Amendments to the Extradition Act 2003: new opportunities (and new pitfalls) for those defending extradition requests

The Extradition Act 2003 (the Act) has had another facelift. It has reached the point where the Act currently on the statute books barely resembles the one that was enacted 11 years ago.

It does not assist practitioners working in the minefield of extradition law that the amendments have been brought into force by legislation, the names of which would give the reader no indication that its content refers to extradition law. The Crime and Courts Act 2013 brought the forum bar into force and recent amendments have been introduced courtesy of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA). It is the latter piece of legislation that has introduced by far the most wide-ranging amendments to the Act. This article will explore some of those amendments to assist practitioners in keeping abreast of the ever evolving world of extradition.

The amendments considered are:

1. Extradition barred if no prosecution decision in requesting territory

2. Persons not convicted: human rights and proportionality

3. Temporary transfer

4. Judge informed after the extradition hearing that the requested person is charged in the UK with an offence or serving a sentence of imprisonment

5. Appeals

6. Asylum

7. Consent to extradition

All of the above amendments (and more) will be covered in the second edition of Grange & Niblock on Extradition Law: a practitioner’s guide that will be published by LAG in July 2015.

1. s.12A – Extradition barred if no prosecution decision in requesting territory

Section 156 ASBCPA introduced into the Act a new bar to extradition. S12A bars extradition if there is no “prosecution decision” in the requesting state. It only applies to extradition requests made by EU member states.

The explanatory note to s156 states that the bar was introduced to ensure that “a case is sufficiently advanced in the issuing State (that is, there is a clear intention to bring the person to trial) before extradition can occur, so that people do not spend potentially long periods in pre-trial detention following their extradition, whilst the issuing State continues to investigate the offence”. This was deemed necessary to prevent a repeat of the case of Andrew Symeou, who spent over 10 months in pre-trial detention in Greece following his extradition and further time on bail with the condition he could not leave Greece whilst awaiting trial (at which he was acquitted).

The new bar consists of two parts. First, the judge must have reasonable grounds for believing that a) the competent authorities in the requesting state have not made a decision to charge or have not made a decision to try and b) the requested person’s absence from the requesting state is not the sole reason for that failure.

In determining the above questions, the judge must begin by considering the content of the EAW. If it is clear from the EAW that a decision to charge and/or a decision to try have been taken, then that should be the end of the matter. Only if the EAW is ambiguous should the court refer to extrinsic material.

If satisfied that there is no decision to charge and/or try and the requested person’s absence from the requesting state is not the sole reason for the absence of a decision, then the court will consider the second stage of the bar. Under s12A(1)(b) the prosecution must prove to the criminal standard that a decision to charge and a decision to try have been made or that the person’s absence from the requesting state is the sole reason why no such decisions have been made. The judicial authority will be asked to provide a clear statement addressing the following questions:

1. Has a decision been taken in this case a) to charge the requested person and b) to try him?

2. Is the sole reason for the lack of each of the decisions the fact that the requested person is absent from the requesting state?

Points for practitioners

The lead case on s12A is Kandola & others v Generalstaatwaltschaft Frankfurt, Germany & others [2015] EWHC 619 (Admin) in which the Divisional Court provided the following guidance:

1. The burden is on the requested person to raise a challenge under s12A that a decision to charge and/or a decision to try have not been made and that the sole reason for such decisions not being taken is not the absence of the requested person from the requesting state.

2. “Reasonable grounds for believing” involves less than proof on the balance of probabilities.

3. Only if there is a lack of clarity in the EAW will the judge be entitled to look at extraneous evidence.

4. Elaborate expert evidence should be avoided. In assessing the first stage of the bar, it would not be appropriate or necessary for enquiries to be made of the judicial authority.

Practitioners should be aware that in Kandola & others, it was conceded by the representative for the Italian judicial authority that so far as extraditions to Italy were concerned, “the introduction of the section 12A bar will “torpedo” 80 to 85% of all requests for extradition from the UK through EAWs.” The reason for this is the way that Italian criminal procedure is operated. Other EU criminal justice systems that are modelled on a system that has an “investigating judge” or conducts “questioning for the purpose of ascertaining charge” may run into similar difficulties, and so this may well become a fertile area of challenge for defence practitioners.

