What the Coronavirus Act 2020 means for extradition proceedings

The Coronavirus Act 2020 (“CA2020”) received Royal Assent on 25 March 2020, bringing into force a 358 page Act that creates not only new laws but amends existing legislation already on the statute books. The Extradition Act 2003 (“EA2003”) is no exception; Section 54(b) CA2020 expands the availability of live links in Extradition proceedings through Schedule 24. Part 2 of this schedule makes amendments to s206A EA 2003. The effect of the amendment is to permit extradition hearings to be conducted via a live link, subject to an interests of justice test. Whilst other hearings in extradition proceedings, such as remand hearings, are conducted over a live link, s206A(1)(a)(i) EA2003 had previously specifically excluded extradition hearings from the type of hearing at which the use of live links was permitted. Any expansion to include extradition hearings had previously been opposed by many practitioners.

These are unprecedented times for the criminal justice system. The need for the courts to continue to operate is essential, but not to the cost to the health of those who appear before them, whether that be court staff, lawyers, Judges, defendants, witnesses or members of the press.

Westminster Magistrates’ Court, the only court in England & Wales to hear extradition cases, continues to hear cases involving those arrested and produced before the court following an initial arrest. Many of those arrested and produced before the court for the first time will not have a lawyer and will benefit from the advice given by a duty solicitor, ordinarily present at the court. For the time being, whilst the requested person is produced in person to the court, the lawyer representing them has the ability to appear before the court via Skype for Business. Judges continue to appear before the court (if not self-isolating) and proceedings can commence and proceed.

As for extradition hearings where arguments are raised challenging extradition (and where evidence relating to those arguments is heard) it was anticipated they would be adjourned to an unknown date whilst the court grapples with balancing the interests of all involved in the proceedings to ensure compliance with the government’s ‘lockdown’ directive. The amendments made to the EA2003 will now enable the Court to continue to hear extradition hearings with the use of live links. Whilst proceeding in such a way would enable lawyers, court staff, judges and requested persons to progress a case from the comfort of their living room (or wherever they choose to conduct the video link from), thereby conforming with the government’s ‘lockdown’ direction, questions remain as to whether proceeding in this way will be in the interests of justice.

Looking at cases involving European Arrest Warrants (“EAWs”), the extradition procedure is designed to be a system of speedy surrender between Member States. The Council Framework Decision on the European Arrest Warrant (“Framework Decision”), which gave birth to EAWs, permits extradition to be exceptionally postponed temporarily for serious humanitarian reasons. The current outbreak of COVID-19 cases across Europe would surely qualify as a serious humanitarian reason. So a decision to adjourn extradition hearings at this time would be permitted. However, this would undoubtedly create chaos for the future listing of cases at Westminster Magistrates’ Court. Further, consider those who are either remanded in custody in the extradition proceedings or subject to strict bail conditions (stricter than the current government lockdown). They are likely to want their hearings to be conducted as soon as possible rather than face lengthy adjournments.

Clearly a balance needs to be struck between these competing positions. The amendments to the EA2003 go some way to strike that balance. The use of live links for conducting extradition hearings can only take place if ‘it is in the interests of justice’. No guidance has been provided as to what constitutes the interests of justice, and what factors a judge should consider in deciding whether to give a live link direction, so the usual considerations will likely apply.

Looking at the practicalities of conducting extradition proceedings over a live link, whilst the court and practitioners alike have started to embrace ‘Skype for Business’, concerns remain as to how an extradition hearing requiring interpreters, expert evidence, and multiple live witnesses giving evidence can be conducted smoothly without interfering with the ability of a requested person to receive a fair hearing in accordance with Article 6 ECHR. Many practitioners have experienced the difficulties of live witnesses giving evidence from other jurisdictions with connections being lost or interrupted by poor Wi-Fi connection, whether that be from the Court’s side or the individual who is connecting to the court. Such interruptions undoubtedly impact on the quality of the evidence given by witnesses and may have an impact on the outcome of case. The quality of evidence given is imperative in cases that require a requested person to give live evidence before a judge where determinations on credibility can only be based on what a judge sees and hears. It is unclear how a live link can proceed if the requested person does not have the technology, or indeed technological knowledge, to connect to the court.

Further, given proceedings are conducted in accordance with the open justice doctrine, the press and members of the public must also be permitted to be present in these live link hearings. How such individuals will connect to a live link hearing without interrupting proceedings remains to be seen.

Whilst extradition hearings that only involve legal submissions could feasibly be conducted over a live link, careful consideration needs to be given before extradition hearings conducted over a live link become the norm and then continue after the end of the current health crisis. For the time being, the amendments made by the CA2020 expire 2 years beginning from the day on which it was passed. For however long the use of live links in extradition hearings is utilised for, a consultation should follow to ensure that live links are not simply rolled out beyond the end of the COVID-19 crisis without all those that participate in such proceedings (including requested persons) being able to provide feedback.

These are exceptional times and practitioners (and all those that use the criminal justice system) will no doubt be grateful to the accommodation the court has provided to ensure they do not have to attend court in person at risk to their own health. Equally, however, practitioners must ensure that justice is done to safeguard their clients’ right to receive a fair hearing. If that means having to abandon and adjourn extradition hearings where the quality of the live link connection is far from sufficient, that seems a reasonable price to pay to ensure fair hearings take place given the importance of the outcome of extradition for requested persons and also victims of crime who await justice.