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26 Jun 2018

Edward Grange comments on two extradition cases in Thomson Reuters’ Criminal Law Week

Partner Edward Grange commented on the cases of Ioskevich v Russia [2018] EWHC 696 and R. (United States) v Nirvana [2018] EWHC 706 in Criminal Law Week.

In Ioskevich v Russia, the case concerns the presumption that where a requesting state is a member of the Council of Europe it will comply with Article 3 of the European Convention on Human Rights, prohibiting inhuman and degrading treatment, is most readily rebutted where the Strasbourg court has issued a pilot judgment against the requesting state in question. At the heart of this case was the issue of manipulation by the Russian authorities of the evidence of a jointly instructed expert (who visited the pre-trial and postconviction detention facilities where the appellant would be held on extradition) that the conditions of detention were compliant with Article 3.

Edward Grange commented:

“Despite what many consider to be a continuing deterioration in the relations between the UK and Russia, the most recent decision from the High Court confirms that, as far as extradition is concerned, Russia is a trusted partner.

“The hearing of the appeal occurred four days after the Skirpals were found poisoned in Salisbury, and judgment was handed down 19 days later. By then, it was clear that the Skirpals’ poisoning was believed to be a state-sanctioned execution. That did not deter the High Court from having little hesitation in accepting the most recent assurances to be provided from the Russian Federation in seeking the extradition of one of its citizens. Assurances are now routinely provided to paper over the cracks of the Russian Federation’s dismal human rights record with regards to its conditions of detention. Indeed, as stated by Sir Brian Leveson P in Shankaran v India [2014] EWHC 957 (Admin), unreported, 1 April 2014, DC, assurances are seen as an important part of extradition law.

“The effectiveness (or not) of assurances can only be properly tested through effective monitoring. Practitioners are told time and time again that a requesting state such as Russia will have a strong incentive to adhere to assurances. If they are found not to be enforcing assurances then, as the High Court noted here, the future door to extradition will be shut hard. That will give little comfort to Mr Ioskevich, or indeed Mr Dzgoev who was extradited to Russia in October 2017 under the guise of assurances given that he would be held only in detention facilities in the Irkurtsk region of Russia (see Dzgoev v Prosecutor General’s Office of the Russian Federation, CLW/17/19/12, [2017] EWHC 735 (Admin), unreported, April 6, 2017, DC). It transpired that, on being extradited to Russia, he was initially taken to a remand prison in Moscow, before being transported by train to the Irkurtsk region in what can only be described as inhuman and degrading conditions, with one leg of the lengthy journey exceeding 40 hours in duration, sometimes with as little space as 36cm x 36cm.

“It should be noted that in neither Dzgoev nor Ioskevich was it argued that the request for extradition was based on political motivation. It will be interesting to see what approach to assurances is taken by the UK courts when political motivation is alleged to be present.

“In any event, a close eye will be kept on what happens to Mr Ioskevich once he lands in the Russian Federation. Any breach of the assurances provided are likely to be the final curtain on extradition relations between the UK and Russia.”

In R. (United States) v Nirvana, the case concerned the US government’s request for the extradition of the respondent on a number of counts concerning the trafficking of marijuana (and a related count of money laundering) was rightly refused where the essence of the conduct alleged was dealing in cannabis seeds.

The dual criminality rule contained in section 137(3)(b) of the Extradition Act 2003 (CLW/03/43/16) and explained in Norris v Government of the United States of America, CLW/08/11/14, [2008] UKHL 16, [2008] 1 A.C. 920, HL, was not satisfied.

Edward Grange commented:

“This judgment reminds practitioners that, regardless of who the requesting state is, it must be demonstrated to the criminal standard that the conduct alleged in the extradition request satisfies the doctrine of dual criminality. If this cannot be established, then discharge must follow. Dual criminality is a vital cornerstone of extradition law.”

These comments were originally published in Thomson Reuters’ Criminal Law Week Issue 24, 2018.