Totally Without Merit?

This time last year I wrote an article about the plan to change the way Extradition appeals are dealt with by introducing a leave to appeal requirement into the Extradition Act 2003.

In the face of opposition from organisations such as Fair Trials International, Liberty and Justice the Government decided to introduce a ‘leave’ requirement into the Extradition Act 2003 via the Anti-Social Behaviour, Crime and Policing Act 2014 (section 160) In order to facilitate the changes in the Extradition Act 2013 it is proposed that the Criminal Procedure Rules be amended and that a section relating to Extradition appeals be included. Rule 17.22 precludes the ability for an appellant to renew a permission to appeal application if the High Court finds the application to be ‘totally without merit’(r17.22((a)(ii)).

It is without doubt the inclusion of this rule that will result in the biggest change to the way Extradition appeals are dealt with if it is to be brought into force. During the committee stage of the Anti-Social Behaviour, Crime and Policing Bill Lord Hodgson recommended the deletion of the leave requirement clause. He pointed to the ‘enormous impact’ that extradition has on individual’s lives and those of their families and he discussed the problems that frequently arise at first instance extradition hearings. The enormous impact extradition has on those subject to it is no better illustrated than by the case of Paul and Sandra Dunham who last week attempted suicide rather than be surrendered to the United States.

The inclusion of Rule 17.22 will undoubtedly reduce the number of appeals being heard by the Administrative Court but will at the same time limit access to the appeal courts for those facing extradition. There is a concern that cases could slip through the net (such as the case of Juszczak) if either the lawyer representing or the requested person as a litigant in person does not express himself adequately in the paper application for permission. This is particularly so for those that still continue to be unrepresented who have not had the benefit of legal aid/legal representation because they failed the means test in the Magistrate’ Court. The 7-day period for lodging such an application places great pressure on the appellant and/or his representatives.

The Extradition Lawyers’ Association has responded to the consultation on the Procedure Rules and it is expected that the new Rules will be rolled out this year once the amendments in the Anti-Social Behaviour, Crime and Policing Act 2014 have been brought into force.