Corker Binning lawyer analyses UK extradition review

In an article in New Law Journal, “Out of our hands”, NLJ 6 January 2012. p20, Andrew Smith, solicitor, Corker Binning, examines the implications of Sir Scott Baker’s review of UK extradition law.

Out of our hands?

Realpolitik, not injustice, will determine UK extradition policy, says Andrew Smith

The human rights organisation Liberty is “baffled” by it. Gary McKinnon’s mother calls it “pathetic”. The home secretary, however, says she is “very grateful” for it.

Sir Scott Baker’s review of the UK’s extradition laws A review of the United Kingdom’s Extradition Arrangements, released to the public in the autumn after a year of work and at a reported cost of £250,000, has certainly provoked a range of reactions. At 488 pages in length, the one accusation nobody could make is that Sir Scott’s review, co-authored with David Perry QC and Anand Doobay, lacks thoroughness.

The review’s principal conclusions are as follows:

• The US/UK extradition treaty, which Nick Clegg once decried as “lop-sided”, “does not operate in an unbalanced manner” because “there is no significant difference between the probable cause test [the US evidential test applied by the UK courts] and the reasonable suspicion test [the UK evidential test applied by the US courts]”.
• The European Arrest Warrant (EAW), much criticised for allowing defendants to be extradited without any consideration by the UK’s courts of the underlying evidence, “has improved the scheme of surrender between member states of the European Union and that broadly speaking it operates satisfactorily”.
• The proposed “forum” defence to extradition, whereby defendants would not be extradited if they could be prosecuted in the country where the bulk of the conduct comprising the offences occurred, should not be implemented because it would “create delay and has the potential to generate satellite litigation”.
• The prima facie evidential test, which would oblige countries to support their extradition requests with evidence of the alleged crimes, should not be reintroduced for all countries. This is because such a proposal would require an overhaul of the EAW Framework Decision and, where an extradition request is made by a non-EU state not currently obliged to demonstrate a prima facie case, the UK’s courts are able to subject those requests to an appropriate degree of scrutiny.
• The secretary of state’s discretion in relation to human rights issues on non-EU extradition requests should be removed because “they are more appropriately the concern of the judiciary”.
• It will be apparent from even this brief summary that the review could broadly be described as prosecution-friendly. It operates from the assumption that extradition is fundamentally desirable because it serves an important public interest in bringing accused or convicted persons to justice. While this assumption is one which all extradition practitioners would support, the reality is that some extradition requests give rise to issues which merit a complex and lengthy determination. Moreover, any extradition case, regardless of its complexity, will be a disorienting experience for a defendant who risks being uprooted from family, friends and work to a foreign country and often detained for many months awaiting trial.

Given these legitimate concerns, does the review strike the right balance between the competing interests of the defendant, the requesting state, and the victims of the alleged crime? Or is it, as the critics assert, simply a dry piece of legal analysis which lacks humanity and which implicitly argues that our extradition laws should further international judicial co-operation at whatever cost?

The US/UK extradition treaty

Much of the opprobrium which has greeted the review has focused on its conclusions about the UK/US extradition treaty. This is unsurprising but hardly warranted. The US is a convenient enemy and in Gary McKinnon there is a sympathetic cause célèbre.

It is commonly said that extradition between the UK and the US is a “one-way street”, meaning that it is far easier to be extradited from the UK to the US than vice versa. The evidence cited at page 472 of the review suggests otherwise. Out of 112 US extradition requests received in the UK between 2004 and 2011, 73 defendants were extradited and seven cases discharged. Over the same period, 49 UK extradition requests were received in the US but 38 defendants were extradited and no cases discharged. Put another way, the average defendant stands a statistically higher chance of being extradited from the US to the UK than vice versa. This no doubt reflects the fact that extradition proceedings in the UK are more elaborate—and afford defendants the opportunity to argue a greater range of defence points—than their US equivalent.

In this and other respects, the review is a welcome rebuttal of some of the criticisms made about the UK’s extradition laws. In other respects, however, the review identifies a problem but proposes a solution which leaves open the risk of serious injustices arising in the future.

