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Part 1 of the Extradition Act 2003: The Role of the ECHR

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.

Extradition is the legal process by which an individual is transferred to another country in order to face criminal charges or serve a sentence.  Part 1 of the Extradition Act 2003 sets out the provisions to be addressed when dealing with a Category 1 territory. These territories are primarily European Union (EU) countries, including Belgium, Greece, and Poland. Firstly, an extradition request is lodged by a judicial authority in the Category 1 territory. Secondly, an arrest warrant is executed by a constable or customs officer in any part of the United Kingdom. An arrest will then be made, and the individual will face an extradition hearing before a United Kingdom judge.

The European Arrest Warrant

Part 1 of the Act essentially implements the framework decision of the European Arrest Warrant. Specific to European Union law, this entails a “judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”, as set down in Art.1 of the EU Framework Decision, June 2002. The ultimate purpose of the system is to prevent individuals from escaping justice by simply hopping to another state, under the shield of freedom of movement.

In his article, ‘Extradition, the European arrest warrant, and human rights’, Spencer reminds us that, “in a Europe of free movement - which regrettably means free movement for criminals as well as honest citizens - the [European Arrest Warrant] is a necessary instrument. But if necessary, it is also one which is capable of heavy-handed use.” Extradition within the EU often involves a careful balancing exercise between public policy and an individual’s fundamental rights. In addition to compliance with EU law, UK judicial decisions must also comply with human rights law. Section 21(1) of the Extradition Act 2003 states that the judge “must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.”

The statute already includes a specific provision to prevent the gravest abuse of an individual’s rights. s.1(3) Extradition Act 2003 states:

A territory may not be designated for the purposes of this Part if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence under the general criminal law of the territory.

As a state strongly against the use of capital punishment, the United Kingdom refuses to extradite a convict if they are at risk of such an outcome. Nonetheless, the implication of extradition on other fundamental rights is left to judicial discretion. Arnell, in ‘Extradition and the right to a fair trial’, argues that “judicial caution must continue to be exercised where non-specific arguments are made, with the danger being the floodgates opening and extradition being frustrated en masse.” What were once broad, and often unsuccessful, human rights arguments are now becoming a standard element of judicial extradition hearings. The political power this affords judges cannot be overestimated. These rights will be examined in turn.

Article 3: Prohibition of Torture

A risk of torture and degrading treatment does not qualify as a specific statutory bar to extradition unlike capital punishment. However, it was decided in a case prior to the Human Rights Act 1998, Soering v United Kingdom (1989), that an extraditing state is in itself “liable for taking actions the direct consequence of which is the exposure of an individual abroad to the real risk of proscribed treatment.” Nevertheless, this must be balanced against the interests of criminal justice, and territorial powers. In the past, governments have been somewhat unenthusiastic to interfere with these policy concerns, only applying the Soering rule in exceptional circumstances.

Twenty-two years on, and the European Court of Human Rights (ECtHR) finally found these circumstances in the case of Othman (Abu Qatada) v United Kingdom [2012]. The Court stated that:

the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6 [of the ECHR], but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.

An area with the potential to expand, but is yet to do so, is the applicability of Article 3 in relation to prison conditions. The defendants in Krolik v Polish Judicial Authorities [2012] argued that the Polish prison conditions were so exceedingly severe, that extradition would put them at risk of “inhuman and degrading treatment.” The Divisional Court ruled at appeal that since Poland was in itself subject to the European Convention of Human Rights (ECHR), it is to be assumed that this claim cannot be sufficient unless “clear, cogent and compelling evidence to the contrary” is produced. In comparison to the Court’s flexibility regarding other Articles, this appeared somewhat strict. Even when specific examples are given, the Court is reluctant to intervene. A recent case which does not involve the ECHR is that of Paul and Sandra Dunham, a UK couple who are to face fraud allegations in the US. Their counsel, Ben Watson submitted that “the facility they are most likely to be remanded to has… inadequate medical facilities to care for Mr Dunham’s mental health.” The Court dismissed this claim, despite the US not being subject to the Convention. It will be interesting to see if judicial discretion adapts with time to allow such claims, as it did with torture.

Article 6: Right to a Fair Trial

The common law has since expanded to accommodate for breaches to human rights, which do not concern purely the individual in question, but all individuals who face the foreign legal system. This appears to be one of the “non-specific arguments” which Arnell refers to. Kapri v Lord Advocate [2013] demonstrates the hesitancy for UK courts to extradite an individual into the hands of systematic judicial corruption. Should Kapri have been extradited to Albania, his Article 6 right to a fair trial would have been severely jeopardized. Lord Hope held:

the stark fact is that systematic corruption in a judicial system affects everyone who is subjected to it. No tribunal that operated within it can be relied upon to be independent and impartial.

