JOINT COMMITTEE ON HUMAN RIGHTS

Human Rights Implications of UK Extradition Policy Written Evidence

Contents Written Evidence submitted by Fair Trials International (EXT 1) ...... 3 Written Evidence submitted by The Freedom Association (EXT 2) ...... 24 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) ...... 45 Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) ...... 59 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) ...... 64 Written Evidence submitted by Professor Monica Lugato, Faculty of Law, LUMSA University of Rome (EXT 4) ...... 72 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) ...... 75 Written Evidence submitted by Liberty (EXT 6) ...... 91 Letter submitted to the Chair of the Committee by David Bermingham (EXT 7) ...... 126 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) ...... 128 Letter submitted to the Joint Committee on Human Rights from the Law Society (EXT 9) ...... 135 Statement submitted by Mr Mark Turner, father of Michael Turner (EXT 10) ... 136 Written Evidence submitted by the Crown Prosecution Service (EXT 12) ...... 137 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) ...... 143 Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor (EXT 16) ...... 160 Written Evidence submitted by Crown Prosecution Service (EXT 17) ...... 162 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) ...... 168 Letter submitted to the Committee Chair by David Bermingham (EXT 19) .... 172 Written Evidence submitted by JUSTICE (EXT 20) ...... 175 Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21) ...... 178 Letter submitted to the Committee Chair by Michael Hann (EXT 22) ...... 180 Written Evidence submitted by Fair Trials International (EXT 1)

Additional Written Evidence submitted by Liberty (EXT 24) ...... 182 Additional Written Evidence submitted by Fair Trials International (EXT 25) .... 187 Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026) ...... 200 Written Evidence submitted by John Hardy QC (EXT 28) ...... 204 Further letter submitted to the Committee Chair by Mr Michael Hann (EXT 29) ...... 211 Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) ...... 212 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) ...... 217

2 Written Evidence submitted by Fair Trials International (EXT 1)

Written Evidence submitted by Fair Trials International (EXT 1) Introduction

1. Fair Trials International (“FTI”) welcomes this opportunity to present its views on the European Arrest Warrant (“EAW”) and the European Investigation Order (“EIO”) to the Joint Committee on Human Rights. The last decade has seen the European Union place unprecedented emphasis on increasing and improving the cooperation between EU Member States in criminal justice matters. Unfortunately, fundamental rights have been largely ignored in the process. Traditional safeguards and checks have been stripped away in an effort to streamline procedure in the fight against cross-border crime and create an “area of justice, freedom and security” within Europe.

2. Over 500 million people live in the EU and of these, 8 million live in a Member State other than their own. The right to freedom of movement between EU countries means that national boundaries no longer pose a significant obstacle to criminals. While FTI recognises that judicial and police cooperation is essential in order to tackle cross-border crime, we do not believe that this should be done at the expense of basic human rights.

3. The 9/11 attacks and the subsequent atrocities in London and Madrid acted as a catalyst for new EU laws designed to enhance cross-border cooperation between the police and the courts of different Member States. The EAW, the procedure for fast-track extradition between EU States, was the flagship measure. Now the EU is negotiating similar legislation to facilitate cross-border investigations and evidence-sharing in criminal cases: the EIO.

4. The cross-border cooperation which the EAW and the EIO represent is based on the principle of “mutual recognition”. Mutual recognition means that if one EU country makes a decision (for example that a person must be extradited to face a criminal trial or serve a sentence, or that evidence or assets should be frozen) that decision will be respected and applied throughout the EU, no questions asked. This philosophy is based on mutual trust in the ability of all EU Member States to deliver justice and uphold human rights. Unfortunately, the foundations for that trust are not yet in place.

5. Standards of justice vary greatly from one EU country to another and human rights do not receive the same respect in every Member State. Unfortunately, this reality has largely been ignored in the push for ever greater mutual recognition and cross-border cooperation. Defence rights have been sidelined, not strengthened, in the name of greater cooperation, and blind faith in the criminal justice systems of our EU neighbours has led to many cases of injustice.

3 Written Evidence submitted by Fair Trials International (EXT 1)

6. This submission examines the impact of mutual recognition on fundamental rights, specifically the effect of the EAW and the potential effect of the EIO. Section A of the submission deals with the EAW and Section B with the EIO.

Section A: The European Arrest Warrant

7. Given the impact which extradition can have on the fundamental rights of the individuals involved, we are delighted that the Committee has decided to look at the human rights implications of the UK’s extradition arrangements. The Committee’s inquiry will make a valuable contribution to the Government’s review of extradition. FTI has submitted a detailed report to the Extradition Review Panel which sets out specific legislative amendments to the Extradition Act and the EU Framework Decision on the EAW (a copy of this report is attached to this submission: it can also be downloaded by clicking here). These suggested reforms are briefly summarised at paragraphs 15ff (below).

8. Although we recognise that the Committee’s inquiry will also consider the UK’s extradition arrangements with the United States, we have decided to focus on the operation of the EAW. Although the EAW accounts for the vast majority of the extraditions from the UK, it has received far less public and political attention than UK-US extradition. Figures from 2009 show that since 2003, 63 people were extradited to the US from the UK1, while in 2009/10 alone 699 people were extradited from the UK to other EU member states under the EAW.

9. The benefits of a streamlined system must be weighed against the heavy toll that extradition proceedings take on individuals. FTI’s casework team deals with numerous EAW cases each year. These cases provide a unique insight into the human costs of this fast-track extradition system. Summaries of a selection of these cases are annexed. FTI’s experience of EAW cases clearly demonstrates that the EAW is not operating “efficiently and in the interests of justice”.2

10. The surrender of individuals between States clearly has significant human rights implications, potentially engaging the right to protection from inhuman or degrading treatment (Article 3 of the European Convention on Human Rights (“ECHR”)), the right to liberty and security (Article 5 ECHR), the right to a fair trial (Article 6 ECHR), and the right to respect for private and family life (Article 8 ECHR). To the extent that many of those wanted under EAWs are

1 Source: response to a written Parliamentary Question by Paul Holmes, HC Deb 27 January 2009 c287W 2 Written ministerial statement by the Secretary of State for the Home Office, Rt Hon Theresa May MP, Wednesday 8 September 2010, announcing the purpose and scope of the Government’s extradition review 4 Written Evidence submitted by Fair Trials International (EXT 1) non-nationals in the requesting state, the right to equal treatment without discrimination (Article 14 ECHR) is also engaged: in our experience, non- nationals in criminal proceedings are often at a disadvantage in comparison with nationals facing similar charges.

11. FTI’s work on EAW cases has highlighted the following human rights concerns:

The EAW is being used to extradite people for minor offences, disproportionately interfering with their fundamental rights;

Individuals are being extradited to stand trial on charges based on improper police investigations, including where evidence has been obtained through police brutality;

Following extradition people are spending unacceptable periods of time in pre-trial detention, sometimes in prison conditions which are inhuman or degrading;

Once extradited, people are standing trial in legal systems which do not afford sufficient protection for defence rights, thus jeopardising the right to a fair trial;

Individuals have been extradited to serve prison sentences even where there is compelling evidence that their original trial was unfair;

Judicial decisions not to execute EAWs are not being recognised by issuing countries, resulting in an unjustified curtailment of individuals’ right to liberty;

People are facing extradition decades after an alleged offence;

Extradition is taking place for investigative purposes only, when authorities in the issuing State are not ready to mount a prosecution;

Individuals face extradition even where there is clear evidence that they are the victim of mistaken identity;

The basis for refusing extradition where it would result in a human rights violation is not being used effectively in practice and requires clarification.

12. Many of these problems stem from the principle underlying the EAW: mutual recognition. Mutual recognition is predicated on the assumption of mutual trust in the criminal justice systems of our EU neighbours. However,

5 Written Evidence submitted by Fair Trials International (EXT 1) given the unacceptable differences in protections for defence rights across the EU, there is not (yet) a sound basis for such trust.

13. Steps are now being taken to remedy this under the EU’s 2009 Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (the “Roadmap”). Despite recent progress under the Roadmap3 we are still a long way from an EU where every Member State offers sufficient fundamental rights protections for suspects and defendants. This reality makes enhanced safeguards in the extradition process even more important.

14. Despite our serious concerns about the operation of the EAW, FTI fully accepts the need for a fair and effective system of extradition within the European Union. Given the porous nature of modern borders, effective justice policy depends on cooperation in transnational cases. However, this cooperation must not be at the expense of basic principles of fairness and justice. Unfortunately, there has not been sufficient assessment of the human and financial costs of this “no questions asked” extradition regime. The EAW system has been in place long enough to demonstrate some of the dangers that can arise from over-rigid adherence to the mutual recognition principle. FTI wants the EAW system to work properly, upholding rather than undermining the justice, freedom and security that form the basis of the EU’s policy mandate.

Summary of FTI’s suggested reforms to the EAW

15. Summarised below are the changes we consider necessary to ensure that the EAW system works efficiently and in the interests of justice. The suggested reforms are separated into three sections:

1. Safeguards already contained in the EU legislation creating the EAW (“the Framework Decision”), which should now be incorporated into the UK’s Extradition Act 2003 (“the Extradition Act”);

2. Safeguards not expressly included in the Framework Decision but which the UK could implement unilaterally without changes to the Framework Decision; and

3. Amendments needed to improve the operation of the EAW, which would require European cooperation to amend the Framework Decision.

3 Only one Directive, on the right to interpretation and translation, has been adopted at EU level and will not be implemented by Member States until 2013 6 Written Evidence submitted by Fair Trials International (EXT 1)

16. Fully drafted amendments can be found in FTI’s submission to the Extradition Review Panel.

Safeguards in the Framework Decision which should be added to the Extradition Act

17. No extradition where person can serve their sentence at home

The problem: UK courts cannot refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that the sentence be served in the UK. This leads to unnecessary extradition, followed by transfer back to the UK: a waste of time and money (see, for example, the case of Luke Atkinson and Michael Binnington in the Annex to this submission).

The solution: Allow UK nationals and residents who are convicted abroad to serve their sentences in the UK.

18. No extradition where the UK is the most appropriate place for trial

The problem: The UK must extradite an individual even if the requesting State is not the most appropriate place for prosecution, e.g. if the offence was committed wholly in the UK and all the evidence is located in the UK.

The solution: Parliament has already passed an amendment to the Extradition Act which would rectify this problem; however it is not yet in force. The UK government should bring this section into force with immediate effect.

19. No extradition where a custodial life sentence without review could be imposed

The problem: The UK cannot refuse extradition on the grounds that the person may be subject to a custodial life sentence in the requesting country, and that country does not have provisions in its legal system to review such a sentence.

The solution: Allow UK judges to refuse to surrender individuals to European countries where they may face whole life sentences without any chance of release.

Safeguards which should be added to the Extradition Act but are not included in the Framework Decision

20. More flexible appeal deadlines in extradition cases 7 Written Evidence submitted by Fair Trials International (EXT 1)

The problem: The timeframes for filing appeals against extradition decisions in the UK are far too strict—if the deadline is missed, even by one hour, the courts say they have no discretion to hear the appeal. This is the case even where the delay is not the fault of the individual concerned but of, say, a negligent lawyer (see, for example, the case of Garry Mann in the Annex to this submission).

The solution: The UK should add more flexibility to appeal deadlines in relation to extradition cases. There is nothing in the Framework Decision to prevent this.

21. Stronger protections for fundamental rights

The problem: The EAW assumes that all EU countries respect basic defence rights. In reality, standards of justice vary greatly and defence rights and other fundamental rights do not receive sufficient protection in many Member States (see, for example, the case of Andrew Symeou in the Annex to this submission).

The solution: Introduce clearer provisions on the human rights bar, to ensure that people are not extradited where it would result in a breach of their fundamental rights.

22. Ability to request more information in cases of mistaken identity

The problem: There are currently no grounds upon which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime (see, for example, the case of Edmond Arapi in the Annex to this submission).

The solution: The UK should amend the Extradition Act to allow more information to be requested where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.

23. No extradition for minor offences

The problem: EAWs are being issued for very minor offences such as stealing a dessert or going over an overdraft limit. Not only does this lead to injustice in individual cases: it also places an unjustified burden on police and court resources. (see, for example, the case of “Patrick Connor” in the Annex to this submission).

8 Written Evidence submitted by Fair Trials International (EXT 1)

The solution: Allow UK judges to refuse extradition for minor offences and in cases where the effect of extradition is disproportionate to the alleged crime.

Amendments needing European cooperation to amend the Framework Decision

24. No extradition where the effect of extradition is disproportionate to the alleged crime

The problem: EAWs are being issued for very minor offences and in other cases where the effect of extradition is disproportionate to the alleged crime (see, for example, the case of Jacek Jaskolski in the Annex to this submission).

The solution: Amend the Framework Decision to ensure that EAWs are not issued, and people are not extradited, for minor offences or where the effect of extradition is disproportionate to the alleged crime. Impose financial penalties where countries issue disproportionate EAWs.

25. Improve the system for removing warrants

The problem: If one country refuses to execute an EAW, for example because it is satisfied that extradition would be unjust, this does not automatically cancel the EAW. The individual subject to the EAW remains a wanted person and risks re-arrest, further hearings and legal costs, each time he or she crosses a national border (see, for example, the case of Deborah Dark in the Annex to this submission).

The solution: If a court in one European country decides extradition would be unjust, that decision should be respected across the EU and the EAW should be withdrawn immediately.

26. Ability to request guarantees regarding procedural safeguards

The problem: Standards of fair trial protections vary greatly across Europe and not every EU country provides adequate protection for defence rights (see, for example, the case of Michael Turner and Jason McGoldrick in the Annex to this submission).

The solution: European countries should be able to request guarantees from the issuing EU country regarding procedural safeguards for trial and to decline to execute a warrant if sufficient assurance is not provided. The

9 Written Evidence submitted by Fair Trials International (EXT 1)

EU must also continue its programme of legislative action to strengthen basic fair trial rights across Europe.

Section B: the European Investigation Order

27. The EIO is a Member States’ legislative initiative on cross-border evidence- gathering based on the principle of mutual recognition. The proposed instrument, which is currently being negotiated at EU level, signals a shift from the current discretionary evidence-sharing mechanism, known as mutual legal assistance (MLA), to a mandatory regime. The EIO therefore represents a major change in the way evidence is gathered and shared between Member States. The UK opted in to the EIO in July 2010. FTI’s detailed submission to EU working parties on the EIO is attached to this briefing, together with a note of “Frequently Asked Questions” issued in response to the UK opt-in decision.

28. FTI would, in principle, welcome any measure which facilitates the lawful gathering, safeguarding and admissibility of all available evidence relevant to an alleged offence.

Clearly the more fairly obtained evidence that is available, the more likely a just outcome will be achieved: national borders should not be a bar to this process.

29. However, several fundamental rights are engaged by pre-trial evidence- gathering procedures, including the right to a fair trial under Article 6 ECHR, privacy rights under Article 8 ECHR and, in some cases, rights under Article 3 ECHR. Any new evidence-gathering instrument must safeguard these rights and ensure defendants are tried on evidence which has not been obtained by violation of fundamental rights or other key protections such as the equality of arms principle or the ability to test prosecution evidence. The EIO in its current form does not meet these conditions.

FTI’s concerns about the EIO

30. On 29 April 2010, with no prior public consultation and no explanation of its relationship to the Commission’s own substantial work on evidence-gathering, the draft text of the EIO was released. The proposed instrument did not enjoy prior consultation by the initiating Member States (at least any transparent or wide-ranging consultation) and lacked a comprehensive impact assessment. This was raised by the Commission in its response to the EIO: “There is neither a proper impact assessment nor an explanatory memorandum that provides enough material to state that the draft Directive respects the Charter [of

10 Written Evidence submitted by Fair Trials International (EXT 1)

Fundamental Rights] and the ECHR”.4 The Fundamental Rights Agency has now been tasked with examining the human rights implications of the EIO and is due to report in February 2011.

31. FTI raised the following concerns about the EIO:5

The potentially wide definition of who will be able to issue an EIO. As evidence-gathering inevitably engages fundamental rights, any issuing authority must have the expertise to weigh issues of necessity and proportionality and be adequately independent from the executive branch of government. EIOs should therefore only be issued by judicial authorities.

The lack of express refusal grounds in key areas, such as:

o breach of fundamental rights;

o proportionality (the offence is trivial and/or the request would involve disproportionate use of resources or unnecessary infringement of fundamental rights);

o double jeopardy (the person being investigated has already been tried for the same offence);

o territoriality (the alleged offence was not committed in the issuing but in the executing State).

The absence of a dual criminality requirement, meaning one State could be required to investigate conduct it does not itself treat as criminal.

The lack of adequate detail about the remedies available for individuals engaged in the EIO system.

The lack of protection for individuals in custody who are transferred to other States for questioning.

The absence of necessary safeguards relating to evidence given via telephone and videoconferencing.

4 European Commission’s comments on the draft Directive for a European Investigation Order (EIO), p.7, 5 Many of which are shared by the House of Commons European Scrutiny Committee, see the Twelfth Report of Session 2010/11, page 66 ff 11 Written Evidence submitted by Fair Trials International (EXT 1)

The absence of provisions enabling the defence to request an EIO to be issued where necessary in the interests of justice.

The lack of adequate data protection controls; a concern echoed by the European Data Protection Supervisor in his analysis of the EIO: “[The EIO] once again raise[s] the fundamental issue of the incomplete and inconsistent application of data protection principles in the field of judicial cooperation in criminal matters.”6

32. There have been numerous suggested alterations to the text of the Directive on the EIO and negotiations are ongoing, including in relation to a proportionality test. A recent proposal is that the Directive set out four categories of evidence-gathering measures, organised by increasing degree of intrusiveness. The lowest category would attract the fewest grounds for the executing State to refuse an EIO, while the highest category would attract more potential grounds for refusal. While FTI recognises the desire to connect safeguards with the most intrusive measures, we are concerned that this complex suggestion may undermine the very purpose of the EIO: to simplify the mechanism for sharing evidence between Member States.

33. In its current form the EIO is insufficient to protect the fundamental rights inevitably engaged by evidence gathering. Even with further protections, we do not believe that mutual recognition is the appropriate legal principle to apply to this area at this time. Only once data protection and defence safeguards are in place will mutual recognition be a suitable approach to evidence-gathering.

Conclusion

34. The Government’s extradition review provides a hugely important opportunity, not only to recommend the changes needed to improve the operation of the EAW, but also to learn the lessons of the EAW so they are not repeated in the context of evidence gathering. The EAW has been operating long enough to demonstrate how mutual recognition instruments can operate unjustly in the absence of minimum defence rights.

35. In its seven years of operation, the EAW has placed the speedy surrender of persons to other Member States above the fundamental rights of the individual. It has demanded blind faith in the fair trials standards of European countries and is failing to deliver justice in a number of cases because of its over-rigid nature and its inability to safeguard fundamental rights. Europe must work together to tackle serious cross border crime but,

6 Opinion of the European Data Protection Supervisor, Para 28 12 Written Evidence submitted by Fair Trials International (EXT 1)

if we are to deliver a system which operates efficiently and in the interests of justice, action must be taken urgently on two levels, as follows.

36. First, as we have set out in this submission, legislative change is needed to incorporate vital safeguards into the EAW system. Some of these changes can be implemented by the UK through amendments to the Extradition Act. Other flaws in the operation of the EAW cannot be addressed by amending the Extradition Act alone, but require the European Union to work together to agree necessary changes to the Framework Decision. The European Commission has, itself, now recognised that there is “significant room for improvement in the operation of the European Arrest Warrant.”7

37. Secondly, action must be taken to raise standards of justice across the European Union. This is crucial to the effective operation of the EAW because the streamlined extradition procedure it has created is premised on the principle of mutual trust. The current absence of common EU standards in areas of fundamental procedural rights, bail and pre-trial detention represents a serious threat to the integrity and fair operation of the EAW scheme. Without minimum defence rights, fast-track extradition carries an increased risk of unfair trials and unacceptable infringements of the rights to liberty and family life. The EU is finally making progress on this front with its work on the Roadmap of procedural safeguards. The UK Government must continue to show leadership in this area by opting into further measures protecting defence rights across Europe.

38. Unless action is taken on both these fronts simultaneously, many more people will suffer injustice as a result of Europe’s “no questions asked” extradition system.

39. A similar approach is required with the EIO. Before introducing such a fundamental change to the system of evidence gathering, it is important to consider what more could be done to promote the wider use of existing MLA tools. This will require a detailed consultation with practitioners on the prosecution and defence side and a careful assessment of what works well in MLA and what needs to improve. If the move to mutual recognition is found to be necessary, the EU must first ensure that a detailed set of laws affording protections for fundamental rights, as well as a full set of procedural safeguards and strong EU level data protection laws, are fully implemented across the Union. Meanwhile, the EIO itself must contain safeguards to ensure the protection of rights inevitably engaged by evidence-gathering in cross- border cases.

7 Letter to FTI from Viviane Reding, Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship 13 Written Evidence submitted by Fair Trials International (EXT 1)

40. Mutual recognition and inter-state cooperation should not be seen as ends in themselves, but as potential means to serve the overriding interests of justice. Those interests are as important in the context of gathering, handling, retaining and sharing evidence as they are in the context of extradition. The interests of justice cannot be served if fundamental rights are sidelined.

21 January 2011

Annex: FTI cases which illustrate the problems with the European Arrest Warrant

Extradited to Cyprus and transferred back to the UK after 8 months – Luke Atkinson and Michael Binnington

Cousins Luke Atkinson (left) and Michael Binnington, two young men from Essex, went on a family holiday to Cyprus in August 2006. On the first night Luke and Michael were involved in a fight at a nightclub, during which one of the boys sustained head injuries. Luke and Michael’s uncle, Julian Harrington, was called and drove to the scene in his hire car. After he had picked up Luke and Michael from the club Julian encountered 2 boys on a moped and there was a collision between Julian’s car and the moped. The driver of the moped later died from his injuries and the second passenger was seriously injured.

Luke, Michael and Julian were charged with manslaughter and murder on the basis that Julian had deliberately driven into the moped three times and that Luke and Michael had been complicit in the crime. Julian pleaded guilty and received a sentence of 15 years’ imprisonment which was upheld on appeal.

Luke and Michael were acquitted of all charges after their initial trial on 17 February 2007 by the Larnaca Assize Court. The Cypriot prosecution appealed their acquittal to the Supreme Court of Cyprus on 29 January 2008. The

14 Written Evidence submitted by Fair Trials International (EXT 1)

Supreme Court overturned the acquittals, found Luke and Michael guilty of manslaughter and grievous bodily harm and sentenced them to 3 years’ imprisonment on 10 April 2008.

Following their initial acquittal, however, Luke and Michael had returned to the UK. Cypriot authorities therefore issued an EAW for the two men in May 2008. Luke and Michael resisted extradition and FTI wrote to the then Lord Chancellor, Rt Hon MP, requesting that Luke and Michael be allowed to serve their sentence in the UK. Such efforts were unsuccessful and the two men were extradited to Cyprus in November 2009.

Only 8 months after their extradition they were transferred back to the UK to serve their sentences. The extradition of the two men, only for them to be transferred back to the UK, was a waste of time and money with an enormous human impact.

Luke and Michael’s case highlights:

The need for UK nationals and residents to be able to serve sentences imposed in other jurisdictions in the UK rather than being extradited and then transferred back to the UK.

15 Written Evidence submitted by Fair Trials International (EXT 1)

Extradited after a grossly unfair trial – Garry Mann

Garry Mann, a 51-year-old former fireman from Kent, went to Portugal during the Euro 2004 football tournament. On 15 June 2004 while Garry was with friends in a bar in Albufeira, a riot took place in a nearby street. Garry was arrested along with other suspects some 4 hours after the alleged offences. He was tried and convicted, less than 48 hours after his arrest. He had no time to prepare his defence and standards of interpretation at the trial were grossly inadequate. The proceedings were translated for Garry by a hairdresser who was an acquaintance of the judge’s wife.

He was convicted following a widely publicised trial in Albufeira and sentenced to two years’ imprisonment on 16 June 2004. On 18 June 2004 he voluntarily agreed to be deported and was told that, provided he did not return to Portugal for a year, he would not have to serve the sentence.

Back in the UK, Garry tried unsuccessfully to appeal his conviction. In October 2004 he lodged an appeal to the Constitutional Court in Lisbon but heard nothing from the Court. Separately, the Metropolitan police applied for a worldwide football banning order against Garry, but in 2005 a UK Court held he had been denied a fair trial in Portugal and refused the order.

