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The ‘crab walk’ towards justice: discretionary leave provision in extradition appeals

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

When high-profile extradition cases appear in the news the impression generally conveyed is that they involve a long and gruelling process, where the defendant is given a reasonable amount of leeway to contest the decision. This is not actually the case. When taking into consideration the changes to the process brought by the implementation of the European Arrest Warrant (EAW) in 2004, and the general limits on the appeals process both in statute and in practice, it is not surprising that the reforms proposed by the current government have been met with a considerable amount of backlash. The Antisocial Behaviour, Crime and Policing Bill, which is expected to receive royal assent by spring 2014, seeks to further limit the opportunity of a defendant to appeal against an extradition decision. On the other hand, it also seeks to correct some of the issues with the EAW, by introducing a proportionality provision which adds a higher level of scrutiny to the extradition process. These conflicting provisions are both aimed at cutting down spending on the extradition process as a whole, but together they serve to create a very confusing policy.        

The rules surrounding extradition are currently set out in the Extradition Act 2003. While providing an automatic right to appeal, Section 26 prescribes that an appeal is allowed only if the applicant has not already consented to the extradition. In addition, they must submit an application for appeal within seven days of the decision. If looked at separately from any other issues, this period of time does not seem too restrictive. However, it is worth considering that the applicant may not be able to afford adequate legal advice for a matter as complicated as extradition law, and may not qualify for legal aid, especially in light of the recent reforms to it. In 2010, in the case of Poland v Walerianczyk, s26(4) was defined as requiring a sealed application to be received within seven days as opposed to simply a notice of appeal. The applicant in Bergman v District Court of Kladno, in 2011 was denied his appeal as a result of the earlier decision. Irwin J noted that “unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements”.  Furthermore, s27 of the 2003 Act limits the scope of the automatic right to situations where the judge “should have decided a question before him at the extradition hearing differently” and this decision “would have led to a discharge”, or new evidence is brought which was not considered at the hearing, and which would have changed the decision in such a way that it would have led to a discharge. The parameters for an appeal application seem well set, so it is apt to question what reforms the new bill is introducing and what their purpose is. 

The main filter implemented by the proposed Bill is created by taking away the automatic right to appeal. It could be argued that this type of restriction is necessary with regards to cases such as Piskorz v Regional Court in Elblang, where the appeal was dismissed within a few minutes as it did not meet the s27 requirements. Under the reforms, an appeal may be brought only with the “leave of the High Court”. The legislation itself does not explicitly set out what test the High Court will be utilizing to decide on the validity of applications, but it is likely to be whether or not there is an “arguable case” on paper, similar to the permission test used in judicial review cases. However, this does mean that the remit of cases that will and will not qualify for an appeal remains largely vague. In addition, when noting the lack of adequate legal representation the applicant is likely to receive for the extradition hearing prior to the appeal, it seems that this provision is not only perhaps unnecessary but also works to further undermine the position of the defendant in relation to the state that has applied for the extradition.

On the other hand, two other changes made to the 2003 act would suggest that this inequality is exactly what the government is trying to prevent. In line with the issues raised by Sir Scott Baker’s independent review, particularly with regards to proportionality, the Bill makes an addition under s11 of the Extradition Act (bars to extradition). This addition compels the trial judge to consider whether the extradition is compatible with the Human Rights Act of 1998 and whether it is proportionate. For the proportionality requirement, factors such as the seriousness of the offence and the ability to punish the offence through some other means are taken into account. Moreover, s26(4) is amended to rectify situations such as the one in Bergman, by detailing that where an application was received after the seven day limit, the High Court should not dismiss it if the applicant “did everything reasonably possible to ensure that the notice was given as soon as it could be given.” This works to some extent to rectify the imbalance between the defendant and the state requesting the extradition thus ensuring that justice stands at the forefront of the process.

Nevertheless, the clash between the two types of provisions could still mean that a certain percentage of defendants who will be extradited in the future would not have had the opportunity to have a sufficiently fair trial. Hence, it is reasonable to question why the automatic right to appeal is to be taken away from defendants, especially when the same is not being done in a situation where the requesting state appeals against a discharge.

In an article written in May 2013 on the matter, Rebecca Niblock noted that the limits to the 2003 Act are an effort on the part of the Home Office to restrict the amount of appeals on extradition hearings, while the issue of proportionality was brought forth in Parliament as an alternative to opting out of EU policing and justice measures in 2014. She noted that “Parliament understands the need for reform of Britain’s extradition arrangements yet the government is showing a deep ambivalence – this disconnect does not bode well.” It would appear that, as the Antisocial Behaviour, Crime and Policing Bill stands at the moment, fears about justice not being properly ensured were warranted. In an effort to balance the rights of an applicant to a fair trial against the need to further government policies, particularly with regards to expense, this proposed Bill is likely to make the extradition process more complicated and perhaps less accessible than under the 2003 Act.

Further Reading

Antisocial Behaviour, Crime and Policing Bill – Progress of the Bill

Fair Trials International, Briefing on the UK Extradition Reform.

European Commission, European Arrest Warrant Information.

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Tagged: Criminal Law, Extradition, Justice

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