Surely all Albanian extradites are at risk of this ‘systematic judicial corruption’. It would be an immensely political move for judges to refuse extradition to all Albanian requests on this non-specific basis. Arguably, this will put pressure on Albania to better regulate and supervise their judicial system. Whether or not this pressure should originate from the UK judiciary, rather than democratically elected legislators, is however debatable.

Article 8: Right to Respect for Private and Family Life

All extraditions will inevitably interfere with Article 8: the ‘Right to respect for private and family life.’ Previously, Courts have shown little sympathy to these arguments due to the provision by Art.8(2) which states that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is… for the prevention of disorder or crime.” Therefore, in the case of Norris v US (No.2) [2010], where the defendant claimed that his extradition would upset his family life and cause his wife depression, the UK Supreme Court held that the facts would have to be truly “exceptional” to justify a refusal.

Two years later and it would appear the Court found its exceptional circumstance once again. In F.-K. v Polish Judicial Authority [2012], the woman was not extradited due to the issues it would cause for her dependent children. Spencer points out the decision found its basis within a judicial balancing process. The “relatively small scale of the alleged frauds” was not substantial enough to tip the scale in favour of extradition, and against “the interests of the children”. Once again we find judges making vastly political decisions and statements. Is this the balancing scale involved in all judicial extradition hearings? If so, this would suggest stronger legislative guidance is necessary. It should not be forgotten that a “relatively small scale” crime is still a morally-blameworthy crime. If the defendant in question had not moved to the UK, consequences would of course been faced. This is a dangerous precedent for the Court to set.

Relationship between the Human Rights Act 1998, the ECHR, and the EU

For all intents and purposes, the Human Rights Act 1998 codifies the ECHR into UK law, thus binding all UK public bodies or bodies which exercise public functions. This naturally includes extradition hearings. As a result of the UK statute, those who believe their human rights have been infringed can now take their case directly to national courts, as opposed to the ECtHR in Strasbourg. Although this is of direct implication to the Extradition Act 2003, due to both its binding effect and the provision in s.3(1) of the Extradition Act 2003, it must not be forgotten that the European Arrest Warrant is an EU mechanism. The EU is not a member of the Council of Europe and is therefore not obligated to comply with the ECHR.

The EU Framework Decision, June 2002, does not expressly allow a Member State to execute European Arrest Warrants due to broader human rights issues. This issue was confronted in the case of Radu [2011]. Attorney-General Sharpston stated that the Framework Decision must be read by the member states in the light of the European Convention of Human Rights, and the EU Charter of Fundamental Rights. Members of the Council of Europe can themselves be liable for human rights violations when implementing EU law.Therefore, member states are permitted to exercise their discretion if they believe an extradition would violate the individual’s rights. Nevertheless, the CJEU in this case later avoided ruling on this point, thus displaying the “judicial caution” so often accompanying these legal arguments.

Interestingly, arrangements are currently underway for the EU’s accession to the ECHR.  This was required under Art.6(2) of the Lisbon Treaty, which stated that “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Once this has been achieved, EU institutions will be directly accountable before the ECtHR for violations of ECHR recognised rights, and all EU legislation will have to adhere to the Convention. It is quite possible this will lead to the European Arrest Warrant containing specific provisions concerning the ECHR. The power to refuse extradition will thus originate from legislation, rather than judicial power.

Conclusion

In the process of extradition, the UK Courts are exercising more and more judicial discretion in their refusal powers. This article has demonstrated the growing political power allowing UK judges to declare an extradition incompatible with the Human Rights Act 1998. With such powers becoming wider and wider, legislative reform may need to be considered in order to reign in judicial activism, before refusals are administered due to the requesting state itself. However justified this may seem the power to refuse should be preserved for specific individuals and their circumstances. A lack of both UK and EU regulation assisting domestic judges is apparent, with judges resorting to daring balancing exercises between the scale of the crime, the interests of the defendant, and the state in question. At the present time, we are indeed at danger of Arnell’s dreaded ‘floodgates’ opening once and for all.

Enjoy this piece and want to know more? Watch out for the second part of this article, to be published w/c 31st March 2014. Why not subscribe for free email updates and get a notification straight to your inbox?

Further Reading

J.R.Spencer, ‘Extradition, the European arrest warrant, and human rights’ (2013) CLJ 72(2) 250-253

P.Arnell, ‘Extradition and the right to a fair trial’ (2013) SLT 36 247-250

 

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Tagged: Extradition, Human Rights, International Law

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