JOINT COMMITTEE ON HUMAN
RIGHTS
Human Rights Implications of UK Extradition Policy
Written Evidence
Contents
Written Evidence submitted by Fair Trials International (EXT 1) ............................. 3 Written Evidence submitted by The Freedom Association (EXT 2) ..................... 24 Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3) ..................................................................................................... 45 Additional Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3A) .................................................................................................. 59 Further Additional Written Evidence submitted by an individual who wishes to
remain anonymous (EXT 15) ..................................................................................... 64 Written Evidence submitted by Professor Monica Lugato, Faculty of Law,
LUMSA University of Rome (EXT 4) ............................................................................ 72 Written Evidence submitted by the Immigration Law Practitioners’ Association
(EXT 5) ........................................................................................................................... 75 Written Evidence submitted by Liberty (EXT 6) ...................................................... 91 Letter submitted to the Chair of the Committee by David Bermingham (EXT 7)
..................................................................................................................................... 126 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) ................ 128 Letter submitted to the Joint Committee on Human Rights from the Law
Society (EXT 9) ........................................................................................................... 135 Statement submitted by Mr Mark Turner, father of Michael Turner (EXT 10) ... 136 Written Evidence submitted by the Crown Prosecution Service (EXT 12) ....... 137 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) ..................... 143 Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for
Justice and Lord Chancellor (EXT 16).................................................................... 160 Written Evidence submitted by Crown Prosecution Service (EXT 17) .............. 162 Additional Written Evidence submitted by the Crown Prosecution Service (EXT
17A) ............................................................................................................................ 168 Letter submitted to the Committee Chair by David Bermingham (EXT 19) .... 172 Written Evidence submitted by JUSTICE (EXT 20)................................................. 175 Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21) ...... 178 Letter submitted to the Committee Chair by Michael Hann (EXT 22) ............. 180 Written Evidence submitted by Fair Trials International (EXT 1)
Additional Written Evidence submitted by Liberty (EXT 24) ............................... 182 Additional Written Evidence submitted by Fair Trials International (EXT 25).... 187 Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP,
Lord Chancellor and Secretary of State for Justice (EXT 026) ........................... 200 Written Evidence submitted by John Hardy QC (EXT 28) .................................. 204 Further letter submitted to the Committee Chair by Mr Michael Hann (EXT 29)
..................................................................................................................................... 211 Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30) ................................................................................................... 212 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32) ........................................................................................................... 217 2
Written Evidence submitted by Fair Trials International (EXT 1)
Written Evidence submitted by Fair Trials International (EXT 1)
Introduction
1. Fair Trials International (“FTI”) welcomes this opportunity to present its views
on the European Arrest Warrant (“EAW”) and the European Investigation
Order (“EIO”) to the Joint Committee on Human Rights. The last decade has
seen the European Union place unprecedented emphasis on increasing and
improving the cooperation between EU Member States in criminal justice
matters. Unfortunately, fundamental rights have been largely ignored in the
process. Traditional safeguards and checks have been stripped away in an
effort to streamline procedure in the fight against cross-border crime and
create an “area of justice, freedom and security” within Europe.
2. Over 500 million people live in the EU and of these, 8 million live in a
Member State other than their own. The right to freedom of movement
between EU countries means that national boundaries no longer pose a
significant obstacle to criminals. While FTI recognises that judicial and police
cooperation is essential in order to tackle cross-border crime, we do not
believe that this should be done at the expense of basic human rights.
3. The 9/11 attacks and the subsequent atrocities in London and Madrid
acted as a catalyst for new EU laws designed to enhance cross-border
cooperation between the police and the courts of different Member States.
The EAW, the procedure for fast-track extradition between EU States, was the
flagship measure. Now the EU is negotiating similar legislation to facilitate
cross-border investigations and evidence-sharing in criminal cases: the EIO.
4. The cross-border cooperation which the EAW and the EIO represent is
based on the principle of “mutual recognition”. Mutual recognition means
that if one EU country makes a decision (for example that a person must be
extradited to face a criminal trial or serve a sentence, or that evidence or
assets should be frozen) that decision will be respected and applied
throughout the EU, no questions asked. This philosophy is based on mutual
trust in the ability of all EU Member States to deliver justice and uphold human
rights. Unfortunately, the foundations for that trust are not yet in place.
5. Standards of justice vary greatly from one EU country to another and
human rights do not receive the same respect in every Member State.
Unfortunately, this reality has largely been ignored in the push for ever greater
mutual recognition and cross-border cooperation. Defence rights have been
sidelined, not strengthened, in the name of greater cooperation, and blind
faith in the criminal justice systems of our EU neighbours has led to many cases
of injustice.
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Written Evidence submitted by Fair Trials International (EXT 1)
6. This submission examines the impact of mutual recognition on fundamental
rights, specifically the effect of the EAW and the potential effect of the EIO.
Section A of the submission deals with the EAW and Section B with the EIO.
Section A: The European Arrest Warrant
7. Given the impact which extradition can have on the fundamental rights of
the individuals involved, we are delighted that the Committee has decided
to look at the human rights implications of the UK’s extradition arrangements.
The Committee’s inquiry will make a valuable contribution to the
Government’s review of extradition. FTI has submitted a detailed report to the
Extradition Review Panel which sets out specific legislative amendments to
the Extradition Act and the EU Framework Decision on the EAW (a copy of this
report is attached to this submission: it can also be downloaded by clicking
here). These suggested reforms are briefly summarised at paragraphs 15ff
(below).
8. Although we recognise that the Committee’s inquiry will also consider the
UK’s extradition arrangements with the United States, we have decided to
focus on the operation of the EAW. Although the EAW accounts for the vast
majority of the extraditions from the UK, it has received far less public and
political attention than UK-US extradition. Figures from 2009 show that since
2003, 63 people were extradited to the US from the UK 1 , while in 2009/10
alone 699 people were extradited from the UK to other EU member states
under the EAW.
9. The benefits of a streamlined system must be weighed against the heavy
toll that extradition proceedings take on individuals. FTI’s casework team
deals with numerous EAW cases each year. These cases provide a unique
insight into the human costs of this fast-track extradition system. Summaries of
a selection of these cases are annexed. FTI’s experience of EAW cases clearly
demonstrates that the EAW is not operating “efficiently and in the interests of
justice”. 2
10. The surrender of individuals between States clearly has significant human
rights implications, potentially engaging the right to protection from inhuman
or degrading treatment (Article 3 of the European Convention on Human
Rights (“ECHR”)), the right to liberty and security (Article 5 ECHR), the right to a
fair trial (Article 6 ECHR), and the right to respect for private and family life
(Article 8 ECHR). To the extent that many of those wanted under EAWs are
Source: response to a written Parliamentary Question by Paul Holmes, HC Deb 27 January
2009 c287W
2 Written ministerial statement by the Secretary of State for the Home Office, Rt Hon Theresa
May MP, Wednesday 8 September 2010, announcing the purpose and scope of the
Government’s extradition review
1
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non-nationals in the requesting state, the right to equal treatment without
discrimination (Article 14 ECHR) is also engaged: in our experience, nonnationals in criminal proceedings are often at a disadvantage in comparison
with nationals facing similar charges.
11. FTI’s work on EAW cases has highlighted the following human rights concerns:
The EAW is being used to extradite people for minor offences,
disproportionately interfering with their fundamental rights;
Individuals are being extradited to stand trial on charges based on
improper police investigations, including where evidence has been
obtained through police brutality;
Following extradition people are spending unacceptable periods of
time in pre-trial detention, sometimes in prison conditions which are
inhuman or degrading;
Once extradited, people are standing trial in legal systems which do
not afford sufficient protection for defence rights, thus jeopardising the
right to a fair trial;
Individuals have been extradited to serve prison sentences even where
there is compelling evidence that their original trial was unfair;
Judicial decisions not to execute EAWs are not being recognised by
issuing countries, resulting in an unjustified curtailment of individuals’
right to liberty;
People are facing extradition decades after an alleged offence;
Extradition is taking place for investigative purposes only, when
authorities in the issuing State are not ready to mount a prosecution;
Individuals face extradition even where there is clear evidence that
they are the victim of mistaken identity;
The basis for refusing extradition where it would result in a human rights
violation is not being used effectively in practice and requires
clarification.
12. Many of these problems stem from the principle underlying the EAW:
mutual recognition. Mutual recognition is predicated on the assumption of
mutual trust in the criminal justice systems of our EU neighbours. However,
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Written Evidence submitted by Fair Trials International (EXT 1)
given the unacceptable differences in protections for defence rights across
the EU, there is not (yet) a sound basis for such trust.
13. Steps are now being taken to remedy this under the EU’s 2009 Roadmap
for strengthening the procedural rights of suspected or accused persons in
criminal proceedings (the “Roadmap”). Despite recent progress under the
Roadmap 3 we are still a long way from an EU where every Member State
offers sufficient fundamental rights protections for suspects and defendants.
This reality makes enhanced safeguards in the extradition process even more
important.
14. Despite our serious concerns about the operation of the EAW, FTI fully
accepts the need for a fair and effective system of extradition within the
European Union. Given the porous nature of modern borders, effective justice
policy depends on cooperation in transnational cases. However, this
cooperation must not be at the expense of basic principles of fairness and
justice. Unfortunately, there has not been sufficient assessment of the human
and financial costs of this “no questions asked” extradition regime. The EAW
system has been in place long enough to demonstrate some of the dangers
that can arise from over-rigid adherence to the mutual recognition principle.
FTI wants the EAW system to work properly, upholding rather than
undermining the justice, freedom and security that form the basis of the EU’s
policy mandate.
Summary of FTI’s suggested reforms to the EAW
15. Summarised below are the changes we consider necessary to ensure that
the EAW system works efficiently and in the interests of justice. The suggested
reforms are separated into three sections:
1. Safeguards already contained in the EU legislation creating the EAW
(“the Framework Decision”), which should now be incorporated into
the UK’s Extradition Act 2003 (“the Extradition Act”);
2. Safeguards not expressly included in the Framework Decision but which
the UK could implement unilaterally without changes to the Framework
Decision; and
3. Amendments needed to improve the operation of the EAW, which
would require European cooperation to amend the Framework
Decision.
3 Only one Directive, on the right to interpretation and translation, has been adopted at EU
level and will not be implemented by Member States until 2013
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16. Fully drafted amendments can be found in FTI’s submission to the
Extradition Review Panel.
Safeguards in the Framework Decision which should be added to the
Extradition Act
17. No extradition where person can serve their sentence at home
The problem: UK courts cannot refuse to extradite a British national or
resident to serve a sentence in another country on the basis that it is more
appropriate that the sentence be served in the UK. This leads to
unnecessary extradition, followed by transfer back to the UK: a waste of
time and money (see, for example, the case of Luke Atkinson and
Michael Binnington in the Annex to this submission).
The solution: Allow UK nationals and residents who are convicted abroad
to serve their sentences in the UK.
18. No extradition where the UK is the most appropriate place for trial
The problem: The UK must extradite an individual even if the requesting
State is not the most appropriate place for prosecution, e.g. if the offence
was committed wholly in the UK and all the evidence is located in the UK.
The solution: Parliament has already passed an amendment to the
Extradition Act which would rectify this problem; however it is not yet in
force. The UK government should bring this section into force with
immediate effect.
19. No extradition where a custodial life sentence without review could be
imposed
The problem: The UK cannot refuse extradition on the grounds that the
person may be subject to a custodial life sentence in the requesting
country, and that country does not have provisions in its legal system to
review such a sentence.
The solution: Allow UK judges to refuse to surrender individuals to European
countries where they may face whole life sentences without any chance
of release.
Safeguards which should be added to the Extradition Act but are not included
in the Framework Decision
20. More flexible appeal deadlines in extradition cases
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The problem: The timeframes for filing appeals against extradition
decisions in the UK are far too strict—if the deadline is missed, even by one
hour, the courts say they have no discretion to hear the appeal. This is the
case even where the delay is not the fault of the individual concerned
but of, say, a negligent lawyer (see, for example, the case of Garry Mann
in the Annex to this submission).
The solution: The UK should add more flexibility to appeal deadlines in
relation to extradition cases. There is nothing in the Framework Decision to
prevent this.
21. Stronger protections for fundamental rights
The problem: The EAW assumes that all EU countries respect basic
defence rights. In reality, standards of justice vary greatly and defence
rights and other fundamental rights do not receive sufficient protection in
many Member States (see, for example, the case of Andrew Symeou in
the Annex to this submission).
The solution: Introduce clearer provisions on the human rights bar, to
ensure that people are not extradited where it would result in a breach of
their fundamental rights.
22. Ability to request more information in cases of mistaken identity
The problem: There are currently no grounds upon which to refuse
extradition where there are serious doubts about whether the person
sought is the person who committed the crime or is suspected to have
committed the crime (see, for example, the case of Edmond Arapi in the
Annex to this submission).
The solution: The UK should amend the Extradition Act to allow more
information to be requested where there are reasonable grounds to
believe that the person sought under an EAW is the victim of mistaken or
stolen identity.
23. No extradition for minor offences
The problem: EAWs are being issued for very minor offences such as
stealing a dessert or going over an overdraft limit. Not only does this lead
to injustice in individual cases: it also places an unjustified burden on
police and court resources. (see, for example, the case of “Patrick
Connor” in the Annex to this submission).
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The solution: Allow UK judges to refuse extradition for minor offences and
in cases where the effect of extradition is disproportionate to the alleged
crime.
Amendments needing European cooperation to amend the Framework
Decision
24. No extradition where the effect of extradition is disproportionate to the
alleged crime
The problem: EAWs are being issued for very minor offences and in other
cases where the effect of extradition is disproportionate to the alleged
crime (see, for example, the case of Jacek Jaskolski in the Annex to this
submission).
The solution: Amend the Framework Decision to ensure that EAWs are not
issued, and people are not extradited, for minor offences or where the
effect of extradition is disproportionate to the alleged crime. Impose
financial penalties where countries issue disproportionate EAWs.
25. Improve the system for removing warrants
The problem: If one country refuses to execute an EAW, for example
because it is satisfied that extradition would be unjust, this does not
automatically cancel the EAW. The individual subject to the EAW remains
a wanted person and risks re-arrest, further hearings and legal costs, each
time he or she crosses a national border (see, for example, the case of
Deborah Dark in the Annex to this submission).
The solution: If a court in one European country decides extradition would
be unjust, that decision should be respected across the EU and the EAW
should be withdrawn immediately.
26. Ability to request guarantees regarding procedural safeguards
The problem: Standards of fair trial protections vary greatly across Europe
and not every EU country provides adequate protection for defence
rights (see, for example, the case of Michael Turner and Jason McGoldrick
in the Annex to this submission).
The solution: European countries should be able to request guarantees
from the issuing EU country regarding procedural safeguards for trial and
to decline to execute a warrant if sufficient assurance is not provided. The
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Written Evidence submitted by Fair Trials International (EXT 1)
EU must also continue its programme of legislative action to strengthen
basic fair trial rights across Europe.
Section B: the European Investigation Order
27. The EIO is a Member States’ legislative initiative on cross-border evidencegathering based on the principle of mutual recognition. The proposed
instrument, which is currently being negotiated at EU level, signals a shift from
the current discretionary evidence-sharing mechanism, known as mutual
legal assistance (MLA), to a mandatory regime. The EIO therefore represents a
major change in the way evidence is gathered and shared between
Member States. The UK opted in to the EIO in July 2010. FTI’s detailed
submission to EU working parties on the EIO is attached to this briefing,
together with a note of “Frequently Asked Questions” issued in response to the
UK opt-in decision.
28. FTI would, in principle, welcome any measure which facilitates the lawful
gathering, safeguarding and admissibility of all available evidence relevant
to an alleged offence.
Clearly the more fairly obtained evidence that is available, the more likely
a just outcome will be achieved: national borders should not be a bar to
this process.
29. However, several fundamental rights are engaged by pre-trial evidencegathering procedures, including the right to a fair trial under Article 6 ECHR,
privacy rights under Article 8 ECHR and, in some cases, rights under Article 3
ECHR. Any new evidence-gathering instrument must safeguard these rights
and ensure defendants are tried on evidence which has not been obtained
by violation of fundamental rights or other key protections such as the
equality of arms principle or the ability to test prosecution evidence. The EIO
in its current form does not meet these conditions.
FTI’s concerns about the EIO
30. On 29 April 2010, with no prior public consultation and no explanation of its
relationship to the Commission’s own substantial work on evidence-gathering,
the draft text of the EIO was released. The proposed instrument did not enjoy
prior consultation by the initiating Member States (at least any transparent or
wide-ranging consultation) and lacked a comprehensive impact assessment.
This was raised by the Commission in its response to the EIO: “There is neither a
proper impact assessment nor an explanatory memorandum that provides
enough material to state that the draft Directive respects the Charter [of
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Fundamental Rights] and the ECHR”. 4 The Fundamental Rights Agency has
now been tasked with examining the human rights implications of the EIO and
is due to report in February 2011.
31. FTI raised the following concerns about the EIO: 5
The potentially wide definition of who will be able to issue an EIO. As
evidence-gathering inevitably engages fundamental rights, any issuing
authority must have the expertise to weigh issues of necessity and
proportionality and be adequately independent from the executive
branch of government. EIOs should therefore only be issued by judicial
authorities.
The lack of express refusal grounds in key areas, such as:
o breach of fundamental rights;
o proportionality (the offence is trivial and/or the request would
involve disproportionate use of resources or unnecessary
infringement of fundamental rights);
o double jeopardy (the person being investigated has already been
tried for the same offence);
o territoriality (the alleged offence was not committed in the issuing
but in the executing State).
The absence of a dual criminality requirement, meaning one State
could be required to investigate conduct it does not itself treat as
criminal.
The lack of adequate detail about the remedies available for
individuals engaged in the EIO system.
The lack of protection for individuals in custody who are transferred to
other States for questioning.
The absence of necessary safeguards relating to evidence given via
telephone and videoconferencing.
4 European Commission’s comments on the draft Directive for a European Investigation
Order (EIO), p.7,
5 Many of which are shared by the House of Commons European Scrutiny Committee, see
the Twelfth Report of Session 2010/11, page 66 ff
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The absence of provisions enabling the defence to request an EIO to
be issued where necessary in the interests of justice.
The lack of adequate data protection controls; a concern echoed by
the European Data Protection Supervisor in his analysis of the EIO: “[The
EIO] once again raise[s] the fundamental issue of the incomplete and
inconsistent application of data protection principles in the field of
judicial cooperation in criminal matters.” 6
32. There have been numerous suggested alterations to the text of the
Directive on the EIO and negotiations are ongoing, including in relation to a
proportionality test. A recent proposal is that the Directive set out four
categories of evidence-gathering measures, organised by increasing degree
of intrusiveness. The lowest category would attract the fewest grounds for the
executing State to refuse an EIO, while the highest category would attract
more potential grounds for refusal. While FTI recognises the desire to connect
safeguards with the most intrusive measures, we are concerned that this
complex suggestion may undermine the very purpose of the EIO: to simplify
the mechanism for sharing evidence between Member States.
33. In its current form the EIO is insufficient to protect the fundamental rights
inevitably engaged by evidence gathering. Even with further protections, we
do not believe that mutual recognition is the appropriate legal principle to
apply to this area at this time. Only once data protection and defence
safeguards are in place will mutual recognition be a suitable approach to
evidence-gathering.
Conclusion
34. The Government’s extradition review provides a hugely important
opportunity, not only to recommend the changes needed to improve the
operation of the EAW, but also to learn the lessons of the EAW so they are not
repeated in the context of evidence gathering. The EAW has been operating
long enough to demonstrate how mutual recognition instruments can
operate unjustly in the absence of minimum defence rights.
35. In its seven years of operation, the EAW has placed the speedy surrender
of persons to other Member States above the fundamental rights of the
individual. It has demanded blind faith in the fair trials standards of European
countries and is failing to deliver justice in a number of cases because of its
over-rigid nature and its inability to safeguard fundamental rights. Europe
must work together to tackle serious cross border crime but,
6 Opinion of the European Data Protection Supervisor, Para 28
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if we are to deliver a system which operates efficiently and in the interests
of justice, action must be taken urgently on two levels, as follows.
36. First, as we have set out in this submission, legislative change is needed to
incorporate vital safeguards into the EAW system. Some of these changes
can be implemented by the UK through amendments to the Extradition Act.
Other flaws in the operation of the EAW cannot be addressed by amending
the Extradition Act alone, but require the European Union to work together to
agree necessary changes to the Framework Decision. The European
Commission has, itself, now recognised that there is “significant room for
improvement in the operation of the European Arrest Warrant.” 7
37. Secondly, action must be taken to raise standards of justice across the
European Union. This is crucial to the effective operation of the EAW because
the streamlined extradition procedure it has created is premised on the
principle of mutual trust. The current absence of common EU standards in
areas of fundamental procedural rights, bail and pre-trial detention
represents a serious threat to the integrity and fair operation of the EAW
scheme. Without minimum defence rights, fast-track extradition carries an
increased risk of unfair trials and unacceptable infringements of the rights to
liberty and family life. The EU is finally making progress on this front with its work
on the Roadmap of procedural safeguards. The UK Government must
continue to show leadership in this area by opting into further measures
protecting defence rights across Europe.
38. Unless action is taken on both these fronts simultaneously, many more
people will suffer injustice as a result of Europe’s “no questions asked”
extradition system.
39. A similar approach is required with the EIO. Before introducing such a
fundamental change to the system of evidence gathering, it is important to
consider what more could be done to promote the wider use of existing MLA
tools. This will require a detailed consultation with practitioners on the
prosecution and defence side and a careful assessment of what works well in
MLA and what needs to improve. If the move to mutual recognition is found
to be necessary, the EU must first ensure that a detailed set of laws affording
protections for fundamental rights, as well as a full set of procedural
safeguards and strong EU level data protection laws, are fully implemented
across the Union. Meanwhile, the EIO itself must contain safeguards to ensure
the protection of rights inevitably engaged by evidence-gathering in crossborder cases.
7 Letter to FTI from Viviane Reding, Vice-President of the European Commission responsible for
Justice, Fundamental Rights and Citizenship
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40. Mutual recognition and inter-state cooperation should not be seen as
ends in themselves, but as potential means to serve the overriding interests of
justice. Those interests are as important in the context of gathering, handling,
retaining and sharing evidence as they are in the context of extradition. The
interests of justice cannot be served if fundamental rights are sidelined.
21 January 2011
Annex: FTI cases which illustrate the problems with the European Arrest
Warrant
Extradited to Cyprus and transferred back to the UK after 8 months – Luke
Atkinson and Michael Binnington
Cousins Luke Atkinson (left) and Michael Binnington, two young men from
Essex, went on a family holiday to Cyprus in August 2006. On the first night
Luke and Michael were involved in a fight at a nightclub, during which one of
the boys sustained head injuries. Luke and Michael’s uncle, Julian Harrington,
was called and drove to the scene in his hire car. After he had picked up
Luke and Michael from the club Julian encountered 2 boys on a moped and
there was a collision between Julian’s car and the moped. The driver of the
moped later died from his injuries and the second passenger was seriously
injured.
Luke, Michael and Julian were charged with manslaughter and murder on
the basis that Julian had deliberately driven into the moped three times and
that Luke and Michael had been complicit in the crime. Julian pleaded guilty
and received a sentence of 15 years’ imprisonment which was upheld on
appeal.
Luke and Michael were acquitted of all charges after their initial trial on 17
February 2007 by the Larnaca Assize Court. The Cypriot prosecution appealed
their acquittal to the Supreme Court of Cyprus on 29 January 2008. The
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Supreme Court overturned the acquittals, found Luke and Michael guilty of
manslaughter and grievous bodily harm and sentenced them to 3 years’
imprisonment on 10 April 2008.
Following their initial acquittal, however, Luke and Michael had returned to
the UK. Cypriot authorities therefore issued an EAW for the two men in May
2008. Luke and Michael resisted extradition and FTI wrote to the then Lord
Chancellor, Rt Hon Jack Straw MP, requesting that Luke and Michael be
allowed to serve their sentence in the UK. Such efforts were unsuccessful and
the two men were extradited to Cyprus in November 2009.
Only 8 months after their extradition they were transferred back to the UK to
serve their sentences. The extradition of the two men, only for them to be
transferred back to the UK, was a waste of time and money with an enormous
human impact.
Luke and Michael’s case highlights:
The need for UK nationals and residents to be able to serve sentences
imposed in other jurisdictions in the UK rather than being extradited and
then transferred back to the UK.
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Extradited after a grossly unfair trial – Garry Mann
Garry Mann, a 51-year-old former fireman from Kent, went to Portugal during
the Euro 2004 football tournament. On 15 June 2004 while Garry was with
friends in a bar in Albufeira, a riot took place in a nearby street. Garry was
arrested along with other suspects some 4 hours after the alleged offences.
He was tried and convicted, less than 48 hours after his arrest. He had no time
to prepare his defence and standards of interpretation at the trial were
grossly inadequate. The proceedings were translated for Garry by a
hairdresser who was an acquaintance of the judge’s wife.
He was convicted following a widely publicised trial in Albufeira and
sentenced to two years’ imprisonment on 16 June 2004. On 18 June 2004 he
voluntarily agreed to be deported and was told that, provided he did not
return to Portugal for a year, he would not have to serve the sentence.
Back in the UK, Garry tried unsuccessfully to appeal his conviction. In October
2004 he lodged an appeal to the Constitutional Court in Lisbon but heard
nothing from the Court. Separately, the Metropolitan police applied for a
worldwide football banning order against Garry, but in 2005 a UK Court held
he had been denied a fair trial in Portugal and refused the order.
Garry was astonished when in 2009 he was arrested on an EAW, alleging he
was wanted in Portugal to serve a two year prison sentence. In August 2009 a
British court ordered his extradition to Portugal.
Through no fault of his own, the appeal deadline in Garry’s case was missed
by less than 24 hours. As a result the High Court refused to hear his appeal.
Instead, Garry was forced to seek a judicial review of SOCA’s decision to
execute the EAW.
The case was heard by the UK’s High Court in March 2010. Lord Justice Moses
described the case as an "embarrassment" and said: "If there was a case for
mediation or grown up people getting their heads together then this is it." The
judge said that new evidence from the Foreign and Commonwealth Office
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"lends force to his belief that a serious injustice" had been committed against
Mr Mann. Despite this there were no grounds upon which to refuse Garry’s
extradition.
Recognising that his options were running out Garry wrote to the Home
Office and requested that he serve the sentence in the UK. This was refused
as there was no legal mechanism to allow it. Garry was surrendered to prison
in Portugal in May 2010, where he remains today. He is due to be transferred
back to the UK where he will continue to serve his sentence.
“I have been let down by the politicians that agreed to the UK’s rigid
extradition laws and the European arrest warrant and the judges who no
longer seem willing to stand up for justice. I am not the first victim of this
system and, until it’s reformed, I won’t be the last.” Garry Mann
Garry’s case highlights:
The need for UK nationals and residents to be able to serve sentences
imposed in other jurisdictions in the UK rather than being extradited and
then transferred back to the UK.
The need for flexibility in the appeal deadlines for extradition cases.
The need for courts to have greater discretion to refuse extradition on
human rights grounds.
Student extradited on evidence obtained by police brutality – Andrew
Symeou
Andrew Symeou, a university student of exemplary character with a bright
future ahead of him, was on holiday with friends in Zante, Greece in 2007.
One night, while Andrew was in Zante, another young Briton fell off an
unguarded stage in a night-club, tragically dying two days later from a head
injury. Andrew insists he was not even in the club at the time—and many
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witnesses have since confirmed this. He was never sought for questioning at
the time, and knew nothing about the incident when he flew home at the
end of his holiday.
A year later, he was served with an EAW seeking his extradition to Greece to
stand trial for murder. During the course of his legal challenge serious
questions arose about the reliability of the evidence against him. The key
prosecution witnesses explained that their evidence implicating Andrew was
extracted through their brutal mistreatment by police. They have since
retracted their (word-for-word identical) statements. Furthermore, crucial
CCTV footage, seized by police following the incident, has disappeared from
the case file. Despite this, in October 2008, the Westminster Magistrates court
ordered Andrew’s extradition to Greece. Andrew appealed to the High
court on the grounds that British courts should refuse to execute an EAW when
evidence has been obtained through witness intimidation and police
brutality. Unfortunately, the High court refused his appeal and he was
extradited to Greece in July 2009.
Andrew was initially refused bail in Greece because he was not resident in
Greece. He spent a year on remand in appalling prison conditions, including
6 months in the notorious Korydallos prison. Andrew has described how he
was detained with convicted rapists and murderers, despite the fact that he
was under 21 years of age and was being held on remand. The conditions in
his cell were so unsanitary that he awoke each morning covered in
cockroaches and was frequently bitten by fleas in his bedding. The shower
room floor was covered in excrement and the prison was infested with rats,
cats and mice. Andrew was kept in a cell with three others, and the toilet
consisted of a hole in the corner of the room. The cell only had a small
window and became unbearably hot in the summer. During Andrew’s time in
Korydallos there were several violent riots and, on one occasion, he heard the
screams of a fellow prisoner being raped.
After a year and only after Fair Trials International challenged Greece in the
European Court of Human Rights in connection with the refusal of bail,
Andrew was finally granted bail, but on the condition that he does not leave
Greece.
“The sight of our son in prison is heartbreaking.”— Andrew’s parents, Frank
and Helen Symeou
Andrew’s case highlights:
The need for courts to have greater discretion to refuse extradition on
human rights grounds.
18
Wanted for a crime he could not have committed – Edmond Arapi
Edmond Arapi
Edmond Arapi was tried and convicted in his absence of killing Marcello
Miguel Espana Castillo in Genoa, Italy in October 2004. He was given a
sentence of 19 years, later reduced to 16 years on appeal. Edmond had no
idea that he was wanted for a crime or that the trial or appeal even took
place. In fact, Edmond hadn’t left the UK at all between the years of 2000 to
2006. On 26 October 2004, the day that Marcello Miguel Espana Castillo was
murdered in Genoa, Edmond was at work at Café Davide in Trentham, and
attending classes to gain a chef’s qualification.
Edmond was arrested in June 2009 at Gatwick Airport on an EAW from Italy,
while he was on his way back from a family holiday in Albania. It was the first
he knew of the charges against him in Italy, which does not automatically
guarantee a re-trial for defendants tried in absentia. A British court ordered his
extradition on 9 April 2010.
FTI worked extensively on Edmond’s case; attempting to persuade the Italian
authorities to withdraw the EAW, working with Albanian lawyers to help
establish the identity of the real perpetrator, and raising the profile of his case
with the public and politicians.
On 15 June 2010, the day the appeal against his extradition order was to be
heard at the High Court, Italian authorities decided to withdraw the EAW,
admitting that they had sought Edmond in error. They provided information
indicating that Edmond’s fingerprints did not match those at the crime scene.
Thankfully, this meant that Edmond avoided being separated from his wife
and children, including a newborn son, and spending time in an Italian prison
awaiting retrial.
“It can be proved 100% that I was at work in England on the day this crime
took place in Italy. It would be devastating for my family if I am torn from
them and imprisoned in Italy, a country I barely know, for something I
could not have done.”
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Edmond’s case highlights:
The need for courts to have the ability to request more evidence where
there is a suspicion of mistaken identity
Disproportionate use of the EAW – Patrick Connor
Patrick Connor (not his real name) was just 18 when he went on holiday to
Spain with two friends. While there, all three were arrested in connection with
counterfeit euros. Patrick himself had no counterfeit currency on him or in his
belongings when arrested and has no idea how the notes came to be on his
two friends and in their rented apartment—in total, the police found 100 euros
in two notes of 50. The boys were held in a cell for three nights. On the fourth
day they appeared in court and had a hearing lasting less than an hour, at
the end of which they were told they were free to leave but might receive a
letter from the authorities later.
They returned to the UK and heard no more about it until four years later
when, as Patrick was studying in his room at university, officers from the Serious
Organised Crime Agency arrested him on an EAW.
Patrick was extradited to Spain and held on remand in a maximum security
prison in Madrid. Other inmates told him he might be in prison for up to two
years waiting for a trial. Under immense pressure and fearing for his future, he
decided to plead guilty, even though several grounds of defence were
available and he would have preferred to fight the case on home ground, on
bail, and with a good lawyer he could communicate with in English. None of
this was possible, and he ended up spending 9 weeks in prison before coming
home to commence his university career, his future blighted by a criminal
record.
Patrick’s case highlights:
The need for proportionality checks to stop EAWs being issued for minor
offences resulting in wasted costs and unduly harsh effects on
individuals’ lives.
Facing extradition for exceeding his overdraft limit - Jacek Jaskolski
Jacek Jaskolski, a Polish schoolteacher and grandfather who lives in Bristol, is
being sought on an EAW to face trial for “theft” in Poland. The alleged
offence refers to a period in 2000 when Mr Jaskolski withdrew money from his
bank taking him over the agreed overdraft limit. The entire debt was repaid to
20
the bank and in 2004 he moved with his family to the UK where he has lived
ever since.
On 23 July 2010, with no prior notice, British police arrested Mr Jaskolski
pursuant to the EAW. He is threatened with a criminal trial for a debt he paid
off many years ago. The British courts will now decide whether Mr Jaskolski, in
fragile health following 3 strokes in the past 2 years, will be sent to prison in
Poland or allowed to remain with his family, including his wife who is caring for
him and who herself has serious disabilities.
Mr Jaskolski’s case highlights:
The need for proportionality checks to stop EAWs being issued for minor
offences.
Acquitted in 1989, yet British grandmother was still wanted 20 years on—
Deborah Dark
In 1989, Deborah Dark was arrested in France on suspicion of drug related
offences and held in custody for eight and a half months. Her trial took place
later in 1989 and the court acquitted her of all charges. She was released
from jail and returned to the UK. The prosecutor appealed against the
decision without notifying Deborah or her French lawyer. The appeal was
heard in 1990 with no one there to present Deborah’s defence. The court
found her guilty and sentenced Deborah to 6 years’ imprisonment. Again, she
was not informed that an appeal had taken place, nor notified that her
acquittal had been overturned. As far as she was concerned she had been
found not guilty of all charges and was free to start rebuilding her life. In April
2005, fifteen years after the conviction on appeal, an EAW was issued by the
French authorities for Deborah to be returned to France to serve her
sentence. She was not informed about this.
In 2007, Deborah was arrested at gunpoint in Turkey, while on a package
holiday with a friend. The police released her and were unable to explain the
reasons for her arrest. Upon her return to the UK, she went to the police station
and tried to find out the reasons for her arrest. She was told that she was not
21
subject to an arrest warrant. In 2008 Deborah travelled to Spain to visit her
father who had retired there. On trying to return to the UK, she was arrested
and taken into custody in Spain, where she faced extradition to France.
Deborah refused to consent to the extradition, and was granted an
extradition hearing. After one month in custody, the Spanish court refused to
extradite Deborah on the grounds of unreasonable delay and the significant
passage of time. Deborah was released from prison and took a flight back to
the UK. However, her ordeal was not over.
On arrival in the UK, Deborah was arrested again—this time by the British
police at Gatwick airport. Once again, she refused to consent to the
extradition and was released on bail pending another extradition hearing.
The City of Westminster Magistrates’ Court refused the extradition in April 2009
due to the passage of time.
As there is no provision for the withdrawal of the EAW, Deborah spent years as
an effective prisoner in the UK—feeling unable to leave the country due to
the risk of being re-arrested on the same European Arrest Warrant. In May
2010, after FTI helped build public and political support for Deborah’s case,
France finally agreed to remove the EAW, but only after Deborah had spent
years as an effective prisoner in the UK due to the risk of arrest.
Deborah’s case highlights:
The need for EAWs to be removed immediately by issuing States once
a requested State has made the decision not to execute.
Extradited before being charged – Michael Turner and Jason McGoldrick
Hungarian authorities sought the extradition of Michael Turner (left), a 27 year
old British national from Dorset, and business partner Jason McGoldrick (37),
following the failure of their business venture in Budapest.
Michael was extradited to Hungary under an EAW on 2 November 2009 and
was held in prison for four months, during which time he was interviewed only
22
once by police. He was released from jail on 26 February 2010 and was
allowed to return to the UK, but was requested to return for further police
interviews in April.
The EAW is intended to be used to extradite people to serve a prison
sentence or for the purposes of a criminal prosecution. In Michael’s case,
however, an extradition took place even though no decision had yet been
made to prosecute him. This improper use of the EAW subjected Michael and
Jason to four unnecessary months in prison in extremely difficult conditions.
Michael’s father, Mark Turner, has described how the pair were held in
separate parts of a former KGB prison and were not allowed to contact family
members of consular officials. Michael had to share a cell with three other
prisoners and was only allowed out of the cell for one hour a day. Two weeks
into his detention Michael was wearing the same clothes in which he had
been arrested and had not been allowed to have a shower or clean his
teeth. Prison officers refused to allow him to open parcels from his family
containing basic items like toothpaste. Hungary´s investigation is still ongoing
with charges neither brought nor dropped against Michael.
Michael and Jason’s case highlights:
The need for the EAW to take into account the wide variety of
standards of procedural rights protections across the EU.
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Written Evidence submitted by The Freedom Association (EXT 2)
Written Evidence submitted by The Freedom Association (EXT 2)
CHAPTER 1 - SUMMARY
1. The European Arrest Warrant has had a marked effect on criminal justice
systems in the name of counter-terrorism across Europe. It is therefore
imperative that the Extradition Review scrutinises the framework behind
the European Arrest Warrant in depth.
2. The European Arrest Warrant is used frequently and disproportionately,
often for minor crimes, undermining civil liberty. This situation is set to
worsen in future years.
3. The European Arrest Warrant also affects the UK unfairly. This is because,
compared to EU member states; the UK’s citizens are issued with a
disproportionate number of warrants. It also affects the UK unfairly, as it
undermines our legal system, which has aimed to protect and has by and
large protected British citizens from abuse by the state for centuries.
4. One of the main issues the submission raises in relation to the European
Arrest Warrant is the abolition of double criminality in 32 areas. This has
created a situation where laws voted in by elected officials in the UK
Parliament have become null and void, due to the fact that UK citizens
can be extradited for something that is not a crime in the UK.
5. To meet the requirements of the European Arrest Warrant, centuries-old
English legal traditions such as habeas corpus (innocence until proved
guilty) have been put in danger, as many other EU member states’ legal
systems provide much less protection for an individual’s freedom.
6. The cases of Andrew Symeou and Gary Mann highlight how the European
Arrest Warrant can lead to terrible miscarriages of justice that destroy lives.
7. Even if one agrees with the European Arrest Warrant, it is impossible to
implement. There are simply too many differences between all the
different member states when it comes to justice systems and legal
traditions, which are impossible to overcome. Thus there can never be the
mutual trust and recognition which is needed for the European Arrest
Warrant system to be able to work.
8. The European Arrest Warrant has highlighted how, at the moment, those in
charge of the EU seem to value “ever closer union” much more than they
value human rights.
9. The European Investigation Order partners the European Arrest Warrant.
We believe the Government’s decision to opt in to this piece of EU
legislation was a mistake. It is also a decision that will undermine an English
legal system starting from the principle of habeas corpus.
10. It will also mean that the surveillance state, which the Coalition
government has said it is committed to stopping, will be revived.
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Written Evidence submitted by The Freedom Association (EXT 2)
CHAPTER 2 – THE EUROPEAN ARREST WARRANT
a) INTRODUCTION
The Freedom Association welcomes the opportunity to present its views on the
European Arrest Warrant to the extradition review panel. This is a subject on
which we lobbied previously, when the Extradition Act of 2003 was presented
to Parliament. Later, in 2005-2006, when the House of Lords reviewed the
subject, we expressed our concerns that “the European Arrest Warrant would
dilute habeas corpus and that the Bill was the thin end of a very large and
significant wedge” (House of Lords European Union Committee, P.71).
Unfortunately as our submission highlighted, our concerns have been proved
correct. The European Arrest Warrant came about from proposals for a
simplified system of extradition warrants across the EU to replace existing
arrangements between the UK and other EU member states. The framework
for the European Arrest Warrant came from the Tampere European Summit of
15-16th October 1999, which called on member states to make the principle
of mutual recognition the cornerstone of a true European law-enforcement
area (Europa). These proposals were discussed both in Europe and
Westminster and culminated in a European framework decision and
provisions in the Extradition A ct of 2003. The European Arrest Warrant
provisions came into force in January 2004. Clearly the European Arrest
Warrant is a controversial issue. When the House of Commons voted to
approve the motion, 333 votes were cast in favour and 146 against, thus
indicating a high level of dissent. The European Arrest Warrant came about
as part of the EU’s response to terrorism.
Whilst it is true to say that extradition reform was on the table prior to 2001,
the negotiations to reform extraditions accelerated markedly after the events
of September 11th 2001. Thus many believe that the European Arrest Warrant
was an ill thought-out, knee-jerk reaction to the threat of terrorism, to make it
look as though the EU was doing something. Even Graham Watson, the
Liberal Democrat MEP, who presented the proposals to the European
Parliament said, “the proposal would still be on a shelf gathering dust if it
hadn’t been for the events in New York five days later. Mr. Bin Laden helped
make it a reality” (Watson, G, 2010). The EU officials forgot the golden rule in
all of this, that is, ”If it is not broken, do not fix it”. However, as with a lot of
counter-terrorism legislation, The Freedom Association believes the European
Arrest Warrant was ill thought-out and that it undermined civil liberties.
b) WHY THE EUROPEAN ARREST WARRANT IS IMPORTANT
We feel that the European Arrest Warrant is important, as, whilst our
extradition treaty with the USA captures all the headlines, it is through the
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Written Evidence submitted by The Freedom Association (EXT 2)
European Arrest Warrant that the vast majority of UK citizens are extradited.
This is highlighted by figures from, Fair Trials International, the civil liberties
group, which calculated that whilst, from 2003- 2009, 69 people were
extradited from the UK to the USA, in 2009-10 alone, 699 people were
extradited to other EU member states under the European Arrest Warrant
(Heard, C & Mansell, D, 2010). We also feel that it was a mistake that the UK,
unlike countries such as Belgium, Denmark and Ireland, did not use
safeguards to blunt the instrument of the European Arrest Warrants. In the
countries mentioned, for example, they made statements to allow a person
to revoke his or her consent to surrender and/or express renunciation of the
speciality rule. One wonders why the Government of the day in the UK did
not do the same, and whether it is possible for the present Government to use
this safeguard.
We therefore hope that the extradition review gives the most attention to the
European Arrest Warrant. The Freedom Association is an organisation
committed to the protection of civil liberties.
Therefore, we felt it necessary to contribute to the extradition review, in
particular the European Arrest Warrant. We feel that the European Arrest
Warrant, which came into being in the aftermath of September 11th 2001,
chose security and a fast extradition policy over justice through fair trial and a
nation’s ability to protect its citizens. The situation has recently got worse. In
July, the Government opted in to joining the European Investigation Order,
which means that foreign police forces can order British police forces to
gather evidence - including bank statements - on UK citizens. This will lower
human rights standards and further attack national sovereignty. It will work
hand in hand with the European Arrest Warrant, through which it has been
made easier to extradite citizens, thus increasing the chances of miscarriages
of justice taking place. The submission will now go through our concerns
about the European Arrest Warrant.
c) CONCERNS ABOUT PROPORTIONALITY AND HUMAN RIGHTS
The first duty of a nation state is to protect its citizens, ensure a fair trial and
ensure habeas corpus. This has been protected for centuries in English law. In
contrast, in continental law, which is adopted by all members bar the UK,
Ireland and Malta, there is no law of habeas corpus for example, which
precludes the possibility of detention without evidence and without a public
hearing for more than 24 hours or, exceptionally, for up to 96 hours. As a
consequence of the European Arrest Warrant working on the basis of mutual
trust and recognition, all legal systems across the EU are assumed to be
equivalent to our own, which they clearly are not. In practice, due to a
majority of member states adopting the continental legal system, the
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Written Evidence submitted by The Freedom Association (EXT 2)
European Arrest Warrant has undermined habeas corpus and other
protections in English law from the state.
Supposedly, the European Arrest Warrant is there to tackle crime gangs and
deals only with the most serious of crimes. However, the way the legislation
has been framed across the EU did not make any room to exempt minor
crimes. The balance of proof therefore, in arrest cases, has been reduced to
an unacceptable level. For example, people have been extradited using the
European Arrest Warrant for minor crimes like traffic offences, stealing a pig,
stealing a chicken and stealing a mobile phone. It is little wonder, therefore,
that the House of Commons Justice Select Committee has said, “There has
been a worrying propensity from certain member states to use the EAW for
minor offences which raises problems, both on human rights grounds and in
terms of the costs to legal systems” (House of Commons Justice Select
Committee, 2010). This highlights how, at the moment, the European Arrest
Warrant is not used in a proportionate way.
Before the European Arrest Warrant, the UK justice system had a way of
ensuring proportionality through a prosecutor test. The Justice Select
Committee reports:
“The test ensures that the case is in the public interest and that there is a
realistic prospect of conviction. This is not the in the interests of
harmonising justice systems through the European Arrest Warrant
legislation, the UK is now faced with mounting legal and human rights
concerns. Examples of disproportionate use of the European Arrest
Warrant come from many of the applications Poland has placed in the
UK. One case involved the surrender of someone suspected of
‘unintentional receiving of stolen property’. This felon purchased a mobile
phone for the equivalent of £20” (House Of Commons Justice Select
Committee, 2010).
The issue of proportionality highlights that; England has been forced to
accept lower legal standards, even if English judges and the Government
have concerns. This is because both English Judges and the Government
have to accept a European Arrest Warrant once it is issued by another
member state. This is worrying as the English Legal System without the
European Arrest Warrant, protects freedom of the individual against coercion
by the state. The European Arrest Warrant has put all this in jeopardy.
d) PROLIFIC USE OF THE EUROPEAN ARREST WARRANT
Considering the concerns with proportionality, it comes as no surprise that the
European Arrest Warrant is used extensively. Like any tool of power to control
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Written Evidence submitted by The Freedom Association (EXT 2)
citizens, national governments seem keen to use it. Figures show that “11,000
European Arrest Warrants were issued in 2007, up from 6,900 in 2005” (Coulter,
C, 2010). Figures, it seems, are inexorably rising to this day. The situation in the
UK seems to be worse, as there have been more warrants for extradition of UK
citizens than in most other EU member states. Thus, not only has the UK
implemented an extradition treaty, due to its membership of the EU, which
has lowered extradition safeguards, but it has also suffered most under that
law. In total, 1,032 people—almost three a day—were detained and
extradited by British police on the orders of European prosecutors in the 12
months to April 2010—up from 683 in 2008-09. The Home Office expects a
further 70 per cent rise, to 1,700 cases, next year (Gilligan, A, 2010).
Additionally, in 2009 over 256 cases were deemed dubious enough to be
taken to Eurojust for mediation, where two or several member states
disagreed over the scope and proportionality of a European Arrest Warrant.
This is up from the already high figure of 237 cases in 2008 (Pop, V, 2010).
It is clear, therefore, looking at these figures, that the European Arrest Warrant
has been used disproportionately and that, as the judiciary has been taken
out of the process, it is powerless to act as an independent judiciary should. It
is deeply worrying that these numbers will be seen as low in the future as,
according to Roger Helmer, an MEP for the Midlands, we will see numbers
rising soon to 1,500 a year (Helmer, R, 2009) and the House Of Commons
Justice Select Committee has predicted a rise of 250% in future years (Justice
Select Committee, 2010). The way the European Arrest Warrant works seems
to be that, year on year, the number of cases increases, and, year on year,
the number of miscarriages of justice gets worse. The number of European
Arrest Warrant detentions in Britain has risen 43-fold since 2004, when there
were only 24 (Gilligan, A, 2010). It is little wonder that, whilst David Blunkett will
not admit he was wrong to sign up to the European Arrest Warrant, he admits
that he did not realise the scope of the European Arrest Warrant or the
problems it would cause. This was demonstrated when he said, “I was right,
as Home Secretary in the post-9/11 era, to agree to the European Arrest
Warrant, but I was insufficiently sensitive to how it might be used”(Gilligan, A,
2010) .
e) ABOLITION OF DOUBLE CRIMINALITY
The European Arrest Warrant is extremely broad in scope and allows for
surrender of European Citizens in up to 32 offences, thus increasing its
chances of being used. There is often no need for a court hearing when a
European Arrest Warrant is issued for a British citizen. All that is required is that
a magistrate must tick one of 32 crimes that have been committed and
indicate at what time, and with what degree of participation, the crime took
place. After this, a British citizen may be extradited, even if one of the 32
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Written Evidence submitted by The Freedom Association (EXT 2)
crimes against the checklist is not actually a crime in the UK. Some of these
offences cover hate crimes, which are not crimes in the UK. One particular
area of concern on the list of 32 offences is racism and xenophobia. We
believe that making racism and xenophobia an offence has encouraged
governments across the EU to shut down freedom of speech, which also
means freedom to offend. It plays into the hands of those who will use
political correctness to stifle freedom of speech. Also, terms such as racism
and xenophobia are purely subjective. For example, some people may see
the term “white trash” as xenophobic, whilst others would dispute this. It will
also mean that people will be extradited for careless remarks said in the heat
of an argument. Surely, situations like this should not even reach court, let
alone extradition. This highlights a stunning lack of common sense when it
comes to the framework of the European Arrest Warrant. As a consequence
of all this, the European Arrest Warrant could create a situation in which
Portugal could have a British citizen arrested for making a racist remark,
extradited and then taken to a jail in Portugal, awaiting trial for an offence
that Britain itself does not recognise. It is totally wrong that, at the moment,
the British Government could hand over citizens for behaviour which it does
not see as a crime.
As the European Arrest Warrant abolishes double criminality in these 32 areas,
this means that UK citizens may be extradited for offences which are not
offences in the UK. On top of this, a territoriality clause makes it possible to
extradite an individual to another state for committing an offence that is not
a crime in the country where that activity took place. This effectively means
that, according to William Rees-Mogg, writing in the Sunday Times at the time,
“The European Arrest Warrant will mean that any British citizen may be
extradited on a warrant from a European Judge, without any right to test the
evidence in a British court, on a charge that may not be a crime in the
UK”(Broadbridge, S, 2009). So, for example, UK citizens could be surrendered
to Germany for the crime of holocaust denial, which is not a crime in the UK.
Holocaust denial is not banned in the UK because, whilst the UK believes
denying the Holocaust is completely wrong, it believes that banning it would
be a blow to freedom of speech, which means freedom to offend. Dr.
Toben, the Australian holocaust denier, discovered this recently on a visit to
London (Daily Telegraph, 2008). This highlights how, because of the European
Arrest Warrant, it has effectively become a crime in the UK. This is an
intolerable situation as it undermines national legislation that was bought
forward by UK governments which were elected by the UK electorate. Other
examples of divergence of criminal acts across Europe include the personal
use of marijuana, which is legal in the Netherlands. Euthanasia is legal in
Belgium. In Poland, abortion is an offence. Finally, plane-spotters in Greece
could be accused of espionage, which might logically progress towards a
charge of terrorism.
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The European Arrest Warrant is not compatible with English law. This is
because, under the Extradition Act 1989, dual criminality was established,
“where the fugitive’s alleged conduct discloses an equivalent offence under
UK law which would be punishable in both countries with a prison sentence of
12 months or more” (Broadbridge, S, 2009). This act has not been repealed
and goes directly against the European Arrest Warrant provisions that abolish
double criminality in 32 areas, including for offences which are not offences in
the UK. We believe, therefore, that the European Arrest Warrant either needs
to change so that double criminality requirements and the requirement for
prima facie evidence are re-introduced or that the UK needs to remove itself
from the European Arrest Warrant system and rely instead on the Extradition
Act of 1989, which seems to have done a far better job in protecting British
citizens.
Nick Hawkins, the Shadow Home Office minister at the time, suggested a way
that this problem might be dealt with. In 2003, at the committee stage of the
extradition bill, he said “it would be even better if all cases could be looked at
by a UK court before a British citizen is extradited for something that is not a
crime in UK law” (Hawkins, N, 2003). We hope the review will look into whether
or not it is possible to include a clause along these lines. If these reforms of the
European Arrest Warrant are not allowed, serious consideration should be
given to the UK pulling out of the European Arrest Warrant altogether. The
review must not make the mistake of the previous Labour Government, which
ignored Nick Hawkins’s call not to dismiss the issue (Hawkins, N, 2003).
There is also clear evidence that Bob Ainsworth (a Home Office Minister at the
time), who introduced the legislation to Parliament on behalf of the
Government, misled Parliament. This is because he said, in response to a
question by Gwyneth Dunwoody, a Labour backbencher at the time, that,
“there was a test for double criminality under the European Arrest Warrant
and that if the crime alleged is not a crime in the United Kingdom, there is no
dual criminality, and the request cannot proceed” (Broadbridge, S, 2009). As
the list of 32 offences highlights, as well as the example of holocaust denial,
plainly this is not the case. With this in mind, we should like the Extradition
Review Panel to look into whether this was an example of the intentional
misleading of Parliament, and whether, because of this, action should be
taken against the then Minister at the time, or that a re-vote should take
place on the grounds that the Parliament at the time was not given all the
available evidence about the European Arrest Warrant.
