UK: Fast-Track Extradition: Is Now Too Soon?

Last Updated: 30 November 2001
Article by Stephen Gentle

The Government is intent on demonstrating an immediate legislative response to the events of September 11th. Curtailing the ability of suspects (or "criminals" as the Home Office web site revealingly calls them) to manipulate an "out moded" extradition process is high on the agenda. However, recent intemperate and often ill-formed remarks about delays in extradition do not publicly address underlying problems and fail to do justice to what has been a lengthy and rather low-key consultation process into this complex area of law. The result is that proper reform may be a casualty of the political imperative to "do something".

Extradition can be a slow process. Delays of many months can be caused, for example, by failures of requesting states to initially provide anything but the most flimsy documentation, by constraints of court time and by files sitting in the Home Office. Legal argument also takes time. If a suspect is to be sent to an alien jurisdiction with an unfamiliar language, a system of justice about which he or she may know nothing, away from family and contacts, it is only right that the request for extradition should be rigorously tested. In any event, extradition to a country which has ratified the European Convention on Extradition, even under the current "cumbersome" procedure, does not require the requesting state to produce prima facie evidence – simply a statement of facts. Other countries, such as the United States, must produce only evidence sufficient for an English committal for equivalent criminal conduct – generally not an insurmountable hurdle.

The debate over problems in extradition is not new – particularly within the European Union and particularly in the context of increased cooperation in the judicial sphere. The 1995 and 1996 EU Conventions on Extradition began to address such problems by, inter alia, simplifying uncontested committals, reducing the scope of speciality (by which a suspect can be tried in the requesting state only for those offences for which committal is granted) and by abolishing the political offence exception to extradition. The UK has not ratified either of these conventions. The 1999 Tampere Summit on the creation of a European "area of freedom, security and justice" recommended the abolition of extradition of convicted persons and its replacement by simple transfer. It also recommended fast track extradition (without definition) "without prejudice to the principle of a fair trial". In 1999 the UK Report to the EU Committee charged with developing mutual recognition of judicial decisions and judgments in criminal matters proposed mutual recognition of arrest warrants and convictions but recognised that this would "rest on the presumption of directly comparable systems of justice and directly comparable protection for the individual". Finally, in March 2001 the Home Office issued proposals for fast track extradition to EU countries. The Law Society responded in June 2001 welcoming simplification but cautioning against e.g. reducing the grounds for appeal for those required by certain states and the removal of speciality for EU and Schengen states.

It is ironic that it took years for the concept of fast track extradition to get anywhere near the public domain. However, as the 1999 report, to which reference is made above, stated, "public opinion is not yet always ready to accept that the judicial authorities and procedures of other member states are equivalent to their domestic courts, especially where their own nationals are involved". Put bluntly, it was felt that the average UK citizen would not willingly countenance removal of British nationals to other countries, distrusting judicial systems even more than their own.

This may be an unwelcome attitude but key to changing it is open and detailed discussion as to the merits or otherwise of more streamlined extradition arrangements. The discussions which had been taking place now run the risk of being truncated and proposals which even a year ago were seen as long term goals such as EU arrest warrants, rushed on to the statute book in an atmosphere suffused with the suspicion that lawyers and the courts are taking "an unnecessary legalistic" view of the Human Rights Act, and "bringing the country into disrepute" (David Blunkett – 3 October 2001) when defending clients in extradition proceedings. It would be a lost opportunity for building that common EU area of justice if rather than diminishing suspicion of and cooperation with other jurisdictions, ill thought out and ultimately unpopular legislation only served to worsen the position and set back reform.

Stephen Gentle is a partner in the Criminal Department at Kingsley Napley, specialising in extradition and fraud.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

©Stephen Gentle

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