Joint Committee On Human Rights Twentieth Report



Category 2: Other States

9. The normal procedure here would be that the Secretary of State, on receiving a request for extradition, would issue a certificate to the effect that the extradition request had been made in the approved way by a designated category 2 territory, and would send the certificate to an appropriate (district) judge. The court would then have power to issue a warrant for the arrest of the person named in the certificate if it appeared to the judge that the offence was an extradition offence, and there was evidence that would justify the issue of an arrest warrant for a person had the offence been committed within the judge's jurisdiction (clause 54). An 'extradition offence' for this purpose retains the 'double criminality' requirement (clause 112). If the person were arrested, there would be an initial hearing at which he would be remanded either in custody or on bail, and a date would then be set for an extradition hearing (clause 57(1)). If the hearing did not begin by that date, the person would be treated as having been discharged (clause 57(4)).

10. At the extradition hearing, the judge would have to decide first whether the documentation was in order, whether the person before him was the person whose extradition was sought, whether the offence was an extradition offence, and whether the person had been served with copies of any required documents. If the answer to any of these questions was in the negative, the person would have to be discharged (clause 60). If the answers were in the affirmative, the judge would have to consider whether any bars to extradition applied: double jeopardy, extraneous considerations (extradition being sought for an improper purpose or in a case where the person might be prejudiced by reason of race, religion, nationality, or political opinions), passage of time, a physical or mental condition making it unjust or oppressive to extradite the person, and a limited bar in cases of hostage-taking (clause 61). If no bar applied, and the person had not already been convicted of the offence, the judge would have to consider whether there was evidence which would constitute a case to answer if the trial were to take place within the judge's jurisdiction (clause 62).[10] Next, the judge would have to decide whether extradition would be compatible with the person's Convention rights (clause 65). If all these issues had been decided in favour of the territory requesting extradition, the judge would have to refer the case to the Secretary of State (subject to any appeal to the High Court and, with leave, the House of Lords against the judge's decision).

11. The Secretary of State would then have to consider whether he was prevented from ordering the person's extradition on the ground that the person would face the death penalty, or because of the principle known to international lawyers as 'specialty', referred to in the draft Bill as "speciality" (a lack of any arrangements between the United Kingdom and the requesting territory to ensure that the person would not be tried for an offence committed before being extradited, other than the one for which extradition is requested), or by reason of earlier extradition to the United Kingdom from another territory (clause 69). If not, the Secretary of State would have power to order extradition, subject to a right of appeal to the High Court and, with leave, the House of Lords on a point of law (clauses 77 and 78). Other venues of legal challenge to the decisions of the judge or the Secretary of State, such as judicial review and habeas corpus, would be unavailable in extradition cases (clause 92). This raises questions about the adequacy of due process protection, considered below.

12. Part 3 of the draft Bill is concerned with the making of requests to other states for people to be extradited to the United Kingdom. In our view, these provisions do not raise significant issues relating to human rights in the United Kingdom. Part 4 contains police powers in respect of people sought or detained under arrest warrants issued in connection with extradition. The powers are no greater than those which apply to people arrested for offences committed in the United Kingdom, and in our view raise no separate human rights issues. Part 5 contains miscellaneous provisions which do not seem to us to raise human rights issues separate from Parts 1 to 4. Accordingly, in this Report we do not consider matters arising from Parts 3 to 5 of the draft Bill except so far as they affect Parts 1 and 2.

The rights which may be affected

RIGHTS TO LIBERTY AND SECURITY OF THE PERSON

13. As noted in paragraph 8, above, when an extradition request comes from a category 1 territory (an EU Member State, Norway, Iceland or Gibraltar) the district judge would have no opportunity to consider the adequacy of the evidence forming the basis for the European arrest warrant. We consider that this might, in certain circumstances, engage the right to be free of arbitrary arrest and detention and the right to take proceedings whereby the lawfulness of the detention can be decided speedily, under ECHR Article 5(1) and (4).[11] However, where the arrest and detention are of a person against whom action is being taken with a view to extradition, the ECHR does not require that reasonable grounds for suspicion should be demonstrated: all that is required is that the arrest and detention be lawful and in accordance with a procedure prescribed by law (Article 5(1)(f)). In our view, the procedure under the draft Bill would be likely to be held to satisfy this predominantly formal requirement, and the provision for hearings before the district judge would be likely to be held to satisfy the right to take proceedings to test the lawfulness of the detention under Article 5(4). Since the Framework Decision requires authorities in the state which receives a request for extradition under a European arrest warrant to execute it on the basis of the principle of mutual recognition,[12] a court in the UK would have no means of testing the sufficiency of the evidence against the suspect, and so probably could not be held responsible under the ECHR for detaining or extraditing him or her in a case where there turned out to have been no sufficient grounds for issuing the warrant. As noted in paragraph 4 above, the decision to require extradition without the need for a prima facie case to be established to the satisfaction of the authorities in the receiving state stems from the Framework Decision of the Justice and Home Affairs Council of the EU, negotiated between representatives of the governments of Member States. Although there are diverse views about the desirability of that political decision, its merits are not within the remit of this Committee. As it stands, if an EU arrest warrant or a request for extradition were to be issued in a category 1 territory without reasonable grounds for suspicion, the requesting state rather than the UK would be potentially liable for any violation of Article 5.

