On 5 February 2013, the Home Secretary Theresa May tabled government amendments to the Crime and Courts Bill, introducing the changes to extradition law she announced last October when blocking Gary McKinnon’s extradition to the United States – the introduction of a “forum bar” and the transfer of the Home Secretary’s discretion to block extradition on the grounds of human rights to the courts. The Public Bill Committee considered the amendments on 7 February 2013 and will report to the House of Commons next week. The result of the amendment will be that the political decision making will be completely removed from the final stages of an extradition case and it may result in a flood of arguments on forum, although the forum hurdle will in practice be almost impossibly high.
This is in fact the second time that a forum bar has been inserted into legislation in recent years; the 2006 amendment to the Extradition Act 2003 was never brought into force. The introduction of an amended forum bar into the Crime and Courts Bill will allow the courts to decide whether the United Kingdom is the most appropriate place for legal proceedings to be heard and determined. The amendment to the Bill outlines the matters that the judge must take into account when deciding if a bar to extradition on the grounds of forum is in the interests of justice. The judge must decide that a substantial measure of that person’s activity material to the commission of the offence was performed in the UK and, having had regard to certain specified matters, including the place where the loss or harm occurred or was intended to occur, the interests of any victims, the belief of a prosecutor that the United Kingdom is not an appropriate jurisdiction, the availability of evidence, the desirability and practicality of all prosecutions taking place in one jurisdiction (having particular regard to the location of witnesses, co-defendants and other suspects), and the person’s connections to the United Kingdom, conclude that the extradition should not take place.
It has always been open to prosecutors to decide that a person facing extradition abroad should in fact be prosecuted in the United Kingdom and try to reach agreement with their foreign counterparts. This will remain the same. The amendment does not give the judge the power to order that a person’s prosecution must take place in the United Kingdom. Theresa May has announced that the introduction of a forum bar will make the process more open and transparent and provide greater safeguards for individuals.
The Scott Baker review of extradition law examined the forum bar which was proposed in 2006 and advised against its introduction, arguing that such a bar would only create delay and result in satellite litigation. The amended forum bar tabled this week attempts to address this criticism by listing the factors that a judge must consider, and by the introduction of a convoluted system of certification by prosecutors about whether a defendant should be prosecuted here. While a factual investigation will still be necessary into whether a substantial measure of the conduct alleged to constitute the extradition offence took place in the United Kingdom, and this will necessarily result in delay, it will allow a person facing extradition a new opportunity in some cases to influence the decision to extradite. However, given that the Scott Baker review also found that the introduction of a forum bar would have made no difference in any of the recent high profile cases that have brought this issue into the public eye, it will be interesting to see how the judiciary deal with this bar in practice and whether the CPS and other prosecutors are galvanised to prosecute more cases, particularly where a substantial part of the relevant conduct takes place in the United Kingdom.
The other major amendment tabled yesterday involves the removal of the Home Secretary’s discretion to block extradition on human rights grounds after the conclusion of the court proceedings. This is precisely the discretion that Theresa May exercised when halting Gary McKinnon’s extradition in October. Transferring this discretion to the courts will relieve the Home Secretary of taking a decision which is inevitably perceived, as in the McKinnon case, as having been influenced by political considerations.
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