Garry was astonished when in 2009 he was arrested on an EAW, alleging he was wanted in Portugal to serve a two year prison sentence. In August 2009 a British court ordered his extradition to Portugal.

Through no fault of his own, the appeal deadline in Garry’s case was missed by less than 24 hours. As a result the High Court refused to hear his appeal. Instead, Garry was forced to seek a judicial review of SOCA’s decision to execute the EAW.

The case was heard by the UK’s High Court in March 2010. Lord Justice Moses described the case as an "embarrassment" and said: "If there was a case for mediation or grown up people getting their heads together then this is it." The judge said that new evidence from the Foreign and Commonwealth Office

16

"lends force to his belief that a serious injustice" had been committed against Mr Mann. Despite this there were no grounds upon which to refuse Garry’s extradition.

Recognising that his options were running out Garry wrote to the Home Office and requested that he serve the sentence in the UK. This was refused as there was no legal mechanism to allow it. Garry was surrendered to prison in Portugal in May 2010, where he remains today. He is due to be transferred back to the UK where he will continue to serve his sentence.

“I have been let down by the politicians that agreed to the UK’s rigid extradition laws and the European arrest warrant and the judges who no longer seem willing to stand up for justice. I am not the first victim of this system and, until it’s reformed, I won’t be the last.” Garry Mann

Garry’s case highlights: The need for UK nationals and residents to be able to serve sentences imposed in other jurisdictions in the UK rather than being extradited and then transferred back to the UK.

The need for flexibility in the appeal deadlines for extradition cases.

The need for courts to have greater discretion to refuse extradition on human rights grounds.

Student extradited on evidence obtained by police brutality – Andrew Symeou

Andrew Symeou, a university student of exemplary character with a bright future ahead of him, was on holiday with friends in Zante, Greece in 2007. One night, while Andrew was in Zante, another young Briton fell off an unguarded stage in a night-club, tragically dying two days later from a head injury. Andrew insists he was not even in the club at the time—and many 17

witnesses have since confirmed this. He was never sought for questioning at the time, and knew nothing about the incident when he flew home at the end of his holiday.

A year later, he was served with an EAW seeking his extradition to Greece to stand trial for murder. During the course of his legal challenge serious questions arose about the reliability of the evidence against him. The key prosecution witnesses explained that their evidence implicating Andrew was extracted through their brutal mistreatment by police. They have since retracted their (word-for-word identical) statements. Furthermore, crucial CCTV footage, seized by police following the incident, has disappeared from the case file. Despite this, in October 2008, the Westminster Magistrates court ordered Andrew’s extradition to Greece. Andrew appealed to the High court on the grounds that British courts should refuse to execute an EAW when evidence has been obtained through witness intimidation and police brutality. Unfortunately, the High court refused his appeal and he was extradited to Greece in July 2009.

Andrew was initially refused bail in Greece because he was not resident in Greece. He spent a year on remand in appalling prison conditions, including 6 months in the notorious Korydallos prison. Andrew has described how he was detained with convicted rapists and murderers, despite the fact that he was under 21 years of age and was being held on remand. The conditions in his cell were so unsanitary that he awoke each morning covered in cockroaches and was frequently bitten by fleas in his bedding. The shower room floor was covered in excrement and the prison was infested with rats, cats and mice. Andrew was kept in a cell with three others, and the toilet consisted of a hole in the corner of the room. The cell only had a small window and became unbearably hot in the summer. During Andrew’s time in Korydallos there were several violent riots and, on one occasion, he heard the screams of a fellow prisoner being raped.

After a year and only after Fair Trials International challenged Greece in the European Court of Human Rights in connection with the refusal of bail, Andrew was finally granted bail, but on the condition that he does not leave Greece.

“The sight of our son in prison is heartbreaking.”— Andrew’s parents, Frank and Helen Symeou

Andrew’s case highlights:

The need for courts to have greater discretion to refuse extradition on human rights grounds.

18

Wanted for a crime he could not have committed – Edmond Arapi

Edmond Arapi

Edmond Arapi was tried and convicted in his absence of killing Marcello Miguel Espana Castillo in Genoa, Italy in October 2004. He was given a sentence of 19 years, later reduced to 16 years on appeal. Edmond had no idea that he was wanted for a crime or that the trial or appeal even took place. In fact, Edmond hadn’t left the UK at all between the years of 2000 to 2006. On 26 October 2004, the day that Marcello Miguel Espana Castillo was murdered in Genoa, Edmond was at work at Café Davide in Trentham, and attending classes to gain a chef’s qualification.

Edmond was arrested in June 2009 at Gatwick Airport on an EAW from Italy, while he was on his way back from a family holiday in Albania. It was the first he knew of the charges against him in Italy, which does not automatically guarantee a re-trial for defendants tried in absentia. A British court ordered his extradition on 9 April 2010.

FTI worked extensively on Edmond’s case; attempting to persuade the Italian authorities to withdraw the EAW, working with Albanian lawyers to help establish the identity of the real perpetrator, and raising the profile of his case with the public and politicians.

On 15 June 2010, the day the appeal against his extradition order was to be heard at the High Court, Italian authorities decided to withdraw the EAW, admitting that they had sought Edmond in error. They provided information indicating that Edmond’s fingerprints did not match those at the crime scene. Thankfully, this meant that Edmond avoided being separated from his wife and children, including a newborn son, and spending time in an Italian prison awaiting retrial.

“It can be proved 100% that I was at work in England on the day this crime took place in Italy. It would be devastating for my family if I am torn from them and imprisoned in Italy, a country I barely know, for something I could not have done.” 19

Edmond’s case highlights:

The need for courts to have the ability to request more evidence where there is a suspicion of mistaken identity

Disproportionate use of the EAW – Patrick Connor

Patrick Connor (not his real name) was just 18 when he went on holiday to Spain with two friends. While there, all three were arrested in connection with counterfeit euros. Patrick himself had no counterfeit currency on him or in his belongings when arrested and has no idea how the notes came to be on his two friends and in their rented apartment—in total, the police found 100 euros in two notes of 50. The boys were held in a cell for three nights. On the fourth day they appeared in court and had a hearing lasting less than an hour, at the end of which they were told they were free to leave but might receive a letter from the authorities later.

They returned to the UK and heard no more about it until four years later when, as Patrick was studying in his room at university, officers from the Serious Organised Crime Agency arrested him on an EAW.

Patrick was extradited to Spain and held on remand in a maximum security prison in Madrid. Other inmates told him he might be in prison for up to two years waiting for a trial. Under immense pressure and fearing for his future, he decided to plead guilty, even though several grounds of defence were available and he would have preferred to fight the case on home ground, on bail, and with a good lawyer he could communicate with in English. None of this was possible, and he ended up spending 9 weeks in prison before coming home to commence his university career, his future blighted by a criminal record.

Patrick’s case highlights:

The need for proportionality checks to stop EAWs being issued for minor offences resulting in wasted costs and unduly harsh effects on individuals’ lives.

Facing extradition for exceeding his overdraft limit - Jacek Jaskolski

Jacek Jaskolski, a Polish schoolteacher and grandfather who lives in Bristol, is being sought on an EAW to face trial for “theft” in Poland. The alleged offence refers to a period in 2000 when Mr Jaskolski withdrew money from his bank taking him over the agreed overdraft limit. The entire debt was repaid to 20

the bank and in 2004 he moved with his family to the UK where he has lived ever since.

On 23 July 2010, with no prior notice, British police arrested Mr Jaskolski pursuant to the EAW. He is threatened with a criminal trial for a debt he paid off many years ago. The British courts will now decide whether Mr Jaskolski, in fragile health following 3 strokes in the past 2 years, will be sent to prison in Poland or allowed to remain with his family, including his wife who is caring for him and who herself has serious disabilities.

Mr Jaskolski’s case highlights:

The need for proportionality checks to stop EAWs being issued for minor offences.

Acquitted in 1989, yet British grandmother was still wanted 20 years on— Deborah Dark

In 1989, Deborah Dark was arrested in France on suspicion of drug related offences and held in custody for eight and a half months. Her trial took place later in 1989 and the court acquitted her of all charges. She was released from jail and returned to the UK. The prosecutor appealed against the decision without notifying Deborah or her French lawyer. The appeal was heard in 1990 with no one there to present Deborah’s defence. The court found her guilty and sentenced Deborah to 6 years’ imprisonment. Again, she was not informed that an appeal had taken place, nor notified that her acquittal had been overturned. As far as she was concerned she had been found not guilty of all charges and was free to start rebuilding her life. In April 2005, fifteen years after the conviction on appeal, an EAW was issued by the French authorities for Deborah to be returned to France to serve her sentence. She was not informed about this.

In 2007, Deborah was arrested at gunpoint in Turkey, while on a package holiday with a friend. The police released her and were unable to explain the reasons for her arrest. Upon her return to the UK, she went to the police station and tried to find out the reasons for her arrest. She was told that she was not 21

subject to an arrest warrant. In 2008 Deborah travelled to Spain to visit her father who had retired there. On trying to return to the UK, she was arrested and taken into custody in Spain, where she faced extradition to France. Deborah refused to consent to the extradition, and was granted an extradition hearing. After one month in custody, the Spanish court refused to extradite Deborah on the grounds of unreasonable delay and the significant passage of time. Deborah was released from prison and took a flight back to the UK. However, her ordeal was not over.

On arrival in the UK, Deborah was arrested again—this time by the British police at Gatwick airport. Once again, she refused to consent to the extradition and was released on bail pending another extradition hearing. The City of Westminster Magistrates’ Court refused the extradition in April 2009 due to the passage of time.

As there is no provision for the withdrawal of the EAW, Deborah spent years as an effective prisoner in the UK—feeling unable to leave the country due to the risk of being re-arrested on the same European Arrest Warrant. In May 2010, after FTI helped build public and political support for Deborah’s case, France finally agreed to remove the EAW, but only after Deborah had spent years as an effective prisoner in the UK due to the risk of arrest.

Deborah’s case highlights:

The need for EAWs to be removed immediately by issuing States once a requested State has made the decision not to execute.

Extradited before being charged – Michael Turner and Jason McGoldrick

Hungarian authorities sought the extradition of Michael Turner (left), a 27 year old British national from Dorset, and business partner Jason McGoldrick (37), following the failure of their business venture in Budapest.

Michael was extradited to Hungary under an EAW on 2 November 2009 and was held in prison for four months, during which time he was interviewed only 22

once by police. He was released from jail on 26 February 2010 and was allowed to return to the UK, but was requested to return for further police interviews in April.

The EAW is intended to be used to extradite people to serve a prison sentence or for the purposes of a criminal prosecution. In Michael’s case, however, an extradition took place even though no decision had yet been made to prosecute him. This improper use of the EAW subjected Michael and Jason to four unnecessary months in prison in extremely difficult conditions.

Michael’s father, Mark Turner, has described how the pair were held in separate parts of a former KGB prison and were not allowed to contact family members of consular officials. Michael had to share a cell with three other prisoners and was only allowed out of the cell for one hour a day. Two weeks into his detention Michael was wearing the same clothes in which he had been arrested and had not been allowed to have a shower or clean his teeth. Prison officers refused to allow him to open parcels from his family containing basic items like toothpaste. Hungary´s investigation is still ongoing with charges neither brought nor dropped against Michael.

Michael and Jason’s case highlights:

The need for the EAW to take into account the wide variety of standards of procedural rights protections across the EU.

23 Written Evidence submitted by The Freedom Association (EXT 2)

Written Evidence submitted by The Freedom Association (EXT 2) CHAPTER 1 - SUMMARY

1. The European Arrest Warrant has had a marked effect on criminal justice systems in the name of counter-terrorism across Europe. It is therefore imperative that the Extradition Review scrutinises the framework behind the European Arrest Warrant in depth.

2. The European Arrest Warrant is used frequently and disproportionately, often for minor crimes, undermining civil liberty. This situation is set to worsen in future years.

3. The European Arrest Warrant also affects the UK unfairly. This is because, compared to EU member states; the UK’s citizens are issued with a disproportionate number of warrants. It also affects the UK unfairly, as it undermines our legal system, which has aimed to protect and has by and large protected British citizens from abuse by the state for centuries.

4. One of the main issues the submission raises in relation to the European Arrest Warrant is the abolition of double criminality in 32 areas. This has created a situation where laws voted in by elected officials in the UK Parliament have become null and void, due to the fact that UK citizens can be extradited for something that is not a crime in the UK.

5. To meet the requirements of the European Arrest Warrant, centuries-old English legal traditions such as habeas corpus (innocence until proved guilty) have been put in danger, as many other EU member states’ legal systems provide much less protection for an individual’s freedom.

6. The cases of Andrew Symeou and Gary Mann highlight how the European Arrest Warrant can lead to terrible miscarriages of justice that destroy lives.

7. Even if one agrees with the European Arrest Warrant, it is impossible to implement. There are simply too many differences between all the different member states when it comes to justice systems and legal traditions, which are impossible to overcome. Thus there can never be the mutual trust and recognition which is needed for the European Arrest Warrant system to be able to work.

8. The European Arrest Warrant has highlighted how, at the moment, those in charge of the EU seem to value “ever closer union” much more than they value human rights.

9. The European Investigation Order partners the European Arrest Warrant. We believe the Government’s decision to opt in to this piece of EU legislation was a mistake. It is also a decision that will undermine an English legal system starting from the principle of habeas corpus.

10. It will also mean that the surveillance state, which the Coalition government has said it is committed to stopping, will be revived.

24 Written Evidence submitted by The Freedom Association (EXT 2)

CHAPTER 2 – THE EUROPEAN ARREST WARRANT a) INTRODUCTION

The Freedom Association welcomes the opportunity to present its views on the European Arrest Warrant to the extradition review panel. This is a subject on which we lobbied previously, when the Extradition Act of 2003 was presented to Parliament. Later, in 2005-2006, when the House of Lords reviewed the subject, we expressed our concerns that “the European Arrest Warrant would dilute habeas corpus and that the Bill was the thin end of a very large and significant wedge” (House of Lords European Union Committee, P.71). Unfortunately as our submission highlighted, our concerns have been proved correct. The European Arrest Warrant came about from proposals for a simplified system of extradition warrants across the EU to replace existing arrangements between the UK and other EU member states. The framework for the European Arrest Warrant came from the Tampere European Summit of 15-16th October 1999, which called on member states to make the principle of mutual recognition the cornerstone of a true European law-enforcement area (Europa). These proposals were discussed both in Europe and Westminster and culminated in a European framework decision and provisions in the Extradition A ct of 2003. The European Arrest Warrant provisions came into force in January 2004. Clearly the European Arrest Warrant is a controversial issue. When the House of Commons voted to approve the motion, 333 votes were cast in favour and 146 against, thus indicating a high level of dissent. The European Arrest Warrant came about as part of the EU’s response to terrorism.

Whilst it is true to say that extradition reform was on the table prior to 2001, the negotiations to reform extraditions accelerated markedly after the events of September 11th 2001. Thus many believe that the European Arrest Warrant was an ill thought-out, knee-jerk reaction to the threat of terrorism, to make it look as though the EU was doing something. Even Graham Watson, the Liberal Democrat MEP, who presented the proposals to the European Parliament said, “the proposal would still be on a shelf gathering dust if it hadn’t been for the events in New York five days later. Mr. Bin Laden helped make it a reality” (Watson, G, 2010). The EU officials forgot the golden rule in all of this, that is, ”If it is not broken, do not fix it”. However, as with a lot of counter-terrorism legislation, The Freedom Association believes the European Arrest Warrant was ill thought-out and that it undermined civil liberties. b) WHY THE EUROPEAN ARREST WARRANT IS IMPORTANT

We feel that the European Arrest Warrant is important, as, whilst our extradition treaty with the USA captures all the headlines, it is through the 25 Written Evidence submitted by The Freedom Association (EXT 2)

European Arrest Warrant that the vast majority of UK citizens are extradited. This is highlighted by figures from, Fair Trials International, the civil liberties group, which calculated that whilst, from 2003- 2009, 69 people were extradited from the UK to the USA, in 2009-10 alone, 699 people were extradited to other EU member states under the European Arrest Warrant (Heard, C & Mansell, D, 2010). We also feel that it was a mistake that the UK, unlike countries such as Belgium, Denmark and Ireland, did not use safeguards to blunt the instrument of the European Arrest Warrants. In the countries mentioned, for example, they made statements to allow a person to revoke his or her consent to surrender and/or express renunciation of the speciality rule. One wonders why the Government of the day in the UK did not do the same, and whether it is possible for the present Government to use this safeguard.

We therefore hope that the extradition review gives the most attention to the European Arrest Warrant. The Freedom Association is an organisation committed to the protection of civil liberties.

Therefore, we felt it necessary to contribute to the extradition review, in particular the European Arrest Warrant. We feel that the European Arrest Warrant, which came into being in the aftermath of September 11th 2001, chose security and a fast extradition policy over justice through fair trial and a nation’s ability to protect its citizens. The situation has recently got worse. In July, the Government opted in to joining the European Investigation Order, which means that foreign police forces can order British police forces to gather evidence - including bank statements - on UK citizens. This will lower human rights standards and further attack national sovereignty. It will work hand in hand with the European Arrest Warrant, through which it has been made easier to extradite citizens, thus increasing the chances of miscarriages of justice taking place. The submission will now go through our concerns about the European Arrest Warrant. c) CONCERNS ABOUT PROPORTIONALITY AND HUMAN RIGHTS

The first duty of a nation state is to protect its citizens, ensure a fair trial and ensure habeas corpus. This has been protected for centuries in English law. In contrast, in continental law, which is adopted by all members bar the UK, Ireland and Malta, there is no law of habeas corpus for example, which precludes the possibility of detention without evidence and without a public hearing for more than 24 hours or, exceptionally, for up to 96 hours. As a consequence of the European Arrest Warrant working on the basis of mutual trust and recognition, all legal systems across the EU are assumed to be equivalent to our own, which they clearly are not. In practice, due to a majority of member states adopting the continental legal system, the

26 Written Evidence submitted by The Freedom Association (EXT 2)

European Arrest Warrant has undermined habeas corpus and other protections in English law from the state.

Supposedly, the European Arrest Warrant is there to tackle crime gangs and deals only with the most serious of crimes. However, the way the legislation has been framed across the EU did not make any room to exempt minor crimes. The balance of proof therefore, in arrest cases, has been reduced to an unacceptable level. For example, people have been extradited using the European Arrest Warrant for minor crimes like traffic offences, stealing a pig, stealing a chicken and stealing a mobile phone. It is little wonder, therefore, that the House of Commons Justice Select Committee has said, “There has been a worrying propensity from certain member states to use the EAW for minor offences which raises problems, both on human rights grounds and in terms of the costs to legal systems” (House of Commons Justice Select Committee, 2010). This highlights how, at the moment, the European Arrest Warrant is not used in a proportionate way.

Before the European Arrest Warrant, the UK justice system had a way of ensuring proportionality through a prosecutor test. The Justice Select Committee reports:

“The test ensures that the case is in the public interest and that there is a realistic prospect of conviction. This is not the in the interests of harmonising justice systems through the European Arrest Warrant legislation, the UK is now faced with mounting legal and human rights concerns. Examples of disproportionate use of the European Arrest Warrant come from many of the applications Poland has placed in the UK. One case involved the surrender of someone suspected of ‘unintentional receiving of stolen property’. This felon purchased a mobile phone for the equivalent of £20” (House Of Commons Justice Select Committee, 2010).

The issue of proportionality highlights that; England has been forced to accept lower legal standards, even if English judges and the Government have concerns. This is because both English Judges and the Government have to accept a European Arrest Warrant once it is issued by another member state. This is worrying as the English Legal System without the European Arrest Warrant, protects freedom of the individual against coercion by the state. The European Arrest Warrant has put all this in jeopardy. d) PROLIFIC USE OF THE EUROPEAN ARREST WARRANT

Considering the concerns with proportionality, it comes as no surprise that the European Arrest Warrant is used extensively. Like any tool of power to control

27 Written Evidence submitted by The Freedom Association (EXT 2) citizens, national governments seem keen to use it. Figures show that “11,000 European Arrest Warrants were issued in 2007, up from 6,900 in 2005” (Coulter, C, 2010). Figures, it seems, are inexorably rising to this day. The situation in the UK seems to be worse, as there have been more warrants for extradition of UK citizens than in most other EU member states. Thus, not only has the UK implemented an extradition treaty, due to its membership of the EU, which has lowered extradition safeguards, but it has also suffered most under that law. In total, 1,032 people—almost three a day—were detained and extradited by British police on the orders of European prosecutors in the 12 months to April 2010—up from 683 in 2008-09. The Home Office expects a further 70 per cent rise, to 1,700 cases, next year (Gilligan, A, 2010). Additionally, in 2009 over 256 cases were deemed dubious enough to be taken to Eurojust for mediation, where two or several member states disagreed over the scope and proportionality of a European Arrest Warrant. This is up from the already high figure of 237 cases in 2008 (Pop, V, 2010).

It is clear, therefore, looking at these figures, that the European Arrest Warrant has been used disproportionately and that, as the judiciary has been taken out of the process, it is powerless to act as an independent judiciary should. It is deeply worrying that these numbers will be seen as low in the future as, according to Roger Helmer, an MEP for the Midlands, we will see numbers rising soon to 1,500 a year (Helmer, R, 2009) and the House Of Commons Justice Select Committee has predicted a rise of 250% in future years (Justice Select Committee, 2010). The way the European Arrest Warrant works seems to be that, year on year, the number of cases increases, and, year on year, the number of miscarriages of justice gets worse. The number of European Arrest Warrant detentions in Britain has risen 43-fold since 2004, when there were only 24 (Gilligan, A, 2010). It is little wonder that, whilst David Blunkett will not admit he was wrong to sign up to the European Arrest Warrant, he admits that he did not realise the scope of the European Arrest Warrant or the problems it would cause. This was demonstrated when he said, “I was right, as Home Secretary in the post-9/11 era, to agree to the European Arrest Warrant, but I was insufficiently sensitive to how it might be used”(Gilligan, A, 2010) . e) ABOLITION OF DOUBLE CRIMINALITY

The European Arrest Warrant is extremely broad in scope and allows for surrender of European Citizens in up to 32 offences, thus increasing its chances of being used. There is often no need for a court hearing when a European Arrest Warrant is issued for a British citizen. All that is required is that a magistrate must tick one of 32 crimes that have been committed and indicate at what time, and with what degree of participation, the crime took place. After this, a British citizen may be extradited, even if one of the 32

28 Written Evidence submitted by The Freedom Association (EXT 2) crimes against the checklist is not actually a crime in the UK. Some of these offences cover hate crimes, which are not crimes in the UK. One particular area of concern on the list of 32 offences is racism and xenophobia. We believe that making racism and xenophobia an offence has encouraged governments across the EU to shut down freedom of speech, which also means freedom to offend. It plays into the hands of those who will use political correctness to stifle freedom of speech. Also, terms such as racism and xenophobia are purely subjective. For example, some people may see the term “white trash” as xenophobic, whilst others would dispute this. It will also mean that people will be extradited for careless remarks said in the heat of an argument. Surely, situations like this should not even reach court, let alone extradition. This highlights a stunning lack of common sense when it comes to the framework of the European Arrest Warrant. As a consequence of all this, the European Arrest Warrant could create a situation in which Portugal could have a British citizen arrested for making a racist remark, extradited and then taken to a jail in Portugal, awaiting trial for an offence that Britain itself does not recognise. It is totally wrong that, at the moment, the British Government could hand over citizens for behaviour which it does not see as a crime.

As the European Arrest Warrant abolishes double criminality in these 32 areas, this means that UK citizens may be extradited for offences which are not offences in the UK. On top of this, a territoriality clause makes it possible to extradite an individual to another state for committing an offence that is not a crime in the country where that activity took place. This effectively means that, according to William Rees-Mogg, writing in the Sunday Times at the time, “The European Arrest Warrant will mean that any British citizen may be extradited on a warrant from a European Judge, without any right to test the evidence in a British court, on a charge that may not be a crime in the UK”(Broadbridge, S, 2009). So, for example, UK citizens could be surrendered to Germany for the crime of holocaust denial, which is not a crime in the UK. Holocaust denial is not banned in the UK because, whilst the UK believes denying the Holocaust is completely wrong, it believes that banning it would be a blow to freedom of speech, which means freedom to offend. Dr. Toben, the Australian holocaust denier, discovered this recently on a visit to London (Daily Telegraph, 2008). This highlights how, because of the European Arrest Warrant, it has effectively become a crime in the UK. This is an intolerable situation as it undermines national legislation that was bought forward by UK governments which were elected by the UK electorate. Other examples of divergence of criminal acts across Europe include the personal use of marijuana, which is legal in the Netherlands. Euthanasia is legal in Belgium. In Poland, abortion is an offence. Finally, plane-spotters in Greece could be accused of espionage, which might logically progress towards a charge of terrorism.

