The Human Rights Implications of UK Extradition Policy - Human Rights Joint Committee Contents

Conclusions and recommendations

1 Introduction

1.  We welcome the Government's stance on possible renegotiation of the Framework Decision of the European Arrest Warrant if necessary. (Paragraph 27)

2 Human rights and extradition

2.  We have heard evidence that Sections 21 and 87 of the Extradition Act 2003 do not, in practice, offer adequate human rights protection for those subject to proceedings and that the courts have set their interpretation of the threshold too high. We welcome recent developments that have seen UK courts apply an apparently lower threshold, as demonstrated in the case of Targosinski v Judicial Authority of Poland. The defendant should have a realistic opportunity to rebut the presumption that their human rights will be respected if extradited to a country which is a signatory to the ECHR or with which the UK has good relations. (Paragraph 71)

3.  Several witnesses have suggested that defence lawyers should be able to call upon a wider range of evidence, including reports of the Committee on the Prevention of Torture, to illustrate human rights concerns in the requesting country. The human rights bar would be more effective if material such as reports of the Committee on the Prevention of Torture were regarded as relevant evidence. We find the concerns about the effectiveness of the bar persuasive. (Paragraph 72)

4.  The effectiveness of human rights protection would be improved if judges in extradition cases took a more active role in the extradition process, through the implementation of safeguards and the use of the human rights bar to ensure that the role of a judge in an extradition case is more than only "rubber stamping" extradition requests. (Paragraph 78)

5.  We urge the Government and the Extradition Review Panel, when considering changes to the extradition process, to take into account the rights of victims of crime, both in the UK and other countries, as well as the rights of those subject to extradition. The process of extradition is important in ensuring that criminals are brought to justice and there is a need to ensure balance between this and protecting rights of those subject to extradition. (Paragraph 85)

3 Improving the protection of Human Rights in the Extradition Act 2003

6.  A forum safeguard provision would allow a judge to refuse extradition where the alleged offence took place wholly or largely in the UK. Parliament has already agreed this principle and the Government should bring forward the relevant provisions of the Police and Criminal Justice Act 2006, in order for Parliament to agree to commence them. It is difficult to understand why this has not yet happened. (Paragraph 99)

7.  Government Ministers currently issue an explanatory memorandum to the European Union scrutiny committees of both Houses on each forthcoming EU proposal. However, the legislation transposing these proposals into UK law is not considered by the scrutiny committees. When introducing transposing legislation, the Government should be under an obligation to inform Parliament: how the relevant EU proposal is being transposed into domestic law; whether the transposing legislation would make any additional provisions or omit to transpose any provisions of the EU legislation; any areas where the Government have exercised discretion; and whether any difficulties have arisen during the transposition of the proposal which the Government did not explain to the European scrutiny committees that considered the original proposal. (Paragraph 100)

8.  It is important to respect the rights of victims, who will often be residing in the country in which the offence was committed, when deciding the location of a trial. The forum provisions would allow a judge discretion to determine the appropriate location of trial on a case-by-case basis, taking into account the rights of both the requested person and of any victims of crime, as well as any other circumstances, including access to a legal representative and evidence. There should be a general presumption that trials take place in the state where the offence was committed, in the interests of access to that process by the victims of that offence. On this basis, we wholeheartedly support the introduction of a forum safeguard. (Paragraph 101)

9.  We recommend that the case-law on double jeopardy be codified so that extradition under an European Arrest Warrant is barred where the Crown Prosecution Service has decided not to prosecute for the same facts. This would strengthen an eventual forum clause. Such amendment could be done by adding a third paragraph to section 12 of the Extradition Act 2003. (Paragraph 104)

10.  The Government should look at how such a safeguard could be implemented in practice including, if necessary, through renegotiation of the relevant extradition treaties. (Paragraph 105)

