‘Leave’ it out

At present there is an unfettered right under the Extradition Act 2003 for the requested person and the requesting state to appeal an adverse decision against them to the High Court.

The Baker review of extradition arrangements in the UK recommended in its report in October 2011 that a leave requirement should be introduced to the Extradition Act 2003 in order to ensure appeals without merit are ‘eliminated at the earliest opportunity’. This, it hoped, would allow appeals with merit to be heard and disposed of more quickly.

Section 26 of the Extradition Act 2003 at present states:

26 Appeal against extradition order

(1)If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order.

(2)But subsection (1) does not apply if the order is made under section 46 or 48.

(3)An appeal under this section may be brought on a question of law or fact.

(4)Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

In the recent Queen’s Speech, reference was made to the Anti-Social Behaviour, Crime and Policing Bill. Tucked away in its 142 Clauses are proposed amendments to the Extradition Act. Clause 127 deals with appeals and proposes introducing a leave requirement for extradition appeals brought by the requested person.

If the amendments proposed in Clause 27 of the Bill are enacted, Section 26 of the Extradition Act 2003 will read as follows:

26 Appeal against extradition order

(1)If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order.

(2)But subsection (1) does not apply if the order is made under section 46 or 48.

(3)An appeal under this section –

        (a) may be brought on a question of law or fact, but

        (b) lies only with the leave of the High Court.

(4)Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

(5)But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given. 

There is no such amendment proposed for introducing a leave requirement for appeals brought by judicial authorities or requesting states following the decision of a judge or the Secretary of State for the Home Department to refuse an extradition request.

What are the consequences of such a change to the appeal process?

At present the Administrative Court is over burdened with appeals brought by appellant’s in person. I have yet to see a judgment of an extradition appeal where a litigant in person has succeeded in overturning an extradition order made against them. It must be assumed that such appeals are unmeritorious and have been brought purely as a way to delay the extradition. Under the Framework Decision, all time spent in custody awaiting extradition counts towards the sentence imposed in the requesting state. Some (but by no means all) are simply using the appeal process to serve their sentence in the UK.

But what of those that slip through the net?

At present, those that do not have their own solicitor (and only a few actually do) are represented by the duty solicitor at Westminster Magistrates’ Court. Contrary to a misconception about duty solicitors in general, solicitors have to pass a further exam to become a duty solicitor and also have to present a portfolio of cases to demonstrate the necessary competence to gain the duty solicitor badge. However, the Criminal Law Accreditation Scheme (CLAS) does not contain any assessment of extradition law and there is no assessment for a solicitor to have to pass before they can be added to the extradition duty rota. At present there are over 400 individual solicitors signed up to the extradition rota at Westminster Magistrates’ Court. The majority of individual solicitors have never had conduct of an extradition case before and yet these are the solicitors that are entrusted to provide appropriate advice and assistance to those arrested on extradition warrants. The Extradition Act 2003 is complex and the case law it has generated is vast.

In a case this year before the Administrative Court, Mr Justice Collins was critical of the duty solicitor who did not raise an issue on behalf of the requested person at Westminster Magistrates’ Court. In that case the extradition order was made at the first hearing and despite  Mr Juszczak telling the duty solicitor that he was the essential career for his 17 years old step-daughter, no Article 8 ECHR argument was put forward to resist extradition. No adjournment was requested to obtain the necessary evidence of the step-daughter’s condition. There was however, mention of the condition in a subsequent bail application, therefore establishing that the information was in the possession of the duty solicitor. The step-daughters condition was summarised by Mr Justice Collins at paragraph 5 of his judgment as follow:

[she has] exceptionally complex medical needs and a complex neuro-disability. She has severe four limb cerebral palsy, relies upon a wheelchair pushed by a carer and is completely dependent on carers for all activities of daily living, including dressing, washing, feeding, toileting and so on. Furthermore, she has had other physical disabilities, in that her right hip was apparently excised in 2008 and she has a flail right leg which requires additional attention, together with marked deformity of her lower limbs. She clearly has, as the doctor indicates, very exceptional medical needs.

An appeal was brought by Mr Juszczak and he then retained new solicitors and counsel who were able to produce the necessary evidence of the step-daughter’s medical condition evidence of the impact the extradition of Mr Juszczak would have on the step-daughter. Under the new proposal, the leave of the Court would first have to be sought before an appeal could be brought. Where no evidence has been obtained at first instance and where the appellant may not be represented, such grounds for leave may be sparse. In times of austerity and with PCT hanging over all criminal legal aid practitioners, legal aid may not be granted until leave has been given by the Court to appeal. If that occurs, appellant’s may still not have the benefit of expert extradition legal advice to formulate proper grounds of appeal to persuade the court to grant leave to appeal. In the case of  Mr Juszczak it was not until later in the appeal process that the necessary evidence was obtained that led to Mr Justice Collins allowing his appeal. Mr Juszczak’s case may have been refused leave under the new proposals that would have created a real injustice.

So although the present appeal system in extradition cases creates some delay, isn’t that better than letting an appellant like Mr Juszczak be extradited?

If a leave requirement is to be introduced (and it looks likely that it will), legal aid should be granted straight away so that full grounds can be submitted on behalf of the appellant if there are tenable issues and, to allow for such issues to be explored, the 7 day period for submitting a notice of appeal should be extended to 14 days from the date an extradition order is made

Extradition is not a game. People’s lives are at stake and as far as I am aware there has been no consultation with extradition defence practitioners as to the consequences of introducing a leave requirement. As set out above, the combination of having inexperienced duty solicitors advising requested persons, cuts to legal aid and the introduction of a leave requirement could result in people being extradited in situations where they shouldn’t. That is not acceptable.