A legal expert, Cramer, has summarised the removal of double criminality in
these 32 areas.
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“The system gives primacy to the interest of prosecution and punishment
in a requesting state over a conscious choice of lenience in a requested
state. Accordingly, a Member State’s political decision against
criminalisation is mistrusted . . . there are clear signs that the ‘high level of
confidence’ on which the decision is formally based cannot be
reconfirmed by references to reality” (Currie, S & Dougan, M, 2009).
Cramer’s point here highlights the way in which the concept of innocence
until proved guilty, which is central to common law, has been undermined.
This undermines habeas corpus, as habeas corpus means that people can be
let out of detention early, being assumed innocent. This stops prosecutors
trying to build up a case against a person and treating them like they are
guilty until proved innocent. Whilst this may not work in the interests of
prosecutors, it does work in the interests of justice. Cramer, however, proves
that the law is now working in the interests of prosecutors, due to the abolition
of double criminality. This undermines certain protections which were put in
English legal tradition to stop this, for example, with habeas corpus.
f) LOWERING NATIONAL LEGAL STANDARDS
The Freedom Association expressed concerns about lowering national legal
standards in 2006 saying, “we would like to be reassured that in any
consideration of the criminal law competences of the EU, members of the
Sub-Committee appreciate that there is in fact no equivalence between
systems of criminal justice based on Code Napoleon and those appertaining
in what might be broadly described as the Anglosphere” (The Freedom
Association, 2006, p.71). The Freedom Association believes that, in the words
of Edward Garnier, the Solicitor General, “There is a move towards the
homogenisation of systems of justice in the EU”. Garnier then went on to say,
“the Government cannot get away with chipping away at our historic
freedoms” (Garnier, E, 2003). Edward Garnier’s words showed the dangers of
the European Arrest Warrant, which lowered national legal standards and put
our historic freedoms at risk. Nick Hawkins highlighted the troubles that the
issuing of the European Arrest Warrant for a British citizen has caused. He said,
“the form of the European Arrest Warrant, a six page example was sent to
me, does not fit with the traditions of UK law” (Hawkins, N, 2003). We believe
that, since Nick Hawkins made this assertion in 2003, regrettably not much has
changed. Therefore this is a key area that the review should examine.
On top of this, the UK for many years has made extradition treaties with other
countries in the EU based on high legal morals. The European Arrest Warrant,
which seeks to harmonise the justice systems across the EU, consequentially
lowers the UK’s standards. For example, it is known that many of the EU
countries that recently joined, like Latvia and Bulgaria, which are members of
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the EU, have terrible human rights records as recorded in reports by Amnesty
International. In fact, when the European Arrest Warrant was enacted,
Amnesty International reported “instances of alleged police brutality and
breaches of fundamental rights in 8 of the 15 current EU Member States and 5
of the 10 countries about to join” (Alegre, S, 2004). In 2009, five years after the
European Arrest Warrant came into being, according to Amnesty
International’s 2009 report, “Europe too often lacked political leadership to
ensure the protection of [its] human rights with many states also lacking the
political will to live up to their obligations” (Amnesty International, 2009). If
European states, particularly countries like Greece, have such terrible records
of treating their own citizens correctly, one has to wonder how they will treat
foreign citizens who are extradited through the European Arrest Warrant.
Lord Lamont, Vice President of the Bruges Group, was a vociferous critic of
the European Arrest Warrant, both within and outside Parliament. He was
correct to say that:
“People on trial in a foreign country are often treated unfairly. Many
southern European Countries such as Spain and Greece provide little or
no legal aid, and if they do, they only offer inexperienced lawyers. In
some countries bail is frequently refused to foreigners for fear they will
abscond. In fact, there are several hundred British citizens on remand in
Europe’s prisons many of whom would have been released on bail if they
were national’s of the country holding them. This discriminatory
imprisonment before trial results in punishment before guilt is proven and
handicaps the victim in the collection of evidence for his defence. In
addition, translation facilities for foreigners are not always available,
making judicial proceeding incomprehensible” (Lamont, N, 2003).
The worries Lord Lamont had about the European Arrest Warrant have been
proved correct by the cases of Gary Mann’s extradition to Portugal and
Andrew Symeou’s to Greece.
Some EU member states also have no tradition of an independent judiciary,
meaning that judicial decisions are often made on the whims of politicians,
rather than looking neutrally at the evidence—yet, due to the system, British
citizens can easily be extradited to these places and be locked up whilst
awaiting trial for a long time in abominable conditions, with hardly any right to
a defence. As the Ministry of Justice has no veto in the process, there is hardly
anything a nation state in the EU can do to stop this unsatisfactory situation
from emerging. This is acknowledged by the House of Commons library
briefing note on the subject, which says that, “it will also be a very different
system from the current system since there will be a minimal role for ministers”
(Broadbridge, S, 2009). Sovereignty and rights are also lost because foreign
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prosecutors do not have to present evidence to the British courts; they can
just demand the person be "surrendered”. In this there is a presumption that a
person is guilty until proven innocent as is the norm in continental jurisdictions.
It is another instance in which, in the name of counter-terrorism, entire
populations are treated like potential criminals.
The whole process of issuing a warrant, being arrested by the UK police, a
national court accepting the request of another member state, the chance
of a right of appeal to a district judge before being extradited to another
member state will happen within 90 days (Broadbridge, S, 2009). For a
complex issue this seems extremely fast. We urge the review to look at this
time frame, compare it to other extradition treaties across the world, and see
if it can be extended.
Even if you do not believe that the European Arrest Warrant has lowered
British legal standards, it is true to say that it is very hard to see a picture where
all the nation states of the European Union could agree on a single judicial
interpretation. The late Hugo Young pointed this out, using the category of
fairness. He said, “for example in Belgium a suspected paedophile is still
being held on remand after more than five years”. In Britain, a suspected
terrorist can be held without trial for six months and then another six and
another. A German might object to that.” (Young, H, 2002). With all this to
consider, it was hard to envisage, at the time when the European Arrest
Warrant came into being, that there would be common standards on which
all EU members could agree. This has proved to be the case. This is
dangerous, as often, when agreements between many nation states are not
agreed upon, to make the system work, the lowest standards are
implemented, thus endangering individual freedom. We believe this has
happened when it comes to the European Arrest Warrant. It is true to say that
Hugo’s Young’s prediction that “the European Arrest Warrant, far from being
an instrument of justice, will soon be notorious as an agent of multi-national
iniquities” (Young, H, 2002) has been proved correct.
g) COMPARATIVE STUDIES OF LEGAL SYSTEMS
Despite these concerns that, due to the incorporation of other member
states’ legal systems, the European Arrest Warrant lowers legal standards, this
issue has not been looked at in great detail. This has meant that the
Government knows little about the legal systems to which the UK would be
subject. This is despite great concerns about the effect they would have on
cherished British values like habeas corpus, innocence until proved guilty, the
right to a fair trial according to those traditions, and trial by jury. Torquil DickErikson researched the issue and was present at a seminar held in San
Sebastien, Spain in April 1997, where the corpus juris project for a single EU
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criminal code was unveiled by the European Commission (Erikson, T, 2007).
The meeting was the first step on the way to the European Arrest Warrant.
Dick-Erikson asked if any of the assembled, or any EU institutions, had done
any studies comparing the English common law system with other continental
systems. He found out that there had been no attempt whatsoever to carry
out comparative studies between the British system and the continental
system. Such a study might conceivably have demonstrated that, in terms of
protecting freedom of the individual and ensuring the conviction of criminals,
English common law is actually superior and that no equivalence could be
made between the two systems.
Since the European Arrest Warrant became UK law in 2003, the Government
has made no attempt to compare the differing legal systems. Apparently,
when asked, the Labour government said it was carrying out a study on the
matter. However, the results of this study have never been published. We
believe the extradition review should ask the Coalition Government to reveal
the fruits of the research done here. If no research has been done, they
should ask for such research to be carried out. This would go some way into
looking at how the European Arrest Warrant has undermined the English
judicial system. It may also encourage the British Government to ask for the
European Arrest Warrant to incorporate English Common Law. If the EU is not
amenable to this suggestion, pulling out of the European Arrest Warrant may
be the only way to ensure that high legal standards are maintained in
England and Wales.
h) CASE STUDIES
It is important to look at case law when studying the European Arrest Warrant.
A famous case of where, due to the European Arrest Warrant, there was a
terrible miscarriage of justice was the case of Andrew Symeou, a prisoner in
Greece awaiting trial for murder. Thanks to the European Arrest Warrant,
Andrew Symeou’s life change irrevocably for the worse. Andrew Symeou
was accused of the very serious crime of murder and if he is found guilty he
could spend his life, or a substantial chunk of his life, in prison. This is despite all
the evidence that organisations like Fair Trials International have gleaned,
pointing to an innocent man having his liberties unjustly taken away and his
life destroyed. This is all happening whilst the UK authorities have to look on
and obey their
European Union masters. He was accused of the crime even though many of
the witnesses who implicated him were, according to Fair Trials International,
tortured to give confessions which they promptly renounced on their return to
the UK, as well as giving identical statements. The situation worsens, given
that the evidence from the CCTV cameras at the nightclub proving that he
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was not there has mysteriously gone missing and therefore cannot be used in
his defence. Greek police officers also seem to have amazing powers. In
their reports, they have taken witness statements from two places at once.
Clearly the evidence was fabricated, but, despite this, Andrew Symeou was
extradited (Fair Trials International, 2010).
Mr. Symeou, when extradited on 26th July 2008 after Greece issued an arrest
warrant to the UK government on 18th July 2008, was only 20. Since then, the
life of a man, born in Enfield, has changed irrevocably. We complain rightly
about the last Labour Government introducing 42 days detention without trial,
yet this looks mild when you consider that Mr. Symeou has been held without
trial in prison for ten months. The rest of the time he has been on bail in
Greece, without being able to leave the country. There were hopes that he
would face trial in July 2010 but this proved to be illusory. A trial date has
finally been set for March 2011. His treatment has been no different to living in
a police state. This is because he was held in the notorious Korydallos prison
for 10 months where in the past anti-government protesters have been held.
Many of the people who have escaped this prison alive have spoken about
being tortured and therefore it is no surprise that Amnesty International has
called the prison the worst in Europe (Fair Trials International, 2010). All this
shows that the idea of innocence until proved guilty, and not being held
indefinitely, is not part of the EU handbook. The UK can only watch on from
the sidelines whilst this is happening, as the European Arrest Warrant removes
the national judiciary from the process. This is because the national judiciary's
role in the process is just to rubber stamp the extradition of a UK citizen, even if
it has grave concerns about the case and about the treatment the citizen will
receive. The European Arrest Warrant has allowed this to happen because, in
the legislation, there was hardly a section about the risks or concerns of
miscarriages of justice and what would be done if, for example, someone
were wrongly imprisoned. The European Arrest Warrant, as it is currently
designed, has both led to miscarriages of justice and then done nothing to
resolve the miscarriage of justice once it has taken place.
Another case highlighting the deficiencies of the European Arrest Warrant
system is that of Garry Mann. Garry Mann has recently returned to Portugal to
serve a sentence for affray, which had been suspended on the basis that he
would not return to Portugal. The European Arrest Warrant is made to work in
mysterious and Machiavellian ways, it seems. Despite describing Garry's
extradition as an "embarrassment”, the English courts threw in the towel and
said they were powerless to stop it (BBC, 2010). Once again, the altar of evercloser union was put above both national sovereignty and justice.
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Written Evidence submitted by The Freedom Association (EXT 2)
i) MUTUAL TRUST AND RECOGNITION
For the system to work, it requires mutual trust and mutual recognition across
all member states. However, due to the failures of the system as described
above and the vastly different legal systems and traditions across member
states, there was always a lack of mutual recognition and trust. Therefore,
evidence of misuse has led to distrust between negotiating member states,
rendering the European Arrest Warrant virtually unworkable. For example, Fair
Trials International points to the fact that there are vastly unacceptable
differences in rights given to a defendant across the EU (Heard, C & Mansell,
D, 2010). The Bill itself says, “if mutual trust is undermined it can lead to the
suspension of the EAW only in the event of a serious and persistent breach by
one of the Member States of the principles set out in Article 6(1) of the Treaty
on European Union”
(European Council of Ministers, 2002). The comments of the Council of Bar
and Law Societies of Europe have summarised the situation well, saying, “The
difficulties in the implementation of the [EAW] have shown that mutual
recognition will not work if it is not based on mutual trust, and mutual trust
cannot be taken for granted; it must build on common fundamental values”
(Coulter, C, 2010). It is The Freedom Association’s belief that every nation has
a distinct set of values that cannot be harmonised and therefore it is
extremely hard to build mutual trust between different nation states.
In the case of Andrew Symeou, for example, there have been serious
breaches. With this in mind, we believe the Extradition Review should ask the
government to push for the suspension of the European Arrest Warrant due to
a lack of mutual trust (European Council of Ministers, 2002). Although there
are attempts, through the EU’s roadmap in 2009, to strengthen procedural
rights of suspected or accused persons in criminal cases, this does not do
enough. There are still many EU member states which fail to provide
fundamental rights to defendants. If it were not for the European Arrest
Warrant, there would be much less of a chance of British citizens being
exposed to these failings in other EU countries. To summarise, it is another
example of the EU putting ever-closer union to create a United States of
Europe via harmonisation, above individual liberty.
j) A SUGGESTION
We should like to make a suggestion to the extradition review in order to solve
the problems caused by the European Arrest Warrant. Gerard Batten MEP, a
fierce opponent of the EAW, offers a distinctively British suggestion:
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Written Evidence submitted by The Freedom Association (EXT 2)
“If you want higher standards in European criminal proceedings, then adopt
Habeas Corpus, trial by jury and the main provisions of the Magna Carta and
the Bill of Rights 1689 as the common European standard” (Batten, G, 2010).
The Government should push for these standards, and if it believes that this is
not possible, then it should extricate itself from the mess that is the European
Arrest Warrant.
Graham Watson, when explaining his support for the European Arrest Warrant
has said:
“The EAW has vastly enhanced the rule of law on our continent… those
who oppose its use are those who effectively oppose the rule of law …
and the protection that *it+ gives our citizens” (Watson, G, 2010).
However, many critics contend that it is the rule of law, as it has been known,
loved and fought for, in one form or another, which can find itself the victim
under the EAW. The only way we can go back to the rule of law that worked
is through reinstating English justice.
CHAPTER 3 – THE EUROPEAN INVESTIGATION ORDER
a) EUROPEAN INVESTIGATION ORDER
Unfortunately, the European Investigation Order (EIO) has made the chances
of reinstating British justice much less likely. The European Investigation Order
came into being on July 27th 2010 after Theresa May, the Home Secretary,
made a statement to the House of Commons telling Parliament that the
Government had signed up to the Order (May, T, 2010). There was no vote
on the matter. The European Scrutiny Committee, led by William Cash MP,
complained about having insufficient time to debate an issue of such
constitutional importance (Cash, B, 2010). Additionally, Keith Vaz MP, the
Chairman of the Home Affairs Select Committee, believed that, before
signing up to the European Investigation Order, the Home Affairs Select
Committee should have had a chance to scrutinise it, as a result of proposed
changes to both Britain’s police and judiciary (Vaz, K, 2010). It is our belief
that, considering that the European Investigation Order is a significant issue,
leading to vast changes in the UK’s criminal justice system, Parliament should
have been given time to scrutinise and vote on the matter. Therefore, we are
calling for a retrospective vote on the matter, so that Parliament may be
given a proper voice. We also feel that the referendum lock, which is
triggered when a significant transfer of power takes place between the UK
and the EU, should have been triggered. If this had happened, the British
people would have been able to express their views on an issue of
constitutional importance.
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b) WORKING IN PARTNERSHIP WITH THE EUROPEAN ARREST WARRANT
The European Investigation Order will work in partnership with the European
Arrest Warrant. The fear is that the European Investigation Order, which
covers the gathering of evidence across the EU, will lead to British citizens, on
the orders of other EU member states’ police, being investigated for minor
crimes. To do this, British individuals could be faced with lengthy surveillance,
on the orders of foreign police, even for minor crimes or where no crime has
been committed. We are surprised that the Government did not learn the
lessons from the European Arrest Warrant when it decided to opt into the
European Investigation Order, which led to many people being extradited for
extremely minor crimes. This is clearly a waste of time and a breach of
individual privacy. It is also very detrimental to national sovereignty that British
police, because of the Government opting in to the European Investigation
Order, are powerless to act to protect British citizens. In the instance of both
the EAW and the EIO, prosecutors in other countries have been given greater
powers over British subjects than have ever been given to our own police
forces. Not the least of our concerns is that these powers are entirely
arbitrary.
c) EUROPEAN INVESTIGATION ORDER DOES NOT TACKLE TERRORISM
Like the European Arrest Warrant, the European Investigation Order aims to
harmonise criminal justice across the EU, in this case investigation techniques
to remove differences between member states. The EU believes this will help
cut crime as well as tackle the threat of international terrorism. The UK
Government, when signing up to the European Investigation Order, also
expressed these reasons for its support. However we believe that the
European Investigation Order will have the opposite effect. As the
experience of the European Arrest Warrant has shown, there is not a strong
concept of innocence until proved guilty in the legal systems of other
member states. Often a British individual could be spied on, because a
foreign prosecutor has minor suspicions, rather than concrete evidence.
British police will then be forced to follow this up, once an investigation order
is issued by a foreign prosecutor to the UK, even if they feel the person who is
being investigated has little to do with terrorism and that therefore the
investigation is a breach of his or her human rights. All the time taken to spy
on people like this, which will happen as there is no European Prosecutor’s
test, is wasting valuable time, which could be better spent on watching
terrorists, based on concrete evidence.
d) HUMAN RIGHTS RECORDS OF OTHER COUNTRIES
There are obvious problems when it comes to other EU member states that
are signed up to the European Investigation Order. For example, would the
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UK really want to follow Bulgaria’s brutal interrogation techniques, where
there is a record of torture used? With this in mind, would the UK want to
accept an investigation order issued by the Bulgarian police, where finding
evidence on someone, rather than seeing them as innocent until proved
guilty, is the order of the day? Considering that Amnesty International, in its
report in 2005, had concerns about human rights in five of the ten countries
which subsequently joined the EU in that year, this is not a baseless concern.
e) POWERLESSNESS OF THE UK GOVERNMENT
Like the European Arrest Warrant, both the Ministry of Justice and the judiciary
as a whole will not be able to intervene in any cases if they feel the
investigation techniques are detrimental to individual liberty. This is because
the European Investigation Order gives prosecuting authorities in any EU
member state the power to order British police to collect and hand over
evidence, interrogate suspects or launch surveillance operations, regardless
of UK judiciary objections. These requests may be trivial but they will be
forced to investigate. For example, British police are now forced to
investigate criminal defamation, as this is a crime in Portugal, even though this
is not recognised by English law.
f) WHAT THE UK GOVERNMENT SHOULD DO
We believe, therefore, that the UK government should use the negotiation
period taken in the drafting of this Bill to argue for human rights safeguards, as
well as a prosecutor’s test to stop people being investigated for minor crimes.
We also believe that they should argue for national Government, with the
Ministry of Justice being given more say, when both the European Arrest
Warrant and a European Investigation Order are submitted. This would make
it more likely that people would only be extradited and investigated if it was in
the national interest and if they were suspected of committing a major crime.
However, it must be said that we place little hope on the UK’s ability to be
able to implement in the EU what it wants negotiated. For example, the UK
has always argued for reform of the Common Agricultural Policy in the EU, yet
reform of the Common Agricultural Policy at the moment does not seem a
possibility. When the UK signed up to the European Investigation Order,
believing it could reform the framework of the Order, it ignored previous
evidence. Considering this, we believe this threat could have been mitigated
had proper Parliamentary scrutiny of the European Investigation Order taken
place. This could have been achieved by giving both the Home Affairs Select
Committee and the European Scrutiny Committee time to scrutinise the issue,
to make recommended changes and to advise the Government on whether
or not it should have opted in. Additionally, Parliamentary time in both the
House of Commons and the House of Lords should have been given over,
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and a vote should have taken place on the matter. Had this been done, the
Government might have realised that it would have been best to opt out of
the European Investigation Order, due to the risks it poses to the UK legal
system, through its ignorance of cherished values such as habeas corpus,
innocence until proven guilty and the right to a fair trial following those
traditional safeguards.
g) SPECIFIC CONCERNS
The legislation also causes some very specific concerns. In the Coalition
agreement, one of the main commitments made was to protect civil liberties,
which the parties involved believed had been undermined by the previous
Labour Government. One area to which the Coalition Government has
expressed opposition is the DNA national database, believing that it
contained many innocent people’s data. The Coalition Government only
wanted the DNA of people who had definitively committed serious crimes to
be held by the police and the judiciary. However, the European Investigation
Order could undermine this commitment. This is because the European
Investigation Order will see UK judges lose the power to block DNA requests.
Effectively, other EU member states could create a situation where on a
foreign prosecutor’s orders, the DNA of many innocent British citizens could be
held.
With all this in mind we believe that Jago Russell, the Director of Fair Trials
International, was correct to say that, “Huge amounts of police time could be
wasted dealing with unreasonable demands for evidence issued by
prosecutors across the EU. The cost to our privacy will be enormous. Police
Officers from Portugal to Poland will have free rein to demand recordings of
private conversations, copies of bank statements and our DNA” (Prince, R,
2010). Jago Russell’s remarks highlight that the UK police job - already doing
a hard enough job—will be stretched even further as a result of the European
Investigation Order, for no benefit to the public whatsoever.
CHAPTER 4—CONCLUSION
In our opinion, the European Arrest Warrant has caused more problems than it
has solved, due to issues of compatibility with Human Rights, the Rule of Law,
traditional UK common law safeguards, and European Union member states’
sovereign autonomy. The European Arrest Warrant has allowed British citizens
to be extradited and held in prison for a long time without trial, unfairly and
often when they are innocent. In the past, this was not allowed to happen
because the UK Justice Minister would have vetoed the extradition request,
not only on the grounds of shaky evidence, but also because the nation's
paramount job is to protect its citizens. This is what happened in the past,
when we were not signed up to the European Arrest Warrant; the vast
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majority of British people would probably like to go back to these happier
days. One of the ways a nation may protect individual citizens is through
protecting them from arbitrary arrest. If we still wish to be a nation in which
‘innocence until proved guilty’ means something, we need to pull out of the
European Arrest Warrant. At the moment, the European Arrest Warrant has
trampled over centuries of old tradition in Britain and led to a situation where
a citizen is deemed guilty as soon as the judicial system is interested in him or
her.
We hope the Government listens to one of its ministers, Oliver Letwin MP, who,
when he was Shadow Home Affairs Secretary, said that, “The European Arrest
Warrant will allow British citizens to be extradited for crimes, some of them
vague and undefined, that are not crimes in the UK. This is a gross
infringement of our civil liberties and would lead to our citizens facing trial in
other countries, some of whose legal systems operate on the presumption of
Guilt” (Marsh, C, 2005).
We, of course, believe the Government should first see if other EU member
states are willing to reform the European Arrest Warrant. However, we expect
this to achieve little, as in the past, when this has been mooted the European
Commission has quashed it due to fears that reform would lead to the
unravelling of the whole European Arrest Warrant system. The worry, of
course, is that, as happened when the present Government signed up to the
European Investigation Order in July 2010, one cannot opt out of the
legislation once one has opted in. If this is the case, The Freedom Association
believes that this, amongst other issues with our EU membership, is so
important both to individual liberty and national sovereignty that a
referendum on our membership of the EU should take place.
19 January 2011
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http://www.brugesgroup.com/news.live?article=156&keyword=10 [Accessed 15/12/2010]
Marsh, J, 2010. The European Arrest Warrant: Briefing prepared by James Marsh. Source:
http://www.euromove.org.uk/fileadmin/files_euromove/downloads/EAW.pdf
[Accessed 18/12/2010]
May, T, 2010. European Investigation Order. Source:
http://www.theyworkforyou.com/debates/?id=2010-07-27d.881.0 [Accessed 17/12/2010
Pop, V, 2010. European Arrest Warrant still Delivering Injustice. Source:
http://euobserver.com/?aid=30527 [Accessed 14/12/2010]
Telegraph, 2008. Editorial: Dr Fredrick Toben’s Arrest Should Alarm us all. Source:
http://www.telegraph.co.uk/comment/telegraph-view/3562585/Dr-Fredrick-Tobens-arrestshould-alarm-us-all.html [Accessed 15/12/2010]
The Freedom Association, 2006. Written Evidence to the House of Lords European Union
Committee. Source:
http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/227/227.pdf
Vaz, K, 2010. European Investigation Order. Source:
http://www.theyworkforyou.com/debates/?id=2010-07-27d.881.0 [Accessed 17/12/2010
Watson, G, 2010. Graham Watson MEP: In a speech to the European Parliament (EP).
Source: http://www.youtube.com/watch?v=9jdwHrj694Q [Accessed 4/4/2010]
43
Written Evidence submitted by The Freedom Association (EXT 2)
Young, H, 2002. Europe Justice Demands the Glory of British Liberty. Source:
http://www.guardian.co.uk/world/2002/feb/05/eu.politics [Accessed 15/12/2010]
Dick-Erikson, T, 2007. Memorandum by Torquil Dick-Erikson. Source:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62wed06.htm
[Accessed 15/12/201
44
Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
1. Unique & Distinctive Evidence
There are two factors, which will affect the balance of evidence received by
the JCHR:
1.1
There is a plethora of wellresourced organisations campaigning for
suspects’ human rights (Liberty, Fair Trials International etc), all with
media officers and access to high profile lawyers, compared to a
dearth of organisations campaigning for victims of crime. (Victim
Support counsels victims; it is not a ‘campaigning’ organisation.)
1.2 With respect, the Call for Evidence implies JCHR is interested only in the
human rights of suspects being extradited from the UK. There is no
reference to the import extradition of absconders for prosecution in the UK
or to the human rights of victims of crime, whether in the UK or overseas.
The JCHR’s 32nd Report identified the need, “to enhance the involvement
of victims in the criminal justice system to ensure victims' needs are at the
heart of what the criminal justice system does.” It is inconsistent of the
JCHR to note this specifically but implicitly exclude it later as a separate
evidential requirement in reviewing UK extradition policy.
Ergo there is a high probability that evidence will be biased heavily towards
issues surrounding export extradition of suspects with little balance for import
extradition of suspects or victims of crime in both import and export
extradition cases.
My knowledge and experience enables me to address this imbalance as far
as one person can do so. I am a victim of serious acquisitive crime in which
the suspect absconded. The police have struggled for 4 years already, still
without meeting Crown Prosecution Service (“CPS”) standards for a European
Arrest Warrant (“EAW”) for the suspect, whose location is known. My
knowledge arises from working with the police, CPS, my solicitor and my own
research.
In this respect, I bring a unique and distinctive perspective to the evidence.
2. Confidentiality
In view of ongoing police inquiries, my name and location cannot appear in
the public domain, even as victim. Publishing such details is likely to prejudice
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anonymous (EXT 3)
police inquiries and constitute a ‘tipping off’ offence. 8 Reference to the
author should be “name supplied: withheld for legal reasons” (or similar). If
invited to a hearing, appropriate precautions would have to be taken.
3. Scope of Evidence
With limited exceptions, my evidence relates to the following topics in the Call
for Evidence:
3.1
The European Convention on Human Rights (“ECHR”).
i) Articles 5, 6, 8 and 14, which are specified in the Call for Evidence.
ii) Article 1 of the First Protocol: the right of all natural and legal persons to
peaceful enjoyment of possessions – sometimes expressed as the right
not to be deprived permanently of their property, including money. It
applies inter alia to victims of acquisitive crime and requires the state to
ensure suspects are brought to justice so that, as far as is practicable,
victims are not deprived of their property.
3.2
The Extradition Act 2003 (“EA 2003”).
3.3
European Arrest Warrants (“EAWs”).
I make minimal comment on bilateral treaties (my experience is limited to
media reports) and the European Investigation Order proposal, which I have
insufficient time to address.
4. The Extradition Act 2003 (“EA 2003”)
4.1
I aver that the right time to ensure extradition treaties provide proper
protection against unjustifiable infringement of human rights is when
Government negotiates or amends treaties by mutual agreement. EA 2003
should not be used as a vehicle for changing international treaties
retrospectively or for laying down preconditions for new treaties. Treaties with
different states require different conditions. Moreover, s.21 of EA 2003 requires
the judge to take human rights into account in export extradition cases
anyway.
If human rights become an issue later (for example after regime change),
Government can suspend bilateral treaties pending clarification or, if
necessary, rescind them.
8 Under s.333 of The Proceeds of Crime Act 2002 (as amended)
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Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
4.2
Any proposal to hold trials and allow sentences to be served in UK in
export extradition cases is unaffordable, a completely unnecessary burden
on the taxpayer and impractical. It would be a ‘step to far’ for the UK public
to accept.
i) Prisons and (for illegal immigrants) detention centres are full to
capacity, despite ‘early release schemes’, alternative punishment
methods and the number released on bail or not detained. The prison
population in England and Wales alone is 85,000 and keeping a
prisoner in jail costs an average of £38,000 per year. 9
ii) Our Courts appear to be at capacity with a backlog of cases, even
before savings imposed by the Comprehensive Spending Review.
iii) There are inadequate resources already to track properly suspects
released on bail: asylum seekers and illegal immigrants regularly are not
detained and ‘disappear’ – currently 60,000 asylum seekers are lost
without trace. 10 It is unreasonable to expect the police and the Border
Agency also to monitor those who offend overseas and abscond to the
UK, whilst they await trial in the UK.
iv) The other state in an extradition treaty would expect equality so it
would require absconders from the UK to be tried in the destination
state too, thereby increasing dramatically the cost of prosecuting even
offences that had taken place in the UK, including the costs of
witnesses’ travelling expenses and police and CPS resources.
v) It would be an abuse of victims’ Human Rights if they and/or their
families (unless reimbursed as witnesses) had to incur overseas travelling
costs to see justice done.
vi) If persons offend overseas, they know or should know the potential
consequences of their actions, for example of drug smuggling or
possession. It is a fundamental principle that ignorance of the law is no
excuse. UK citizens cannot reasonably expect to go overseas, ignore
local laws and return home secure in the knowledge that they will not
be extradited from the UK for prosecution and sentence.
vii) Pursuant to (4.2)(vi), the UK has prisoner transfer agreements in place
with many states anyway, allowing offenders to serve all or part of their
sentence in the home state after conviction. This is more than sufficient
in most cases. However, where a prisoner transfer agreement exists,
9 Justice Secretary, Kenneth Clarke, 30 June 2010
10 http://www.bbc.co.uk/newsbeat/12160498
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anonymous (EXT 3)
enabling convicted offenders to serve their entire sentence in the
home state, it is an unnecessary waste of public money to extradite
them only to have them returned instantly to UK to serve their sentence.
viii)
In extreme cases, the Government has discretion to permit
offenders to serve their prison sentences here if convicted in another
state. 11 There are no grounds to offer this as a right: minsterial discretion
is sufficient.
It would be unworkable to recharge costs to the other state. The cost to
the public purse of debt collection alone would be substantial. States with
existing debt problems are unlikely to treat such debts preferentially.
Along with those states where human rights concerns exist, they are the
most likely to default.
The UK already is ‘destination of choice’ for illegal immigrants, asylum
seekers and EU gangs travelling abroad intending to commit crime. It
would be absurd for the UK also to became ‘destination of choice’ for
offenders worldwide, who made no contribution to UK society but know
that, if they abscond to UK, they would benefit from legal aid and illadvised support of human rights activists, with a strong probability of
asylum (at further cost to the taxpayer) if not convicted or on release. I
refer to (8.4)(ii) and (8.5) below.
I cannot comprehend why this concept even is on the agenda during a
financial crisis. It is distasteful to British taxpayers and victims of crime
throughout the world.
4.3 The starting point and essential element of Human Rights is that they are,
“Inherent, inalienable and universal” and cannot be taken away. As far as
is possible, The Human Rights Act 1998 (“HRA 1998”) requires legislation to
be interpreted and implemented in a way that is compliant with ECHR.
Moreover, higher Courts can make ‘declarations of incompatibility’ in
respect of primary legislation, triggering powers that allow Ministers to
make ‘remedial orders’ to amend legislation to bring it into line with ECHR
rights. Therefore, it is therefore unnecessary to amend EA 2003 or any other
UK laws solely to safeguard human rights. Where not explicit, respect for
human rights is implicit in all legislation, failing which legislation can be
amended without taking parliamentary time.
“Prima facie evidence, dual criminality and use of appropriate forums” are
not human rights issues per se. However, in order:
11 Foreign Secretary Margaret Beckett, 16 June 2006
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anonymous (EXT 3)
i) For the purpose of this inquiry, it is important that prima facie evidence
is properly defined, i.e. ‘at first look’ or ‘on its face’ an offence has been
committed. It is not the same (as many believe) as prima facie proof.
The Privy Council judgement in Hussien v Chang Fook Kam [1970],
quoted in R v Da Silva [2006] 12 states:
“Suspicion arises at or near the starting point of an investigation
of which the obtaining of prima facie proof is the end,” (Lord
Denning).
Ergo, prima facie evidence is closer to the end than suspicion but is not
“the end.”
Certainly in respect of EAWs, the CPS uses different evidential standards to
execute export EAWs than to apply for import EAWs. I return to this at (6)
below.
i) A dual criminality condition is impractical and would introduce serious,
undesirable anomalies. For example: 13
a. If a teacher in the UK had consensual sex with a pupil (under 16) and
fled (for example) to Austria, Canada, Denmark, Estonia, France,
Iceland, Italy and Spain, where the age of consent is under 16 (as
low as 13 in Spain), he could not be extradited to the UK for trial
because it would not constitute a criminal offence in those
countries.
b. Conversely, if a person (for example) in South Australia, Tasmania,
Ireland, and Malta and circa 20 US States (where the age of consent
is over 16) had consensual sex with a minor and fled to the UK, he
could not be extradited from UK for trial because it would not
represent a criminal offence in the UK.
We should not effectively impose our laws on other responsible
democratic states.
i) I am advised that, “appropriate forums” relates mainly to the UK/US
Extradition Treaty, which allows persons to be extradited to the US for
prosecution of offences committed in the UK. I return to this at (5.4)
below.
12 EWCA Crim 1654
13 Source: AVERT (International HIV and AIDS charity, based in the UK)
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Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
4.4
I have no evidence of automaticity existing in mutual recognition
arrangements, save in EAWs where suspects can ‘consent’ to extradition.
Whenever suspects do not ‘consent’, there should always be a judicial
process available to challenge extradition.
4.5
There is a case for ‘proportionality’ and ‘public interest’ tests in
extradition cases but it is debatable if these should be enshrined in law, CPS
guidelines or left to judicial discretion on the merits of individual cases. I return
to this under at (6.2) and (8) below.
5. Bilateral Extradition Treaties
I am not able to comment in detail but I believe the principles at (4) above
should apply.
5.1
The extent to which Human Rights need to be considered depends on
the Human Rights record of the other party to the treaty. I do not
believe preset criteria can be laid down. It is immaterial if, on the face
of it, bilateral treaties override any human rights concerns—there are
sufficient safeguards available once extradition proceedings
commence (ref. (4.1) and (4.3) above), including by challenges under
EA 2003, HRA 1998 and ECHR.
5.2
In respect of the remaining questions posed by the Committee under
this head, Human Rights considerations of the victims should be taken
into account in drawing up bilateral treaties too; there should be
adequate safeguard’s for victims; and the human rights record of the
other state should be considered in respect of both suspects and
victims.
In respect of suspects, Human Rights considerations, safeguards and
the other state’s record should be all taken into account during an
Extradition Hearing by means of ECHR, EA 2003 and/or HA 1998 as
appropriate, if not covered adequately in the treaty itself.
5.3
Without reviewing individual bilateral treaties and cases, I cannot
comment on whether they provide adequate protection against
unjustifiable infringement of Human Rights. However, the wording of
each treaty speaks for itself and there are sufficient safeguards
available through the Courts during the extradition process, as at (5.1)
and (5.2) above.
5.4
There appear to be Human Rights concerns arising from the practical
application of the UK’s bilateral extradition treaty with US, whereby, as
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Written Evidence submitted by an individual who wishes to remain
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in the case of Gary McKinnon, persons can be extradited to the US for
trial on suspicion of offences committed in UK. This is inconsistent even
with UK national policy, whereby offences are investigated and
prosecuted by the law enforcement agencies (normally police and
CPS) in the area where the offences occurred. There are no grounds to
vary this principle for international cases.
6. European Arrest Warrants
There is a distinct lack of clarity, consistency and uniformity in the CPS’s
interpretation of the requirements for export and import EAWs, which affects
Human Rights.
6.1 The ‘Provisional Skeleton Argument’ by the defence in the Assange case
(ref. (6.3)(i) below) shows adequate discretion exists already to consider if
the human rights of the accused will be respected and, if not, to bar
export extradition. Additionally:
i) One would hope the Human Rights record of a state is taken into
account when the state is first admitted to the EAW framework.
ii) The Courts should have discretion to consider the Human Rights of
victims too – both in respect of import and export extradition cases.
6.2 Normally, it is not for the UK to determine proportionality, i.e. what
constitutes a serious criminal offence in other states, effectively imposing its
standards on other EU countries.
However, owing to the cost to the taxpayer of executing export EAWs,
there are grounds to apply a ‘public interest’ test, which can include a
limited element of proportionality. In practice, this applies already to
import EAWs because the CPS uses the public interest test for prosecution
before the police can apply for an EAW. I return to this at (8) below.
6.3 In terms of implementing EAWs, there are clear distinctions and
inconsistencies between the ways in which the UK has implemented
export and import EAWs.
i) For export EAWs, s.2(3) of EA 2003 requires the requesting state to
confirm:
“(a) The person in respect of whom the Part 1 warrant is issued is
accused in the category 1 territory of the commission of an offence
specified in the warrant, and (b) the Part 1 warrant is issued with a view
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Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
to his arrest and extradition to the category 1 territory for the purpose of
being prosecuted….”
This requirement is not reflected, for example, in the case of Assange 14 —
who is said to be “wanted for questioning” by Swedish prosecutors. There
are other cases of persons being extradited from the UK without ultimately
being prosecuted.
ii) For import extradition, s.142 of EA 2003 states as a condition:
“That a domestic warrant has been issued in respect of the person and
there are reasonable grounds for believing—(a) that the person has
committed an extradition offence, or (b) that the person is unlawfully at
large after conviction of an extradition offence by a court in the United
Kingdom.”
In my case, there are reasonable grounds for believing that the person
committed extradition offences and many precedents of others
committing identical offences. The CPS thought that the evidence justified
the issue of a domestic warrant for the suspect but not an EAW. This is selfcontradictory. The CPS required a ‘trialready’ case for an EAW, despite
there being grounds for a domestic warrant.
In short, the CPS appears to implement export EAWs less strictly than is
required in law but more strictly than is required in law to facilitate import
EAWs. I am advised that this imbalance is reflected in the statistics. I return
to this at (6.5) and (6.6) below.
6.4 I aver that compatibility with ECHR should be taken into account at the
time a new state joins the EAW process. As at (4.1) above, there are
sufficient safeguards for suspects of export EAWs to have Human Rights
taken into account at an extradition hearing.
6.5 A serious concern arising from the practical application of the EAW
process is that the UK authorities’ interpretation of the law has the effect
of making the UK a more attractive place to commit crime, provided the
criminal absconds from the UK before arrest.
This is illustrated by comparing my case with identical offences by
suspects, who did not leave UK, and one in another state, where the
suspect did abscond. All the offences involve a limited company’s
cheque signatory using company money for personal benefit.
14 www.guardian.co.uk/media/2010/dec/17/julianassangeqanda
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Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
i) Louise Clarke, 15 a Financial Supervisor at British American Tobacco stole
£150,000 of its money for personal benefit. Police report to conviction
took 6 months.
ii) Between 4 February 2005 and 17 February 2006 Mrs Susanne Orton 16
stole £80,000 from Harold G Walker (solicitors), where she worked as a
conveyancing assistant. Her firm identified the offences in 2006 and she
was convicted within 18 months.
iii) Amanda Carrington 17 used her position as Company Secretary of a
limited company to steal £60,000. She was mandated to transfer money
for the company’s benefit but did so for personal benefit. She was
convicted within 14 months.
iv) Det. Sgt. Louise Ord 18 allegedly stole circa £30,000 as a charity’s
cheque signatory. She was arrested shortly before 7 May 2009 and
appeared at a London Magistrates Court on 8 February and 22 March
2010: she was referred to the Crown Court.
v) The offences in R v Foster [2008] 19 took place outside the EAW zone but
in other states, which are members of the Financial Action Task Force
(the world policy making body on money laundering) and in which
Court decisions can be used for guidance in UK Courts (and vice
versa). Foster was convicted within 14 months even though he fled from
the country where he committed the predicate offences.
Foster’s offences and the source of the limited company’s money
(bank borrowings for specified business purposes) are identical to the
suspect’s conduct in my case, which renders the evidence in my
case stronger than that in the UK precedents.
Pursuant to (6.3)(ii) above, these precedents show that there are more than
reasonable grounds for believing that the suspect in my case committed
extradition offences. The CPS thought it appropriate to issue a domestic
warrant in June 2007 after my initial police report in May 2006. In these
circumstances, for my case to take so much longer to resolve is
incomprehensible and inconsistent with the objectives of EAW arrangements.
15 Southampton Crown Court 30.05.07
16 Bournemouth Crown Court 27.05.08
17 Portsmouth Crown Court 08.03.10
18 policeoracle.com 7 May 2009 12 QCA08090
19 QCA08-090
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Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3)
The only discernable reason for the UK precedents taking less time than mine
to resolve is that the suspects stayed in UK. The process took under 18 months,
whereas mine has taken 4½ years (four since the suspect fled) without an
EAW being applied for, despite the prima facie evidence and that we have
known the suspect’s location for four years.
6.6 It is evident from (6.3) and (6.5) above (and elsewhere) that the evidential
standard for import and export extradition cases needs to be harmonised
and perhaps better defined.
The legislation per se has not caused the inconsistency. Surprisingly, a
Memorandum of Understanding between the CPS, the National Criminal
Intelligence Service [defunct] and Association of Chief Police Officers
caused it through its guidance to import EAWs. They were so reticent
about it that the Deputy District Crown Prosecutor could not find the
Memorandum after the original prosecutor left. After three months, I
traced it for her.
I aver that their interpretation does not reflect the wording and true intent
of EA 2003 (ref. (6.3)(ii) above) or the EAW process and respectfully
suggest it inappropriate that such a forum interprets the law other than as
Parliament intended without publishing it.
In the context of human rights, it is difficult to understand why the CPS
demands a ‘trialready case’ for import extradition, so the suspect cannot
be questioned on his return. It appears not to be in the best interests of the
victim or the suspect.
i) Articles 5 and 8 of ECHR recognise respectively the right to liberty and
respect for home and family life. I aver that these rights for suspects are
better upheld by an opportunity to put their side of the story to the
police in interview in the receiving state before trial. Currently, this
appears possible in export but not in import EAWs.
ii) Articles 5, 8 and Article 1 of the First Protocol recognise respectively the
right to security, respect for home and family life and peaceful
enjoyment of possessions. Clearly, these rights for victims are prejudiced
unnecessarily by the high evidential standard on import EAWs, which
does not apply to export warrants.
Clearly, the UK law enforcement agencies are very reluctant to use the EAW
facility for import extradition. This is of special concern to UK citizens,
especially when (in the reverse case) the agencies are so sanguine about
export extradition even of UK citizens to EU states and the US.
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anonymous (EXT 3)
It follows that there is an unacceptable imbalance between the ways human
rights are taken into account. In export extradition, UK’s implementation
innately favours the rights of victims in the receiving state but in import
extradition it inherently favours the rights of the suspect.
This cannot be the intention of the legislation, although it is a matter of
debate as to whether or not the legislation needs amending. I believe that it is
more a problem of lack of uniformity and consistency in the interpretation of
the law by the law enforcement agencies.
The literal meaning of s.142 of EA 2003 should suffice for both import and
export EAWs, i.e. “A domestic warrant has been issued … and there are
reasonable grounds for believing that the person has committed an
extradition offence [my emphasis].”
In other words, both import and export extradition EAWs should require some
evidence of an offence and, for fairness, suspects should be questioned on
return to the receiving state. Using Lord Denning’s scale of suspicion to prima
facie proof (ref. (4.3)(i) above), on a scale of 0 to 10 (0 being suspicion and 10
being proof), an EAW should be issued at level 5 or above.
7. European Investigation Order (“EIO”)
I state only that the general principles in this paper (especially victims’ rights)
should apply.
8. ‘Proportionality’ and ‘Public Interest’ Tests
8.1
A limited test of proportionality exists already in EAWs: the extradition
offence must be punishable with at least 12 months imprisonment.
Aside from this, I do not believe it is for the UK to effectively impose its
standards on other responsible, democratic states.
8.2
Proportionality per se cannot be defined by the nature of the offence
alone without due consideration of the punishment. Every case is
different. For example, Jacek Jaskloski is being sought on an EAW to
face trial for “theft” in Poland: 20
i) In 2000, he withdrew money from his bank taking him over the agreed
overdraft limit. He repaid it and in 2004 moved with his family to the UK
where he has lived since. On the face of it, he would not have
offended in the UK.
20 www.fairtrials.net/cases/spotlight/jacek_jaskloski
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ii) However, there are circumstances, in which overdrafts can be
obtained fraudulently and the money stolen: an offence in the UK
under The Theft Act 1968. Moreover, a criminal offence is not remedied
just because the offender returns the proceeds.
It follows that any proportionality test based on the nature of the offence
depends on the specifics of each case and must be a matter for an
extradition hearing.
8.3
Much of the justified criticism of export extradition (especially under
EAWs) relates to the cost of police, CPS and Court resources.
I believe it perfectly reasonable for the UK authorities to apply a ‘public
interest’ test in determining export extradition, just as in prosecuting offenders
in the UK. For example:
i) Does the alleged offender represent an ongoing public risk if he
remains in the UK?
ii) Would an alleged offence and offender pass the ‘public interest test’, if
they were being considered for prosecution for the same offence in the
UK?
iii) What contribution has the alleged offender made to UK society?
These factors would not be difficult to determine.
8.4
I illustrate (8.3) with two examples. One is an asylum case but the end
result is the same— extradition—so it is comparable when it comes to public
interest issues.
i) If (as it appears) Mr Jaskloski’s offence is minor and he has acted as a
responsible member of UK society for several years, it appears
disproportionate, not in the ‘public interest’ and a waste of resources to
go through the extradition process.
ii) Mohammed Ibrahim 21 was an asylum seeker. He ran over Amy Houston
(aged 12) outside her home and left her to die. At the time of the
accident, all his applications for asylum and citizenship had been
rejected. Just weeks before knocking down Amy in November 2003, he
was banned for nine months for driving while disqualified, without
insurance and without a licence. He was awaiting deportation when
21 www.timesonline.co.uk/tol/news/uk/crime/article6966402.ece
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he ran away with Amy trapped under the wheels of his car. Since
running over Amy, he has been convicted of possessing cannabis,
harassment and further driving offences and also has received a
caution for burglary and theft.
Nevertheless, Ibrahim was granted asylum recently and is not being
extradited.
8.5
The Ibrahim case also demonstrates the UK’s complete disregard for the
Human Rights of victims. In law, victims’ familes are considered victims
too. It appears that no regard was given to Amy’s father, Paul
Houston’s right to family life, which Ibrahim took away.
It makes a mockery of extradition law that a person, who has not committed
an offence in UK law, faces a costly and stressful extradition process, whereas
a serial criminal, who killed a child callously and brutally and never
contributed to UK society, remains in the UK – probably as a continuing drain
on the public purse. This is reflected in public opinion about the cases.
Most certainly, the results are not conducive to the public good.
9. Summary of Evidence in ‘Human Rights’ Context
Throughout this evidence I have shown that, whilst it may not be explicit in
law, the practical application of import extradition disregards the human
rights of UK victims, almost totally.
9.1
My experience and knowledge does not extend to addressing Article 3.
9.2
The right to liberty of suspects and security of victims respectively under
Article 5 should be improved by remedying the imbalance of evidential
standards for import and export extradition by the means described
and evidenced at (6) above.
9.3
The right to a fair trial for suspects in export extradition cases under
Article 6 should be improved by the means described and evidenced
at (6) above. Conversely, the CPS requirement for a ‘trial ready’ case
for import extradition tips the balance in the suspects’ favour more than
is required by Article 6 and is inherently unfair to victims.
9.4
The right to respect for home and the family life of suspects and victims
under Article 8 should be improved by remedying the imbalance of
evidential standards for import and export extradition by the means
described and evidenced at (6) above.
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9.5
Based on the legal meaning of ‘discrimination’ (i.e. race, disability,
sexual orientation, etc), my experience and knowledge does not
extend to addressing Article 14. However, using the dictionary
definition, “unjust distinction”, I have shown irrefutably that the practical
application of EA 2003 in import extradition cases discrimnates heavily
in favour of suspects and against the interests of victims.
9.6
There is no recognition of victims’ rights under Article 1 of The First
Protocol (not to be deprived permanently of their property) in the
practcal application of import extradition. In cases like mine, the public
purse is a victim too. HMRC is investigating the suspect also – for alleged
VAT fraud and tax evasion. Hence, the excessive evidential standard
acts directly even against the interests of the public purse in fiscal fraud
cases.
In November 2006, the JCHR identified the need, “to enhance the
involvement of victims in the criminal justice system to ensure victims' needs
are at the heart of what the criminal justice system does” (ref. (1.2) above).
There is no evidence that either the law itself or the practical application of
the law has improved in this respect in the last four years.
The JCHR’s 32nd Report referred also to the rights of victims to participate in
investigations to the extent necessary to protect their interests. Not only was I
allowed to participate but also I was encouraged proactively to do so, to the
extent of collating evidence, researching issues for the police and even
locating the suspect after he fled.
Whilst participation is desirable, it is inequitable and unfair that victims are
asked to assist the police to this extent (which affected seriously my home
and family life for 4 years and incurred legal costs) only to find that the
practical application of import EAWs is far stricter than EA 2003 and export
extradition requires. My solicitor agrees with this conclusion in my case.
In summary, I aver that, for Human Rights to be properly reflected in UK
extradition policy, there is an urgent need to remedy the imbalance between
the rights of suspects and those of victims in export and import extradition
cases. The UK must be careful also not to appear to engage in ‘legal
colonialism’ by imposing its standards worldwide. Moreover, export extradition
should take into account ‘public interest’, costs and if it is conducive to the
public good that a suspect remains in UK.
21 January 2011
58
Additional Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3A)
Additional Written Evidence submitted by an individual who wishes
to remain anonymous (EXT 3A)
This addendum provides further evidence to support my written submission to
the JCHR dated 21 January 2011. The same conditions relating to
confidentiality of personal data apply 22 . The section numbers do not
correspond to the original paper and for brevity I use pre-existing acronyms.
A1. Balance of Evidence
The list of witnesses called to the hearing on 1 February 2011 confirms the likely
imbalance of evidence between suspects and victims, which I predicted.
Even the individual witnesses with experience of the extradition process are all
‘suspects’ subject to export extradition requests.
One stated objective of the JCHR inquiry is to contribute to the Home Office
review of the UK’s extradition treaties and EA2003, (“the Review”). However,
the announcement of the Review by the Home Secretary is headlined:
“Sir Scott Baker … to lead a review into the UK’s legal arrangements for
bringing criminals to justice who flee overseas.”
Unlike the JCHR press release, this implies that the Review Panel will give equal
prominence to the import extradition of criminals who offend in the UK and
flee overseas. Ergo, I suggest respectfully that the JCHR should do so too in
order to contribute fully to the Review.
A2. Operation of European Arrest Warrants
Throughout my paper, I demonstrated lack of clarity, consistency and
uniformity between the interpretations of the requirements for export EAWs
and those for import EAWs.
In particular, the CPS implements the law less strictly than required for export
EAWs but far more strictly than required to facilitate import EAWs. Also, local
UK law enforcement agencies seem very reluctant to use EAWs for import
extradition and their interpretation of the law has the effect of making the UK
a more attractive place to commit crime.
Fair Trials International (“FTI”) provided the JCHR with statistics 23 that confirm
my conclusions. The principle points relating to the imbalance between
import and export EAWs, and UK’s use of EAWs generally, are that the UK
consistently:
22
23
Under s.333 of The Proceeds of Crime Act 2002
http://www.fairtrials.net/images/uploads/Appendix%201%20-%20EAW%20statistics.pdf
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Additional Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3A)
A2.1 Surrenders far more people under export EAWs than it receives under
import EAWs. In 2009/10, the UK surrendered 699 people – 985% of the
71 returned to UK.
Moreover, the number of people extradited from UK has increased by
an average of 64% per annum since 2006/07, whilst the number
surrendered to the UK declined by 18½% per annum since 2007/8,
(source: FTI Fig 3).
A2.2 Receives significantly more export EAWs than it issues import EAWs. In
2009/10, the UK received 4,100 requests—2,020% of the 203 it issued, (FTI
Fig 4).
