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Extradition reform: new legislation, old practice

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

Cast your minds back to spring 2014. In March, my Keep Calm Talk Law article was published discussing the role of the ECHR in Part 1 of the Extradition Treaty 2003. An increasing tendency for the judiciary to declare an extradition invalid due to issues of human rights was examined, as well as the possible political implications. This issue was further debated in my April article, looking specifically at extradition within Category 2 territories(Non-EU). I proposed that extradition requests outside of the EU were often viewed as a diplomatic tool, as opposed to a necessity within international criminal proceedings.

Both Part 1 and Part 2 of the Extradition Act 2003 were in danger of paying too much attention to the politics surrounding extradition, and ignoring the specific case in question. Various critics of the Act brought this to the Government’s attention, and their response came in the form of the Scott Baker report 2011. The report found that several criticisms were mere public misconceptions fuelled by the media. This included the supposed imbalance of the UK/US Treaty arrangements (see my April 2014 article for an analysis of this report). However, many criticisms were found worthy of reform.

The Anti-Social Behaviour, Crime and Policing Act 2014 came into effect in July, bringing with it a whole host of legal developments. This included amendments to the Extradition Act 2003. It was designed to deal with the various criticisms outlined in the Scott Baker report, and aimed to increase the operational effectiveness of the 2003 legislation. Nonetheless, two months since the legislation’s enactment and its merit is already under scrutiny.

The legislation introduced a variety of operational and technical changes to current extradition procedure specifically within Part 1 of the Extradition Act 2003; I will discuss the most significant, in the light of previous case law. These include a new bar to extradition, provided in Amendment 12A of the 2014 Act, and the establishment of a proportionality test in Amendment 21A. The amendments undeniably attempt to bring the specific case into question, concentrating on the individual’s rights as opposed to the surrounding political concerns. Assuming the amendments are effective on a practical level, this can only be a good thing. This effectiveness is yet to be seen.

Amendment 12A: A new bar to extradition

Instances of inhumane pre-trial detention are not uncommon. Once the accused individual is successfully extradited to the requesting country, they could be detained for any length of time prior to conviction. Symeou v Greece [2009] offers us a perfect example of this. Andrew Symeou spent ten months in pre-trial detention, followed by a further nine months on bail. This was the result of Greece issuing a European Arrest Warrant (EAW), without disclosing any basic evidence in support of 18 year-old Symeou’s conviction. Following the ordeal, the jury took a mere 2.5 hours to find Symeou innocent of manslaughter.

S.156 of the Anti-Social Behaviour, Crime and Policing Act 2014 inserts the 12A provision into the 2003 Act. The amendment creates a new bar to extradition, in the absence of any valid prosecutorial decision in the requesting Category 1 territory. Specifically, the request can be barred if the Category 1 territory cannot prove:

(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or

(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person’s absence from the category 1 territory is the sole reason for that failure.

Therefore, the UK Court must be provided with sufficient evidence that a conviction is extremely likely to follow as a result of the extradition. Such a reform is designed to reduce premature extradition requests, thus avoiding the possibility of lengthy pre-trial detention for those like Andrew Symeou.

It has been speculated that the infamous case of Wikileaks founder, Julian Assange, could have come to a different ending had 12A been enacted prior to judgment. Assange’s lawyers could have argued that his absence from Sweden is not the sole reason for his lack of arrest, especially when you consider the possibility of video interviewing. However, this argument seems futile. Would the use of video interviewing not be relevant to all extradition hearings? His absence from Sweden is undeniably the ‘sole reason’ as to why no decision has been reached as to him being charged. Even if the amendment applied retrospectively, which it does not, it is unlikely he would be spared from extradition.

Bringing a suspect into custody for questioning is a crucial part of any investigation, whether domestic or international. I would suggest that although this amendment’s heart is in the right place, it will not change a great deal on a practical level. Any requesting country can argue that the extradition of an individual will help determine the validity of the charge, and any responding country can argue that this could instead be determined through video interviewing. If anything, this amendment will just increase paperwork between the territories, and reduce efficiency.

