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CRIME: An Introduction

Crime: Extradition Overview 

Contributed by Michael Drury, Shaul Brazil and Greta Barkle of BCL Solicitors LLP

Extradition law and practice in England and Wales continues to develop at pace. Whilst 2021 commenced with the final act of the UK’s departure from the European Union, and resulting legislative changes to extradition law, there have also been several high-profile cases in the past year, particularly involving the USA, that have dominated the public discourse on extradition matters.

Key cases 

Most notable was the decision of District Judge Baraitser in January 2021 to refuse Julian Assange’s extradition to the USA. The background facts are well known but, in brief, Mr Assange is wanted by the USA on charges related to the publication of classified material by WikiLeaks. Whilst Mr Assange advanced various grounds in defence of the extradition request, including that the proceedings against him are politically motivated and that he would not receive a fair trial, the judge rejected all defence arguments save that the risk of Mr Assange committing suicide in a US jail is such that his extradition would be oppressive. Mr Assange was therefore discharged, but an appeal by the US Government is listed to take place in October 2021.

In a close second place for case of the year, in July 2021 District Judge Snow rejected Michael Lynch’s defence of another US extradition request. Mr Lynch faces prosecution in the USA on charges related to Hewlett-Packard’s 2011 purchase of Autonomy, the company he founded, for USD11 billion. Although the Serious Fraud Office (“SFO”) had investigated the alleged criminal conduct (which took place in the UK by a UK citizen in relation to a UK company) it declined to commence a prosecution and instead ceded jurisdiction to the USA. Meanwhile, Hewlett-Packard brought a civil claim against Mr Lynch and others in the English High Court. Whilst Mr Lynch argued that his extradition was barred by reason of forum, the judge’s decision to reject this argument appears to have been influenced principally by the SFO’s stated belief that the UK is not the most appropriate forum for a prosecution. The decision has raised fresh concerns about the imbalance of the US-UK Extradition Treaty and the (in)effectiveness of the forum bar, so much so that, at the time of writing, the Secretary of State has very unusually announced a seven-day extension to make her decision on Mr Lynch’s extradition. Whatever her decision, an appeal is likely to be heard in 2022.

On the European level, in an “extraordinary” case involving egregious judicial corruption, in April 2021 the High Court held for the first time in Popoviciu v Curtea de Apel Bucuresti (Romania) that extradition to an EU Member State represented a real risk of a “flagrant denial” of a requested person’s Convention rights. The Court found that the appellant, Mr Popovic, had not been tried by an impartial tribunal and that he had “suffered a complete denial” of his fair trial rights. It followed that the serving of a prison sentence based on an improper conviction would be “arbitrary” and that extraditing Mr Popoviciu would represent a “flagrant denial” of his right to liberty.

Somewhat more prosaically, in August 2021 the High Court held in Killoran v Investigative Judge, Antwerp Court of First Instance, Belgium that Parliamentary materials were not admissible in support of the interpretation of the words ‘decision to try’ in the Extradition Act 2003 as meaning ‘trial ready’. The judge at the extradition hearing must simply be satisfied that a decision has been made to charge and try the requested person, although the decision need not be formally made.

Otherwise, in a somewhat contradictory way given the UK’s policies towards Russia, whose citizens and public officials are designated in the UK global human rights and anti-corruption sanctions, the Home Office is still certifying, and the courts are still continuing to hear, extradition requests from Russia. The battle in such cases continues to be fought on political motivation and fair trial grounds.

Legislative changes 

EU-UK Trade and Cooperation Agreement 

2021 began with the implementation of the EU-UK Trade and Cooperation Agreement (“TCA”) following the UK’s withdrawal from the EU and, consequently, the European Arrest Warrant (“EAW”) scheme. With its effects incorporated into the Extradition Act 2003 by the European Union (Future Relationship) Act 2020, the TCA sets out the UK’s new extradition arrangements with EU Member States. The new ‘surrender’ arrangements, which apply to cases where arrest took place prior to 11pm on 31 December 2020, largely replicate the EAW system, and thereby avoid a return to the 1957 European Convention on Extradition.

There are, however, several marked differences between the EAW scheme and the new TCA regime, in particular: the principle of mutual trust and recognition is no longer a feature of the UK’s extradition arrangements with EU Member States; extradition is now subject to the principle of proportionality; the role of the European Court of Justice as the court of last instance in all EAW cases has been removed, to be replaced by the "Specialised Committee on Law Enforcement and Judicial Cooperation"; and the TCA regime allows EU Member States to opt out of extraditing their nationals to the UK (and vice versa).

As of 5 March 2021, ten EU Member States had notified their intention to refuse to extradite their own nationals to the UK (Croatia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia and Sweden), whilst a further two (Austria and the Czech Republic) will only extradite their own nationals to the UK with the requested person’s consent.

Generally, and as predicted, the consequence has been a dramatic fall in the number of cases reaching the courts: this is a function more of the lack of access to EU criminal justice systems, which are no longer available to the UK authorities to make the identification and arrest of persons located in EU Member States.

Extradition (Provisional Arrest) Act 2020 

Alongside the UK’s withdrawal from the EU, January 2021 saw the coming into force of the Extradition (Provisional Arrest) Act 2020, which creates a new power of arrest for the purposes of extradition for serious offences to a select group of “trusted countries”. Whilst the Act was most likely passed with EU Member States in mind, currently the only countries on the list are Australia, Canada, Iceland, Liechtenstein, New Zealand, Norway, Switzerland and the USA. These countries have been chosen because of the UK’s “high level of confidence in them as extradition partners, in their criminal justice systems, and in their use of Interpol alerts”.

A consequence of the new regime is that an INTERPOL Red Notice (or diffusion notice) issued at the instigation of one of the trusted countries may give rise to an arrest in the UK. The Act does, however, provide that provisional arrest without a court-issued warrant can only take place if the decision has been certified by the National Crime Agency. Further, as soon as practicable after the arrest, a judge must assess the supporting evidence or information available and decide whether it would have been enough to justify the issue of an arrest warrant. If it would, then the extradition proceedings will continue as if the arrest had been pursuant to a warrant. If not, then the defendant must be discharged.

It is yet to be seen whether the new process will be any quicker than seeking a provisional warrant of arrest from the court. According to the Home Office impact assessment, the changes will result in only six people a year entering the criminal justice system more quickly than would otherwise have been the case.