2. S21A – Persons not convicted: human rights and proportionality

Section 157 ASBCPA introduced a ‘proportionality bar’ into the Act. It only applies to extradition requests from an EU member state in relation to persons who are accused (rather than convicted) of an offence. S157 amends both s2 of the Act as well as introducing a new s21A.

New role of the NCA

The National Crime Agency (NCA) now has discretion not to certify an EAW if it would be clear to them that a judge proceeding under s21A would be required to order the person’s discharge on the basis that extradition would be disproportionate. It means that the NCA will play a more active role than simply certifying an EAW when received. In helping the NCA determine whether a judge is likely to hold extradition to be disproportionate they are entitled to consider guidance provided for by the Lord Chief Justice. This guidance was published in the Criminal Practice Direction Amendment No 2 and states that a judge would ordinarily find extradition to be disproportionate for the following type of offences:

The NCA should ordinarily not certify an EAW that seeks extradition on an accusation warrant for the above offences unless exceptional circumstances are present. The exceptional circumstances are defined in rule 17A.4 of the Criminal Practice Direction Amendment No. 2 and are:

a) Vulnerable victim

b) Crime committed against someone because of their disability, gender-identity, race, religion or belief, or sexual orientation

c) Significant premeditation

d) Multiple counts

e) Extradition also sought for another offence

f) Previous offending history

The proportionality bar

S21A(2) states that:

In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks appropriate to do so; but the judge must not take any other matters into account.

The specified matters that the judge can consider as part of the proportionality argument are contained within s21A(3):

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

b) The likely penalty that would be imposed if the requested person 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 the requested person

The lead case on proportionality is Miraszewski & Others v District Court in Torun, Poland & Others [2014] EWHC 4261 (Admin) and practitioners are advised to read the judgment in full.

Points for practitioners

The specified matters outlined above are not listed in order of importance and the appropriate judge will need to specifically address each of the subsections and should also give reasons for the weight he or she attaches to each factor.

If the NCA properly apply the guidance provided by the LCJ, it should lead to many EAWs not being certified. Those EAWs that fall through the net can still be discharged under the proportionality bar.

Although the LCJ has provided guidance as to the offences for which an appropriate judge ought ordinarily to find extradition to be disproportionate, that does not mean that the judge is obliged to find extradition is proportionate for offences falling outside the guidelines.   Therefore, where the alleged conduct is relatively trivial but falls outside the LCJ’s guidelines, defence lawyers will retain the opportunity to contest extradition by relying on the proportionality bar.

3. S21B – Temporary Transfer

S159 ASBCPA introduces a new s21B into the Act. It transposes Articles 18 and 19 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States into domestic legislation.

The introduction of s21B means that, at the request of the judicial authority or requested person, temporary transfer to the requesting state can take place or arrangements can be made for discussions with investigators/prosecutors from the requesting territory.

S21B only applies to extradition requests from another EU member state where the person sought is accused (and not convicted) of an offence.

S21B can be utilised at any point before or during the extradition hearing. If a request is made, either by the judicial authority or requested person, then the appropriate judge must adjourn the proceedings for no more than 7 days if he thinks it is necessary to do so to enable the judicial authority or requested person an opportunity to consider consenting to the request being made.

If consent is given, then the appropriate judge must make whatever orders or directions are necessary to give effect to the request for temporary surrender or arrangements for discussions with the investigator or prosecutor.

It is hoped that the introduction of s21B will lead to the EAW in some instances being withdrawn after the requesting state are satisfied that the requested person did not actually commit the offence or will result in the requested person spending less time in pre-trial detention as the investigation phase can be concluded whilst the requested person is still in the UK.

Points for practitioners

This section is likely to be utilised by those who believe that the matter can be resolved by speaking to the investigator/prosecutor. However, because it does not apply to conviction cases, it is not going to assist those who seek to compromise the EAW by trying to get an activated sentence of imprisonment re-suspended.

