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24 Feb 2013

Concurrent Jurisdiction and Forum

Recent high profile cases that involved extradition requests for UK citizens such as ‘The Nat West Three’, Gary Mckinnon, Richard O’Dwyer, Christopher Tappin and Babar Ahmed have ignited the argument that extradition arrangements with the US are imbalanced. Many have also advocated that most, if not all of the above, could have been tried in the UK rather than sent to the US to face trial.

Opponents to the US/UK treaty state that it is unbalanced and despite numerous requests having been made over the years for the extradition of UK citizens whose crimes have said to have taken place in the UK, not one US citizen has had there extradition requested for crimes allegedly committed on US soil.

It is imperative that any decision on questions arising from concurrent jurisdiction should be, and should be seen to be, fair and objective.

The Home Secretary disagreed with the Government led review of the UKs extradition arrangements that a ‘forum bar’ to extradition was not required. The Home Secretary announced in October 2012 that she would seek to introduce a forum bar into extradition proceedings. She stated that ‘where prosecution is possible in both the UK and in another state, the courts will be able to bar prosecution oversees if they believe it is in the interests to do so

A forum bar already exists in the Extradition Act; albeit that it is not yet in force. S.19B of the Extradition Act deals with Forum in part 1 cases and s.83A with Part 2 cases. It states:

(1)A person’s extradition to a category 1/Category 2 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that—

(a )a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and

(b) in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.

(2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.

The Home Secretary has stated that the she is unlikely to bring into force s.19B and s.83A in its current format given that she stated any forum bar must be designed so as to ‘minimise delays’.

The interim CPS guidelines appear to be at odds with the Home Secretary’s view that the courts should be deciding where a prosecution should take place by way of the forum bar

The interim guidelines lack consideration of defence issues when determining the jurisdiction over a matter. There is no scope for the consideration of representations and submissions from the accused as to what is the correct jurisdiction for proceedings to commence.

For example, it may be very important to take into account views and representations of the defence before deciding on which country will take the lead on a prosecution. There may be circumstances whereby a defence witness would not be willing to travel to the other jurisdiction for fear of prosecution themselves thereby denying the defendant the right to call witnesses on his behalf. It is only once the CPS is in possession of all the facts can they make an informed decision.

Finally, US States Attorney’s are elected and therefore they can be very aggressive in their stance in order to please the voting public. High profile prosecutions are very popular and can portray an image of being ‘tough on crime’. No such conflict arises with the prosecution in this jurisdiction. Has a UK national been tried in the UK once a US State’s Attorney has had an interest in a case? Very often the US prosecutors take over resulting in an extradition request whereby UK authorities provide ‘evidence’ to assist the US in their prosecution. If the system is to work, UK prosecutors must stand up to US prosecutors and the decision-making on jurisdiction should become more transparent.

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