Assessing the new legislation on extradition

The new "forum bar" is misled, argue Andrew Southam and Ted Bromund, and will inevitably lead to the same old false mantras about Britain's arrangements with the United States

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Campaigners have long argued that Britain should have a “forum bar” that would limit the extradition of individuals from Britain to other jurisdictions. In April, they got their wish.

The Crime and Courts Act introducing the forum bar, with other measures, received Royal Assent on 25th April 2013The issue now is whether these measures improve the effectiveness of Britain’s extradition arrangements, including those with the United States, or whether they are a misguided attempt to play to the public gallery.

In the past, we have been skeptical of the call for a forum bar. While some of the measures in the 2013 Act are sensible, we believe that, overall, they appear unlikely to be changes for the better.

Will The Forum Bar Make A Difference?

A “forum bar” limits the extradition of an individual from one legal jurisdiction, or forum, to another. On the face of it, there is no reason to believe that a British forum bar will change the outcome of future extradition cases, or, indeed, that it would have changed the outcome of past extradition cases.

When the authoritative Baker Review examined U.K. extradition procedures in 2011, it opposed the introduction of a forum bar by pointing out, in its Section 6.26, that “in each of the High Court cases in which forum was raised as an issue, the result would have been no different” if the forum bar had been in place. As the Review noted, the main effect of a forum bar could well be to further slow the operation of an already laggardly British extradition system.

Under the 2013 Act (new clauses 19B(1) and 83A(1), Schedule 20, Section 50), extradition may now be barred by British courts for all European Union (EU) countries, and countries with which the U.K. has bilateral extradition treaties, including the U.S., Canada, Australia, and New Zealand, “if the extradition would not be in the interests of justice.”

By the same clauses, judges are required to take a number of reasonable criteria into account when deciding to block extradition.  If a “substantial measure” of the alleged criminal conduct took place in Britain, these considerations must include: where most of the harm or loss caused by the crime occurred; the interests of victims; the prosecutor’s view on the appropriateness of U.K. jurisdiction; the availability of evidence; any concerns about delays that would be caused by blocking extradition; the jurisdiction in which it is desirable and practical to try offenses given the location of witnesses, co-defendants, and other suspects – and where is best for such persons to give their evidence; and whether the individual in question has connections with Britain.

Neither these criteria nor the power behind them is new. The Director of Public Prosecutions already had the discretion to bring domestic proceedings – if domestic proceedings are appropriate – against a person subject to extradition proceedings for the same offence. Even after extradition proceedings have begun, the Crown Prosecution Service (CPS) can seek the trial of the accused individual in Britain.

In all cases, domestic proceedings take precedence over extradition proceedings. The criteria by which prosecutors made their decisions on the appropriate jurisdiction for prosecution were published in October 2012, before the 2013 Act became law. In other words, all that has happened is that this reasonable set of CPS criteria has been formalised and the power to consider them has been transferred, partly, from a prosecutor to a judge.

But judges do not have unlimited power to bar extradition. Under new clauses 19(C) and 83(B) of the 2013 Act, a prosecutor has the power to issue a certificate that prevents a judge from barring extradition on the basis of the forum bar. Under clause 83(C) and new clause 19(D) of the Act, a prosecutor may issue this certificate if the offenses occurred in the U.K. and there has been a formal consideration for undertaking a U.K. prosecution for the alleged conduct.

The prosecutor can then prevent the imposition of the forum bar if there is either insufficient admissible evidence to prosecute in Britain or if such prosecution would not be in the public interest; or if the prosecutor is concerned that a trial would lead to the disclosure of sensitive material.

The Home Office doubtless struggled to decide how best to amend the 2013 Act. It was right to give prosecutors the power to block the operation of the forum bar. In both Britain and the U.S., public prosecutors already make the decisions about whether to prosecute in regular domestic cases.

Extradition cases should not have a different standard. But it is not clear why the new legislation bothered to introduce a forum bar if a prosecutor can prevent it from operating. Indeed, the Act explicitly prevents a judge from “questioning,” or in other words challenging, a prosecutor’s certificate. Under new clause 19 (E) and clause 83(D), certificates can only be challenged in the High Court as part of an appeal against extradition under the 2003 Extradition Act.

As created by the new Act, the forum bar does have some advantages. By requiring a judge to have regard to a range of specified criteria, and by creating the prosecutor’s veto, the 2013 Act ensures that extradition proceedings will take into account all the circumstances of a case.  This will make it easier, inter alia, for the interests of victims – individuals, institutions or governments – to be taken in to account, a consideration too often ignored in debates about extradition. The Act also provides further transparency, in that the High Court will be able to review and overturn the prosecutor’s decision.

On the other hand, one disadvantage of the forum bar is that it provides yet another ground for appeals against extradition. Its broader disadvantages are even more important. There has never been a forum bar in modern Britain. Neither the U.S., nor Australia, Canada or New Zealand have used, or use, nationality as a reason for refusing extradition. Modern extradition systems around the world rely less on nationality, not more. The creation of a forum bar in Britain is therefore a retrograde step. The 2013 Act recognises this fact and, by introducing the prosecutor’s certificate, defeats its own nominal purpose.

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