Furthermore, if a requested person is challenging extradition under s12A because no decision to try and/or charge has been taken and their absence from the requesting state is not the sole reason for a decision not being made, then s21B could allow the judicial authority to seek to interview the requested person. A refusal to consent to this could then result in the bar under s12A failing because their absence from the requesting state would then be the sole reason for a decision to try and/or charge not being taken.

4. ss36B/118 – Judge informed after the extradition hearing that the requested person is charged with an offence or serving a sentence of imprisonment

If the requested person commits an offence for which he is charged after the extradition hearing but before removal, the court must now (if it is so informed) order that extradition must not be carried out until the charge is disposed of, the charge is withdrawn, proceedings are discontinued or an order is made for the charge to lie on file. This applies to all extradition requests, and not just those emanating from other EU member states.

For EU extradition requests, the application is made under s36A (as introduced by s161 ASBCPA) to the appropriate judge if the requested person did not appeal the extradition order. If the requested person appealed the decision and it has yet to be determined, s36A(4) states that reference to the appropriate judge is a reference to the court hearing the appeal and such an application if it arises should be made to that court. The equivalent provisions relating to non-EU extradition requests are found in s118A.

The Act also deals with those requested persons who are sentenced to imprisonment before removal. In those circumstances, the appropriate judge (or court hearing the appeal if the extradition order has been appealed) may order that the extradition order is not carried out until the requested person has been released from prison.

Points for practitioners

Requested persons should not think that they can commit offences in order to delay an extradition order. In order to discourage such behaviour, the requested person risks having their bail revoked if they commit further offences before an extradition order is carried out and such an application to revoke bail can be made by the CPS when the appropriate judge is informed of the charge. At the time the extradition order is made, the court may reconsider bail if the person has committed offences in the UK and the court is concerned about the commission of further offences.

5. Appeals

By far the greatest change brought about by the ASBCPA is the introduction of a leave to appeal requirement into the Act. S160 came into force on 15 April 2015, and any application to appeal on or after that date must be in accordance with the new rules that state that appeals can only be brought with the permission of the High Court.

The new appeals procedure is also governed by Part 17 of the Criminal Procedure Rules and the accompanying Criminal Practice Direction.

Test applied for the permission stage

An application for permission to appeal will be determined by a single judge of the High Court on the papers. There may be occasions where permission is dealt with at an oral hearing. The test applied to the permission stage is whether the grounds of appeal are ‘reasonably arguable’.

Renewing an application for permission

If permission to appeal is refused at an oral hearing then there is no right to renew the application. If the decision is made on the papers then the appellant may renew the application by serving a renewal notice no later than five business days after service of the court’s decision on permission.

A renewal hearing will take place before a single judge of the High Court (other than by the one who made the decision to refuse permission) or a Divisional Court.

How detailed do the grounds of appeal have to be?

In short, very. Permission to appeal may very well be determined on the content of the Appellant’s Notice (EXN161) and the grounds of appeal. The EXN161 provides guidance as to the content of the grounds of appeal, as does Part 17.20 of the Criminal Procedure Rules.

The grounds of appeal must:

• Specify the date of arrest
• Specify the date of the decision that is being appealed
• Specify whether the appellant is in custody and if so where the appellant is detained, their prison number, date of birth and the date the appellant was remanded into custody
• Specify the issues raised in the court below
• Provide an explanation if the appellant is raising an issue not raised at the extradition hearing or seeking to adduce evidence which was not available at the extradition hearing
• Identify each ground of appeal on which the appellant relies, numbering them consecutively and concisely outlining each argument in support
• Where the appeal is that the court ought to have decided differently a question of fact or law at the extradition hearing, the grounds must:
  • • Identify that question
    • Explain what decision the magistrates’ court should have made, and why
    • Explain why the magistrates’ court would have been required not to make the order under appeal, if that question had been decided differently.
• If the grounds are that there is an issue which was not raised at the extradition hearing or there is now evidence available that was not available before the appropriate judge the grounds must:
  • • Identify that issue or evidence
    • Explain why the issue was not raised or why the evidence was not available at the extradition hearing
    • Explain why that issue or evidence would have resulted in the magistrates’ court deciding a question differently at the extradition hearing
    • Explain why, if the court had decided that question differently, the court would have been required not to make the order it made.
• Summarise the relevant facts
• Identify any relevant authorities
• Identify any other document or information that the appellant thinks the court will need to decide permission to appeal and the appeal, if permission is granted.

