The costs of extradition II

Last year I wrote a post on ‘The costs of extradition’ after I noticed a memo appear in the advocates room at Westminster Magistrates’ Court that warned defence advocates that from April 2013 consideration would routinely be given to the award of costs under s.60/133 Extradition Act 2003 when extradition is ordered.

To date, I have not had any cases where the Judge has awarded costs against the requested person although I have heard of such examples. It appears some Judges seek to impose costs whereas others do not.

However, a new document appeared at the beginning of January 2014. Just as lawyers  were mounting an unprecedented day of action on 6 January 2014 against Chris Grayling’s proposed £220 million cut in the legal aid budget,  the CPS were formulating their policy on claiming back costs in extradition cases.

The two page document entitled ‘CPS Policy on Claiming Costs in Extradition Cases’ states that with effect from 1 January 2014 the CPS will make an application for costs in the ‘vast majority‘ of proceedings.

According to the Head of the Extradition Unit at the CPS the principle that guides the policy is that ‘public funds should not bear the costs of criminal actions if the defendant has the means to pay or to pay a contribution.’

Extradition can only be sought for two purposes. Either for the person to stand trial if accused of an offence or to serve a sentence of imprisonment if convicted. Therefore the CPS ‘principle’ assumes that all those facing extradition proceedings are doing so because of their criminal actions. It seems to forget that even in extradition proceedings, certainly in an accusation case (and in some conviction in absentia cases where the person did not receive notification of their trial) the person has not been proven guilty in a court of law.

The CPS document sets out how the costs are to be formulated. It states that the costs should be limited to the ‘expenses reasonably incurred in conduction the extradition’ proceedings and can include:

• Costs incurred through the preparation of the case by the CPS (Staff costs)
• Counsel fees and disbursements; and
• Witness expenses

In calculating staff costs the following hourly rates apply:

• Lawyers – £69
• Paralegals – £51
• Support Staff – £44

Legal Aid rates for defence lawyers is approximately £49 per hour. That therefore means that CPS lawyers and paralegals will be claiming more than the requested persons own lawyer gets remunerated.

The document goes on to point out that ‘it is impractical to maintain detailed time and costs records and in any event the requested person is generally only asked to make a contribution to costs’. The proposed contribution in ‘standard cases’ (no definition of what is a standard case) will be:

• £100 where extradition is ordered at the first hearing
• £100 per interim and review hearing
• £165 for contested extradition hearing.

Where a case is particularly complex or the costs outweigh the standard amount, more may be requested.

In these difficult times of austerity requested persons will now be burdened with a costs order for the pleasure of being extradited. This is in addition to paying costs in the requesting state as rumours are circulating that Poland seeks to recover the costs of the flight back to Poland from requesting persons when they are extradited.

The costs are not to be paid to the CPS or the requesting states. Instead costs are to be page payable to ‘general Home Office’ funds.

However, it appears that the High Court has urged caution on the Magistrates’ Court regarding the imposition of costs. Mr Justice Collins in the case of Mencwel v Regional Court in Poznan, Poland [2013] EWHC 1513 (Admin)) stated:

“The District Judge took a robust view of the circumstances put before him which were said to be a bar to extradition. He said it was a typical case of non-existent grounds and very flimsy arguments to resist it. He made a point that the court as from April this year will consider ordering costs against requested persons who pointlessly resist extradition in this way. I note that. It is a jurisdiction which no doubt the court has but it is one which on the face of it should be exercised with the greatest possible care.”

It remains to be seen whether such caution will be exercised in the making of orders for costs. With the uncertainty surrounding legal aid it may be that requested persons in future find themselves not only having to pay for their defence lawyers but also for the lawyers that seek their extradition on behalf of requesting states.