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09 Feb 2016

Fast Track Extradition just got faster; but at what price?

The Chief Magistrate of England and Wales has proposed moving to a system of listing extradition cases within 21 days of the requested person’s arrest in an attempt to meet the UK’s international obligations. There are likely to be implications to this policy for defence practitioners, who are accustomed to having the luxury of several months in which to prepare their case, gather evidence and present arguments to challenge extradition requests in European Arrest Warrant (EAW) cases. A change to the listing arrangements at Westminster Magistrates Court is partly a result of the increasing number of extradition cases it has to deal with.

Since the Extradition Act 2003 came into force on 1 January 2004, the number of those arrested on EAWs has increased year-on-year. Over 1,500 arrests in England and Wales were made in EAW cases in 2014 and the receipt of EAWs is up by about a third since April 2015. This increase in requests was anticipated and is a direct result of the implementation in the UK of the Schengen Information System II (SIS II), an EU-wide governmental database that came into effect on 13 April 2015. It is anticipated that the number of requests will rise further, before plateauing; the rise is not envisaged as being a long-term trend as the UK slowly catches up with the number of requests already entered into the SIS II database. However, the implementation of SIS II is having an immediate effect on the operation of the only court in England and Wales that hears extradition cases at first instance – Westminster Magistrates’ Court.

The court has over the years gradually developed different ways to deal with the increasing numbers of those passing through its doors. The court has increased the number of courtrooms hearing extradition related matters from two to five. The number of ‘Appropriate Judges’ – designated by the Lord Chancellor to be able to preside over extradition matters – has increased sharply from a bare bones squad of 11 in 2012 to over 29 as at the start of this year.

Towards the end of 2015, the listing arrangements at the court changed in in an attempt to ‘cope more efficiently’ with the number of contested matters it had to hear. The previous system involved one contested extradition hearing case being listed in the morning and one in the afternoon. Each case would be listed for argument for one hour and the remaining two hours would be set-aside for the Appropriate Judge to write his or her judgment. This system did not work. Often, if cases did not proceed on the day or were no longer contested, an Appropriate Judge could find themselves with nothing to do for the rest of the morning or afternoon. This was clearly not economical when the court was overburdened with cases to hear.

The court has sought to remedy this inefficiency by increasing the number of contested matters being heard over one day in one courtroom to four. It is expected that Judges will either provide an ex tempore judgment if the issues raised are straightforward or will adjourn to another day for judgment to be handed down.

The Council Framework Decision that established the EAW states that a decision on the execution of an EAW should be taken within 60 days of arrest. This timeframe has rarely been met by the UK. However, the court, in order to attempt to comply with the UKs ‘international obligations’ will begin to attempt to hear contested extradition cases involving EAW requests within 21 days, the timeframe set out in section 8(4) Extradition Act 2003. However, it may come at a cost for defence practitioners who will have to adapt to the new listing policy.

The Chief Magistrate, in an ‘Explanatory Note on Directions’ that was placed in the advocates room at Westminster Magistrates’ Court at the beginning of this year has set out what he believes will be the ‘practical implications’ of the courts new listing policy. There are 12 in total. The implications will have an effect on the way cases are prepared and presented. They include:

  • Parties needing to prepare in a ‘less comfortable time frame’. The message is that the dedicated extradition lawyers ‘do their best’;
  • Only one hour will be allowed for the hearing. If further time is required, written submissions need to set out why further time is necessary;
  • All defence arguments should be in writing and served in advance of the hearing, leaving a ‘short time’ for oral submissions;
  • Expert evidence is not normally helpful in EAW cases and where it is adduced, the Criminal Procedure Rules should be complied with;
  • Hearing bundles should not normally exceed 50 pages. If bundles are to be greater than 50 pages, an explanation must be provided.
  • Directions require evidence and skeleton arguments to be served in advance electronically and in hardcopy. Failure to comply with directions is likely to mean that the argument cannot be developed;
  • Where the requested person fails to attend the extradition hearing, unless an acceptable explanation is provided, it will generally be in the interests of justice for the matter to proceed in their absence.

There is a concern amongst practitioners that the above implications could result in cases not being properly litigated. This in turn may result in extradition orders being made in circumstances that would not be justified had the defence been afforded reasonable time in which to gather evidence and prepare. Although the EAW system was designed to be a system of ‘surrender’ between member states and was intended to remove the delays that were inherent in the system that preceded the EAW, it cannot be at the expense of justice. There is no longer an automatic right to appeal and an application for leave to appeal will only be granted if the grounds are ‘reasonably arguable’. Although not a high threshold, there are strict rules on the introduction of ‘fresh evidence’ that was not presented before the appropriate judge at the extradition hearing. If there is an increase in the number of requested persons applying for permission to appeal after a fast tracked extradition decision, this could mean the listing burden is passed onto the Administrative Court, a burden that would not be welcomed.

If the above change in listing arrangements does not work, the court will have to quickly come up with a different solution to deal with the increasing numbers of extradition cases it has to hear, albeit in the short term. One suggestion could be to regionalise the extradition courts so that cases are not just only heard at Westminster Magistrates’ Court but also in courts in Manchester, Birmingham, Cardiff and Newcastle. This will, as a necessity, require appropriate judges to be re-allocated or more District Judges to be designated by the Lord Chancellor. It will also require legal advisors and local lawyers to be trained in extradition law, an area of law that is not currently part of the Duty Solicitor Training programme. At present there are a number of lawyers in London who specialise in extradition law and the court at Westminster relies heavily upon them. The Sir Scott Baker review of the UKs extradition arrangements suggested that decentralisation of extradition cases should be kept under review; particularly once SIS II becomes operational. However, decentralisation is likely to be too costly an alternative in a time of cost savings at the Ministry of Justice.

Another suggestion to alleviate the listing congestion without requiring extradition hearings to be fast tracked could be to take another look at how Westminster Magistrates’ Court makes use of its courtrooms. Given there are a plethora of designated Appropriate Judges, the court could consider moving extradition work into other courtrooms that currently hear crime and licencing matters, even if only for one day a week. There are 10 courtrooms with, five currently utilised for extradition cases. One courtroom hears initial hearings and conducts video-link remand hearings. Another courtroom is dedicated to hearing applications, leaving three courtrooms to hear extradition cases. Assuming there are four cases heard a day in each of the courtrooms, across five working days, 20 hearings can be completed. If for one day a week crime work is moved to one or more of the other London courts, it would mean five extra courtrooms could be used for conducting extradition hearings, increasing the number of contested matters heard per week by 100 per cent.

The Chief Magistrate has invited extradition lawyers to email him with suggestions to provide for a ‘good working system’ in dealing with the increasing number of EAW cases that pass through Westminster Magistrates’ Court. Extradition lawyers should not pass up on this opportunity to engage with the extradition judges and are encouraged to email their ideas to the Chief Magistrate.

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