14. A related point, in respect of extradition requests by both category 1 and category 2 territories, concerns the removal of the right to apply for judicial review or habeas corpus. Only an appeal under the draft Bill would be available to challenge decisions of the district judge or the Secretary of State.[13] Judicial review and habeas corpus are important safeguards for human rights, although ECHR Article 5 and the Human Rights Act 1998 now give even stronger and more effective protection.[14] Any interference with a person's ability to invoke their procedures calls for careful scrutiny of the constitutional and human rights implications. From the human rights perspective, the question is whether the alternative procedures offer protection which is at least as effective as that which could be provided by judicial review or habeas corpus. In this instance, we think that the statutory appeal contemplated by the draft Bill would be as effective. The court would be required to consider the compatibility of any decision by a district judge or the Secretary of State with the Convention rights of the person whose extradition was sought. If a credible argument for incompatibility with a Convention right were made, the onus would be on the party seeking to uphold the impugned decision to establish its compatibility. The court would have power to examine all questions relating to compatibility, including any issue of necessity or proportionality, on the basis of evidence advanced by the parties, and to make its own assessment (subject to any deference which might be due to the Secretary of State on matters of national security). If satisfied that a decision was incompatible with a Convention right, the court would be required to substitute its own decision for that of the original decision-maker, and (if appropriate) to order the discharge of the person whose extradition was being sought. The standard of review in habeas corpus or judicial review proceedings would, if anything, be less rigorous than that. The proposals of the draft Bill would substitute a duty to give effect to Convention rights for the protection previously offered by judicial review and habeas corpus. We therefore conclude that, although this is a significant constitutional change, the exclusion of judicial review and habeas corpus in these particular circumstances would not be likely to deprive people of effective remedies for threatened violations of their Convention rights.

DUE PROCESS RIGHTS

15. Extradition decisions do not decide the guilt or innocence of anybody. They are merely one stage in the process of bringing a suspect before the court which will ultimately determine a criminal charge against him or her. The extradition process itself is therefore not required to comply with the requirements of ECHR Article 6(1)[15] for a fair hearing within a reasonable time before an independent and impartial tribunal.[16] The draft Bill does provide for procedural protection. There would be a hearing before a District Judge who would have power to consider whether the conditions for extradition were met and whether any bar to extradition (including a possible violation of the suspect's Convention rights) applied, with an appeal to the Divisional Court and, potentially, a further appeal to the House of Lords on a point of law.

16. Although the extradition procedure itself need not satisfy Article 6 requirements, it should be noted that any undue delay in extraditing a person may lengthen the process of determining the charge. If it contributes to a long-drawn-out criminal process so that the process leading to the determination of the charge as a whole violates the right to a hearing within a reasonable time, it would give rise to a violation of Article 6(1). However, as one purpose of the draft Bill is to streamline the extradition procedure so as to reduce delays, its impact seems likely to be beneficial rather than the reverse.