A2.3 Issues notably fewer EAWs from comparable states, Germany, Spain
and France, than it receives from those countries, (FTI Figs 5 & 6). In
2009/10, the UK:
i) Received 235 EAWs from Germany but issued only 4 requests to
Germany.
ii) Received 167 EAWs from Spain but issued only 58 requests to
Spain.
iii) Received 106 EAWs from France but issued only 25 requests to
France.
A2.4 Issues substantially fewer EAWs than comparable states of Germany,
France and Spain. In 2009, Germany issued 2,433 EAWs, France 1,240
and Spain 489 to other EU states—respectively 1,106%, 564% and 222%
of the total 220 EAWs issued by UK, (FTI Fig 9).
A2.5 Conversely to (A2.4), receives substantially more EAWs than
comparable states, Spain and France. In 2009, the UK received 4,100
EAWs from other EU states—respectively 252% and 424% of the 1,629 by
received by Spain and the 967 by France, (FTI Fig 10). The German
figure is not published
A2.6 Successfully executes more export than import EAWs. In 2009/10, UK
executed 1032 export EAWs from other states—1,053% of the 98
suspects received on import EAWs.
Although the high number of requests the UK receives affects this
materially, the trend of the UK’s figures is a serious cause for concern,
(FTI Fig 11).
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anonymous (EXT 3A)
i) The number of export EAWs executed by UK is increasing by 38% per
annum.
ii) The number of successful import EAWs issued by UK was stable
between 2007/08 and 2009/10 overall but there was fall of 5¾% in
2009/10.
It appears that, not only is the UK’s use of import EAWs consistently and
substantially less than that of other EU states but also the gap between
the UK and other EU states’ use of EAWs is widening. This has serious cost
implications too, (ref. (A5) below).
The statistics confirm the conclusions to (6) of my original paper. To avoid
duplication, I am not supplying the figures again because they are accessible
in the FTI’s submission.
A3. UK as Destination for Criminals
At (4.2) and (6.5) of my submission, I addressed respectively the UK potentially
becoming the ‘destination of choice’ inter alia for EU gangs travelling abroad
intending to commit crime and that the CPS’s interpretation of the EAW law
has the effect of making the UK a more attractive place for UK criminals to
commit crime too, provided they abscond from the UK before arrest.
The statistics (including those at (A2) above) confirm this. In 2009:
A3.1 UK received 4,100 (39%) of 10,544 EAW requests made by all Members
States including UK, i.e. 4 in every 10 fugitives in the EU are thought to
be in UK, (source: FTI Fig 10).
A3.2 Conversely, the UK issued only 220 import EAWs to extradite fugitives
who offended in UK but fled to another EU state, (FTI Fig 9).
A4. Elapsed Time
It is suggested in some quarters that the amount of time elapsed since the
alleged offence took place could be a factor in determining whether
extradition under an EAW is appropriate.
A4.1 This would be a fundamental change in the application of UK criminal
law, whereby unsolved crime remains on file unless/until the offender is
apprehended. The police may close a file having exhausted their lines
of inquiry but it can be reopened, for example if new evidence arises or
the offender is identified during inquiries into other cases.
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anonymous (EXT 3A)
A4.2 It would be undesireable and unacceptable for criminals to know they
can commit crimes and avoid conviction by the simple expedience of
leaving the UK for a predetermined period, after which they can return
without fear of prosecution.
A4.3 Police resources in a particular area of the UK materially affect the
length of a criminal investigation too. Therefore in practice, a time limit
could not be applied equally across the UK, much less across the EU.
Such a rule would not be consistent with the human rights of victims. In the
case of (A4.3), victims’ rights would become a postcode lottery.
A5. Costs
One of the principle concerns expressed about export EAWs is the cost of
police, CPS and Court resources required to execute them.
It occurs to me that the imbalance between the operation of import and
export EAWs puts the UK in double jeopardy in respect of costs.
A5.1 Resources are wasted dealing with export EAWs, for example when
offenders convicted overseas, but found in UK, can serve their
sentences in UK and in cases that would not pass a ‘public interest’ test
for prosecution in the UK. I refer respectively to and (4.2)(vii) and (8) of
my original paper.
A5.2 The ‘trial ready’ case requirement for import EAWs wastes considerable
police and CPS resources—at least three years’ worth of wasted
resources in my case. I refer to (6.5) of my original paper.
A5.3 Other than special cases, such as (A5.1) above, the cost of executing
export EAWs can be reduced significantly only (with the possible
exception of requests from Poland) by tighter border security so that
fugitives cannot easily flee to and settle in the UK.
A5.4 Clearly, the disproportionate number of EAWs emmanting from Poland
affect materially the costs of executing export EAWs. In 2009, Poland
issued 4,844 EAWs but received only 286 in total from other EU states,
(source: FTI Figs 9 and 10).
The UK alone received 2,403 EAWs from Poland but issued only 19 to
Poland, (FTI Figs 5 and 6). Not only is this disproportionate, but also it
suggests that 50% of those, who offend in Poland and abscond to other
EU states, are thought to flee to the UK.
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Additional Written Evidence submitted by an individual who wishes to remain
anonymous (EXT 3A)
The ‘Polish problem’ must be addressed primarily through the EU.
However, to a limited extent, the UK can address it alone, for example
by correcting the imbalance between the evidential standards for
import and export EAWs; imposing a ‘public interest’ test; and by
improving border controls. I refer respectively to (6) and (8) of my
original paper and to (A5.3) above.
Clearly costs are an issue that must be addressed.
A6. Summary of Addendum
This addendum reenforces the conclusions in my submission.
In addition to controlling costs (ref. (A5) above), there is an urgent need inter
alia to:
A6.1 Remedy the imbalance between the rights of the suspects and the
victims in both import and export extradition cases.
I note that EA2003 and CPS Legal Guidance, “For Import Extradtion [sic]
within the European Union” 24 serve to confirm the lack of recognition of
victims. The words “victim” or “victims” do not appear in either
document.
A6.2 Address inconsistencies in the evidential standard required for import
EAWs compared to that required for export EAWs.
A6.3 In export extradition cases, take into account ‘public interest’, costs
and if it is conducive to the public good that a suspect remains in UK.
Unless urgent action is taken on these issues, victims of crime will continue to
suffer injustice, whilst costs will continue to escalate as a result of the practical
application of EAWs by UK law enforcement agencies.
1 February 2011
www.cps.gov.uk/legal/d_to_g/extradition/importation_extradition__within_the_european_union/
24
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Further Additional Written Evidence submitted by an individual who wishes to
remain anonymous (EXT 15)
Further Additional Written Evidence submitted by an individual who
wishes to remain anonymous (EXT 15)
This addendum is pursuant to the written and oral evidence published by the
JCHR at today’s date, which per se demonstrates the need to properly define
the word ‘victim’; incorporate victims’ rights into legislation and/or guidance
thereto; and to check the quality of the evidence received by the
Committee. I outline also how the judgment in Sweden v Assange 25
(published 24 February 2011) contributes to the evidence on EAWs, especially
in respect of dual criminality and Human Rights.
The same conditions relating to the confidentiality of my personal data
apply 26 . The section numbers do not correspond to preceding papers but (for
brevity) I use preexisting acronyms.
B1. Victims Rights
The definition of ‘victim’ and Victims Rights are detailed, for example, in
General Assembly [of the United Nations] Resolution 40/34 of 29 November
1985, ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power’ and in ‘Commonwealth Best Practice Guidelines—Guidelines for
the Treatment of Victims of Crime (2002)’.
Whilst the guidance is not legally binding, it represents a commitment by
member nations to the principles stated and sets out a model legal and
administrative framework that emphasises the structural similarity of the
treatment of victims of crime in member states.
The Commonwealth Guidelines recognise the historical neglect of the rights
and interests of victims of crime. They state that Member States should include
in their national constitution or legislation appropriate measures for the
protection of victims of crime.
It is clear from the evidence provided that UK extradition law and/or the
guidance thereto should be amended to incorporate appropriate measures
for the protection of victims of crime.
B2. The Definition of ‘Victim’
The evidence to the JCHR blurs the difference between victims of crime and
suspects wanted for extradition.
25
26
www.judiciary.gov.uk/media/judgments/2011/judauthorityswedenvassange
Under s.333 of The Proceeds of Crime Act 2002 (as amended)
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Further Additional Written Evidence submitted by an individual who wishes to
remain anonymous (EXT 15)
In some cases, those providing evidence refer to the suspect as, “The victim.”
For example, The Freedom Association quotes Lord Lamont, including the
words, “… handicaps the victim in the collection of evidence for his
defence.” This is a contradiction in terms. A defendant cannot be the victim
too. There are references also to individuals facing extradition being “A victim
of mistaken identity” or, “A victim of the system.”
By definition, persons wanted on warrants are ‘suspects’, regardless of their
defence. If a less robust term is justified, EAWs use the term, “The requested
person.” For example, a ‘victim’ of mistaken identity should be referred to as,
“A requested person subject to mistaken identity.”
Clearly, it would be improper of the JCHR to amend third parties’ evidence.
However, I believe that it is important, in its findings, for the JCHR to clarify the
true meaning of ‘victim’ within the context of ‘a victim of crime’, as laid down
by international guidelines at (B1) above.
B3. The Balance of Evidence
I am pleased that the JCHR has taken additional steps to invite victimcentric
organisations to contribute to the review in an attempt to balance the
evidence. At the time of writing, the only evidence published with victims’
interests at heart appears to be that submitted by REDRESS (whose focus is
highly specialized) and by me. Indeed, where “victim” or “victims” appear in
others’ evidence, it is normally (but not always) in the wrong context, (ref. (B2)
above.)
In as much as import extradition is concerned, I am a loan voice. Although
REDRESS focuses on victims’ interests, its arguments relate more to the export
extradition or UK prosecution of suspects of international crime (torture,
genocide etc) who are found in the UK.
B4. Victims and Witnesses Commissioner
Pursuant to (B3), at (1.1) of my original submission, I compared the many high
profile, wellresourced organisations campaigning for suspects’ Human Rights
with the dearth of similar bodies campaigning for victims.
Despite previous extensive research, I discovered only recently that
Government employs a Commissioner for Victims and Witnesses with a team
of circa 9 staff. Her role 27 includes:
27
http://www.justice.gov.uk/
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remain anonymous (EXT 15)
“Promot[ing] the interests of victims and witnesses across the criminal
justice system and at the highest levels of government.”
“[To] understand the criminal justice system from their [victims’] point of
view and try to help improve the services and support available.”
“To personalise and improve the criminal justice service and ensure it is
firmly on the side of the lawabiding citizen.”
At the time of writing, it appears that the Commissioner is not minded to
contribute to the JCHR inquiry or the Extradition Review Panel. This is extremely
disappointing when victims [and witnesses] are such an important part of
criminal justice and the JCHR (in its 32nd Report) agreed that victims’ needs
should be at the heart of the criminal justice system.
B5. Quality of Evidence
The first tranche of oral and written evidence to the JCHR’s review is
remarkable in that most (but not all) contributors reach similar conclusions on
many topics, despite that they represent different interests – for example, the
lack of consistency in evidential standards across Europe and the imbalance
between evidential standards between export and import EAWs.
However, one organisation has made statements that are wrong, misleading
and/or alarmist. They justify them by misinterpreting statistics prepared by
reliable sources such as Fair Trials International, (“FTI”). I refer to the JCHR’s
document ‘Human Rights Implications of UK Extradition Policy— Written
Evidence’ 28 EXT 2 and use the page numbers from that publication.
B5.1 Page 22 at (3) asserts of European Arrest Warrants (“EAWs”):
“The EAW also affects the UK unfairly. This is because, compared to EU
member states; the UK’s citizens are issued with a disproportionate
number of warrants.”
This is simply untrue. I refer to (B5.2) below.
B5.2 On pages 23 and 24, they repeat and attempt to quantify their assertion
on page 22.
“It is through the EAW that the vast majority of UK citizens are extradited.
This is highlighted by figures from FTI … which calculated that … in 200910
28
www.parliament.uk/jchr – document Extradition_Inquiry_Written_Evidence_3.pdf
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Further Additional Written Evidence submitted by an individual who wishes to
remain anonymous (EXT 15)
alone, 699 people were extradited to other EU member states under the
EAW.”
FTI’s statistics do not relate to UK/British citizens 29 they relate to “people”. 699
people were extradited from UK in 200910 30 —but by no means were they all
British citizens.
Indeed the reverse is the case. From the inception of EAWs on 1 January 2004
up to 31 March 2010, the UK surrendered only 145 of its citizens to other EU
member states pursuant to EAWs 31 in 6¼ years.
In terms of requests made by EU states (as opposed to surrenders), the
Government has been unable to break down numbers to identify either the
person’s nationality or the state that requested extradition 32 .
B5.3 Pages 25 and 26 contain three incorrect or misleading comments. In
order:
“The situation in the UK seems to be worse, as there have been more
warrants for extradition of UK citizens than in most other EU member
states.”
“In total, 1,032 people—almost 3 a day—were detained and extradited
by British police on the orders of European prosecutors in the 12 months to
April 2010.”
“The number of EAW detentions in Britain has risen 43fold since 2004, when
there were only 24.”
i) I demonstrated at (B5.2) that there has not been more EAWs issued for
extradition of UK citizens than in other EU member states: the statistics are not
available.
It is incorrect equally in terms of import EAWs. Between 2004 and 2009
(inclusive), the UK issued only 979 EAWs in total for ‘people’ not citizens. The
comparative states of France and Spain issued respectively 7,113 and 3,337
EAWs. 33
Citizen—a member of a state or commonwealth
FTI Fig 4
31 ‘Hansard’ Home Department, written answers and statements, 25 October 2010
32 Ditto
33 FTI Fig 2
29
30
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Further Additional Written Evidence submitted by an individual who wishes to
remain anonymous (EXT 15)
ii) 1,032 people were not “detained and extradited” in 200910. They
contradict even their own figure – on page 24:
“In 200910 alone, 699 people were extradited to other EU member states
under the EAW.”
The figure of 1,032 relates to arrests not extraditions [surrenders]. 34
iii) It is fundamentally misleading and especially alarmist to claim that
detention in Britain has risen 43fold since 2004. For example:
a. On 1 January 2004, EAWs “limped into force” in eight of the 15 EU
states: Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden and
UK. 35 The other seven states failed to meet the implementation date. By
2009/2010, there were 27 EU member states.
b. Moreover, in 2004 and 2005, even some of these eight (including the
UK) had not complied fully with the Framework Decision. 36
c. Of the remaining states, Germany (for example) did not enact The
German First European Arrest Warrant Act until July 2004 but, on 18 July
2005, the Federal High Constitutional Court nullified it. The German
Second European Arrest Warrant Act did not come into force until 2
August 2006. 37
d. I have shown in my submission that, as with many new schemes (judicial
or otherwise), the EAW facility took time to be understood fully and
utilised to its full potential by UK law enforcement agencies.
It is reasonable to assume that EAW system “limped into force” in most EU
states.
It follows that comparisons between 2004 and post2007 figures are
meaningless: they are not on a ‘likeforlike’ basis. In 200910, the UK surrendered
only 51 people to the seven other states where the EAW came into force on 1
January 2004. 38 On a likeforlike basis, using the figure 24 for 2004, surrenders by
UK have little more than doubled.
FTI Fig 4
Statewatch
36 House of Commons Library, Home Affairs Section Standard Note: SN/HA/4979
37 PD Dr. Arndt Sinn and Liane Wörner, LL.M. (UWMadison), Law Faculty of the JustusLiebigUniversity, Gießen
38 FTI Fig 7
34
35
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remain anonymous (EXT 15)
Most importantly, in 2009, the UK issued only 1.49% (220) of 14,789 EAWs issued
by the 24 EU states that provided figures: 39 these were not all for UK citizens.
Conversely, based on the latest EU statistics available for recorded crime
(excluding misdemeanors), the UK accounts for 20.5% (5,189,995) of the
25,266,772 alleged offences committed in the same 24 states. 40
Therefore, not only is there little evidence of UK citizens (as suspects) being
treated unfairly by the EAW process but also both the evidence and statistics
demonstrate that UK citizens (as victims) are treated unfairly because the UK
law enforcement agencies are reluctant to use the process for import
extradition. The percentage of EAWs issued by UK is in reverse proportion to
the percentage of recorded crime. My experience, as per my submission,
supports this.
The evidence shows that UK extradition law and/or the guidance thereto
should be amended to incorporate appropriate measures to protect the
Human Rights of victims of crime.
However, the JCHR might recommend that Government compile future
statistics for EAWs received and issued to identify the requested person’s
nationality and (in the former respect) the state requesting extradition. It
would not be costeffective to do so retrospectively.
B6. Habeus Corpus
I disagree with the allegation on page 22 that EAWs put habeas corpus in
danger. EAWs per se do not mean that the requested person is guilty. If he is
wanted for prosecution and/or has absconded, he is a suspect not a criminal.
Of course, if the EAW is based on an enforceable judgement, he is guilty
anyway. It follows that, in either case, habeas corpus is not at risk.
B7. Dual Criminality
My original submission outlined the risk of imposing ‘dual criminality’ standards
on EAWs and the serious and undesirable anomalies that would ensue.
The judgment in Sweden v Assange confirms that ‘dual criminality’ affords too
much scope for lawyers to engage in semantics in defending suspects
against extradition because the precise wording of the law in two states
comes into play, in addition to linguistic nuances, rather than the nature of
the alleged conduct itself.
39
40
FTI Fig 9
Eurostat (crim gen) 58/2010
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Further Additional Written Evidence submitted by an individual who wishes to
remain anonymous (EXT 15)
The EAW for Assange named four alleged offences under Swedish law 41 —
unlawful coercion, 42 sexual molestation 43 (2) and rape. The defence argued
that three of these are not extradition offences because the conduct is not
an offence in UK law. Whilst the words ‘unlawful coercion’ and ‘sexual
molestation’ may not appear in UK law, few would disagree that such acts (in
the ordinary meaning of the words) constitute offences in UK, albeit under a
different name, such as sexual assault. The Judge agreed with my view. 44
In summary, any consideration of the nature of the conduct in extradition
cases cannot be laid down in law. It is a matter for the Court to consider in
each case.
B8. Human Rights
In respect of the claim that suspects’ Human Rights are compromised by
EAWs, the Senior District Judge in Assange, having disposed of the other
defence arguments says:
“As the issues arising above have been decided adversely to the
defendant, I must decide whether extradition would be compatible with
the defendant’s Convention rights within the meaning of the Human
Rights Act 1998. If it would not be so compatible, the defendant must be
discharged.” 45
The judgment and defence argument in Assange demonstrates that judges
properly can hear substantive Human Rights arguments against extradition on
EAWs based on the legislation as it stands, although, in Assange, the Judge
was satisfied that extradition is compatible with the defendant’s Convention
rights.
Depending on the territory requesting extradition, section 21 or 87 of The
Extradition Act 2003 specifies that the judge must decide if the person’s
extradition is compatible with Convention rights (within the meaning of the
Human Rights Act 1998) and that, if he finds in the negative, he must order the
person’s discharge. This should be sufficient without amending the Act.
B9. The tone of some of the evidence and the case studies provided by other
parties implies that,
Simon Clements, Head of Special Crimes Division, CPS by email
Coerce: persuade or restrain by force
43 Molest: annoy or pester in a hostile or injurious way; attack or interfere with, esp. sexually
44 www.judiciary.gov.uk/media/judgments/2011/judauthorityswedenvassange
45 Ditto
41
42
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compared to other EU states, British justice is infallible.
Whilst I do not dispute the facts of the case studies per se, it cannot be taken
for granted that British justice is comparatively infallible. The numerous
examples of miscarriages of justice in recent years show otherwise.
In closing, I note the following statement by Mr Graham Watson, the Liberal
Democrat MEP:
“The EAW has vastly enhanced the rule of law on our continent […] those
who oppose its use are those who effectively oppose the rule of law […]
and the protection that it gives our citizens.”
Whilst I agree with Mr Watson’s sentiment, there is nothing to suggest that, in
practice, EAWs have done anything to protect UK citizens from crime. Indeed,
the precedent I used at (6.5)(v) of my original submission to JCHR suggests
that, in the case of serious acquisitive crime, Micronesia is a safer place to do
business than the UK, even when the offender absconds.
I hope this addendum serves inter alia to clarify the statistics on EAWs and
associated evidence and also updates the evidence in the light of the
Assange judgment.
7 March 2011
71
Written Evidence submitted by Professor Monica Lugato, Faculty of Law,
LUMSA University of Rome (EXT 4)
Written Evidence submitted by Professor Monica Lugato, Faculty of
Law, LUMSA University of Rome (EXT 4)
I) EXECUTIVE SUMMARY
1. It is well established in the jurisprudence of the human rights bodies that
human rights obligations are a limit on the implementation of extradition
agreements.
2. The principle is absolute as to the rights protected by art. 2 (for States
parties to Optional Protocol 13) and 3 ECHR; qualified as to other rights
such as those protected under art. 6 and 8 ECHR .
3. Human rights treaties have special features, legally justifying the said
principle.
II) MEMORANDUM
1. Foreword.
In a study devoted to the relationship between extradition treaties and
human rights treaties (Trattati di estradizione e norme internazionali sui diritti
umani 46 , Torino, Giappichelli, 2006), I came to the opposite conclusion: that
extradition treaties have to be applied so as to be compatible with the
human rights obligations of the States concerned.
International practice appeared to have accepted the so called “Soering
principle”, expressed in the “jurisprudence” of human rights organism, such as
the European Court of Human Rights and the Human Rights Committee,
having clarified that a contracting State violates its human rights obligations
when it extradites a person to a State where that person substantially risks a
serious violation of its fundamental rights. New extradition treaties, national
legislation on extradition and national judgments showed by and large to
have been influenced by the principle that extradition has to be performed
consistently with human rights obligations, even though its practical
application has been controversial in some cases, due to the emphasis on
tightening cooperation in criminal matters after September 11, 2001.
2. Scope of the “Soering principle”.
The principle was then designed as an absolute one, admitting of no
derogation, as far as the right not to suffer inhuman or degrading treatment
was concerned: in no circumstance could a State party to the ECHR or the
ICCPR extradite a person to a country where there was a substantial risk that
she would be exposed to inhuman or degrading treatment (see the leading
case Soering v. United Kindgom, (1989) 11 EHRR, 439). It is well known in this
46 Extradition Treaties and International Human Rights Norms.
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Written Evidence submitted by Professor Monica Lugato, Faculty of Law,
LUMSA University of Rome (EXT 4)
regard that analogous absolute obligation is explicitly stated in relation to the
right not to suffer torture by art. 3 of the 1984 Torture Convention.
On the contrary, as far as the right to a peaceful enjoyment of personal and
family life and the right to a fair trial, the principle was designed as a relative
one: as a right not to be exposed to a disproportionate violation of the right
to personal and family life or to a flagrant denial of due process rights
(Soering v. United Kindgom, para. 113).
It can reasonably be put forward that the existence of a substantial risk of a
violation of any of the inderogable rights would be a bar to extradition,
whereas analogous risk of a violation of a derogable right would be such a
bar only to the extent that the required conditions for derogations were not
satisfied (see in this regard Soering v. United Kingdom, para. 86).
It has to be observed that whereas it is usually a violation of the person’s
rights in the requesting State (or the risk of such violation) that brings about
the application of the “Soering principle”, violations in the requested country
can also be relevant: for example, flagrant violations of due process rights in
the requested State, amounting to inhuman treatment (Chamaïev and 12
others v. Georgie and Russia (2005), para. 381); separation from family in the
requested State (Launder v United Kingdom (1997) 25 EHRR CD 67, para. 3).
However, as far as violations of art. 6 ECHR are concerned, the European
Court of Human Rights has so far argued, under the Soering principle, that
flagrant violations of due process rights (or the risk of such violations) in the
country of destination can exceptionally bar extradition. Art. 6 as such has on
the contrary been considered inapplicable to extradition, on the basis that it
does not concern the civil rights of the person requested, nor criminal charges
against her (Chamaïev and 12 others v. Georgie and Russia, para. 80, 81).
Significantly, the European Court of Human Rights has recently confirmed and
further developed its previous jurisprudence on the topic. It has affirmed that
as a consequence of the entry into force of Protocol 13 to the European
Convention on Human Rights, the States bound by Protocol 13 cannot
extradite a person to a country where there is a substantial risk that she would
be subjected to death penalty. Protocol 13 has in fact amended, in so far as
its contracting parties are concerned, art. 2 of the Convention, to the extent
that the second sentence of that rule is no longer applicable (Al Saadoon
and Mufdhi v United Kingdom (2010) unreported, para. 120).
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LUMSA University of Rome (EXT 4)
3. Legal base of the “Soering principle”.
The European Court of Human Rights has constantly underlined the specialty
of the European Convention on Human Rights: as a human rights treaty, its
object and purpose require its safeguards to be interpreted so as to be
practical and effective (Al Saadoon and Mufdhi v. United Kingdom, para
127).
In the book mentioned at the start, I submitted that there are more features of
human rights treaties that make them “special” (Trattati di estradizione e
norme internazionali sui diritti umani, p. 203 ss.).
For one they establish erga omnes partes obligations, the observance of
which is due to all the parties to the treaty, each and all of them bearing a
legal interest in the respect of the human rights obligations established by the
treaty. In other words, their violation “weighs more” than the violation of a
bilateral obligation.
Second, human rights treaties recognize rights of third persons, not State’s
rights. Once recognized those rights are no longer in the State’s hands:
recognition implies from a legal point of view an obligation not to
subsequently deny what one has recognized.
Third, the obligations established by a human rights treaty are “cross-cutting”
obligations, in that they concern all and every aspect of State activity, that is
all and every action by State agents, and all and every form of exercise of
the jurisdiction of the State. The European Court has now come to the same
conclusion in the mentioned Al-Saadoon case (para 127–128). So it cannot
be argued that extradition, which is under all respects an exercise of the
jurisdiction of the State, is not in the scope of human rights obligations.
These features contribute to a special status of human rights treaties in
international law, one of the aspects of which is precisely their capacity to
expand to cover all forms of exercise of authority by the State. It is precisely in
those instances that the human person needs to be protected from the
abusive/arbìtrary exercise of State power. It would undermine their binding
character if the obligations that they establish could be set aside simply
through the conclusion of a subsequent treaty.
4. Conclusion.
The argument that States have to honour their extradition agreement as a key
instrument of international cooperation in the repression of crime can
certainly be accepted. But it does not prove that they are therefore absolved
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of their human rights obligations. Human rights treaties have to be honoured
as well.
Therefore, extradition agreements have to be applied in such a way as to be
consistent with human rights obligations. Because human rights treaties do
admit of restrictions and derogations to human rights obligations, it is within
those rules, and mainly through interpretation, that the conciliation between
extradition obligations and human rights ones has to be pursued. Conciliation
will not be possible when the violation of an absolute right is at stake.
21 January 2010
Written Evidence submitted by the Immigration Law Practitioners’
Association (EXT 5)
1. The Immigration Law Practitioners’ Association (ILPA) is a professional
association with some 900 members (individuals and organisations), the
majority of whom are barristers, solicitors and advocates practising in all
aspects of immigration, asylum and nationality law. Academics, nongovernmental organisations and individuals with an interest in the law are also
members. Established over 25 years ago, ILPA exists to promote and improve
advice and representation in immigration, asylum and nationality law,
through an extensive programme of training and disseminating information
and by providing evidence-based research and opinion. ILPA is represented
on numerous Government, including UK Border Agency and other
‘stakeholder’ and advisory groups and has given oral and written evidence to
the Joint Committee on many occasions.
Summary
2. ILPA would like to highlight particular concerns about breaches to human
rights that arise when persons subject to extradition orders are or, as detailed
below, become, persons subject to immigration control.
3. ILPA is aware of cases where those extradited have had their refugee status
revoked and their indefinite leave to remain in the UK cancelled while outside
the UK, where deprivation appears based on charges that founded the
extradition, of which they have been acquitted, and that the Home Office
has resisted their attempts to return to the UK to appeal against the
revocation of refugee status and the cancellation of indefinite leave.
4. ILPA is aware (see the Freedom of Information Act request appended
hereto) that more deprivations of nationality are taking place while the
person deprived is outside the UK than while the person is inside the UK. We
are aware that deprivations are being accompanied by exclusion orders so
that the person is unable to return to the UK. We do not know if any absences
from the country are a result of extradition in these cases (we know of cases
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where they are not) but it is possible, and there are parallels with the situation
in relation to Indefinite Leave to Remain outlined above.
5. Thus the human rights implications of the interplay between current
extradition policy and current immigration and nationality law and practice
are that:
6. A person extradited may find him/herself stranded outside the UK, unable
to return to the UK, in a country where he or she has no status, with all the risks
to protection of his/her human rights that that entails;
7. Such a person may also, as has been the situation in cases ILPA has seen,
have family in the UK giving rise to the question of breaches of the right to a
private and family life (under Article 8 of the European Convention on Human
Rights) of both the person stranded and the family members remaining
behind in the UK;
8. Such a person may hold no nationality or citizenship other than that of a
country in which s/he faces persecution as defined in the 1951 UN
Convention relating to the Status of Refugees or graves breaches of his/her
human rights as set out in the European Convention on Human Rights, and no
status in any other country. Cases ILPA has seen include cases of recognised
refugees and of persons with a pending claim for asylum;
9. The person may be at risk of refoulement to a country in which s/he faces
persecution or grave violations of his/her human rights;
10. Where the decision to revoke refugee status/cancel leave or deprive the
person of nationality was unlawful, the person may have no practical
prospect of challenging that decision and thus face not only the breach of
human rights that this entails in and of itself, but breaches of his/her human
rights in consequence, as described above.
11. These concerns must be viewed in the context of the way in which human
rights are addressed in cases of extradition to other European member States
in cases under Part 1 of the Extradition Act 2003. Council Framework Decision
of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States 47 says in its 10th Preamble:
“(10) The mechanism of the European arrest warrant is based on a high
level of confidence between Member States.”
12. ILPA is concerned at the extent to which that ‘high level of confidence’
appears to trump in practice evidence of risks of human rights violations
submitted in particular cases, putting refugees and those who should be
protected from refoulement by the European Convention on Human Rights at
particular risk.
47 2002/584/JHA, Official Journal L 190 , 18/07/2002 P. 0001 - 0020
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The case of Khemiri
1. Mr Khemiri was a recognised refugee in the UK. A European Arrest Warrant
was issued for his arrest in connection with terrorist related activities.
Extradition to Italy was sought. His challenge against extradition failed 48 and
he was extradited to Italy.
2. It is worth pausing over what happened in that original challenge to
extradition. Among those resisting extradition at the same time as Mr Khemiri,
one, had claimed asylum in 2004. That claim had yet to be determined at the
time of the extradition. We cite in extenso from the judgments in an effort to
give a full flavour of the hearings.
3. Copious evidence was provided at both the Magistrates' Court extradition
hearing 49 and on appeal to the Divisional Court 50 which the courts accepted
demonstrated
(a) that all three men faced a real risk of Article 3 ill-treatment if returned to
their country of origin,
(b) a routine practice in Italy of the Executive already having expelled to
their country of origin a large number of individuals in precisely the
same circumstances of these three in violation of Article 3, i.e. nationals
of that country facing terrorism allegations, whether convicted or
acquitted (including several in the trial of one of those being
extradited), and
(c) that the Italian national security deportation law (the Pisanu decree of
2005) by which these removals had been effected summarily
(sometimes within hours) by the Italian Government fails to comply with
Article 13 of the European Convention on Human Rights because it
prohibits any appeal that is lodged from having a suspensive effect.
4. The District Judge in the Magistrates Court hearing posed the question of
whether there were substantial grounds for believing that the defendants
would suffer a breach of Article 3 (prohibition of torture, inhuman or
degrading treatment or punishment if returned to their country of origin. 51 He
answered this question, referring to Saadi v Italy [2008](Application No
37201/06) in the affirmative. 52
5. The District Judge held that:
48 R (Ignaoua et ors) v Judicial Authority of the Courts of Milan ; The Serious and Organised
Crime Agency &the Secretary of State for the Home Department. [2008] EWHC 2619 (Admin)
49 District Judge Evans, Judgment 20 May 2008
50 Mohamed Salah Ben Hamadi Khemiri, Habib Ignaoua, Ali Ben Zidane Chehidi v. The Court
of Milan Italy [2008] EWHC 1988 (Admin) Judgment 28 July 2008.
51 Paragraph 2 of the judgment of 20 May 2008.
52 Ibid., paragraph 4.
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“...the current state of Italian immigration and deportation law, presently
the Pisanu law, fails to provide the necessary guarantees that are required
by Article 13 and places a person such as these defendants (should they
be subject to an order for deportation), at risk.”53
6. However, the District Judge went on to conclude that:
“...since the 28th February 200854 there will have been many people in
the Italian Civil Service giving anxious consideration to the decision in
Saadi v Italy, all trying to devise a solution to the ‘dilemma’.
(2) It is highly likely that new provisions will soon be in place, and that
would make this whole discussion, based as it is on the Pisanu law,
somewhat academic.
(3) I am not surprised that the Minister of Justice has declined to give an
undertaking that the Pisanu law will not be applied to any of these three
men. There are many reasons why it might not be appropriate to offer
such a guarantee. The lack of it does not suggest that, if extradited, the
Pisanu law would be applied to them.
(4) I consider it most unlikely that, unless and until the circumstances allow
it, the Minster of the Interior would make a deportation order against any
of these three men requiring their return...’
(5) Notwithstanding the view I have expressed in paragraph 16 above, I
am confident, given all the activity these defendants have generated
with the authorities in Italy and their situation being now so ‘high profile’
that they would have no difficulty accessing the Italian courts, should they
wish to challenge any deportation order.
I consider that there is no reason to suppose that any future deportation
proceedings would be anything other than in accordance with the
Convention and the case of Saadi v Italy. I do not regard what has
undoubtedly happened in the past as providing evidence that such an
approach will be repeated in the future. Saadi v Italy will cause the Italian
authorities to rethink its [sic.] approach to this issue. There is absolutely no
reason to suppose that they will ignore the case and carry on as
before....The Framework Decision is based on mutual trust and confidence
between fellow Member States and I am confident that the Italian
authorities can be relied upon not to act contrary to the Convention.’
53 Ibid., paragraph 16.
54 Date of the Saadi judgment.
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7. That such confidence might not be well-placed was illustrated just before
the Divisional Court hearing by the expulsion by Italy of Ben Khamais, a codefendant of one of those involved in these extradition proceedings, to the
defendants’ country of origin in violation of Article 3 and of an order by the
European Court of Human Rights under Rule 39 of the rules of court. Ben
Khamais was summarily deported before he could even inform his lawyer of
what was happening. Nonetheless the Divisional Court held
“46 …real risk of expulsion …(within the meaning of that expression in the
authorities) has not been established in these cases. It is relevant that the
extradition to Italy will be effected under the Framework Directive though,
as appears from the authorities, the same or a similar principle would have
applied under earlier extradition procedures between Western European
countries. The Italian authorities are under Article 3 duties in any event,
but the Framework Directive adds an additional dimension. It requires
cooperation between judicial authorities on the basis of trust and a high
level of confidence. When assessing whether there is a real risk of conduct
that would involve a breach of Article 3, the court must adopt the
approach indicated by Lord Bingham in Dabas.
47 As Baroness Hale put it in Hilali, for better or worse we have committed
ourselves to this system. Under the Framework Decision, we can assume
that the trust placed in the Italian authorities will be justified. The
Framework Decision provides a safeguard and a disincentive to the Italian
authorities, as with the authorities of any Member State, not to act in
breach of Article 3 of the Convention. Article 34 of the Treaty provides for
sanctions against States failing to comply with the basic principles of the
Treaty. Bilateral trust also arises. This is bilateral action premised on the
existence of a high degree of confidence. Courts in a returning state
would be likely to have a real sense of grievance, having regard to the
contents of the Framework Directive, if a receiving state subsequently
ignored its duty under Article 3 of the Convention. The Italian government
had not hitherto deported in an Article 3 case a person received under
the Framework Directive and had not deported in the case of
Saadi.
48 Moreover, when the Italian authorities receive a person under the
Framework Directive, the entire judiciary, including the Justices of the
Peace, is likely to be alerted to its duties under Article 3. That is certainly so
in the current cases. … they have received very considerable publicity in
Italy and elsewhere.
49 I am not prepared to disagree with the District Judge's assessment of
the witnesses or his rejection of the appellants' witnesses' low opinion of
the Italian judiciary. He did not accept the submission that the Justice of
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the Peace function when considering a deportation order was that of a
"rubber stamp". Justices of the Peace, along with other members of the
Italian judiciary, can be expected to have regard to Article 3 of the
Convention when considering a deportation order, though I do note the
speed with which the decision in BK was effected.
50 It is disturbing if the evidence before the court is correct—and the court
has to take it at face value—that the Italian executive in the case of
BK have apparently disregarded an interim direction of the ECtHR. I
cannot regard that act, or the statement of a representative of the
Ministry of Justice which is claimed also to have been made, as destroying
the trust and confidence which is to be assumed in the context described.
I am not prepared to hold, on the basis of a single post-Saadi case, that
the Italian State will in the present cases ignore its duties under Article 3 of
the Convention as confirmed in Saadi.
51 The submission that because the Framework Decision and the 2003 Act
inaugurates a procedure between judicial authorities, and executive
conduct is outside it, is not without force. However, courts must act on the
basis that the confidence required extends to the conduct of the
executive arm of the Government which is party to the Framework
Decision. The separation and independence of the judiciary from the
executive arm of the Government is fundamental to the rule of law, but
the Framework Directive entitles an assumption that the conduct of the
Italian judiciary and its role in protecting rights under the Convention is not
to be nullified by parallel or subsequent action by the executive arm of
Government. The risk on return has to be assessed on present evidence,
and there is no risk of deportation while the contemplated criminal
proceedings and any resulting custodial sentence are extant. That being
so, any risk is, to that extent, remote from the current situation.”
8. An application for a certificate of a point of law of general public
importance was dismissed by the same court on 30 September 2008. On that
same date Mr Khemiri and his co-defendants made an application to the
European Court of Human Rights under rule 39 of the Rules of Court, for an
order preventing their extradition to Italy, on the ground that, if extradited,
they would be at real risk of onward removal to Tunisia where they would be
subjected to treatment contrary to Article 3 of the European Convention on
Human Rights. That application was refused on 7 October 2008. The Registrar
of the 4th Section of the Court stated that the Court found that it would be
open to the applicants to make an application, including one under rule 39,
against Italy, if it appeared that they would be surrendered from Italy in
breach of their rights under the Convention. The letters also referred to the
Court's express understanding:
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"… that Italy as a Contracting State would abide by its obligations under
Articles 3, 13 and 34 of the Convention and in particular the obligation to
respect the terms of any interim measure which the Court might indicate
in respect of Italy at the request of the applicants."
9. The matters came back before the Divisional Court to consider fresh
evidence arising out of the Ben Khamais case. Judgment was given on 30
October 2010. 55 The Court declined to depart from the previous decision of
the Divisional Court, observing “This is not in any sense an exceptional case.” 56
10. Thus the UK courts and the European Court of Human Rights assumed that
the procedure that had been applied to many others would not be applied
to these men, although no assurances had been given and the evidence
before the courts was a letter from the Italian Ministry specifically stating that
they could not promise that the Pisanu Law would not be applied to the men.
11. The passages cited above illustrate how large a role the hopes and
expectations that Italy would comply with its human rights and Framework
obligations to the men because they would have been extradited from the
UK played in the decision. The existence of obligations under the European
Convention on Human Rights and the Framework decision appears was
sufficient to outweigh the evidence of past State practice and the lack of
any evidence that the defendants would not be treated in the same way or
of any mechanism by which they could access effective protection that had
been denied to all the others. We note that after the defendants in this case
were extradited on 1 November 2008, in November 2008 Italy deported
another person (MT) to their country of origin despite a Rule 39 indication by
the European Court of Human Rights being in place in his case and that there
are at least two cases in subsequent years: A in 2009 and M in 2010 in which
the same thing happened.
12. What happened subsequently to Mr Khemiri is described in a 26 August
2010 judgment of the High Court in a judicial review.57 He was tried in Italy
and, on 8 July 2010, acquitted of all charges save for one, which related to a
procurement of a false travel document. It was common ground in the 2010
judicial review that this charge did not relate to terrorist activities. He was
sentenced to 12 months imprisonment but, having already served that on
remand, was immediately released from criminal law detention but
continued to be held in immigration detention against his return to his country
of nationality because a request was immediately made by the Italian police
under the Italian ‘Pisanu law’ for his expulsion to Tunisia and he was detained
for that purpose. The same request was made in respect of the two men
extradited with him. This can usefully be contrasted with the proceeding
55 R (Ignaoua et ors v Judicial Authority of the Courts of Milan; The Serious and Organised
Crime Agency &the Secretary of State for the Home Department. [2008] EWHC 2619 (Admin)
see http://www.bailii.org/ew/cases/EWHC/Admin/2008/2619.html
56 Ibid., paragraph 47
57 R(Khemiri) v SSHD [2010] EWHC 2363 Admin.
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envisaged at the time when the extradition case was proceeding through the
UK Court, in R (Ignaoua et ors v Judicial Authority of the Courts of Milan; The
Serious and Organised Crime Agency & the Secretary of State for the Home
Department. [2008] EWHC 2619 (Admin):
“45. Secondly, it is not in dispute that there has been no other instance of
Italy deporting someone in breach of interim measures or of Article 3 of
the ECHR since the Saadi decision. The Ben Khemais case remains the sole
post-Saadi incident. Thirdly, none of this new evidence has any impact
upon the reliance placed by the Divisional Court on how Italy can be
expected to behave in respect of someone who has been extradited to
that country under the Framework Decision and a European Arrest
Warrant. There is still no evidence of any willingness on the part of Italy to
deport such an extradited person to Tunisia or any other country where his
Article 3 rights would be at a real risk of being broken. It follows that the
Divisional Court's reliance on that fact and on the trust and confidence
between states which underlies the Framework Decision remains intact
and unaffected by the new material. As I have indicated earlier, that was
a powerful element in the Divisional Court's reasoning. It adds an extra
dimension to the Article 3 issue.
46. Fourthly, nothing in the new evidence undermines the point made by
the Divisional Court that it was agreed that the applicants were genuinely
wanted for trial in Italy and that (in the court's view) there was no risk of
deportation while criminal proceedings and any resulting custodial
sentence were extant, so that any risk was "to that extent remote from the
current situation" (paragraph 51). As Miss Dobbin confirmed to us, it was
known that Mr Ben Khemais had both been convicted in the past and
faced further criminal charges and the Divisional Court also had evidence
about the general length of custodial sentences in such cases. Nothing on
those aspects has changed since that court's decision.”
13. What is striking about paragraph 46 of the judgment is that it does not
appear to canvas at all the possibility of what transpired in Mr Khemiri’s case,
viz. that he was acquitted of all charges and released. The judgment is
worthy of more general consideration in the context of this enquiry by the
Joint Committee on Human Rights.
14. Mr Khemiri having informed the Italian authorities that he was a refugee
those authorities sought to determine whether he could be returned to the UK
under the Dublin Regulation.
15. Given the risk of refoulement, Mr Khemiri sought, on 9 July 2010, an
indication under rule 39 of the Rules of that Court that he should not be
returned to his country of nationality (an indication that had not protected Mr
Ben Khemais, as described in the extract quoted above). The acting
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President of the European Court of Human Rights Second Section issued such
an indication on 9 July 2010, until 21 July 2010 in the first instance, on that date
extended indefinitely.
16. On 16 July 2010, the Secretary of State wrote to Mr Khermiri’s solicitors in
the UK that she had decided to revoke his refugee status on the ground that
Article 1F(c) of the 1951 Convention relating to the status of refugees applied
in the case and had also to decided to cancel his indefinite leave on the
ground that his exclusion from the United Kingdom would be conducive to
the public good. The Secretary of State purported to cancel Mr Khemiri’s
refugee travel document. Mr Khemiri was fortunate in respect of having
solicitors on record in the UK. ILPA is aware of other cases in which the letter
has been sent to the last known address in the United Kingdom of the person
being served, while that person is out of the country. In such circumstances
there may be deemed service of the letter two days after posting and the
time for lodging an appeal would then start to run.58
17. The leave of a person whose leave to enter or remain has been varied,
with the result that he has no leave to enter or remain, is extended by
operation of s 3D of the Immigration Act 1971 where an appeal under section
82(1) of the Nationality, Immigration and Asylum Act 2002 “could be brought,
while the person is in the United Kingdom”, or where an appeal “brought
while the appellant is in the United Kingdom” is pending. The words cited
were inserted into the 1971 Act by the Immigration, Asylum and Nationality
Act 2006, s 11. The amendments were part of a raft of changes made when
the Government was persuaded during the passage of the Bill that became
the 2006 Act through the House of Lords not to abolish in-country rights of
appeal, at a time when it abolished appeals against refusal of entry
clearance. Ministerial statements made at the time of the passage of the Act
described the changes as technical:
“Amendment No. 12 [now s.11(2) & (3)] corrects a technical problem with
the existing continuing leave provision in Section 3C of the Immigration
Act 1971. Under the current version of Section 3C leave continues while an
appeal could be brought without specifying whether to trigger an
extension of leave; the appeal must be brought in the UK or otherwise.
Amendment No. 12 inserts a condition that leave will be continued only
where appeal may be brought in the UK or where such an appeal is
pending. The change has been made to make it absolutely clear on the
face of legislation that leave will be continued only where an appeal
against a decision to vary leave could be brought in-country.” The
Baroness Ashton of Upholland, Parliamentary Under-Secretary of State,
DCA, HL Report, 7 February 2006, col. 519
18. The Explanatory Notes to the Act are similarly low key:
58 Consolidated Asylum and Immigration (Procedure) Rules 2005 for the First-tier Tribunal SI
2005/*** as amended
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“28. Section 11 amends section 3C of the Immigration Act 1971 (the 1971
Act), which currently extends leave to enter or remain in the United
Kingdom if it would expire while an application is being considered and
for such time as an appeal against a decision to curtail or refuse to vary
leave could be brought or is pending. The minor amendments to
subsections (2) and (3) make it clear that leave shall only be continued
when an in country appeal may be brought or is pending.”
19. Thus if notice of a decision is deemed to have been served, and the
person is outside the UK, it was argued by the Secretary of State in Khemiri
that if a person outside the UK did not appeal within the time limits prescribed
in the rules, his or her leave would lapse.
20. In Mr Khemiri’s case, the letters has been served on his solicitors who were
able to take steps to lodge an appeal within the time limits prescribed in the
Tribunal chamber rules of procedure. But it was also argued by the Secretary
of State in Mr Khemiri’s case that, although Mr Khemiri was outside the UK by
virtue of having been removed to Italy under a European Arrest Warrant and,
being excluded from the UK, unable to return, there was no obligation on the
Secretary of State to facilitate his return so that he could exercise an incountry right of appeal or indeed, being a person within the UK, benefit from
the provisions of section 3D of the Immigration Act 1971. It was argued on
behalf of Mr Khemiri that the Secretary of State was required to take steps to
facilitate Mr Khemiri’s return to the UK within the period for appealing or not
entitled to seek to prevent Mr Khemiri from returning to the UK for the purpose
of exercising his right of appeal and should take such steps as required to
ensure that Mr Khemiri, whose refugee travel document was purportedly
cancelled, should be allowed to return to the UK on that cancelled
document or given an appropriate form of laissez-passer.
21. As the judge in Khemiri succinctly summarised:
“It is, I think, clear, and indeed common sense, so indicates, that there are
considerable disadvantages to be faced by an appellant if he has to
pursue an appeal while he is out of the country. This is particularly the
case where his evidence is crucial, as is obviously the position here, and is
more apparent in an appeal to SIAC where national security issues are
concerned and where the matters relied upon may, to an extent, be
unknown to the appellant.”
22. In Mr Khemiri’s case the judge came to the conclusion, as a matter of
statutory construction, that the proper construction of section 3D(2)(a) of the
Immigration Act 1971 was that leave was extended for such relatively short
period as would enable the individual wishing to do so to make
arrangements, to return to the UK to pursue an appeal against the
cancellation in-country. The Secretary of State is appealing that decision.
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23. Matters that remain to be determined in a subsequent consideration of
this case by the Special Immigration Appeals Commission are Mr Khemiri’s
contention that the Secretary of State had failed to take into account his
acquittal of the very charges against him that had provoked the decision to
revoke refugee status, and that the threshold for exclusion from the
protection of the Convention under Article 1F(c) of the Refugee Convention
was not met. These matters had been pleaded in the judicial review but in
granting permission for judicial review it had been determined that these
matters would fall to be dealt with in separate, subsequent proceedings.
They also raise the question of the human rights implications of extradition
policy, both in and of themselves and because of the Secretary of State’s
argument that the person extradited should not be allowed to be present in
the UK to give evidence in such proceedings.
24. We pause to note that Mr Khemiri:
•
•
•
•
has had at all times the benefit of lawyers ready to act, in the UK,
overseas and at the level of European Court of Human Rights to protect
his rights;
challenged his extradition in the UK prior to that extradition;
benefited from an intervention by the European Court of Human Rights
designed to prevent onward refoulement from the country in which he
found himself stranded;
was extradited to a country that is a State party to the European
Convention on Human Rights and the Dublin Convention of the European
Union.
25. It is not difficult to envisage extradition cases in which the facts are very
different and the risks to the person extradited at any given time thereby
exacerbated.
Citizenship cases
26. What of citizenship cases? As indicated above, the discussion of the
human rights implications of deprivation of citizenship in the extradition
context is hypothetical, because ILPA is not aware of examples of such cases
involving extradition. We are however aware of at least one case where a
person deprived of British citizenship is in their country of other nationality
unable to return to the UK to pursue their appeal against deprivation and
where their attempts to communicate with their legal representatives put
them at risk of harm. It is possible in the light of this and of the consideration of
the Khemiri case above, to envisage cases where a person deprived of their
citizenship while outside the UK as a result of extradition is refouled to the
country of their other, and only, nationality.
27. When one turns to the Home Office’s Nationality Instructions, Chapter 55
Deprivation and nullity, we find the following:
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“C. Conduciveness Deprivation Process
55.8 This policy will be introduced in 2010.”
28. There is no further information. 59 However, we know what happens from
experience of cases. The Secretary of State waits until the person is outside
the UK (see the freedom of information request described above). The
Secretary of State issues a notice of intention to deprive a person of
nationality on the grounds that the person’s presence is not conducive to the
public good. The Secretary of State waits two days, and then deems that
notice to have been served. The Secretary of State then issues an order
depriving the person of British citizenship and at the same time an exclusion
order.
29. The Joint Committee may recall that under the law under which the Abu
Hamsa case was determined, Mr Abu Hamsa was served with a notice of
intention to deprive him of his British citizenship but he remained a British
citizen throughout the proceedings. In the event, in November 2010 the
Special Immigration Appeals Commission determined that he could not be
deprived of his British citizenship because so to deprive him would make him
stateless, because he had already been stripped of his Egyptian citizenship.
UK law does not permit a person to be deprived of their nationality on the
grounds that such deprivation would be to the public good, if to do so would
render them stateless.
30. The law under which the Abu Hamsa case was determined has been
changed. The Asylum and Immigration Act 2004 Schedule 2 repealed s 40A(6)
of the British Nationality Act 1981 which had provided that an order depriving
a person of his/her British nationality could not be made in respect of a person
during the period in which an appeal against a notice of a decision to
deprive that person of citizenship could be brought or was pending. When
one consults the Explanatory Notes to the 2004 Act these state
“121.Paragraph 4 (British Nationality Act 1981). This provision has the effect
that appeals under this Act are handled in the same way as appeals
under Part 5 of the 2002 Act, and the same provisions for higher court
oversight and legal aid are applied. It also has the effect that a
deprivation order can be made before any appeal is heard, thereby
allowing deprivation and deportation proceedings to take place
concurrently.”
31. There is no mention of the implications of the amendment for those
deprived of their nationality while outside the UK in the circumstances
outlined above. The repeal came into effect on 4 April 2005. 60
59 See
www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/
nichapter55/chapter55?view=Binary
60 SI 2005/565
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32. Indeed, statements made during the passage of the 2004 Act through
parliament referred to the change as ‘minor and technical:
“My Lords, paragraph 4(b) of Schedule 2 empowers the Asylum and
Immigration Tribunal, in the event of a successful appeal against
deprivation of British nationality, to direct that any order for such
deprivation made prior to determination of the appeal is to be treated as
having no effect.
The amendment will confer a parallel jurisdiction on the Special
Immigration Appeals Commission in relation to successful appeals to that
body against deprivation of nationality under Section 2B of the Special
Immigration Appeals Commission Act 1997.
This might be thought to be a minor technical amendment, and I suspect
that it probably is, but it ensures that the Bill gives full effect to the policy
on joining deprivation appeals with appeals against deportation action
and/or certification, as the case may be, under the Anti-terrorism, Crime
and Security Act 2001, whose daily passage I remember even now. The
measure was described in detail at recommittal, and your Lordships
supported it. I believe that the noble Lord, Lord McNally, said at the time
that they were sensible and overdue provisions that should be supported.
