Recently, a notice appeared in the advocates room at Westminster Magistrates’ Court on the international notice board. It warned advocates that from April 2013 consideration will routinely be given to the award of costs under s.60/133 Extradition Act 2003 when extradition is ordered.
Advocates wil be familiar with the application for costs in the criminal courts at Westminster. The standard amount asked for on a plea of guilty is £85. The amount will be greater for a contested trial.
It is understood that costs orders will be considered in all cases where the requested person has not consented to his or her extradition and have subsequently had their extradition ordered. But how will it be enforced if the person is to be extradited? A person who has had their extradition ordered is likely to have other things to worry about than an order for costs to be paid.
Can the costs be taken the requested person’s bail security? The security will in most circumstances have been lodged by a third party to secure bail for the requested person and the money is held in the courts bank account until the person is extradited or (in rare scenarios) discharged. Would it be lawful to deduct from the security the amount owed under a costs order?
Many requested persons who are extradited wish to return to the UK at some point. Many have settled family lives in the UK which have been used in the extradition proceedings to resist extradition on Article 8 ECHR grounds. It may be that were they to return to the UK not having settled the costs orders, requested persons are faced with a hefty bill some years later.
Some defence advocates feel that the utilisation now of the costs provisions in the Extradition Act (there have been very few costs orders made in the last 9 years following an extradition order) could be seen as an attempt to disuade requested persons from resisting extradition.
Section 60 and 133 state that the judge may make a costs order in an amount that he considers ‘just and reasonable’. An order for costs must specify the amount and may name the person whom they are to be paid.
The CPS who act on behalf of the requesting states employ a team of specialist extradition lawyers. These are supplemented by barristers on secondment to the extradition unit and briefed barristers. There is a potential for costs to run into thousands of pounds for contested hearings where the CPS have briefed external counsel.
However, under s133 Extradition Act 2003 (that applies to part 2 cases) the judge may make an order for costs if an order for the persons extradition is made. At the time the case concludes before the Magistrates’ Court an order for extradition will not have been made as it is the function of the Secretary of State for the Home Department in part 2 cases to make the order for extradition. A loophole that will no doubt be closed off to the defence in due course.
Defence advocates will now need to be live to the costs provisions of the Extradition Act and advise their clients of the financial consequences of resisting extradition. Something else for the requested person to worry about.
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