11.  We agree with Liberty that adding a requirement for the requesting country to show a prima facie case—or a similarly robust evidential threshold in a civil law state— before a person is extradited will improve the protection of human rights of those subject to extradition. In particular, this will require investigatory authorities to assess the available evidence before issuing a request for extradition, particularly within the EU, thus reducing the likelihood that a person could be extradited on speculative charges or for an alleged offence which they could not have committed. (Paragraph 112)

12.  We recommend that, in cases where identity is disputed or where there are doubts as to the stage of proceedings reached in the requesting state, this facility to request further information be used. We recommend that the UK devote negotiating efforts to securing longer time limits for cases where an information request has been made. Where identity is disputed, as in the case of Mr Arapi, the requesting state should be asked to provide a copy of the national identity card or passport or other photo ID. Where there are doubts as to the proper use of the European Arrest Warrant, the requesting state should be asked to provide information on the indictment process under their national law, the stage of proceedings reached, the date set for the first hearing and an assurance that the individual will not be interrogated on arrival. (Paragraph 115)

13.  We have heard compelling evidence on the importance of dual representation for a requested person in order to ensure that their rights are safeguarded. We do not believe that the present provision of legal representation meets these needs. We recognise, however, the current climate of reduced funding for legal aid. We urge the Government to examine the provision of legal representation in extradition proceedings in order to ensure that people subject to extradition are properly represented both in the requesting and requested country. We welcome the Extradition Review Panel's consideration of this issue. Legal representation in both countries for persons requested for extradition would make the human rights bar and other safeguards in the extradition process more effective in protecting rights. (Paragraph 126)

14.  When our predecessor Committee considered the draft Extradition Bill in the 2001-02 Session, it was satisfied that the requirement for a judge to consider the impact of extradition on a suspect's Convention rights would provide adequate protection for those rights. Our inquiry, and specifically this and the previous Chapter, has considered whether that judgment has been borne out in practice and has revealed that the mere presence of such 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 detail in the statutory framework some specific and detailed safeguards of the rights in question. (Paragraph 127)

4 The European Arrest Warrant

15.  We recognise the importance of extradition and the benefits the European Arrest Warrant has brought in terms of a quicker, more streamlined process for surrender within the European Union. (Paragraph 130)

16.  We agree with this evidence and recommend that the Government should take the lead in seeking to ensure that there is equal protection of rights, in practice as well as in law, across the EU. (Paragraph 137)

17.  We note the increasing number of European Arrest Warrant requests received by the UK. We have serious concerns about the disproportionate impact of extradition where it is requested for a relatively minor offence. We urge the Government to work with the European Commission and other Member States to implement a proportionality principle in the Framework Decision, both for operational reasons and to ensure that the human rights implications of extradition are not disproportionate to the alleged crime. (Paragraph 158)

18.  Such a proportionality principle should be contained within the Framework Decision of the European Arrest Warrant and operate in a similar way to the tests applied by the Police and the CPS before issuing a request. We are not convinced that informal guidelines, bilateral discussions with the authorities of other Member States or a public interest test operated by the authorities in the requested country would be operationally practical or successful in the long-term. (Paragraph 159)

19.  The Government and the Extradition Review may wish to review the list of 32 offences for which double criminality is not considered, with a view to whether certain conduct should be excluded from the definitions of these offences. We recognise, however, that the Framework Decision expressly excludes double criminality as a reason for denying the execution of an EAW. We recommend that this principle be dealt with as part of the renegotiation of the Framework Decision. (Paragraph 165)

20.  We urge the Government to ensure that other Member States do not use the European Arrest Warrant for purposes of investigation, if necessary by amendment to the Framework Decision. We recommend that, where there are doubts as to the stage of proceedings reached in the requesting state, the facility for further information provided by the Framework Decision and the Extradition Act 2003 should be used. The requesting state should be asked to provide information on the indictment process under their national law, the stage of proceedings reached, the date set for the first hearing and an assurance that the individual will not be interrogated on arrival. (Paragraph 168)

