurably. Now however, extradition law faces its next great change; Brexit with all the unknown consequences that may bring.
The Impact of Brexit and ‘No Deal’ on UK Extradition Proceedings
Amidst all of the general Brexit uncertainty, one thing is for sure - if the UK leaves the EU without a deal on 31st December 2020, the EAW regime will cease to exist. Since 2004 the EAW has been a highly effective tool for UK and EU law enforcement but the Government’s plans for a replacement are unclear and a ‘cliff edge’ in our extradition arrangements is looking increasingly likely. Following a no deal Brexit EU member states will be re-designated as Part 2 countries and will rely on the framework of the European Convention on Extradition 1957 (the “ECE”), which has been ratified by all EU Member States.
An assessment by the May government found that relying on the 1957 Convention will mean that extraditions will be very difficult, and requests will be subject to a complex and lengthy process. Prior to the EAW the UK extradited fewer than 60 people a year and there is the notable example of Rachid Ramda whose extradition to France in 2005 on terrorism charges took 10 years from the date of the original request.
The UK will lose access to the second-generation Schengen Information System (’SISII’) which will have a devastating impact on the ability to receive timely alerts regarding wanted persons. The UK is currently one of the most frequent users of the SISII database, accessing it 603m times last year. Another mechanism for arrest in the UK is the INTERPOL red notice and diffusion system. Red notices are not issued by the EU27, but they may be required to send data via INTERPOL channels if the UK loses access to SISII. It is no exaggeration that this could lead to the UK becoming a ‘safe haven’ for criminals as wanted persons hide in the UK to avoid crossing borders and exposing themselves to an INTERPOL alert.
A favourable result would be for the UK to reach an agreement similar to the arrest warrant scheme between the EU, Iceland and Norway. This draws many parallels with the EAW; however it’s going to be very difficult without accepting a role for the European Court of Justice, one of the UK’s red lines.
The uncertainty is already having an impact on high profile cases involving serious crime. Three countries in the EU, including Germany, have already stopped extraditing their nationals to the UK since the withdrawal agreement in January. This means that if the German suspect in the Madeleine McCann case were charged, he would be unlikely to be sent to the UK for trial. It is increasingly clear that the future relationship between Brexit and extradition is being heavily impacted before it is even complete.
10 September 2020
Rebecca Hill. Louisa Collins and Natasha Draycott.