29 Written Evidence submitted by The Freedom Association (EXT 2)

The European Arrest Warrant is not compatible with English law. This is because, under the Extradition Act 1989, dual criminality was established, “where the fugitive’s alleged conduct discloses an equivalent offence under UK law which would be punishable in both countries with a prison sentence of 12 months or more” (Broadbridge, S, 2009). This act has not been repealed and goes directly against the European Arrest Warrant provisions that abolish double criminality in 32 areas, including for offences which are not offences in the UK. We believe, therefore, that the European Arrest Warrant either needs to change so that double criminality requirements and the requirement for prima facie evidence are re-introduced or that the UK needs to remove itself from the European Arrest Warrant system and rely instead on the Extradition Act of 1989, which seems to have done a far better job in protecting British citizens.

Nick Hawkins, the Shadow Home Office minister at the time, suggested a way that this problem might be dealt with. In 2003, at the committee stage of the extradition bill, he said “it would be even better if all cases could be looked at by a UK court before a British citizen is extradited for something that is not a crime in UK law” (Hawkins, N, 2003). We hope the review will look into whether or not it is possible to include a clause along these lines. If these reforms of the European Arrest Warrant are not allowed, serious consideration should be given to the UK pulling out of the European Arrest Warrant altogether. The review must not make the mistake of the previous Labour Government, which ignored Nick Hawkins’s call not to dismiss the issue (Hawkins, N, 2003).

There is also clear evidence that Bob Ainsworth (a Home Office Minister at the time), who introduced the legislation to Parliament on behalf of the Government, misled Parliament. This is because he said, in response to a question by Gwyneth Dunwoody, a Labour backbencher at the time, that, “there was a test for double criminality under the European Arrest Warrant and that if the crime alleged is not a crime in the United Kingdom, there is no dual criminality, and the request cannot proceed” (Broadbridge, S, 2009). As the list of 32 offences highlights, as well as the example of holocaust denial, plainly this is not the case. With this in mind, we should like the Extradition Review Panel to look into whether this was an example of the intentional misleading of Parliament, and whether, because of this, action should be taken against the then Minister at the time, or that a re-vote should take place on the grounds that the Parliament at the time was not given all the available evidence about the European Arrest Warrant.

A legal expert, Cramer, has summarised the removal of double criminality in these 32 areas.

30 Written Evidence submitted by The Freedom Association (EXT 2)

“The system gives primacy to the interest of prosecution and punishment in a requesting state over a conscious choice of lenience in a requested state. Accordingly, a Member State’s political decision against criminalisation is mistrusted . . . there are clear signs that the ‘high level of confidence’ on which the decision is formally based cannot be reconfirmed by references to reality” (Currie, S & Dougan, M, 2009).

Cramer’s point here highlights the way in which the concept of innocence until proved guilty, which is central to common law, has been undermined. This undermines habeas corpus, as habeas corpus means that people can be let out of detention early, being assumed innocent. This stops prosecutors trying to build up a case against a person and treating them like they are guilty until proved innocent. Whilst this may not work in the interests of prosecutors, it does work in the interests of justice. Cramer, however, proves that the law is now working in the interests of prosecutors, due to the abolition of double criminality. This undermines certain protections which were put in English legal tradition to stop this, for example, with habeas corpus. f) LOWERING NATIONAL LEGAL STANDARDS

The Freedom Association expressed concerns about lowering national legal standards in 2006 saying, “we would like to be reassured that in any consideration of the criminal law competences of the EU, members of the Sub-Committee appreciate that there is in fact no equivalence between systems of criminal justice based on Code Napoleon and those appertaining in what might be broadly described as the Anglosphere” (The Freedom Association, 2006, p.71). The Freedom Association believes that, in the words of Edward Garnier, the Solicitor General, “There is a move towards the homogenisation of systems of justice in the EU”. Garnier then went on to say, “the Government cannot get away with chipping away at our historic freedoms” (Garnier, E, 2003). Edward Garnier’s words showed the dangers of the European Arrest Warrant, which lowered national legal standards and put our historic freedoms at risk. Nick Hawkins highlighted the troubles that the issuing of the European Arrest Warrant for a British citizen has caused. He said, “the form of the European Arrest Warrant, a six page example was sent to me, does not fit with the traditions of UK law” (Hawkins, N, 2003). We believe that, since Nick Hawkins made this assertion in 2003, regrettably not much has changed. Therefore this is a key area that the review should examine.

On top of this, the UK for many years has made extradition treaties with other countries in the EU based on high legal morals. The European Arrest Warrant, which seeks to harmonise the justice systems across the EU, consequentially lowers the UK’s standards. For example, it is known that many of the EU countries that recently joined, like Latvia and Bulgaria, which are members of

31 Written Evidence submitted by The Freedom Association (EXT 2) the EU, have terrible human rights records as recorded in reports by Amnesty International. In fact, when the European Arrest Warrant was enacted, Amnesty International reported “instances of alleged police brutality and breaches of fundamental rights in 8 of the 15 current EU Member States and 5 of the 10 countries about to join” (Alegre, S, 2004). In 2009, five years after the European Arrest Warrant came into being, according to Amnesty International’s 2009 report, “Europe too often lacked political leadership to ensure the protection of [its] human rights with many states also lacking the political will to live up to their obligations” (Amnesty International, 2009). If European states, particularly countries like Greece, have such terrible records of treating their own citizens correctly, one has to wonder how they will treat foreign citizens who are extradited through the European Arrest Warrant.

Lord Lamont, Vice President of the Bruges Group, was a vociferous critic of the European Arrest Warrant, both within and outside Parliament. He was correct to say that:

“People on trial in a foreign country are often treated unfairly. Many southern European Countries such as Spain and Greece provide little or no legal aid, and if they do, they only offer inexperienced lawyers. In some countries bail is frequently refused to foreigners for fear they will abscond. In fact, there are several hundred British citizens on remand in Europe’s prisons many of whom would have been released on bail if they were national’s of the country holding them. This discriminatory imprisonment before trial results in punishment before guilt is proven and handicaps the victim in the collection of evidence for his defence. In addition, translation facilities for foreigners are not always available, making judicial proceeding incomprehensible” (Lamont, N, 2003).

The worries Lord Lamont had about the European Arrest Warrant have been proved correct by the cases of Gary Mann’s extradition to Portugal and Andrew Symeou’s to Greece.

Some EU member states also have no tradition of an independent judiciary, meaning that judicial decisions are often made on the whims of politicians, rather than looking neutrally at the evidence—yet, due to the system, British citizens can easily be extradited to these places and be locked up whilst awaiting trial for a long time in abominable conditions, with hardly any right to a defence. As the Ministry of Justice has no veto in the process, there is hardly anything a nation state in the EU can do to stop this unsatisfactory situation from emerging. This is acknowledged by the House of Commons library briefing note on the subject, which says that, “it will also be a very different system from the current system since there will be a minimal role for ministers” (Broadbridge, S, 2009). Sovereignty and rights are also lost because foreign

32 Written Evidence submitted by The Freedom Association (EXT 2) prosecutors do not have to present evidence to the British courts; they can just demand the person be "surrendered”. In this there is a presumption that a person is guilty until proven innocent as is the norm in continental jurisdictions. It is another instance in which, in the name of counter-terrorism, entire populations are treated like potential criminals.

The whole process of issuing a warrant, being arrested by the UK police, a national court accepting the request of another member state, the chance of a right of appeal to a district judge before being extradited to another member state will happen within 90 days (Broadbridge, S, 2009). For a complex issue this seems extremely fast. We urge the review to look at this time frame, compare it to other extradition treaties across the world, and see if it can be extended.

Even if you do not believe that the European Arrest Warrant has lowered British legal standards, it is true to say that it is very hard to see a picture where all the nation states of the European Union could agree on a single judicial interpretation. The late Hugo Young pointed this out, using the category of fairness. He said, “for example in Belgium a suspected paedophile is still being held on remand after more than five years”. In Britain, a suspected terrorist can be held without trial for six months and then another six and another. A German might object to that.” (Young, H, 2002). With all this to consider, it was hard to envisage, at the time when the European Arrest Warrant came into being, that there would be common standards on which all EU members could agree. This has proved to be the case. This is dangerous, as often, when agreements between many nation states are not agreed upon, to make the system work, the lowest standards are implemented, thus endangering individual freedom. We believe this has happened when it comes to the European Arrest Warrant. It is true to say that Hugo’s Young’s prediction that “the European Arrest Warrant, far from being an instrument of justice, will soon be notorious as an agent of multi-national iniquities” (Young, H, 2002) has been proved correct. g) COMPARATIVE STUDIES OF LEGAL SYSTEMS

Despite these concerns that, due to the incorporation of other member states’ legal systems, the European Arrest Warrant lowers legal standards, this issue has not been looked at in great detail. This has meant that the Government knows little about the legal systems to which the UK would be subject. This is despite great concerns about the effect they would have on cherished British values like habeas corpus, innocence until proved guilty, the right to a fair trial according to those traditions, and trial by jury. Torquil Dick- Erikson researched the issue and was present at a seminar held in San Sebastien, Spain in April 1997, where the corpus juris project for a single EU

33 Written Evidence submitted by The Freedom Association (EXT 2) criminal code was unveiled by the European Commission (Erikson, T, 2007). The meeting was the first step on the way to the European Arrest Warrant. Dick-Erikson asked if any of the assembled, or any EU institutions, had done any studies comparing the English common law system with other continental systems. He found out that there had been no attempt whatsoever to carry out comparative studies between the British system and the continental system. Such a study might conceivably have demonstrated that, in terms of protecting freedom of the individual and ensuring the conviction of criminals, English common law is actually superior and that no equivalence could be made between the two systems.

Since the European Arrest Warrant became UK law in 2003, the Government has made no attempt to compare the differing legal systems. Apparently, when asked, the Labour government said it was carrying out a study on the matter. However, the results of this study have never been published. We believe the extradition review should ask the Coalition Government to reveal the fruits of the research done here. If no research has been done, they should ask for such research to be carried out. This would go some way into looking at how the European Arrest Warrant has undermined the English judicial system. It may also encourage the British Government to ask for the European Arrest Warrant to incorporate English Common Law. If the EU is not amenable to this suggestion, pulling out of the European Arrest Warrant may be the only way to ensure that high legal standards are maintained in England and Wales. h) CASE STUDIES

It is important to look at case law when studying the European Arrest Warrant. A famous case of where, due to the European Arrest Warrant, there was a terrible miscarriage of justice was the case of Andrew Symeou, a prisoner in Greece awaiting trial for murder. Thanks to the European Arrest Warrant, Andrew Symeou’s life change irrevocably for the worse. Andrew Symeou was accused of the very serious crime of murder and if he is found guilty he could spend his life, or a substantial chunk of his life, in prison. This is despite all the evidence that organisations like Fair Trials International have gleaned, pointing to an innocent man having his liberties unjustly taken away and his life destroyed. This is all happening whilst the UK authorities have to look on and obey their

European Union masters. He was accused of the crime even though many of the witnesses who implicated him were, according to Fair Trials International, tortured to give confessions which they promptly renounced on their return to the UK, as well as giving identical statements. The situation worsens, given that the evidence from the CCTV cameras at the nightclub proving that he

34 Written Evidence submitted by The Freedom Association (EXT 2) was not there has mysteriously gone missing and therefore cannot be used in his defence. Greek police officers also seem to have amazing powers. In their reports, they have taken witness statements from two places at once. Clearly the evidence was fabricated, but, despite this, Andrew Symeou was extradited (Fair Trials International, 2010).

Mr. Symeou, when extradited on 26th July 2008 after Greece issued an arrest warrant to the UK government on 18th July 2008, was only 20. Since then, the life of a man, born in Enfield, has changed irrevocably. We complain rightly about the last Labour Government introducing 42 days detention without trial, yet this looks mild when you consider that Mr. Symeou has been held without trial in prison for ten months. The rest of the time he has been on bail in Greece, without being able to leave the country. There were hopes that he would face trial in July 2010 but this proved to be illusory. A trial date has finally been set for March 2011. His treatment has been no different to living in a police state. This is because he was held in the notorious Korydallos prison for 10 months where in the past anti-government protesters have been held. Many of the people who have escaped this prison alive have spoken about being tortured and therefore it is no surprise that Amnesty International has called the prison the worst in Europe (Fair Trials International, 2010). All this shows that the idea of innocence until proved guilty, and not being held indefinitely, is not part of the EU handbook. The UK can only watch on from the sidelines whilst this is happening, as the European Arrest Warrant removes the national judiciary from the process. This is because the national judiciary's role in the process is just to rubber stamp the extradition of a UK citizen, even if it has grave concerns about the case and about the treatment the citizen will receive. The European Arrest Warrant has allowed this to happen because, in the legislation, there was hardly a section about the risks or concerns of miscarriages of justice and what would be done if, for example, someone were wrongly imprisoned. The European Arrest Warrant, as it is currently designed, has both led to miscarriages of justice and then done nothing to resolve the miscarriage of justice once it has taken place.

Another case highlighting the deficiencies of the European Arrest Warrant system is that of Garry Mann. Garry Mann has recently returned to Portugal to serve a sentence for affray, which had been suspended on the basis that he would not return to Portugal. The European Arrest Warrant is made to work in mysterious and Machiavellian ways, it seems. Despite describing Garry's extradition as an "embarrassment”, the English courts threw in the towel and said they were powerless to stop it (BBC, 2010). Once again, the altar of ever- closer union was put above both national sovereignty and justice.

35 Written Evidence submitted by The Freedom Association (EXT 2) i) MUTUAL TRUST AND RECOGNITION

For the system to work, it requires mutual trust and mutual recognition across all member states. However, due to the failures of the system as described above and the vastly different legal systems and traditions across member states, there was always a lack of mutual recognition and trust. Therefore, evidence of misuse has led to distrust between negotiating member states, rendering the European Arrest Warrant virtually unworkable. For example, Fair Trials International points to the fact that there are vastly unacceptable differences in rights given to a defendant across the EU (Heard, C & Mansell, D, 2010). The Bill itself says, “if mutual trust is undermined it can lead to the suspension of the EAW only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union”

(European Council of Ministers, 2002). The comments of the Council of Bar and Law Societies of Europe have summarised the situation well, saying, “The difficulties in the implementation of the [EAW] have shown that mutual recognition will not work if it is not based on mutual trust, and mutual trust cannot be taken for granted; it must build on common fundamental values” (Coulter, C, 2010). It is The Freedom Association’s belief that every nation has a distinct set of values that cannot be harmonised and therefore it is extremely hard to build mutual trust between different nation states.

In the case of Andrew Symeou, for example, there have been serious breaches. With this in mind, we believe the Extradition Review should ask the government to push for the suspension of the European Arrest Warrant due to a lack of mutual trust (European Council of Ministers, 2002). Although there are attempts, through the EU’s roadmap in 2009, to strengthen procedural rights of suspected or accused persons in criminal cases, this does not do enough. There are still many EU member states which fail to provide fundamental rights to defendants. If it were not for the European Arrest Warrant, there would be much less of a chance of British citizens being exposed to these failings in other EU countries. To summarise, it is another example of the EU putting ever-closer union to create a United States of Europe via harmonisation, above individual liberty. j) A SUGGESTION

We should like to make a suggestion to the extradition review in order to solve the problems caused by the European Arrest Warrant. Gerard Batten MEP, a fierce opponent of the EAW, offers a distinctively British suggestion:

36 Written Evidence submitted by The Freedom Association (EXT 2)

“If you want higher standards in European criminal proceedings, then adopt Habeas Corpus, trial by jury and the main provisions of the and the as the common European standard” (Batten, G, 2010).

The Government should push for these standards, and if it believes that this is not possible, then it should extricate itself from the mess that is the European Arrest Warrant.

Graham Watson, when explaining his support for the European Arrest Warrant has said:

“The EAW has vastly enhanced the rule of law on our continent… those who oppose its use are those who effectively oppose the rule of law … and the protection that *it+ gives our citizens” (Watson, G, 2010).

However, many critics contend that it is the rule of law, as it has been known, loved and fought for, in one form or another, which can find itself the victim under the EAW. The only way we can go back to the rule of law that worked is through reinstating English justice.

CHAPTER 3 – THE EUROPEAN INVESTIGATION ORDER a) EUROPEAN INVESTIGATION ORDER

Unfortunately, the European Investigation Order (EIO) has made the chances of reinstating British justice much less likely. The European Investigation Order came into being on July 27th 2010 after Theresa May, the Home Secretary, made a statement to the House of Commons telling Parliament that the Government had signed up to the Order (May, T, 2010). There was no vote on the matter. The European Scrutiny Committee, led by William Cash MP, complained about having insufficient time to debate an issue of such constitutional importance (Cash, B, 2010). Additionally, Keith Vaz MP, the Chairman of the Home Affairs Select Committee, believed that, before signing up to the European Investigation Order, the Home Affairs Select Committee should have had a chance to scrutinise it, as a result of proposed changes to both Britain’s police and judiciary (Vaz, K, 2010). It is our belief that, considering that the European Investigation Order is a significant issue, leading to vast changes in the UK’s criminal justice system, Parliament should have been given time to scrutinise and vote on the matter. Therefore, we are calling for a retrospective vote on the matter, so that Parliament may be given a proper voice. We also feel that the referendum lock, which is triggered when a significant transfer of power takes place between the UK and the EU, should have been triggered. If this had happened, the British people would have been able to express their views on an issue of constitutional importance. 37 Written Evidence submitted by The Freedom Association (EXT 2) b) WORKING IN PARTNERSHIP WITH THE EUROPEAN ARREST WARRANT

The European Investigation Order will work in partnership with the European Arrest Warrant. The fear is that the European Investigation Order, which covers the gathering of evidence across the EU, will lead to British citizens, on the orders of other EU member states’ police, being investigated for minor crimes. To do this, British individuals could be faced with lengthy surveillance, on the orders of foreign police, even for minor crimes or where no crime has been committed. We are surprised that the Government did not learn the lessons from the European Arrest Warrant when it decided to opt into the European Investigation Order, which led to many people being extradited for extremely minor crimes. This is clearly a waste of time and a breach of individual privacy. It is also very detrimental to national sovereignty that British police, because of the Government opting in to the European Investigation Order, are powerless to act to protect British citizens. In the instance of both the EAW and the EIO, prosecutors in other countries have been given greater powers over British subjects than have ever been given to our own police forces. Not the least of our concerns is that these powers are entirely arbitrary. c) EUROPEAN INVESTIGATION ORDER DOES NOT TACKLE TERRORISM

Like the European Arrest Warrant, the European Investigation Order aims to harmonise criminal justice across the EU, in this case investigation techniques to remove differences between member states. The EU believes this will help cut crime as well as tackle the threat of international terrorism. The UK Government, when signing up to the European Investigation Order, also expressed these reasons for its support. However we believe that the European Investigation Order will have the opposite effect. As the experience of the European Arrest Warrant has shown, there is not a strong concept of innocence until proved guilty in the legal systems of other member states. Often a British individual could be spied on, because a foreign prosecutor has minor suspicions, rather than concrete evidence. British police will then be forced to follow this up, once an investigation order is issued by a foreign prosecutor to the UK, even if they feel the person who is being investigated has little to do with terrorism and that therefore the investigation is a breach of his or her human rights. All the time taken to spy on people like this, which will happen as there is no European Prosecutor’s test, is wasting valuable time, which could be better spent on watching terrorists, based on concrete evidence. d) HUMAN RIGHTS RECORDS OF OTHER COUNTRIES

There are obvious problems when it comes to other EU member states that are signed up to the European Investigation Order. For example, would the

38 Written Evidence submitted by The Freedom Association (EXT 2)

UK really want to follow Bulgaria’s brutal interrogation techniques, where there is a record of torture used? With this in mind, would the UK want to accept an investigation order issued by the Bulgarian police, where finding evidence on someone, rather than seeing them as innocent until proved guilty, is the order of the day? Considering that Amnesty International, in its report in 2005, had concerns about human rights in five of the ten countries which subsequently joined the EU in that year, this is not a baseless concern. e) POWERLESSNESS OF THE UK GOVERNMENT

Like the European Arrest Warrant, both the Ministry of Justice and the judiciary as a whole will not be able to intervene in any cases if they feel the investigation techniques are detrimental to individual liberty. This is because the European Investigation Order gives prosecuting authorities in any EU member state the power to order British police to collect and hand over evidence, interrogate suspects or launch surveillance operations, regardless of UK judiciary objections. These requests may be trivial but they will be forced to investigate. For example, British police are now forced to investigate criminal defamation, as this is a crime in Portugal, even though this is not recognised by English law. f) WHAT THE UK GOVERNMENT SHOULD DO

We believe, therefore, that the UK government should use the negotiation period taken in the drafting of this Bill to argue for human rights safeguards, as well as a prosecutor’s test to stop people being investigated for minor crimes. We also believe that they should argue for national Government, with the Ministry of Justice being given more say, when both the European Arrest Warrant and a European Investigation Order are submitted. This would make it more likely that people would only be extradited and investigated if it was in the national interest and if they were suspected of committing a major crime.

However, it must be said that we place little hope on the UK’s ability to be able to implement in the EU what it wants negotiated. For example, the UK has always argued for reform of the Common Agricultural Policy in the EU, yet reform of the Common Agricultural Policy at the moment does not seem a possibility. When the UK signed up to the European Investigation Order, believing it could reform the framework of the Order, it ignored previous evidence. Considering this, we believe this threat could have been mitigated had proper Parliamentary scrutiny of the European Investigation Order taken place. This could have been achieved by giving both the Home Affairs Select Committee and the European Scrutiny Committee time to scrutinise the issue, to make recommended changes and to advise the Government on whether or not it should have opted in. Additionally, Parliamentary time in both the House of Commons and the House of Lords should have been given over, 39 Written Evidence submitted by The Freedom Association (EXT 2) and a vote should have taken place on the matter. Had this been done, the Government might have realised that it would have been best to opt out of the European Investigation Order, due to the risks it poses to the UK legal system, through its ignorance of cherished values such as habeas corpus, innocence until proven guilty and the right to a fair trial following those traditional safeguards. g) SPECIFIC CONCERNS

The legislation also causes some very specific concerns. In the Coalition agreement, one of the main commitments made was to protect civil liberties, which the parties involved believed had been undermined by the previous Labour Government. One area to which the Coalition Government has expressed opposition is the DNA national database, believing that it contained many innocent people’s data. The Coalition Government only wanted the DNA of people who had definitively committed serious crimes to be held by the police and the judiciary. However, the European Investigation Order could undermine this commitment. This is because the European Investigation Order will see UK judges lose the power to block DNA requests. Effectively, other EU member states could create a situation where on a foreign prosecutor’s orders, the DNA of many innocent British citizens could be held.

With all this in mind we believe that Jago Russell, the Director of Fair Trials International, was correct to say that, “Huge amounts of police time could be wasted dealing with unreasonable demands for evidence issued by prosecutors across the EU. The cost to our privacy will be enormous. Police Officers from Portugal to Poland will have free rein to demand recordings of private conversations, copies of bank statements and our DNA” (Prince, R, 2010). Jago Russell’s remarks highlight that the UK police job - already doing a hard enough job—will be stretched even further as a result of the European Investigation Order, for no benefit to the public whatsoever.

CHAPTER 4—CONCLUSION

In our opinion, the European Arrest Warrant has caused more problems than it has solved, due to issues of compatibility with Human Rights, the Rule of Law, traditional UK common law safeguards, and European Union member states’ sovereign autonomy. The European Arrest Warrant has allowed British citizens to be extradited and held in prison for a long time without trial, unfairly and often when they are innocent. In the past, this was not allowed to happen because the UK Justice Minister would have vetoed the extradition request, not only on the grounds of shaky evidence, but also because the nation's paramount job is to protect its citizens. This is what happened in the past, when we were not signed up to the European Arrest Warrant; the vast 40 Written Evidence submitted by The Freedom Association (EXT 2) majority of British people would probably like to go back to these happier days. One of the ways a nation may protect individual citizens is through protecting them from arbitrary arrest. If we still wish to be a nation in which ‘innocence until proved guilty’ means something, we need to pull out of the European Arrest Warrant. At the moment, the European Arrest Warrant has trampled over centuries of old tradition in Britain and led to a situation where a citizen is deemed guilty as soon as the judicial system is interested in him or her.