21.  It may be that, if applied, the Directive on the application of the principle of mutual recognition to the decisions on supervision could ensure that a person extradited to another EU state could await trial in the UK, reducing problems in relation to long times spent in prison before trial. (Paragraph 169)

22.   The system for removal of EAW requests should be improved or formalised to prevent repeat arrests where a court elsewhere in the EU has already refused to execute an extradition request. The Government should examine whether adopting Article 111 of the Schengen Information System would help avoid this problem. The Government should also negotiate membership of the SIRENE system which can be used to enter information on the execution of EAWs. (Paragraph 174)

23.  The Extradition Review Panel or the Government should consider whether the current time-limits provide adequate opportunity for the defence to postpone a hearing if necessary as long as the court considers the reasons for the request for adjournment on its merits on a case-by-case basis. The Government should also investigate the possibility of replacing time limits with another, less strict, formulation such as "as soon as reasonably practical", although we note that this would require renegotiation of the Framework Decision. (Paragraph 180)

24.  We note that Article 4(6) of the Framework Decision allows the requested state to deny execution of the European Arrest Warrant issued for the purposes of serving a sentence where the requested state undertakes that the sentence will be served in that state. We recommend that this safeguard be transposed into the Extradition Act 2003 as this would significantly reduce the impact of such execution European Arrest Warrants on Article 8 rights. (Paragraph 181)

25.  We recommend that the safeguard in Article 5 (3) of the Framework Decision be transposed into the Extradition Act 2003. (Paragraph 182)

26.  We recommend that the Extradition Review Panel carefully assess the applicability of the EU Charter on Fundamental Rights to the European Arrest Warrant as applied by the UK. (Paragraph 185)

5 The UK's bilateral extradition treaties

27.  The Government should increase the proof required for the extradition of British citizens to the US so as to require sufficient evidence to establish probable cause, as is required for the extradition of a US citizen to the UK. This will require renegotiation of the UK-US Extradition Treaty. (Paragraph 192)

28.  We recommend that the Government urgently renegotiate this article of the US-UK extradition treaty to exclude the possibility that extradition is requested and granted in cases such as that of Mr Bermingham and Mr Ahmed, where the UK police and prosecution authorities have already made a decision not to charge or prosecute an individual on the same evidence adduced by the US authorities to request extradition. (Paragraph 196)

29.  We note the arguments for increasing the role of the Secretary of State in the surrender of persons to countries under Part 2 of the Extradition Act. We are not convinced that changes should be made and, in any event, any additional powers would need to be carefully circumscribed to avoid those subject to extradition requests becoming "political pawns". (Paragraph 202)

6 European Investigation Order

30.  We fully endorse the points made about the European Investigation Order by the House of Lords EU Committee. We urge the Government to ensure the inclusion of a provision to allow the refusal of an European Investigation Order on human rights grounds and a provision for dual criminality. We also agree that the European Investigation Order should be available for the use of defence lawyers, given the difficulties that defence lawyers face in providing evidence to support their arguments. (Paragraph 212)

31.  The lessons from the European Arrest Warrant must be learned when negotiating the form of the European Investigation Order. The Government must ensure that there is an effective proportionality safeguard in the Directive, in order to ensure that the European Investigation Order operates effectively and that there are not numerous requests for information in minor cases. (Paragraph 217)

7 Other issues

32.  The Government should standardise the information received by those subject to extradition to ensure they receive sufficient, accurate information on the extradition process and their rights in the country to which they will be extradited. (Paragraph 221)

33.  It would be helpful if the Government were to provide details of their procedures in relation to extradition of persons subject to immigration control and the precautions they take to ensure that these persons' rights are not infringed through either revoking their refugee status while they are outside the UK, or through their refoulement to another country. (Paragraph 224)

34.  Extradition should not be the only method for dealing with suspects of crimes against humanity: we urge the Crown Prosecution Service to consider carefully whether such suspects can be tried in the United Kingdom before extradition proceedings are initiated. (Paragraph 228)

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Prepared 22 June 2011