I want to make it clear for the avoidance of any doubt, because there will
not be opportunities later, that the Bill does not alter the grounds for
deprivation of citizenship. It is important to make that clear. The Bill does
not have retrospective implications. It is not directed, for example, at Abu
Hamza and his appeal. The changes in the Bill would make the procedure
for appeals against deprivation of citizenship and the effect of such
appeals not retrospective. Any appeal currently in progress will be
conducted in accordance with the existing procedure. That is an
important point; I would not want people to get the wrong idea.
Furthermore, the Bill does not limit the grounds for appeal against
deprivation of citizenship or take away appeal rights in those cases.
Deprivation of citizenship is one issue—but it does not necessarily mean
that deportation or removal from the United Kingdom automatically
follows. Each case will be considered on its merits and separate decisions
taken about the propriety of deportation or removal, as distinct from
deprivation of citizenship. There might, for example, be practical or legal
difficulties preventing deportation or removal which would not prevent
deprivation of citizenship, and circumstances in which the latter action
would be desirable or appropriate notwithstanding the impossibility of the
former.
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I believe that I have milked everything that I can from this minor technical
amendment. I beg to move.” The Lord Rooker, HL 3rd reading of the
Asylum and Immigration Treatment of Claimants Etc. Bill session 2003-2004,
06 07 04 cols 782-784)
Dublin Regulation: responsibility for determining an application for asylum 61
33. We are aware of at least one case where extradition has been treated by
the UK as the European country to which the person is extradited accepting
responsibility for determining the person’s claim for asylum, despite that
country’s not having given any indication at the time of the extradition that it
would so treat the claim.
Permanent Residence under European Union law
34. As set out above, we have seen instances where a person’s indefinite
leave has been cancelled while they are outside the UK. Rather than
indefinite leave to remain, third country nationals facing extradition may have
rights of permanent residence in the UK under Article 16(2) of Directive
2004/38/EC, the ‘Free movement’ Directive, as a result of their having resided
in the UK for more than five years as the family member of a national of an EU
member State .
35. Article 16 goes on to state:
3. Continuity of residence shall not be affected by temporary absences
not exceeding a total of six months a year, or by absences of a longer
duration for compulsory military service, or by one absence of a maximum
of twelve consecutive months for important reasons such as pregnancy
and childbirth, serious illness, study or vocational training, or a posting in
another Member State or a third country.
4. Once acquired, the right of permanent residence shall be lost only
through absence from the host Member State for a period exceeding two
consecutive years.”
36. Article 21 provides that continuity of residence is broken by any expulsion
decision duly enforced against the person concerned.
37. Whether a person has permanent residence may be of great importance
in challenging any decision to expel him/her. Article 28 Provides:
“Article 28
Protection against expulsion
61 Regulation 2003/343/CE
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1. Before taking an expulsion decision on grounds of public policy or
public security, the host Member State shall take account of
considerations such as how long the individual concerned has resided on
its territory, his/her age, state of health, family and economic situation,
social and cultural integration into the host Member State and the extent
of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against
Union citizens or their family members, irrespective of nationality, who
have the right of permanent residence on its territory, except on serious
grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if
the decision is based on imperative grounds of public security, as defined
by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests
of the child, as provided for in the United Nations Convention on the
Rights of the Child of 20 November 1989.”
38. Human rights considerations, and in particular considerations under Article
8 of the European Convention on Human Rights (right to private and family
life) often loom large in expulsion cases.
39. It can be seen from the legal framework outlined above that if a person,
as a result of extradition, loses his/her permanent residence because s/he is
out of the country from which s/he has been extradited for over six months, or
over two years as the case may be, the result will be that s/he enjoys a lesser
protection against any expulsion decision made in his/her absence from the
territory than would otherwise be the case. For the reasons outlined above,
such persons may also face the prospect of being unable to return to the UK
to challenge the expulsion/exclusion decision made against them. Thus rights
under European Union law, and the human rights that underpin them, may be
undermined in such cases.
Summary
40. Current extradition procedures fail to provide protection against breaches
of human rights that arise when persons subject to extradition orders are, or
become persons subject to immigration control. Neither extradition
proceedings, nor the conduct of the UK and other EU member States
thereafter, provides adequate protection against refoulement.
21 January 2011
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Written Evidence submitted by Liberty (EXT 6)
Summary
In this submission to the JCHR Inquiry we set out the background to extradition
law and practice in the UK and identify what we consider to be the key flaws
in the Extradition Act 2003 (EA). In order to facilitate an extradition process
which is fair, just and which respects fundamental human rights, a number of
changes are required.
Most appropriate forum bar: the EA must be amended to ensure that
for all extradition requests, a UK judge has the power to bar an
extradition where the alleged conduct took place in whole or in
substantial part in the UK and where, given the circumstances of the
case, extradition would not be in the interests of justice.
A prima facie case must be established prior to extradition: British courts
must have the opportunity to determine whether there is sufficient
evidence against an individual to warrant their extradition. Before such
a significant engagement of a person’s human rights it must be
determined whether there is a case to answer. To this end the
European Framework Decision will need to be renegotiated and Part 1
of the EA amended. Part 2 of the EA will also need to be amended to
remove the list of countries currently exempted from having to provide
prima facie evidence for extradition requests (following renegotiation
of bilateral extradition treaties where necessary). The power for
ministerial designation via statutory instrument under Part 2 of the Act
should also be removed. The clear injustices which have occurred
under the US-UK treaty, as detailed in this submission, show a clear
mandate for change.
Dual criminality: the EA must be amended to ensure that only conduct
which would be an offence within the UK is an extraditable offence
under Part 1. This will put an end to UK residents being subjected to
prosecution for acts deemed criminal wholly out of keeping with UK
values, and will go some way to ensuring that extradition warrants are
executed only in a proportionate manner.
Renegotiation of the European Framework Decision: The European
Framework Decision must be renegotiated in order to re-insert the
prima facie case safeguard (see above). Renegotiation should also
involve re-inserting the dual criminality requirement for extradition within
the EU. Further, given conflicting policies amongst Member States a
court must be able to determine whether the ramifications of the
alleged crime for which extradition is being sought are disproportionate
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to the impact on the person who will be affected by their removal to
another state and whether it is in the public interest to pursue
extradition.
Renegotiation, where necessary, of bilateral treaties: Ensuring that there
are adequate safeguards in place for UK residents subject to
extradition may require the renegotiation of certain bilateral treaties,
and/or the removal of the Part 2 designation order. What will be
required will vary from one treaty to the next, but it is vital that
safeguards be reinstated even where this requires diplomatic
negotiation. All of the arrangements with Part 2 countries must be
reviewed – not only that of the US-UK.
Provisional Arrest: The ability to hold a provisionally requested person
without charge for 45 days or more without an official warrant is
tantamount to holding someone without charge. Not only will this have
a devastating impact on the detained person’s private life, as well as
that of their family, it is a breach of the right not to be imprisoned
without lawful charge and conviction. 62 The provisional arrest powers in
the Act must be reviewed and the length of time a person is able to be
held drastically reduced, with much stronger judicial safeguards.
European Investigation Order: Finally, Liberty is concerned that the EIO
Directive, as currently drafted, lacks express safeguards for human
rights and procedural fairness which is likely in practice to lead to a
similar impact as the operation of the EAW.
Introduction
1. On 10th December 2010 the Joint Committee of Human Rights (JCHR)
announced an inquiry into the human rights implications of the UK’s
extradition policy. The inquiry follows on from the Home Office review of the
same, announced on 8th September 2010, 63 to which Liberty submitted a
detailed response.3 64 Liberty has long held concerns about the UK’s
62 As protected by Article 5 of the European Convention on Human Rights as incorporated
into UK law by the Human Rights Act 1998.
63 House of Commons Hansard, 8 September 2010 at column 15WS. The Home Office review
focuses on five areas: (a) the breadth of the Home Secretary’s discretion in an extradition
case; (b) the operation of the European Arrest Warrant including the way in which its optional
safeguards have been transposed into UK law; (c) whether the forum bar to extradition
should be commenced; (d) whether the extradition treaty between the UK and UK is
unbalanced; and (e) whether requesting states should be required to provide prima facie
evidence (that is, that there is sufficient evidence to form a case against the defendant).
64 Liberty’s response to the Home Office review of extradition legislation (December 2010),
available at http://www.liberty-human-rights.org.uk/pdfs/policy10/liberty-submission-tohomeoffice-extradition-review-december-2010.pdf.
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extradition arrangements. 65 From a human rights perspective, the legal and
international frameworks governing these arrangements are inherently
flawed. A review of the experience of practical impact of the EA since it
came into force evidences a clear mandate for change.
2. The JCHR inquiry focuses on whether the UK’s bilateral extradition treaties,
along with the European Arrest Warrant (EAW) system and the European
Investigation Order (EIO), comply with the UK’s human rights obligations. The
inquiry will address a number of issues, including
(a) whether current extradition arrangements provide adequate
protection against any unjustifiable infringement under the HRA, and
what safeguards should be included to better protect human rights;
(b) whether bilateral extradition treaties override human rights, and
whether and what safeguards are required to better protect human
rights;
(c) the implementation in the UK of the European Arrest Warrant; and
(d) the human rights implications of the European Investigation Order.
The breadth of issues covered by this inquiry recognises the extent of the
problems with the current extradition system. Liberty believes that it is not only
the political arrangements in place but also the legal implementation of
those arrangements under the Extradition Act 2003 (EA) which need to be
reviewed. It is also important that any reform of extradition law goes beyond
the arrangements which have received more political and media attention in
recent years, such as the UK-US extradition treaty, to consider the
arrangements in place with all other countries.
3. Liberty’s position is that the EA, which implements both European
arrangements and international obligations, has removed crucial safeguards
and eroded the ability of the judiciary to properly oversee extradition
requests. While Liberty has always been conscious of the need to ensure that
suspected offenders face trial, we believe that this must, and may, be
reconciled with a system which protects people against unfair or unnecessary
extradition. Extradition permits the forcible removal to a foreign country of
people resident in the UK, including UK citizens, who may have no connection
with the foreign jurisdiction. Extradition proceedings have a profound and
65 See, for example, Liberty’s Response to the Home Office consultation on The Law of
Extradition (2001) available at http://www.liberty-human-rights.org.uk/pdfs/policy01/junextradition.pdf. For more information about Liberty’s Extradition Watch Campaign see:
http://www.liberty-human-rights.org.uk/human-rights/justice/extradition/index.php.
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often irreversible effect on all aspects of a person’s life, including their mental
and physical health and their ability to carry on relationships with family
members. Even where an individual is later exonerated, extradition of UK
residents has been shown to end employment and ruin careers, destroy
marriages, interfere with studies, and affect other personal and social ties. The
removal of an individual to a foreign jurisdiction for investigation and possibly
prosecution necessarily engages historic rights to fair trial, liberty and the
prohibition on inhuman and degrading treatment.
4. Concern about current arrangements has emanated not only from human
rights campaigners but from lawyers, judges, journalists and parliamentarians
across the political spectrum including at the highest levels of Government. In
recent polling commissioned by Liberty, a majority of parliamentarians
recognised that there are significant flaws in the current extradition
framework. 83% of all MPs surveyed agreed, or agreed strongly, that if a
significant part of the alleged crime took place in the UK then it ought to be
left to a British court to decide if it is in the interests of justice to extradite the
person or have them tried at home. 66 66% of MPs agreed, or agreed strongly,
that extradition should only occur if the country requesting it first provides
evidence to a UK court. 67 In relation to the high profile proposed extradition of
Gary McKinnon, the Prime Minister, while Leader of the Opposition, stated he
could “see no compassion in sending [Gary McKinnon] thousands of miles
from his home and loved ones to face trial” given there is a “clear argument”
that he could be tried for these offences in a British court, and that the
possibility that he would be extradited raised “serious questions about the
workings of the Extradition Act”. 68 The Deputy Prime Minister stated that the
extradition of Mr McKinnon would amount to “a travesty of justice”; 69 and the
Rt Hon Chris Grayling MP said as Shadow Home Secretary last year that a
review of the US/UK extradition treaty was “vital to maintain the integrity of our
extradition system” given it was facilitating extradition of people who “are not
actually the people we were told, in the first place, it was designed for”. 70
Even the former Home Secretary, the Rt Hon David Blunkett MP, who
negotiated and signed the US-UK treaty, has recently conceded that, with
the benefit of hindsight and knowledge of how extradition arrangements are
66 The survey data was independently collected by ComRes, 2 to 17 September 2010. There
were 151 MPs surveyed, with data weighted to reflect the exact composition of the House of
Commons in terms of party representation and regional constituency distribution
67 Ibid.
68 http://news.bbc.co.uk/1/hi/uk/8178321.stm
69 Article written by Nick Clegg in The Daily Mail, “If they drag McKinnon to America, he will
never come back” (4 August 2009), available at http://www.dailymail.co.uk/debate/article1203572/NICK-CLEGG-If-drag-McKinnon-America-come-back.html.
70 “Time to show just how flawed the US-UK extradition treaty is” The Telegraph (19 July 2009),
available at http://www.telegraph.co.uk/finance/comment/5864977/Time-to-show-justhowflawed-the-US-UK-extradition-treaty-really-is.html.
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working in practice, both the extradition treaties and EAW should be
reviewed and improved. 71
5. In this evidence to the Committee we set out the basic features of
extradition law, and then address key concerns under Part 1 of the EA in
relation to the European Arrest Warrant and under the non-EU country
arrangements set out at Part 2 of the EA. Liberty recognises that there is an
important role for streamlined extradition in the fight against serious crime.
However we believe that sacrificing critical safeguards for British residents for
the sake of expediency is the wrong approach and leads to grossly unfair and
punishing outcomes. This unfairness is compounded by the fact that
important safeguards have largely been maintained for the residents of our
extraditing partners. Our central submission to the JCHR inquiry is that the EA
needs to be urgently amended to include necessary safeguards to stop
unjust extradition. In some instances this means that the underlying treaties
and frameworks will need renegotiation. In summary, extradition should only
take place where there is a prima facie case against the defendant and it will
not be contrary to human rights to do so. It should not take place where the
alleged crime is not a crime in this jurisdiction, where the impact of the
extradition is disproportionate to the offence to which the warrant relates, or
where the alleged conduct predominantly took place within the UK and it
wouldn’t be in the interests of justice to extradite. In essence, meaningful
oversight powers need to be returned to the courts, while maintaining a finite
role for the Secretary of State.
Background to the UK’s extradition arrangements
6. The formal surrender of a person from one country’s territory to another to
allow a prosecution to take place has traditionally been undertaken pursuant
to treaty arrangements between the two countries. Thus the UK once had,
and still has in many cases, a number of treaties with various countries setting
out the terms under which a person can be extradited. This system was first
recognised in our domestic legal system by the Extradition Act 1870. The laws
were consolidated by the Extradition Act 1989, and then underwent a major
overhaul in the Extradition Act 2003 (EA). The EA was the result of an extensive
review of extradition law which began in 1997. The review was halted while
litigation in relation to the Chilean request to extradite General Pinochet was
ongoing, and proposals for consultation were ultimately published in March
71 Uncorrected evidence given to the Home Affairs Committee, on 30th November 2011, at
question 5. Uncorrected evidence available at
http://www.publications.parliament.uk/pa/cm201011/cmselect/cmhaff/uc644i/uc64401.htm.
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2001. 72 Significant amendments to the EA were also later made by the
Policing and Crime Act 2009.
7. The Home Office consultation in the late 1990s took place against the
highly charged political and legal background of the Pinochet extradition.
The Home Office explained at the beginning of its paper that of particular
significance was the way this case “threw into high relief many of the
problems of UK extradition law, most notably the lengthy delays which can
occur in complex, contested extradition cases”. 73 The consultation also
considered how to implement the Framework Decision of the European
Council, which was to become effective on 1 January 2004. 74 The Framework
Decision applies to all European Union Member States and replaced the
traditional extradition scheme between those states. 75 The idea behind it is
that an arrest warrant issued in one Member State can be recognised and
enforced in all other Member States so allowing for faster and simpler
surrender procedures and removing the ability of the executive to stop any
extradition request. The UK is bound under EU law to implement the
Framework in domestic legislation. The 2003 Act was passed on 20 November
2003 and generally came into effect on 1 January 2004.
8. The 2003 Act is an extremely complex and confusing piece of legislation
which essentially sets out three different processes by which extradition will
operate:
(1) in relation to EU countries that are subject to the EAW (category 1
territories, governed by Part 1 of the EA);
(2) most non-EU countries (category 2 territories, governed by Part 2 of the
EA); and
(3) non-EU countries designated by order that aren’t required to prove a
prima facie case (category 2 territories excepted by order, also governed
by Part 2 of the EA).
Traditional safeguards available in extradition law
9. Before going on to address extradition arrangements in relation to each of
these categories, it is important to set out what safeguards have traditionally
72 Home Office, The Law on Extradition: A Review (March 2001)
73 Ibid, at para 8.
74 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the
Surrender Procedures between Member States (2002/584/JHA), (‘European Framework
Decision’) available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:190:0001:0018:EN:PDF.
75 See the recital to the Framework Decision, ibid.
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been part of UK extradition law. During the reworking of the system in the 2003
Act and the later amendments in 2009, some of the safeguards which were
previously in place to protect a person subject to an extradition request were
removed or whittled down. This has led to an extradition system which leaves
UK residents with minimal protection when faced with spurious or speculative
prosecution beyond British shores.
10. Some traditional and important safeguards include the requirement for a
prima facie case to be made out before extradition is ordered; and the
power for extradition to be refused if the requesting state was not the most
appropriate forum to try the offence. Other important safeguards include the
rule of dual criminality, political offence exceptions, and the requirement that
an extradited person cannot be prosecuted for anything other than that for
which he or she was extradited (the rule of specialty).
Prima facie case
11. The usual rule is that before a person is extradited to a requesting country,
the requested country’s courts should first consider whether a prima facie
case has been made out against the person. This means that the requesting
country has to demonstrate that there is a case to answer. The courts’ ability
to scrutinise an extradition request provides an essential safeguard against
oppressive extradition requests by ensuring that there is genuinely a
complaint against the accused that is supported by at least some evidence.
Given the substantial impact forced removal to a foreign country has on a
person, the requirement to make out a case to answer before extradition is
ordered is an essential safeguard. As regards the UK, this requirement was
removed for a number of countries under the EA.
Most Appropriate Forum
12. The forum safeguard ensures that where an offence or act is allegedly
conducted partly or wholly within the UK, a judge will be able to consider
whether it is in the interests of justice for that person to be extradited. A forum
safeguard is common in extradition treaties. The 1957 European Convention
on Extradition, for example, provides that an extradition request can be
refused where the requested state considers that the alleged offence was
committed ‘in whole or in part in its territory or in a place treated as its
territory’. A similar provision is included in the EU Framework Decision on the
EAW (however this bar is strangely not included in the EA in the list of factors
which can bar an extradition request). In 2006, the House of Lords successfully
tabled an amendment to the EA incorporating a forum bar into UK domestic
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extradition arrangements. 76 This provision, however, has never been brought
into force.
Rule of dual criminality
13. The principle of dual criminality was for a long time applied by all countries
under international law. It requires that the act or omission with which a
person has been charged is criminal in both the requesting and the
requested State for an extradition to go ahead. This stems from the principle
that there should be no punishment without law—so that a person should not
be sent to a country to face prosecution for an offence that is not criminal in
the extraditing State (and is also linked to the principles of state sovereignty).
The EA, implementing the Framework Decision, has effectively abolished the
dual criminality requirement for extradition within the EU by allowing
extradition for a broadly defined range of offences which can include
numerous offences which are not considered criminal acts in the UK.
14. A traditional safeguard which remains in place is the rule that an
extradition request may be refused if the requesting State is seeking to
extradite the person for political reasons or if the alleged offence was
committed for political reasons. The concept of a ‘political offence’ is related
to the idea of political asylum (although the definition has difficulties,
especially in relation to terrorism offences). 77 Most international extradition
treaties will allow for an exception if there are substantial grounds for believing
that the request for extradition has been made for the purpose of punishing
someone on the grounds of race, religion, nationality, ethnic origin or political
opinion. 78
15. The ‘specialty’ rule also remains in force. This requires that a person who
has been extradited cannot be prosecuted for any offence other than the
offence for which he or she was extradited. This rule safeguards against the
risk that a person may be subsequently tried for a political offence and
reinforces the rule on dual criminality. It also protects a person from facing a
charge for which he or she has not had notice and for which no prima facie
case has been proved before the requested country’s courts. 79
76 Under the Police and Justice Act 2006, as outlined below.
77 See Stanbrook and Stanbrook, Extradition Law and Practice (2000), at pages 65-69
78 Note, however, that the EAW scheme does not provide for this.
79 Ibid, page 47.
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Political offence exception and rule against specialty
Operation of the EA
Part 1 of the EA—The European Arrest Warrant
16. As outlined above, the EA implements the European Arrest Warrant
scheme, designed to facilitate streamlined extradition of suspects throughout
EU Member States bound by the European Framework Decision. It allows for a
fast track system of extradition, whereby people arrested subject to an EAW
are swiftly extradited from Britain, often within weeks, for charge, prosecution
or imprisonment. The EAW was introduced in the post 9/11 context, sweeping
away a number of safeguards previously found in the UK’s extradition
arrangements. The Home Secretary who was in office at the time the
Framework Decision was agreed, the Rt Hon David Blunkett MP, recently said
that at the time he signed Britain up to the EAW he was “insufficiently sensitive
to how it might be used”. 80
17. Part 1 of the 2003 Act deals with the 27 EU countries that are bound by the
European Framework Decision. 81 Once a European Arrest Warrant has been
issued by a Member State the UK must arrest the person and bring him or her
before a judge to consider whether the person is the person specified in the
warrant, at which point the judge can detain or bail the person. The judge
must (unless the person consents to being extradited) then set a date for the
extradition hearing within 21 days. The aim of the hearing is to satisfy the court
that (a) the person has been charged with an extradition offence and (b)
that none of the legal bars to surrender apply. An extradition offence includes
offences punishable by 12 months imprisonment or more and which are
offences in the UK, but it also includes offences listed in the European
Framework Decision which may not be offences within the UK 82 (see our
comments below in relation to dual criminality). Extradition can be barred in
80 http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-in-Britons-exportedfor-trial.html.
81 The countries to which Part 1 of the EA applies are: Austria, Belgium, Bulgaria, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary,
Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain, Sweden: see section 1 of the EA and Extradition Act 2003
(Designation of Part 1 Territories) Order 2003, SI 2003/3333.
82 See sections 64 and 65 of the EA. In relation to Category 1 territories, an extradition offence
includes an offence that is on the list of 32 offences set out in the European Framework
Decision, punishable by a maximum sentence of at least three years detention in the
requesting country (article 2.2). Section 64 also includes other offences that would constitute
extraditable offences where the conduct is committed outside of the Category 1 country
requesting extradition. Section 65 applies an extradition offence to the situation where a
person has been convicted of a relevant offence and sentenced to 12 months imprisonment
or more.
99
Written Evidence submitted by Liberty (EXT 6)
certain limited circumstances, 83 including if the court decides that the
person’s extradition would not be compatible with his or her human rights
under the Human Rights Act 1998. 84 As outlined in more detail below, this
latter ground, whilst a welcome provision, has been interpreted in such a way
by UK courts that it will rarely be a successful bar to extradition. The EA fails,
however, to implement a key safeguard in the Framework Decision; that is,
the opportunity for the executing judicial authority to refuse to execute an
EAW where it relates to an offence which has in whole or in part allegedly
been committed in the Member State. 85 The ‘forum bar’ is completely absent
from our legal extradition framework.
Part 2 of the EA
18. Part 2 of the EA applies to over one hundred countries with which the UK
has an extradition agreement in place. Under this Part, ‘Category 2 territories’
include 92 countries with whom extradition arrangements are in place, 86 as
well as a number of countries which have been ‘exempted by order’ to
which further provisions apply. There are significant differences between Part
2 and Part 1 (covering the EAW). Before a Court can order a person’s
extradition to a category 2 country it must decide if there is sufficient
evidence to make a case to answer (that is, a prima facie case). 87 It also
requires dual criminality for all extraditable offences (which would be subject
to 12 months or more imprisonment in the UK). 88 The need to show a prima
facie case provides a valuable safeguard against oppressive extradition
requests by ensuring that there genuinely is a complaint against the
defendant supported by evidence. The requirement for dual criminality
ensures that only conduct we consider to be criminal can be prosecuted.
With the inclusion of these two important safeguards, Part 2 of the 2003 Act is
far preferable to the situation under Part 1 in relation to the EAW, discussed
below. Nonetheless Part 2 is dangerously flawed. Not only does it fail to
include important safeguards regarding the most appropriate forum, it also
allows for the removal (by secondary legislation) of the prima facie case
requirement. As we examine below, a number of countries have already
83 See sections 11 to 19A of the EA. Extradition can be barred if it would breach the rule
against double jeopardy; if the extradition warrant has been issued to prosecute or punish
the person for his or her race, religion, nationality, gender, sexual orientation or political
opinions; if too much time has passed; if the person is under the age of criminal responsibility;
etc. The courts can also refuse to extradite if the person has already been convicted in the
person’s deliberate absence and he or she will not be entitled to a retrial: see section 20 of
the EA.
84 Being the rights set out in the European Convention on Human Rights and incorporated
into UK law by the Human Rights Act 1998.
85 Article 4(7) of the Framework Decision, ibid.
86 See Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, clause 2.
87 See sections 84 to 86 of the EA.
88 See sections 137 to 138 of the EA.
100
Written Evidence submitted by Liberty (EXT 6)
been exempted by order under Part 2 allowing them to request extradition of
an individual without providing evidence of a prima facie case.
Appropriate forum bar
19. Liberty believes that a decision about where a person should face trial
should be informed by most appropriate forum and interest of justice
considerations. This will ensure recognition of the serious impact of extradition
on a person and their family and allow cases to be prosecuted in the country
where most evidence is available. Where the conduct that constitutes the
alleged offence takes place in whole or in part in the UK, extradition to a
foreign country will inevitably result in difficulties in defending the case given
that many witnesses and other evidence will be in the UK. Issuing a subpoena
to a UK-based witness from another jurisdiction may well prove difficult (or
impossible) and seriously affect a defendant’s ability to mount a proper
defence. With the advent of the internet, it is now the case that online activity
in one part of the world can result in criminal liability in another without the
offender ever stepping outside their living room, let alone crossing
international borders. Coupled with the increasing willingness of countries to
assert extra-territorial jurisdiction, the threat of extradition in these
circumstances is becoming an increasingly serious problem given the minimal
judicial protections built into our domestic extradition legislation.
Case study—The Natwest 3, David Bermingham, Giles Darby & Gary Mulgrew
Three British men, (commonly referred to as the NatWest 3) were indicted by
the US authorities in June 2002. It was alleged that they had conspired with
two members of Enron to defraud the Natwest Bank in London. Their
extradition request was, however, delayed until February 2004, one month
after the EA came into force.
The NW3 argued that since they were three British citizens, living and working
in the UK, accused of defrauding a British bank in the UK, they should face trial
in the UK. In particular, they argued that all of the available evidence and
defence witnesses were in the UK, and that if extradited they would have no
access to either. The case was remarkable because the alleged victim,
NatWest Bank, had never made any complaint against the men. 89
Their extradition requests were granted by a magistrates’ court in October
2004. The Home Secretary ordered their extradition in May 2005. The men
appealed and were also granted a judicial review of the refusal of the Serious
Fraud Office to investigate the case in the UK. Their appeals were rejected in
89 See http://news.bbc.co.uk/1/hi/business/5163982.stm.
101
Written Evidence submitted by Liberty (EXT 6)
February 2006. 90 Liberty intervened on their behalf in the High Court, arguing
that human rights considerations meant that it was neither necessary nor
proportionate to extradite the men because they could so easily be tried in
the UK, and indeed should be tried here. Counsel for the Attorney General
argued that the desirability of honouring the UK’s international treaty
obligations should outweigh a person’s Article 8 rights 91 in all but the most
extreme cases. The court agreed, but certified the point as being of public
interest. The NW3’s attempt to have the decision in the Government’s favour
appealed was refused by the House of Lords. The men were consequently
extradited to Houston, Texas, in July 2006.
As they had predicted, the NW3 were unable, once in the US, to secure
disclosure of documents or subpoena witnesses from the UK. They had had no
sight of the prosecution documents until setting foot in the US, and in the
absence of any UK proceedings they had been unable to access any
materials prior to extradition.
In November 2007, the NW3 agreed to plead guilty to one count of ‘wire
fraud’, and were sentenced in February 2008 to 37 months’ imprisonment.
They were transferred back to the UK in November 2008 to serve the
remainder of their sentence. Since their release they have spoken out about
the case, outlining that the pressure of their situation in the US lead to their
guilty pleas. 92
Case Study - Gary McKinnon
Gary McKinnon is a British man who has been charged with hacking into the
US Pentagon and NASA systems between 1999 and 2002, an offence which
was allegedly committed from his computer at home in Scotland. After a US
extradition request for Mr McKinnon was issued in 2004, the Home Office
began preparing to extradite Mr McKinnon to America for him to stand trial.
Mr McKinnon has been diagnosed with Asperger’s Syndrome, and his mental
health has seriously deteriorated since the legal proceedings against him
began. Because of this, and the fact that the crime was committed on British
soil, Mr McKinnon has continually argued that he should be tried here in
Britain. The Crown Prosecution Service, however, has decided not to bring
charges against Mr McKinnon in the UK. 93
90 R (Bermingham, Mulgrew and Darby) v The Director of the Serious Fraud Office [2005]
EWHC 647 (Admin).
91 The right to privacy and family life, protected by Article 8 of the European Convention on
Human Rights as incorporated into domestic law by the Human Rights Act 1998.
92 http://www.guardian.co.uk/business/2010/aug/15/natwest-three-recant-guilty-pleas/
93 The Crown Prosecution Service refused to bring charges under the Computer Misuse Act
1990 against Mr McKinnon in 2003 and later in 2009. Lord Justice Stanley Burnton (with whom
102
Written Evidence submitted by Liberty (EXT 6)
Consequently in a series of decisions made by both the courts and the
Secretary of State Mr McKinnon’s fate has been deliberated for six years. 94 In
May 2010 the Home Secretary announced that she would reconsider the
decision of her predecessor, the Rt Hon Alan Johnson MP, in November 2009
that there were no human rights grounds which precluded Mr McKinnon
being extradited to the US. Since the first High Court decision in 2007 further
evidence has come to light not considered in the early judicial proceedings
which indicates that the mental suffering of Mr McKinnon, reflecting not only
his Asperger’s condition but also now his depression and a significant risk of
suicide, is such that to decide to extradite him would be disproportionate and
a breach of his right to privacy and a family life, and potentially the right to
be free from torture or inhuman or degrading treatment. 95
20. One of the more illogical features of the current UK extradition
arrangements is that a key potential safeguard, requiring that a domestic
court must consider the most appropriate forum to prosecute the charges in
question before granting extradition, sits on the statute book but has not yet
been brought into force. In 2006 amendments were successfully tabled to the
EA 96 that would allow a UK court to bar extradition if a significant part of the
conduct that constituted the alleged offence took part in the UK and in view
of that, and all other circumstances, it would not be in the interests of justice
for the person to be tried in the other country. 97 This would require a judge,
determining an extradition request under both Parts 1 and 2, 98 to decide on
the basis of evidence in each individual case whether it is appropriate to
extradite a person in such circumstances. Liberty believes that a forum
amendment is long overdue. Any such amendment must, however, ensure
Lord Justice Wilkie agreed) noted in his judgment in the most recent judicial review that there
were other forums in which Mr McKinnon could be prosecuted: at para 11 in R (on the
application of McKinnon) v Secretary of State for Home Affairs [2009] EWHC 2021 (Admin).
94 A decision was first made on 10 May 2006 by District Judge Evans in Bow Street
Magistrate’s Court to send the case to the Secretary of State, who decided in July 2006 that
Mr McKinnon ought to be extradited. Appeals against both District Judge Evans and the
Secretary of State were dismissed in 2007: [2007] EWHC 762 (Admin); and finally by the House
of Lords in July 2008: [2008] UKHL 59. Following further evidence and a request for the
Secretary of State to reconsider, a further decision to extradite Mr McKinnon was decided in
2008, which was reviewed in the Secretary of State’s favour by the High Court: [2009] EWHC
2021 (Admin). For a detailed history of the case see the decision of Lord Justice Stanley Burton
(with whom Justice Wilkie agreed), R (on the application of McKinnon) v Secretary of State
for Home Affairs [2009] EWHC 2021 (Admin).
95 Protected by Articles 8 and 3, respectively, of the European Convention on Human Rights
as incorporated into domestic law by the Human Rights Act 1998.
96 See Schedule 13, paragraphs 4 and 5 of the Police and Justice Act 2006.
97 These amendments would effect forum being a bar to extradition by amending section
79(a) (inserting ‘forum’ as one of the bars to extradition); and inserting sections 19B and 83A.
98 Paragraph 4(1) of Schedule 13 of the 2006 Act, ibid, would insert a new bar to extradition,
‘forum’, to section 11, Part 1 of the EA, and insert section 19B; paragraph 4(5) of Schedule 13
would insert the same for extradition requests from Part 2 territories at section 79 and section
83A.
103
Written Evidence submitted by Liberty (EXT 6)
that there is not one particular factor which outweighs another in a best
interests test, the essence of which allows the judge full discretion to
determine the case on the facts in question. We do, accordingly, caution
against the inclusion of a specific instruction to take into account one factor
(such as whether the UK authorities are prosecuting the alleged offence).
21. In 2009 the Policing and Crime Bill finally presented an opportunity to bring
the 2006 forum amendment into force. However following the tabling of the
necessary clauses, the then Attorney General wrote to all members of the
House of Lords suggesting that enactment of the 2006 forum provisions in the
EA would place the UK in breach of its international obligations under the
extradition treaties to which it is a party because the treaties did not permit
appropriate forum to be a basis for refusal of an extradition request. In
response Liberty obtained an opinion from leading extradition experts (at
Annex 1) which states that there was in fact no basis on which it could be
asserted that a forum consideration would place the UK in breach of
international obligations. If there was a forum amendment in the EA, a treaty
agreement would only need to be renegotiated or amended if the forum
provision was in fundamental conflict with the terms of the treaty. Similarly in
relation to the EAW, although there is a list of grounds on which extradition
may be refused under the EAW, there is no reason an additional ground
could not be added, as several EU Member States have already done.
22. Gary McKinnon’s ongoing plight shows clearly the type of injustice which
could be avoided if extradition could be barred on forum grounds where
required in the interests of justice. 99 If a UK court could bar extradition on the
basis of forum considerations, it is likely that such a power would be exercised
in cases such as Mr McKinnon’s as the alleged offence was committed in the
UK and, due to Mr McKinnon’s diagnosed Asperger’s syndrome and
deteriorating mental state, it is likely that it would not be in the interests of
justice for him to be tried in the US and face possible long-term imprisonment.
That the current arrangements will lead to an unjust result has been
repeatedly recognised by senior Ministers in the Coalition Government. In
relation to the case of Mr McKinnon the Prime Minister stated in
Gary McKinnon is a vulnerable young man and I see no compassion in
sending him thousands of miles away from his home and loved ones to face
trial. ...If he has questions to answer, there is a clear argument to be made
99 To bring the ‘forum amendment’ into force an order would need to be laid and approved
by both Houses of Parliament which would enact paragraphs 4 and 5 of Schedule 13 to the
Police and Justice Act 2006 bringing those listed provisions into force: as per paragraph 6 of
Schedule 13
104
Written Evidence submitted by Liberty (EXT 6)
that he should answer them in a British court. This case raises serious questions
about the workings of the Extradition Act... 100
23. We believe that a forum amendment, as proposed by both Coalition
partners when in opposition, therefore represents the best way of ensuring
that where elements of an offence took place in the UK and where the
interests of justice require it, a domestic court can decide whether or not
extradition should take place. It is important to note that the European
Framework Decision itself provides that a European arrest warrant may be
refused if it relates to offences which are regarded as having been
committed in whole or in part in the territory of the state which receives the
extradition request. 101 This provision, however, was not included in the finite list
of bars to extradition in the EA. 102 A forum amendment, as attempted in 2006
and then 2009 should be immediately brought into force to ensure that this
important safeguard can be relied upon in relation to extradition requests
from both EU Member States and our bilateral extradition partners.
Prima facie case
24. Extradition requests under Part 1 or from countries designated under Part 2
of the EA require minimal involvement from a UK court. The court simply has to
identify that the person arrested and detained is the person named on the
warrant and that the requisite information has been provided by the issuing
state. 103 A UK court therefore will never consider the substance of the
allegations made against the defendant. Instead, the court will simply be
required to be satisfied that none of the very limited ‘bars to surrender’ apply.
25. As regards Part 1 countries, the idea behind removing the requirement for
a prima facie case was that each EU country’s prosecuting authorities would
first consider whether there was sufficient evidence to try a person in that
country before requesting extradition. On this reasoning it was felt that there
should be no need for another EU country to also check if a case could be
made out against that person before ordering their extradition. Unfortunately,
the premise for this streamlined reform has not been borne out in the
operation of the EAW system. This has resulted in serious injustice, as the case
study of Andrew Symeou, set out below, clearly evidences.
100 As reported in “Don’t take my son, mother of computer hacker Gary McKinnon appeals
to Obama” The Times, Richard Ford (1 August 2009), available at
http://www.timesonline.co.uk/tol/news/uk/crime/article6735557.ece.
101 See article 7.7(a) of the Framework Decision, ibid.
102 At section 11 of the EA.
103 See section 2 of the EA for the information required.
105
Written Evidence submitted by Liberty (EXT 6)
Case Study—Andrew Symeou
In June 2008, Greece issued a European Arrest Warrant for Andrew Symeou, a
20 year old British national, to face charges equivalent to manslaughter
arising out of an assault in a nightclub in July 2007. The UK courts, acting under
Part 1 of the EA, ordered his extradition in 2008. In accordance with the Act
our courts were unable to consider whether or not he has a case to answer,
even though all evidence strongly indicates that he does not. Two witness
statements that implicated Andrew were immediately withdrawn after the
witnesses were released from police custody, citing beatings and intimidation.
No statement has ever been taken from Andrew and witness evidence
suggests that Andrew was not in the nightclub at the time the victim was
assaulted. The High Court held that it is for the Greek courts to assess the
quality and validity of the evidence. In holding that the requested extradition
could not be barred the court noted:
The absence of even an investigation before extradition into what has been
shown by the Appellant here may seem uncomfortable; the consequences of
the Framework Decision may be a matter for legitimate debate and
concern. 104
From the date of his extradition to the first appointed date of trial in June 2010
Andrew was kept in prison, for the most part in a maximum security facility,
with bail being refused on several occasions on the basis that Andrew was
not a Greek national and did not reside in Greece. In late May 2010 the
prosecutor successfully applied for the trial date to be adjourned to allow for
witnesses to be summonsed for trial. Andrew was at that time released on
bail, with a requirement that he remain in Greece. At the time of writing no
new trial date had been set; Andrew’s punishment continues and his life
remains on hold.
26. As regards extradition to non-EU countries, the removal of the prima facie
safeguard for a number of Category 2 countries has already taken place.
These are countries in relation to which the former Government made a series
of Orders removing this requirement—at most recent count, there are 24
designated (non-EU) countries. 105 All non-EU Council of Europe countries have
been designated, as well as established democracies including Canada and
104 Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] EWHC
897 (Admin) at paragraph 39.
105 See the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, and sections
71(4), 73(5), 84(7) and 86(7) of the Extradition Act 2003. The countries which are currently
designated are: Albania, Andorra, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina,
Canada, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedonia FYR, Moldova, New
Zealand, Norway, Russian Federation, Serbia and Montenegro, South Africa, Switzerland,
Turkey, Ukraine and The United States of America.
106
Written Evidence submitted by Liberty (EXT 6)
Australia. Also designated are a number of countries with more dubious
democratic and human rights records such as Azerbaijan, Georgia, Moldova,
the Russian Federation and Turkey. 106 Nothing in the Act prohibits the
designation of further countries. The effect of designation means that the
requesting country need only provide ‘information’ rather than ‘evidence’ to
satisfy the test for the issuing of an arrest warrant 107 and a judge need not
require sufficient evidence to be produced before ordering the extradition of
a person. 108 The same concerns as set out above for the EAW therefore apply
here, but with greater force given there is no presumption that each of the 24
listed countries have the same robust systems of investigation and prosecution
as EU countries have (a presumption that we question in any event).
27. As is the case under the EAW, the practical operation of this part of the
Act has unsurprisingly lead to unfair results. Many international agreements
are also unbalanced: the terms of the agreements together with the low
standards of the EA mean safeguards in place for people the UK wishes to
extradite are not in place for our own residents. The problems with this part of
the EA have been most clearly demonstrated by the operation of the US-UK
extradition treaty, as recognised by the terms of this review. However it must
be kept in mind that while it is important to focus on renegotiation with the
US, 109 this will have no effect unless the 2003 Act itself is amended to restore
the requirements of prima facie case and dual criminality. The focus on the
US-UK treaty caused by recent high profile cases should also not obscure all
the other bilateral arrangements falling within Part 2 which should all be
subject to review.
28. The extradition request for Lofti Raissi, detailed below, which took place
before the 2003 Act was in force, demonstrates aptly the importance of the
prima facie case requirement.
106 The Home Office has said that Council of Europe members have been designated
because the prima facie case requirement was removed by the European Convention on
Extradition which came into force in the UK on 14th May 1991
107 See sections 71(4) and 73(5) of the EA.
108 See sections 84(1) and 86(1) of the EA.
109 Article 8 of the US-UK treaty outlines what is required by a requesting state. Under Article
8(2) this includes an accurate description of the person sought; a statement of the facts of
the offence; the relevant test of the law describing the essential element of the offence; the
prescribed punishment for the offence; a copy of the warrant or order of arrest issued by a
judge or other competent authority; and a copy of the charging document. Further
information is required if the person sought has been already convicted. Crucially, Article
8(3)(c) provides that UK requests to the US require “such information as would provide a
reasonable basis to believe that the person sought committed the offence for which
extradition is requested”.
107
Written Evidence submitted by Liberty (EXT 6)
Case study—Lofti Raissi—pre-Extradition Act 2003
Lofti Raissi, an Algerian born UK resident and American trained pilot, was
arrested under the Terrorism Act 2000 shortly after 9/11 following an allegation
that he had trained four of the men who hijacked the planes involved in the
terrorist attack. He was detained by the UK police, and then released without
charge seven days later. Immediately after his release, however, he was rearrested and imprisoned after an extradition request was issued by the US. The
charge on which the extradition request was based was a minor one, alleging
that Mr Raissi had fraudulently completed a pilot’s licence form by failing to
reveal he had had knee surgery; the court was told that these were ‘holding
charges’ and that charges of conspiracy to murder and terrorism were being
considered by the US authorities. Mr Raissi was then detained for just under
five months in Belmarsh high-security prison, without ever being charged with
an offence by UK or US authorities. 110
It is important to note that this case was decided before the US-UK extradition
treaty was in force; accordingly the prima facie case safeguard was able to
be applied by the judge. On 24 April 2002, Senior District Judge Workman
discharged Mr Raissi in relation to all the extradition charges, on the basis that
a prima facie case was never made out against Mr Raissi. Senior District
Judge Workman noted that although a number of allegations of terrorism
were made, no evidence was ever received by the court to support the
allegation. 111 Mr Raissi has since been completely exonerated. 112
Even though Mr Raissi was never extradited to the United States, his life was
irreversibly impacted by the extradition request. While in prison it became
known that he was suspected of being involved in the 9/11 attacks and he
was subjected to constant racial taunts and threats on his life and he was
stabbed twice. 113 He lost his job and has been unable to re-establish his
career as a pilot; his wife lost her job with Air France; his brother’s wife lost her
job at Heathrow airport; and the family has thousands of pounds of debt
incurred by Mr Raissi’s legal defence. 114
110 The facts of Mr Raissi’s case are set out by Lord Justice Hooper in relation to Mr Raissi’s
compensation for wrongful imprisonment claim: R (on the application of Raissi) v Secretary of
State for the Home Department [2008] EWCA Civ 72.
111 R (on the application of Raissi) v Secretary of State for the Home Department [2008]
EWCA Civ 72 per Lord Justice Hooper at para 2.
112 Ibid, at para 154.
113 http://www.guardian.co.uk/uk/2009/nov/22/lotfi-raissi-algerian-pilot-case.
114 See a personal account from Mr Raissi at
http://www.guardian.co.uk/world/2002/sep/11/september112002.september1147.
108
Written Evidence submitted by Liberty (EXT 6)
29. Had the current US-UK Extradition Treaty 115 been in place and the US
designation under Part 2 of the EA in force, Lofti Raissi would have been
extradited to the US for the purposes of a 9/11 investigation to answer a crime
for which the Home Office has since conceded no evidence ever existed to
implicate Mr Raissi’s involvement. 116 It is likely that he would have been
refused bail in the US given the potential seriousness of a terrorist offence. This
is because the Treaty as implemented by the 2003 Act removed the prima
facie case safeguard hitherto part of UK extradition law.
30. Liberty does not believe that anyone should be removed from the UK
without a domestic court first being satisfied that there is a case to be
answered, in accordance with rules of criminal justice which UK courts apply
to anyone suspected of an offence in this country. While it is important to
ensure that those committing offences do not escape justice it is also essential
that any process for dealing with suspects includes basic safeguards against
abuse. Liberty considers that the prima facie safeguard, in relation to both EU
and non-EU extradition arrangements, must be urgently reinstated. This would
not require a full merits review by a domestic court, with the associated
problems of logistics, appeals and delay. It would instead merely require that
a domestic court be satisfied that a basic case has been made out before
somebody’s private life and livelihood is potentially upended.
Other aspects of operation of EAW
31. In addition to concerns over the absence of the forum bar and a prima
facie case requirement outlined above, Liberty has a number of further
reservations over the current European framework for extradition.
Dual criminality
32. The EA, in implementing the EAW scheme, effectively abolishes dual
criminality for Category 1 countries in respect of 32 categories of offences
listed in the European Framework. This means that for these offences a person
sought by an EU country can be extradited even if the alleged offence is not
one recognised in the UK. 117 The listed offences are not defined and are
extremely broad to the point of being meaningless. Included are such ill115 Extradition Treaty between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the United States of America (Washington, 31 March
2003) CM 5821.
116 Evidence given to the Home Affairs Committee from Senior District Judge Workman was
to the effect that it would have been difficult for him to have done anything other than
extradite Mr Raissi had the new extradition arrangements been in place at the time the
request came to his court: oral evidence given by Senior District Judge Workman to the
Home Affairs Committee, 22 November 2005 at question 28.
117 The only limitation being that the offence is punishable by three years or more
imprisonment in the requesting country.
109
Written Evidence submitted by Liberty (EXT 6)
defined offences as ‘computer-related crime’; ‘racism and xenophobia’;
‘swindling’; ‘racketeering and extortion’; ‘piracy of products’ and
‘sabotage’. 118 When the Home Affairs Select Committee, which looked at the
Extradition Bill in 2002, asked for examples of what ‘racism and xenophobia’
means the examples given included disseminating material in support of, or
displaying symbols of, banned organisations (Germany); participating in
organisations that propagate discrimination (Greece); and disseminating
harmful information about a racial or religious group with a reckless disregard
for the truth (Spain). 119 In fact, there have already been requests for
extradition for speech and racism related offences that are not offences
under UK law. 120
33. We fully endorse what was said by the Home Affairs Select Committee in
2002 before the 2003 Act was passed in relation to these offences:
We have grave concerns about the abolition of the dual criminality
safeguard. The variety of criminal justice systems and of legislative
provisions within the member states of the EU makes it difficult for us to be
[confident] that it will be acceptable in all circumstances for a person to
be extradited from the UK to face proceedings for conduct that does not
constitute a criminal offence in the UK.
Our sense of unease is heightened when we look at the list of 32 offences
specified by article 2.2 of the framework decision....It is apparent that
these offences are defined in generic terms and are probably better
described as “categories of offence”. As noted above, the UK Parliament
has no power to amend them.
We asked the Home Office what information it has about how these
offences are defined in other countries. The Home Office responded that
it “does not have detailed definitions of offences in the criminal justice
systems of other EU member states”. 121
34. As these offences are not defined, even those offences which on the face
of it look to be offences under UK law, may in fact not be. For example, if
another country were to define ‘murder’ as including abortion or assisted
118 See article 2.2 of the Framework Decision and section 215 and Schedule 2 of the EA.
119 See the Home Affairs Select Committee, First Report, Extradition Bill, presented to the
House on 14 November 2002, Annexure 1, available at
http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/138/13802.htm.
120 For example, the extradition request for Gerald Toben, as discussed in House of Commons
Library Note, The European Arrest Warrant in Practice (SN/HA/4879) (23 February 2009),
available at http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha04979.pdf.
121 Ibid, at paragraphs 23 to 25.
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suicide, extradition for such a ‘crime’ could not legitimately be refused under
the 2003 Act as the relevant test is whether the conduct is punishable under
the law of the category 1 territory - not under the law of the UK. This
effectively means that offences to which the list applies can be added every
time the law of another country is amended. This is of huge concern. It means
that people resident in the UK could be extradited to another country in the
EU to face prosecution for an act which is wholly out of keeping with our
values. If parliament has not considered it necessary to criminalise particular
conduct, a person present in this country should not be extradited to face
prosecution elsewhere for such an offence. Another aberration has resulted
from the structure of justice systems in other states. Former Home Secretary,
the Rt Hon David Blunkett MP, recently spoke of one of his British constituents
who was picked up in Spain for an EAW issued by Luxembourg on civil rather
than criminal grounds (resulting from the dual civil and criminal procedural
structure in Luxembourg). 122
Proportionality of Extradition Request
35. It has also become increasingly clear that the operation of the EAW
system is both unfair and unworkable. As use of the EAW has evolved it has
become evident that while some prosecuting agencies do first consider
seriousness, public interest and whether there is a basic case to answer before
issuing an arrest warrant, others do not. For example, in Poland there is no
public interest test. This means that the prosecutor has no choice but to seek
to prosecute even where prosecution (let alone extradition) is evidently not in
the public interest. This has resulted in half of the extradition requests being
from Poland in 2009, roughly ten times the amount extradited to Ireland even
though there are more Irish residents in the UK than Polish. 123 Examples
abound of individuals being extradited in circumstances where the impact of
their extradition is undoubtedly disproportionate to the alleged offence.
Indeed the punishing impact of some extraditions has arguably been worse
than any potential sentence that may or may not be received at the end of
a successful prosecution.
Examples of EAW requests to the UK
1. 49 year old Briton Patrick Reece-Edwards was extradited to Poland after an
EAW was issued alleging that he had forged a car insurance certificate. 124
After spending several weeks in a British prison Mr Reece-Edwards was
122 Uncorrected evidence given to the Home Affairs Select Committee on 30th November
2010, ibid, at question 5.
123 Home Office Statistics, as analysed in
http://www.economist.com/node/15179470?story_id=15179470
124 Reece-Edwards v Suwalki District Court, Poland [2009] EWHC 3589 (Admin).
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extradited to Poland, only for the matter to be resolved by payment of an
administrative penalty with no criminal record. 125
1.
Mr Hubner was extradited to the Czech Republic to serve a five month
sentence imposed after he drove away from a petrol station without
paying, a theft to the value of a little over £20. 126
2.
Valentina Nanarova, a Czech national of Romani descent and resident
in the UK, was extradited to serve a sentence for ‘endangering the
morale of juveniles’ on the basis of the absence of her children from
school for extended periods. Her appeal against the extradition, one
ground of which was that it unfairly impacted on the article 8 rights of
herself and her disabled child who was only able to communicate
using Czech sign language with his mother, failed. 127
3.
A British national was extradited to Poland after being convicted, but
not sentenced, for a driving offence while on holiday with friends. He
left Poland voluntarily, but after his return to the UK an EAW was issued
by Polish authorities who stated that he would be imprisoned for 14
days, following which he would be released. 128
36. These cases are just a glimpse of an extradition framework which is
becoming increasingly unsustainable. While the facts in many of these cases
are strikingly trivial, the impact on the person subject to extradition and their
family is not. Neither is the impact that hundreds of arguably unnecessary
extradition requests have on the public purse each year. There is huge
expense incurred by judicial proceedings, interpreters, etc in dealing with
extradition requests. Further, now that the UK is joined up to the Schengen
Information System, which allows participating countries to exchange
information on wanted and missing persons, the rate of extradition requests is
set to rise to an estimated three times the number processed now. 129 During a
time of unprecedented cuts to public funding these kinds of extradition
requests are an unnecessary drain.
37. The European Commission has, after investigation of how the EAW is
operating, concluded that in some Member States there is a need to set up
domestic checks on how the EAW is implemented to ensure that extradition
125 See http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-in-Britonsexported-for-trial.html.
126 Hubner v Czech Republic [2009] EWHC 2929 (Admin).
127 Nanarova v Czech Republic [2009] EWHC 2710 (Admin).
128 S v A Polish Judicial Authority [2010] All ER (D) 194 (Mar).
129 According to the Home Office as reported in The Economist:
http://www.economist.com/node/15179470?story_id=15179470.