17. In addition, in Soering v. United Kingdom[17] the European Court of Human Rights left open (obiter) the possibility that a State could be liable under ECHR Article 6 if it were to extradite a person to a country where he or she faced a 'flagrant denial of a fair trial' by the requesting state. The scope of this possibility has as yet not been settled in the Strasbourg jurisprudence. It would, however, be open to a person whose extradition was sought to raise the risk of such denial of a fair trial as a matter which might make extradition incompatible with his or her Convention rights, and so prevent extradition, whether to a category 1 territory or to a category 2 territory. In cases where extradition to a category 1 territory was sought under a European arrest warrant issued under the Framework Decision on the European Arrest Warrant, the court would be called upon to consider the compatibility of the argument with EU law, as well as the compatibility of EU law with ECHR Article 6. This could raise complex issues of law which we do not attempt to address in detail here. Nevertheless, we note that Article 1.3 of the Framework Decision provides that it "shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."[18] Sub-Committee E of the House of Lords Select Committee on the European Union recommended that the Framework Decision should explicitly include a provision allowing the court to refuse extradition where the suspect would not receive a fair trial within a reasonable time in the requesting state, or where the "judicial authority" (for example, a juge d'instruction) who issued the warrant lacked the degree of independence necessary to comply with ECHR Article 6(1). The Government disagreed at the time, arguing that the power to avert potential breaches of Article 6 was implicit in the draft.[19] In the context of the draft Bill, we consider that the provisions on Convention rights provide courts in this country with an adequate basis for refusing extradition where there were indeed such potential violations. In other fields of application of the draft Bill, we consider that there would be no significant danger of incompatibility.

OTHER CONVENTION RIGHTS

18. It is clear from the case-law of the European Court of Human Rights that the United Kingdom would be responsible under Article 3 of the ECHR[20] for extraditing a person to a territory in which he or she would be liable to suffer torture or inhuman or degrading treatment or punishment. It is equally clear that the United Kingdom, having now ratified Protocol No. 6 to the ECHR,[21] would be responsible under that Protocol for extraditing a person to a territory where he or she would be liable to face the death penalty. Furthermore, as noted above, in Soering v. United Kingdom[22] the European Court of Human Rights, reasoning by analogy, left open (obiter) the possibility that a State could be liable under ECHR Article 6 if it were to extradite a person to a country where he or she faced a 'flagrant denial of a fair trial' by the requesting state. It remains to be seen what other Convention rights, if any, may operate effectively as a bar to extradition in relation to particular states or territories. One can at least say that the treatment awaiting the person in the requesting territory would have to be considered by the court if there were any doubt about the matter.

19. Clauses 17 and 65 of the draft Bill would require the District Judge to consider the impact of extradition on all the suspect's Convention rights, and to order the suspect's discharge if there were to be a threat to them. This seems to us to provide adequate protection for Convention rights.

Political offences, and prosecution or prejudice on the grounds of race, religion, nationality or political opinion

20. Certain provisions in the 1989 Act are not reproduced in the draft Bill. Where this weakens protection for the individual's right to hold or express political opinions, this might lead to extradition violating rights under ECHR Article 10. In particular, section 6(1) of the 1989 Act provides—

A person shall not be returned under Part III of this Act, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority-

(a) that the offence of which the person is accused or was convicted is an offence of a political character;

(b) that it is an offence under military law which is not also an offence under the general criminal law;

(c) that the request for his return (though purporting to be made on account of an extradition crime) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or

(d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

21. It is noteworthy that the draft Bill would expressly maintain the exception in relation to offences under the military law of a requesting category 2 territory which do not constitute an offence under the general criminal law of the United Kingdom.[23] No such express provision is made in relation to category 1 territories, although the conduct constituting an extraditable offence for this category of territories under clause 47 of the draft Bill, which incorporates (inter alia) the list of conduct set out in article 2.2 of the European framework decision, does not appear to include conduct which would amount to an offence under military law but not under general criminal law. By contrast, there seems to be nothing in the draft Bill to protect people against extradition of an offence of a political character to either category 1 or category 2 territories. Clause 61 would provide bars to extradition to protect people against being extradited to category 2 territory for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions, or in circumstances where the person might be prejudiced at trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. This might be sufficiently wide to bar extradition to category 2 territories for political offences. However, there is no similar protection in relation to extradition to category 1 territories.