Can the appellant’s notice and/or the grounds of appeal be amended?

Yes. An amended notice of appeal/grounds of appeal can be served on the High Court and respondents by no later than 10 business days after service of the original appeal notice. After that period, the application cannot be amended without the leave of the court.

Do the same strict timeframes apply for lodging the application for permission to appeal?

The amendments to the Act allow for an out of time application for permission to appeal to be made. However, practitioners should be aware that the burden is on the requested person to establish on the balance of probabilities that they did everything reasonably possible to ensure that notice was given as soon as it could be given. Reasons must be provided when an application for permission to appeal is lodged out of time and it is likely to be the exception rather than the norm that an out of time application succeeds.

Funding

Legal aid is available for all in extradition proceedings in the High Court. There is no means test. The date of the representation order will be the date the fully completed legal aid form (CRM 14) was received at the Administrative Court Office.

Respondents’ notices

Rule 12.21 Criminal Procedure Rules imposes an obligation upon a respondent to file a respondent’s notice (EXN162) if they wish to make representations to the High Court on permission or if the court directs. A respondent’s notice must be served no more than 5 business days after receipt of either:

• The appeal notice;
• An appellant’s notice renewing an application for permission to appeal; or
• A direction by the High Court to serve a respondent’s notice.

Points for practitioners

Whereas previously, the grounds of appeal submitted in support of an appeal application may have been no longer than a page, it is clear that they now need to be a fuller document, perhaps similar in content to a skeleton argument. Practitioners will need to submit a full bundle when lodging their application for permission to appeal to ensure that the judge determining leave has all the information to make the decision. The papers will not be sent to the judge until the period of 10 business days following service has taken place. The court will not chase practitioners for missing documents.

It may also be that the Practice Direction is amended in due course as at present there is a lacuna in the process whereby the appellant can serve his application for permission to appeal, the respondent serves their notice within 5 business days of service and then the appellant drastically amends or adds to his application for permission before the expiry of 10 business days following service, effectively having the last word.

With regards to lodging out of time, practitioners should not expect a sympathetic court to such applications, particularly if the reason for the delay lays at the feet of the legal advisers (see Szegfu v Hungary [2015] EWHC 1764 (Admin)).

6. Asylum

In relation to asylum claims made by the requested person, s162 ASBCPA amends ss39 and 121 of the Act. The amendments remove the condition that the asylum claim had to have been made between the date the extradition request is certified (whether by the NCA or Secretary of State) and the removal date, in order for it to prevent extradition until such a time that the claim is finally determined. Now, the asylum claim can have been made at any time (before or after the initiation of the extradition proceedings) for it to bite and prevent their removal until the asylum claim has been finally determined.

S93 Act is also amended and now gives the Secretary of State the power to discharge the requested person if he has been granted: (i) refugee status, or (ii) leave on the ground that it would be a breach of Article 2 or 3 of the European Convention on Human Rights to remove him or her to the requesting territory. This mirrors the powers that the Secretary of State has when she receives an extradition request and must decide whether to issue a certificate pursuant to s70 of the Act.

Points for practitioners

The amendment to the Secretary of State’s powers ensures that requested persons can be discharged where they are granted refugee status or leave after the extradition certificate has been issued.

7. Consent to extradition

S163 ASBCPA amends the consent procedure resulting in ss45(3) and 128(5) being repealed in the Act. Previously, consenting to extradition resulted in the waiver of specialty protection. Very few people consented to extradition even if they chose not to contest it.

The amendments to the Act mean that a person now consenting to extradition does not waive their specialty protection and will allow those who wish to be returned more quickly to the requesting state to do so without losing an important protection. The explanatory note to the amendments states that ‘it is anticipated that this will increase the number of people who consent to extradition at their initial hearing, reducing the costs associated with onward legal challenge.’

Points for practitioners

Requested persons who consent to extradition should still be advised that they can be dealt with for other matters (other than those which are subject to the extradition request) by the requesting state if they make a request for consent, which will then be dealt with by an appropriate judge (see s54 of the Act).