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requests are proportionate to the crime suspected. 130 As noted in the case
examples above, the flaws of the extradition system have also been
highlighted by numerous judges whose role in relation to extradition has, in
many cases, been confined to a rubber stamp by the 2003 Act.
Implementation across the EU
38. The Framework Decision, forms a part of a continual widening and
consolidation of co-operation between EU Member States in the investigation
and prosecution of crime. The preamble to the Framework Decision states
that the EAW mechanism “is based on a high level of confidence between
Member States”. 131 But it is clear in the way that Member States have
implemented the EAW that there has not been uniform application of the
warrant system, nor is there mutual recognition of parity of criminal justice
systems. The UK implemented the EAW even before the Framework came into
force; 132 the expansive approach adopted at that time by the UK is, as
recently conceded by the then Home Office Secretary the Rt Hon David
Blunkett MP, 133 regretful.
39. The disparity of implementation across the EU serves to further illustrate the
flaws in the Framework Decision and its domestic implementation. Crucially,
other Member States have retained legislative safeguards which are not
similarly available to UK residents subject to an EAW. This has been done either
by taking full advantage of the limited safeguards provided for in the
Framework Decision or by failing to implement it in full. Some States have
narrowed the very broad offence categories which can form the basis for an
extradition warrant. Belgium, for example, has excluded abortion and
euthanasia from the extradition category offence of ‘murder or grievous
bodily harm’. 134 Belgium has also indicated that it will look behind a warrant
issued and determine whether it should be issued with a view to potentially
refusing it. 135
130 For background on the European reviews on how the EAW is working practice, see House
of Commons Library note, The European arrest warrant in practice, SN/HA/4979 (23 February
2009), available at
http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04979.pdf
131 Preamble to the Council Framework Decision, ibid, at para 10.
132 The EAW came into force on 1 January 2004; the EA came into force in the UK in 2003.
133 72As noted above and
http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-inBritons-exported-fortrial.html.
134 Report from the European Commission based on Art 34 of the Framework Decision of 13
June 2002 on the European Arrest Warrant and the surrender procedures between Member
States (Revised version), Brussels, 24 January 2006, COM (2006) 8 final: Annexure at page 7.
135 As noted by the now Secretary of State for Energy and Climate Change, the Rt Hon Chris
Huhne MP in The Independent, 24 October
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40. The lawfulness of domestic laws that implement the Framework Decision
has also been challenged in a number of Member States. In Germany, for
example, the Constitutional Court struck down national legislation
implementing the Framework Decision as it failed to adequately protect the
fundamental rights and procedural requirements of German law in relation to
extradition. 136 The court concluded that in implementing the Framework
Decision the legislature failed to take into account the protected interests of
German citizens and specifically it had “not exhausted the scope afforded to
it by the framework legislation”, for example by not allowing for the
opportunity to refuse the extradition of a German resident in circumstances
where it related to offences with a “significant domestic connective
factor”. 137 The legislature was also found to have infringed constitutional
protection guaranteeing recourse to a court given there was no possibility
under the arrangements of challenging the judicial decision granting
extradition. 138
US and UK Treaty
41. The terms of reference for the current review include specific mention of
the workings of the US-UK Extradition Treaty. This Treaty was signed on 31
March 2003, but did not come into force until April 2007 when both parties
exchanged instruments of ratification. However due to the earlier enactment
and coming into force of the EA, the UK’s generous extradition arrangements
with the US were already in place. The considerable delay was caused by
reluctance on the part of the US Senate, whose approval is required before a
Treaty can be ratified in the US under their system of constitutional law. The
delay caused a considerable amount of controversy in the UK. 139 Announcing
the imminent signing of a new Treaty with the US, Lord Falconer, then Attorney
General, stated
The United States is one of our key extradition partners and there is a
significant volume of extradition business between the two countries. It is
therefore important that our bilateral extradition treaty should be as
2008,http://www.independent.co.uk/opinion/commentators/chris-huhne-holocaust-denialand-acase-that-shows-flaws-in-the-eu-971404.html.
136 Judgment of the Second Senate of the Federal Constitutional Court, declaring the
European Arrest Warrant Act (Europäisches Haftbefehlsgesetz) void: 2 BvR 2236/04. As
outlined by the House of Lords European Union Committee, European Arrest Warrant –
Recent Developments (HL Paper 156) (4 April 2006), at para 157.
137 See the Bundesverfassungsgericht Press Release no. 64/2005 of 18 July 2005 on the
judgment of 18 July 2005, 2 BvR 2236/04, available at
http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg05-064en.html.
138 Ibid.
139 In addition to an Early Day Motion demanding that US extradition requests be stayed until
ratification signed by 145 Labour House of Commons backbenchers by March 2006, the
Conservatives in July 2006 successfully blocked designation under the 2006 Order until the
Treaty was formally ratified.
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effective as possible. I am pleased that it has been possible to reach
agreement on the new treaty and that the Government have the
opportunity to affirm their commitment to the closest possible cooperation in the fight against terrorism and other serious crime. 140
At the time of the announcement the actual text of the treaty was not
published. 141 Indeed the treaty only became available after it had been
signed. Given the restrictive nature of the treaty for the UK, it is disappointing,
if unsurprising, that no time for parliamentary debate was ever allowed for.
42. The Treaty is intended to allow for a smoother extradition process where
the offence for which extradition is sought is punishable under the laws in both
states by imprisonment for 12 months or more. 142 One of the sources of
controversy over the Treaty is the lack of reciprocity in State parties’
obligations. The Treaty does not require the US to present a prima facie case
in an extradition request for a UK resident; but for a UK request, however,
information is required “as would provide a reasonable basis to believe that
the person sought committed the offence for which extradition is
requested”. 143 The reason for the lower threshold for US extradition is that the
US constitution will not allow for an evidential standard any lower than
“probable cause”. 144 Given the comparative ease with which the US is able
to extradite UK residents, it is unsurprising that there is significant disparity in the
numbers sent to and from the UK. Of the 33 people extradited to the UK from
the US since the EA came into force on 1 January 2004 only three people
were US nationals or had dual citizenship. 145 There have been almost double
the number of UK residents extradited to the US (62 people from 1 January
2004 to 30 June 2010), of which 28 were UK nationals or had dual
citizenship. 146 These figures are even more disturbing given the relative size of
each population.
43. There is provision for extradition from the UK to the US to be refused where
the request is for an offence punishable by death unless an assurance is
provided that the death penalty will not be imposed, or if it is imposed, will not
140 Written Ministerial Statement, House of Lords Hansard, 31 March 2003, column W93.
141 See House of Commons Library Note, The US/UK Extradition Treaty (SN/HA/2204) (23
February 2009), available at
http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04980.pdf
142 Article 2 of the Extradition Treaty between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the United States of America.
143 Article 8(3)(c) of the US-UK Extradition Treaty.
144 As explained by the then Home Office Minister Baroness Scotland in the debate in the
House of Lords on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003.
145 As at 30 June 2010. These figures were provided by the Home Office in response to an FOI
request made on 24 March 2010, which the recipient passed on to Liberty.
146 Ibid.
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be carried out. 147 This should provide little comfort in the absence of any
prima facie requirement given it still may eventuate in life imprisonment on
death row, for example. There is also provision for the Treaty to act
retrospectively, which applies to both parties, but is all the more serious for UK
residents where evidence of the case would not have to be provided.
44. While concern over the lack of reciprocity in the Treaty is understandable,
Liberty’s main concern is with the lack of protection for UK residents. We
would not therefore support a race to the bottom whereby the protections
currently enjoyed by US residents were scaled back to the same level as ours.
We should instead be seeking to incorporate the sensible constitutional
safeguards that benefit US residents.
Breadth of the Home Secretary’s discretion
45. As we have outlined above, Liberty believes that a judge (with a revised,
fairer, list of potential bars to extradition available to him or her) is best
placed, in the first instance, to properly assess the facts of each case and
consider whether an extradition should go ahead. However we also
recognise that given the nature of the extradition process, which inevitably
involves inter-state diplomacy, that there ought to be a role for the Secretary
of State. In particular, that he or she should be able to refuse an extradition
request in certain circumstances even where extradition has been approved
by a court.
46. The role of the courts and the Secretary of State in extradition proceedings
was greatly whittled down by the EA. This restrictive statute specifies extremely
limited bars to extradition which a judge can consider and prevents a judge
from taking into account the facts of a particular case. The House of Lords
has concluded that even the centuries old writ of habeas corpus has been
excluded by the clear and unequivocal wording of the EA. 148 As regards the
Executive, in the case of the EAW its role has been rendered defunct by the
UK’s commitment to the Framework Decision. Indeed under Part 1 of the EA
the Executive is entirely cut out of the extradition granting process. A Part 1
arrest warrant is instead received by the Serious Organised Crime Agency
which may certify the warrant. Following a certification, the individual named
in the warrant is arrested and brought before an appropriate judge. If after
an initial hearing and an extradition hearing the judge is satisfied that there
are no bars to extradition and that the extradition is compatible with human
rights the judge must order the person’s extradition.
147 Article 7 of the US-UK Extradition Treaty.
148 Re Hilali [2008] UKHL 3. The House of Lords held in that case that an application for
habeas corpus on the ground that there was no case to answer in the requested state must
always be rejected as having been excluded by section 34 of the EA.
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Written Evidence submitted by Liberty (EXT 6)
47. In relation to Part 2 territories, section 93 provides a limited role for the
Secretary of State to bar an extradition (on referral from the court) for a
limited number of reasons. For example, if the individual concerned will be or
has been sentenced to death, if there are no specialty arrangements with the
category 2 country etc. Under Part 2 the Secretary of State is also subject to
legal obligations under the HRA which require him or her to bar an extradition
if it would breach human rights. This is because the final decision as to
whether or not extradition should be ordered under Part 2 rests with the
Secretary of State and not the courts. For these territories, once a judge has
determined that there are no legal bars to extradition and that an extradition
would be compatible with human rights the judge must send the case to the
Secretary of State for his or her decision as to whether the person is to be
extradited. The Secretary of State must refuse an extradition request if in his or
her view, granting the request would breach human rights.
48. The erosion of the judicial and executive role in barring extraditions has in
turn lead to increased pressure on the Secretary of State to reach a
diplomatic solution to unjust or unnecessary extradition requests. As this
pressure has increased, the problems inherent in finding diplomatic solutions
have become clear.
We now know for example that former and present Prime Ministers have been
thwarted in their attempt to persuade their US counterparts to strike a deal for
Gary McKinnon, and that it was possibly other political considerations which
lead to their refusal, not just the facts of Gary’s case. 149 The increasingly
political nature of Gary McKinnon’s case demonstrates aptly why greater
judicial and executive safeguards against unfair extradition are required. The
current system has lead in practice to individuals becoming political pawns,
their fate dependent on diplomatic negotiations which will be affected by
any number of extraneous considerations.
49. Liberty believes that establishing better safeguards and restoring judicial
discretion will mean a fairer, less politicised process which will better protect
the human rights of each individual. Decision-making should belong primarily
with judges and not with the Executive. The judiciary are best suited to
examining the facts and circumstances of individual cases, deciding whether
necessary legal tests have been satisfied, and determining whether
considerations of fairness and justice require extradition to be granted.
However it is important for the Secretary of State to retain a residual right to
decide that the extradition should not proceed, notwithstanding a previous
finding of a court. This discretion should lie alongside the Secretary’s legal
obligation to protect human rights under the HRA which should be extended
149 http://www.guardian.co.uk/world/2010/nov/30/wikileaks-cables-gary-mckinnon-gordonbrown
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to cover all extraditions, including those within Europe. The restoration and
imposition of a robust set of legal safeguards will mean any role of the
Secretary of State will be limited and narrowly defined. But discretion is
important to ensure that any extradition which would be unjust is stopped
notwithstanding earlier court findings. This will be necessary, for example,
where new information comes to light, or where the Secretary of State is privy
to intelligence which may not have been available to the court at the time of
the extradition hearing. To this end both parties ought to be able to make
final representations where the Secretary of State is considering whether to
stop the extradition on human rights grounds or to exercise his or her
discretion to prevent unjust extraditions.
Human Rights
50. Before ordering extradition under Part 1 or sending the case to the
Secretary of State under Part 2 a judge will be required to determine that the
proposed extradition will be compliant with the human rights of the person
subject to the proceedings as protected by the HRA. 150 Whilst these provisions
are crucially important, they are not sufficient protection as in practice the
sections have provided very little protection to a minimal number of persons,
mostly due to judicial reluctance to engage in what is seen as the largely
diplomatic and political process which is extradition.
51. The courts have held that reliance on human rights to prevent extradition
“demands presentation of a very strong case”. 151 Indeed, the High Court has
held in relation to the right to privacy that “there is a strong public interest in
‘honouring extradition treaties made with other states’” and where extradition
is legally requested “a wholly exceptional case would in my judgment have
to be shown to justify a finding that the extradition would be on the particular
facts be disproportionate to its legitimate aim”. 152 More recently the High
Court has held that “it is not right to apply [an exceptionality test] as a
formula for proportionality” but went on to say that it “is clear that great
weight should be accorded to the legitimate aim of honouring extradition
treaties made with other states” and so “there will have to be striking and
unusual facts” before a court would say that the extradition would be
150 Under section 21 in Part 1; and section 87 in Part 2
151 See R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, per Lord Bingham at
para 24.
152 See R (Bermingham) v Director of the Serious Fraud Office; Government of United States
of America [2006] EWHC 200 (Admin), [2007] QB 727, per Laws LJ at para 118. Note that the
European Commission itself has said that: “it is only in exceptional circumstances that the
extradition of a person to face trial on charges of serious offences committed in the
requesting state would be held to be an unjustified or disproportionate interference with the
right to respect for family life”: Launder v United Kingdom (1997) 25 EHRR CD 67 at page 74.
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disproportionate. 153 The focus on honouring extradition treaties and the need
for at the very least ‘striking and unusual facts’ means that this ground will
rarely be successful as a bar to extradition. Indeed in the most recent
Supreme Court decision the President of the Court Lord Phillips noted that
“only the gravest effects of interference with family life will be capable of
rendering extradition disproportionate to the public interest that it serves”. 154
52. As noted above, the European Framework is based on mutual recognition
of a perceived parity of criminal justice systems in all of the signatory states.
Given this political context, UK courts appear even more reluctant to find that
another signatory state to the European Convention on Human Rights will
breach the rights of the person to be extradited there, even though there is
abundant evidence that some Member States are regularly found to be in
breach of the Convention with regard to criminal justice standards. In the
case of Andrew Symeou, for example, the courts held, in relation to the right
to a fair trial, that it is “to be assumed in the absence of the most cogent
contrary evidence” that a court in an EU country will give a fair trial. 155
Unfortunately, this assumption cannot withstand the numerous findings by the
European Court of Human Rights that a territory’s criminal justice system or
prisons fail to comply with human rights obligations. The assumption also
cannot stand where the process by which a person is charged, prosecuted
and convicted does not withstand comparison to the standards put in place
by the UK courts.
Case study – Gary Mann
Gary Mann is a 52 year-old former fire fighter who was arrested in 2004 in
connection with a football riot in Portugal. Under special legislation
introduced especially for the event 156 Gary was arrested, charged, tried,
convicted and sentenced to two years’ imprisonment in under 24 hours. The
trial took place with twelve independent defendants, for whom there were
two lawyers and one English-speaking interpreter. 157 The usual safeguards
present in a British court room, such as ensuring that the defendant is able to
understand the case made against him with the aid of an interpreter, has
adequate access to a lawyer and is able to put forward a defence in the
form of witnesses etc, were not available to Gary. A police officer with over 29
years experience in attendance at the trial with a role of advising Portuguese
153 See Jaso, Lope and Hernandez v Central Criminal Court No 2, Madrid [2007] EWHC 2983
(Admin) per Dyson LJ
154 Norris v United States of America [2010] UKSC 9, at para 82.
155 See Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009]
EWHC 897 (Admin), at paragraph 66.
156 Under Article 302 of the Portuguese Criminal Code: R (Gary Mann) v City of Westminster
Magistrates’ Court & Anor [2010] EWHC 48 (Admin).
157 http://www.guardian.co.uk/football/2010/apr/27/gary-mann-extradition-portugal.
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police officers in relation to English football fans at the tournament described
the trial as “a farce”, and maintained that Gary Mann did not understand
most of the trial. 158 Indeed, some years later when a Football Banning Order
was sought by the Commissioner of Metropolitan Police in 2005, District Judge
Day refused the order on the basis that Mr Mann’s conviction was “obtained
in circumstances that are so unfair as to be incompatible with the
respondent’s right to a fair trial under Article 6”. 159
After his conviction in Portugal in 2004, Mr Mann was made subject to an
Order for Voluntary Departure, and he left the country two days after his ‘trial’
in 2004. Four years later, a European Arrest Warrant was issued, and in 2009
Senior District Judge Workman ordered his extradition from the UK. Mr Mann’s
attempts to have his extradition reviewed were prevented by both
procedural failures of his lawyers and the EA, which restricts the right to
appeal in extradition decisions. 160 In determining that there was no possibility
of final appeal, Lord Justice Moses stated:
I cannot leave this application without remarking upon the inability of this
court to rectify what appears to be a serious injustice to Mr Mann. He is…a 51
year-old man who had previously been a fireman. He had not been in trouble
for 29 years, when he received a small fine for a minor offence. Now, after a
hearing condemned by a police officer as a “farce” he faces 2 years in
prison, over 5 years since his original conviction.161
Following a failed attempt to appeal to the European Court of Human Rights
in May 2010, Gary Mann had to leave his family, including two daughters and
four stepdaughters, and his job to serve a sentence for a crime of which he
maintains his innocence and without ever having an opportunity to properly,
in accordance with a British standard of criminal justice, challenge the case
against him.
53. Another human rights issue which has arisen in the practical application of
the EA is the impact on the right to liberty 162 . Those who have been extradited
to a foreign jurisdiction are unlikely to be granted bail as they are considered
a flight risk. In relation to the EAW, the impact on the right to liberty is
158 R (Gary Mann), ibid at para 1.
159 R (Gary Mann), ibid at para 5. Note that Senior District Judge Workman, considering the
EAW three and a half years after District Judge Day concluded the Portuguese trial had been
unfair, disagreed with this finding and considered there had been no such breach (this
finding was, however, reached without evidence from either Mr Mann nor his lawyers): see R
(Gary Mann), ibid at para 6.
160 Section 34 of the Extradition Act 2003 provides that a decision under Part 1 of the EA can
only be questioned by an appeal under that part. See R(Mann): at para’s 7 to 11.
161 R(Mann), ibid, at para 15.
162 Article 5 of the European Convention on Human Rights, incorporated into UK domestic
law by the Human Rights Act 1998.
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exacerbated by the issuance of a warrant by certain Member States in the
early stages of an investigation. This stems from the simple fact that different
European states have markedly different modes of investigating, charging
and prosecuting crime, and is compounded by the tight timeframe within
which an EAW must be executed by the receiving state. 163 It means that UK
residents can be extradited for the purposes of investigation when there may
not be a great deal of evidence against them, and even though the EA
allows for extradition for the purposes of prosecution. 164 A recent example
illustrating the potential difficulties of the system involved the issue of a
Spanish arrest warrant which particularised the offences followed by the
words ‘diligencias previas’ without translation. The court held that there were
no grounds to refuse the extradition, even though expert evidence produced
by the applicant showed that the words meant ‘preliminary inquiry’ and that
the applicant’s case was at the first stage, where a private complaint had
been made but no judicial inquiry begun. 165 The EAW is of course designed to
assist in the investigation of crime, but the practical effect is that a person
may be extradited at a very early stage of a criminal investigation, with no
prospect of bail and held in a prison with standards which fall far short of what
would be deemed acceptable in the UK.
54. While any legislative provision directing human rights compliance is
undoubtedly welcome, the experience to date shows that it is not, in the
context of UK extradition arrangements, proving an effective safeguard
against unjust extradition which undoubtedly engages the HRA. When it
comes to extradition, the technique of having a generalised bar on human
rights grounds is not an adequate substitute for other procedural legislative
protections. This is because extradition is capable of being a punishment in
and of itself. The extradition process, therefore, needs to be tailored to ensure
compliance with basic fairness and due process rights.
Provisional arrest
55. Finally, Liberty also has concerns about the ability to provisionally arrest a
person in the UK before an extradition request is received or presented before
a court. In relation to extradition within Europe under Part 1, under the EA a
person may be arrested if a constable, customs officer or a service policeman
has reasonable grounds to believe that an arrest warrant for the person’s
163 Article 17 of the Framework Decision, ibid, requires the EAW is executed within 60 days,
with an extra 30 days available in exceptional circumstances. See section 35 and 36 of the
EA.
164 Section 2 the EA stipulates what is required in an arrest warrant. Section 2(3)(b) states that
the statement with the Part 1 warrant shows it is issued “with a view to his arrest and
extradition to the Category 1 territory for the purpose of being prosecuted for the offence”.
165 Meizoso-Gonzalez v Juzgado le Instruccion Cinco de Palma de Mallorca, Spain [2010] All
ER (D) 227 (Oct).
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extradition has been or will be issued. 166 Once a person has been arrested
under this power he or she must be brought before a court within 48 hours
and documents setting out the legality of the arrest must be provided (i.e. the
extradition arrest warrant). This initial 48 hour period can be extended by a
further 48 hours if a judge or magistrate decides the documents could not
reasonably be produced within the initial 48 hour period. Given the
calculation of the 48 hour period does not take into account weekends or
public holidays, the person could be held for an initial period of four days (i.e.
48 hours plus an intervening weekend) and up to six days in total if an
extension is granted. 167 The power to extend provisional arrest was brought in
by the Policing and Crime Act 2009, resting on Governmental assurances that
it would be a “very rare [case] where there is a need to apply for an
extension”. 168 However, there is nothing in the Act that suggests this would be
limited to exceptional circumstances.
56. These provisional arrest provisions allow for a person to be detained
without evidence of an arrest warrant for upwards of six days. This is a clear
interference with the right to liberty 169 and as such should be demonstrated to
be necessary and proportionate. At no time did the former Government
adequately demonstrate this. Nor have steps been taken which could
address this issue, such as requiring a court to be summoned to sit on a
weekend or public holidays where necessary. If there are sufficient grounds
for believing that a person is subject to an extradition arrest warrant, the
warrant should be able to be produced expeditiously. Liberty does not
consider that the ground of convenience satisfies the proportionality test
when considering the severe deprivation of liberty that speculative arrest
potentially entails.
57. The powers for provisional arrest under Part 2 are even worse. Under Part 2
of the EA, a person is able to be arrested under a provisional warrant, issued
by a justice of the peace, satisfied on the basis of information provided in
writing and on oath, that a person in the UK, or believed to be in the UK, is
accused in a category 2 territory of the commission of an extradition offence,
or is alleged to be unlawfully at large after conviction of such an offence in a
category 2 territory. 170 That person must be brought before a court as soon as
practicable, at which time the person must be remanded in custody or
released on bail. 171 The judge must order the person’s discharge if the
166 Section 5 of the EA.
167 Section 6 of the EA.
168 Public Bill Committee Debate, House of Commons Hansard, 25 February 2009, at column
523.
169 See article 5 of the European Convention of Human Rights incorporated into UK law by
the Human Rights Act 1998.
170 Section 73 of the EA.
171 Section 74 of the EA.
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Written Evidence submitted by Liberty (EXT 6)
extradition request and certificate from the requesting state 172 is not received
by the judge within 45 days from the time of arrest or, if it is a category 2
territory designated by order, any longer period permitted by the order. 173 For
example, in the US-UK treaty, a person who is provisionally arrested may be
discharged from custody 60 days from the date of provisional arrest, pursuant
to the Treaty, if the requested state has not received the formal request for
extradition and accompanying supporting documents. 174 This means that a
justice of the peace is able to authorise the arrest of a person who is then
detained for 45 days or longer on the basis of sworn information that the
person is accused in a category 2 territory but without the arrest warrant
being before the court.
European Investigation Order
58. The European Investigation Order (EIO) Initiative, 175 to which the UK has
opted in and the terms of which are currently being negotiated, is a
proposed cross-border framework for the gathering of evidence based on
the principle of mutual recognition. 176 The EIO would allow for an issuing
authority to request a particular investigative measure be carried out by the
executing authority, which may also include, and is not limited to, the
temporary transfer to the issuing state of persons held in custody for the
purpose of an investigation; 177 information on banking accounts and
transactions and monitoring of transactions; 178 arranging for a hearing by
video or telephone conference; 179 and investigative measures implying the
gathering of evidence in real time, continuously and over a certain period of
time. 180
59. The EIO, as currently drafted, has a number of flaws, many of which reflect
those we have discussed above in relation to the EAW. The EIO will engage
the right to a fair trial, 181 the right to privacy and family life, 182 and the right to
172 As specified in section 70 of the EA.
173 Section 74(10) and (11).
174 Article 12(4) of the US-UK Treaty, ibid.
175 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the
Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of
Sweden for a Directive of the European Parliament and of the Council of regarding the
European Investigation Order in criminal matters (9288/10) (21 May 2010).
176 See para 6 of the Preamble.
177 Articles 19 and 20.
178 Articles 23, 24 and 25.
179 Articles 21 and 22.
180 Article 27.
181 Protected by Article 6 of the European Convention on Human Rights, as incorporated
into UK domestic law by the Human Rights Act 1998.
182 Protected by Article 8 of the European Convention on Human Rights, as incorporated
into UK domestic law by the Human Rights Act 1998.
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Written Evidence submitted by Liberty (EXT 6)
be free from inhuman and degrading treatment. 183 Given the lack of explicit
safeguards for human rights and the lack of comprehensive measures to
guarantee procedural fairness, along with the limitation of judicial and
administrative discretion in the exercise of an EIO, the proposed Directive
presents a number of significant concerns, including:
(a) Limited grounds for non-recognition or non-execution of an EIO. The draft
Directive allows for extremely limited grounds of non-recognition or nonexecution of an EIO by an executing state, 184 in order to “ensure the
effectiveness of judicial co-operation in criminal matters”. 185 There is no
safeguard provided on the grounds of dual criminality, double jeopardy, most
appropriate forum or human rights.
(b) Lack of explicit protection of human rights. The only mention of human
rights in the draft EIO Directive is at Article 1(3), where it states that the
Directive “shall not have the effect of modifying the obligation to respect the
fundamental rights and legal principles” enshrined in the ECHR. 186 This
reference is entirely inadequate to be considered effective protection. The
principle of mutual recognition on which the EIO is based assumes that there
is parity across all Member State criminal justice systems. When it comes to
human rights, this assumption does not withstand scrutiny, as evidenced by
numerous judgments from the European Court of Human Rights. As discussed
in the context of the EAW, even where human rights are an explicit
consideration under the EA, British judges have been reluctant to enforce this
protection in extradition cases.
(c) No requirement of proportionality. There is no requirement in the Directive
that an EIO only be issued where the investigative measure requested is
proportionate to the crime being investigated, or where investigation is only
required in the public interest. We have already seen how the operation of
the EAW in practice has lead to a proliferation of extradition requests for
183 Protected by Article 3 of the European Convention on Human Rights, as incorporated
into UK domestic law by the Human Rights Act 1998.
184 Article 10(1). These grounds include where (a) there is an immunity or privilege under the
law of the executing State making it impossible to execute the EIO; (b) in a specific case,
execution of the EIO would harm essential national security interest, jeopardise the source of
the information or involve the use of classified information relating to specific intelligence
activities; (c) where there is no alternative investigative measure to the one named in the EIO
to achieve a similar result; (d) where the EIO has been issued in relation to particular
proceedings, including administrative proceedings, and the measure would not be
authorised in a similar national case.
185 Para 12 of the Preamble.
186 Article 1(3) states that the Directive will not effect the principles enshrined in Article 6 of
the Treaty on European Union, which states that the EU “is founded on the principles of liberty,
democracy, respect for human rights and fundamental freedoms, and the rule of law,
principles which are common to the Member States”, and that the EU shall respect
fundamental rights as guaranteed in the ECHR.
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Written Evidence submitted by Liberty (EXT 6)
minor crimes. There is no barrier to a similar impact being imposed by the EIO,
with the associated implications for the public purse and individual fairness.
(d) Lack of safeguards in UK mechanisms to obtain and retain data. Liberty
already has serious concerns about the data held by UK authorities, in relation
to whose data is recorded, how long it is held for, how it is stored and who has
access to it. These concerns are shared by the European Court of Human
Rights, which in 2008 ruled that the blanket and indiscriminate retention of
fingerprints, cellular samples and DNA profiles of persons suspected but not
convicted of offences constituted a disproportionate interference with the
right to respect for private life. 187 This decision is yet to be implemented by the
UK government. The interference with human rights by UK data retention
mechanisms is greatly magnified with the operation of the EIO as currently
drafted, which could see data collected in breach of human rights being
passed on to all signatory states to the Directive without adequate
safeguards for its use.
60. Negotiation of the exact terms of the EIO is, we understand from
government officials, in the early stages. Review of the often unintended
consequences of the EAW in practice must inform the drafting of the EIO to
ensure that there is limited risk of the repetition of the unjust results we have
outlined here.
January 2011
187 S and Marper v United Kingdom (App No. 30566/04) European Court of Human Rights, 4
December 2008.
125
Letter submitted to the Chair of the Committee by David Bermingham (EXT 7)
Letter submitted to the Chair of the Committee by David
Bermingham (EXT 7)
I would like to volunteer to appear before the Committee. As one of the few
people who has been extradited to the US under the current legislation, and
been through the US justice system, and subsequently both the US and UK
penal systems, I believe that I have an almost unparalleled experience of the
process, and the significant shortcomings in our current arrangements.
Our case became the legal precedent for the current jurisprudence on
article 8 ECHR in extradition, and it was during the currency of our
proceedings that counsel for the Attorney General (who had intervened)
argued that the desirability of honouring our international treaty obligations
should trump the human rights of the individual in all but the most exceptional
of cases. I have the transcript of his argument to the High Court. This
argument has effectively rendered the human rights bars to extradition almost
entirely worthless, in stark contrast to the assurances of the Government
during the passage of the Bill through Parliament, when the bars were
described as ‘robust protections’ and ‘solid safeguards’ for the defendants.
As the lead case on what was a new and controversial law, we had the
benefit of an intervention in the High Court by Liberty in respect of the human
rights arguments. It made no difference. We were also the leading case on
the issue of ‘forum’ in extradition, and our lawyers were instrumental in
drafting the proposed forum amendments that were put forward by the
Conservatives and Liberal Democrats when in opposition in 2006.
The UK’s extradition practice is at odds with every single one of our treaty
partners. It exposes defendants to enormous hardship and the possibility of
long prison sentences even when the allegations are entirely baseless. The
arrangements with the US are particularly dangerous given the extremely
hostile nature of the US criminal justice system.
I have first hand knowledge of a number of US extradition cases, as I
correspond regularly with a number of people who have fallen victim to the
system, including people currently languishing in US prisons, and others who
have yet to extradited. I can explain in simple terms the unique challenges
that face people extradited to the US, including conditions of incarceration
both re and post trial, and the enormous difficulties faced by all defendants in
the US criminal justice system, leading to an overwhelmingly large number
entering into plea bargains rather than face trial.
My opposition to the current arrangements is one of principle. I am a full
supporter of the concept of extradition. But we should be mindful that the act
of extradition is akin to a summary sentence in itself, given what the
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Letter submitted to the Chair of the Committee by David Bermingham (EXT 7)
defendant will likely face abroad. The UK’s current arrangements are horribly
unbalanced in favour of expeditious process, at the expense of even the
most basic rights for defendants. In their current form, they all but eradicate
the presumption of innocence and habeas corpus.
I hope I can be of assistance to the Committee, and would relish the
opportunity to give evidence.
26 January 2011
127
Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
INTRODUCTION
1. The Redress Trust (REDRESS) is an international human rights organisation
whose mandate is to seek justice for torture survivors. REDRESS’ work has
included making written submissions to United Kingdom parliamentary
committees, including the JCHR, on matters concerning torture and other
international law crimes in recent years. 188 REDRESS has also given oral
evidence to the JCHR. 189
2. REDRESS has an ongoing interest in seeing that those suspected of
perpetrating torture and related international crimes are brought to justice.
Trials can take place in the country where the offences were allegedly
committed or in another state on the basis of universal jurisdiction or related
forms of extraterritorial jurisdiction. Universal jurisdiction is premised on the
notion that the crimes are so heinous that they offend the sensibilities of the
international community as a whole—they are in their nature international
crimes which all states have an interest and at times an obligation to
prosecute. Universal jurisdiction is also based on the need to combat
impunity: nowhere, including the UK ought to be a safe haven for those
accused of torture or related international crimes.
3. This current submission is focussed on the following issue raised by the JCHR:
“Should there be an expectation that where possible trials are held and
sentences served within the United Kingdom? How would such an
expectation be implemented in practice?”
4. REDRESS believes that when suspects of international crimes allegedly
committed abroad such as genocide, crimes against humanity, war crimes
and torture are found within the UK’s jurisdiction, effective steps must be
taken to bring them to trial. Extradition is one such mechanism but should not
preclude thorough police investigations with a view to a UK prosecution. To
rely solely on extradition is wrong both in principle and practice, and can lead
to serious anomalies where known suspects live here for years without being
held accountable anywhere, even when the UK has jurisdiction over the
alleged offence(s).
5. The significance of this issue is highlighted by the case of four Rwandan
genocide suspects whose extradition to Rwanda failed almost two years ago.
188 See our website www.redress.org and in particular
http://www.redress.org/smartweb/reports/reports.
189 For example, on 1 July 2009 in regard to the Torture (Damages) Bill—see JCHR Report
“Closing the Impunity Gap”, published 11 August 2009, available at
www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/153/153.pdf.
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Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
Despite the fact that UK courts have found that the suspects have prima
facie cases to answer, they are believed to be living here freely without being
investigated or potentially prosecuted in the UK. This submission therefore
examines the relationship between extraditions from the UK to other states
and the need to investigate allegations when there is a possibility of a UK
prosecution for the same alleged crimes.
SUMMARY
6. Legislation exists in the UK for the prosecution of international crimes
committed abroad where the suspects are in the UK. Jurisdiction over crimes
such as genocide, crimes against humanity, war crimes and torture are firmly
established in a range of laws as is discussed further in this submission. The UK
has specifically improved its legislative framework to fill “impunity gaps” to
make it possible to prosecute crimes which took place abroad as long as
twenty years ago in respect of genocide, crimes against humanity and war
crimes and even longer in the case of torture, pursuant to the principle of
universal jurisdiction.
7. Despite these laws and the apparent considerable number of suspects in
the UK there have been very few prosecutions. Where suspects have been
identified and there are no legal impediments to investigate allegations with
a view to prosecute in the UK, the apparent policy (as evidenced by the very
limited practice) is to leave cases in limbo in the hope of a successful
extradition even where an attempt to extradite has already failed.
8. REDRESS believes such an approach is not only wrong in principle; it is also
at variance with the UK’s obligations under international law. Where there are
suspects present in the UK, timely investigations should be conducted with a
view to bringing them to trial in the UK. Extradition should be a component
within a holistic policy aimed at ensuring accountability for the most
egregious crimes within our jurisdiction.
SUBMISSION
I. Recent reforms to UK law 190 demonstrate parliamentary intention to end safe
havens for the most serious crimes under International Law
9. The JCHR has previously examined in some detail legislation governing the
UK’s jurisdiction over international crimes committed abroad when a suspect
is in the UK. 191 Although there are disparate domestic laws governing
genocide, crimes against humanity, war crimes, torture and other
international crimes (as well as different international law treaties and rules
190 Coroners and Justice Act, 2009.
191 Ibid.
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Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
concerning these crimes) the UK has taken a definitive stance ensuring that
such suspects found within its borders can be brought to trial here.
10. The UK legal framework has recently been considerably strengthened,
largely as a result of the failed extradition case of the Rwandan suspects
referred to in this submission and the JCHR’s own analysis of impunity gaps. 192
UK Courts now have jurisdiction over genocide, war crimes and crimes
against humanity committed abroad after 1991. 193
11. The Coalition Government has recently restated the UK’s commitment to
universal jurisdiction, as expressed by Justice Secretary Kenneth Clark: 194
Our commitment to our international obligations and to ensuring that
there is no impunity for those accused of crimes of universal jurisdiction is
unwavering.
II. Practice of UK Police and Prosecution Services undermines parliamentary
intention to end safe havens
12. There remains a large gap between the legislation, which allows for
prosecutions where a suspect is in the UK, and implementation of such
legislation, in the form of actual investigations and prosecutions.
13. Only two suspects have ever been successfully prosecuted in the UK. 195
This is despite figures indicating that there are a considerable number of
possible perpetrators here. In this regard the Joint Committee on Human
Rights has indicated that:
We [...] asked for information on the number of suspected perpetrators of
genocide, war crimes and crimes against humanity present in the UK who
cannot be prosecuted [because of the existing legislation’s lack of
retrospective jurisdiction]. In its memorandum, the Government said it could
192 Ibid.
193 The ICC Act 2001 was amended in terms of section 70 of the Coroners and Justice Act
2009. The effect of this amendment, which came into force on 6 April 2010, is to now give UK
court’s jurisdiction over genocide (and war crimes and crimes against humanity) committed
abroad after 1 January 1991 where the suspect is resident in the UK.
194 Ministry of Justice news release: “New rules on universal jurisdiction”, 22 July 2010,
available at http://www.justice.gov.uk/news/newsrelease220710b.htm
195 Afghan Faryadi Zardad was convicted of torture and hostage taking in 2005 and
sentenced to 20 years imprisonment. There is an unreported High Court judgment of 19 July
2005 in R v. Zardad which relates to certain legal aspects of the case. An appeal was denied
17 February 2007. On 1 April 1999, Anthony (Andrzej) Sawoniuk was sentenced under the War
Crimes Act 1991 to life imprisonment for the murder of two civilians. The Court of Appeal
upheld his conviction on 10 February 2000—R. v. Sawoniuk, Court of Appeal (Criminal
Division), [2000] Crim. L. R. 506. The House of Lords denied leave to appeal on 20 June 2000—
“War Criminal Refused New Hearing,” Financial Times, 20 June 2000.
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Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
not estimate the number of suspects living in the UK but said that in the four
years between 2004 and 2008, there were 138 adverse immigration decisions
(such as refusal of entry, indefinite leave to remain and naturalisation, and
exclusions from refugee protection), and that “these individuals may no
longer be in the UK.” In the same four years, 22 cases were referred to the
Metropolitan Police. In its memoranda, Aegis quoted figures provided to
Parliament: the UK Borders Agency (UKBA) has investigated 1,863 individuals in
the UK for genocide, war crimes or crimes against humanity. 196
14. Of note, the UK Border Agency’s “investigations” are not criminal
investigations. Within their mandate, they identify potential suspects for
immigration purposes only. Given the stark contrast between the number of
possible suspects (1,863) and the number of prosecuted cases (2), there
would appear to be a impunity gap that requires attention by the JCHR and
the competent investigative bodies.
15. What is therefore of concern is that where there is a real opportunity to
bring a prosecution in the UK for an international crime such as genocide this
is not being pursued because the policy appears to be to place excessive
reliance on extradition, even where an extradition request has already failed
once.
III. Failure to investigate in the ‘hope’ of a successful extradition fosters
impunity: the Rwanda case
16. On 24 August 2006, Rwanda issued warrants for the arrest of four named
genocide suspects. The men were arrested in the UK on 29 December 2006
and held in custody pending the outcome of the Rwandan Government’s
request for their extradition to face trial in Rwanda on allegations of
genocide, conspiracy to commit genocide, complicity in genocide, crimes
against humanity and other crimes relating to their alleged involvement in the
1994 genocide. 197
17. As there are no general treaty arrangements between the UK and the
Rwandan Government the extradition applications were made on the basis
of a Memorandum of Understanding (MoU) entered into by Rwanda and the
UK in respect of each suspect on 14 September 2006. This MoU engaged the
statutory extradition machinery contained in the Extradition Act 2003.
18. The extradition request was considered in the City of Westminster
Magistrates Court by District Judge Anthony Evans in lengthy proceedings
196 Op. Cit. JCHR 2009 Report at paragraph 34.
197 See Government of the Republic of Rwanda v Vincent Bajinya and three others, City of
Westminster Magistrates’ Court, judgement of District Judge Anthony Evans, 6 June 2008, at
paragraph 1.
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Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
during 2007 - 2008. On 6 June 2008 he referred the cases to the Secretary of
State for her consideration and decision, after rejecting all the arguments
raised by the defence in the hearing; these had included the argument that
the men’s extradition was incompatible with the European Convention on
Human Rights (ECHR), particularly article 6, in that they would not receive a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. In the course of his ruling Judge Evans
also said that it was “the correct course of action for the trials to take place in
Rwanda.” 198 The Home Secretary ordered their extradition on 1 August 2008.
19. The four men appealed to the High Court against the decisions of Judge
Evans and the Home Secretary, and on 8 April 2009 the High Court upheld the
appeal; 199 as a result the men were released from custody and as far as is
known they remain in the UK to date. The issues on appeal were varied but a
major theme common to all the appellants, and the focus of the appeal
judgment, was the argument that the appellants would not receive a fair trial
in Rwanda, and that therefore the UK would be in breach of its ECHR
obligations if the men were surrendered for trial there. The High Court ruled
that if they “were returned there would be a real risk that they would suffer a
flagrant denial of justice.” 200 It should be noted that Judge Evans had
concluded that each of the four suspects had a case to answer, and the
High Court on appeal found no fault with this conclusion. 201
20. REDRESS has called upon the police to investigate, especially since the
High Court decision of April 2009, with a view to a UK prosecution. The CPS has
said that a fresh extradition request is expected from the Rwandan authorities
and that it (the CPS) is working closely with Rwanda to overcome all the
problems within the Rwandan justice system highlighted by the High Court.
The police have said that the Rwandan authorities have declined a request
for a copy of evidence in its possession and that without the full co-operation
of the Rwandan authorities it will be extremely difficult to obtain the standard
of evidence necessary to prosecute this case in the UK. Of note, Rwandan
authorities have cooperated with the range of European investigators and
prosecutors that have prosecuted genocide charges throughout Europe—the
idea that they would refuse all cooperation with the UK is at the least,
surprising.
21. In several other European states where extradition was denied once, the
competent authorities in these countries decided to investigate and
198 Ibid, paragraph 551.
199 Vincent Brown (aka Vincent Bajinya) v Government of Rwanda and the Secretary of
State, [2009] EWHC 770 (Admin), available at
http://www.bailii.org/ew/cases/EWHC/Admin/2009/770.html.
200 Ibid, at paragraph 121.
201 Ibid, paragraphs 124-136.
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Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
prosecute themselves, as they did not see an immediate prospect for a
successful extradition, and the prospect of continuing to provide a safe
haven for these suspects was untenable. Examples include Switzerland, The
Netherlands, Germany, Denmark, Finland, Belgium and France, resulting in
the conviction of eleven perpetrators involved in the 1994 genocide, with
further investigations and prosecutions ongoing in some of these states. 202
22. REDRESS is concerned about the resultant delays in the delivery of justice.
These concerns do not only relate to the specific Rwandan case, but to the
apparent policy reflected, namely, that “repeated” extradition requests
could be appropriate in genocide cases and for other international crimes
over which the UK exercises universal jurisdiction. Such a practice undermines
efforts to combat impunity. It means known suspects can live freely here for
years at a time without being brought to trial.
23. As an organisation which works directly with survivors of these most
egregious of crimes, REDRESS reiterates the importance of justice, which if
achieved can play an important part in restoring victims’ rights and dignity
and healing the trauma suffered. Conversely, a denial of justice can
exacerbate the horrors which have been endured, and even more so when
suspects have been identified and can be held accountable, but are seen to
be going about their lives with impunity.
24. REDRESS has previously examined the impact of delays in these kinds of
cases, and drawn attention to the need to expedite the justice procedure in
the interests of survivors and victims. In our 2008 Report “Waiting for Justice”,
the following is outlined:
Delays are a persistent cause for concern in the administration of justice
worldwide. The timely disposition of cases is seen as an elementary part of
justice; conversely, unduly prolonged investigations and trials deny justice.
Delays are detrimental to those seeking justice and the system of justice as
a whole [...]. Delays may [...] result in cases being time barred, are likely to
make evidence more difficult to obtain and/or less reliable to use and
can undermine public confidence in the system of justice as a whole. This
202 See REDRESS and FIDH, “EXTRATERRITORIAL JURISDICTION IN THE EUROPEAN UNION: A
STUDY OF THE LAWS AND PRACTICE IN THE 27 MEMBER STATES OF THE EUROPEAN UNION”,
December 2010, available at
http://www.redress.org/downloads/publications/Extraterritorial_Jurisdiction_in_the_European_
Union.pdf.
See also REDRESS and African Rights report “Extraditing Genocide Suspects From Europe to
Rwanda: Issues and Challenges—Report of a Conference Organised by REDRESS and African
Rights at the Belgian Parliament, 1 July 2008”,September 2008, available at
http://www.redress.org/downloads/publications/Extradition_Report_Final_Version_Sept_08.pd
f.
133
Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)
can jeopardise the peaceful resolution of disputes and make people seek
justice on their own terms, and can lead to violence. 203
25. There is particular concern at the lack of a holistic policy to implement
existing legislation aimed at giving effect to victims’ right to a prompt and
effective investigation for genocide (as well as other crimes under
international law). As has been explained, UK legislation was amended in
2009, and came into force in 2010 specifically to deal with such crimes
allegedly committed prior to 2001 when the ICC Act was promulgated.
Prosecutions for torture committed abroad have been possible since 1988. 204
26. REDRESS believes that where the UK has an obligation to prosecute, the
competent authorities should proceed with investigations and decide
whether prosecutions should be initiated on the basis of the strength of the
available evidence.
27. The UK should be seeking to send a clear message through its practice,
that it is not to be regarded as a safe haven for suspected perpetrators of the
most heinous crimes.
RECOMMENDATIONS
The JCHR should:
•
call on the UK Government to develop a coherent policy for Section 70 of
the Coroners and Justice Act 2009. This should take into account existing
legislation regarding international crimes and the relationship with
extradition cases in light of the UK’s international obligations;
•
call on the UK Government to ensure that its policies and practice do not
result in the UK becoming a de facto safe haven where suspects can
continue living here for years without being brought to trial.
In respect of the Rwanda suspects the JCHR should:
•
call on the Foreign and Commonwealth Office to assist and intervene at
the highest level necessary for the Metropolitan Police to have full access
to whatever they need from the Rwandan authorities and from other
potential sources of evidence to expedite a police investigation with a
view to a UK prosecution;
203 REDRESS, “Waiting for Justice—the politics of delay in the administration of justice in
torture cases, May 2008, page 3, available at
http://www.redress.org/downloads/publications/WAITING_FOR_JUSTICE_Mar%20O8%20Fin%20
_2_.pdf
204 Under section 134 of the Criminal Justice Act 1988
134
Letter submitted to the Joint Committee on Human Rights from the Law
Society (EXT 9)
•
call on the Metropolitan Police to conduct investigations to the best of its
ability;
•
call on the CPS to assist the Metropolitan Police with investigations
irrespective of any extradition request expected or made;
•
call on both the Metropolitan Police and the CPS to recognise and
acknowledge publically or otherwise that further extradition procedures
should not preclude investigations with a view to UK prosecutions.
27 January 2011
Letter submitted to the Joint Committee on Human Rights from the
Law Society (EXT 9)
We write in relation to the Joint Committee on Human Rights’ (JCHR) inquiry
into the human rights implications of UK extradition policy. The JCHR’s inquiry is
intended to contribute a human rights perspective to the government’s
review of the UK’s extradition treaties and the Extradition Act 2003 announced
by the Home Secretary on 8 September 2010.
The Law Society will be responding directly to the Home Office’s review of
extradition, and our submission will raise human rights issues. Therefore, the
Law Society does not intend to provide a separate human rights submission to
the JCHR at this time. However, we would be happy to keep JCHR appraised
of the human rights issues that we intend to raise in our submission to the
Home Office, and will write to you in due course for this purpose.
28 January 2011
135
Statement submitted by Mr Mark Turner, father of Michael Turner (EXT 10)
Statement submitted by Mr Mark Turner, father of Michael Turner
(EXT 10)
Having experienced close association with the effect and process of the EAW
my observations are as follows:
There is only one court that deals with this legislation, the vast majority of
lawyers will not defend these cases and most of those requested do not even
know of this legislation nevermind understand it. It is cloaked in secrecy.
The courts give their trust to the issuing Authority. If the issuing Authority is
proven to have acted wrongly, once extradition has taken place, there is no
reversal protocol, the situation cannot be rectified.
There is no sense of proportionality. My son has been persecuted for years.
Having endured lengthy court battles and been held for months in a high
security Budapest prison, there is no end in sight to his suffering.
Not only has his life been blighted by this act, but the whole family has
suffered.
The financial cost has been huge, costing us every penny we have. Having
used all of my personal resources I now work between 80 and 100 hours a
week to pay international legal bills.
The British courts allowed my son to be extradited and imprisoned in dire
circumstances, just to appease a foreign system that imprisons people for up
to 3 years without charge.
He is only here today because of the high profile campaign for his release.
I urge the Government to amend this legislation and remember, that, the
primary function of law is to protect people.
11 February 2011
136
Written Evidence submitted by the Crown Prosecution Service (EXT 12)
Written Evidence submitted by the Crown Prosecution Service (EXT
12)
1. This memorandum provides an overview of the Crown Prosecution Service
(CPS) and its role in the extradition process. It also provides the Committee
with further information on areas in which it may have a particular interest.
Role and organisation of the Crown Prosecution Service
2. The Crown Prosecution Service (CPS) was set up in 1986 under the
Prosecution of Offences Act 1985 as an independent authority to prosecute
criminal cases investigated by the police in England and Wales. In
undertaking this role the CPS:
•
advises the police during the early stages of investigations;
•
determines the appropriate charges in more serious or complex cases;
•
keeps all cases under continuous review and decides which cases should
be prosecuted;
•
prepares cases for prosecution and prosecutes cases using in-house
advocates, self-employed advocates or agents to present cases in court,
and
•
provides information and assistance to victims and prosecution witnesses.
3. The way in which the CPS undertakes its role is governed by two key
documents: the Code for Crown Prosecutors; and Core Quality Standards
(CQS).
4. The Code sets out the principles the CPS applies when carrying out its work.
Those principles are whether:
•
there is enough evidence to provide a realistic prospect of conviction
against each defendant on each charge; and, if so,
•
a prosecution is needed in the public interest.
5. Keir Starmer QC is the Director of Public Prosecutions (DPP) and leads the
CPS. He has been DPP since November 2008 and will hold his office for five
years. The CPS is superintended by the Attorney General and is the largest of
the Law Officers’ departments, and as at 30 September 2010, the CPS had
8,571 staff.
6. The organisational structure of the CPS is currently subject to change. The
CPS is currently divided into 42 geographical Areas across England and Wales
with each led by a Chief Crown Prosecutor (CCP). The 42 Areas are
arranged into 13 Groups, with each Group overseen by a Group Chair who is
also a CCP. However, from 1 April 2011, the existing CPS structure will move to
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Written Evidence submitted by the Crown Prosecution Service (EXT 12)
13 Areas, with each led by a CCP, and this will replace the current
arrangement of 42 Areas brigaded into 13 Groups. These changes to the
organisational structure will provide more opportunity for Areas to manage
and match their resources to their needs in order to allow more efficient and
flexible delivery of CPS business.
7. The CPS also has a small Headquarters function and two specialist
casework groups—Central Fraud Group and Serious Crime Group- who are
centrally based and deal with serious organised crime, terrorism, fraud and
other specialised and sensitive cases.
8. In 2009-10, the CPS prosecuted 982,731 defendants in the courts in England
and Wales. 110,146 defendants were prosecuted in the magistrates’ courts.
In addition we dealt with 14,270 appeals and 19,376 committals for sentence
in the Crown Court.
The Role of the CPS in Extradition Proceedings
9. The CPS is the authority in England and Wales responsible for the bulk of
extradition proceedings. It acts on behalf of foreign judicial authorities in
proceedings under Part 1 of the Extradition Act 2003 (‘the 2003 Act’) and for
foreign states under Part 2; it issues the majority of European Arrest Warrants
(EAWs) under Part 3 and is predominantly responsible for drafting extradition
requests to states outside the EAW scheme.
10. The authority of the CPS to conduct extradition proceedings on behalf of
foreign authorities is by virtue of section 3 of the Prosecution of Offences Act
1985 and section 190 of the 2003 Act. There is a fundamental distinction to be
drawn between extradition proceedings and the normal criminal prosecution
work undertaken by the CPS. Extradition is expressly not concerned with
establishing innocence or guilt of defendants through the presentation and
testing of evidence in a criminal prosecution. Extradition is concerned with
the surrender of defendants to face trial, to be sentenced or to serve
sentences of imprisonment in another jurisdiction. Whether the courts here
accede to extradition requests is not determined in a criminal trial process,
but by strict criteria set out in whatever instrument governs any particular
request from a requesting judicial authority or foreign state.