22. If an Order in Council were to be made under clause 165 of the draft Bill to repeal section 6 of the 1989 Act, it would, on the face of it, remove all these protections in respect of extradition to category 1 territories, and would remove express protection against extradition to category 2 territories to face prosecution for political offences.[24] As the draft Bill stands, such an Order would be subject only to annulment by resolution of either House of Parliament. It might be possible to argue that such extradition would be unlawful if it were also to be incompatible with Convention rights, as the draft Bill makes compatibility with those rights a necessary condition for extradition.[25] But in respect of the right to hold and express political opinions free from interference by a public authority under Article 10 of the ECHR,[26] the requesting territory could argue that the interference was justified under Article 10(2), for example as being a necessary and proportionate restriction to prevent crime or to protect the rights of others. There is a reluctance to allow discussion in extradition proceedings of the extent to which conduct falling within the scope of the European arrest warrant constitutes a political offence, but some of the conduct, including some terrorism and racism and xenophobia, is particularly likely to be political. While it may sometimes be legitimate to regard conduct of this kind as falling outside an exception for political offences, we doubt the wisdom of allowing the Government to deprive everyone who might be extradited of their protection, and to do it by way of an Order in Council amending primary legislation. No such change is required by the Framework Decision, as paragraph (12) of the Preamble to, and Article 1.3 of, the Decision make clear.[27] We consider that any such change would be a matter of considerable significance for human rights, particularly the right to hold and express political opinions. We reiterate our view that any amendment should be expressly contained on the face of the Bill, so that it can be properly debated.

Extradition, the death penalty, and assurances from requesting States about compliance with Convention rights

23. Clauses 12 and 70 would make provision for dealing with cases where a person could be, will be, or has been sentenced to death for the offence in respect of which extradition is sought. The proposed arrangements would be different depending on whether the request for extradition comes from a category 1 or a category 2 territory.

24. In relation to a category 1 (EU Member State, Norway, Iceland and Gibraltar) territory, clause 9(1)(c) wold require the District Judge who hears the application for extradition to decide whether the person's extradition is barred by reason of (inter alia) the death penalty. Clause 12 would provide for the death penalty to operate as a bar to extradition only if—

—  the person could be, will be or has been sentenced to death for the extradition offence in the category 1 territory, and

—  the judge has not received a written assurance which he or she considers adequate that a sentence of death will not be imposed, or, if imposed, will not be carried out.

25. Where the request for extradition came from a category 2 territory, the risk of the death penalty would not constitute a bar to extradition (see clause 61) to be considered by the judge. However, as noted above, the right not to suffer the death penalty in time of peace is a Convention right under Protocol No. 6 to the ECHR, and so would be considered by the judge under clause 65 of the draft Bill (see paragraph 9 above). In addition, if the judge decided that there was no bar to extradition and referred the case under clause 68 to the Secretary of State for him or her to decide whether to order extradition, the Secretary of State would be required by clause 70 not to order the person's extradition if—

—  the person could be, will be or has been sentenced to death for the extradition offence in the category 2 territory, and

—  the Secretary of State has not received a written assurance which he considers adequate that a sentence of death will not be imposed, or, if imposed, will not be carried out.

26. The procedure whereby the requesting territory provides written assurances was introduced after Soering v. United Kingdom.[28] We consider that it is likely to be regarded, at least for the foreseeable future, as meeting the state's obligations under Protocol No. 6. The duty of the state not to extradite people to countries where their human rights are under threat is a form of positive obligation: the state is required to protect people against a threat to their rights from people in another state, either by not extraditing the person to that territory or by demanding and receiving satisfactory assurances from the requesting state. Nonetheless, we draw attention to two matters concerning the way in which the draft Bill deals with such assurances.

27. First, the draft Bill makes express provision for such assurances to be accepted only in relation to the death penalty. However, the Soering case, on the basis of which the assurances are currently sought, was concerned with the right to be free of inhuman or degrading treatment under ECHR Article 3, not the right to be free of the death penalty under Protocol No. 6. As the United Kingdom had not at that stage ratified Protocol No. 6 on the death penalty, the applicant argued that long periods spent on death row awaiting execution (the common lot of people convicted of capital murder in the USA) amounted to inhuman or degrading treatment under Article 3. As the obligation of the state in respect of human rights abuses in other territories is a positive obligation, the state's duty is to take adequate steps to prevent people from being put in a position where their rights are at risk. In principle, this could apply to any Convention right. It is not easy to see why the draft Bill mentions it only in respect of the death penalty. The answer may be that the judge or Secretary of State would be permitted to accept such assurances in relation to other threats to Convention rights, but would not be under an obligation to refuse to extradite the person if no such assurances were received. But if this is intended to be the case, the Government should explain why it has not been included expressly on the face of the draft Bill. The state's obligations in this regard are not limited to the death penalty, whether under the ECHR or the Framework Decision. We draw attention to paragraph (13) of the Preamble to the Framework Directive, which states: "No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment." We recommend that the Government should give further consideration to this matter, with a view to including express provision on the face of the Bill for the Secretary of State to accept appropriate assurances from or on behalf of requesting territories in respect of safeguards for rights other than those relating to the death penalty, especially torture and other forms of inhuman or degrading treatment or punishment.