We hope the Government listens to one of its ministers, Oliver Letwin MP, who, when he was Shadow Home Affairs Secretary, said that, “The European Arrest Warrant will allow British citizens to be extradited for crimes, some of them vague and undefined, that are not crimes in the UK. This is a gross infringement of our civil liberties and would lead to our citizens facing trial in other countries, some of whose legal systems operate on the presumption of Guilt” (Marsh, C, 2005).

We, of course, believe the Government should first see if other EU member states are willing to reform the European Arrest Warrant. However, we expect this to achieve little, as in the past, when this has been mooted the European Commission has quashed it due to fears that reform would lead to the unravelling of the whole European Arrest Warrant system. The worry, of course, is that, as happened when the present Government signed up to the European Investigation Order in July 2010, one cannot opt out of the legislation once one has opted in. If this is the case, The Freedom Association believes that this, amongst other issues with our EU membership, is so important both to individual liberty and national sovereignty that a referendum on our membership of the EU should take place.

19 January 2011

41 Written Evidence submitted by The Freedom Association (EXT 2)

BIBLIOGRAPHY

Alegre, S, 2004. European Arrest Warrants: A lapse in Justice: http://www.nytimes.com/2004/02/02/opinion/02iht-edalegre_ed3_.html?pagewanted=1 [Accessed 12/12/2010]

Amnesty International, 2009. Amnesty International Report 2009: State of the World’s Human Rights. Source: http://thereport.amnesty.org/en/regions/europe-central-asia [Accessed 12/12/10]

Dougan, M, & Currie, S, 2009. 50 Years of the European Treaties: Looking Back and Thinking Forward. Oxford. Hart Publishing

Batten, G, 2010. Gerald Batten MEP: in a speech to the European Parliament (EP). Source: http://www.youtube.com/watch?v=9jdwHrj694Q [Accessed 12/12/10]

BBC News, 2010. England Fan Extradition Case branded embarrassment. Source: http://news.bbc.co.uk/1/hi/england/kent/8589688.stm [Accessed 16/12/2010]

Broadbridge S, 2009. The Introduction of the European Arrest Warrant. Source: http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-01703.pdf [Accessed 16/12/2010].

Cash, W, 2010. European Investigation Order. Source: http://www.theyworkforyou.com/debates/?id=2010-07-27d.881.0 [Accessed 17/12/2010

Coulter, C, 2010. Proposals to Bolster Defendants Right of Interpretation. Source: http://www.irishtimes.com/newspaper/ireland/2010/0315/1224266292532.html [Accessed 15//12/10]

European Union Council of Ministers, 2002. Council Framework decision of 13th June 2002 on the European Arrest Warrant. Source: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002F0584:EN:HTML [Accessed 15/12/2010]

Fair Trials International, 2010. Campaigns: Justice in Europe. Source: http://www.fairtrials.net/campaigns/article/justice_in_europe/#EAW [Accessed 14/12/2010]

Fair Trials International, 2010: Press Release on Andrew Symeou. Source: http://www.justice-for-symeou.com/TRIAL_DATE_SET_FOR_ANDREW_SYMEOU.pdf [Acessed 14/12/2010]

Garnier E, 2003. House of Commons Standing Committee D on the Extradition Act 2003. Source: http://www.publications.parliament.uk/pa/cm200203/cmstand/d/st030121/pm/30121s02.htm# en

D [Accessed 19/12/2010]

Gilligan, A, 2010. Surge in Britons exported for trial. Source: http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-in-Britons-exported-for- trial.html [Accessed 13/12/2010]

42 Written Evidence submitted by The Freedom Association (EXT 2)

Hawkins, N, 2003. New Clause 11: Extradition Bill. Source: http://www.theyworkforyou.com/debates/?id=2003-03- 25.184.0&s=Double+Criminality+speaker%3A10264#g189.0 [accessed 19/12/2010]

Hawkins, N 2003. House of Commons Standing Committee D on the Extradition Act 2003. Source: http://www.publications.parliament.uk/pa/cm200203/cmstand/d/st030121/pm/30121s02.htm# end [Accessed 19/12/2010]

Heard, C & Mansell, D, 2010. Fair Trial’s International Submission to the Extradition Review Panel. Source: http://www.fairtrials.net/images/uploads/FTI%20submission%20to%20the%20extradition%2 0review%20panel.pdf [Accessed 14/12/2010]

Helmer, R, 2009. Roger Helmer MEP warns us about the Dangers of the European Arrest Warrant. Source: http://www.tfa.net/tfa_blog/2009/08/roger-helmer-mep-warns-us-about-the- dangers-of-the-european-arrest-warrant.html [Accessed 12/12/2010]

Justice Select Committee Report, 2010. Justice Committee Seventh Report: Justice Issues in Europe. Source: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmjust/162/16202.htm [Accessed 16/12/2010]

Lamont, N, 2003. The Dangers of the EU Arrest Warrant. Source: http://www.brugesgroup.com/news.live?article=156&keyword=10 [Accessed 15/12/2010]

Marsh, J, 2010. The European Arrest Warrant: Briefing prepared by James Marsh. Source: http://www.euromove.org.uk/fileadmin/files_euromove/downloads/EAW.pdf

[Accessed 18/12/2010]

May, T, 2010. European Investigation Order. Source: http://www.theyworkforyou.com/debates/?id=2010-07-27d.881.0 [Accessed 17/12/2010

Pop, V, 2010. European Arrest Warrant still Delivering Injustice. Source: http://euobserver.com/?aid=30527 [Accessed 14/12/2010]

Telegraph, 2008. Editorial: Dr Fredrick Toben’s Arrest Should Alarm us all. Source: http://www.telegraph.co.uk/comment/telegraph-view/3562585/Dr-Fredrick-Tobens-arrest- should-alarm-us-all.html [Accessed 15/12/2010]

The Freedom Association, 2006. Written Evidence to the House of Lords European Union Committee. Source: http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/227/227.pdf

Vaz, K, 2010. European Investigation Order. Source: http://www.theyworkforyou.com/debates/?id=2010-07-27d.881.0 [Accessed 17/12/2010

Watson, G, 2010. Graham Watson MEP: In a speech to the European Parliament (EP). Source: http://www.youtube.com/watch?v=9jdwHrj694Q [Accessed 4/4/2010]

43 Written Evidence submitted by The Freedom Association (EXT 2)

Young, H, 2002. Europe Justice Demands the Glory of British Liberty. Source: http://www.guardian.co.uk/world/2002/feb/05/eu.politics [Accessed 15/12/2010]

Dick-Erikson, T, 2007. Memorandum by Torquil Dick-Erikson. Source: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62wed06.htm [Accessed 15/12/201

44 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) 1. Unique & Distinctive Evidence

There are two factors, which will affect the balance of evidence received by the JCHR:

1.1 There is a plethora of wellresourced organisations campaigning for suspects’ human rights (Liberty, Fair Trials International etc), all with media officers and access to high profile lawyers, compared to a dearth of organisations campaigning for victims of crime. (Victim Support counsels victims; it is not a ‘campaigning’ organisation.)

1.2 With respect, the Call for Evidence implies JCHR is interested only in the human rights of suspects being extradited from the UK. There is no reference to the import extradition of absconders for prosecution in the UK or to the human rights of victims of crime, whether in the UK or overseas.

The JCHR’s 32nd Report identified the need, “to enhance the involvement of victims in the criminal justice system to ensure victims' needs are at the heart of what the criminal justice system does.” It is inconsistent of the JCHR to note this specifically but implicitly exclude it later as a separate evidential requirement in reviewing UK extradition policy.

Ergo there is a high probability that evidence will be biased heavily towards issues surrounding export extradition of suspects with little balance for import extradition of suspects or victims of crime in both import and export extradition cases.

My knowledge and experience enables me to address this imbalance as far as one person can do so. I am a victim of serious acquisitive crime in which the suspect absconded. The police have struggled for 4 years already, still without meeting Crown Prosecution Service (“CPS”) standards for a European Arrest Warrant (“EAW”) for the suspect, whose location is known. My knowledge arises from working with the police, CPS, my solicitor and my own research.

In this respect, I bring a unique and distinctive perspective to the evidence.

2. Confidentiality

In view of ongoing police inquiries, my name and location cannot appear in the public domain, even as victim. Publishing such details is likely to prejudice

45 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) police inquiries and constitute a ‘tipping off’ offence.8 Reference to the author should be “name supplied: withheld for legal reasons” (or similar). If invited to a hearing, appropriate precautions would have to be taken.

3. Scope of Evidence

With limited exceptions, my evidence relates to the following topics in the Call for Evidence:

3.1 The European Convention on Human Rights (“ECHR”).

i) Articles 5, 6, 8 and 14, which are specified in the Call for Evidence.

ii) Article 1 of the First Protocol: the right of all natural and legal persons to peaceful enjoyment of possessions – sometimes expressed as the right not to be deprived permanently of their property, including money. It applies inter alia to victims of acquisitive crime and requires the state to ensure suspects are brought to justice so that, as far as is practicable, victims are not deprived of their property.

3.2 The Extradition Act 2003 (“EA 2003”).

3.3 European Arrest Warrants (“EAWs”).

I make minimal comment on bilateral treaties (my experience is limited to media reports) and the European Investigation Order proposal, which I have insufficient time to address.

4. The Extradition Act 2003 (“EA 2003”)

4.1 I aver that the right time to ensure extradition treaties provide proper protection against unjustifiable infringement of human rights is when Government negotiates or amends treaties by mutual agreement. EA 2003 should not be used as a vehicle for changing international treaties retrospectively or for laying down preconditions for new treaties. Treaties with different states require different conditions. Moreover, s.21 of EA 2003 requires the judge to take human rights into account in export extradition cases anyway.

If human rights become an issue later (for example after regime change), Government can suspend bilateral treaties pending clarification or, if necessary, rescind them.

8 Under s.333 of The Proceeds of Crime Act 2002 (as amended) 46 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) 4.2 Any proposal to hold trials and allow sentences to be served in UK in export extradition cases is unaffordable, a completely unnecessary burden on the taxpayer and impractical. It would be a ‘step to far’ for the UK public to accept.

i) Prisons and (for illegal immigrants) detention centres are full to capacity, despite ‘early release schemes’, alternative punishment methods and the number released on bail or not detained. The prison population in England and Wales alone is 85,000 and keeping a prisoner in jail costs an average of £38,000 per year.9

ii) Our Courts appear to be at capacity with a backlog of cases, even before savings imposed by the Comprehensive Spending Review.

iii) There are inadequate resources already to track properly suspects released on bail: asylum seekers and illegal immigrants regularly are not detained and ‘disappear’ – currently 60,000 asylum seekers are lost without trace.10 It is unreasonable to expect the police and the Border Agency also to monitor those who offend overseas and abscond to the UK, whilst they await trial in the UK.

iv) The other state in an extradition treaty would expect equality so it would require absconders from the UK to be tried in the destination state too, thereby increasing dramatically the cost of prosecuting even offences that had taken place in the UK, including the costs of witnesses’ travelling expenses and police and CPS resources.

v) It would be an abuse of victims’ Human Rights if they and/or their families (unless reimbursed as witnesses) had to incur overseas travelling costs to see justice done.

vi) If persons offend overseas, they know or should know the potential consequences of their actions, for example of drug smuggling or possession. It is a fundamental principle that ignorance of the law is no excuse. UK citizens cannot reasonably expect to go overseas, ignore local laws and return home secure in the knowledge that they will not be extradited from the UK for prosecution and sentence.

vii) Pursuant to (4.2)(vi), the UK has prisoner transfer agreements in place with many states anyway, allowing offenders to serve all or part of their sentence in the home state after conviction. This is more than sufficient in most cases. However, where a prisoner transfer agreement exists,

9 Justice Secretary, Kenneth Clarke, 30 June 2010 10 http://www.bbc.co.uk/newsbeat/12160498 47 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) enabling convicted offenders to serve their entire sentence in the home state, it is an unnecessary waste of public money to extradite them only to have them returned instantly to UK to serve their sentence.

viii) In extreme cases, the Government has discretion to permit offenders to serve their prison sentences here if convicted in another state.11 There are no grounds to offer this as a right: minsterial discretion is sufficient.

It would be unworkable to recharge costs to the other state. The cost to the public purse of debt collection alone would be substantial. States with existing debt problems are unlikely to treat such debts preferentially. Along with those states where human rights concerns exist, they are the most likely to default.

The UK already is ‘destination of choice’ for illegal immigrants, asylum seekers and EU gangs travelling abroad intending to commit crime. It would be absurd for the UK also to became ‘destination of choice’ for offenders worldwide, who made no contribution to UK society but know that, if they abscond to UK, they would benefit from legal aid and ill- advised support of human rights activists, with a strong probability of asylum (at further cost to the taxpayer) if not convicted or on release. I refer to (8.4)(ii) and (8.5) below.

I cannot comprehend why this concept even is on the agenda during a financial crisis. It is distasteful to British taxpayers and victims of crime throughout the world.

4.3 The starting point and essential element of Human Rights is that they are, “Inherent, inalienable and universal” and cannot be taken away. As far as is possible, The Human Rights Act 1998 (“HRA 1998”) requires legislation to be interpreted and implemented in a way that is compliant with ECHR.

Moreover, higher Courts can make ‘declarations of incompatibility’ in respect of primary legislation, triggering powers that allow Ministers to make ‘remedial orders’ to amend legislation to bring it into line with ECHR rights. Therefore, it is therefore unnecessary to amend EA 2003 or any other UK laws solely to safeguard human rights. Where not explicit, respect for human rights is implicit in all legislation, failing which legislation can be amended without taking parliamentary time.

“Prima facie evidence, dual criminality and use of appropriate forums” are not human rights issues per se. However, in order:

11 Foreign Secretary Margaret Beckett, 16 June 2006 48 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3)

i) For the purpose of this inquiry, it is important that prima facie evidence is properly defined, i.e. ‘at first look’ or ‘on its face’ an offence has been committed. It is not the same (as many believe) as prima facie proof. The Privy Council judgement in Hussien v Chang Fook Kam [1970], quoted in R v Da Silva [2006]12 states:

“Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end,” (Lord Denning).

Ergo, prima facie evidence is closer to the end than suspicion but is not “the end.”

Certainly in respect of EAWs, the CPS uses different evidential standards to execute export EAWs than to apply for import EAWs. I return to this at (6) below.

i) A dual criminality condition is impractical and would introduce serious, undesirable anomalies. For example:13

a. If a teacher in the UK had consensual sex with a pupil (under 16) and fled (for example) to Austria, Canada, Denmark, Estonia, France, Iceland, Italy and Spain, where the age of consent is under 16 (as low as 13 in Spain), he could not be extradited to the UK for trial because it would not constitute a criminal offence in those countries.

b. Conversely, if a person (for example) in South Australia, Tasmania, Ireland, and Malta and circa 20 US States (where the age of consent is over 16) had consensual sex with a minor and fled to the UK, he could not be extradited from UK for trial because it would not represent a criminal offence in the UK.

We should not effectively impose our laws on other responsible democratic states.

i) I am advised that, “appropriate forums” relates mainly to the UK/US Extradition Treaty, which allows persons to be extradited to the US for prosecution of offences committed in the UK. I return to this at (5.4) below.

12 EWCA Crim 1654 13 Source: AVERT (International HIV and AIDS charity, based in the UK) 49 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) 4.4 I have no evidence of automaticity existing in mutual recognition arrangements, save in EAWs where suspects can ‘consent’ to extradition. Whenever suspects do not ‘consent’, there should always be a judicial process available to challenge extradition.

4.5 There is a case for ‘proportionality’ and ‘public interest’ tests in extradition cases but it is debatable if these should be enshrined in law, CPS guidelines or left to judicial discretion on the merits of individual cases. I return to this under at (6.2) and (8) below.

5. Bilateral Extradition Treaties

I am not able to comment in detail but I believe the principles at (4) above should apply.

5.1 The extent to which Human Rights need to be considered depends on the Human Rights record of the other party to the treaty. I do not believe preset criteria can be laid down. It is immaterial if, on the face of it, bilateral treaties override any human rights concerns—there are sufficient safeguards available once extradition proceedings commence (ref. (4.1) and (4.3) above), including by challenges under EA 2003, HRA 1998 and ECHR.

5.2 In respect of the remaining questions posed by the Committee under this head, Human Rights considerations of the victims should be taken into account in drawing up bilateral treaties too; there should be adequate safeguard’s for victims; and the human rights record of the other state should be considered in respect of both suspects and victims.

In respect of suspects, Human Rights considerations, safeguards and the other state’s record should be all taken into account during an Extradition Hearing by means of ECHR, EA 2003 and/or HA 1998 as appropriate, if not covered adequately in the treaty itself.

5.3 Without reviewing individual bilateral treaties and cases, I cannot comment on whether they provide adequate protection against unjustifiable infringement of Human Rights. However, the wording of each treaty speaks for itself and there are sufficient safeguards available through the Courts during the extradition process, as at (5.1) and (5.2) above.

5.4 There appear to be Human Rights concerns arising from the practical application of the UK’s bilateral extradition treaty with US, whereby, as

50 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) in the case of Gary McKinnon, persons can be extradited to the US for trial on suspicion of offences committed in UK. This is inconsistent even with UK national policy, whereby offences are investigated and prosecuted by the law enforcement agencies (normally police and CPS) in the area where the offences occurred. There are no grounds to vary this principle for international cases.

6. European Arrest Warrants

There is a distinct lack of clarity, consistency and uniformity in the CPS’s interpretation of the requirements for export and import EAWs, which affects Human Rights.

6.1 The ‘Provisional Skeleton Argument’ by the defence in the Assange case (ref. (6.3)(i) below) shows adequate discretion exists already to consider if the human rights of the accused will be respected and, if not, to bar export extradition. Additionally:

i) One would hope the Human Rights record of a state is taken into account when the state is first admitted to the EAW framework.

ii) The Courts should have discretion to consider the Human Rights of victims too – both in respect of import and export extradition cases.

6.2 Normally, it is not for the UK to determine proportionality, i.e. what constitutes a serious criminal offence in other states, effectively imposing its standards on other EU countries.

However, owing to the cost to the taxpayer of executing export EAWs, there are grounds to apply a ‘public interest’ test, which can include a limited element of proportionality. In practice, this applies already to import EAWs because the CPS uses the public interest test for prosecution before the police can apply for an EAW. I return to this at (8) below.

6.3 In terms of implementing EAWs, there are clear distinctions and inconsistencies between the ways in which the UK has implemented export and import EAWs.

i) For export EAWs, s.2(3) of EA 2003 requires the requesting state to confirm:

“(a) The person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and (b) the Part 1 warrant is issued with a view

51 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) to his arrest and extradition to the category 1 territory for the purpose of being prosecuted….”

This requirement is not reflected, for example, in the case of Assange14— who is said to be “wanted for questioning” by Swedish prosecutors. There are other cases of persons being extradited from the UK without ultimately being prosecuted.

ii) For import extradition, s.142 of EA 2003 states as a condition:

“That a domestic warrant has been issued in respect of the person and there are reasonable grounds for believing—(a) that the person has committed an extradition offence, or (b) that the person is unlawfully at large after conviction of an extradition offence by a court in the United Kingdom.”

In my case, there are reasonable grounds for believing that the person committed extradition offences and many precedents of others committing identical offences. The CPS thought that the evidence justified the issue of a domestic warrant for the suspect but not an EAW. This is self- contradictory. The CPS required a ‘trialready’ case for an EAW, despite there being grounds for a domestic warrant.

In short, the CPS appears to implement export EAWs less strictly than is required in law but more strictly than is required in law to facilitate import EAWs. I am advised that this imbalance is reflected in the statistics. I return to this at (6.5) and (6.6) below.

6.4 I aver that compatibility with ECHR should be taken into account at the time a new state joins the EAW process. As at (4.1) above, there are sufficient safeguards for suspects of export EAWs to have Human Rights taken into account at an extradition hearing.

6.5 A serious concern arising from the practical application of the EAW process is that the UK authorities’ interpretation of the law has the effect of making the UK a more attractive place to commit crime, provided the criminal absconds from the UK before arrest.

This is illustrated by comparing my case with identical offences by suspects, who did not leave UK, and one in another state, where the suspect did abscond. All the offences involve a limited company’s cheque signatory using company money for personal benefit.

14 www.guardian.co.uk/media/2010/dec/17/julianassangeqanda 52 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3)

i) Louise Clarke,15 a Financial Supervisor at British American Tobacco stole £150,000 of its money for personal benefit. Police report to conviction took 6 months.

ii) Between 4 February 2005 and 17 February 2006 Mrs Susanne Orton16 stole £80,000 from Harold G Walker (solicitors), where she worked as a conveyancing assistant. Her firm identified the offences in 2006 and she was convicted within 18 months.

iii) Amanda Carrington17 used her position as Company Secretary of a limited company to steal £60,000. She was mandated to transfer money for the company’s benefit but did so for personal benefit. She was convicted within 14 months.

iv) Det. Sgt. Louise Ord18 allegedly stole circa £30,000 as a charity’s cheque signatory. She was arrested shortly before 7 May 2009 and appeared at a London Magistrates Court on 8 February and 22 March 2010: she was referred to the Crown Court.

v) The offences in R v Foster [2008]19 took place outside the EAW zone but in other states, which are members of the Financial Action Task Force (the world policy making body on money laundering) and in which Court decisions can be used for guidance in UK Courts (and vice versa). Foster was convicted within 14 months even though he fled from the country where he committed the predicate offences.

Foster’s offences and the source of the limited company’s money (bank borrowings for specified business purposes) are identical to the suspect’s conduct in my case, which renders the evidence in my case stronger than that in the UK precedents.

Pursuant to (6.3)(ii) above, these precedents show that there are more than reasonable grounds for believing that the suspect in my case committed extradition offences. The CPS thought it appropriate to issue a domestic warrant in June 2007 after my initial police report in May 2006. In these circumstances, for my case to take so much longer to resolve is incomprehensible and inconsistent with the objectives of EAW arrangements.

15 Southampton Crown Court 30.05.07 16 Bournemouth Crown Court 27.05.08 17 Portsmouth Crown Court 08.03.10 18 policeoracle.com 7 May 2009 12 QCA08090 19 QCA08-090 53 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) The only discernable reason for the UK precedents taking less time than mine to resolve is that the suspects stayed in UK. The process took under 18 months, whereas mine has taken 4½ years (four since the suspect fled) without an EAW being applied for, despite the prima facie evidence and that we have known the suspect’s location for four years.

6.6 It is evident from (6.3) and (6.5) above (and elsewhere) that the evidential standard for import and export extradition cases needs to be harmonised and perhaps better defined.

The legislation per se has not caused the inconsistency. Surprisingly, a Memorandum of Understanding between the CPS, the National Criminal Intelligence Service [defunct] and Association of Chief Police Officers caused it through its guidance to import EAWs. They were so reticent about it that the Deputy District Crown Prosecutor could not find the Memorandum after the original prosecutor left. After three months, I traced it for her.

I aver that their interpretation does not reflect the wording and true intent of EA 2003 (ref. (6.3)(ii) above) or the EAW process and respectfully suggest it inappropriate that such a forum interprets the law other than as Parliament intended without publishing it.

In the context of human rights, it is difficult to understand why the CPS demands a ‘trialready case’ for import extradition, so the suspect cannot be questioned on his return. It appears not to be in the best interests of the victim or the suspect.

i) Articles 5 and 8 of ECHR recognise respectively the right to liberty and respect for home and family life. I aver that these rights for suspects are better upheld by an opportunity to put their side of the story to the police in interview in the receiving state before trial. Currently, this appears possible in export but not in import EAWs.

ii) Articles 5, 8 and Article 1 of the First Protocol recognise respectively the right to security, respect for home and family life and peaceful enjoyment of possessions. Clearly, these rights for victims are prejudiced unnecessarily by the high evidential standard on import EAWs, which does not apply to export warrants.