11. In this way, the CPS has a markedly different function when conducting
extradition proceedings. In short, it does not act as ‘prosecutor’ as the term is
generally understood. The view clearly expressed in the case of ex parte
Thom, R (Lotfi Raissi) v Secretary of State is that the CPS acts on behalf of
requesting states in a solicitor-client model.
12. The Special Crime Division (SCD), which forms part of the Serious Crime
Group, includes an Extradition Unit that is responsible for dealing with all
requests made to the UK (‘export cases’) and handles requests made by the
CPS for England and Wales (‘import cases’) to non-EU countries. Responsibility
for drafting import EAWs is devolved to local CPS Areas. Each of the 13
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Groups (or Areas from 1 April 2011) has a Complex Casework Unit (CCU) that
is able to offer specialist advice on the drafting of EAWs to CPS lawyers when
required. In addition, the CPS’ International Division produces detailed legal
guidance and provides a helpdesk facility to handle enquiries on mutual
legal assistance and extradition from CPS lawyers.
Volume of EAW Requests
13. According to CPS records, in 2010 the CPS’ Extradition Unit handled 1447
extradition requests (under Part 1 of the 2003 Act) from foreign judicial
authorities. However, there is a difference of course between the number of
requests made and the number of persons extradited from the UK. In 2009/10,
the UK extradited 699 persons under Part 1 of the 2003 Act.
14. In 2010 our main extradition partners for EAW requests were Poland,
Lithuania and the Czech Republic. In particular, there were a large number of
surrenders to Poland as their prosecutors operate under an obligation to
prosecute principle.
The relationship between the CPS and the Serious and Organised Crime
Agency (SOCA) Fugitive Unit
15. The CPS works closely with a number of agencies within the criminal justice
system in order that cases are effectively processed through the courts. The
2003 Act created two central authorities for the receipt of extradition requests
to the UK; in respect of cases under Part 1 the organisation is the Fugitives’
Unit in the Serious Organised Crime Agency (SOCA); and in respect of Part 2
cases, the Judicial Co-operation Unit of the Home Office. The Council
Framework Decision of 13 June 2002 on the EAW said the role of central
authorities in the execution of a EAW must be limited to practical and
administrative assistance.
16. SOCA as the designated authority may issue a certificate under section 2
of the 2003 Act if it receives the Part 1 warrant from an authority that has the
function of issuing such warrants. It is for SOCA to process the warrants it
receives. Once that warrant is certified the requested person can be
arrested. The timing of arrests is an operational matter for the police. The CPS
will only become involved in the proceeding when the person has been
arrested and placed before the court. Even in cases where the CPS gives
advice as to what matters need to be included in the warrant, it remains the
decision of SOCA as to whether that warrant should be certified. The fact that
the warrant is certified just means that the central authority has recognised
that the authority that has issued it is recognised as having that function within
the category 1 territory. It does not mean in itself that the warrant is valid, by
which the Act means that it contains the statement and information set out in
section 2 of the 2003 Act.
17. The Framework Decision envisages that the central authority can be
made responsible for the administrative transmission and reception of
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European arrest warrants as well as for all other official correspondence
relating to it. If issues are raised in the extradition proceedings, where further
information is required from the issuing judicial authority, those requests will be
transmitted via SOCA and the responses will come back the same route. This
mirrors the process under Part 2 of the 2003 Act where requests for additional
information are transmitted though the diplomatic channels via the Judicial
Co-operation Unit of the Home Office.
18. Under the 2003 Act, SOCA is responsible for arranging the extradition of
the person once the decision has become final. This is an operational decision
for SOCA and the police. If the person is not removed within the relevant time,
SOCA will notify the CPS in order that a later date can be fixed for the
removal. SOCA will provide a statement that can be used in court to explain
why the person has not been removed.
19. The transmission of EAWs, the timing of the certification, and operational
decisions on removal are all matters for SOCA. If once a person is extradited,
a request for consent to other offences being dealt with, the 2003 Act states
under section 54 that the consent hearing must begin within 21 days of SOCA
receiving the request for consent. As the Judge must serve notice on the
person that he has received the request for consent, the court will send its
transmission through SOCA.
The Process for Issuing Extradition Requests
20. The basis for all requests for extradition is: a person is either wanted for the
purpose of arrest for the purpose of being prosecuted for the offence; or the
person has already been convicted of the offence and the request is made
for the purpose of being sentenced for the offence or of serving a sentence
of imprisonment that has already been imposed by a court.
21. The Code for Crown Prosecutors explains how charging decisions are
made. It explains that no matter how serious the offence, a prosecution will
only follow if the Full Code Test is met: namely that there is sufficient evidence
for a realistic prospect of conviction; and it is in the public interest. The CPS
applies the Full Code Test when deciding if an extradition request for a person
should be prepared and submitted for a person who has yet to be charged
with the offence. In other cases the person may have already been charged
and has absconded after that date, or has been convicted of the offence.
By applying the Full Code Test, the CPS can mount the prosecution as soon as
the person is extradited.
22. In relation to the preparation of Part 3 warrants, the European Judicial
Network published the template to be completed in all cases and each box
tells the prosecutor what information is required. Section 142 of the 2003 Act
also requires the warrant to confirm whether the conduct constituting the
extradition offence specified in the warrant falls within the European
framework list, whether the offence is extra-territorial, and the maximum
penalties that may be imposed on conviction of the offence or what
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sentence has been imposed if already convicted. The application is made
before a Judge, who if satisfied that all the required information is contained
in the warrant, will issue the warrant in question. The warrant, and any
accompanying information, is transmitted to the designated competent
authority of the requested state by SOCA.
23. For Part 2 cases, the preparation of the request to be submitted through
the Home Office is dependent on the scheme that applies. For example,
information may be required for various schemes albeit in different formats.
For cases under the European Convention on Extradition, a Statement of
Facts and Law will be provided; for Australia a Statement of Acts and
Omissions; and for Canada a Record of Case. For countries where evidence is
required as a result of the treaty it may contain a prima facie bundle that is
sworn before magistrates.
24. Once the requests are submitted, the CPS has no further role to play save
for responding to any requests for information on behalf of the executing
authority. The presentation of the cases is handled by the executing
authorities on our behalf.
Transmission of EAWs by Interpol, the European Judicial Network (EJN) and the
Schengen Information System
25. The CPS plays no role in the transmission of EAWs. Once a CPS prosecutor
has had the warrant signed by the judicial authority (a magistrate, district
judge or Crown Court judge), the prosecutor sends the signed warrant to
SOCA’s Fugitives’ Unit. They oversee the translation of the warrant (as
necessary) and its transmission to other Member States.
Time Limits for Processing EAW Requests
26. Any time limits set out in the Framework Decision on the EAW or the
Extradition Act 2003 in relation to the processing of EAW requests apply to the
police, SOCA and the courts, but not the CPS.
Information Provided to those Undergoing Extradition Proceedings
27. It is for the police to execute the EAW in Part 1 of the Act. As part of the
arrest procedure, the 2003 Act requires the officer to serve a copy of the
warrant as soon as practicable after the arrest. If that is not complied with,
the requested person can apply to the Judge to be discharged and the
Judge may order that discharge depending on the reasons given for the nonservice. The requested person is also served with a copy of the officers arrest
statement and he is entitled to the custody record under the Police &
Criminal Evidence Act 1984 (PACE). Where a person has been provisionally
arrested, the officer must serve a copy of the arrest warrant as soon as
practicable after arrest.
28. In cases falling under Part 2 of the Act, the officer will serve a copy of the
arrest warrant as soon as practicable. At the time of the Extradition Hearing,
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the requested person will have been served with the section 70 certificate
issued by the Secretary of States, any relevant Orders in Council, and a copy
of the Extradition Request. He can also obtain the custody records under
PACE.
29. As much information is made available to the requested person in order
that the issue of consent can be addressed at the initial hearing.
Discretion of CPS in Executing Extradition Cases
30. The CPS only becomes engaged in extradition cases after the request has
been executed, i.e. the subject of the request has been arrested pursuant to
an extradition request from another jurisdiction. We play no part in the
execution of the request so do not have any discretion or influence.
Withdrawal of Extradition Requests.
31. The CPS does not have the power to discontinue extradition proceedings.
A warrant can be withdrawn only by the issuing judicial authority and the
procedure for that is set down in sections 41-43 of the 2003 Act in relation to
Part 1 cases; and sections 122-124 in respect of Part 2 cases. An explanation
will normally accompany the withdrawal.
32. There has been a trend where requested persons instruct lawyers or any
remaining family members in the issuing territory to make applications for the
warrant to be withdrawn. Warrants have also been withdrawn when
information has been relayed that the person is physically or mentally unfit,
where mistaken identity has been realised, or where the nature of the
evidence has altered. It should be remembered that some requested persons
are linked with co-accused whose trials continue in the issuing territory while
extradition proceedings are running. An acquittal of a co-accused would in
all probability lead to the withdrawal of the warrant unless the facts or
evidence could be distinguished in any way.
Additional briefing
33. The CPS is happy to provide the members of the Committee with
additional briefing on any aspects of its work if its helps the Committee’s
consideration and its future work.
February 2011
142
Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)
Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)
Executive Summary
American federal criminal law has deviated substantially from ancient
principles of what was once a shared British/American common law
tradition—the requirement that criminal culpability must presuppose a union
of act and intent. Under this tradition, criminal laws also must be sufficiently
clear so that a person of normal intelligence is able to understand where the
line is drawn between lawful and criminal conduct. Since approximately the
mid-1980s, American federal criminal law has been diverging from this
principle. Today, it is virtually impossible for Americans, let alone foreign
citizens, to understand what conduct is criminalized by a number of vague
federal criminal statutes. As a result, innocent men and women are being
convicted, and often sentenced to lengthy prison sentences, for engaging in
conduct that they had no reason to believe constituted a crime.
I have dealt with this growing problem in my 2009 book, Three Felonies a Day:
How the Feds Target the Innocent (New York: Encounter Books, 2009), in
which an expanded version of this essay can be found. My presentation to
the Joint Committee on Human Rights, as well as my book, derives from my
experience as a trial lawyer, writer, and occasional law teacher in the United
States between 1967 and the present. In the instant essay, I seek to explain
how and why modern-day American federal criminal law has deviated so
markedly from the ancient common law system that the United Kingdom and
the United States once shared, but which American federal criminal law has
quietly abandoned.
My essay traces the common law roots of American law, and then examines
through case studies the fatal deviation. My essay then goes into other
aspects of the U.S. federal criminal justice system that make it extremely
difficult, and risky, for defendants to challenge this vagueness in federal
courts. Federal prosecutors’ power to turn investigatory and prosecutorial
targets into “cooperating” witnesses is examined, as well as other aspects of
the insidious “cooperation framework.” This synergy between vague statutes
and coercive prosecutorial tactics produces a disheartening number of false
convictions and coerced plea bargains. It is my aim to show that, because of
the stacked deck that defendants currently face in the U.S. criminal justice
system, the House of Commons should enact procedural safeguards for
protecting citizens of the United Kingdom from unwarranted extradition.
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Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)
Written Evidence
1. It is widely recognized that the scales of the modern U.S. criminal justice
system tilt heavily toward the government. A rapidly-expanding U.S. criminal
code, comprised of often-overlapping laws, enables the government to
threaten heavy prison terms in multi-count indictments. If a defendant is brave
enough to contest charges at trial, a veritable trove of carrots and sticks help
prosecutors to persuade witnesses to “flip” and tailor their testimony to the
government’s script. In the event the accused is convicted, judicial discretion
is diminished by Draconian sentencing guidelines, once mandatory but still
closely followed. These phenomena serve to raise questions about the
fundamental fairness of federal criminal justice in America.
2. Depending on one’s political perspective, however, these issues may be of
varying importance. Legal observers may disagree on whether there are in
fact too many federal laws, or whether prosecutors should have such
unchecked power. But there is an underappreciated aspect of the modern
U.S. criminal justice system, a problem that transcends party lines, which is the
subject of my presentation today. It is the issue of vagueness, and the inability
of average citizens, or even their legal counsel, to divine precisely what U.S.
laws forbid. As such, members of civil society—both American citizens as well
as foreign citizens who conduct their activities in, or in connection with, the
United States—are subject to laws that they would not likely assume prohibits
the conduct in which they are engaged. American laws thus function less as
a guide to lawful conduct, and more of a trap for even the well-intentioned,
leaving the liberty of Americans troublingly dependent on prosecutorial whim.
No less vulnerable from U.S. prosecution are foreign citizens whose activities
implicate American interests.
3. With some four decades as a criminal defense and civil liberties litigator, I
bring the perspective of a practitioner, one who has seen the pernicious
effects of vague statutes firsthand. 205 Though not all members of the House of
Commons will agree with my observations, it is my hope that this account will
give cause for concern about the treatment of citizens of the United Kingdom
in American courts.
For more information on the author, visit:
http://threefelonies.com/AbouttheAuthor/tabid/57/Default.aspx. For further reading on the
subject, see “Federal Criminal Law: Punishing Benign Intentions – A Betrayal of Professor Hart’s
Admonition to Prosecute Only the Blameworthy,” by Harvey A. Silverglate, in Timothy Lynch,
editor, In the Name of Justice: Leaders Experts Reexamine the Classic Article “The Aims of the
Criminal Law” (Washington, D.C., Cato Institute, 2009), as well as “The Degradation of the
‘Void for Vagueness’ Doctrine: Reversing Convictions While Saving the Unfathomable ‘Honest
Services Fraud’ Statute,” by Harvey A. Silverglate and Monica R. Shah, in Cato Supreme Court
Review: 2009-2010 (Washington, D.C., Cato Institute, 2010). Copies of these publications, as
well as Three Felonies a Day, are being submitted with the hard copy (paper) submission
being delivered to the Committee.
205
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Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)
4. I begin the discussion with one of the most famous cases in American
constitutional law, Morissette v. United States, which sought to maintain the
tether between certain English common law principles and American federal
criminal law. While Morissette was indeed a valiant effort, its lessons have
ultimately fallen into disfavor. As a result, the risks for those doing business in
the United States or with U.S. entities, be they British or American, have grown
considerably.
5. A little over a half-century ago in rural Midwest America, a 27-year-old U.S.
Army veteran named Joseph Edward Morissette was working to support his
family as a fruit stand operator during the summer and as a trucker and scrap
iron collector during the winter. His seemingly normal life came to a
screeching halt, however, when he was charged with stealing from the
United States government in 1952. His case would ultimately wend its way
through the federal court system and end up at the Supreme Court.
6. One time when Morissette was out hunting for deer, he came across a
heap of spent bomb casings on a tract of uninhabited land. To Morissette, the
casings appeared abandoned. There were no signs posted to the contrary,
and, having sat in a pile through several harsh Michigan winters, the casings
were showing signs of rust and decomposition. When Morissette failed to bag
a deer to pay for his hunting trip, he collected some of the casings, crushed
them with his tractor, and sold them as scrap metal. The casings yielded him
$84.
7. The land turned out to be Oscoda Air Base, which the military used,
according to the later Supreme Court opinion, as “a practice bombing range
over which the Air Force dropped simulated bombs at ground targets.” 206 A
police officer, likely concerned about the large amount of bomb-shaped
scrap metal heaped in the bed of Morissette’s truck, asked him about the
casings and referred the matter to an FBI agent. That, in turn, led to
Morissette’s being indicted in federal court on the charge that he “did
unlawfully, willfully and knowingly steal and convert” property of the United
States in violation of a statute that provided that “whoever embezzles, steals,
purloins, or knowingly converts” government property is punishable by fine
and imprisonment. Morissette was convicted and sentenced to two months in
prison or a fine of $200.
8. Morissette hadn’t realized that the casings were the government’s
property; he had taken them on the assumption that they were abandoned.
In fact, he told the police officer who first questioned him that he did not think
they were of any use or that anybody would care if he took them. Yet
Morissette’s “innocent intention” couldn’t save him at trial. Despite the facts,
the trial judge forbade Morissette’s lawyer to argue to the jury that his client
acted with an “innocent intention,” because the judge concluded that
Morissette v. United States, 342 U.S. 246, 247-250 (1952); further details available from the
Court of Appeals opinion affirming Morissette’s conviction, Morissette v. United States, 187
F.2d 427 (6th Cir. 1951).
206
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Morissette’s guilt under the statute was obvious and legally irrefutable: the
bomb casings were on government property, and Morissette took them
without permission. It was irrelevant that Morissette might have reasonably
believed the casings were abandoned property, or even that this belief was
based upon the government’s own failure to post a notice to the contrary.
The question of whether Morissette believed he was not stealing, and of the
government’s complicity in giving him that impression, did not matter.
9. It’s important to note that the judge’s interpretation of the law departed
from centuries of English common law tradition, an evolving body of judgemade interpretive law with ancient roots, based on human experience and
common sense. The common law tradition, with rare and narrow exceptions,
does not punish those, like Morissette, who act with innocent intent. This
approach to criminal law contains a vital moral component—our society
punishes only those who intentionally rather than inadvertently violate the
law. 207
10. When the United States Court of Appeals for the Sixth Circuit heard
Morissette’s appeal in 1951, it upheld his conviction by a 2-1 vote. By the
judges’ stated logic, it was a “technicality” that Morissette, who they
acknowledged made “no effort at concealment,” never intended to steal.
When it comes to statutory crimes defined by Congress, the two-judge
majority argued, intent or knowledge is irrelevant unless Congress appears to
provide otherwise. Morissette wisely sought, and obtained, Supreme Court
review.
11. In its unanimous opinion, the Supreme Court threw out the appellate
court’s decision and, with it, Morissette’s conviction. 208 Justice Robert H.
Jackson discussed the historical role of intent in criminal cases and “the
ancient requirement of a culpable state of mind” that must accompany a
culpable act. To convict one of a crime, there must be “an evil-meaning
mind with an evil-doing hand” (for the technically minded, the traditional
common law notion of the combination of the actus reus and the mens rea).
12. Based on these centuries-old requirements, Justice Jackson concluded
that the courts could not presume from Congress’s silence that it did away
with the criminal intent requirement, as this “would conflict with the overriding
presumption of innocence with which the law endows the accused.” Jackson
noted that, had the jurors been allowed to consider Morissette’s state of
mind, “[t]hey might have concluded that the heaps of spent casings left in
the hinterland to rust away presented an appearance of unwanted and
abandoned junk,” and from that they might “have refused to brand
Morissette as a thief.”
See, generally, Ford W. Hall, The Common Law: An Account of Its Reception in the United
States, 4 Vand. L. Rev. 791 (1951).
208 Justice Douglas concurred in the result without signing onto Justice Jackson’s opinion, and
Justice Minton took no part in the decision of the case.
207
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13. Jackson and his fellow justices obviously recognized the importance of
their having decided to review the Morissette case, an undertaking extended
to a small minority of litigants who seek review by the high court. “This would
have remained a profoundly insignificant case to all except its immediate
parties,” Jackson noted in the Court’s opinion, “had it not been so tried and
submitted to the jury as to raise questions both fundamental and far-reaching
in federal criminal law.” And so this seemingly insignificant case had the
potential to ensure the continued presence of fundamental principles of
fairness and moral content in the federal criminal law. But how long would
those positive developments last?
14. A few years before he wrote Morissette v. United States, Robert H. Jackson
was serving as Franklin D. Roosevelt’s new attorney general. On April 1, 1940,
Jackson assembled his cadre of chief federal prosecutors in Washington. 209
He wanted to speak to them about a matter of grave concern—and it wasn’t
the evils of crime or the need to use every crime-fighting tool to the fullest.
Jackson’s subject, instead, was the untoward consequences of excessive
prosecutorial zeal.
15. After explaining why a federal prosecutor must choose cases carefully
and recognize that not every crime can be pursued, Jackson turned to the
heart of his talk: “If the prosecutor is obliged to choose his cases, it follows that
he can choose his defendants.” Here one finds “the most dangerous power
of the prosecutor: that he will pick people that he thinks he should get, rather
than pick cases that need to be prosecuted.”
16. Jackson was no soft touch. He knew real crimes when he saw them. After
serving as attorney general for less than two years, he would become a
Supreme Court justice and serve as well as chief American war crimes
prosecutor at Nuremberg. But Jackson also understood the proper limits of
power and the dangerous human impulse to exert power over others. The
federal law books, explained Jackson, are “filled with a great assortment of
crimes,” and a prosecutor “stands a fair chance of finding at least a
technical violation of some act on the part of almost anyone.” Prosecutors
can easily succumb to the temptation of first “picking the man and then
searching the law books, or putting investigators to work, to pin some offense
on him.”
17. Today, in spite of Jackson’s warning, it is only a slight exaggeration to say
that the average busy professional in this country wakes up in the morning,
goes to work, comes home, takes care of personal and family obligations,
and then goes to sleep, unaware that he or she likely committed several
federal crimes that day. Why? The answer lies in the very nature of modern
federal criminal laws, which have become not only exceedingly numerous
(Jackson’s main fear at the time of his admonition to his prosecutors) and
Robert Jackson, “The Federal Prosecutor,” April 1, 1940, delivered at the second Annual
Conference of United States Attorneys, in Washington, D.C., reproduced at 31 Am. Inst. Crim.
L. & Criminology 3 (1940-1941).
209
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broad, but also, since Jackson’s day, impossibly vague. As the Morissette
scenario indicated, federal criminal laws have become dangerously
disconnected from the English common law tradition and its insistence on fair
notice, so prosecutors can find some arguable federal crime to apply to just
about any one of us, even for the most seemingly innocuous conduct (and
since the mid-1980s have done so increasingly).
18. A study by the Federalist Society reported that, by the year 2007, the U.S.
Code (listing all statutes enacted by Congress) contained more than 4,450
criminal offenses, up from 3,000 in 1980. 210 Even this figure understates the
challenge facing honest, law-abiding citizens. Since the new deal era in the
1930s, Congress has delegated to various administrative agencies the task of
writing the regulations that implement many congressional statutes. This has
spawned thousands of additional pages of text that carry the same force as
congressionally enacted statutes. 211 The volume of federal crimes in recent
decades has exploded well beyond the statute books and into the morass of
the Code of Federal Regulations, handing federal prosecutors an additional
trove of often vague and exceedingly complex and technical prohibitions,
one degree removed from congressional authority, on which to hang their
hapless targets.
19. This development may sound esoteric to some—until they find themselves
at the wrong end of an FBI investigation into, or indictment for, practices they
deem perfectly acceptable. It is then that citizens begin to understand the
danger posed to civil liberties when our normal daily activities expose us to
potential prosecution at the whim of a government official.
20. The dangers spelled out here do not apply only to “white collar criminals,”
state and local politicians, and myriad professionals. No field of work nor
social class is safe from this troubling form of executive branch overreaching
and social control, and nothing less than the integrity of our constitutional
democracy hangs in the balance.
21. Though the threat of vague federal laws has grown exponentially worse in
the past three decades, its roots were established long ago. In an 1812
bribery case, the U.S. Supreme Court ruled that federal crimes were entirely
creatures of congressional statute and not successors to English common
210 John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation, Federalist
Society for Law and Public Policy Studies White Paper, May 2004, available at
http://www.fedsoc.org/doclib/20070404_crimreportfinal.pdf. The Federalist Society
commissioned this study, the report says, “to ascertain the current number of crimes in the
United States Code, and to compare that figure against the number of federal criminal
provisions in years past.” The report analyzed legislation enacted between 1997 through 2003.
211 When Congress enacts a general statute, it sometimes assigns to some administrative
agency the authority to write detailed or explanatory regulations that put flesh on the
statutory skeleton. Thus, the federal statute that outlaws securities fraud assigns to the
Securities and Exchange Commission the authority to write regulations detailing various kinds
of securities fraud. Violation of a regulation thus becomes the equivalent of violation of the
underlying statute.
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law. 212 As a result, Congress in writing statutes, and the federal courts in
interpreting them, do not have the full benefit of the English common law’s
wisdom and experience—with increasingly alarming consequences. As the
Supreme Court said in 1985, “[W]hen assessing the reach of a federal criminal
statute, we must pay close heed to language, legislative history, and purpose
in order strictly to determine the scope of the conduct the enactment
forbids.” 213 This judicial exercise, often akin to reading tea leaves, has proven
disastrous.
22. The deceptively simple exercise of divining congressional purpose in
enacting a statute involves, for one thing, a dubious assumption that
Congress acts with a single, much less a simple, intent. In practice, it is rarely
clear what that intent was, since much federal legislation is the result of
compromises that often are meant to gloss over genuine and sharp
differences. For this and perhaps other reasons as well, Congress has
demonstrated a growing dysfunction in crafting legislation that can in fact be
understood.
23. As the post-new deal regulatory and national security state took deeper
root during the mid-20th century, the gulf between the defendant-protective
common law tradition practiced in the states and the more malleable and
prosecution-friendly federal law grew. More and more, courts departed from
Justice Jackson’s insistence on requiring proof of criminal intent to commit a
crime, and instead subscribed to the belief that, if the nation is to be kept
safe in an increasingly dangerous world, law violators must not be allowed to
slip from the government’s net, even when the law’s prohibitions could not be
understood with precision.
24. The danger posed by vague statutes is perhaps best known in the context
of the era of anti-Jim Crow racial struggles in the American South. The threat
back then appeared to be the abusive use of vague state breach-of-thepeace laws to turn back the wave of civil rights demonstrations in the Deep
South. In one landmark case, a state statute was declared unconstitutional by
the U.S. Supreme Court because the law’s vague terminology misled
protestors who were attempting, in good faith, to adhere to the law’s
requirements. 214 In another case, the high court struck down a “breach of the
212 See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (unlike state courts,
federal courts cannot exercise common law criminal jurisdiction); Erie R. Co. v. Tompkins, 304
U.S. 64 (1938) (there is no general federal common law, even in civil matters); Whalen v. U.S.,
445 U.S. 684, 698 (1980) (the power to define crimes and punishments “resides wholly with the
Congress”); Dixon v. United States, 126 S.Ct. 2437, 2439 (2006) (“Federal crimes are solely
creatures of statute”) (citing Liparota v. United States, 471 U.S. 419, 424 (1985)). This may have
been because “[t]he Framers…recognized that the diverse development of the common law
in the several States made a general federal reception impossible.” Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 139-140 (1995)
(Souter, J., dissenting).
213 Dowling v. U.S. 473 U.S. 207, 213 (1985).
214 See Cox v. Louisiana, 379 U.S. 536 (1965). In this case, Reverend B. Elton Cox, leader of a
group of civil rights demonstrators, was arrested in December 1961 for violating a 1950
Louisiana criminal statute that barred picketing “in or near” courthouses. In 1965, his
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peace” statute in South Carolina, declaring the law “void for vagueness”
because the terms were “not susceptible to exact definition.” 215
25. Troublingly, the doctrines of misleading the citizen 216 and “void for
vagueness,” 217 which U.S. federal courts have applied in numerous cases with
regard to state statutes, especially where states have used vague statutes to
violate the federal constitutional rights of political, religious and racial
minorities, have not been applied consistently or with equal rigor in federal
cases, despite the modern-era explosion of vague federal criminal statutes
and mountains of turgid regulations. When the Supreme Court considered an
Oklahoma law that made it a crime to pay laborers less than the prevailing
wage in their locality, it decided that the law’s references to “locality” and
“current rate of wages” left too much open to interpretation. That state law
was unconstitutional, the Court determined, because its language was “so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to” how best to comply with it. 218 The dangers posed
by vague laws, relatively rare in modern state criminal statutes, are greatly
exacerbated in the current federal criminal code. Such federal statutes have
been stretched by prosecutors, often with the connivance of the federal
courts, to cover a vast array of activities neither clearly defined nor intuitively
obvious as crimes, both in commerce and in daily life.
26. As these bodies of law have expanded, federal prosecutors have grown
more inclined to bring criminal charges for deeds that, at most, constituted
arguable (sometimes barely arguable) civil offenses. Thus, they raised
reasonably contestable federal questions that a federal court, in a civil
proceeding, should have been allowed to resolve. The citizen, if wrong, would
have to pay a price measured in dollars; and once the clear meaning of the
statute or regulation was established, the citizen would be expected to
adhere to it, next time on penalty of criminal indictment and conviction. I
naively assumed that the federal courts would, by and large, insist that
conviction was overturned by the U.S. Supreme Court, which contended that the antipicketing statute suffered from a “lack of specificity” in its mandate that demonstrations not
take place “near” courthouses. Cox had received permission to lead a protest across the
street—approximately 125 feet away. By telling Cox that he could lead the protest at that
location but then arresting him, Louisiana officials violated his right to adequate notice and
hence “due process of law.”
215 See Edwards v. South Carolina, 372 U.S. 229 (1963). In this case, 187 black high school and
college students were convicted for “breach of the peace” during a peaceful
demonstration against mistreatment of blacks. While the Supreme Court ruled the
demonstration itself was protected by the First Amendment, it went further and deemed the
statute unconstitutional because it was “so vague and indefinite” that it practically invited
punishment of protected speech and protest. The Court noted that the Supreme Court of
South Carolina defined the word “peace” as used in the statute as “tranquility.” “These
petitioners,” said the U.S. Supreme Court, “were convicted of an offense so generalized as to
be, in the words of the South Carolina Supreme Court, ‘not susceptible of exact definition.’”
216 See Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959).
217 See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Edwards v. South Carolina, 372
U.S. 229 (1963).
218 Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
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citizens be charged with crimes only when there was adequate notice of
what constituted the crime.
27. I had reason, at the start of this trend, to think that the federal courts
would rein in prosecutors. Consider the plight of Dorothy Garber. She ran afoul
of the federal tax code, widely viewed as a confusing mishmash of arcane,
complex, and often conflicting rules and interpretations. As such, tax
prosecutions traditionally were to be brought only where the regulation had
been sufficiently clarified so that the taxpayer could reasonably be said to
have intentionally violated a known legal duty to pay taxes owed. The taxing
authorities were supposed to exercise wise discretion in deciding whether to
seek to collect a tax in a civil enforcement proceeding, or to seek to punish
criminally a tax evader who should have known better.
28. Garber’s case reached the Florida federal courts in the late-1970s. This
taxpayer was blessed (or perhaps, under the circumstances, cursed) with a
rare trait: her body manufactured an extraordinarily valuable antibody used
to make blood-typing serum. She frequently sold her antibodies to a
pharmaceutical company by the process of plasmapharesis, i.e., the
removal, treatment, and return of blood plasma from and to her circulation, a
procedure that was both uncomfortable and potentially dangerous. She
underwent plasmapharesis sometimes as often as six times a month and was
handsomely paid for her trouble. In 1972, she earned a weekly salary of $200.
In addition, she was provided a leased automobile and a $25,000 bonus. She
earned a total of $87,200 that year and nearly as much in each of the two
previous years.
29. Garber failed to report as income any of this money except her weekly
$200 salary. Consequently, she was charged with criminal tax evasion. Her
defense was intriguing, more a reflection of the conundrum of the federal tax
code perhaps than of her alleged dishonesty. Examples of non-taxable
transactions, some of which produce monetary gains, are found scattered
throughout the tax code in various contexts. For example, if one owns some
physical item, a “capital asset,” and sells that asset for one’s cost, however
calculated, there is no taxable gain. If one is injured in an accident,
compensation for pain and suffering is not taxable, in contrast to
compensation for lost wages. These special categories of assets and of
revenue, many of which get quite technical, often confound even the most
experienced tax lawyers and accountants.
30. Garber, a lay person, argued that her body was a “capital asset” under
the Internal Revenue Code, and that when she sold a portion of that asset,
the sale was a non-taxable exchange because the tax cost basis of the asset
with which she parted, i.e., her blood plasma, was precisely equal to the
funds she received. The funds merely replaced the plasma she gave to the
laboratory and therefore were neither proceeds of a business nor payment
for services, either of which would render the proceeds taxable as “earned
income.”
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31. The United States Court of Appeals for the Fifth Circuit saw the issue as “a
unique legal question,” 219 noting that Garber testified “that she thought, after
speaking with other blood donors, that because she was selling a part of her
body, the money received was not taxable.” The trial judge had told the jury
that monetary proceeds of such plasma donations were taxable and refused
to allow Garber’s defense counsel to present expert witnesses who would say
otherwise.
32. In reversing her conviction, the Court of Appeals decided not only that
she had a right to present her capital exchange theory supported by expert
testimony, but that “no court has yet determined whether payments received
by a donor of blood or blood components are taxable as income.” If Garber
performed a service, it was taxable; if, on the other hand, “blood plasma, like
a chicken’s eggs, a sheep’s wool, or any salable part of the human body,” is
tangible property, then her revenues were not taxable. Most importantly, the
court declared that, because the law was vague and unsettled, “a criminal
proceeding…is an inappropriate vehicle for pioneering interpretations of tax
law.” 220 In other words, the government should have brought a civil action
against Garber to seek collection of the tax owed, not a criminal one to
punish her.
33. Today, the Justice Department encourages federal prosecutors to do
exactly what the Garber court condemned. In particular, federal prosecutors’
novel use of long-standing but utterly formless “anti-fraud” laws, which cover
increasingly vast areas of American life, threaten honest (and apparently lawabiding) business executives and other professionals, as well as other ordinary
citizens. In 2003, Michael Chertoff, then-second-in-command of the Justice
Department’s Criminal Division, even went so far as to boldly declare that
federal prosecutors should exploit anti-fraud provisions to indict business
executives because “criminal prosecution is a spur for institutional reform.” 221
34. The federal government’s preference for criminal prosecutions (over either
civil prosecution or “institutional reform” via the legislative branch) to expand
the reach of the law is not limited to vague “antifraud” statutes and
regulations. The same can be said for other now commonly used statutes—
conspiracy, bribery, and extortion, among others. Even the most intelligent
and informed citizen (including lawyers and judges, for that matter) cannot
predict with any reasonable assurance whether a wide range of seemingly
ordinary activities might be regarded by federal prosecutors as felonies.
35. The trend of ambitious prosecutors exploiting vague federal laws and
pursuing criminal charges instead of oftentimes more appropriate civil
actions, something that they could not readily get away with in many state
United States v. Garber, 607 F.2d 92 (5th Cir. 1979) (en banc).
Id. (emphasis added).
221 Proceedings of the 17th Annual National Institute on White Collar Crime, March 6, 2003,
quoted in John Gibeaut, Junior G-Men, 89 A.B.A. J. 46, 48 (June 2003).
219
220
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courts, has been alarming enough, but it’s not the whole story. Indeed, the
threat posed by federal prosecutors has become a veritable perfect storm
lately, due to the convergence of this trend with the commonplace legal
tactics that these prosecutors wield in order to get convictions in the vast
majority of cases. Prosecutors are able to structure plea bargains in ways that
make it nearly impossible for normal, rational, self-interest calculating people
to risk going to trial. The pressure on innocent defendants to plead guilty and
“cooperate” by testifying against others in exchange for a reduced sentence
is enormous—so enormous that such cooperating witnesses often fail to tell
the truth, saying instead what prosecutors want to hear. As Harvard Law
School Professor Alan Dershowitz has colorfully put it, such cooperating
defendant-witnesses “are taught not only to sing, but also to compose.” 222
36. There has been precious little legislative and judicial analysis of the
expanded use of destructive coercive practices for “turning” prosecution
witnesses, which may involve immunity for loved ones, cash stipends, new
identities not encumbered by a criminal record, and other powerful
inducements in exchange for “composing” to nail former associates.
Although in theory the law requires that the government disclose to defense
counsel all inducements given to cooperating witnesses, 223 jurors typically
accept prosecutors’ claims that such inducements are essential to infiltrate
hidden criminal conspiracies. Moreover, as any criminal defense practitioner
knows, in practice, many types of inducements and threats often are implied,
the subject of a knowing wink of the eye by the prosecutor to the prospective
witness’s lawyer.
37. The “cooperation” framework is insidious. Prosecutors long have had the
ability to offer witnesses valuable benefits, including money, in exchange for
testimony that incriminates associates. Today, federal sentencing guidelines
(once mandatory; still strongly suggestive and widely followed by judges)
reward defendants who plead guilty and then give the government the
testimony it seeks to prosecute others. Vague statutes exacerbate this
problem by making it quite easy for one associate to testify that a former
collaborator is indeed a crook.
38. The myriad ways in which federal prosecutors can craft or compose
important witness testimony makes the prospect of the reduced sentence
affiliated with a plea bargain much more palatable to defendants than the
risk of a much higher sentence should they be found guilty at trial. The riskreward ratio that innocent defendants weigh when deciding whether to
Prof. Dershowitz has used this formulation on numerous occasions in his Harvard Law School
classes. See Harvey A. Silverglate, “Ashcroft’s big con: False confessions, coerced pleas, show
trials — the Justice Department’s reliance on Soviet-style tactics has turned the war on terror
into a Potemkin village,” The Boston Phoenix, June
25, 2004, available at
http://bostonphoenix.com/boston/news_features/top/features/documents/03936976.asp.
See also Paul Craig Roberts, “Fake Crimes,” Feb. 4, 2004, available at
http://www.lewrockwell.com/roberts/roberts29.html.
223 Giglio v. U.S., 405 U.S. 150 (1972).
222
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challenge an indictment by insisting on a trial has tilted decidedly toward risk
reduction via a guilty plea and cooperation against others.
39. The push for more plea bargains also has an effect on how thoroughly—
and indeed whether at all—the prosecutions are tested in federal appeals
courts to determine whether prosecutors are relying on cockamamie
interpretations of federal statutes. When you can scare enough defendants
to plead guilty in exchange for less prison time, the government wins by
default since there is no real chance that an appeals court will say that the
prosecution was wholly phony.
40. Increases in the number of plea bargains also have the functional result of
hiding these prosecutions from the public and avoiding scrutiny by the press,
because cases in which defendants take plea bargains receive much less
attention than those that go to trial. On the other hand, as the circle widens
to ensnare ever more “conspirators,” prosecutors trumpet their willingness to
“go wherever the evidence leads,” and the news media are, far more often
than not, prepared to report such news without an ounce of insight or
skepticism.
41. Thus, more and more innocent conduct gets swept into the category of
crime—not by legislatures, and only secondarily by judges and juries, but
primarily by these dangerous and altogether too common prosecutorial
practices. The problem is exacerbated by a white collar criminal defense bar
composed largely of former federal prosecutors turned defenders who, by
virtue of their experience in the federal government, well understand the risks
of going to trial and therefore stress to their clients the benefits of cooperation
over confrontation and the increasingly less likely prospect of vindication.
While some former prosecutors turn into vigorous and skeptical defense
lawyers (a few are among the most talented and principled in the nation,
some of whom even left their prosecutorial jobs out of revulsion at the modern
practices of the Department of Justice), a culture of assumed guilt, pleabargaining, and deal-making has developed in defense circles which, more
and more, are populated by capitulation-prone former prosecutors,
especially at the higher echelons of the profession. The name of the game is
to confess and cooperate, thus pleasing prosecutors who, in the not-toodistant past, were the comrades-in-arms of the newly-minted defenders.
Through this flawed process, ordinary conduct is increasingly deemed criminal
without the benefit of critical examination, much less an adversarial testing of
the DOJ’s often pioneering interpretations of federal law.
42. In turn, this prosecutorial strategy affects news coverage of high-profile
cases that resemble public hangings in the Old West, often with the press
decrying the latest “crime wave” and cheering the double-digit sentences
imposed, with little or no critical media analysis and understanding. The
criminal justice system and the news media (which in theory is supposed to be
a check on government excess) feed one another instead.
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43. Since the late-1980s, the federal bench, too, has been undergoing a
transformation that has seriously eroded the extent to which judges can be
relied upon to rein in bogus federal prosecutions. Judges, many of whom are
former prosecutors, not only buy into the amorphous definitions of federal
crimes favored by prosecutors, but they knowingly enable the tactics that
allow prosecutors to present witnesses who bolster dubious prosecutions,
thereby giving such cases the patina of substance. In a 1998 case, which
served as a roadsign in the degradation of the federal justice system, lawyers
for a Kansas woman named Sonya Singleton challenged the practice of
offering leniency and even monetary rewards to cooperating government
witnesses in exchange for their testimony. Prosecutors alleged that Singleton
assisted her drug-dealing husband by wiring money for him in her name to a
kingpin in California. Ms. Singleton and other co-conspirators were charged
with multiple counts of money laundering and conspiracy to distribute
cocaine. Before trial, she moved to suppress the testimony of Napoleon
Douglas, a co-conspirator who had entered into a plea agreement with the
government. The basis for her motion was that the government had
impermissibly promised Mr. Douglas something of value, in violation of both
federal law and the Kansas Rule of Professional Conduct. Specifically,
Douglas had been promised that 1) he would not be prosecuted for any
violations of the Drug Abuse Prevention and Control Act, stemming from his
activities, other than perjury or related offenses, and 2) prosecutors would
advise the sentencing court and parole board of the nature and extent of
the cooperation provided.
44. Singleton’s challenge was a shot across the justice system’s bow, aiming
directly at its increasingly corrupt “business as usual” culture, and she lost.
45. Not surprisingly, a federal statute makes it a crime to bribe witnesses; it is a
felony to give or promise a witness “anything of value” in exchange for
testimony. 224 The defendant’s theory in Singleton was, if it is a felony (and it is)
for any defense lawyer to promise a benefit to a witness, should it not similarly
be a crime for prosecutors, by threats, money or other inducements, to
coerce or bribe the vulnerable to “cooperate”? Shouldn’t all untoward
pressures and inducements be removed from witnesses, so that truth, and not
just naked self-interest, governs their testimony? The statute, on its face, makes
no exception whatsoever for government use of bribery.
46. A three-judge panel of the Tenth Circuit Court of Appeals 225 followed the
seemingly (one might even say unusually) clear wording of the witness-bribery
statute and found no exception for prosecutors who threaten and then
reward government witnesses for their testimony. The court drew the obvious
conclusion that doing so is bribery. A panicked Department of Justice
Title 18, United States Code, section 201(c)(2): “Whoever directly or indirectly gives, offers,
or promises anything of value to any person, for or because of the testimony under oath or
affirmation given or to be given by such person as a witness upon a trial, hearing, or other
proceedings, before any court…, or for or because of such person’s absence therefrom, shall
be fined under this title or imprisoned for not more than two years, or both.”
225 United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998, panel opinion).
224
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promptly sought and obtained further review by the full membership of the
court, insisting the statute not be interpreted to mean what it says, lest the
whole edifice of bought and coerced prosecution testimony collapse.
47. The full court reversed the upstart panel that had temporarily rocked the
prosecutorial boat. 226 It ruled that “in light of the longstanding practice of
leniency for testimony,” it must be “presumed” that, had Congress intended
to “overturn this ingrained aspect of American legal culture, it would have
done so in clear, unmistakable, and unarguable language.” of course, that is
precisely what Singleton argued and the three-judge panel found that
Congress had done—spoken clearly against bribery of witnesses. The full
court, however, pretending to know, without any clear evidence, what was
on Congress’s mind when it enacted a seemingly all-inclusive prohibition
against interfering with the testimony of a witness, found that Congress
intended an exception for prosecutors—a double standard if ever there was
one.
48. It was hard for the defense bar to avoid profound disillusionment. The
Singleton experience demonstrated that, even where Congress seems to
have spoken clearly on the definition of witness bribery, the institutional
imperative to obtain convictions at any cost prevailed.
49. Cynicism about the unlevel playing field granted to prosecutors by
Singleton was amplified by a 1970 Supreme Court decision, North Carolina v.
Alford. In that case, the defendant was charged with first-degree murder
(with a potential death sentence attached to it) but decided to take a plea
bargain in which he would accept a sentence for second-degree murder
instead. However, unlike most defendants who take these deals, “Alford took
the stand and testified that he had not committed the murder, but that he
was pleading guilty because he faced the threat of the death penalty if he
did not do so.” 227 After his trial, Alford appealed and claimed that his guilty
plea was the product of force or coercion because he had been facing the
death penalty. The Supreme Court decided that his plea was not coerced
and that it was lawful for the judge to accept Alford’s guilty plea even though
he maintained his factual and legal innocence. Instead of risking execution,
Alford decided to throw in the towel and take a thirty-year sentence. In
today’s world of federal criminal law, many defendants will find themselves
weighing reasons similar to Alford’s that might lead them to take a plea
bargain, including the recognition that innocence is all too often not an
adequate and effective defense to a federal prosecution.
50. The Court’s decision in Alford is a double-edged sword for defendants. In
the short run, defendants situated similarly to Alford might benefit by being
able to plead guilty and exchange the certainty of a lower sentence for the
risky uncertainty of a much more onerous sentence. In the long run, however,
Alford is bad news for federal defendants and the federal criminal justice
226
227
United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999, en banc).
North Carolina v. Alford, 400 U.S. 25, 28 (1970).
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system in particular, because it means those prosecutions will never go to trial
and that, in turn, those prosecutions will never be challenged in appeals
courts. In the longest view, federal prosecutors who exploit vague statutes are
the biggest beneficiaries of the Court’s decision in Alford precisely because
they can structure deals that 1) defendants cannot refuse and that 2) mean
that the prosecutors’ creative interpretations of the laws are unlikely to be
challenged or overturned through judicial review. The combination of Alford
and Singleton, in the context of a system of federal laws that so often simply
cannot be understood, has paved the way to an inescapable conclusion
that the federal criminal justice system has become a crude conviction
machine instead of an engine of truth and justice.
51. This phenomenon, the synergy between vague statutes and coercive
prosecutorial tactics, explains the anecdote told by Tim Wu in a 2007 article
titled “American Lawbreaking,” published in the online magazine Slate:
At the federal prosecutor’s office in the Southern District of New York, the
staff, over beer and pretzels, used to play a darkly humorous game. Junior
and senior prosecutors would sit around, and someone would name a
random celebrity—say, Mother Theresa or John Lennon. It would then be
up to the junior prosecutors to figure out a plausible rime for which to
indict him or her. The crimes were not usually rape, murder, or other crimes
you’d see on Law & Order but rather the incredibly broad yet obscure
crimes that populate the U.S. Code like a kind of jurisprudential minefield:
Crimes like “false statements” (a felony, up to five years), “obstructing the
mails” (five years), or “false pretenses on the high seas” (also five years).
The trick and the skill lay in finding the more obscure offenses that fit the
character of the celebrity and carried the toughest sentences. The result,
however, was inevitable: “prison time,” as one former prosecutor told
me. 228
52. This is precisely the expansion of the criminal code that Justice Jackson
warned of more than half a century ago. But there is an added danger that
Jackson did not foresee: as the criminal code became broader, it also
became more and more vague, or at least it has been interpreted so by
prosecutors and often by courts as well. Because of this vagueness, the
federal criminal law has become too often a trap for the unwary honest
citizen instead of a legitimate tool for protecting society. There are too many
people behind bars today who honestly believed, for good and sufficient
reasons, that they acted in conformity with the law. Justice Jackson
perceived the very early stages of the transformation (some would say
perversion) of U.S. criminal law into such a trap. He decried the failure to limit
federal prosecutions and convictions to people who knowingly and
Tim Wu, “American Lawbreaking: Illegal Immigration,” Slate.com, October 14, 2007,
available at http://www.slate.com/2175730/entry/2175733/.
228
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intentionally violated reasonably knowable legal duties, as is the English
common law tradition.
53. Let’s be clear. All segments of civil society and a wide variety of seemingly
innocuous behaviors are at risk of being criminalized by an overzealous
Justice Department (“civil society” being defined roughly as the private
sector, even if one’s work is government-regulated to some degree). The
increasing power the federal government exerts over every element of the
private sector, as demonstrated by the power to investigate, prosecute, and
even convict defendants who have not committed a clearly defined crime, is
a threat to the nation as a whole. Quite simply, it undermines a critical
tension, an essential balance of power, between the government and the
governed. Consider some of the cases discussed in more detail in Three
Felonies a Day:
•
Philip Russell, a lawyer from Greenwich, Connecticut, was indicted in 2007
for obstruction of justice because he destroyed child pornography,
despite the fact that child porn is illegal even to possess (“contraband”)
and therefore holding, rather than destroying it, arguably would be
criminal.
•
Michael Milken, under threat that the department of Justice would
prosecute his younger brother if the older brother did not take a plea
bargain, pled guilty in 1990 to a felony that a judge later ruled (in a trial
against a Milken cohort) did not constitute a crime.
•
The Department of Justice in 2002 indicted, and then convicted Arthur
Andersen & Company, at the time one of the nation’s “Big Five”
accounting firms, for obstruction of justice simply because the firm
followed its normal document-retention-and-destruction policy before
receiving a document-production subpoena in connection with the
government’s investigation of Enron Corporation. By the time the Supreme
Court unanimously reversed the conviction (because the jury had been
instructed that it could convict even in the absence of any type of
dishonesty), the firm had gone out of business. Faced with the threat of a
ruinous prosecution on the basis of similarly dubious claims of wrongdoing,
KPMG (a member of the then-remaining “Big Four”), believing that
discretion was the better part of valor, admitted to readily refutable guilt
and betrayed its former partners and employees in order to survive.
•
Federal prosecutors indicted Steven Kurtz, a college professor and
politically radical artist living in Buffalo, New York, on a mail fraud charge
in 2004 for engaging in a transaction that professors around the country
engage in routinely. In truth, the mail fraud charge was simply a way for
the government to justify the countless man-hours the FBI poured into the
case after falsely, indeed bizarrely, concluding that Kurtz’s cutting-edge
artwork amounted to bioterrorism.
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Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)
•
The Department of Justice reportedly looked into indicting The New York
Times (and its top editors and reporters) for espionage for running a frontpage story that exposed the National Security Agency’s arguably
unlawful warrantless communications surveillance program.
54. These are just a few of the investigations and prosecutions in which wellmeaning professionals from all walks of life have been charged (or nearly
charged) criminally for engaging in activities that most of us—lawyers and
laymen alike—would consider lawful, often quite ordinary, and frequently
socially beneficial. It is thus incumbent on the U.K. Parliament to protect the
British people from exposure to these unjust prosecutions by increasing
procedural safeguards for extradition to the U.S.
25 February 2011
159
Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for
Justice and Lord Chancellor (EXT 16)
Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary
of State for Justice and Lord Chancellor (EXT 16)
The Joint Committee on Human Rights will take evidence on 29 March on the
human rights implications of UK extradition policy from Baroness Neville-Jones.
Some of the evidence we have received from witnesses raises issues relating
to areas within the responsibility of the Ministry of Justice. I am writing to you to
ensure that the Government is provided with an opportunity to express an
opinion on these issues.
Several witnesses have suggested that proposals set out in the EU Roadmap
for fostering the protection of the rights of suspected persons in criminal
proceedings would increase procedural protection for persons subject to
extradition proceedings. This initiative will facilitate the application of the
principle of mutual recognition of judicial decisions which underpins the EAW.
The Roadmap on Procedural Rights was adopted by the Council in 2009 and
incorporated into the Stockholm Programme. What progress has been made
with respect to implementing the procedural rights set out in the roadmap?
What is the Government’s view of the programme and the proposals for
procedural protections that it sets out?
Will the Government be encouraging other Member States and the
Commission to implement the outstanding measures set out in the roadmap?
Several witnesses have commented on the importance of legal
representation for persons subject to extradition proceedings in both
requesting and requested countries in order for that the person in question is
able to mount an effective defence against extradition on human rights
grounds.
What level of legal aid is provided to those subject to extradition? Does the
Government believe this provision is adequate in order to protect the human
rights of those subject to extradition requests?
Witnesses have suggested that defendants in extradition cases do not have
sufficient time with a duty solicitor before their case. It has been suggested
that a minimum amount of time should be provided to defendants before their
case. Can you comment on this suggestion?
What provision is there for a defendant to claim legal aid for a legal
representative in the requesting country?
160
Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for
Justice and Lord Chancellor (EXT 16)
The Committee has received evidence arguing that suspects of international
crimes committed abroad, including genocide, war crimes and so on, who
are found within the UK should be brought to trial within the UK rather than
being extradited to face trial.
What steps are the Government taking to ensure that suspects of crimes
which are covered by universal jurisdiction stand trial in the United Kingdom in
the first instance?
23 March 2011
161
Written Evidence submitted by Crown Prosecution Service (EXT 17)
Written Evidence submitted by Crown Prosecution Service (EXT 17)
1. This memorandum provides an overview of the Crown Prosecution Service
(CPS) and its role in the extradition process. It also provides the Committee
with further information on areas in which it may have a particular interest.
Role and organisation of the Crown Prosecution Service
2. The Crown Prosecution Service (CPS) was set up in 1986 under the
Prosecution of Offences Act 1985 as an independent authority to prosecute
criminal cases investigated by the police in England and Wales. In
undertaking this role the CPS:
•
advises the police during the early stages of investigations;
•
determines the appropriate charges in more serious or complex
cases;
•
keeps all cases under continuous review and decides which cases
should be prosecuted;
•
prepares cases for prosecution and prosecutes cases using in-house
advocates, self-employed advocates or agents to present cases in
court, and
•
provides information and assistance to victims and prosecution
witnesses.
3. The way in which the CPS undertakes its role is governed by two key
documents: the Code for Crown Prosecutors; and Core Quality Standards
(CQS).