Council of Europe Convention on Extradition & the prima facie test

One such problem stems from the Council of Europe Convention on Extradition (CECE). CECE signatories, which include Russia, Azerbaijan, Ukraine, and Moldova, do not need to produce evidence in their extradition requests which would satisfy a prima facie case. While the review is right that reintroducing the prima facie requirement for EU countries and for trusted judicial partners outside the EU (such as Australia and Canada) would be wholly impractical and create unnecessary delay, it is alarming that a country such as Russia, whose human rights record and criminal justice system is the subject of persistent and severe criticism, does not need to produce a single scrap of evidence of criminality when issuing an extradition request to the UK.

The authors of the review are correct to say that the UK’s courts are able to scrutinise requests from these CECE countries, and frequently discharge them on the basis of human rights concerns, but that is not the end of the story. If a country is required to advance prima facie evidence, an analysis of that evidence which indicates that it has no proper foundation can support a wider defence submission on the abusive nature of the foreign proceedings and the ulterior motives driving them. Put another way, reintroducing the prima facie test for a limited range of CECE countries outside the EU would positively assist the UK’s courts in scrutinising requests and determining whether they constitute an abuse of process. However, the review points rightly to significant political obstacles in adopting such a regressive approach.

Therefore, instead of advocating a new approach to the CECE, the review recommends that the Crown Prosecution Service (CPS) (which represents the requesting state in extradition proceedings) should issue guidance about its obligation to disclose “evidence about which it knows and which destroys or severely undermines the evidence upon which the requesting state relies”. This guidance would be welcome. However, publishing guidance does not address the underlying problem, which is that CECE states are under no obligation to adduce evidence, so the CPS would not be in a position to “destroy or severely undermine” it.

This leaves open the risk that a defendant could be deprived of potentially valuable evidential material which could be used to defend the case. There is scope for future extradition injustices when new countries with poor human rights records join the Council of Europe; the UK’s courts will need to exercise vigilance when dealing with their extradition requests.

The forum clauses

The review rejected the introduction of the forum clause into the Extradition Act 2003 because there was no evidence of injustice being caused by the current arrangements. It is true that there are only a very small number of cases where the forum provisions would have assisted the defendant and none in practice where it would be likely to have succeeded. The introduction of a forum bar would certainly lead to delay and the satellite litigation referred to by the review. In future, assuming the government is not tempted to introduce such provisions, defendants will have to get better at negotiating with foreign prosecutors. In some cases, it will be possible to arrive at split jurisdiction deals where a sentence can be served in the home state after a conviction in both countries (as happened in one US/UK cartel case).

What now for extradition?

Every member of the current coalition cabinet who was an opposition MP in 2006 voted in favour of amending the UK/US extradition treaty and introducing the proposed forum clauses. Sir Scott’s review will allow them quietly to renege on their principles now that they are in government. The authors of the review clearly understand (although they do not say it explicitly) that advocating systemic change to the UK’s extradition laws is a politically charged decision with far-reaching diplomatic consequences for the UK’s extradition partners, however much some aspects of their criminal justice systems are open to legitimate criticism. This is why the review adopts a holistic approach, favouring enhanced political understanding and prosecutorial guidance to remedy shortcomings but stopping short of proposing wholesale legislative change.

The likely impact of Sir Scott’s review is not difficult to discern: it will allow the coalition government to continue the course of inaction followed by its Labour predecessor. The many critics of the UK’s extradition laws will be infuriated. Some of their criticisms are justifiable, but Sir Scott’s review is no whitewash. Far from it. It is a carefully argued analysis which strikes the right balance on most issues and reflects the political reality in which the UK’s extradition arrangements are forged.

The way forward is to ensure that the UK’s extradition laws are properly balanced with defence rights to mutual recognition of bail decisions, adequate guarantees of fair trial rights in practice (including in EU countries), swifter prisoner transfer to serve sentences in home states and protection from inhuman conditions of detention. These objectives are sure to be less of a political priority but the government must press forward with them if extradition is to be seen as working fairly for all.

Andrew Smith, solicitor, Corker Binning