Clearly, the UK law enforcement agencies are very reluctant to use the EAW facility for import extradition. This is of special concern to UK citizens, especially when (in the reverse case) the agencies are so sanguine about export extradition even of UK citizens to EU states and the US.

54 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) It follows that there is an unacceptable imbalance between the ways human rights are taken into account. In export extradition, UK’s implementation innately favours the rights of victims in the receiving state but in import extradition it inherently favours the rights of the suspect.

This cannot be the intention of the legislation, although it is a matter of debate as to whether or not the legislation needs amending. I believe that it is more a problem of lack of uniformity and consistency in the interpretation of the law by the law enforcement agencies.

The literal meaning of s.142 of EA 2003 should suffice for both import and export EAWs, i.e. “A domestic warrant has been issued … and there are reasonable grounds for believing that the person has committed an extradition offence [my emphasis].”

In other words, both import and export extradition EAWs should require some evidence of an offence and, for fairness, suspects should be questioned on return to the receiving state. Using Lord Denning’s scale of suspicion to prima facie proof (ref. (4.3)(i) above), on a scale of 0 to 10 (0 being suspicion and 10 being proof), an EAW should be issued at level 5 or above.

7. European Investigation Order (“EIO”)

I state only that the general principles in this paper (especially victims’ rights) should apply.

8. ‘Proportionality’ and ‘Public Interest’ Tests

8.1 A limited test of proportionality exists already in EAWs: the extradition offence must be punishable with at least 12 months imprisonment. Aside from this, I do not believe it is for the UK to effectively impose its standards on other responsible, democratic states.

8.2 Proportionality per se cannot be defined by the nature of the offence alone without due consideration of the punishment. Every case is different. For example, Jacek Jaskloski is being sought on an EAW to face trial for “theft” in Poland:20

i) In 2000, he withdrew money from his bank taking him over the agreed overdraft limit. He repaid it and in 2004 moved with his family to the UK where he has lived since. On the face of it, he would not have offended in the UK.

20 www.fairtrials.net/cases/spotlight/jacek_jaskloski 55 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) ii) However, there are circumstances, in which overdrafts can be obtained fraudulently and the money stolen: an offence in the UK under The Theft Act 1968. Moreover, a criminal offence is not remedied just because the offender returns the proceeds.

It follows that any proportionality test based on the nature of the offence depends on the specifics of each case and must be a matter for an extradition hearing.

8.3 Much of the justified criticism of export extradition (especially under EAWs) relates to the cost of police, CPS and Court resources.

I believe it perfectly reasonable for the UK authorities to apply a ‘public interest’ test in determining export extradition, just as in prosecuting offenders in the UK. For example:

i) Does the alleged offender represent an ongoing public risk if he remains in the UK?

ii) Would an alleged offence and offender pass the ‘public interest test’, if they were being considered for prosecution for the same offence in the UK?

iii) What contribution has the alleged offender made to UK society?

These factors would not be difficult to determine.

8.4 I illustrate (8.3) with two examples. One is an asylum case but the end result is the same— extradition—so it is comparable when it comes to public interest issues.

i) If (as it appears) Mr Jaskloski’s offence is minor and he has acted as a responsible member of UK society for several years, it appears disproportionate, not in the ‘public interest’ and a waste of resources to go through the extradition process.

ii) Mohammed Ibrahim21 was an asylum seeker. He ran over Amy Houston (aged 12) outside her home and left her to die. At the time of the accident, all his applications for asylum and citizenship had been rejected. Just weeks before knocking down Amy in November 2003, he was banned for nine months for driving while disqualified, without insurance and without a licence. He was awaiting deportation when

21 www.timesonline.co.uk/tol/news/uk/crime/article6966402.ece 56 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) he ran away with Amy trapped under the wheels of his car. Since running over Amy, he has been convicted of possessing cannabis, harassment and further driving offences and also has received a caution for burglary and theft.

Nevertheless, Ibrahim was granted asylum recently and is not being extradited.

8.5 The Ibrahim case also demonstrates the UK’s complete disregard for the Human Rights of victims. In law, victims’ familes are considered victims too. It appears that no regard was given to Amy’s father, Paul Houston’s right to family life, which Ibrahim took away.

It makes a mockery of extradition law that a person, who has not committed an offence in UK law, faces a costly and stressful extradition process, whereas a serial criminal, who killed a child callously and brutally and never contributed to UK society, remains in the UK – probably as a continuing drain on the public purse. This is reflected in public opinion about the cases.

Most certainly, the results are not conducive to the public good.

9. Summary of Evidence in ‘Human Rights’ Context

Throughout this evidence I have shown that, whilst it may not be explicit in law, the practical application of import extradition disregards the human rights of UK victims, almost totally.

9.1 My experience and knowledge does not extend to addressing Article 3.

9.2 The right to liberty of suspects and security of victims respectively under Article 5 should be improved by remedying the imbalance of evidential standards for import and export extradition by the means described and evidenced at (6) above.

9.3 The right to a fair trial for suspects in export extradition cases under Article 6 should be improved by the means described and evidenced at (6) above. Conversely, the CPS requirement for a ‘trial ready’ case for import extradition tips the balance in the suspects’ favour more than is required by Article 6 and is inherently unfair to victims.

9.4 The right to respect for home and the family life of suspects and victims under Article 8 should be improved by remedying the imbalance of evidential standards for import and export extradition by the means described and evidenced at (6) above.

57 Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) 9.5 Based on the legal meaning of ‘discrimination’ (i.e. race, disability, sexual orientation, etc), my experience and knowledge does not extend to addressing Article 14. However, using the dictionary definition, “unjust distinction”, I have shown irrefutably that the practical application of EA 2003 in import extradition cases discrimnates heavily in favour of suspects and against the interests of victims.

9.6 There is no recognition of victims’ rights under Article 1 of The First Protocol (not to be deprived permanently of their property) in the practcal application of import extradition. In cases like mine, the public purse is a victim too. HMRC is investigating the suspect also – for alleged VAT fraud and tax evasion. Hence, the excessive evidential standard acts directly even against the interests of the public purse in fiscal fraud cases.

In November 2006, the JCHR identified the need, “to enhance the involvement of victims in the criminal justice system to ensure victims' needs are at the heart of what the criminal justice system does” (ref. (1.2) above). There is no evidence that either the law itself or the practical application of the law has improved in this respect in the last four years.

The JCHR’s 32nd Report referred also to the rights of victims to participate in investigations to the extent necessary to protect their interests. Not only was I allowed to participate but also I was encouraged proactively to do so, to the extent of collating evidence, researching issues for the police and even locating the suspect after he fled.

Whilst participation is desirable, it is inequitable and unfair that victims are asked to assist the police to this extent (which affected seriously my home and family life for 4 years and incurred legal costs) only to find that the practical application of import EAWs is far stricter than EA 2003 and export extradition requires. My solicitor agrees with this conclusion in my case.

In summary, I aver that, for Human Rights to be properly reflected in UK extradition policy, there is an urgent need to remedy the imbalance between the rights of suspects and those of victims in export and import extradition cases. The UK must be careful also not to appear to engage in ‘legal colonialism’ by imposing its standards worldwide. Moreover, export extradition should take into account ‘public interest’, costs and if it is conducive to the public good that a suspect remains in UK.

21 January 2011

58 Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) This addendum provides further evidence to support my written submission to the JCHR dated 21 January 2011. The same conditions relating to confidentiality of personal data apply22. The section numbers do not correspond to the original paper and for brevity I use pre-existing acronyms.

A1. Balance of Evidence

The list of witnesses called to the hearing on 1 February 2011 confirms the likely imbalance of evidence between suspects and victims, which I predicted. Even the individual witnesses with experience of the extradition process are all ‘suspects’ subject to export extradition requests.

One stated objective of the JCHR inquiry is to contribute to the Home Office review of the UK’s extradition treaties and EA2003, (“the Review”). However, the announcement of the Review by the Home Secretary is headlined:

“Sir Scott Baker … to lead a review into the UK’s legal arrangements for bringing criminals to justice who flee overseas.”

Unlike the JCHR press release, this implies that the Review Panel will give equal prominence to the import extradition of criminals who offend in the UK and flee overseas. Ergo, I suggest respectfully that the JCHR should do so too in order to contribute fully to the Review.

A2. Operation of European Arrest Warrants

Throughout my paper, I demonstrated lack of clarity, consistency and uniformity between the interpretations of the requirements for export EAWs and those for import EAWs.

In particular, the CPS implements the law less strictly than required for export EAWs but far more strictly than required to facilitate import EAWs. Also, local UK law enforcement agencies seem very reluctant to use EAWs for import extradition and their interpretation of the law has the effect of making the UK a more attractive place to commit crime.

Fair Trials International (“FTI”) provided the JCHR with statistics23 that confirm my conclusions. The principle points relating to the imbalance between import and export EAWs, and UK’s use of EAWs generally, are that the UK consistently:

22 Under s.333 of The Proceeds of Crime Act 2002 23 http://www.fairtrials.net/images/uploads/Appendix%201%20-%20EAW%20statistics.pdf 59 Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) A2.1 Surrenders far more people under export EAWs than it receives under import EAWs. In 2009/10, the UK surrendered 699 people – 985% of the 71 returned to UK.

Moreover, the number of people extradited from UK has increased by an average of 64% per annum since 2006/07, whilst the number surrendered to the UK declined by 18½% per annum since 2007/8, (source: FTI Fig 3).

A2.2 Receives significantly more export EAWs than it issues import EAWs. In 2009/10, the UK received 4,100 requests—2,020% of the 203 it issued, (FTI Fig 4).

A2.3 Issues notably fewer EAWs from comparable states, Germany, Spain and France, than it receives from those countries, (FTI Figs 5 & 6). In 2009/10, the UK:

i) Received 235 EAWs from Germany but issued only 4 requests to Germany.

ii) Received 167 EAWs from Spain but issued only 58 requests to Spain.

iii) Received 106 EAWs from France but issued only 25 requests to France.

A2.4 Issues substantially fewer EAWs than comparable states of Germany, France and Spain. In 2009, Germany issued 2,433 EAWs, France 1,240 and Spain 489 to other EU states—respectively 1,106%, 564% and 222% of the total 220 EAWs issued by UK, (FTI Fig 9).

A2.5 Conversely to (A2.4), receives substantially more EAWs than comparable states, Spain and France. In 2009, the UK received 4,100 EAWs from other EU states—respectively 252% and 424% of the 1,629 by received by Spain and the 967 by France, (FTI Fig 10). The German figure is not published

A2.6 Successfully executes more export than import EAWs. In 2009/10, UK executed 1032 export EAWs from other states—1,053% of the 98 suspects received on import EAWs.

Although the high number of requests the UK receives affects this materially, the trend of the UK’s figures is a serious cause for concern, (FTI Fig 11).

60 Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) i) The number of export EAWs executed by UK is increasing by 38% per annum.

ii) The number of successful import EAWs issued by UK was stable between 2007/08 and 2009/10 overall but there was fall of 5¾% in 2009/10.

It appears that, not only is the UK’s use of import EAWs consistently and substantially less than that of other EU states but also the gap between the UK and other EU states’ use of EAWs is widening. This has serious cost implications too, (ref. (A5) below).

The statistics confirm the conclusions to (6) of my original paper. To avoid duplication, I am not supplying the figures again because they are accessible in the FTI’s submission.

A3. UK as Destination for Criminals

At (4.2) and (6.5) of my submission, I addressed respectively the UK potentially becoming the ‘destination of choice’ inter alia for EU gangs travelling abroad intending to commit crime and that the CPS’s interpretation of the EAW law has the effect of making the UK a more attractive place for UK criminals to commit crime too, provided they abscond from the UK before arrest.

The statistics (including those at (A2) above) confirm this. In 2009:

A3.1 UK received 4,100 (39%) of 10,544 EAW requests made by all Members States including UK, i.e. 4 in every 10 fugitives in the EU are thought to be in UK, (source: FTI Fig 10).

A3.2 Conversely, the UK issued only 220 import EAWs to extradite fugitives who offended in UK but fled to another EU state, (FTI Fig 9).

A4. Elapsed Time

It is suggested in some quarters that the amount of time elapsed since the alleged offence took place could be a factor in determining whether extradition under an EAW is appropriate.

A4.1 This would be a fundamental change in the application of UK criminal law, whereby unsolved crime remains on file unless/until the offender is apprehended. The police may close a file having exhausted their lines of inquiry but it can be reopened, for example if new evidence arises or the offender is identified during inquiries into other cases.

61 Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) A4.2 It would be undesireable and unacceptable for criminals to know they can commit crimes and avoid conviction by the simple expedience of leaving the UK for a predetermined period, after which they can return without fear of prosecution.

A4.3 Police resources in a particular area of the UK materially affect the length of a criminal investigation too. Therefore in practice, a time limit could not be applied equally across the UK, much less across the EU.

Such a rule would not be consistent with the human rights of victims. In the case of (A4.3), victims’ rights would become a postcode lottery.

A5. Costs

One of the principle concerns expressed about export EAWs is the cost of police, CPS and Court resources required to execute them.

It occurs to me that the imbalance between the operation of import and export EAWs puts the UK in double jeopardy in respect of costs.

A5.1 Resources are wasted dealing with export EAWs, for example when offenders convicted overseas, but found in UK, can serve their sentences in UK and in cases that would not pass a ‘public interest’ test for prosecution in the UK. I refer respectively to and (4.2)(vii) and (8) of my original paper.

A5.2 The ‘trial ready’ case requirement for import EAWs wastes considerable police and CPS resources—at least three years’ worth of wasted resources in my case. I refer to (6.5) of my original paper.

A5.3 Other than special cases, such as (A5.1) above, the cost of executing export EAWs can be reduced significantly only (with the possible exception of requests from Poland) by tighter border security so that fugitives cannot easily flee to and settle in the UK.

A5.4 Clearly, the disproportionate number of EAWs emmanting from Poland affect materially the costs of executing export EAWs. In 2009, Poland issued 4,844 EAWs but received only 286 in total from other EU states, (source: FTI Figs 9 and 10).

The UK alone received 2,403 EAWs from Poland but issued only 19 to Poland, (FTI Figs 5 and 6). Not only is this disproportionate, but also it suggests that 50% of those, who offend in Poland and abscond to other EU states, are thought to flee to the UK.

62 Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) The ‘Polish problem’ must be addressed primarily through the EU. However, to a limited extent, the UK can address it alone, for example by correcting the imbalance between the evidential standards for import and export EAWs; imposing a ‘public interest’ test; and by improving border controls. I refer respectively to (6) and (8) of my original paper and to (A5.3) above.

Clearly costs are an issue that must be addressed.

A6. Summary of Addendum

This addendum reenforces the conclusions in my submission.

In addition to controlling costs (ref. (A5) above), there is an urgent need inter alia to:

A6.1 Remedy the imbalance between the rights of the suspects and the victims in both import and export extradition cases.

I note that EA2003 and CPS Legal Guidance, “For Import Extradtion [sic] within the European Union”24 serve to confirm the lack of recognition of victims. The words “victim” or “victims” do not appear in either document.

A6.2 Address inconsistencies in the evidential standard required for import EAWs compared to that required for export EAWs.

A6.3 In export extradition cases, take into account ‘public interest’, costs and if it is conducive to the public good that a suspect remains in UK.

Unless urgent action is taken on these issues, victims of crime will continue to suffer injustice, whilst costs will continue to escalate as a result of the practical application of EAWs by UK law enforcement agencies.

1 February 2011

24 www.cps.gov.uk/legal/d_to_g/extradition/importation_extradition_- _within_the_european_union/ 63 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15)

This addendum is pursuant to the written and oral evidence published by the JCHR at today’s date, which per se demonstrates the need to properly define the word ‘victim’; incorporate victims’ rights into legislation and/or guidance thereto; and to check the quality of the evidence received by the Committee. I outline also how the judgment in Sweden v Assange25 (published 24 February 2011) contributes to the evidence on EAWs, especially in respect of dual criminality and Human Rights.

The same conditions relating to the confidentiality of my personal data apply26. The section numbers do not correspond to preceding papers but (for brevity) I use preexisting acronyms.

B1. Victims Rights

The definition of ‘victim’ and Victims Rights are detailed, for example, in General Assembly [of the United Nations] Resolution 40/34 of 29 November 1985, ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ and in ‘Commonwealth Best Practice Guidelines—Guidelines for the Treatment of Victims of Crime (2002)’.

Whilst the guidance is not legally binding, it represents a commitment by member nations to the principles stated and sets out a model legal and administrative framework that emphasises the structural similarity of the treatment of victims of crime in member states.

The Commonwealth Guidelines recognise the historical neglect of the rights and interests of victims of crime. They state that Member States should include in their national constitution or legislation appropriate measures for the protection of victims of crime.

It is clear from the evidence provided that UK extradition law and/or the guidance thereto should be amended to incorporate appropriate measures for the protection of victims of crime.

B2. The Definition of ‘Victim’

The evidence to the JCHR blurs the difference between victims of crime and suspects wanted for extradition.

25 www.judiciary.gov.uk/media/judgments/2011/judauthorityswedenvassange 26 Under s.333 of The Proceeds of Crime Act 2002 (as amended) 64 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) In some cases, those providing evidence refer to the suspect as, “The victim.” For example, The Freedom Association quotes Lord Lamont, including the words, “… handicaps the victim in the collection of evidence for his defence.” This is a contradiction in terms. A defendant cannot be the victim too. There are references also to individuals facing extradition being “A victim of mistaken identity” or, “A victim of the system.”

By definition, persons wanted on warrants are ‘suspects’, regardless of their defence. If a less robust term is justified, EAWs use the term, “The requested person.” For example, a ‘victim’ of mistaken identity should be referred to as, “A requested person subject to mistaken identity.”

Clearly, it would be improper of the JCHR to amend third parties’ evidence. However, I believe that it is important, in its findings, for the JCHR to clarify the true meaning of ‘victim’ within the context of ‘a victim of crime’, as laid down by international guidelines at (B1) above.

B3. The Balance of Evidence

I am pleased that the JCHR has taken additional steps to invite victimcentric organisations to contribute to the review in an attempt to balance the evidence. At the time of writing, the only evidence published with victims’ interests at heart appears to be that submitted by REDRESS (whose focus is highly specialized) and by me. Indeed, where “victim” or “victims” appear in others’ evidence, it is normally (but not always) in the wrong context, (ref. (B2) above.)

In as much as import extradition is concerned, I am a loan voice. Although REDRESS focuses on victims’ interests, its arguments relate more to the export extradition or UK prosecution of suspects of international crime (torture, genocide etc) who are found in the UK.

B4. Victims and Witnesses Commissioner

Pursuant to (B3), at (1.1) of my original submission, I compared the many high profile, wellresourced organisations campaigning for suspects’ Human Rights with the dearth of similar bodies campaigning for victims.

Despite previous extensive research, I discovered only recently that Government employs a Commissioner for Victims and Witnesses with a team of circa 9 staff. Her role27 includes:

27 http://www.justice.gov.uk/ 65 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) “Promot[ing] the interests of victims and witnesses across the criminal justice system and at the highest levels of government.”

“[To] understand the criminal justice system from their [victims’] point of view and try to help improve the services and support available.”

“To personalise and improve the criminal justice service and ensure it is firmly on the side of the lawabiding citizen.”

At the time of writing, it appears that the Commissioner is not minded to contribute to the JCHR inquiry or the Extradition Review Panel. This is extremely disappointing when victims [and witnesses] are such an important part of criminal justice and the JCHR (in its 32nd Report) agreed that victims’ needs should be at the heart of the criminal justice system.

B5. Quality of Evidence

The first tranche of oral and written evidence to the JCHR’s review is remarkable in that most (but not all) contributors reach similar conclusions on many topics, despite that they represent different interests – for example, the lack of consistency in evidential standards across Europe and the imbalance between evidential standards between export and import EAWs.

However, one organisation has made statements that are wrong, misleading and/or alarmist. They justify them by misinterpreting statistics prepared by reliable sources such as Fair Trials International, (“FTI”). I refer to the JCHR’s document ‘Human Rights Implications of UK Extradition Policy— Written Evidence’28 EXT 2 and use the page numbers from that publication.

B5.1 Page 22 at (3) asserts of European Arrest Warrants (“EAWs”):

“The EAW also affects the UK unfairly. This is because, compared to EU member states; the UK’s citizens are issued with a disproportionate number of warrants.”

This is simply untrue. I refer to (B5.2) below.

B5.2 On pages 23 and 24, they repeat and attempt to quantify their assertion on page 22.

“It is through the EAW that the vast majority of UK citizens are extradited. This is highlighted by figures from FTI … which calculated that … in 200910

28 www.parliament.uk/jchr – document Extradition_Inquiry_Written_Evidence_3.pdf 66 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) alone, 699 people were extradited to other EU member states under the EAW.”

FTI’s statistics do not relate to UK/British citizens29 they relate to “people”. 699 people were extradited from UK in 20091030 —but by no means were they all British citizens.

Indeed the reverse is the case. From the inception of EAWs on 1 January 2004 up to 31 March 2010, the UK surrendered only 145 of its citizens to other EU member states pursuant to EAWs31 in 6¼ years.

In terms of requests made by EU states (as opposed to surrenders), the Government has been unable to break down numbers to identify either the person’s nationality or the state that requested extradition32.

B5.3 Pages 25 and 26 contain three incorrect or misleading comments. In order:

“The situation in the UK seems to be worse, as there have been more warrants for extradition of UK citizens than in most other EU member states.”

“In total, 1,032 people—almost 3 a day—were detained and extradited by British police on the orders of European prosecutors in the 12 months to April 2010.”

“The number of EAW detentions in Britain has risen 43fold since 2004, when there were only 24.” i) I demonstrated at (B5.2) that there has not been more EAWs issued for extradition of UK citizens than in other EU member states: the statistics are not available.

It is incorrect equally in terms of import EAWs. Between 2004 and 2009 (inclusive), the UK issued only 979 EAWs in total for ‘people’ not citizens. The comparative states of France and Spain issued respectively 7,113 and 3,337 EAWs. 33

29 Citizen—a member of a state or commonwealth 30 FTI Fig 4 31 ‘Hansard’ Home Department, written answers and statements, 25 October 2010 32 Ditto 33 FTI Fig 2 67 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) ii) 1,032 people were not “detained and extradited” in 200910. They contradict even their own figure – on page 24:

“In 200910 alone, 699 people were extradited to other EU member states under the EAW.”

The figure of 1,032 relates to arrests not extraditions [surrenders].34 iii) It is fundamentally misleading and especially alarmist to claim that detention in Britain has risen 43fold since 2004. For example:

a. On 1 January 2004, EAWs “limped into force” in eight of the 15 EU states: Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden and UK.35 The other seven states failed to meet the implementation date. By 2009/2010, there were 27 EU member states.

b. Moreover, in 2004 and 2005, even some of these eight (including the UK) had not complied fully with the Framework Decision.36

c. Of the remaining states, Germany (for example) did not enact The German First European Arrest Warrant Act until July 2004 but, on 18 July 2005, the Federal High Constitutional Court nullified it. The German Second European Arrest Warrant Act did not come into force until 2 August 2006.37

d. I have shown in my submission that, as with many new schemes (judicial or otherwise), the EAW facility took time to be understood fully and utilised to its full potential by UK law enforcement agencies.

It is reasonable to assume that EAW system “limped into force” in most EU states.

It follows that comparisons between 2004 and post2007 figures are meaningless: they are not on a ‘likeforlike’ basis. In 200910, the UK surrendered only 51 people to the seven other states where the EAW came into force on 1 January 2004.38 On a likeforlike basis, using the figure 24 for 2004, surrenders by UK have little more than doubled.

34 FTI Fig 4 35 Statewatch 36 House of Commons Library, Home Affairs Section Standard Note: SN/HA/4979 37 PD Dr. Arndt Sinn and Liane Wörner, LL.M. (UWMadison), Law Faculty of the JustusLiebig- University, Gießen 38 FTI Fig 7 68 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) Most importantly, in 2009, the UK issued only 1.49% (220) of 14,789 EAWs issued by the 24 EU states that provided figures:39 these were not all for UK citizens. Conversely, based on the latest EU statistics available for recorded crime (excluding misdemeanors), the UK accounts for 20.5% (5,189,995) of the 25,266,772 alleged offences committed in the same 24 states.40

Therefore, not only is there little evidence of UK citizens (as suspects) being treated unfairly by the EAW process but also both the evidence and statistics demonstrate that UK citizens (as victims) are treated unfairly because the UK law enforcement agencies are reluctant to use the process for import extradition. The percentage of EAWs issued by UK is in reverse proportion to the percentage of recorded crime. My experience, as per my submission, supports this.

