Changes to the Extradition Act 2003

Last month two significant changes to the Extradition Act 2003 were brought into force. The first change was the introduction of a “forum” clause. This allows a defendant to argue that he should not be extradited if it is in the interests of justice for him to be tried in the UK rather than the country requesting his extradition. The second change was the removal of the Secretary of State’s discretion to consider whether extradition is compatible with a defendant’s human rights. That has now been replaced by a judicial corollary which allows the High Court to consider the same question.

While nobody can predict quite how these changes will pan out in practice, it is possible to make some tentative guesses.

The forum clause

Campaigners, lawyers and politicians have long argued for a forum clause. It was argued that this would prevent the injustice of extraditing UK nationals thousands of miles from home when the conduct comprising the alleged offences occurred on UK soil. Will the new forum clause achieve this objective?

The reality is that the clause falls a long way short. First, the clause is inflexible. It contains a short and deliberately exhaustive list of factors which a judge may take into account in deciding whether the interests of justice test is satisfied (there is no residual “sweep up” factor allowing the judge to consider any additional matters he or she regards as relevant). Second, the clause can be ignored if a UK prosecutor has issued a certificate confirming that the defendant will not be prosecuted in the UK (the certificate can only be challenged on appeal).

Given these two restrictions, it is difficult to picture the defendant who might benefit from the clause. Not the defendant accused of a trivial offence. The CPS will be unwilling to prosecute him (and may issue a certificate to this effect) but the overseas prosecutor may be determined to press ahead. Nor the defendant with physical or mental health problems. The clause is too rigidly drafted to permit a judge to consider whether it would be in the interests of justice to prevent his extradition, even if there is strong evidence that his health would seriously deteriorate if extradited.

The problem is that the forum clause predefines what the interests of justice may be in every extradition case, and prevents the judge from deciding what the interests of justice may be in the circumstances of a particular case. This denudes the clause of the judicial discretion which should be at its heart. More fundamentally, what little discretion the judge may exercise can effectively be vetoed by a UK prosecutor. While this may render cross-border prosecutorial decision-making more accountable (by challenging the UK prosecutor’s decision on appeal), it is doubtful whether many overseas prosecutors will be willing to subordinate their nation’s interests beneath the UK’s.

Removal of the Secretary of State’s discretion

The ability of defendants, having reached the end of the judicial process, to make representations to the Secretary of State on human rights grounds has often been criticised. The critics allege that it needlessly drags out extradition proceedings, particularly as the Secretary of State’s decision can be judicially reviewed. Those in favour argue that it is a valuable safeguard, and may allow fresh and compelling evidence to come to light.

The new judicial appeal process allows defendants to appeal their extradition on human rights grounds at any point until they are physically extradited (there is no time limit). However, the High Court must be satisfied that the appeal is necessary to avoid real injustice, and the circumstances of the appeal are exceptional and made it appropriate to consider the appeal. The “exceptionality” test supposedly mirrors the requirement under the old regime to demonstrate to the Secretary of State that there had been a change of circumstances that would lead to a breach of the defendant’s human rights.

It is difficult to see how the new judicial appeal process entails a lesser degree of protection than the old regime. Indeed in one sense it may afford greater protection, in that the High Court will be more adept (and arguably more receptive) than the Secretary of State to undertaking an evidence-based inquiry into whether a defendant’s human rights will be engaged. The critics of the old regime will be pleased that the Court now has the power to weed out speculative last ditch attempts to prevent extradition. Handing this function to the judiciary also avoids any perception that the Secretary of State may be influenced by political considerations.

What will the changes mean in practice?

There is the risk that the forum clause will become an entirely theoretical bar to extradition. It would certainly not have assisted any of the high-profile defendants whose cases have led to its creation. It has the potential to become a meaningful safeguard for defendants, but only if UK prosecutors are willing to stand up to their foreign counterparts and have a genuine dialogue on jurisdiction which takes account of the defendant’s particular circumstances.

The future of the human rights appeal process seems marginally easier to predict. It should shorten extradition cases but ensure that genuinely meritorious claims are heard (albeit the court time saved may be immediately lost by the new arguments that will be generated about forum).

One thing seems reasonably certain: both amendments will likely apply only to the most exceptional cases. The vast majority of defendants will find it just as difficult to resist extradition.