28. Secondly, it is not always easy to be sure whether the assurances should be regarded as adequate. The authority in the requesting territory which gives the assurances may not be in effective control of the matter in question, either because of division of powers within a federal or quasi-federal structure or because of political or social instability. For example, while only federal authorities in the USA are in a position to give assurances on the international plane, non-federal criminal law (including, in a good many states, capital murder) is a state matter, and state courts and governors have not always been willing to give effect to the wishes of federal officers in connection with the imposition of the death penalty in individual cases.[29] The Secretary of State would need to assess carefully the ability of the person or body giving an assurance to ensure that it will be honoured. We hope that the Government will give an indication of its thinking on this matter, and particularly the factors relevant to making that assessment, whether generally or in relation to particular cases or countries.

Summary of Conclusions

29. We conclude that the draft Bill gives rise to serious concerns on human rights grounds in the following respects—

—  the lack of clarity on the face of the draft Bill as to the relationship between its proposals and the provisions of the Extradition Act 1989, and the possibility of amending or repealing protections in that Act by Order in Council (paragraph 3);

—  the lack of express provision for mental or physical capacity to be a bar to extradition (paragraph 6);

—  the potential for removing the rule under which a person may not be extradited to a country to face trial or punishment for a political offence, and possibility of achieving that result by Order in Council subject only to the negative resolution procedure (paragraph 22);

—  the possible weaknesses in the arrangements which the draft Bill contemplates for accepting assurances from requesting States about compliance with Convention rights on their territory concerning both the range of rights in respect of which assurances could be sought and accepted (particularly the right to be free of torture and forms of inhuman or degrading treatment or punishment unrelated to the death penalty) and the means whereby the reliability of such assurances would be assessed (paragraphs 27-28).

We draw these matters to the Government's attention, and hope that they will be considered when a Bill is being prepared on the basis of the current consultation.


10   The matters to be considered where the person has already been convicted are set out in clauses 63 and 64, including cases where the person was convicted in his or her absence Back

11   ECHR Art. 5, so far as relevant, provides-"1. Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... (f) the lawful arrest or detention of...a person against whom action is being taken with a view to ... extradition ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." Back

12   Art. 1.2 of the Framework Directive Back

13   Clauses 29 and 92 Back

14   See, e.g., Chahal v. United Kingdom (1996) 23 EHRR 413, Eur. Ct. HR Back

15   ECHR Article 6(1) provides-"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 within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court n special circumstances where publicity would prejudice the interests of justice." Back

16   Farmakopoulos v. Greece, App. No. 11683/85 (1990), 64 DR 52, Eur. Commn. HR, admissibility decision; D. J. Harris, M. O'Boyle and C. Warbrick, The Law of the European Convention on Human Rights (London: Butterworths, 1995), p. 167 Back

17   Eur. Ct. HR, Series A, No. 113 (1989) Back

18   Art. 6 of the Treaty on European Union provides, so far as relevant: "1. The Union 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 Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law." Back

19   See Select Committee on the European Union, 16th Report of 2001-02, The European Arrest Warrant, HL Paper 85, p. 7, paras. 8-9 Back

20   ECHR Art. 3 provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Back

21   Art. 1 of Protocol No. 6 to the ECHR provides: "The death penalty shall be abolished. No one shall be condemned to such a penalty or executed." There is a limited exception in Art. 2 for acts committed in time of war or the imminent threat of war. Back

22   Eur. Ct. HR, Series A, No. 113 (1989) Back

23   Clause 112(8) Back

24   As noted in paragraph 3 above, we consider that any proposed amendment of protections offered in the 1989 Act should be set out on the face of the Bill Back

25   Clauses 17 and 65 Back

26   ECHR Art. 10 provides-"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television and cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Back

27   Paragraph (12), so far as relevant, states: "...Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media." For Art. 1.3 of the Framework Directive, see para. 17 above. Back

28   Eur. Ct. HR, Series A, No. 113 (1989) Back

29   See Breard v. Greene, 523 US 371 (1998), US Supreme Court, and LaGrand Case (FRG v. US) 2001 ICJ No. 104 (June 27), International Court of Justice, discussed by Harold Hongju Koh, "Paying 'Decent Respect' to World Opinion on the Death Penalty" 35(5) UC Davis Law Review 1085-1131 (2002), esp. at pp. 1111-1115 Back


 
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