The evidence shows that UK extradition law and/or the guidance thereto should be amended to incorporate appropriate measures to protect the Human Rights of victims of crime.

However, the JCHR might recommend that Government compile future statistics for EAWs received and issued to identify the requested person’s nationality and (in the former respect) the state requesting extradition. It would not be costeffective to do so retrospectively.

B6. Habeus Corpus

I disagree with the allegation on page 22 that EAWs put habeas corpus in danger. EAWs per se do not mean that the requested person is guilty. If he is wanted for prosecution and/or has absconded, he is a suspect not a criminal. Of course, if the EAW is based on an enforceable judgement, he is guilty anyway. It follows that, in either case, habeas corpus is not at risk.

B7. Dual Criminality

My original submission outlined the risk of imposing ‘dual criminality’ standards on EAWs and the serious and undesirable anomalies that would ensue.

The judgment in Sweden v Assange confirms that ‘dual criminality’ affords too much scope for lawyers to engage in semantics in defending suspects against extradition because the precise wording of the law in two states comes into play, in addition to linguistic nuances, rather than the nature of the alleged conduct itself.

39 FTI Fig 9 40 Eurostat (crim gen) 58/2010 69 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15)

The EAW for Assange named four alleged offences under Swedish law41— unlawful coercion,42 sexual molestation43 (2) and rape. The defence argued that three of these are not extradition offences because the conduct is not an offence in UK law. Whilst the words ‘unlawful coercion’ and ‘sexual molestation’ may not appear in UK law, few would disagree that such acts (in the ordinary meaning of the words) constitute offences in UK, albeit under a different name, such as sexual assault. The Judge agreed with my view.44

In summary, any consideration of the nature of the conduct in extradition cases cannot be laid down in law. It is a matter for the Court to consider in each case.

B8. Human Rights

In respect of the claim that suspects’ Human Rights are compromised by EAWs, the Senior District Judge in Assange, having disposed of the other defence arguments says:

“As the issues arising above have been decided adversely to the defendant, I must decide whether extradition would be compatible with the defendant’s Convention rights within the meaning of the Human Rights Act 1998. If it would not be so compatible, the defendant must be discharged.”45

The judgment and defence argument in Assange demonstrates that judges properly can hear substantive Human Rights arguments against extradition on EAWs based on the legislation as it stands, although, in Assange, the Judge was satisfied that extradition is compatible with the defendant’s Convention rights.

Depending on the territory requesting extradition, section 21 or 87 of The Extradition Act 2003 specifies that the judge must decide if the person’s extradition is compatible with Convention rights (within the meaning of the Human Rights Act 1998) and that, if he finds in the negative, he must order the person’s discharge. This should be sufficient without amending the Act.

B9. The tone of some of the evidence and the case studies provided by other parties implies that,

41 Simon Clements, Head of Special Crimes Division, CPS by email 42 Coerce: persuade or restrain by force 43 Molest: annoy or pester in a hostile or injurious way; attack or interfere with, esp. sexually 44 www.judiciary.gov.uk/media/judgments/2011/judauthorityswedenvassange 45 Ditto 70 Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) compared to other EU states, British justice is infallible.

Whilst I do not dispute the facts of the case studies per se, it cannot be taken for granted that British justice is comparatively infallible. The numerous examples of miscarriages of justice in recent years show otherwise.

In closing, I note the following statement by Mr Graham Watson, the Liberal Democrat MEP:

“The EAW has vastly enhanced the rule of law on our continent […] those who oppose its use are those who effectively oppose the rule of law […] and the protection that it gives our citizens.”

Whilst I agree with Mr Watson’s sentiment, there is nothing to suggest that, in practice, EAWs have done anything to protect UK citizens from crime. Indeed, the precedent I used at (6.5)(v) of my original submission to JCHR suggests that, in the case of serious acquisitive crime, Micronesia is a safer place to do business than the UK, even when the offender absconds.

I hope this addendum serves inter alia to clarify the statistics on EAWs and associated evidence and also updates the evidence in the light of the Assange judgment.

7 March 2011

71 Written Evidence submitted by Professor Monica Lugato, Faculty of Law, LUMSA University of Rome (EXT 4) Written Evidence submitted by Professor Monica Lugato, Faculty of Law, LUMSA University of Rome (EXT 4) I) EXECUTIVE SUMMARY

1. It is well established in the jurisprudence of the human rights bodies that human rights obligations are a limit on the implementation of extradition agreements.

2. The principle is absolute as to the rights protected by art. 2 (for States parties to Optional Protocol 13) and 3 ECHR; qualified as to other rights such as those protected under art. 6 and 8 ECHR .

3. Human rights treaties have special features, legally justifying the said principle.

II) MEMORANDUM

1. Foreword.

In a study devoted to the relationship between extradition treaties and human rights treaties (Trattati di estradizione e norme internazionali sui diritti umani46, Torino, Giappichelli, 2006), I came to the opposite conclusion: that extradition treaties have to be applied so as to be compatible with the human rights obligations of the States concerned.

International practice appeared to have accepted the so called “Soering principle”, expressed in the “jurisprudence” of human rights organism, such as the European Court of Human Rights and the Human Rights Committee, having clarified that a contracting State violates its human rights obligations when it extradites a person to a State where that person substantially risks a serious violation of its fundamental rights. New extradition treaties, national legislation on extradition and national judgments showed by and large to have been influenced by the principle that extradition has to be performed consistently with human rights obligations, even though its practical application has been controversial in some cases, due to the emphasis on tightening cooperation in criminal matters after September 11, 2001.

2. Scope of the “Soering principle”.

The principle was then designed as an absolute one, admitting of no derogation, as far as the right not to suffer inhuman or degrading treatment was concerned: in no circumstance could a State party to the ECHR or the ICCPR extradite a person to a country where there was a substantial risk that she would be exposed to inhuman or degrading treatment (see the leading case Soering v. United Kindgom, (1989) 11 EHRR, 439). It is well known in this

46 Extradition Treaties and International Human Rights Norms. 72 Written Evidence submitted by Professor Monica Lugato, Faculty of Law, LUMSA University of Rome (EXT 4) regard that analogous absolute obligation is explicitly stated in relation to the right not to suffer torture by art. 3 of the 1984 Torture Convention.

On the contrary, as far as the right to a peaceful enjoyment of personal and family life and the right to a fair trial, the principle was designed as a relative one: as a right not to be exposed to a disproportionate violation of the right to personal and family life or to a flagrant denial of due process rights (Soering v. United Kindgom, para. 113).

It can reasonably be put forward that the existence of a substantial risk of a violation of any of the inderogable rights would be a bar to extradition, whereas analogous risk of a violation of a derogable right would be such a bar only to the extent that the required conditions for derogations were not satisfied (see in this regard Soering v. United Kingdom, para. 86).

It has to be observed that whereas it is usually a violation of the person’s rights in the requesting State (or the risk of such violation) that brings about the application of the “Soering principle”, violations in the requested country can also be relevant: for example, flagrant violations of due process rights in the requested State, amounting to inhuman treatment (Chamaïev and 12 others v. Georgie and Russia (2005), para. 381); separation from family in the requested State (Launder v United Kingdom (1997) 25 EHRR CD 67, para. 3).

However, as far as violations of art. 6 ECHR are concerned, the European Court of Human Rights has so far argued, under the Soering principle, that flagrant violations of due process rights (or the risk of such violations) in the country of destination can exceptionally bar extradition. Art. 6 as such has on the contrary been considered inapplicable to extradition, on the basis that it does not concern the civil rights of the person requested, nor criminal charges against her (Chamaïev and 12 others v. Georgie and Russia, para. 80, 81).

Significantly, the European Court of Human Rights has recently confirmed and further developed its previous jurisprudence on the topic. It has affirmed that as a consequence of the entry into force of Protocol 13 to the European Convention on Human Rights, the States bound by Protocol 13 cannot extradite a person to a country where there is a substantial risk that she would be subjected to death penalty. Protocol 13 has in fact amended, in so far as its contracting parties are concerned, art. 2 of the Convention, to the extent that the second sentence of that rule is no longer applicable (Al Saadoon and Mufdhi v United Kingdom (2010) unreported, para. 120).

73 Written Evidence submitted by Professor Monica Lugato, Faculty of Law, LUMSA University of Rome (EXT 4) 3. Legal base of the “Soering principle”.

The European Court of Human Rights has constantly underlined the specialty of the European Convention on Human Rights: as a human rights treaty, its object and purpose require its safeguards to be interpreted so as to be practical and effective (Al Saadoon and Mufdhi v. United Kingdom, para 127).

In the book mentioned at the start, I submitted that there are more features of human rights treaties that make them “special” (Trattati di estradizione e norme internazionali sui diritti umani, p. 203 ss.).

For one they establish erga omnes partes obligations, the observance of which is due to all the parties to the treaty, each and all of them bearing a legal interest in the respect of the human rights obligations established by the treaty. In other words, their violation “weighs more” than the violation of a bilateral obligation.

Second, human rights treaties recognize rights of third persons, not State’s rights. Once recognized those rights are no longer in the State’s hands: recognition implies from a legal point of view an obligation not to subsequently deny what one has recognized.

Third, the obligations established by a human rights treaty are “cross-cutting” obligations, in that they concern all and every aspect of State activity, that is all and every action by State agents, and all and every form of exercise of the jurisdiction of the State. The European Court has now come to the same conclusion in the mentioned Al-Saadoon case (para 127–128). So it cannot be argued that extradition, which is under all respects an exercise of the jurisdiction of the State, is not in the scope of human rights obligations.

These features contribute to a special status of human rights treaties in international law, one of the aspects of which is precisely their capacity to expand to cover all forms of exercise of authority by the State. It is precisely in those instances that the human person needs to be protected from the abusive/arbìtrary exercise of State power. It would undermine their binding character if the obligations that they establish could be set aside simply through the conclusion of a subsequent treaty.

4. Conclusion.

The argument that States have to honour their extradition agreement as a key instrument of international cooperation in the repression of crime can certainly be accepted. But it does not prove that they are therefore absolved

74 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) of their human rights obligations. Human rights treaties have to be honoured as well.

Therefore, extradition agreements have to be applied in such a way as to be consistent with human rights obligations. Because human rights treaties do admit of restrictions and derogations to human rights obligations, it is within those rules, and mainly through interpretation, that the conciliation between extradition obligations and human rights ones has to be pursued. Conciliation will not be possible when the violation of an absolute right is at stake.

21 January 2010

Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) 1. The Immigration Law Practitioners’ Association (ILPA) is a professional association with some 900 members (individuals and organisations), the majority of whom are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non- governmental organisations and individuals with an interest in the law are also members. Established over 25 years ago, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law, through an extensive programme of training and disseminating information and by providing evidence-based research and opinion. ILPA is represented on numerous Government, including UK Border Agency and other ‘stakeholder’ and advisory groups and has given oral and written evidence to the Joint Committee on many occasions.

Summary

2. ILPA would like to highlight particular concerns about breaches to human rights that arise when persons subject to extradition orders are or, as detailed below, become, persons subject to immigration control.

3. ILPA is aware of cases where those extradited have had their refugee status revoked and their indefinite leave to remain in the UK cancelled while outside the UK, where deprivation appears based on charges that founded the extradition, of which they have been acquitted, and that the Home Office has resisted their attempts to return to the UK to appeal against the revocation of refugee status and the cancellation of indefinite leave.

4. ILPA is aware (see the Freedom of Information Act request appended hereto) that more deprivations of nationality are taking place while the person deprived is outside the UK than while the person is inside the UK. We are aware that deprivations are being accompanied by exclusion orders so that the person is unable to return to the UK. We do not know if any absences from the country are a result of extradition in these cases (we know of cases

75 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) where they are not) but it is possible, and there are parallels with the situation in relation to Indefinite Leave to Remain outlined above.

5. Thus the human rights implications of the interplay between current extradition policy and current immigration and nationality law and practice are that:

6. A person extradited may find him/herself stranded outside the UK, unable to return to the UK, in a country where he or she has no status, with all the risks to protection of his/her human rights that that entails;

7. Such a person may also, as has been the situation in cases ILPA has seen, have family in the UK giving rise to the question of breaches of the right to a private and family life (under Article 8 of the European Convention on Human Rights) of both the person stranded and the family members remaining behind in the UK;

8. Such a person may hold no nationality or citizenship other than that of a country in which s/he faces persecution as defined in the 1951 UN Convention relating to the Status of Refugees or graves breaches of his/her human rights as set out in the European Convention on Human Rights, and no status in any other country. Cases ILPA has seen include cases of recognised refugees and of persons with a pending claim for asylum;

9. The person may be at risk of refoulement to a country in which s/he faces persecution or grave violations of his/her human rights;

10. Where the decision to revoke refugee status/cancel leave or deprive the person of nationality was unlawful, the person may have no practical prospect of challenging that decision and thus face not only the breach of human rights that this entails in and of itself, but breaches of his/her human rights in consequence, as described above.

11. These concerns must be viewed in the context of the way in which human rights are addressed in cases of extradition to other European member States in cases under Part 1 of the Extradition Act 2003. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States47 says in its 10th Preamble:

“(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States.”

12. ILPA is concerned at the extent to which that ‘high level of confidence’ appears to trump in practice evidence of risks of human rights violations submitted in particular cases, putting refugees and those who should be protected from refoulement by the European Convention on Human Rights at particular risk.

47 2002/584/JHA, Official Journal L 190 , 18/07/2002 P. 0001 - 0020 76 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) The case of Khemiri

1. Mr Khemiri was a recognised refugee in the UK. A European Arrest Warrant was issued for his arrest in connection with terrorist related activities. Extradition to Italy was sought. His challenge against extradition failed48 and he was extradited to Italy.

2. It is worth pausing over what happened in that original challenge to extradition. Among those resisting extradition at the same time as Mr Khemiri, one, had claimed asylum in 2004. That claim had yet to be determined at the time of the extradition. We cite in extenso from the judgments in an effort to give a full flavour of the hearings.

3. Copious evidence was provided at both the Magistrates' Court extradition hearing49 and on appeal to the Divisional Court50 which the courts accepted demonstrated

(a) that all three men faced a real risk of Article 3 ill-treatment if returned to their country of origin,

(b) a routine practice in Italy of the Executive already having expelled to their country of origin a large number of individuals in precisely the same circumstances of these three in violation of Article 3, i.e. nationals of that country facing terrorism allegations, whether convicted or acquitted (including several in the trial of one of those being extradited), and

(c) that the Italian national security deportation law (the Pisanu decree of 2005) by which these removals had been effected summarily (sometimes within hours) by the Italian Government fails to comply with Article 13 of the European Convention on Human Rights because it prohibits any appeal that is lodged from having a suspensive effect.

4. The District Judge in the Magistrates Court hearing posed the question of whether there were substantial grounds for believing that the defendants would suffer a breach of Article 3 (prohibition of torture, inhuman or degrading treatment or punishment if returned to their country of origin.51 He answered this question, referring to Saadi v Italy [2008](Application No 37201/06) in the affirmative.52

5. The District Judge held that:

48 R (Ignaoua et ors) v Judicial Authority of the Courts of Milan ; The Serious and Organised Crime Agency &the Secretary of State for the Home Department. [2008] EWHC 2619 (Admin) 49 District Judge Evans, Judgment 20 May 2008 50 Mohamed Salah Ben Hamadi Khemiri, Habib Ignaoua, Ali Ben Zidane Chehidi v. The Court of Milan Italy [2008] EWHC 1988 (Admin) Judgment 28 July 2008. 51 Paragraph 2 of the judgment of 20 May 2008. 52 Ibid., paragraph 4. 77 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) “...the current state of Italian immigration and deportation law, presently the Pisanu law, fails to provide the necessary guarantees that are required by Article 13 and places a person such as these defendants (should they be subject to an order for deportation), at risk.”53

6. However, the District Judge went on to conclude that:

“...since the 28th February 200854 there will have been many people in the Italian Civil Service giving anxious consideration to the decision in Saadi v Italy, all trying to devise a solution to the ‘dilemma’.

(2) It is highly likely that new provisions will soon be in place, and that would make this whole discussion, based as it is on the Pisanu law, somewhat academic.

(3) I am not surprised that the Minister of Justice has declined to give an undertaking that the Pisanu law will not be applied to any of these three men. There are many reasons why it might not be appropriate to offer such a guarantee. The lack of it does not suggest that, if extradited, the Pisanu law would be applied to them.

(4) I consider it most unlikely that, unless and until the circumstances allow it, the Minster of the Interior would make a deportation order against any of these three men requiring their return...’

(5) Notwithstanding the view I have expressed in paragraph 16 above, I am confident, given all the activity these defendants have generated with the authorities in Italy and their situation being now so ‘high profile’ that they would have no difficulty accessing the Italian courts, should they wish to challenge any deportation order.

I consider that there is no reason to suppose that any future deportation proceedings would be anything other than in accordance with the Convention and the case of Saadi v Italy. I do not regard what has undoubtedly happened in the past as providing evidence that such an approach will be repeated in the future. Saadi v Italy will cause the Italian authorities to rethink its [sic.] approach to this issue. There is absolutely no reason to suppose that they will ignore the case and carry on as before....The Framework Decision is based on mutual trust and confidence between fellow Member States and I am confident that the Italian authorities can be relied upon not to act contrary to the Convention.’

53 Ibid., paragraph 16. 54 Date of the Saadi judgment. 78 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) 7. That such confidence might not be well-placed was illustrated just before the Divisional Court hearing by the expulsion by Italy of Ben Khamais, a co- defendant of one of those involved in these extradition proceedings, to the defendants’ country of origin in violation of Article 3 and of an order by the European Court of Human Rights under Rule 39 of the rules of court. Ben Khamais was summarily deported before he could even inform his lawyer of what was happening. Nonetheless the Divisional Court held

“46 …real risk of expulsion …(within the meaning of that expression in the authorities) has not been established in these cases. It is relevant that the extradition to Italy will be effected under the Framework Directive though, as appears from the authorities, the same or a similar principle would have applied under earlier extradition procedures between Western European countries. The Italian authorities are under Article 3 duties in any event, but the Framework Directive adds an additional dimension. It requires cooperation between judicial authorities on the basis of trust and a high level of confidence. When assessing whether there is a real risk of conduct that would involve a breach of Article 3, the court must adopt the approach indicated by Lord Bingham in Dabas.

47 As Baroness Hale put it in Hilali, for better or worse we have committed ourselves to this system. Under the Framework Decision, we can assume that the trust placed in the Italian authorities will be justified. The Framework Decision provides a safeguard and a disincentive to the Italian authorities, as with the authorities of any Member State, not to act in breach of Article 3 of the Convention. Article 34 of the Treaty provides for sanctions against States failing to comply with the basic principles of the Treaty. Bilateral trust also arises. This is bilateral action premised on the existence of a high degree of confidence. Courts in a returning state would be likely to have a real sense of grievance, having regard to the contents of the Framework Directive, if a receiving state subsequently ignored its duty under Article 3 of the Convention. The Italian government had not hitherto deported in an Article 3 case a person received under the Framework Directive and had not deported in the case of Saadi.

48 Moreover, when the Italian authorities receive a person under the Framework Directive, the entire judiciary, including the Justices of the Peace, is likely to be alerted to its duties under Article 3. That is certainly so in the current cases. … they have received very considerable publicity in Italy and elsewhere.

49 I am not prepared to disagree with the District Judge's assessment of the witnesses or his rejection of the appellants' witnesses' low opinion of the Italian judiciary. He did not accept the submission that the Justice of 79 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) the Peace function when considering a deportation order was that of a "rubber stamp". Justices of the Peace, along with other members of the Italian judiciary, can be expected to have regard to Article 3 of the Convention when considering a deportation order, though I do note the speed with which the decision in BK was effected.

50 It is disturbing if the evidence before the court is correct—and the court has to take it at face value—that the Italian executive in the case of BK have apparently disregarded an interim direction of the ECtHR. I cannot regard that act, or the statement of a representative of the Ministry of Justice which is claimed also to have been made, as destroying the trust and confidence which is to be assumed in the context described. I am not prepared to hold, on the basis of a single post-Saadi case, that the Italian State will in the present cases ignore its duties under Article 3 of the Convention as confirmed in Saadi.

51 The submission that because the Framework Decision and the 2003 Act inaugurates a procedure between judicial authorities, and executive conduct is outside it, is not without force. However, courts must act on the basis that the confidence required extends to the conduct of the executive arm of the Government which is party to the Framework Decision. The separation and independence of the judiciary from the executive arm of the Government is fundamental to the rule of law, but the Framework Directive entitles an assumption that the conduct of the Italian judiciary and its role in protecting rights under the Convention is not to be nullified by parallel or subsequent action by the executive arm of Government. The risk on return has to be assessed on present evidence, and there is no risk of deportation while the contemplated criminal proceedings and any resulting custodial sentence are extant. That being so, any risk is, to that extent, remote from the current situation.”

8. An application for a certificate of a point of law of general public importance was dismissed by the same court on 30 September 2008. On that same date Mr Khemiri and his co-defendants made an application to the European Court of Human Rights under rule 39 of the Rules of Court, for an order preventing their extradition to Italy, on the ground that, if extradited, they would be at real risk of onward removal to Tunisia where they would be subjected to treatment contrary to Article 3 of the European Convention on Human Rights. That application was refused on 7 October 2008. The Registrar of the 4th Section of the Court stated that the Court found that it would be open to the applicants to make an application, including one under rule 39, against Italy, if it appeared that they would be surrendered from Italy in breach of their rights under the Convention. The letters also referred to the Court's express understanding:

80 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) "… that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention and in particular the obligation to respect the terms of any interim measure which the Court might indicate in respect of Italy at the request of the applicants."

9. The matters came back before the Divisional Court to consider fresh evidence arising out of the Ben Khamais case. Judgment was given on 30 October 2010.55 The Court declined to depart from the previous decision of the Divisional Court, observing “This is not in any sense an exceptional case.”56

10. Thus the UK courts and the European Court of Human Rights assumed that the procedure that had been applied to many others would not be applied to these men, although no assurances had been given and the evidence before the courts was a letter from the Italian Ministry specifically stating that they could not promise that the Pisanu Law would not be applied to the men.

11. The passages cited above illustrate how large a role the hopes and expectations that Italy would comply with its human rights and Framework obligations to the men because they would have been extradited from the UK played in the decision. The existence of obligations under the European Convention on Human Rights and the Framework decision appears was sufficient to outweigh the evidence of past State practice and the lack of any evidence that the defendants would not be treated in the same way or of any mechanism by which they could access effective protection that had been denied to all the others. We note that after the defendants in this case were extradited on 1 November 2008, in November 2008 Italy deported another person (MT) to their country of origin despite a Rule 39 indication by the European Court of Human Rights being in place in his case and that there are at least two cases in subsequent years: A in 2009 and M in 2010 in which the same thing happened.

12. What happened subsequently to Mr Khemiri is described in a 26 August 2010 judgment of the High Court in a judicial review.57 He was tried in Italy and, on 8 July 2010, acquitted of all charges save for one, which related to a procurement of a false travel document. It was common ground in the 2010 judicial review that this charge did not relate to terrorist activities. He was sentenced to 12 months imprisonment but, having already served that on remand, was immediately released from criminal law detention but continued to be held in immigration detention against his return to his country of nationality because a request was immediately made by the Italian police under the Italian ‘Pisanu law’ for his expulsion to Tunisia and he was detained for that purpose. The same request was made in respect of the two men extradited with him. This can usefully be contrasted with the proceeding

55 R (Ignaoua et ors v Judicial Authority of the Courts of Milan; The Serious and Organised Crime Agency &the Secretary of State for the Home Department. [2008] EWHC 2619 (Admin) see http://www.bailii.org/ew/cases/EWHC/Admin/2008/2619.html 56 Ibid., paragraph 47 57 R(Khemiri) v SSHD [2010] EWHC 2363 Admin. 81 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) envisaged at the time when the extradition case was proceeding through the UK Court, in R (Ignaoua et ors v Judicial Authority of the Courts of Milan; The Serious and Organised Crime Agency & the Secretary of State for the Home Department. [2008] EWHC 2619 (Admin):

“45. Secondly, it is not in dispute that there has been no other instance of Italy deporting someone in breach of interim measures or of Article 3 of the ECHR since the Saadi decision. The Ben Khemais case remains the sole post-Saadi incident. Thirdly, none of this new evidence has any impact upon the reliance placed by the Divisional Court on how Italy can be expected to behave in respect of someone who has been extradited to that country under the Framework Decision and a European Arrest Warrant. There is still no evidence of any willingness on the part of Italy to deport such an extradited person to Tunisia or any other country where his Article 3 rights would be at a real risk of being broken. It follows that the Divisional Court's reliance on that fact and on the trust and confidence between states which underlies the Framework Decision remains intact and unaffected by the new material. As I have indicated earlier, that was a powerful element in the Divisional Court's reasoning. It adds an extra dimension to the Article 3 issue.