Amendment 21A: A test of proportionality

The second amendment under scrutiny also aims to prevent unjust extraditions. The case of ‘Patrick Connor’ highlighted the disproportionate use of the European Arrest Warrant. An 18-year-old boy was extradited due to his and his two friend’s possession of four counterfeit notes whilst on holiday in Spain. At some point in their lifetime, most individuals will be in possession of counterfeit notes. Chances are it will happen on an almost day-to-day basis. It is this sort of trivial claim that the 2014 amendments sought to rule out.

s.157 of the Anti-Social Behaviour, Crime and Policing Act 2014 established a test of proportionality to be applied to extradition requests within the UK. The inserted section 21A of the Extradition Act 2003 requires a judge to determine whether the extradition is a disproportionate response to the criminal offence in question, taking into consideration the following specific matters:

a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

The primary criticism of this amendment lies in the pre-existing, uncodified test of proportionality. As discussed in my March 2014 article, judges are invited to dismiss extradition requests on human rights concerns. Amongst these rights, is the Article 8 ‘Right to respect for private and family life'. When assessing Article 8, judges will consider whether the offence is grave enough to breach this convention right. Every single extradition proceeding will interfere with the right to private and family life. This is of course undeniable. Therefore the judge is left to decide whether the offence in question is grave enough to justify the breach; in other words, is the extradition proportionate?

Since the proportionality test established by s.157 involves ‘specific matters’, it has been proposed that most cases will continue to be assessed under Article 8, without reference to 21A. Theoretically, the outcome when viewed from Article 8 will be equivalent to the outcome when viewed from 21A. The only difference will once again be increased paperwork, as requesting states are forced to provide further information as to the offence in question.

A step in the right direction

My main objection to the originally enacted Extradition Act 2003, and its following repercussions, was the lack of emphasis on the individual in question. In Part 1 of the Act, we saw judges making decisions due to the requesting country as a whole. This could be due to the state’s ‘systematic judicial corruption’, or the inadequate prison conditions offered. Conversely, Part 2 of the Act demonstrated the use of extradition as a political tool within Category 2 territories. Whether an extradition was successful was a reflection of the current foreign relations, as opposed to the individual in question. What we see in the 2014 amendments is a re-instigation of the individual’s significance in extradition. After all, it is this individual who is being forced to leave their previous life behind under the pretence of criminal justice. Even if it amounts to nothing more than a codification of the already existing framework, at least the government had good intentions.

Nevertheless, there is a real limit on how the UK has addressed criticisms of the Extradition Act 2003. Firstly, 12A and 21A solely deal with the EAW. Although the Scott Baker report concluded that there is no real imbalance between the UK and US, it seems bizarre the reform would firmly exclude the possibility. 12A specifically states 'authorities in the category 1 territory'. Regardless of the Scott Baker report, the article I wrote in April came to the conclusion that there often is an imbalance between the various Category 2 territories. The politics surrounding extradition is not mere illusion. Only introducing this bar for the more easily pleased Category 1 territories is insufficient.

Secondly, the restrictive format of 21A has basically resulted in next to no change. It avoids the possibility of any relevant circumstances that could sway judges’ decisions, and thus forces a judicial retreat back to Article 8. Two possible alternatives can be ascertained. Quite simply, a less restrictive proportionality test could be introduced. The downfall of this approach is of course the amount of faith it bestows in the judicial interpretation of ‘proportionate’. However, if the government is committed to tackling the current extradition shortcomings, this is a risk it may have to bear. The other alternative is not so straightforward. It has been argued that the extradition of petty criminals is not due to failings of the Extradition Act 2003, but rather the framework as a whole. This is not a solely national issue. Not all countries operate the UK ‘public interest’ test when making a decision to prosecute, and thus a unilateral test of proportionality is somewhat meaningless. Rectifying the issue would be better accomplished at an international level, should the various countries ever come to a universal agreement. Regretfully, I cannot foresee this happening in the near future.

The UK may feel it has silenced criticisms for the time being. The government has proudly demonstrated a commitment to both criminal justice and individual freedom. However, the previous issues are far from resolved. It is only a matter of time before the legislative inadequacies make themselves known once again.  

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Tagged: Criminal Law, Extradition, Human Rights, International Law

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