Extradition is the process where one state seeks the return of a person from another state to face trial or serve a sentence. In this Report, we consider the human rights implications of UK extradition policy and in particular the Extradition Act 2003. This Report is intended to feed into the work of the Extradition Review launched by the Government to consider several aspects of the UK's extradition policy.
We fully support the process of extradition which is necessary to enable the return of those alleged to have committed a crime to another jurisdiction, particularly in the case of serious crimes such as terrorism. It is important, however, to balance the need to return alleged offenders to the country in which the crime took place with the need to respect the rights of those requested for extradition. In our Report we highlight a number of areas where we believe the protection of rights for these persons is significantly below the standard which a UK citizen should expect. It is important to strengthen the safeguards in the extradition process to ensure the protection of rights of persons involved in the process. We also recognise the importance of protecting the rights of UK citizens who are the victims of crime where the alleged offender has absconded abroad.
In this Report we make a number of conclusions which would require the renegotiation of the Framework Decision on the European Arrest Warrant. We welcome the Government's stance that renegotiation of the Framework Decision of the European Arrest Warrant is a possible option if deemed necessary.
The human rights safeguard in the Extradition Act 2003
The Extradition Act 2003 requires the judge in an extradition case to consider whether extradition would be compatible with the human rights of the person requested. Although we welcome recent developments that have seen courts apply a lower threshold to the test of whether a person's human rights would be at risk, in practice this safeguard does not offer adequate human rights protection. The threshold that has been set by case law for extradition to be refused on human rights grounds is very high. In order to make the bar more effective, material such as reports of the Committee on the Prevention of Torture should be regarded as relevant evidence of possible human rights abuses.
Safeguards in the Extradition Act 2003
We conclude in this Report that the mere presence of a "human rights bar" in the statutory framework is not enough to secure effective protection for human rights. For such protection to be practical and effective it is necessary to go beyond such generalised provisions and to spell out in the statutory framework specific and detailed safeguards for the rights in question.
To this end, we conclude that a "most appropriate forum" safeguard should be implemented. This would require the judge in an extradition case to consider whether it is in the interests of justice for the requested person to be tried in the requesting country and to refuse the extradition request if it is not. We conclude that a requirement for the requesting country to show a prima facie case or similarly robust evidential threshold should be introduced. The will reduce the likelihood that a person could be extradited on speculative charges or for an alleged offence which they could not have committed. In extradition cases where identity is disputed we recommend that the facility to request further information is used. The UK should aim to secure longer time limits where such a request has been made.
It is clear that for persons subject to extradition proceedings legal representation in both the requested and requesting country will make the human rights bar and other safeguards in the extradition process more effective in protecting rights. The present provision of legal representation does not meet these needs. The Government should examine the provision of legal representation in extradition proceedings in order to ensure that requested persons are properly represented both in the requesting and requested country and we welcome the Extradition Review Panel's consideration of this issue.
The European Arrest Warrant
We consider the European Arrest Warrant in detail in our Report and set out some serious problems with its operation. As there is a varying protection of rights across the EU, the human rights bar to extradition must be effective in protecting the rights of extradited persons. We also have serious concerns about the number of requests for extradition under the European Arrest Warrant issued for comparatively minor offences. The Government should work with the European Commission and other Member States to implement a proportionality principle into the Framework Decision to ensure that the human rights implications of extradition are not disproportionate to the alleged crime.
The system for removal of EAW requests should be improved to prevent repeat arrests under a European Arrest Warrant where a court elsewhere in the EU has already refused to execute an extradition request. The Government must also ensure that other Member States do not use the European Arrest Warrant for purposes of investigation, by ensuring that the facility for requesting further information is used where there are doubts as to the stage of proceedings reached in the requesting state.
We also consider a number of further safeguards that could improve the protection of rights offered by the Framework Decision.
Bilateral Extradition Treaties
In relation to bilateral treaties, we consider whether the Secretary of State should have an increased role in the surrender of persons to non-EU countries. We do not believe such changes are necessary and if changes are made the Government must ensure that persons subject to extradition requests do not become political pawns as a result. In relation to the UK-US extradition treaty, the Government should look to raise the level of proof required when extraditing a person to the US to the same level required when extraditing a person from the US to the UK, that is sufficient evidence to establish probable cause.
The European Investigation Order
Our inquiry also considered the European Investigation Order, which would enable a judicial authority or public prosecutor in one Member State to seek assistance from the competent authority of another. The Government should negotiate for the inclusion of a provision to allow the refusal of an EIO on human rights grounds and a provision for dual criminality. It is also crucial that there is an effective proportionality safeguard in the Directive, in order to ensure that the EIO operates effectively and that there are not numerous requests for information in minor cases.
We also consider a number of other issues in relation to extradition including information provided during the extradition process, the relationship between extradition and immigration proceedings and the use of extradition where a suspect could be tried in the UK.