46. Fourthly, nothing in the new evidence undermines the point made by the Divisional Court that it was agreed that the applicants were genuinely wanted for trial in Italy and that (in the court's view) there was no risk of deportation while criminal proceedings and any resulting custodial sentence were extant, so that any risk was "to that extent remote from the current situation" (paragraph 51). As Miss Dobbin confirmed to us, it was known that Mr Ben Khemais had both been convicted in the past and faced further criminal charges and the Divisional Court also had evidence about the general length of custodial sentences in such cases. Nothing on those aspects has changed since that court's decision.”

13. What is striking about paragraph 46 of the judgment is that it does not appear to canvas at all the possibility of what transpired in Mr Khemiri’s case, viz. that he was acquitted of all charges and released. The judgment is worthy of more general consideration in the context of this enquiry by the Joint Committee on Human Rights.

14. Mr Khemiri having informed the Italian authorities that he was a refugee those authorities sought to determine whether he could be returned to the UK under the Dublin Regulation.

15. Given the risk of refoulement, Mr Khemiri sought, on 9 July 2010, an indication under rule 39 of the Rules of that Court that he should not be returned to his country of nationality (an indication that had not protected Mr Ben Khemais, as described in the extract quoted above). The acting

82 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) President of the European Court of Human Rights Second Section issued such an indication on 9 July 2010, until 21 July 2010 in the first instance, on that date extended indefinitely.

16. On 16 July 2010, the Secretary of State wrote to Mr Khermiri’s solicitors in the UK that she had decided to revoke his refugee status on the ground that Article 1F(c) of the 1951 Convention relating to the status of refugees applied in the case and had also to decided to cancel his indefinite leave on the ground that his exclusion from the United Kingdom would be conducive to the public good. The Secretary of State purported to cancel Mr Khemiri’s refugee travel document. Mr Khemiri was fortunate in respect of having solicitors on record in the UK. ILPA is aware of other cases in which the letter has been sent to the last known address in the United Kingdom of the person being served, while that person is out of the country. In such circumstances there may be deemed service of the letter two days after posting and the time for lodging an appeal would then start to run.58

17. The leave of a person whose leave to enter or remain has been varied, with the result that he has no leave to enter or remain, is extended by operation of s 3D of the Immigration Act 1971 where an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 “could be brought, while the person is in the United Kingdom”, or where an appeal “brought while the appellant is in the United Kingdom” is pending. The words cited were inserted into the 1971 Act by the Immigration, Asylum and Nationality Act 2006, s 11. The amendments were part of a raft of changes made when the Government was persuaded during the passage of the Bill that became the 2006 Act through the House of Lords not to abolish in-country rights of appeal, at a time when it abolished appeals against refusal of entry clearance. Ministerial statements made at the time of the passage of the Act described the changes as technical:

“Amendment No. 12 [now s.11(2) & (3)] corrects a technical problem with the existing continuing leave provision in Section 3C of the Immigration Act 1971. Under the current version of Section 3C leave continues while an appeal could be brought without specifying whether to trigger an extension of leave; the appeal must be brought in the UK or otherwise. Amendment No. 12 inserts a condition that leave will be continued only where appeal may be brought in the UK or where such an appeal is pending. The change has been made to make it absolutely clear on the face of legislation that leave will be continued only where an appeal against a decision to vary leave could be brought in-country.” The Baroness Ashton of Upholland, Parliamentary Under-Secretary of State, DCA, HL Report, 7 February 2006, col. 519

18. The Explanatory Notes to the Act are similarly low key:

58 Consolidated Asylum and Immigration (Procedure) Rules 2005 for the First-tier Tribunal SI 2005/*** as amended 83 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) “28. Section 11 amends section 3C of the Immigration Act 1971 (the 1971 Act), which currently extends leave to enter or remain in the United Kingdom if it would expire while an application is being considered and for such time as an appeal against a decision to curtail or refuse to vary leave could be brought or is pending. The minor amendments to subsections (2) and (3) make it clear that leave shall only be continued when an in country appeal may be brought or is pending.”

19. Thus if notice of a decision is deemed to have been served, and the person is outside the UK, it was argued by the Secretary of State in Khemiri that if a person outside the UK did not appeal within the time limits prescribed in the rules, his or her leave would lapse.

20. In Mr Khemiri’s case, the letters has been served on his solicitors who were able to take steps to lodge an appeal within the time limits prescribed in the Tribunal chamber rules of procedure. But it was also argued by the Secretary of State in Mr Khemiri’s case that, although Mr Khemiri was outside the UK by virtue of having been removed to Italy under a European Arrest Warrant and, being excluded from the UK, unable to return, there was no obligation on the Secretary of State to facilitate his return so that he could exercise an in- country right of appeal or indeed, being a person within the UK, benefit from the provisions of section 3D of the Immigration Act 1971. It was argued on behalf of Mr Khemiri that the Secretary of State was required to take steps to facilitate Mr Khemiri’s return to the UK within the period for appealing or not entitled to seek to prevent Mr Khemiri from returning to the UK for the purpose of exercising his right of appeal and should take such steps as required to ensure that Mr Khemiri, whose refugee travel document was purportedly cancelled, should be allowed to return to the UK on that cancelled document or given an appropriate form of laissez-passer.

21. As the judge in Khemiri succinctly summarised:

“It is, I think, clear, and indeed common sense, so indicates, that there are considerable disadvantages to be faced by an appellant if he has to pursue an appeal while he is out of the country. This is particularly the case where his evidence is crucial, as is obviously the position here, and is more apparent in an appeal to SIAC where national security issues are concerned and where the matters relied upon may, to an extent, be unknown to the appellant.”

22. In Mr Khemiri’s case the judge came to the conclusion, as a matter of statutory construction, that the proper construction of section 3D(2)(a) of the Immigration Act 1971 was that leave was extended for such relatively short period as would enable the individual wishing to do so to make arrangements, to return to the UK to pursue an appeal against the cancellation in-country. The Secretary of State is appealing that decision.

84 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) 23. Matters that remain to be determined in a subsequent consideration of this case by the Special Immigration Appeals Commission are Mr Khemiri’s contention that the Secretary of State had failed to take into account his acquittal of the very charges against him that had provoked the decision to revoke refugee status, and that the threshold for exclusion from the protection of the Convention under Article 1F(c) of the Refugee Convention was not met. These matters had been pleaded in the judicial review but in granting permission for judicial review it had been determined that these matters would fall to be dealt with in separate, subsequent proceedings. They also raise the question of the human rights implications of extradition policy, both in and of themselves and because of the Secretary of State’s argument that the person extradited should not be allowed to be present in the UK to give evidence in such proceedings.

24. We pause to note that Mr Khemiri:

• has had at all times the benefit of lawyers ready to act, in the UK, overseas and at the level of European Court of Human Rights to protect his rights; • challenged his extradition in the UK prior to that extradition; • benefited from an intervention by the European Court of Human Rights designed to prevent onward refoulement from the country in which he found himself stranded; • was extradited to a country that is a State party to the European Convention on Human Rights and the Dublin Convention of the European Union.

25. It is not difficult to envisage extradition cases in which the facts are very different and the risks to the person extradited at any given time thereby exacerbated.

Citizenship cases

26. What of citizenship cases? As indicated above, the discussion of the human rights implications of deprivation of citizenship in the extradition context is hypothetical, because ILPA is not aware of examples of such cases involving extradition. We are however aware of at least one case where a person deprived of British citizenship is in their country of other nationality unable to return to the UK to pursue their appeal against deprivation and where their attempts to communicate with their legal representatives put them at risk of harm. It is possible in the light of this and of the consideration of the Khemiri case above, to envisage cases where a person deprived of their citizenship while outside the UK as a result of extradition is refouled to the country of their other, and only, nationality.

27. When one turns to the Home Office’s Nationality Instructions, Chapter 55 Deprivation and nullity, we find the following:

85 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) “C. Conduciveness Deprivation Process 55.8 This policy will be introduced in 2010.”

28. There is no further information.59 However, we know what happens from experience of cases. The Secretary of State waits until the person is outside the UK (see the freedom of information request described above). The Secretary of State issues a notice of intention to deprive a person of nationality on the grounds that the person’s presence is not conducive to the public good. The Secretary of State waits two days, and then deems that notice to have been served. The Secretary of State then issues an order depriving the person of British citizenship and at the same time an exclusion order.

29. The Joint Committee may recall that under the law under which the Abu Hamsa case was determined, Mr Abu Hamsa was served with a notice of intention to deprive him of his British citizenship but he remained a British citizen throughout the proceedings. In the event, in November 2010 the Special Immigration Appeals Commission determined that he could not be deprived of his British citizenship because so to deprive him would make him stateless, because he had already been stripped of his Egyptian citizenship. UK law does not permit a person to be deprived of their nationality on the grounds that such deprivation would be to the public good, if to do so would render them stateless.

30. The law under which the Abu Hamsa case was determined has been changed. The Asylum and Immigration Act 2004 Schedule 2 repealed s 40A(6) of the British Nationality Act 1981 which had provided that an order depriving a person of his/her British nationality could not be made in respect of a person during the period in which an appeal against a notice of a decision to deprive that person of citizenship could be brought or was pending. When one consults the Explanatory Notes to the 2004 Act these state

“121.Paragraph 4 (British Nationality Act 1981). This provision has the effect that appeals under this Act are handled in the same way as appeals under Part 5 of the 2002 Act, and the same provisions for higher court oversight and legal aid are applied. It also has the effect that a deprivation order can be made before any appeal is heard, thereby allowing deprivation and deportation proceedings to take place concurrently.”

31. There is no mention of the implications of the amendment for those deprived of their nationality while outside the UK in the circumstances outlined above. The repeal came into effect on 4 April 2005.60

59 See www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/ nichapter55/chapter55?view=Binary 60 SI 2005/565 86 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) 32. Indeed, statements made during the passage of the 2004 Act through parliament referred to the change as ‘minor and technical:

“My Lords, paragraph 4(b) of Schedule 2 empowers the Asylum and Immigration Tribunal, in the event of a successful appeal against deprivation of British nationality, to direct that any order for such deprivation made prior to determination of the appeal is to be treated as having no effect.

The amendment will confer a parallel jurisdiction on the Special Immigration Appeals Commission in relation to successful appeals to that body against deprivation of nationality under Section 2B of the Special Immigration Appeals Commission Act 1997.

This might be thought to be a minor technical amendment, and I suspect that it probably is, but it ensures that the Bill gives full effect to the policy on joining deprivation appeals with appeals against deportation action and/or certification, as the case may be, under the Anti-terrorism, Crime and Security Act 2001, whose daily passage I remember even now. The measure was described in detail at recommittal, and your Lordships supported it. I believe that the noble Lord, Lord McNally, said at the time that they were sensible and overdue provisions that should be supported.

I want to make it clear for the avoidance of any doubt, because there will not be opportunities later, that the Bill does not alter the grounds for deprivation of citizenship. It is important to make that clear. The Bill does not have retrospective implications. It is not directed, for example, at Abu Hamza and his appeal. The changes in the Bill would make the procedure for appeals against deprivation of citizenship and the effect of such appeals not retrospective. Any appeal currently in progress will be conducted in accordance with the existing procedure. That is an important point; I would not want people to get the wrong idea. Furthermore, the Bill does not limit the grounds for appeal against deprivation of citizenship or take away appeal rights in those cases.

Deprivation of citizenship is one issue—but it does not necessarily mean that deportation or removal from the United Kingdom automatically follows. Each case will be considered on its merits and separate decisions taken about the propriety of deportation or removal, as distinct from deprivation of citizenship. There might, for example, be practical or legal difficulties preventing deportation or removal which would not prevent deprivation of citizenship, and circumstances in which the latter action would be desirable or appropriate notwithstanding the impossibility of the former.

87 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) I believe that I have milked everything that I can from this minor technical amendment. I beg to move.” The Lord Rooker, HL 3rd reading of the Asylum and Immigration Treatment of Claimants Etc. Bill session 2003-2004, 06 07 04 cols 782-784)

Dublin Regulation: responsibility for determining an application for asylum61

33. We are aware of at least one case where extradition has been treated by the UK as the European country to which the person is extradited accepting responsibility for determining the person’s claim for asylum, despite that country’s not having given any indication at the time of the extradition that it would so treat the claim.

Permanent Residence under European Union law

34. As set out above, we have seen instances where a person’s indefinite leave has been cancelled while they are outside the UK. Rather than indefinite leave to remain, third country nationals facing extradition may have rights of permanent residence in the UK under Article 16(2) of Directive 2004/38/EC, the ‘Free movement’ Directive, as a result of their having resided in the UK for more than five years as the family member of a national of an EU member State .

35. Article 16 goes on to state:

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.”

36. Article 21 provides that continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

37. Whether a person has permanent residence may be of great importance in challenging any decision to expel him/her. Article 28 Provides:

“Article 28

Protection against expulsion

61 Regulation 2003/343/CE 88 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5) 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous ten years; or

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

38. Human rights considerations, and in particular considerations under Article 8 of the European Convention on Human Rights (right to private and family life) often loom large in expulsion cases.

39. It can be seen from the legal framework outlined above that if a person, as a result of extradition, loses his/her permanent residence because s/he is out of the country from which s/he has been extradited for over six months, or over two years as the case may be, the result will be that s/he enjoys a lesser protection against any expulsion decision made in his/her absence from the territory than would otherwise be the case. For the reasons outlined above, such persons may also face the prospect of being unable to return to the UK to challenge the expulsion/exclusion decision made against them. Thus rights under European Union law, and the human rights that underpin them, may be undermined in such cases.

Summary

40. Current extradition procedures fail to provide protection against breaches of human rights that arise when persons subject to extradition orders are, or become persons subject to immigration control. Neither extradition proceedings, nor the conduct of the UK and other EU member States thereafter, provides adequate protection against refoulement.

21 January 2011

89 Written Evidence submitted by the Immigration Law Practitioners’ Association (EXT 5)

90 Written Evidence submitted by Liberty (EXT 6)

Written Evidence submitted by Liberty (EXT 6) Summary

In this submission to the JCHR Inquiry we set out the background to extradition law and practice in the UK and identify what we consider to be the key flaws in the Extradition Act 2003 (EA). In order to facilitate an extradition process which is fair, just and which respects fundamental human rights, a number of changes are required.

Most appropriate forum bar: the EA must be amended to ensure that for all extradition requests, a UK judge has the power to bar an extradition where the alleged conduct took place in whole or in substantial part in the UK and where, given the circumstances of the case, extradition would not be in the interests of justice.

A prima facie case must be established prior to extradition: British courts must have the opportunity to determine whether there is sufficient evidence against an individual to warrant their extradition. Before such a significant engagement of a person’s human rights it must be determined whether there is a case to answer. To this end the European Framework Decision will need to be renegotiated and Part 1 of the EA amended. Part 2 of the EA will also need to be amended to remove the list of countries currently exempted from having to provide prima facie evidence for extradition requests (following renegotiation of bilateral extradition treaties where necessary). The power for ministerial designation via statutory instrument under Part 2 of the Act should also be removed. The clear injustices which have occurred under the US-UK treaty, as detailed in this submission, show a clear mandate for change.

Dual criminality: the EA must be amended to ensure that only conduct which would be an offence within the UK is an extraditable offence under Part 1. This will put an end to UK residents being subjected to prosecution for acts deemed criminal wholly out of keeping with UK values, and will go some way to ensuring that extradition warrants are executed only in a proportionate manner.

Renegotiation of the European Framework Decision: The European Framework Decision must be renegotiated in order to re-insert the prima facie case safeguard (see above). Renegotiation should also involve re-inserting the dual criminality requirement for extradition within the EU. Further, given conflicting policies amongst Member States a court must be able to determine whether the ramifications of the alleged crime for which extradition is being sought are disproportionate 91 Written Evidence submitted by Liberty (EXT 6)

to the impact on the person who will be affected by their removal to another state and whether it is in the public interest to pursue extradition.

Renegotiation, where necessary, of bilateral treaties: Ensuring that there are adequate safeguards in place for UK residents subject to extradition may require the renegotiation of certain bilateral treaties, and/or the removal of the Part 2 designation order. What will be required will vary from one treaty to the next, but it is vital that safeguards be reinstated even where this requires diplomatic negotiation. All of the arrangements with Part 2 countries must be reviewed – not only that of the US-UK.

Provisional Arrest: The ability to hold a provisionally requested person without charge for 45 days or more without an official warrant is tantamount to holding someone without charge. Not only will this have a devastating impact on the detained person’s private life, as well as that of their family, it is a breach of the right not to be imprisoned without lawful charge and conviction.62 The provisional arrest powers in the Act must be reviewed and the length of time a person is able to be held drastically reduced, with much stronger judicial safeguards.

European Investigation Order: Finally, Liberty is concerned that the EIO Directive, as currently drafted, lacks express safeguards for human rights and procedural fairness which is likely in practice to lead to a similar impact as the operation of the EAW.

Introduction

1. On 10th December 2010 the Joint Committee of Human Rights (JCHR) announced an inquiry into the human rights implications of the UK’s extradition policy. The inquiry follows on from the Home Office review of the same, announced on 8th September 2010,63 to which Liberty submitted a detailed response.364 Liberty has long held concerns about the UK’s

62 As protected by Article 5 of the European Convention on Human Rights as incorporated into UK law by the Human Rights Act 1998. 63 House of Commons Hansard, 8 September 2010 at column 15WS. The Home Office review focuses on five areas: (a) the breadth of the Home Secretary’s discretion in an extradition case; (b) the operation of the European Arrest Warrant including the way in which its optional safeguards have been transposed into UK law; (c) whether the forum bar to extradition should be commenced; (d) whether the extradition treaty between the UK and UK is unbalanced; and (e) whether requesting states should be required to provide prima facie evidence (that is, that there is sufficient evidence to form a case against the defendant). 64 Liberty’s response to the Home Office review of extradition legislation (December 2010), available at http://www.liberty-human-rights.org.uk/pdfs/policy10/liberty-submission-to- homeoffice-extradition-review-december-2010.pdf. 92 Written Evidence submitted by Liberty (EXT 6) extradition arrangements.65 From a human rights perspective, the legal and international frameworks governing these arrangements are inherently flawed. A review of the experience of practical impact of the EA since it came into force evidences a clear mandate for change.

2. The JCHR inquiry focuses on whether the UK’s bilateral extradition treaties, along with the European Arrest Warrant (EAW) system and the European Investigation Order (EIO), comply with the UK’s human rights obligations. The inquiry will address a number of issues, including

(a) whether current extradition arrangements provide adequate protection against any unjustifiable infringement under the HRA, and what safeguards should be included to better protect human rights;

(b) whether bilateral extradition treaties override human rights, and whether and what safeguards are required to better protect human rights;

(c) the implementation in the UK of the European Arrest Warrant; and

(d) the human rights implications of the European Investigation Order.

The breadth of issues covered by this inquiry recognises the extent of the problems with the current extradition system. Liberty believes that it is not only the political arrangements in place but also the legal implementation of those arrangements under the Extradition Act 2003 (EA) which need to be reviewed. It is also important that any reform of extradition law goes beyond the arrangements which have received more political and media attention in recent years, such as the UK-US extradition treaty, to consider the arrangements in place with all other countries.

3. Liberty’s position is that the EA, which implements both European arrangements and international obligations, has removed crucial safeguards and eroded the ability of the judiciary to properly oversee extradition requests. While Liberty has always been conscious of the need to ensure that suspected offenders face trial, we believe that this must, and may, be reconciled with a system which protects people against unfair or unnecessary extradition. Extradition permits the forcible removal to a foreign country of people resident in the UK, including UK citizens, who may have no connection with the foreign jurisdiction. Extradition proceedings have a profound and

65 See, for example, Liberty’s Response to the Home Office consultation on The Law of Extradition (2001) available at http://www.liberty-human-rights.org.uk/pdfs/policy01/jun- extradition.pdf. For more information about Liberty’s Extradition Watch Campaign see: http://www.liberty-human-rights.org.uk/human-rights/justice/extradition/index.php. 93 Written Evidence submitted by Liberty (EXT 6) often irreversible effect on all aspects of a person’s life, including their mental and physical health and their ability to carry on relationships with family members. Even where an individual is later exonerated, extradition of UK residents has been shown to end employment and ruin careers, destroy marriages, interfere with studies, and affect other personal and social ties. The removal of an individual to a foreign jurisdiction for investigation and possibly prosecution necessarily engages historic rights to fair trial, liberty and the prohibition on inhuman and degrading treatment.

4. Concern about current arrangements has emanated not only from human rights campaigners but from lawyers, judges, journalists and parliamentarians across the political spectrum including at the highest levels of Government. In recent polling commissioned by Liberty, a majority of parliamentarians recognised that there are significant flaws in the current extradition framework. 83% of all MPs surveyed agreed, or agreed strongly, that if a significant part of the alleged crime took place in the UK then it ought to be left to a British court to decide if it is in the interests of justice to extradite the person or have them tried at home.66 66% of MPs agreed, or agreed strongly, that extradition should only occur if the country requesting it first provides evidence to a UK court.67 In relation to the high profile proposed extradition of Gary McKinnon, the Prime Minister, while Leader of the Opposition, stated he could “see no compassion in sending [Gary McKinnon] thousands of miles from his home and loved ones to face trial” given there is a “clear argument” that he could be tried for these offences in a British court, and that the possibility that he would be extradited raised “serious questions about the workings of the Extradition Act”.68 The Deputy Prime Minister stated that the extradition of Mr McKinnon would amount to “a travesty of justice”;69 and the Rt Hon Chris Grayling MP said as Shadow Home Secretary last year that a review of the US/UK extradition treaty was “vital to maintain the integrity of our extradition system” given it was facilitating extradition of people who “are not actually the people we were told, in the first place, it was designed for”.70 Even the former Home Secretary, the Rt Hon David Blunkett MP, who negotiated and signed the US-UK treaty, has recently conceded that, with the benefit of hindsight and knowledge of how extradition arrangements are

66 The survey data was independently collected by ComRes, 2 to 17 September 2010. There were 151 MPs surveyed, with data weighted to reflect the exact composition of the House of Commons in terms of party representation and regional constituency distribution 67 Ibid. 68 http://news.bbc.co.uk/1/hi/uk/8178321.stm 69 Article written by Nick Clegg in The , “If they drag McKinnon to America, he will never come back” (4 August 2009), available at http://www.dailymail.co.uk/debate/article- 1203572/NICK-CLEGG-If-drag-McKinnon-America-come-back.html. 70 “Time to show just how flawed the US-UK extradition treaty is” The Telegraph (19 July 2009), available at http://www.telegraph.co.uk/finance/comment/5864977/Time-to-show-justhow- flawed-the-US-UK-extradition-treaty-really-is.html. 94 Written Evidence submitted by Liberty (EXT 6) working in practice, both the extradition treaties and EAW should be reviewed and improved.71

5. In this evidence to the Committee we set out the basic features of extradition law, and then address key concerns under Part 1 of the EA in relation to the European Arrest Warrant and under the non-EU country arrangements set out at Part 2 of the EA. Liberty recognises that there is an important role for streamlined extradition in the fight against serious crime. However we believe that sacrificing critical safeguards for British residents for the sake of expediency is the wrong approach and leads to grossly unfair and punishing outcomes. This unfairness is compounded by the fact that important safeguards have largely been maintained for the residents of our extraditing partners. Our central submission to the JCHR inquiry is that the EA needs to be urgently amended to include necessary safeguards to stop unjust extradition. In some instances this means that the underlying treaties and frameworks will need renegotiation. In summary, extradition should only take place where there is a prima facie case against the defendant and it will not be contrary to human rights to do so. It should not take place where the alleged crime is not a crime in this jurisdiction, where the impact of the extradition is disproportionate to the offence to which the warrant relates, or where the alleged conduct predominantly took place within the UK and it wouldn’t be in the interests of justice to extradite. In essence, meaningful oversight powers need to be returned to the courts, while maintaining a finite role for the Secretary of State.