4. The Code sets out the principles the CPS applies when carrying out its work.
Those principles are whether:
•
there is enough evidence to provide a realistic prospect of
conviction against each defendant on each charge; and, if so,
•
a prosecution is needed in the public interest.
5. Keir Starmer QC is the Director of Public Prosecutions (DPP) and leads the
CPS. He has been DPP since November 2008 and will hold his office for five
years. The CPS is superintended by the Attorney General and is the largest of
the Law Officers’ departments, and as at 30 September 2010, the CPS had
8,571 staff.
6. The organisational structure of the CPS is currently subject to change. The
CPS is currently divided into 42 geographical Areas across England and Wales
with each led by a Chief Crown Prosecutor (CCP). The 42 Areas are
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Written Evidence submitted by Crown Prosecution Service (EXT 17)
arranged into 13 Groups, with each Group overseen by a Group Chair who is
also a CCP. However, from 1 April 2011, the existing CPS structure will move to
13 Areas, with each led by a CCP, and this will replace the current
arrangement of 42 Areas brigaded into 13 Groups. These changes to the
organisational structure will provide more opportunity for Areas to manage
and match their resources to their needs in order to allow more efficient and
flexible delivery of CPS business.
7. The CPS also has a small Headquarters function and two specialist
casework groups—Central Fraud Group and Serious Crime Group—who are
centrally based and deal with serious organised crime, terrorism, fraud and
other specialised and sensitive cases.
8. In 2009–10, the CPS prosecuted 982,731 defendants in the courts in England
and Wales. 110,146 defendants were prosecuted in the magistrates’ courts.
In addition we dealt with 14,270 appeals and 19,376 committals for sentence
in the Crown Court.
The Role of the CPS in Extradition Proceedings
9. The CPS is the authority in England and Wales responsible for the bulk of
extradition proceedings. It acts on behalf of foreign judicial authorities in
proceedings under Part 1 of the Extradition Act 2003 (‘the 2003 Act’) and for
foreign states under Part 2; it issues the majority of European Arrest Warrants
(EAWs) under Part 3 and is predominantly responsible for drafting extradition
requests to states outside the EAW scheme.
10. The authority of the CPS to conduct extradition proceedings on behalf of
foreign authorities is by virtue of section 3 of the Prosecution of Offences Act
1985 and section 190 of the 2003 Act. There is a fundamental distinction to be
drawn between extradition proceedings and the normal criminal prosecution
work undertaken by the CPS. Extradition is expressly not concerned with
establishing innocence or guilt of defendants through the presentation and
testing of evidence in a criminal prosecution. Extradition is concerned with
the surrender of defendants to face trial, to be sentenced or to serve
sentences of imprisonment in another jurisdiction. Whether the courts here
accede to extradition requests is not determined in a criminal trial process,
but by strict criteria set out in whatever instrument governs any particular
request from a requesting judicial authority or foreign state.
11. In this way, the CPS has a markedly different function when conducting
extradition proceedings. In short, it does not act as ‘prosecutor’ as the term is
generally understood. The view clearly expressed in the case of ex parte
Thom, R (Lotfi Raissi) v Secretary of State is that the CPS acts on behalf of
requesting states in a solicitor-client model.
12. The Special Crime Division (SCD), which forms part of the Serious Crime
Group, includes an Extradition Unit that is responsible for dealing with all
requests made to the UK (‘export cases’) and handles requests made by the
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Written Evidence submitted by Crown Prosecution Service (EXT 17)
CPS for England and Wales (‘import cases’) to non-EU countries. Responsibility
for drafting import EAWs is devolved to local CPS Areas. Each of the 13
Groups (or Areas from 1 April 2011) has a Complex Casework Unit (CCU) that
is able to offer specialist advice on the drafting of EAWs to CPS lawyers when
required. In addition, the CPS’ International Division produces detailed legal
guidance and provides a helpdesk facility to handle enquiries on mutual
legal assistance and extradition from CPS lawyers.
Volume of EAW Requests
13. According to CPS records, in 2010 the CPS’ Extradition Unit handled 1447
extradition requests (under Part 1 of the 2003 Act) from foreign judicial
authorities. However, there is a difference of course between the number of
requests made and the number of persons extradited from the UK. In 2009/10,
the UK extradited 699 persons under Part 1 of the 2003 Act.
14. In 2010 our main extradition partners for EAW requests were Poland,
Lithuania and the Czech Republic. In particular, there were a large number of
surrenders to Poland as their prosecutors operate under an obligation to
prosecute principle.
The relationship between the CPS and the Serious and Organised Crime
Agency (SOCA) Fugitive Unit
15. The CPS works closely with a number of agencies within the criminal justice
system in order that cases are effectively processed through the courts. The
2003 Act created two central authorities for the receipt of extradition requests
to the UK; in respect of cases under Part 1 the organisation is the Fugitives’
Unit in the Serious Organised Crime Agency (SOCA); and in respect of Part 2
cases, the Judicial Co-operation Unit of the Home Office. The Council
Framework Decision of 13 June 2002 on the EAW said the role of central
authorities in the execution of a EAW must be limited to practical and
administrative assistance.
16. SOCA as the designated authority may issue a certificate under section 2
of the 2003 Act if it receives the Part 1 warrant from an authority that has the
function of issuing such warrants. It is for SOCA to process the warrants it
receives. Once that warrant is certified the requested person can be
arrested. The timing of arrests is an operational matter for the police. The CPS
will only become involved in the proceeding when the person has been
arrested and placed before the court. Even in cases where the CPS gives
advice as to what matters need to be included in the warrant, it remains the
decision of SOCA as to whether that warrant should be certified. The fact that
the warrant is certified just means that the central authority has recognised
that the authority that has issued it is recognised as having that function within
the category 1 territory. It does not mean in itself that the warrant is valid, by
which the Act means that it contains the statement and information set out in
section 2 of the 2003 Act.
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Written Evidence submitted by Crown Prosecution Service (EXT 17)
17. The Framework Decision envisages that the central authority can be
made responsible for the administrative transmission and reception of
European arrest warrants as well as for all other official correspondence
relating to it. If issues are raised in the extradition proceedings, where further
information is required from the issuing judicial authority, those requests will be
transmitted via SOCA and the responses will come back the same route. This
mirrors the process under Part 2 of the 2003 Act where requests for additional
information are transmitted though the diplomatic channels via the Judicial
Co-operation Unit of the Home Office.
18. Under the 2003 Act, SOCA is responsible for arranging the extradition of
the person once the decision has become final. This is an operational decision
for SOCA and the police. If the person is not removed within the relevant time,
SOCA will notify the CPS in order that a later date can be fixed for the
removal. SOCA will provide a statement that can be used in court to explain
why the person has not been removed.
19. The transmission of EAWs, the timing of the certification, and operational
decisions on removal are all matters for SOCA. If once a person is extradited,
a request for consent to other offences being dealt with, the 2003 Act states
under section 54 that the consent hearing must begin within 21 days of SOCA
receiving the request for consent. As the Judge must serve notice on the
person that he has received the request for consent, the court will send its
transmission through SOCA.
The Process for Issuing Extradition Requests
20. The basis for all requests for extradition is: a person is either wanted for the
purpose of arrest for the purpose of being prosecuted for the offence; or the
person has already been convicted of the offence and the request is made
for the purpose of being sentenced for the offence or of serving a sentence
of imprisonment that has already been imposed by a court.
21. The Code for Crown Prosecutors explains how charging decisions are
made. It explains that no matter how serious the offence, a prosecution will
only follow if the Full Code Test is met: namely that there is sufficient evidence
for a realistic prospect of conviction; and it is in the public interest. The CPS
applies the Full Code Test when deciding if an extradition request for a person
should be prepared and submitted for a person who has yet to be charged
with the offence. In other cases the person may have already been charged
and has absconded after that date, or has been convicted of the offence.
By applying the Full Code Test, the CPS can mount the prosecution as soon as
the person is extradited.
22. In relation to the preparation of Part 3 warrants, the European Judicial
Network published the template to be completed in all cases and each box
tells the prosecutor what information is required. Section 142 of the 2003 Act
also requires the warrant to confirm whether the conduct constituting the
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Written Evidence submitted by Crown Prosecution Service (EXT 17)
extradition offence specified in the warrant falls within the European
framework list, whether the offence is extra-territorial, and the maximum
penalties that may be imposed on conviction of the offence or what
sentence has been imposed if already convicted. The application is made
before a Judge, who if satisfied that all the required information is contained
in the warrant, will issue the warrant in question. The warrant, and any
accompanying information, is transmitted to the designated competent
authority of the requested state by SOCA.
23. For Part 2 cases, the preparation of the request to be submitted through
the Home Office is dependent on the scheme that applies. For example,
information may be required for various schemes albeit in different formats.
For cases under the European Convention on Extradition, a Statement of
Facts and Law will be provided; for Australia a Statement of Acts and
Omissions; and for Canada a Record of Case. For countries where evidence is
required as a result of the treaty it may contain a prima facie bundle that is
sworn before magistrates.
24. Once the requests are submitted, the CPS has no further role to play save
for responding to any requests for information on behalf of the executing
authority. The presentation of the cases is handled by the executing
authorities on our behalf.
Transmission of EAWs by Interpol, the European Judicial Network (EJN) and the
Schengen Information System
25. The CPS plays no role in the transmission of EAWs. Once a CPS prosecutor
has had the warrant signed by the judicial authority (a magistrate, district
judge or Crown Court judge), the prosecutor sends the signed warrant to
SOCA’s Fugitives’ Unit. They oversee the translation of the warrant (as
necessary) and its transmission to other Member States.
Time Limits for Processing EAW Requests
26. Any time limits set out in the Framework Decision on the EAW or the
Extradition Act 2003 in relation to the processing of EAW requests apply to the
police, SOCA and the courts, but not the CPS.
Information Provided to those Undergoing Extradition Proceedings
27. It is for the police to execute the EAW in Part 1 of the Act. As part of the
arrest procedure, the 2003 Act requires the officer to serve a copy of the
warrant as soon as practicable after the arrest. If that is not complied with,
the requested person can apply to the Judge to be discharged and the
Judge may order that discharge depending on the reasons given for the nonservice. The requested person is also served with a copy of the officers arrest
statement and he is entitled to the custody record under the Police &
Criminal Evidence Act 1984 (PACE). Where a person has been provisionally
arrested, the officer must serve a copy of the arrest warrant as soon as
practicable after arrest.
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Written Evidence submitted by Crown Prosecution Service (EXT 17)
28. In cases falling under Part 2 of the Act, the officer will serve a copy of the
arrest warrant as soon as practicable. At the time of the Extradition Hearing,
the requested person will have been served with the section 70 certificate
issued by the Secretary of States, any relevant Orders in Council, and a copy
of the Extradition Request. He can also obtain the custody records under
PACE.
29. As much information is made available to the requested person in order
that the issue of consent can be addressed at the initial hearing.
Discretion of CPS in Executing Extradition Cases
30. The CPS only becomes engaged in extradition cases after the request has
been executed, i.e. the subject of the request has been arrested pursuant to
an extradition request from another jurisdiction. We play no part in the
execution of the request so do not have any discretion or influence.
Withdrawal of Extradition Requests.
31. The CPS does not have the power to discontinue extradition proceedings.
A warrant can be withdrawn only by the issuing judicial authority and the
procedure for that is set down in sections 41-43 of the 2003 Act in relation to
Part 1 cases; and sections 122-124 in respect of Part 2 cases. An explanation
will normally accompany the withdrawal.
32. There has been a trend where requested persons instruct lawyers or any
remaining family members in the issuing territory to make applications for the
warrant to be withdrawn. Warrants have also been withdrawn when
information has been relayed that the person is physically or mentally unfit,
where mistaken identity has been realised, or where the nature of the
evidence has altered. It should be remembered that some requested persons
are linked with co-accused whose trials continue in the issuing territory while
extradition proceedings are running. An acquittal of a co-accused would in
all probability lead to the withdrawal of the warrant unless the facts or
evidence could be distinguished in any way.
Additional briefing
33. The CPS is happy to provide the members of the Committee with
additional briefing on any aspects of its work if its helps the Committee’s
consideration and its future work.
February 2011
167
Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)
Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)
168
Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)
169
Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)
170
Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)
171
Letter submitted to the Committee Chair by David Bermingham (EXT 19)
Letter submitted to the Committee Chair by David Bermingham
(EXT 19)
I understand that the Committee will be taking oral evidence from Keir
Starmer QC, Head of the Crown Prosecution Service, on 29 March. I would be
most grateful if the Committee would address an issue with respect to the role
of the CPS in extradition which has always troubled me.
My understanding of the current situation is that in matters of extradition, the
CPS acts as agent of a foreign Government in bringing the extradition
proceedings through the UK courts. On the face of it, of course, this
potentially presents an absolute conflict of interest given that the CPS might
also be in the course of determining whether to bring a case against the
individual in the UK.
Such potential conflicts notwithstanding, a question arises as to the extent to
which the CPS, a body paid for entirely by the taxpayers of the United
Kingdom, should fall over itself to do the bidding of a foreign Government, at
the expense of the rights of British citizens.
To illustrate this point, I attach hereto a letter dated 21 July 2006, from Paul
Close of the CPS to the US Department of Justice in relation to the Bail hearing
for the Natwest Three which was due to take place in Houston, Texas, on that
same day. By way of background, the UK Prime Minister and Attorney
General had consistently told the press in the weeks prior to the extradition of
the Natwest Three that inquiries were being made as to whether the men
(including myself) could be allowed to return to the UK on bail pending trial.
Indeed, the UK Home Office had provided a letter indicating that measures
such as periodic reporting to a police station, the removal of passports, or
even electronic tagging were all in principle possible.
In the attached letter, of which we had no notice and which was served on
our attornies in the courtroom as the bail hearing was due to begin, Mr Close
indicated that it would be ‘imprudent in the extreme’ for a US court to allow
us to return to the UK on bail. His argument, that we might try to start
extradition proceedings all over again, was utterly illogical, given that (as he
said in his letter) we would be locked up in the UK if we did so, and would
then certainly be locked up again on arrival back in the US. Nor had we ever
shown the slightest inclination to flee, having been on bail in the UK for over 2
years prior to our extradition, and having reported on time to Croydon police
station to be extradited.
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Letter submitted to the Committee Chair by David Bermingham (EXT 19)
An independent observer might be entitled to think that Mr Close had strayed
well beyond the bounds of impartiality in his remarks. Needless to say, the US
judge took little persuading on the issue, and we were required to stay in
Houston, a factor which would have a heavy bearing on our decision to
enter into a plea bargain some 18 months later.
I wonder whether Mr Starmer may care to comment on whether such
assistance to foreign Governments by his department is routine, and if so,
whether this is deemed appropriate. I know that ours was not an isolated
case, however, as the CPS wrote an all but identical letter just a couple of
months later in the case of Mr Jeremy Crook, who had been extradited to St
Louis. Personally, I find this behaviour by agents of the Crown deeply
troubling.
25 March 2011
Annex: Letter from Paul Close, Special Crime Division, Crown Prosecution
Service, to the US Department of Justice, 21 July 2006
I have considered the bail issues raised by you in this matter. My response is as
a CPS lawyer acting for the US in the extradition proceedings. The CPS is
independent of other government departments. It cannot speak for HMG.
I believe it would be imprudent, in the extreme, if such bail was granted to the
above which enabled them lawfully to return to the UK pending trial.
Any undertakings given by them (or on their behalf) or any bail conditions
imposed would be worthless for enforcement purposes in the UK if there was
any breach.
The UK courts would have no power to intervene in or to enforce any US order
or the defendants’ undertakings. The Crown (in its widest sense) would
similarly have no power to intervene.
If the defendants returned to the UK pending trial but then refused (for
whatever reason) to return voluntarily to the US then the only remedy
available to the US would be to seek extradition again. This would be a de
novo application with the spectre of all the old legal arguments and issues
(together no doubt with new ones) and the consequent very lengthy delay.
The only relevance of any breaches of undertakings or US court bail would be
that the defendants’ chances of bail in the UK, pending extradition, would be
very remote.
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Letter submitted to the Committee Chair by David Bermingham (EXT 19)
There is no relevant UK law as such to assist you. The Extradition Act 2003 is
silent and the Bail Act 1976 (as amended) would not apply as there are no
current English court proceedings. The powers of the English courts ceased
once the defendants were extradited. There are no residual judicial or
executive powers.
Any offer by the defendants to report regularly to the English courts or to the
police would be pointless and meaningless. I can find no example of a case
where a person who has been extradited has been allowed to come back to
the UK pending a foreign trial to which they would return voluntarily.
The general legal principles to which I have referred would apply in all
extradition proceedings and the nature of the request or the country making
it are irrelevant.
I confirm that a defendant can only consent to extradition by appearing
before a UK court following the making of an extradition request (full or
provisional). Return would only follow the making of a court order. Earlier
consent/waiver (particularly if given outside the jurisdiction and not during the
currency of UK court proceedings) would be otiose and relevant only to
possible issues of UK bail. Such a waiver could always be withdrawn and
would not preclude new lengthy UK court proceedings.
174
Written Evidence submitted by JUSTICE (EXT 20)
Written Evidence submitted by JUSTICE (EXT 20)
Thank you for your letter of 1 March asking JUSTICE to provide further
evidence for the Committee relating to extradition, following JUSTICE’s oral
evidence of 1 February 2011.
Your letter raised three questions and we answer each in turn below.
Should judicial authorities be more proactive when considering a request for
surrender from an issuing state with a poor human rights record evidenced by
recent case law of the European Court of Human Rights?
We believe that courts in the UK should have careful regard to country
conditions when considering a request for surrender. In the recent case of
M.S.S. v Belgium and Greece (no 30696/09, judgment of 21 January 2011), the
Grand Chamber of the European Court of Human Rights re-stated that the
responsibility of a state under Article 3 European Convention on Human Rights
(prohibition of torture and inhuman or degrading treatment or punishment)
may be engaged where substantial grounds have been shown for believing
that a person faces a real risk of being subjected to torture or inhuman or
degrading treatment or punishment in the receiving country. That case
concerned the expulsion of an asylum seeker but the same principle applies
to extradition or surrender. Notably, the application of the EU Dublin
Regulation on asylum did not absolve the expelling state in that case
(Belgium) from its obligations under Article 3; the Court cited the case of T.I. v.
the United Kingdom (dec. no. 43844/98, ECHR 2000-III) in which the Court said
that where States cooperated in an area where there might be implications
as to the protection of fundamental rights, it would be incompatible with the
purpose and object of the Convention if they were absolved of all
responsibility vis-à-vis the Convention in the area concerned.
In relation to the situation where the receiving country is a signature to
international treaties guaranteeing respect for fundamental rights, the Court
said (at para 353):
The Belgian Government argued that in any event they had sought
sufficient assurances from the Greek authorities that the applicant faced
no risk of treatment contrary to the Convention in Greece. In that
connection, the Court observes that the existence of domestic laws and
accession to international treaties guaranteeing respect for fundamental
rights in principle are not in themselves sufficient to ensure adequate
protection against the risk of ill-treatment where, as in the present case,
reliable sources have reported practices resorted to or tolerated by the
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Written Evidence submitted by JUSTICE (EXT 20)
authorities which are manifestly contrary to the principles of the
Convention
(see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008...).
The Court also said that the applicant should not ‘bear the entire burden of
proof’ regarding the risk of ill-treatment in the receiving country and found
violations of Article 3 by Belgium due to the fact that conditions in Greece
were publicly known; the Court pointed to the existence of reports by
organisations including the European Committee for the Prevention of Torture
and Human Rights Watch.
We believe, therefore, that UK courts should place more weight on reports
from reputable organisations such as the Committee for the Prevention of
Torture and that they should not require evidence (often impossible to obtain)
that, in a state where conditions frequently breach Article 3, that the person
will be sent to a facility where conditions are similarly poor. The burden should
rest with the state requesting surrender to show that there is no real risk that
the person will be subject to those conditions. Similar principles should apply
to other ECHR rights, for example, fair trial standards.
Would harmonised definitions of the criminal offences to which the European
Arrest Warrant applies help protect the human rights of those subject to
extradition proceedings?
We regard large-scale harmonisation of criminal law across the European
Union as highly unrealistic due to the massive negotiation and codification
exercise which would be required. Further, agreement would be very difficult
to achieve across the member states in some areas. We believe that the
categories of offence exempted from the dual criminality requirement by the
European Arrest Warrant Framework Decision (FD) are very broad and that
they would benefit from more precise categorisation in some areas.
However, there is little prospect of the FD being renegotiated for some years.
In any event, the FD does not exempt the UK from its obligations under the
ECHR and therefore surrender should be refused where, for example, a
person faces trial for a speech offence in the receiving country and their
conviction would be in breach of Article 10 ECHR. In addition, harmonisation
would not assist in protecting procedural rights nor those associated with
conditions of detention. We therefore believe that harmonisation is not a
viable mechanism for the protection of the human rights of those subject to
extradition proceedings.
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Written Evidence submitted by JUSTICE (EXT 20)
Have you any concerns over possible human rights implications of persons
subject to immigration control also becoming subject to extradition
proceedings?
Immigration powers of deportation and removal should not be used in order
to circumvent the procedural guarantees available in extradition
proceedings. While the UK’s human rights obligations in relation to conditions
in receiving states are the same in immigration cases and extradition cases,
there has been a progressive erosion of appeal rights in immigration removal
cases meaning that human rights arguments may not receive the same level
of scrutiny as in an extradition case.
I hope that this supplementary evidence is of assistance; please do not
hesitate to contact me if we can assist further.
22 March 2011
177
Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21)
Letter submitted to the Committee Chair by Stephen Parkinson (EXT
21)
I understand that your Joint Committee on Human Rights will be taking
evidence from Keir Starmer QC tomorrow on the topic of extradition. I should
be grateful if you would treat this email as formal evidence for the benefit
your Committee.
The DPP will not be able to comment on live cases because of the sub judice
rule, but he can comment on the role of the CPS in general terms; indeed he
did so on the Today programme on December 16th 2010 when he stated that
the CPS would be acting as the agent of Sweden in the Assange
proceedings. It was on that issue that I then had a letter published in the
Times on December 18th 2010, and a more considered and lengthier piece
was published in the Times Law pages on 6 January 2011, a copy of which is
below. Despite the importance of the topic, there has been no response
from the CPS. I understand that the DPP takes the view that the CPS acts in
extradition cases as agent for the foreign state, with no independent
responsibility to decide whether the extradition request is meritorious.
My view is that the CPS is not the agent of another country in conducting
extradition proceedings. Its authority derives from statute, not the doctrine of
agency. Its responsibility is to reach an independent view as to whether to
proceed with the case, and if so, as to how to conduct it—in the same way
that it does in domestic proceedings. My reasons are set out in my Times
article. The reason that it is important is illustrated by the Ganic case, to
which I also refer, and in which we acted for Dr Ganic. On the first day of
those proceedings, the CPS conceded that there was a prima facie case
that the proceedings were an abuse of the process of our courts.
Nonetheless they continued with them. Had it not been for the
independence of our courts and the support of many experts called in Dr
Ganic’s defence he would have been extradited. It is not difficult to guess
what his fate would have been.
This matters, ironically, because the CPS has proved its worth over the past 25
years as an independent body: weeding out weak cases, preventing
miscarriages of justice, and ensuring for the most part that the courts only
hear cases where there is a case to answer.
In extradition cases, the CPS view that it has no independent role means that
it will present cases on behalf of foreign states even if, in its judgement, our
courts will, and ought to, decline to order extradition; for instance, because
the individual involved will not receive a fair trial on account of his race or
178
Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21)
religion. It seems to me to be wrong that the CPS has allowed itself to get into
the position that it will present unmeritorious cases before our courts on behalf
of other counties and acting on their instructions. Just as a court can stop an
extradition case, the CPS has the right to concede it. Alternatively, it can give
the requesting state the option of instructing a private firm of solicitors on its
behalf in place of the CPS.
The government is undertaking a review of extradition. Members might like to
ask Mr Starmer whether:
1.
He thinks it is right that the CPS does not make its own independent
assessment of the merits of an extradition request where it present this on
behalf of a foreign state.
2.
Does he accept that there are respectable arguments that it is not
in fact an agent of the requesting state, on the basis that the CPS has
independent statutory responsibility in this area (my views are shared by
many in the Extradition Lawyers Association which considered this issue at
its recent AGM);
28 March 2011
179
Letter submitted to the Committee Chair by Michael Hann (EXT 22)
Letter submitted to the Committee Chair by Michael Hann (EXT 22)
Right to Privacy
There is one area which is important for many people and religions where the
USA prison system is not compatible with the Human Rights.
In the UK and Europe Guards of the same gender are used in shower and
toilet areas. Guards of the same gender are usually only allowed to carry out
strip searches.
In the USA this is not the case. In many prisons female guards monitor male
prisoners in the shower areas. This has been deemed acceptable by the
Supreme Court. .
This is not the case for female inmates who are given a much higher level of
privacy.
CCTV equipment is also used to monitor strip searches and shower areas in
male prisons.
It is offensive that there is a double standard with regards to the treatment of
men and women in USA prisons.
A a male as do many American prisoners I would find it very degrading to
use the toilet or shower in front of a female guard.
Let alone be on CCTV !
I think there is a privacy issue and a religious issue since too many people
exposing oneself to the opposite sex is shameful and degrading.
I appreciate that medical staff can be the opposite gender but in the UK we
have a choice of whether a female doctor or male nurse looks after you.
Privacy, modesty religious to name just a few. Whether or not to have
medical care is your choice.
In the USA the right to privacy is not available to male prisoners in any setting.
I do not believe that the USA jail regulations comply with international
standards or the Human rights convention in this respect.
180
Letter submitted to the Committee Chair by Michael Hann (EXT 22)
I do not see how we can extradite people to the USA when there is no right to
privacy offered to inmates.
The current situation in the USA jail system is degrading and humiliating to
many people.
The same rules apply to male prisoners on remand as well as those
sentenced.
I think that there are many other areas where the USA penal system is lacking
but privacy for male inmates is not regarded as important in the USA.
31 March 2011
181
Additional Written Evidence submitted by Liberty (EXT 24)
Additional Written Evidence submitted by Liberty (EXT 24)
Introduction
1. In December 2010 the Joint Committee on Human Rights (JCHR)
announced an inquiry into the human rights implications of UK extradition
policy. Given our long held concerns about the UK’s unfair extradition
arrangements, Liberty greatly welcomed the JCHR’s inquiry alongside the
Home Office review being undertaken by Sir Scott Baker. 229 Liberty provided a
written submission to the JCHR in January 2011 230 and also gave oral
evidence to the Committee. This briefing is in response to the Committee’s
request 231 for additional information in relation to:
a. whether a judge should be more proactive when considering an
extradition request to a requesting state with a poor human rights record as
evidenced by case law from the European Court of Human Rights (ECtHR); 232
b. whether harmonised definitions of criminal offences to which the European
Arrest Warrant (EAW) applies would assist in protecting human rights; 233 and
c. the human rights of persons subject to immigration control who also
become subject to extradition proceedings, or vice versa. 234
Role of the judiciary and human rights
2. Under the Extradition Act 2003 (EA), before ordering extradition to a Part 1
or Part 2 country a judge must consider whether such an order would be
compatible with an individual’s human rights under the Human Rights Act
See Liberty’s Response to the Home Office review of extradition, available at
http://www.liberty-human-rights.org.uk/pdfs/policy10/liberty-submission-to-home-officeextradition-review-december-2010.pdf.
230 Available at: http://www.liberty-human-rights.org.uk/pdfs/policy11/liberty-submission-tojchrextradition-inquiry-january-2011.pdf.
231 Letter from the Chair of the JCHR, Dr Hywel Francis MP, dated 1 March 2011.
232 The Chair of the JCHR in his letter of 1st March 2011 asked: “Should judicial authorities be
more proactive when considering a request for surrender from an issuing state with a poor
human rights record evidenced by recent caselaw of the European Court of Human Rights?”
233 5 The Chair of the JCHR in his letter of 1st March 2011 asked: “Would harmonised definitions
of the criminal offences to which the European Arrest Warrant applies help protect the
human rights of those subject to extradition proceedings?”
234 The Chair of the JCHR in his letter of 1st March 2011 asked: “The Immigration Law
Practitioners’ Association’s submission to the Committee argued that ‘extradition procedures
fail to provide protection against breaches of human rights that arise when persons subject to
extradition orders are, or become persons subject to, immigration control’. Have you any
concerns over possible human rights implications of persons subject to immigration control
also becoming subject to extradition proceedings?”
229
182
Additional Written Evidence submitted by Liberty (EXT 24)
1998. 235 A review of extradition case law reveals that the human rights
safeguard has stopped extradition in only the most exceptional of
circumstances. 236 Indeed extradition jurisprudence appears to impose a
comparatively higher threshold on human rights assessments than in other
cases. In a recent decision in the UK Supreme Court Lord Phillips noted that
“only the gravest effects of interference with family life will be capable of
rendering extradition disproportionate to the public interest that it serves”. 237 It
is without doubt that extradition has an important criminal justice function and
solving serious criminal cases is well within the public interest exception. Our
concern is that the broader political context of extradition tips the balance in
favour of making an order, even where it is evidence that the individual’s
human rights will be negatively impacted.
3. With regard to Europe the judicial deployment of the bar to extradition on
human rights grounds has remained rare even where there are adverse
findings by the ECtHR evidencing a breach of Convention rights by the
requesting state, such as the right to a fair trial or the right to be free from
inhuman or degrading treatment while in prison. The fact the Framework
Decision is based on an assumption of parity of legal systems and a general
standard of compliance with the ECHR undoubtedly makes judicial exercise
of the human rights bar under the EA difficult. Because of the basis of mutual
trust of the Framework Decision, the “starting point is therefore an assumption
that the requesting state is able to, and will, fulfil its obligations under the
Human Rights Convention”. 238 But it has become increasingly clear through
ECtHR jurisprudence that there is wide disparity in the treatment of criminal
suspects, with the prison conditions and criminal justice processes afforded in
various Member States repeatedly falling foul of the Convention. The principle
of mutual legal assistance, with the assumption of parity of criminal justice
systems which this entails, 239 is becoming increasingly unworkable.
4. The way that British judges have framed the question in relation to the EAW
is also problematic. Generally a claim that a requesting state will potentially
breach an extradited person’s Convention rights has been characterised as a
dispute which must be resolved between that State and the extradited
individual, not by the UK court undertaking a human rights analysis in
consideration of an extradition warrant. As enunciated recently by Mr Justice
235
A judge must consider whether extradition is compliant with the human rights of the
person subject to the order under section 21 in relation to Part 1 countries (pursuant to the
EAW), and section 87 in Part 2.
236 See para’s 51 to 52 of Liberty’s submission to the JCHR, ibid.
237 Norris v United States of America [2010] UKSC 9, at para 82.
238 Per Lord Justice Toulson in Targosinski v Poland [2011] EWHC 312 (Admin), at para 5.
239 For example, in the Preamble to the Mutual Legal Assistance Convention adopted in 2000
the signatory states express “their confidence in the structure and functions of their legal
systems and in the ability of all Member States to guarantee a fair trial”.
183
Additional Written Evidence submitted by Liberty (EXT 24)
Mitting, “complaints about possible breaches of Convention rights are a
matter between the individual and the requesting state” where that state is a
signatory to the Convention, unless there are exceptional circumstances,
such as the “overthrow of the constitutional order of a state” or clear
evidence that the right to reply for relief to the courts of the requesting state
or the ECtHR is illusory, which will justify the refusal or quashing of an
extradition order under the 2003 Act. 240 Liberty respectfully disagrees with this
approach taken by the courts. Given it is the UK Government which is seeking
to extradite a person to another Member State, it must be the UK
Government which is satisfied that the rights of the person extradited to a
Member State—or indeed, any other country under Part 2 of the EA—will not
be breached. To state otherwise is to deftly sidestep our obligations under the
Convention. We believe that section 21 of the EA mandates any risk to an
extradited person’s human rights, whether in the issuing or requesting state,
be resolved in a UK court. This is made clear by section 21 of the EA which
expressly requires a judge “to decide whether the person’s extradition would
be compatible with the Convention rights”. We are also concerned about
any tendency for a judge to assume that an adverse judgment from the
ECtHR will have been rectified by the Member State in question. Some
Member States have appalling records on implementation and the
Committee will be well aware of a recent example of non/delayed
compliance closer to home in respect of the Hirst decision. 241
5. Ultimately we believe that the human rights proportionality assessment must
be based solely on the individual set of facts before the UK court, and where
there is a risk an individual’s human rights will be breached as a consequence
of the extradition then an extradition order ought not be made. However we
also recognise that because of the political and diplomatic nature of
extradition and the fact that all other members of the Council of Europe are
supposed to be bound by the Human Rights Convention, this human rights
assessment can be difficult. This difficulty is further exacerbated by the
structure of the EA which heavily circumscribes the role of an extradition
judge in the first place. As well as minimising judicial discretion and removing
a number of safeguards, such as the requirement to present a prima facie
case before extradition can be granted, the EA imposes a presumption of
fast-track extradition on the courts on the basis of parity of legal systems
across all EU states. This inevitably makes judicial protection under the human
rights safeguard more difficult. Judges should always undertake a robust
human rights assessment, but the practical reality of doing so in an extradition
context must be kept in mind.
Palczynski v District Court in Zamosc (a Polish Judicial Authority) [2011] EWHC 445 (Admin),
at para 10, see also para 7, 8; following Lord Justice Toulson in Targosinski v Poland, ibid.
241 Hirst v UK (No. 2) (application no. 74025/01, 6 October 2005)
240
184
Additional Written Evidence submitted by Liberty (EXT 24)
Harmonised definitions of criminal offences for the EAW
6. While we are unclear exactly what is meant by the phrase ‘harmonised’,
we assume the Committee Chair is referring to the significant problem which
arises from the breadth of extraditable offence categories under the EAW. 242
Liberty would support greater certainty in relation to the offences for which a
person could be extradited. Indeed we would go further, and require the reinstigation of the dual criminality safeguard which would prevent any
extradition where the alleged conduct is not a criminal offence in the UK. 243
7. Achieving perfect parity, or ‘harmonisation’, of definitions of extraditable
offences across all Member States could involve re-negotiation of the
Schedule to the Framework Decision such that each State agrees on those
offences for which they will entertain extradition requests. This would inevitably
be a long process, given the likely number of criminal offences in each
jurisdiction. An alternative approach may be to allow the categories to
remain as they are but the EA could be amended to ensure that the UK, as
an executing state, would reserve the right whether or not to recognise an
extradition warrant on the basis that a warrant will only be issued both where
there is a clear offence for which the person is being charged, and that this
conduct would also constitute an offence under British law. This would require
the requesting state to provide sufficient detail in the description of the
alleged offence so that a direct comparison could be made of all the
elements. This approach would be preferable, and certainly more
practicable, and would ensure any decision about whether parity exists
remains within the realm of domestic courts.
Persons subject to immigration control
8. Liberty shares concerns raised in evidence to the Committee by the
Immigration Law Practitioners’ Association (ILPA) 244 that individuals are being
extradited from the UK while they are subjected to immigration control. ILPA
has provided evidence to the Committee, drawing on the practical
experience of their members, which shows the particular problem which
arises from the interaction of extradition and immigration law. The Association
outlines practical examples of how individuals have been extradited, had
their refugee status revoked or indefinite leave to remain cancelled whilst out
of the country, and then found themselves unable to return to appeal against
the decision. This could also mean the possibility of being separated from
family members who may have remained in the UK. Frequently in ILPA’s
experience the basis for the revocation or cancellation is the alleged
Set out at Article 2.2 of the Framework Decision and section 215 and Schedule 2 of the EA.
See our primary submission to the JCHR, ibid, from para 32.
244 Available at http://www.parliament.uk/documents/joint-committees/humanrights/JCHR_EXT_Written_Evidence_8.pdf.
242
243
185
Additional Written Evidence submitted by Liberty (EXT 24)
conduct in an extradition warrant. In such circumstances Liberty is extremely
concerned not only at the possibility of unfair extradition (due to the widely
recognised problems with the current arrangements) but also that our
obligations under the Refugee Convention may be effectively bypassed
where a person’s status as a recognised refugee or refugee claimant is
reversed while they are out of the country. One can think of very few
examples where an individual’s vulnerability is more prescient.
9. Again we find the legal root of the problem in the text of the EA. Under the
Act an individual who has made an asylum claim cannot be extradited until
their claim has been finally determined, unless the Secretary of State is
satisfied either that (a) under a standing arrangement the requesting state will
take on responsibility for determining the asylum claim and the individual is
not a national or citizen of the requesting state, or (b) the individual is not a
national or citizen of the requesting state and would not be threatened on
the basis of one of the protected Refugee Convention grounds of race,
religion, nationality, political or opinion or membership of a particular social
group, and that the requesting state will abide by their Convention
obligations. This statutory loophole effectively allows the UK government to
defer its determination of a refugee claim under the Refugee Convention,
and it appears that in practice, as evident in the ILPA submission, that it is a
provision of the Act not infrequently used.
10. The situation raises a number of human rights concerns. Asylum seekers
and their families are extremely vulnerable and the UK has an obligation to
offer protection under the Refugee Convention, and to ensure that particular
standards of due process are maintained in making that determination.
Referring a decision on a refugee claim to another country in no way
guarantees that the individual will receive the same treatment as they would
within the UK judicial system. The practice of using this exception in the EA,
particularly given the flaws we know to exist in our extradition arrangements, is
deplorable. We would recommend that this loophole be closed such that
before a person is extradited their claim for asylum is duly processed. We
understand that this may cause delay - however the answer to that concern
is to provide expeditious adjudication of an asylum claim, with all requisite
due process requirements, rather than riding roughshod over the human rights
of a vulnerable individual who risks facing further unjustified trauma.
April 2011
186
Additional Written Evidence submitted by Fair Trials International (EXT 25)
Additional Written Evidence submitted by Fair Trials International
(EXT 25)
Introduction
1. Fair Trials International (“FTI”) provided written evidence to the Committee
in a submission dated 21 January 2011 and gave oral evidence to the
Committee on 1 February 2011. We now provide further written information,
pursuant to the Chair‟s request of 1 March, on the question: “Should judicial authorities be more proactive when considering a request
for surrender from an issuing state with a poor human rights record
evidenced by recent case law of the European Court of Human Rights?”
2. We do not offer further written evidence on the other two questions in the
Chair‟s letter of 1 March (dealing with the potential harmonisation of criminal
offence definitions and persons subject to immigration control). These are not
areas on which our own casework has yet caused us to focus.
3. When dealing with the third question we will, as in our original submission,
focus largely on what we consider to be the key issue in connection with the
impact of extradition on fundamental rights: that is, insufficient rights
protection in the European Arrest Warrant (EAW) system, in national
implementing legislation (the Extradition Act 2003), in its interpretation by the
courts, and in the European Framework Decision on the EAW (Framework
Decision).
Role of judicial authorities in executing states: duty to safeguard rights?
4. The question posed as to whether courts should be more proactive when
deciding whether to extradite individuals to countries with poor rights records
implies a proposition borne out by recent authorities and cases we have dealt
with at Fair Trials International: courts are often not proactive enough when
alerted to a potential risk of rights infringement.
5. The Framework Decision itself contains no rights-based refusal ground,
although the preamble in the Framework Decision states that it “respects
fundamental rights” (paragraph 12) and prohibits extradition to a State
“where there is a serious risk that [the person] would be subjected
to…inhuman or degrading treatment or punishment” (paragraph 13).
6. The United Kingdom‟s implementing legislation, in common with that of
many other Member States, includes an express human rights bar to
surrender, where it would be incompatible with a requested person‟s rights
187
Additional Written Evidence submitted by Fair Trials International (EXT 25)
under the European Convention on Human Rights (ECHR) as defined in the
Human Rights Act 1998. 245
7. Yet judges here and in many other jurisdictions have shown a marked
unwillingness to refuse extradition on fundamental rights grounds, even where
detailed and recent evidence has been adduced as to the risk of
infringement if extradition takes place. Such challenges typically fail on one
of the following grounds:
(i) the evidential burden of showing that a “real risk” of rights infringement has
not been met with enough cogency or speficity to satisfy the judge that the
requested individual risks a rights infringement. For example, although prison
conditions are accepted as generally extremely poor in the requesting State,
it is not known which prison the person will be held in, so it is not clear he or
she will be held in such conditions;
(ii) failure to meet the higher test imposed for requested persons who fear a
breach of fair trial rights under Article 6. They must satisfy the court that they
have suffered, or risk suffering, a “flagrant denial” of a fair trial (per the
European Court of Human Rights (ECtHR) in Soering 246 ); or
(iii) courts executing extradition requests refuse to enquire into potential rights
infringements in an issuing state that is an ECHR contracting party, particularly
an EU Member State, unless the constitutional order of that State has been
overthrown. This is because the remedy lies in the issuing State in respect of
any infringement of rights after extradition. 247
8. The risk of rights infringements in extradition cases is most frequently raised in
two areas where several Member States have poor records of ECHR
compliance. These are Article 3 (usually focusing on the detention conditions
in which people anticipate they will be held, either on remand or postsentence); and Article 6 (dealing either with allegedly unfair investigation or
trial procedures that have occurred in the case before the extradition
request, or with the requesting State‟s ability to ensure a fair trial after
extradition). We will deal with each in turn, focusing on the three barriers to
successful human rights-based challenges outlined above.
Prison conditions and Article 3 ECHR challenges
9. A person who faces extradition to a country with a poor rights record will
very rarely be in a position to adduce evidence prior to extradition about the
Section 21 Extradition Act 2003
Soering v United Kingdom [11 EHRR 439]
247 This test was applied, for example, Arvdas Klimas v. Prosecutors General Office of Lithuania
[2010] EWHC 2076, July 2010
245
246
188
Additional Written Evidence submitted by Fair Trials International (EXT 25)
precise conditions in which the country will detain him or her on remand or
after any sentence is passed. In our evidence to the Committee, we referred
to the decision in the case of Klimas. In this case, the requested person
argued that his extradition to Lithuania would put the UK in breach of its
obligations under Article 3 because of prison conditions in Lithuania. He relied
on a US Department of State report on Lithuania dated 11 March 2010, which
referred to:
•
physical mistreatment by staff consisting of punches, baton blows and
blows with books, inflicted by drunken prison officers;
•
overcrowding of cells to "an outrageous degree," with six prisoners in a cell
measuring 8 square metres;
•
filthy cells in a poor state of repair, with little or no access to natural light,
and poor ventilation.
10. In 2008, the ECtHR had itself held Lithuania in breach of Article 3 ECHR in
respect of two prisons. In 2009, the Lithuanian parliamentary ombudsman
had received 267 prisoner complaints, dealing with:
•
poor prison conditions;
•
mistreatment by prison department personnel;
•
restrictions on prisoners's rights, such as by censoring their correspondence
or failing to allow family visitors;
•
inadequate medical services; and
•
poor working conditions.
11. All this information was placed before the court. Nevertheless, it held that
only in “wholly extraordinary circumstances” such as “a military coup or
violent revolution” would a court in an executing State need to look at prison
conditions as a ground to refuse extradition.
Andrew Symeou
12. Our client, Andrew Symeou, 248 tried and failed to resist extradition to
Greece on Article 3 grounds. After extradition, Andrew spent a harrowing 11
months on remand in custody in Greece: his trial commenced recently but
has been adjourned twice due to unavailability of qualified interpreters and
court strikes. He has described to his parents the conditions he was held in: a
university student with no previous criminal record who still lived with his
parents, he spent his 21st birthday in a notoriously dangerous prison,
248
4 Please see case summary in our 21 January submission, page 13
189
Additional Written Evidence submitted by Fair Trials International (EXT 25)
Korydallos. His father Frank described some of the conditions in his oral
evidence to the Committee on 1 February. The conditions included:
•
filthy and overcrowded cells
•
sharing cells with up to 5 others including prisoners convicted of rape and
murder
•
violence among prisoners: one was beaten to death over a drug debt
•
violent rioting
•
cockroaches in cell, fleas in bedding, prison infested with rats and mice
•
shower room floor covered in excrement.
13. This description conforms with information contained in the numerous
expert reports placed before the court in Andrew‟s Article 3 challenge to
extradition. The Committee for the Prevention of Torture (CPT) had reported
the previous year that “persons deprived of their liberty in Greece run a real
risk of being ill-treated”. Amnesty International and other human rights NGOs
had similarly criticized Greece‟s prisons in the harshest terms.
14. This evidence was held insufficient as a bar to extradition, because
Andrew could not prove that any of this would happen to him: and because
in any case mistreatment was sometimes part of the European detention
culture:
“[t]here is no sound evidence that the Appellant is at a real risk of being
subjected to treatment which would breach article 3 ECHR, even if there is
evidence that some police do sometimes inflict such treatment on those in
detention. Regrettably, that is a sometime feature of police behaviour in all
EU countries.” 249
15. In hindsight, it is difficult to know what more Andrew Symeou could have
done to bring the risk he faced to the court‟s attention and invoke his Article 3
rights before his extradition. He had never been to Greece before he went
there as a student on his first holiday without his parents. He had not even
been arrested or questioned by police in Zante and had no first-hand
experience of Greek police procedures, remand facilities or prison conditions,
before his extradition. It is the same for the majority of people extradited
under the EAW system.
Symeou v Public Prosecutor s Office at Court of Appeals, Patras, Greece [2009] EWHC 897
(Admin) at para 65
249
190
Additional Written Evidence submitted by Fair Trials International (EXT 25)
16. Information about the conditions Andrew was held in on remand was set
out in detail in affidavit evidence from a solicitor who had visited him, as well
as from Fair Trials International‟s caseworker, in support of another recent
challenge on Article 3 grounds. Again, it was held that the test was not met
and extradition was ordered. 250
Fair trial protections: risk of Article 6 infringements
17. Andrew Symeou also failed to resist extradition on Article 6 grounds,
unable to meet the almost impossible test necessary to do so. It was held by
the High Court that, as an ECHR signatory, Greece could be assumed to
follow fair trial procedures, including to apply appropriate scrutiny at trial to
evidence that was obtained from witnesses who were brutally pressurized
(with physical violence, and food and drink deprivation) into signing
statements they later retracted. As Andrew‟s trial is currently in process, it is
not possible to know whether this was a safe assumption.
18. In another recent case, Janovic, 251 it was held that membership of the EU
made it virtually impossible to resist extradition to a Member State on Article 6
grounds. (A separate challenge under Article 3 grounds also failed, despite
the Court accepting that compelling evidence was given by a professor the
court recognized as a leader in his field and that this evidence was both
current and sufficiently specific. An ECtHR ruling was cited to the court which
had found that conditions in the same remand centre that the appellant
would be sent to breached Article 3. 252
19. In an EU in which many Member States have been found by recent
research studies and ECtHR rulings not to comply with basic fair trial standards
under Article 6, it is difficult to justify either the assumption of general
compliance referred to in the Symeou and Janovic cases, or the higher test of
“flagrant” or “total” denial of fair trial still followed in Article 6 infringement
decisions. While courts must, of course, respect the fact that different
countries protect the right to a fair trial in different ways, this does not justify
lowering the standard for extradition cases, as the “flagrant denial” test
effectively does.
20. It is also unclear to us why a more stringent test needs to be adopted for
Article 6 than for Article 3: both these rights are absolute (they do not, unlike
Article 8, require to be balanced against the interests of national security and
crime prevention) and non-derogable: all ECHR contracting states are
required to ensure they provide practical, effective protection for these rights.
Herdman and ors v City of Westminster Magistrates Court [2010] EWHC 1533 (Admin)
Janovic v Prosecutor General’s Office, Lithuania [2011] EWHC 710 (Admin) para 25ff
252 Savenkovas v Lithuania [2008] ECHR 871/02
250
251
191
Additional Written Evidence submitted by Fair Trials International (EXT 25)
Article 1 of the ECHR states: “The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in…this
Convention”. The mere theoretical availability of a legal remedy in the issuing
state should not absolve the executing state of the duty to conduct a proper
legal review of the risk of infringement raised by the requested extradition and
to provide the protection necessary to safeguard those rights, including
where necessary by refusing to extradite.
Edmond Arapi
21. The decision to extradite Edmond Arapi 253 from the UK to Italy last year is
a good example of the danger of placing complete confidence in the fair
trial safeguards of requesting countries, merely on the basis that they are
legally bound to comply with Article 6 ECHR.
22. Edmond, who narrowly avoided extradition following an intense media
campaign, had been tried and convicted in his absence and without his
knowledge, of killing a man in Genoa, Italy in October 2004. He had been
given a sentence of 19 years, later reduced to 16 years on appeal. Edmond
had not even left the UK between the years of 2000 to 2006 and was
astonished that he could not, by adducing evidence of this to the English
court, avoid the devastating consequences of extradition to Italy. (He is the
sole breadwinner for his wife and three children.) He had oral and
documentary evidence to adduce to prove that, on the day of the murder,
he was at work in Staffordshire.
23. There was a raft of contradictory expert evidence about whether Edmond
would be entitled to a full retrial after extradition to Italy, and whether his alibi
evidence (and the witnesses he would need to testify about his activities and
whereabouts on the day of the murder) would be admitted at any trial.
Appeals had been exhausted in Italy (again, without Edmond‟s knowledge—
they were attended on his behalf by a public defence lawyer and the
conviction had been upheld).
24. It seemed far from clear that Italian law guaranteed a re-trial for
defendants tried in absentia, where the conviction had been appealed. It
was clear was that Edmond risked being held for years on remand awaiting
trial, as Italy has one of the worst records in Europe for delays in the justice
system. Nevertheless, having heard conflicting evidence on Italian
procedural law, the English court ordered his extradition on 9 April 2010. It
was only on the eve of his appeal at the High Court, that the Italian authorities
decided to withdraw the EAW, admitting that they had sought Edmond in
error.
253
A full case study was provided in our 21 January submission, page 14.
192
Additional Written Evidence submitted by Fair Trials International (EXT 25)
25. The question here is whether, having done all he could in the short time
available and with extremely limited financial resources, Edmond Arapi could
reasonably have expected the English court to halt the extradition, at least
until it was completely satisfied that his right to a fair trial would be upheld. In
the circumstances, this would need to have followed rigorous judicial enquiry
about the procedural nature of the retrial, leaving the court in no doubt that
a full retrial would be provided without delay. No such additional information
appears to have been sought by the court, amid competing and confusing
expert evidence on the point.
The problem of assurances from issuing states
26. Even when further information or assurance is sought by the court before
extradition is ordered, we know from our own experience that requesting
states often provide information that merely re-states the law (rather than
what occurs in practice, or will occur in a particular case). In addition,
requesting states do not always comply with their assurances. This is a serious
problem, which risks undermining the necessary trust between extradition
partners: all the more so where such heavy reliance is being placed on other
states‟ compliance with fundamental rights standards. The issue is amply demonstrated by
two cases in which FTI has recently been involved.
Da An Chen
27. Da An Chen, a UK citizen, was arrested in the UK on an extradition
warrant from Romania shortly before that country had implemented the EAW
Framework Decision. In 1995, Romania had tried Da An Chen for murder and
sentenced him to 20 years’ imprisonment. The trial took place in his absence
and without his knowledge.
28. Unaware his trial was even taking place, Da An Chen was unable to
adduce evidence in his defence. The prosecution did not adduce any
forensic evidence at the trial. Romania’s authorities have accepted in the
course of the extradition proceedings that he did not deliberately absent
himself from the trial. 29. Da An Chen’s lawyer challenged his extradition at the High Court, arguing
that extradition would violate his fair trial rights in breach of Article 6. This was
argued on the basis that there was a serious risk that, once surrendered, he
would not be given a retrial.
193
Additional Written Evidence submitted by Fair Trials International (EXT 25)
30. The High Court held 254 that, as Romania was bound by the ECHR, the
provisions of its domestic law giving its courts a merely discretionary power to
grant a retrial, should be interpreted so as to grant a right to a retrial. This was
despite his lawyer confirming, based on expert evidence, that all Romanian
law in fact guaranteed was the right to apply for a retrial and most people
tried in absentia in Romania did not in fact get a retrial. The High Court was
persuaded by assurances given by Romania regarding Da An Chen’s right to
a retrial and he was extradited in 2006. The Court held that it was “neither
necessary nor right to examine what a requesting state does in practice” if
the law clearly provided an entitlement to a retrial.
31. Since his extradition, Da An Chen has been kept in prison in Romania
awaiting retrial. In June 2010 he was denied a retrial by a Romanian court. He
appealed to the Romanian Supreme Court and, earlier today, learned of
their decision. He will not be given a retrial. He is now considering an
infringement action at the ECtHR.
Vullnet Mucelli
32. FTI has recently been granted permission to intervene in a case involving
the right to a retrial. We will rely on what has happened in the Da An Chen
case and others like it, to highlight the importance of courts in executing
states checking not only that the law in fact guarantees a right of retrial, but
also what happens in practice. 255 A copy of our intervention application is
annexed, for information.
Recent cases clarifying the duty of judges in extradition cases
MSS v Belgium and Greece
33. The ECtHR provided much-needed guidance on this question in the case
of MSS v Belgium and Greece. 256 This decision sheds light on the question of
how “proactive” a court dealing with an extradition request should be, when
there is evidence of a potential rights infringement.
34. The case involved the return by Belgium, under the Dublin II Convention, of
an asylum seeker from Afghanistan, to Greece, where he had initially entered
and been registered. 257 His return had been ordered on the basis that:
Da An Chen v Romania (2006) EWHC Admin 1752
Chahal v UK, [1996] ECHR 54 demonstrates that where assurances are offered by the
requesting state, the extradition court is under a duty to scrutinise them carefully and satisfy
itself that they will be met.
256 MSS v Belgium and Greece, no. 30696/09, decided by Grand Chamber, January 2011
257 There is a long line of authority confirming the application of the same legal principles to
the return of asylum seekers or others subject to immigration removal proceedings, in cases of
extradition, and vice versa. Mitting J recognised this in his decision in R (on the application of
Rot) v District Court of Lublin, Poland [2010] EWHC 1820 (Admin)
254
255
194
Additional Written Evidence submitted by Fair Trials International (EXT 25)
“Belgium was not responsible for examining the asylum application; Greece
was responsible and there was no reason to suspect that the Greek
authorities would fail to honour their obligations to him as an asylum-seeker.
That being so, the applicant had the guarantee that he would be able, as
soon as he arrived in Greece, to submit an application for asylum, which
would be examined in conformity with the relevant rules and regulations.”
35. The applicant’s lawyer applied to have the order to leave the country set
aside under Article 3 ECHR, raising the risk of arbitrary detention in Greece in
appalling conditions, including a risk of ill-treatment. A number of recent
experts’ reports were brought to the Belgian Court‟s attention about
conditions in Greece.
36. The applicant also pointed to the lack of effective access to judicial
proceedings in Greece for asylum-seekers, and his fear of being sent back to
Afghanistan without any examination of his reasons for having fled - he had
escaped a murder attempt by the Taliban in reprisal for his having worked as
an interpreter for the international air force troops stationed in Kabul. The
Belgian Government argued that it had sought assurances from the Greek
authorities that the applicant faced no risk of ill treatment.
37. The Court held that “the existence of domestic laws and accession to
international treaties guaranteeing respect for fundamental rights in principle
are not in themselves sufficient to ensure adequate protection against the risk
of ill-treatment where, as in the present case, reliable sources have reported
practices resorted to or tolerated by the authorities which are manifestly
contrary to the principles of the Convention”. The “assurance” provided by
the Greek authorities did not contain any guarantee specific to this individual.
It referred to the applicable legislation but gave no information about the
situation in practice.
38. The situation in practice was very different to the assurances provided by
Greece. Following his expulsion, the applicant was detained in conditions
which closely resembled those described by sources including Amnesty
International and other monitoring bodies in recent reports, all of which the
ECtHR held were “freely ascertainable” by Belgium when considering whether
to expel him. They included:
•
overcrowding, dirt, lack of space, lack of ventilation
•
little or no possibility of taking a walk
•
insufficient and dirty mattresses
•
no free access to toilets
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Additional Written Evidence submitted by Fair Trials International (EXT 25)
•
inadequate sanitary facilities
•
limited access to care
•
racist insults by staff
•
physical violence by guards.
39. Evidence of the conditions in which the applicant was in fact held in
Greece after his expulsion satisfied the ECtHR that the expulsion to Greece
“caused him to suffer directly from the very risks of which he had
complained” in the Belgian proceedings.
40. The ECtHR held that Belgium had acted in breach of Article 3, by limiting
their examination to verifying whether the applicant had provided “concrete
proof of the irreparable nature of the damage that might result from the
alleged potential violation of Article 3, thereby increasing the burden of proof
to such an extent as to hinder the examination on the merits of the alleged
risk of a violation”. Belgium had expelled the individual without having
examined the complaints under Article 3 “as rigorously as possible”. This was
unacceptable: “any complaint that expulsion to another country will expose
an individual to treatment prohibited by Article 3 of the Convention requires
close and rigorous scrutiny”.
Rettinger
41. The Supreme Court of Ireland 258 has also provided helpful recent
guidance on the role of the court in deciding extradition cases where rights
infringements are raised. Here an individual from Poland who had already
experienced prison conditions in that country provided affidavit evidence to
the High Court to support an Article 3 challenge. The evidence referred to:
•
extreme overcrowding
•
lack of sanitation and privacy
•
locking prisoners up for 23 hours a day
•
one shower per week with up to 24 others
•
physical punishment for anyone complaining about conditions
•
solitary confinement used as punishment.
258
MJELR v Rettinger [2010] IESC45 para 6
196
Additional Written Evidence submitted by Fair Trials International (EXT 25)
42. The Irish legislation implementing the EAW Framework Decision is essentially
the same as the UK‟s (see paragraph 6 above). In deciding whether
extradition would infringe Rettinger‟s Article 3 rights, the High Court had
decided it would not, but it certified two points for the Supreme Court to
determine on this. These concerned where the onus of proof lies when Article
3 evidence has been adduced (does it shift to the issuing state or remain on
the requested person?) and how far the requested person must go to show
the risk of breach (must he “prove there is a probability” or merely show a risk
“on a balance of probabilities”?).
43. In considering these questions, the Supreme Court remitted the case back
to the High Court (which has yet to decide the case). In its ruling, it made the
following observations about the role of the court in the executing State,
drawing heavily on the ECtHR decision in Saadi v Italy. 259
44. It is not necessary for a requested person to prove he will probably suffer
inhuman or degrading treatment. It is enough to establish there is a “real risk”
as distinct from a mere possibility. Once the requested person has discharged
the primary burden of adducing credible and substantial evidence of this risk,
it is for the requesting State to “dispel any doubts”. This is a matter the Court
must actively oversee to find out the “foreseeable consequences [of
extradition] bearing in mind the general situation there and his personal
circumstances”. The court’s examination must be “rigorous”. It must consider
all the material before it and may attach importance to reports of
independent human rights organisations. If necessary the court should obtain
material of its own motion.
45. The Supreme Court also relied on the ECtHR ruling in Orchowski v Poland 260
in observing that “special diligence is owned by the authorities to persons in a
vulnerable position such as those deprived of liberty”. Poland had failed to
adduce any evidence before the High Court that conditions had improved
following the damning Article 3 findings in Orchowski.
Targosinski and Agius cast doubt on Klimas approach
46. In Targosinski, 261 Toulson LJ held that to refuse to consider any Art 3 based
refusal unless the constitutional order had been overthrown (per Mitting J in
Klimas) “put the matter too high. It is possible to envisage other circumstances
in which a defendant might be able to displace the presumption.” However,
again, extradition was not refused. The court held that “if the Strasbourg
Saadi v. Italy, Appl. No. 37201/06, European Court of Human Rights, 28 February 2008
European Court of Human Rights, application no 17885/04, decided October 2009
261 Targosinski v Poland [2011] EWHC 312 (Admin)
259
260
197
Additional Written Evidence submitted by Fair Trials International (EXT 25)
Court were to find that conditions in a particular state systemically
contravened prisoners' rights, I can readily envisage a defendant who faced
an application for an Extradition Order relying on such a judgment in order to
displace the presumption [of ECHR compliance].” However: “There is no
cogent or satisfactory evidence in this case to demonstrate that the
conditions criticised by the Strasbourg Court during the period up to May 2008
still obtain in Poland or that this appellant's extradition would involve a
contravention of his rights.”
47. The Divisional Court has recently ruled 262 that a judge must examine
Article 3 issues in all extradition cases where they are effectively raised,
including EAW requests. Section 21 of the Act is framed in mandatory terms in
cases where it applies. The correct approach to a judge's role when
considering the application of s.21 is that provided in Targosinski v Poland
[2011] EWHC 312 (Admin). The starting point—an assumption that an EU
Member State will fulfil its obligations under the ECHR—is not easily displaced
but can be rebutted by clear and cogent evidence.
Conclusion
48. Between 2007 and 2010, the ECtHR found 181 Article 3 violations and 1,696
Article 6 violations by EU Member States. It is clearly not appropriate to place
blind faith in a country’s compliance with its ECHR obligations, merely
because it is an EU Member State. Yet it remains almost impossible to
challenge extradition on Article 3 or 6 grounds, even where the requesting
country has a poor record of compliance.
49. It is wrong in principle to restrict the remedy of person facing extradition to
invoking rights in the issuing State, after extradition. Usually, this is too late as
the damage is done: an unfair trial, an unsafe conviction, a criminal record,
months or years in appalling detention conditions. This makes later
infringement findings of no value to the individual and his or her family. In
some States, even making complaints about conditions in prison carries
serious risks for detainees: violence from prison officers and solitary
confinement, as reports have verified.
50. Article 1 of the ECHR requires contracting States to “secure to everyone
within their jurisdiction the rights and freedoms” contained within the ECHR. It
is artificial to construe this to rule out any need for the courts of executing
States to concern themselves with rights infringements that might occur in
another contracting State. As the cases of our clients show, when courts
alerted to poor rights records fail to seek detailed and concrete assurances
Agius v Malta 15 March 2011, Divisional Court (Sullivan LJ, Maddison J) Transcript not yet
available
262
198
Additional Written Evidence submitted by Fair Trials International (EXT 25)
and put them to rigorous examination, this can be tantamount to sending an
individual to suffer serious and often irreparable rights infringements.
51. Urgent steps are required to clarify the position on this key question, if we
are to avoid a loss of confidence in Europe’s new fast-track extradition
system. The system has seen some notable successes in combating major
crime and brings with it clear benefits, including efficiency, speed and
simplicity. However, insufficient weight is being given to the fundamental
rights reality of today’s EU. 52. Stronger safeguards must be built into the legislation, to ensure that judges
dealing with extradition requests across the EU have a clear and consistent
legal basis on which to deal with rights issues and ensure extradition does not
cause infringements of human rights. We have made concrete proposals for
these legislative reforms, both to clarify the way English courts should interpret
the human rights bar in the domestic legislation, and to incorporate a human
rights refusal ground in the EAW Framework Decision. 263
8 April 2011
For the detailed amendments we have proposed on rights protections please see pages
11 and 20 of our submission to the Scott Baker Review dated 21 December 2010 annexed to
our 21 January submission to the Committee
263
199
Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP,
Lord Chancellor and Secretary of State for Justice (EXT 026)
Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke
QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026)
Thank you for your letter of 23 March. I understand that the Joint Committee
on Human Rights has taken evidence on the human rights implications of UK
extradition policy from Baroness Neville-Jones. You have written to provide
the Government with an opportunity to respond to issues which fall within the
responsibility of my department including procedural rights, legal aid and
universal jurisdiction. I will respond to each of the questions raised in the letter.
The Roadmap on Procedural Rights was adopted by the Council in 2009 and
incorporated into the Stockholm Programme. What progress has been made
with respect to implementing the procedural rights set out in the Roadmap?
The Roadmap is contained within a Council Resolution, which sets out the
direction of travel in the area of procedural safeguards for defendants. The
idea is that action in this area at EU-level should be taken in a focused,
evidence based and targeted way that builds on the foundation of the
European Convention on Human Rights. The Roadmap sets out areas which
should be considered for action, whether legislative or otherwise. These are:
— interpretation and translation
— information on rights and information about the charges
— legal advice and legal aid
— communication with relatives, employers and consular authorities
— special safeguards for suspected or accused person who are vulnerable
— a green paper on pre-trial detention
The measures are seen as a support to EU instruments of mutual recognition
such as the European Arrest Warrant, measures on exchange of criminal
records, transfer of prisoners, people on bail and people on probation and
mutual recognition of fines.
The first measure on the Roadmap, the Directive on Interpretation and
Translation in Criminal Proceedings, was agreed in October 2010. Member
States will need to have put in place measures to implement by October
2013. This measure provides that where a person subject to criminal
proceedings does not understand the language of those proceedings, that
person should be provided with interpretation of a quality necessary to
safeguard the fairness of proceedings. It also provides for the translation of
essential documents.
200
Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP,
Lord Chancellor and Secretary of State for Justice (EXT 026)
The second measure on the Roadmap, the draft Directive on the Right to
Information in Criminal Proceedings is now being negotiated with the
European Parliament. The measure covers information on rights, the provision
of a letter of rights, information on the charge and the right to access
evidence.
The European Commission is expected to table a draft Directive on access to
legal advice in Summer 2011. We also expect a Green Paper to be published
in spring or summer this year on detention issues.
What is the Government’s view of the programme and the proposals for
procedural protection that it sets out?
The UK has the option as to whether to participate in these measures by virtue
of its Protocol to the Treaty of Lisbon. In accordance with the Coalition
Agreement, the Government will examine each proposal on a case by case
basis, with a view to maximising our country’s security, protecting Britain’s civil
liberties and preserving the integrity of our criminal justice system.
Since the Roadmap was published, the UK has agreed to participate in the
first two Directives. The Government is of the view that the two Directives are
necessary and helpful measures in order to improve procedural rights across
the EU and support instruments of mutual recognition. Future measures will be
examined in accordance with the Coalition Agreement criteria.
Will the Government be encouraging other Member States and the
Commission to implement the outstanding measures set out in the Roadmap?
As set out above, only one of the Roadmap measures, the Directive on
Interpretation and Translation in Criminal Proceedings has been agreed. The
implementation deadline for that Directive is October 2013. No Roadmap
measure has yet been transposed into domestic legislation. It is the task of the
European Commission to oversee implementation. Once a Directive has
entered into force, the Commission is able to bring infraction proceedings
against any Member State that has not implemented it. Significant fines can
be levied for failure to implement.
What level of legal aid is provided to those subject to extradition? Does the
Government believe this provision is adequate in order to protect the human
rights of those subject to extradition requests?
Under the criminal legal aid scheme operating in England and Wales (known
as the ‘Criminal Defence Service’), an individual subject to extradition
proceedings can apply for legal advice and representation. The application
201
Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP,
Lord Chancellor and Secretary of State for Justice (EXT 026)
is subject to a financial means assessment and a merits test (the ‘Interests of
Justice’ test). Given the adverse impact that extradition proceedings can
have on the liberty and livelihood of the individual concerned, it is likely that
in most cases the ‘Interests of Justice’ test will be met. The Government is
confident that the level of service provision afforded under the Criminal
Defence Service meets its legal obligations under the European Convention
of Human Rights.
Individuals facing extradition proceedings in Scotland and Northern Ireland
are covered by the legal aid schemes in those two jurisdictions.
Witnesses have suggested that defendants in extradition cases do not have
sufficient time with a duty solicitor before their case. It has been suggested
that a minimum amount of time should be provided to defendants before their
case. Can you comment on this suggestion?
The Home Secretary has appointed an Independent Panel to review the UK’s
extradition arrangements. The Panel has met MoJ officials to explore the
interaction between the provision of legal aid services and the overall
processes for handling extradition cases. It is likely that MoJ will undertake
further analysis of the legal aid arrangements to help inform the Review
Panel’s recommendations.
What provision is there for a defendant to claim legal aid for a legal
representative in the requesting country?
The arrangements for the provision of criminal legal aid in England and Wales
extend only to proceedings taking place within this jurisdiction. If a defendant
wishes to apply for legal aid to cover advice and representation in respect of
proceedings in the requesting country, the defendant will need to apply in
accordance with the legal aid arrangements operating in that country.
What steps are the Government taking to ensure that suspects of crime which
are covered by universal jurisdiction stand trial in the United Kingdom in the
first instance?
I cannot discuss the details of individual cases, but our over-riding
consideration is that there should be impunity for the most serious
international crimes.
This does not necessarily mean that the UK should prosecute in the first
instance. In many cases, there may be compelling reasons why extradition is
preferable to ensure that the person concerned stands trial in the country
where an alleged offence took place. It may be, for example, that a country
202
Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP,
Lord Chancellor and Secretary of State for Justice (EXT 026)
who has requested the extradition of a person also happens to be where
significant evidence and witnesses are located. Extraditing the person
concerned could also mean that the victims and relatives of victims are able
to see justice being done first hand.
It would be counter-productive for the UK to seek to be the policeman of the
world. Rather, we would want to encourage and support other countries to
deal effectively with cases that have happened within their jurisdiction.
However in order to avoid any impunity gap, the International Criminal Court
Act 2001 ensures that in England and Wales there is (subject to the limitations
in section 65A of the 2001 Act) jurisdiction to prosecute here UK nationals and
residents for genocide, war crimes and crimes against humanity that have
occurred anywhere in the world since 1991. The Crown Prosecution Service
will make decisions to prosecute on a case-by-case basis, taking into account
the two stage test that is used for all prosecution decisions: is there sufficient
evidence to give a reasonable prospect of a successful prosecution; and
would a prosecution be in the public interest?
I hope that the answers provided are helpful to your Committee.
5 April 2011
203
Written Evidence submitted by John Hardy QC (EXT 28)
Written Evidence submitted by John Hardy QC (EXT 28)
I: INTRODUCTION
Relevant curriculum vitae
1. I was called to the Bar in 1988, and have been in practice since. I was
appointed a Recorder of the Crown Court in 2002, and took Silk in 2008.
2. My practice is rooted in crime. However, for the last fifteen years I have
specialised in extradition, which has become my predominant field of
practice.
3. In terms of volume, I appear most frequently for requesting governments
and issuing judicial authorities. Thus for example, I have been instructed in
such cases as Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2
AC 1, and Dabas v High Court of Justice, Madrid, Spain [2007] 2 AC 31.
4. However, I also appear for individual defendants, and have been
instructed in such cases as R (Guisto) v Governor of HM Prison Brixton [2004] 1
AC 2001 and more recently the case of Edmund Arapi, whose extradition was
requested on the basis that he had been convicted in absence of murder in
Genoa. Subsequently the issuing judicial authority accepted that they were
pursuing the wrong man.
5. I remain a great believer in the idea that, for a barrister to have a balanced
view, he or she should both prosecute and defend.
6. I have acted as an expert witness in extradition proceedings in Canada;
and have organised training courses for UK prosecuting authorities, and have
given presentations to prosecuting and judicial authorities in Paris and Madrid
on the subject of the Extradition Act 2003 (“the Act”.)
The subject-matter and purpose of these submissions
7. I am honoured to be invited to present these submissions to the Joint
Committee. My objective is to present (in short form) a practitioner’s overview
about the workings of certain aspects of the Act, and to suggest, where
possible, areas ripe for legislative improvement. In making those suggestions, I
bear in mind that the Act has already been made subject to a raft of
substantive amendments, by operation of various provisions of both the Police
and Justice Act 2006 and the Policing and Crime Act 2009.
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Written Evidence submitted by John Hardy QC (EXT 28)
8. The specific subject-matter I am invited to address consists of (i) the
proportionality of the European arrest warrant (“EAW”); (ii) time-limits; (iii) the
effectiveness and importance of legal representation for the requested
person, both in the United Kingdom and requesting countries; (iv) the
threshold which individuals have to cross in order to invoke the human rights
(“Convention rights”) protections in the Act, and possible safeguards which
would increase those protections. I confine myself to the EAW scheme under
Part 1 of the Act, though certain of my observations apply to a lesser degree
to Part 2 cases (i.e. that part of the Act providing for extradition requests
made by all other non-European Union states with which the United Kingdom
has formal extradition requests.) However, it should be said that Convention
rights protections are, for obvious reasons, more necessary in respect of nonMember States of the European Union, particularly where those states are
neither Council of Europe members nor signatories to the ECHR.
II: EAW’s AND THE ISSUE OF PROPORTIONALITY
9. Section 11(3)(a) of the Extradition Act 1989 contained a provision requiring
the High Court to discharge a person whose extradition had been sought if
the allegation against him or her was trivial and, in all the circumstances, it
would be unjust or oppressive to return him or her.
10. No similar provision is to be found in the Act, although Government
Ministers in both Houses during the debates on the Bill advanced the
argument that those clauses enacting Convention rights protections provided
a sort of general umbrella protection.
11. So far as I am aware, proportionality has not been an issue in Part 2 cases.
However, the advent of the Part 1 scheme coupled with the accession of the
‘East European bloc’ states to full European Member State status created two
problems: first, the EAW was used (not only by the new Member States) to
endeavour to sweep up a number of old cases; and, second, a number of
the new Member States’ domestic law systems conferred no discretion upon
prosecutors and investigating magistrates as to when it might not be in the
public interest to pursue an extradition request. On the contrary, they were
bound by their constitutions to proceed. This has been a particular problem in
Poland, resulting in a huge number of requests for crimes which do not
warrant the trappings and expense of even the simplified system of return
envisaged by the European Council in the Framework Decision
(2002/584/JHA), which created the EAW scheme.
12. I understand that moves are now afoot within the governing bodies of the
European Union to address this problem, and that a proportionality test may
be added to the Framework Decision. It is difficult to see, however, how such
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Written Evidence submitted by John Hardy QC (EXT 28)
a test could be devised which was in keeping with both the absolute spirit of
judicial co-operation which underpins the Framework Decision, and the timelimits which are central to its operation, since the issue of what is or may be
proportionate will inevitably extend the course of any extradition proceedings
in which it is raised.
13. However, the introduction of such a test will bring about two
improvements to the operation of the extradition process: first, it should cut
out a number of unnecessary requests from the system, reduce hardship to
individuals, and concentrate the minds of issuing judicial authorities on the
question of whether issuing an EAW is really necessary and proportionate in
each case. Secondly, the procedural rubric of the Act is very tightly drawn,
and, with the exception of issues such as the passage of time and human
rights, almost entirely excludes not only judicial discretion but also the function
of judicial evaluation. A system which renders extradition less of a
bureaucratic exercise and more an exercise in the administration of justice is
to be welcomed. As will appear below, this is my principal thematic criticism
of the ethos and operation of the Act.
III: TIME-LIMITS
14. The Act is festooned with time-limits. It is perhaps understandable that The
European Council, in the Framework Decision, and Parliament, in the Act,
decided largely (though not exclusively) against deploying such legal
formulae as “as soon as reasonably practicable”, and instead chose to
stipulate precise (and very limited) time-limits. But the problems this approach
have created are writ large: with the UK court system over-loaded and under
increasing strain, devices are routinely employed to circumvent the fixed
periods, alternatively they are routinely extended so often as to render them
meaningless. It is a matter ofd concern that, sometimes, they operate to
create manifest injustice.
15. An example of the “device approach” concerns the “permitted period”
by the end of which the extradition hearing must begin. Often one, the other,
or both parties are not ready to begin the extradition hearing within three
weeks of the person’s arrest, as required by section 8(4) of the Act in Part 1
cases. [This problem can be particularly acute where, for example, the person
is legally-aided, remanded in custody, and appears to his or her legal
representatives to have, on instructions, a feasible bar to extradition which
necessitates the gathering and collation of evidence, which in turn may
involve seeking additional funding from the Legal Services Commission.] In
such circumstances the court and parties often resort to the fiction of
opening the extradition hearing and then immediately adjourning it. Of
course it could be said that Parliament required the hearing to commence,
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Written Evidence submitted by John Hardy QC (EXT 28)
not be completed, within the “permitted period”. Implicit, however, in the
concept of the commencement of a hearing is its conclusion, particularly
when this is required by Article 17 of the Framework Decision within 60, or
exceptionally 90, days of arrest.
16. Extensions are legion. One example concerns the “required period” by the
end of which the act of extradition must be accomplished. This requirement is
stipulated by section 35(4) of the Act where there is no appeal against
extradition, and section 36(3) where there is an unsuccessful appeal. Both
sections provide for the extension of the commencement point of the
“required period” by agreement between the issuing and executing judicial
authorities. Such agreements are all too frequently required, especially over
holiday periods.
17. No account is taken within the timetables of the possibilities of appeals.
The Supreme Court cannot consider an application for permission to appeal,
where the High Court has certified the decision in the case involves a point of
law of general public importance, and, if it grants permission, the substantive
appeal, within the timetable contemplated by the Framework Decision, and
incorporated, so far as possible, into the Act In the Administrative Court Lord
Justices of Appeal are sitting on their own, such is the volume of appeals.
Since the appeal process would be equally time-consuming if a filtering
procedure by which leave to appeal was required, before an appeal could
take place in the High Court, this problem is intractable. Unless the right of
appeal is to be fettered, or altogether curtailed, which would be
unconscionable, these timetables are unworkable.
18. The time-limits for giving notice of appeal are capable of producing real
injustice Recent examples of the High Court holding it has no jurisdiction to
hear an appeal have concerned persons remanded in custody and
representing themselves, or who, if represented, are let down by their
representatives in terms of filing and serving notices of appeal within time.
19. The difficulty with specific time-limits, therefore, is that they were unrealistic
from the outset, and have become increasingly so over the years. Judges are
used to keeping tight discipline over the progress of cases, but if the “as soon
as reasonably practicable” formula was more widely introduced into the Act,
that formula would impose a duty upon the judge which would have the
advantage referred to in paragraph 13 above, of enabling him or her to
judicially evaluate an issue in a case, rather than merely consulting a diary. A
better balance should be devised between bureaucratic formality and
judicial decision-making, not least because the latter approach is apt to give
effect to Convention rights considerations, whereas the former is apt to
exclude them.
207
Written Evidence submitted by John Hardy QC (EXT 28)
IV: THE EFFECTIVENESS AND IMPORTANCE OF LEGAL REPRESENTATION
20. Extradition, prior to the coming into force of the Act, was always
something of a niche, speciality subject. The advent of the Act, and the vastly
increased volume of court cases, has introduced many new service-providers
into the field. Equally, the huge increase in the numbers of appeals has had
the effect of requiring much more - often individual - judicial time to be
devoted to extradition hearings. Nevertheless, the quality of representation,
although variable, remains for the most part high. In particular, at appeal
level, the cases which appear to warrant more senior representation do, by
and large, achieve it.
21. It is not possible for me to comment on the effectiveness of representation
abroad, other than to say that when the United Kingdom submits a Part 3
warrant within the EU Member States (Part 3 warrants are EAW’s issued by
courts in the United Kingdom as requests to judicial authorities in fellow
Member States of the European Union), it seems to me that matters are dealt
with, by and large, speedily, competently, and effectively. This, however, may
reflect a different dynamic between the prosecution representative and the
court in civil code systems. Accordingly, it is not open to me to comment
upon it, nor am I anecdotally able to report on whether persons returned to
the United Kingdom claim to have been poorly or ineffectively represented in
the extradition proceedings that led to their return. In addition, it should be
said that Eurojust provides a good service, and that Aled Williams, currently
head of that organisation, is rightly highly regarded for his diligence and
diplomatic skills.
V: CONVENTION RIGHTS: THE THRESHOLD AND FURTHER POSSIBLE SAFEGUARDS
22. There can be little doubt that when Convention rights protections were
introduced into the Act ( as sections 21 and 87 in Parts 1 and 2 respectively),
the prevailing view in Government, and Parliament as a whole, was that
these provisions constituted some sort of universal panacea against injustice
and/or unfairness in the scheme and processes of extradition.
23. In the view of many, they have proved to be anything but. Indeed, that
view suggests the threshold for discharge has been set impossibly high by the
courts, which have applied the “real risk of a flagrant denial/violation” test to
each and every Convention right expressly provided for by the Act.
24. However, in my view the courts have set the bar at the right level. For the
reasons alluded to above, a Convention rights challenge to an extradition to
a category 2 territory with whom the UK has irregular and infrequent
extradition traffic may require a considerable level of judicial scrutiny.
208
Written Evidence submitted by John Hardy QC (EXT 28)
25. By contrast, extraditions to EU Member States, all of whom are necessarily
ECHR signatories, have to be considered on the basis that the challenge is
prospective rather than retrospective, and in the context of a scheme based
on judicial co-operation - that is, independent judicial co-operation, outside
the sphere of state involvement - when any alleged Convention rights
violation can be taken to the court at Strasbourg after it has occurred. As
matters presently stand in terms of UK jurisprudence, there is a strong
presumption that the requesting judicial authority will honour its Convention
rights obligations, and that presumption can only be displaced by cogent
and powerful evidence. Any student of the jurisprudence of the courts of the
United Kingdom will see this test appropriately applied in the vast majority of
cases.
26. That said, some troubling cases have occurred: Mann (Portugal), and
Symeou (Greece). In addition, there is a case currently before the courts
where a husband and wife are sought to be returned, as persons convicted
of grave crimes, when their young children, whose Article 8 rights (the right to
respect for family life) are under consideration, face the inevitable break-up
of their family if the extradition takes place. It remains to be seen how this
case will be decided: no doubt it will become a classic example of how the
courts ultimately balance Convention rights considerations within the
extradition context, when extradition serves a manifest and universal public
interest as well as being an important component of the United Kingdom’s
international law obligations.
VI: CONCLUSIONS
27. Part 1 of the Act was intended to give effect to the Framework Decision,
which, in turn, was intended to speed up and simplify the process of
extradition between the Member States of the European Union. Their
domestic criminal justice systems are not unified, and their respective
procedures differ, particularly as between common law jurisdictions (the
United Kingdom and the Republic of Ireland) and civil code systems.
Notwithstanding those dissimilarities, however, the twin keys to the new
process were and are the removal of the role of the state, and the mutual
trust and respect engendered by positive judicial co-operation. Given this
underlying ethos, it is scarcely surprising that few challenges to requests under
this Part have succeeded.
28. Part 2 is deliberately symmetrical with Part 1, save in that the Secretary of
State plays a nominal role at both the beginning and end of the process, and
the time-limits within it are more relaxed. The fact that this Part of the Act
209
Written Evidence submitted by John Hardy QC (EXT 28)
works tolerably well is attested to by the relatively high number of cases, often
of media prominence, which have resulted in the discharge of the person
sought. These cases where the person has been discharged have been
concentrated on requests from East European states which have not
acceded to Member State status within the European Union, thus
demonstrating both the effectiveness of the Part 2 protections and the
contrast between full Member States and long-term aspirants.
29. Any extradition scheme will inevitably produce cases which expose its
innate imperfections. The cases of Mann and Symeou are cases in point. So,
too, it is said by many, is the case of McKinnon (the USA computer hacker
request). Similarly, cases such as Bermingham & Ors. (the so-called “Nat West
3”) and certain others currently within the judicial process generate great
press interest, and corresponding allegations of injustice and hardship which
either do, or may, not stand up to judicial scrutiny.
30. The Act itself proceduralises and bureacratises many of the courts’ judicial
functions. The virtual extinction of judicial discretion, and the paring down of
the function of judicial evaluation are inherently unsatisfactory from a
common law perspective. In Part 1 cases, for example, the judicial control
theoretically envisaged by the Framework Decision must depend on the
capacity of the Act to permit the proper exercise of judicial decision-making.
However, the overall, purpose of the Framework Decision has to be
respected, and given the homogenous nature of the European Union, and its
collective adherence to the concept and principles of Convention rights, it is
difficult to mount a sustained attack on the Act’s structure and provisions,
except and insofar as the time-limit provisions are concerned.
31.It is right and appropriate that the Joint Committee should visit the workings
of the Act. By the same token, the Scott Baker review is appropriate. But the
real extradition challenge for Parliament as a whole is whether the United
Kingdom should retreat to an isolationist position, or whether it should
continue with the procedures in place which, are currently workable and give
proper effect to the United Kingdom’s international obligations,
notwithstanding the inevitable imperfections which the occasional case
demonstrates. In conceptual and structural terms, these procedures are not
capable of amendment or improvement, save in regard to the aspects of
procedure as set out above (and certain other aspects of procedure not
within the remit of this submission.)
12 April 2011
210
Further letter submitted to the Committee Chair by Mr Michael Hann (EXT 29)
Further letter submitted to the Committee Chair by Mr Michael
Hann (EXT 29)
Further to my email of 31 March 2011 I believe that if we were sending women
to a prison regime where they are naked on CCTV or observed by male
guards as routine in the showers or toilet as a country we would not do it.
As a man I am just as offended and degraded by being forced to be naked
in front of females.
Extraditing men to such a regime I believe is not far off a sex crime. How can
you extradite someone to a system where they have female guards observing
naked prisoners and not accept that this is degrading and a form of sexual
torture. For many men it would be humiliating or degrading. Obviously the
USA would agree since they do not allow male guards to observe female
prisoners in the shower. There is a double standard but there should not be. It
is just as humiliating for a man as a woman. No difference.
I feel strongly about this privacy and humiliating aspect of the USA jail system
and for this reason I do not believe we can have any further extraditions to
the USA. Extraditing someone when you know they will be sexually humiliated I
am sure is against the human rights act.
11 April 2011
211
Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30)
Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30)
Supplemental Evidence on legal aid in extradition proceedings
Introduction
1. The JCHR is in the process of receiving evidence about the extent to which
the European Arrest Warrant (EAW) scheme meets or falls short of its aims and
duties to protect the human rights of requested persons in extradition
proceedings. One of the issues about which evidence has been sought is the
importance of legal aid in extradition proceedings.
2. In response, this supplemental note analyses the practical difficulties
obtaining legal aid funding for requested persons. It focuses on the tension
between the right to funding on the one hand and the legislative emphasis
on quick surrender under the EAW scheme on the other, before suggesting
the practical solution of the automatic grant of legal aid. Opinions expressed
are based on some of my client experience, on observations of cases in court
and following discussions with senior Judges at the City of Westminster
Magistrates Court.
The legislative framework
3. The Extradition Act 2003 governs all extradition requests received in the
United Kingdom on or after 1st January 2004. The Act is divided into five Parts.
Parts 1 and 2 set out the rules for handling extradition requests from abroad.
4. Part 1 of the Extradition Act 2003 was specifically enacted to transpose into
national law the obligations imposed on the United Kingdom by the European
Council Framework decision of 13 June 2002 on the European arrest warrant
and the surrender procedures between Member States (‘the Framework
Decision’). The Framework Decision requires use of the European Arrest
Warrant as a pro forma extradition request between Member States. The preamble to the Framework Decision sets out its aim:
“The objective set for the Union to become an area of freedom, security
and justice leads to abolishing extradition between Member States and
replacing it by a new system of surrender between judicial authorities.
Further, the introduction of a new simplified system of surrender of
sentenced or suspected persons for the purposes of execution or
prosecution of criminal sentences makes it possible to remove the
complexity and potential delay inherent in present extradition procedures.
Traditional cooperation relations which have prevailed up till now
between Member States should be replaced by a system of free
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Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30)
movement of judicial decisions in criminal matters, covering both presentence and final decisions, within an area of freedom, security and
justice.”
5. The emphasis on the speed of proceedings is described in Article 16(1) of
the Framework Decision: “A European Arrest Warrant shall be dealt with as a
matter of urgency”. Article 16(3) further provides: “… the final decision on the
execution of the European arrest warrant should be taken within a period of
60 days after the arrest of the requested person”. Those aims are
implemented into domestic law by section 8(1)(a) of the Extradition Act 2003
according to which, once a requested person has been arrested and
brought to court, “[the] Judge must fix a date on which the extradition
hearing is to begin”. Furthermore section 8(4) provides, “The date fixed under
subsection (1) must not be later than the end of the permitted period, which is
21 days starting with the date of arrest ...”.
6. The EAW scheme is designed to be simpler (there is no inquiry into the
evidence to be used at trial) and therefore quicker. Strict compliance by
extradition requests with the terms of the Act, and I would argue appropriate
legal advice on the same, is acutely important in respect of territories with
which there exists no evidential inquiry, as observed by Lord Hope of
Craighead (paragraph 23-24) in Office of the King’s Prosecutor, Brussels v
Cando Armas & Another 2005 2 WLR 1079 (HL):
“…The [part 1] system has, of course, been designed to protect rights.
Trust in its ability to provide that protection will be earned by a careful
observance of the procedures that have been laid down … the liberty of
the subject is at stake here, and generosity must be balanced against the
rights of the persons who are sought to be removed under these
procedures. They are entitled to expect the courts to see that the
procedures are adhered to according to the requirements laid down in
the statute…”
7. The duty to provide legal funding in extradition proceedings stems from
Article 11(2) of the Framework Decision:“A requested person who is arrested for the purpose of the execution of a
European arrest warrant shall have a right to be assisted by a legal
counsel and by an interpreter in accordance with the national law of the
executing Member State.”
8. The Access to Justice Act 1999 (as amended by section 182 of the
Extradition Act 2003) defines when individuals are entitled to advice,
assistance and representation in “criminal proceedings” from the Legal
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Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30)
Services Commission (LSC); extradition proceedings are included within the
definition of the term “criminal proceedings”.
What is the main problem with the current legal aid application process?
9. Where a person is in receipt of state benefits, legal aid will be automatic. In
all other cases legal aid applications require specific written evidence of
hours worked, tax returns, amounts held in current and savings accounts, the
amount of rent paid and any partner’s income. Evidence of those matters
might the form of a work log from a former employer, wage slips and bank
account statements.
10. The vast majority of people involved in extradition proceedings are foreign
nationals, often with very limited English. Many will have worked on an ad hoc
basis (in the construction or farming industry for example). If they are not on
benefits, then proof of income is required before the LSC will grant legal aid.
The particular difficulty in providing written evidence stems from the fact that
wages will invariably have been paid cash-in-hand (whether at the insistence
of the employer or otherwise). Employers will either not have kept a written
record of hours worked, or will no longer be able to produce work logs given
the lapse of time since the work was undertaken. Bank statements will be
unobtainable whilst in custody. Even though a requested persons low
earnings might qualify them for legal aid, for many it is impossible to provide
the necessary documentation. Even when they have established selfemployed status and are operating completely properly they find it very
difficult, if not impossible, quickly to gather together the necessary paperwork
to satisfy the LSC.
11. Once legal aid is refused, having lost any causal work they once had, this
category of requested person is less able to pay privately then they were
previously. The obvious solution would be to fill out the paperwork to show
that they are now eligible for state benefits, and therefore automatic legal
aid funding. Whilst in custody it is not possible to complete those forms. Legal
funding continues to be denied and the circle becomes a vicious one.
How does this affect the aim of the Extradition Act 2003 to speed up and
simplify proceedings?
12. Judges who consider it wrong for people in extradition proceedings to be
unrepresented will feel under pressure to adjourn the extradition hearing (at
least initially) in the hope that the legal aid position can be resolved. It is not
unusual for multiple adjournments totalling over 60 days (from the date of first
appearance) to be granted in an attempt to allow unrepresented
defendants the time and opportunity to accumulate the necessary
paperwork. The cost of the proceedings therefore increases: each hearing
214
Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30)
following an adjournment requires the services of an interpreter, the
Judge/court staff and a legal representative for the foreign requesting
authority (who is automatically appointed). There is the additional cost to the
tax payer of keeping the requested person in custody over time.
How does this affect the rights of the requested person?
13. Requested persons in this situation are frequently extradited without
access to legal advice. The issue is how this risks breaching his or her human
rights.
14. Courts are obliged to act in accordance with the provisions of the Human
Rights Act 1998 and the rights and protections afforded by the European
Convention on Human Rights (ECHR). Article 6 ECHR states that in “the
determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing”. In addition in
criminal proceedings the defendant has the right to legal representation if he
cannot afford it.
15. In the extradition context, however, it has been held that extradition
proceedings do not of themselves involve the determination of any “criminal
charge” within the meaning of Article 6 of the ECHR 264 and so those
protections do not apply. Alternatively, it could be argued that the requested
person is a litigant in proceedings whose civil right (to remain in this jurisdiction
under freedom of movement provisions) is being curtailed and determined.
On this analysis the requested person would be entitled under article 6(1) to a
‘fair hearing’, which implies an equality of arms arguably absent in the factual
scenario described above.
16. Articles 5(1) and 5(1)(f) ECHR provide that the detention of a requested
person in extradition proceedings must not be arbitrary or vitiated by misuse
of authority or bad faith 265 . It might be argued that the LSC’s refusal to take
into account the inability to provide the necessary paperwork demonstrates a
264 H v Spain (1983) 37 DR 93: “In the Commission’s view the word ‘determination’ [in article
6(1) of the ECHR] involves the full process of the examination of an individual’s guilt or
innocence of an offence, and not the mere process of determining whether a person can be
extradited to another country... The commission finds, therefore, that the extradition
proceedings in question did not involve the determination of a criminal charge against the
applicant within the meaning of Article 6(1) of the Convention”.
265 Lynas v Switzerland (1976) 6 DR 141 at 167: “Article 5(1)(f) clearly permits the Commission
to decide on the lawfulness (‘lawful detention/detention reguliere’) of a person against
whom action is being taken with a view to extradition (une procedure d’extradition est en
cours). The wording of both the French and English texts makes it clear that only the existence
of extradition proceedings justifies deprivation of liberty in such a case. It follows that if, for
example, the proceedings are not conducted with the requisite diligence ... it ceases to be
justifiable under Article 5(1)(f)…”
215
Additional Written Evidence submitted by Charlotte Powell, Furnival
Chambers (EXT 30)
lack of diligence which in turn deprives a person arbitrarily of funding, legal
advice and therefore the ability to argue for release from custody.
17. In an appropriate case, an alternative remedy might be to judicially
review the LSC decision to refuse legal aid funding. Of course the reality is
that these arguments are not raised or pursued by litigants in person.
What is the practical solution to these problems?
18. The JCHR could consider whether the immediate grant of legal aid from
the requested person’s first appearance in an extradition court would:(i) Save money
(ii) Save time
(iii) Enable the UK better to fulfil its international treaty obligations
19. The present system might save money on one budget (legal aid) but the
effect of contested legal aid applications impacts adversely on other
budgets (repeated court hearings and the continued cost of detention). An
holistic approach to legal aid would involve every person in extradition
proceedings (regardless of financial circumstances) being granted legal aid
funding (with consideration given to a contribution from the State requesting
the person’s return). It might be possible thereafter for any appeal
proceedings to be means tested.
Conclusion
Requested persons are entitled to expect the courts to see that extradition
and legal aid procedures are effectively adhered to according to the
requirements laid down in the statute. The pressure to extradite within a tight
time frame means that those procedures are not effectively implemented.
On the approach described here, advice on the prospects of contesting
extradition and the mechanism for return could be given more quickly,
extradition might therefore be secured more swiftly and the rights of the
requested person would be better protected.
7th April 2011
216
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
Letter to the Chair, from Damian Green MP, Minister for
Immigration, Home Office (EXT 32)
Thank you for your letter dated 10 May 2011 about you inquiry into the human
rights implications of UK extradition policy. I am replying as the Minister who
has recently taken on responsibility for extradition matters.
The first part of your letter requests figures on the European Arrest Warrant
(EAW). The Serious Organised Crime Agency (SOCA) is the designated
authority in England, Wales and Northern Ireland (since 1 April 2008)
responsible for processing European Arrest Warrants (EAWs). Extraditions
under the EAW process are referred to as ‘surrenders’ to the requesting EU
Member State. The figures can be found at Annex A.
The second part of your letter requests figures in relation to requests and
extraditions to and from countries designated under part 2 of the Extradition
Act 2003 (category 2 countries). The figures can be found at Annex B.
I hope this information is useful.
Annex A
1. Number of extradition requests under the European Arrest Warrant received
by the UK in each of the past five years by issuing country
Due to the way that data was recorded on the system it is not possible to
provide a breakdown of the number of requests received by each requesting
country prior to April 2009. The number of request received by the UK from
other member states in the last 5 years is as follows:
Year
Number of requests
received by the UK
2009/10
4100
2008/09
3526
2007/08
2483
2006/07
3515
2005/06
Not available
For the fiscal year 2009/10 the country breakdown for requests received by
the UK is as follows:
217
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
Number of requests
received by the UK
Country
AUSTRIA
BELGIUM
BULGARIA
CYPRUS
CZECH REPUBLIC
DENMARK
ESTONIA
FINLAND
FRANCE
GERMANY
GREECE
HUNGARY
IRELAND
ITALY
LATVIA
LITHUANIA
LUXEMBOURG
MALTA
THE NETHERLANDS
POLAND
PORTUGAL
ROMANIA
SLOVAKIA
SLOVENIA
SPAIN
SWEDEN
Total
30
90
42
8
120
3
6
6
106
235
22
72
43
100
55
183
2
3
112
2403
23
197
54
7
167
11
4100
Data for the 2010/11 fiscal year is currently being validated and will be
published in the SOCA Annual Report in July 2011.
2. Number of surrenders made to the Category 1 territories from the UK under
the EAW in each of the past five years by issuing country
Due to the way that data was recorded on the system it is not possible to
provide a breakdown of the number of surrenders from the UK by each
requesting country prior to April 2009. The number of surrenders from the UK to
other member states in the last 5 years is as follows:
218
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
Year
Number of surrenders
from the UK
2009/10
699
2008/09
516
2007/08
415
2006/07
178
2005/06
Not available
For the fiscal year 2009/10 the country breakdown for surrenders from the UK
are as follows:
Country
AUSTRIA
BELGIUM
BULGARIA
CYPRUS
CZECH REPUBLIC
DENMARK
ESTONIA
FINLAND
FRANCE
GERMANY
GREECE
HUNGARY
IRELAND
ITALY
LATVIA
LITHUANIA
LUXEMBOURG
MALTA
THE NETHERLANDS
POLAND
PORTUGAL
ROMANIA
SLOVAKIA
SLOVENIA
SPAIN
SWEDEN
Number of surrenders
from the UK
1
6
1
4
34
0
7
1
19
21
1
8
19
10
15
55
1
2
18
425
3
18
7
1
16
6
Total
699
219
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
Data for the 2010/11 fiscal year is currently being validated and will be
published in the SOCA Annual Report in July 2011.
3. The number of EAW requests issued by the UK in each of the past five years
by requested country
Due to the way that data was recorded on the system it is not possible to
provide a breakdown of the number of requests issued by the UK broken
down by country prior to April 2009. The number of requests issued by the UK
to other member states in the last 5 years is as follows:
Year
Number of requests
issued by the UK
2009/10
203
2008/09
257
2007/08
182
2006/07
146
2005/06
N/A
For the fiscal year 2009/10 the country breakdown for request issued by the UK
are as follows:
Number of requests
issued by the UK
Country
AUSTRIA
BELGIUM
BULGARIA
CYPRUS
CZECH REPUBLIC
DENMARK
ESTONIA
FINLAND
FRANCE
GERMANY
GREECE
HUNGARY
IRELAND
ITALY
LATVIA
LITHUANIA
LUXEMBOURG
MALTA
THE NETHERLANDS
POLAND
1
3
1
5
0
0
0
1
25
4
2
2
39
3
0
2
0
1
31
19
220
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
PORTUGAL
ROMANIA
SLOVAKIA
SLOVENIA
SPAIN
SWEDEN
Total
2
3
0
0
58
1
203
Data for the 2010/11 fiscal year is currently being validated and will be
published in the SOCA Annual Report in July 2011
4. The number of surrenders from Category 1 territories to the UK under the
EAW in each of the past five years
Due to the way that data was recorded on the system it is not possible to
provide a breakdown of the number of surrenders to the UK by country prior
to April 2009. The number of surrenders to the UK from other member states in
the last 5 years is as follows:
Year
Number of surrenders
to the UK
2009/10
71
2008/09
88
2007/08
107
2006/07
84
2005/06
N/A
For the fiscal year 2009/10 the country breakdown for surrenders to the UK are
as follows:
Country
Number of surrenders
to the UK
CYPRUS
FRANCE
GERMANY
GREECE
IRELAND
ITALY
MALTA
THE NETHERLANDS
POLAND
PORTUGAL
2
6
1
2
11
1
1
17
5
2
221
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
ROMANIA
SPAIN
SWEDEN
Total
2
20
1
71
Data for the 2010/11 fiscal year is currently being validated and will be
published in the SOCA Annual Report in July 2011.
Annex B
Non-EAW extradition requests received by the UK: 2005–10
The figures in the first table below show the total number of extradition
requests made to England and Wales (and Northern Ireland since 1 April
2008) and processed by the Home Office in each of the last six years.
TOTAL NUMBER OF REQUESTS RECEIVED BY THE UK
Year
Requests received
2005
2006
2007
2008
2009
2010
54
64
49
57
81
86
The figures include all requests made outside of the European Arrest Warrant
(‘EAW’) framework during these years. They include requests made by some
EU Member States before they began operating the EAW. They do not
include requests received from countries with which the UK does not have
extradition relations.
Not all extradition requests lead to the arrest of the subject. As a matter of
long-standing policy and practice, we will neither confirm nor deny whether
an extradition request has been made or received until such time as a person
is arrested in relation to the request, so that people do not have the
opportunity to escape justice by leaving the country before they are arrested.
For that reason, we have not provided a breakdown of actual requests by
country, but we have set out in the tables below a breakdown of the number
of arrests as well as surrenders by country.
It should also be emphasised that an arrest and/or surrenders made in a
particular year may relate to a request made in a previous year. For
example, a request made to the UK in 2005 may not result in an arrest until
2006 and surrender until 2008.
222
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
2005
Country
Albania
Australia
Canada
Croatia
Czech Republic
Estonia
Germany
India
Israel
Italy
New Zealand
Norway
Romania
Russian Federation
Slovakia
Turkey
USA
TOTAL
Arrests
3
4
4
2
4
1
1
2
6
1
1
11
2
1
16
59
Surrenders
1
2
2
1
3
1
3
2
1
1
8
25
2006
Country
Albania
Armenia
Australia
Canada
Croatia
Czech Republic
Germany
Hong Kong
India
Israel
Italy
Kenya
New Zealand
Norway
Romania
Russian Federation
Switzerland
Trinidad & Tobago
Turkey
USA
TOTAL
Arrests
8
1
6
1
2
Surrenders
3
2
1
1
1
2
2
1
2
2
1
1
2
2
2
2
1
15
47
1
1
1
1
16
34
223
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
2007
Country
Albania
Australia
Canada
Italy
Mauritius
New Zealand
Norway
Romania
Russian Federation
Switzerland
USA
TOTAL
Arrests
10
3
1
1
1
1
1
1
8
27
Surrenders
3
4
3
3
1
1
1
8
24
2008
Country
Albania
Algeria
Australia
Canada
Croatia
Israel
New Zealand
Russian Federation
South Africa
Switzerland
Turkey
Ukraine
USA
TOTAL
Arrests
5
1
1
1
1
2
8
1
Surrenders
4
1
1
1
1
1
1
9
31
1
6
15
2009
Country
Albania
Argentina
Australia
Azerbaijan
Bosnia & Herzegovina
Brazil
Canada
Croatia
Hong Kong
Iceland
Israel
New Zealand
Arrests
4
2
Surrenders
4
1
1
1
1
2
1
2
1
1
3
1
1
1
224
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
Norway
Romania
Russian Federation
South Africa
Switzerland
Trinidad & Tobago
Turkey
USA
TOTAL
4
3
1
4
1
19
47
1
1
3
1
1
16
35
2010
Country
Albania
Argentina
Australia
Azerbaijan
Brazil
Canada
Croatia
Hong Kong
India
Moldova
New Zealand
Norway
Russian Federation
Serbia
South Africa
Switzerland
Thailand
Trinidad & Tobago
Turkey
Ukraine
United Arab Emirates
USA
TOTAL
Arrests
6
1
2
2
3
2
2
1
3
1
1
1
2
1
7
2
2
14
53
Surrenders
3
1
1
1
1
1
1
2
1
1
1
10
24
Non-EAW extradition requests made by the UK: 2005–2010
These figures include a small number of requests made by countries with
which we do not have extradition relations (referred to as ‘ad-hoc’).
225
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
TOTAL NUMBER OF REQUESTS MADE BY THE UK
Year
Requests received
2005
2006
2007
2008
2009
2010
30
29
37
49
37
37
The following tables show the country and numbers of surrenders for each
year, including ad hoc cases where indicated. Arrests are not included for
these cases as we are not always made aware of the date of arrest; therefore
we do not maintain a statistical record.
2005
Country
Canada
Cayman Islands
Czech Republic
Germany
Italy
Jamaica
Netherlands
Norway
Serbia
Spain
Sri Lanka
USA
TOTAL
Surrenders
1
1
1
2
2
2
1
1
1
3
1
1
17
2006
Country
Australia
Dutch Antilles
France
Netherlands
South Africa
Spain
Switzerland
Thailand
USA
TOTAL
Surrenders
4
1
1
1
1
1
1
1
4
15
226
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
2007
Country
Australia
Grenada
India
Jamaica
Kosovo (ad hoc)
New Zealand
Somalia
South Africa
Spain
Switzerland
Thailand
USA
TOTAL
Surrenders
1
1
1
1
1
1
1
1
2
2
2
7
21
2008
Country
Australia
Canada
Italy
Mauritius
Morocco (ad hoc)
Netherlands
New Zealand
South Africa
Sri Lanka
Thailand
Trinidad and Tobago
Turks & Caicos
USA
TOTAL
Surrenders
3
1
1
1
1
1
1
1
2
1
2
1
10
26
2009
Country
Australia
Canada
Columbia
Croatia
Dubai
India
Iraq
Jamaica
Mexico
Surrenders
2
2
1
1
1
1
1
1
1
227
Letter to the Chair, from Damian Green MP, Minister for Immigration, Home
Office (EXT 32)
South Africa
Switzerland
Thailand
Turkey
Turks & Caicos
USA
TOTAL
1
1
4
1
1
7
26
2010
Country
Afghanistan (ad hoc)
Australia
Bangladesh
Bahrain (ad hoc)
Barbados
Canada
Iraq
Netherlands
Peru
Spain
Thailand
Turkey
USA
Venezuela
TOTAL
Surrenders
1
1
1
1
1
1
1
1
1
1
3
1
5
1
20
19 May 2011
228