Background to the UK’s extradition arrangements

6. The formal surrender of a person from one country’s territory to another to allow a prosecution to take place has traditionally been undertaken pursuant to treaty arrangements between the two countries. Thus the UK once had, and still has in many cases, a number of treaties with various countries setting out the terms under which a person can be extradited. This system was first recognised in our domestic legal system by the Extradition Act 1870. The laws were consolidated by the Extradition Act 1989, and then underwent a major overhaul in the Extradition Act 2003 (EA). The EA was the result of an extensive review of extradition law which began in 1997. The review was halted while litigation in relation to the Chilean request to extradite General Pinochet was ongoing, and proposals for consultation were ultimately published in March

71 Uncorrected evidence given to the Home Affairs Committee, on 30th November 2011, at question 5. Uncorrected evidence available at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmhaff/uc644- i/uc64401.htm. 95 Written Evidence submitted by Liberty (EXT 6)

2001.72 Significant amendments to the EA were also later made by the Policing and Crime Act 2009.

7. The Home Office consultation in the late 1990s took place against the highly charged political and legal background of the Pinochet extradition. The Home Office explained at the beginning of its paper that of particular significance was the way this case “threw into high relief many of the problems of UK extradition law, most notably the lengthy delays which can occur in complex, contested extradition cases”.73 The consultation also considered how to implement the Framework Decision of the European Council, which was to become effective on 1 January 2004.74 The Framework Decision applies to all European Union Member States and replaced the traditional extradition scheme between those states.75 The idea behind it is that an arrest warrant issued in one Member State can be recognised and enforced in all other Member States so allowing for faster and simpler surrender procedures and removing the ability of the executive to stop any extradition request. The UK is bound under EU law to implement the Framework in domestic legislation. The 2003 Act was passed on 20 November 2003 and generally came into effect on 1 January 2004.

8. The 2003 Act is an extremely complex and confusing piece of legislation which essentially sets out three different processes by which extradition will operate:

(1) in relation to EU countries that are subject to the EAW (category 1 territories, governed by Part 1 of the EA);

(2) most non-EU countries (category 2 territories, governed by Part 2 of the EA); and

(3) non-EU countries designated by order that aren’t required to prove a prima facie case (category 2 territories excepted by order, also governed by Part 2 of the EA).

Traditional safeguards available in extradition law

9. Before going on to address extradition arrangements in relation to each of these categories, it is important to set out what safeguards have traditionally

72 Home Office, The Law on Extradition: A Review (March 2001) 73 Ibid, at para 8. 74 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA), (‘European Framework Decision’) available at http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:190:0001:0018:EN:PDF. 75 See the recital to the Framework Decision, ibid. 96 Written Evidence submitted by Liberty (EXT 6) been part of UK extradition law. During the reworking of the system in the 2003 Act and the later amendments in 2009, some of the safeguards which were previously in place to protect a person subject to an extradition request were removed or whittled down. This has led to an extradition system which leaves UK residents with minimal protection when faced with spurious or speculative prosecution beyond British shores.

10. Some traditional and important safeguards include the requirement for a prima facie case to be made out before extradition is ordered; and the power for extradition to be refused if the requesting state was not the most appropriate forum to try the offence. Other important safeguards include the rule of dual criminality, political offence exceptions, and the requirement that an extradited person cannot be prosecuted for anything other than that for which he or she was extradited (the rule of specialty).

Prima facie case

11. The usual rule is that before a person is extradited to a requesting country, the requested country’s courts should first consider whether a prima facie case has been made out against the person. This means that the requesting country has to demonstrate that there is a case to answer. The courts’ ability to scrutinise an extradition request provides an essential safeguard against oppressive extradition requests by ensuring that there is genuinely a complaint against the accused that is supported by at least some evidence. Given the substantial impact forced removal to a foreign country has on a person, the requirement to make out a case to answer before extradition is ordered is an essential safeguard. As regards the UK, this requirement was removed for a number of countries under the EA.

Most Appropriate Forum

12. The forum safeguard ensures that where an offence or act is allegedly conducted partly or wholly within the UK, a judge will be able to consider whether it is in the interests of justice for that person to be extradited. A forum safeguard is common in extradition treaties. The 1957 European Convention on Extradition, for example, provides that an extradition request can be refused where the requested state considers that the alleged offence was committed ‘in whole or in part in its territory or in a place treated as its territory’. A similar provision is included in the EU Framework Decision on the EAW (however this bar is strangely not included in the EA in the list of factors which can bar an extradition request). In 2006, the House of Lords successfully tabled an amendment to the EA incorporating a forum bar into UK domestic

97 Written Evidence submitted by Liberty (EXT 6) extradition arrangements.76 This provision, however, has never been brought into force.

Rule of dual criminality

13. The principle of dual criminality was for a long time applied by all countries under international law. It requires that the act or omission with which a person has been charged is criminal in both the requesting and the requested State for an extradition to go ahead. This stems from the principle that there should be no punishment without law—so that a person should not be sent to a country to face prosecution for an offence that is not criminal in the extraditing State (and is also linked to the principles of state sovereignty). The EA, implementing the Framework Decision, has effectively abolished the dual criminality requirement for extradition within the EU by allowing extradition for a broadly defined range of offences which can include numerous offences which are not considered criminal acts in the UK.

14. A traditional safeguard which remains in place is the rule that an extradition request may be refused if the requesting State is seeking to extradite the person for political reasons or if the alleged offence was committed for political reasons. The concept of a ‘political offence’ is related to the idea of political asylum (although the definition has difficulties, especially in relation to terrorism offences).77 Most international extradition treaties will allow for an exception if there are substantial grounds for believing that the request for extradition has been made for the purpose of punishing someone on the grounds of race, religion, nationality, ethnic origin or political opinion.78

15. The ‘specialty’ rule also remains in force. This requires that a person who has been extradited cannot be prosecuted for any offence other than the offence for which he or she was extradited. This rule safeguards against the risk that a person may be subsequently tried for a political offence and reinforces the rule on dual criminality. It also protects a person from facing a charge for which he or she has not had notice and for which no prima facie case has been proved before the requested country’s courts.79

76 Under the Police and Justice Act 2006, as outlined below. 77 See Stanbrook and Stanbrook, Extradition Law and Practice (2000), at pages 65-69 78 Note, however, that the EAW scheme does not provide for this. 79 Ibid, page 47. 98 Written Evidence submitted by Liberty (EXT 6)

Political offence exception and rule against specialty

Operation of the EA

Part 1 of the EA—The European Arrest Warrant

16. As outlined above, the EA implements the European Arrest Warrant scheme, designed to facilitate streamlined extradition of suspects throughout EU Member States bound by the European Framework Decision. It allows for a fast track system of extradition, whereby people arrested subject to an EAW are swiftly extradited from Britain, often within weeks, for charge, prosecution or imprisonment. The EAW was introduced in the post 9/11 context, sweeping away a number of safeguards previously found in the UK’s extradition arrangements. The Home Secretary who was in office at the time the Framework Decision was agreed, the Rt Hon David Blunkett MP, recently said that at the time he signed Britain up to the EAW he was “insufficiently sensitive to how it might be used”.80

17. Part 1 of the 2003 Act deals with the 27 EU countries that are bound by the European Framework Decision.81 Once a European Arrest Warrant has been issued by a Member State the UK must arrest the person and bring him or her before a judge to consider whether the person is the person specified in the warrant, at which point the judge can detain or bail the person. The judge must (unless the person consents to being extradited) then set a date for the extradition hearing within 21 days. The aim of the hearing is to satisfy the court that (a) the person has been charged with an extradition offence and (b) that none of the legal bars to surrender apply. An extradition offence includes offences punishable by 12 months imprisonment or more and which are offences in the UK, but it also includes offences listed in the European Framework Decision which may not be offences within the UK82 (see our comments below in relation to dual criminality). Extradition can be barred in

80 http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-in-Britons-exported- for-trial.html. 81 The countries to which Part 1 of the EA applies are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden: see section 1 of the EA and Extradition Act 2003 (Designation of Part 1 Territories) Order 2003, SI 2003/3333. 82 See sections 64 and 65 of the EA. In relation to Category 1 territories, an extradition offence includes an offence that is on the list of 32 offences set out in the European Framework Decision, punishable by a maximum sentence of at least three years detention in the requesting country (article 2.2). Section 64 also includes other offences that would constitute extraditable offences where the conduct is committed outside of the Category 1 country requesting extradition. Section 65 applies an extradition offence to the situation where a person has been convicted of a relevant offence and sentenced to 12 months imprisonment or more. 99 Written Evidence submitted by Liberty (EXT 6) certain limited circumstances,83 including if the court decides that the person’s extradition would not be compatible with his or her human rights under the Human Rights Act 1998.84 As outlined in more detail below, this latter ground, whilst a welcome provision, has been interpreted in such a way by UK courts that it will rarely be a successful bar to extradition. The EA fails, however, to implement a key safeguard in the Framework Decision; that is, the opportunity for the executing judicial authority to refuse to execute an EAW where it relates to an offence which has in whole or in part allegedly been committed in the Member State.85 The ‘forum bar’ is completely absent from our legal extradition framework.

Part 2 of the EA

18. Part 2 of the EA applies to over one hundred countries with which the UK has an extradition agreement in place. Under this Part, ‘Category 2 territories’ include 92 countries with whom extradition arrangements are in place,86 as well as a number of countries which have been ‘exempted by order’ to which further provisions apply. There are significant differences between Part 2 and Part 1 (covering the EAW). Before a Court can order a person’s extradition to a category 2 country it must decide if there is sufficient evidence to make a case to answer (that is, a prima facie case).87 It also requires dual criminality for all extraditable offences (which would be subject to 12 months or more imprisonment in the UK).88 The need to show a prima facie case provides a valuable safeguard against oppressive extradition requests by ensuring that there genuinely is a complaint against the defendant supported by evidence. The requirement for dual criminality ensures that only conduct we consider to be criminal can be prosecuted. With the inclusion of these two important safeguards, Part 2 of the 2003 Act is far preferable to the situation under Part 1 in relation to the EAW, discussed below. Nonetheless Part 2 is dangerously flawed. Not only does it fail to include important safeguards regarding the most appropriate forum, it also allows for the removal (by secondary legislation) of the prima facie case requirement. As we examine below, a number of countries have already

83 See sections 11 to 19A of the EA. Extradition can be barred if it would breach the rule against double jeopardy; if the extradition warrant has been issued to prosecute or punish the person for his or her race, religion, nationality, gender, sexual orientation or political opinions; if too much time has passed; if the person is under the age of criminal responsibility; etc. The courts can also refuse to extradite if the person has already been convicted in the person’s deliberate absence and he or she will not be entitled to a retrial: see section 20 of the EA. 84 Being the rights set out in the European Convention on Human Rights and incorporated into UK law by the Human Rights Act 1998. 85 Article 4(7) of the Framework Decision, ibid. 86 See Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, clause 2. 87 See sections 84 to 86 of the EA. 88 See sections 137 to 138 of the EA. 100 Written Evidence submitted by Liberty (EXT 6) been exempted by order under Part 2 allowing them to request extradition of an individual without providing evidence of a prima facie case.

Appropriate forum bar

19. Liberty believes that a decision about where a person should face trial should be informed by most appropriate forum and interest of justice considerations. This will ensure recognition of the serious impact of extradition on a person and their family and allow cases to be prosecuted in the country where most evidence is available. Where the conduct that constitutes the alleged offence takes place in whole or in part in the UK, extradition to a foreign country will inevitably result in difficulties in defending the case given that many witnesses and other evidence will be in the UK. Issuing a subpoena to a UK-based witness from another jurisdiction may well prove difficult (or impossible) and seriously affect a defendant’s ability to mount a proper defence. With the advent of the internet, it is now the case that online activity in one part of the world can result in criminal liability in another without the offender ever stepping outside their living room, let alone crossing international borders. Coupled with the increasing willingness of countries to assert extra-territorial jurisdiction, the threat of extradition in these circumstances is becoming an increasingly serious problem given the minimal judicial protections built into our domestic extradition legislation.

Case study—The Natwest 3, David Bermingham, Giles Darby & Gary Mulgrew

Three British men, (commonly referred to as the NatWest 3) were indicted by the US authorities in June 2002. It was alleged that they had conspired with two members of Enron to defraud the Natwest Bank in London. Their extradition request was, however, delayed until February 2004, one month after the EA came into force.

The NW3 argued that since they were three British citizens, living and working in the UK, accused of defrauding a British bank in the UK, they should face trial in the UK. In particular, they argued that all of the available evidence and defence witnesses were in the UK, and that if extradited they would have no access to either. The case was remarkable because the alleged victim, NatWest Bank, had never made any complaint against the men.89

Their extradition requests were granted by a magistrates’ court in October 2004. The Home Secretary ordered their extradition in May 2005. The men appealed and were also granted a judicial review of the refusal of the Serious Fraud Office to investigate the case in the UK. Their appeals were rejected in

89 See http://news.bbc.co.uk/1/hi/business/5163982.stm. 101 Written Evidence submitted by Liberty (EXT 6)

February 2006.90 Liberty intervened on their behalf in the High Court, arguing that human rights considerations meant that it was neither necessary nor proportionate to extradite the men because they could so easily be tried in the UK, and indeed should be tried here. Counsel for the Attorney General argued that the desirability of honouring the UK’s international treaty obligations should outweigh a person’s Article 8 rights91 in all but the most extreme cases. The court agreed, but certified the point as being of public interest. The NW3’s attempt to have the decision in the Government’s favour appealed was refused by the House of Lords. The men were consequently extradited to Houston, Texas, in July 2006.

As they had predicted, the NW3 were unable, once in the US, to secure disclosure of documents or subpoena witnesses from the UK. They had had no sight of the prosecution documents until setting foot in the US, and in the absence of any UK proceedings they had been unable to access any materials prior to extradition.

In November 2007, the NW3 agreed to plead guilty to one count of ‘wire fraud’, and were sentenced in February 2008 to 37 months’ imprisonment. They were transferred back to the UK in November 2008 to serve the remainder of their sentence. Since their release they have spoken out about the case, outlining that the pressure of their situation in the US lead to their guilty pleas.92

Case Study - Gary McKinnon

Gary McKinnon is a British man who has been charged with hacking into the US Pentagon and NASA systems between 1999 and 2002, an offence which was allegedly committed from his computer at home in Scotland. After a US extradition request for Mr McKinnon was issued in 2004, the Home Office began preparing to extradite Mr McKinnon to America for him to stand trial. Mr McKinnon has been diagnosed with Asperger’s Syndrome, and his mental health has seriously deteriorated since the legal proceedings against him began. Because of this, and the fact that the crime was committed on British soil, Mr McKinnon has continually argued that he should be tried here in Britain. The Crown Prosecution Service, however, has decided not to bring charges against Mr McKinnon in the UK.93

90 R (Bermingham, Mulgrew and Darby) v The Director of the Serious Fraud Office [2005] EWHC 647 (Admin). 91 The right to privacy and family life, protected by Article 8 of the European Convention on Human Rights as incorporated into domestic law by the Human Rights Act 1998. 92 http://www.guardian.co.uk/business/2010/aug/15/natwest-three-recant-guilty-pleas/ 93 The Crown Prosecution Service refused to bring charges under the Computer Misuse Act 1990 against Mr McKinnon in 2003 and later in 2009. Lord Justice Stanley Burnton (with whom 102 Written Evidence submitted by Liberty (EXT 6)

Consequently in a series of decisions made by both the courts and the Secretary of State Mr McKinnon’s fate has been deliberated for six years.94 In May 2010 the Home Secretary announced that she would reconsider the decision of her predecessor, the Rt Hon Alan Johnson MP, in November 2009 that there were no human rights grounds which precluded Mr McKinnon being extradited to the US. Since the first High Court decision in 2007 further evidence has come to light not considered in the early judicial proceedings which indicates that the mental suffering of Mr McKinnon, reflecting not only his Asperger’s condition but also now his depression and a significant risk of suicide, is such that to decide to extradite him would be disproportionate and a breach of his right to privacy and a family life, and potentially the right to be free from torture or inhuman or degrading treatment.95

20. One of the more illogical features of the current UK extradition arrangements is that a key potential safeguard, requiring that a domestic court must consider the most appropriate forum to prosecute the charges in question before granting extradition, sits on the statute book but has not yet been brought into force. In 2006 amendments were successfully tabled to the EA96 that would allow a UK court to bar extradition if a significant part of the conduct that constituted the alleged offence took part in the UK and in view of that, and all other circumstances, it would not be in the interests of justice for the person to be tried in the other country.97 This would require a judge, determining an extradition request under both Parts 1 and 2,98 to decide on the basis of evidence in each individual case whether it is appropriate to extradite a person in such circumstances. Liberty believes that a forum amendment is long overdue. Any such amendment must, however, ensure

Lord Justice Wilkie agreed) noted in his judgment in the most recent judicial review that there were other forums in which Mr McKinnon could be prosecuted: at para 11 in R (on the application of McKinnon) v Secretary of State for Home Affairs [2009] EWHC 2021 (Admin). 94 A decision was first made on 10 May 2006 by District Judge Evans in Bow Street Magistrate’s Court to send the case to the Secretary of State, who decided in July 2006 that Mr McKinnon ought to be extradited. Appeals against both District Judge Evans and the Secretary of State were dismissed in 2007: [2007] EWHC 762 (Admin); and finally by the House of Lords in July 2008: [2008] UKHL 59. Following further evidence and a request for the Secretary of State to reconsider, a further decision to extradite Mr McKinnon was decided in 2008, which was reviewed in the Secretary of State’s favour by the High Court: [2009] EWHC 2021 (Admin). For a detailed history of the case see the decision of Lord Justice Stanley Burton (with whom Justice Wilkie agreed), R (on the application of McKinnon) v Secretary of State for Home Affairs [2009] EWHC 2021 (Admin). 95 Protected by Articles 8 and 3, respectively, of the European Convention on Human Rights as incorporated into domestic law by the Human Rights Act 1998. 96 See Schedule 13, paragraphs 4 and 5 of the Police and Justice Act 2006. 97 These amendments would effect forum being a bar to extradition by amending section 79(a) (inserting ‘forum’ as one of the bars to extradition); and inserting sections 19B and 83A. 98 Paragraph 4(1) of Schedule 13 of the 2006 Act, ibid, would insert a new bar to extradition, ‘forum’, to section 11, Part 1 of the EA, and insert section 19B; paragraph 4(5) of Schedule 13 would insert the same for extradition requests from Part 2 territories at section 79 and section 83A. 103 Written Evidence submitted by Liberty (EXT 6) that there is not one particular factor which outweighs another in a best interests test, the essence of which allows the judge full discretion to determine the case on the facts in question. We do, accordingly, caution against the inclusion of a specific instruction to take into account one factor (such as whether the UK authorities are prosecuting the alleged offence).

21. In 2009 the Policing and Crime Bill finally presented an opportunity to bring the 2006 forum amendment into force. However following the tabling of the necessary clauses, the then Attorney General wrote to all members of the House of Lords suggesting that enactment of the 2006 forum provisions in the EA would place the UK in breach of its international obligations under the extradition treaties to which it is a party because the treaties did not permit appropriate forum to be a basis for refusal of an extradition request. In response Liberty obtained an opinion from leading extradition experts (at Annex 1) which states that there was in fact no basis on which it could be asserted that a forum consideration would place the UK in breach of international obligations. If there was a forum amendment in the EA, a treaty agreement would only need to be renegotiated or amended if the forum provision was in fundamental conflict with the terms of the treaty. Similarly in relation to the EAW, although there is a list of grounds on which extradition may be refused under the EAW, there is no reason an additional ground could not be added, as several EU Member States have already done.

22. Gary McKinnon’s ongoing plight shows clearly the type of injustice which could be avoided if extradition could be barred on forum grounds where required in the interests of justice.99 If a UK court could bar extradition on the basis of forum considerations, it is likely that such a power would be exercised in cases such as Mr McKinnon’s as the alleged offence was committed in the UK and, due to Mr McKinnon’s diagnosed Asperger’s syndrome and deteriorating mental state, it is likely that it would not be in the interests of justice for him to be tried in the US and face possible long-term imprisonment. That the current arrangements will lead to an unjust result has been repeatedly recognised by senior Ministers in the Coalition Government. In relation to the case of Mr McKinnon the Prime Minister stated in

Gary McKinnon is a vulnerable young man and I see no compassion in sending him thousands of miles away from his home and loved ones to face trial. ...If he has questions to answer, there is a clear argument to be made

99 To bring the ‘forum amendment’ into force an order would need to be laid and approved by both Houses of Parliament which would enact paragraphs 4 and 5 of Schedule 13 to the Police and Justice Act 2006 bringing those listed provisions into force: as per paragraph 6 of Schedule 13 104 Written Evidence submitted by Liberty (EXT 6) that he should answer them in a British court. This case raises serious questions about the workings of the Extradition Act...100

23. We believe that a forum amendment, as proposed by both Coalition partners when in opposition, therefore represents the best way of ensuring that where elements of an offence took place in the UK and where the interests of justice require it, a domestic court can decide whether or not extradition should take place. It is important to note that the European Framework Decision itself provides that a European arrest warrant may be refused if it relates to offences which are regarded as having been committed in whole or in part in the territory of the state which receives the extradition request.101 This provision, however, was not included in the finite list of bars to extradition in the EA.102 A forum amendment, as attempted in 2006 and then 2009 should be immediately brought into force to ensure that this important safeguard can be relied upon in relation to extradition requests from both EU Member States and our bilateral extradition partners.

Prima facie case

24. Extradition requests under Part 1 or from countries designated under Part 2 of the EA require minimal involvement from a UK court. The court simply has to identify that the person arrested and detained is the person named on the warrant and that the requisite information has been provided by the issuing state.103 A UK court therefore will never consider the substance of the allegations made against the defendant. Instead, the court will simply be required to be satisfied that none of the very limited ‘bars to surrender’ apply.

25. As regards Part 1 countries, the idea behind removing the requirement for a prima facie case was that each EU country’s prosecuting authorities would first consider whether there was sufficient evidence to try a person in that country before requesting extradition. On this reasoning it was felt that there should be no need for another EU country to also check if a case could be made out against that person before ordering their extradition. Unfortunately, the premise for this streamlined reform has not been borne out in the operation of the EAW system. This has resulted in serious injustice, as the case study of Andrew Symeou, set out below, clearly evidences.

100 As reported in “Don’t take my son, mother of computer hacker Gary McKinnon appeals to Obama” The Times, Richard Ford (1 August 2009), available at http://www.timesonline.co.uk/tol/news/uk/crime/article6735557.ece. 101 See article 7.7(a) of the Framework Decision, ibid. 102 At section 11 of the EA. 103 See section 2 of the EA for the information required. 105 Written Evidence submitted by Liberty (EXT 6)

Case Study—Andrew Symeou

In June 2008, Greece issued a European Arrest Warrant for Andrew Symeou, a 20 year old British national, to face charges equivalent to manslaughter arising out of an assault in a nightclub in July 2007. The UK courts, acting under Part 1 of the EA, ordered his extradition in 2008. In accordance with the Act our courts were unable to consider whether or not he has a case to answer, even though all evidence strongly indicates that he does not. Two witness statements that implicated Andrew were immediately withdrawn after the witnesses were released from police custody, citing beatings and intimidation. No statement has ever been taken from Andrew and witness evidence suggests that Andrew was not in the nightclub at the time the victim was assaulted. The High Court held that it is for the Greek courts to assess the quality and validity of the evidence. In holding that the requested extradition could not be barred the court noted:

The absence of even an investigation before extradition into what has been shown by the Appellant here may seem uncomfortable; the consequences of the Framework Decision may be a matter for legitimate debate and concern.104

From the date of his extradition to the first appointed date of trial in June 2010 Andrew was kept in prison, for the most part in a maximum security facility, with bail being refused on several occasions on the basis that Andrew was not a Greek national and did not reside in Greece. In late May 2010 the prosecutor successfully applied for the trial date to be adjourned to allow for witnesses to be summonsed for trial. Andrew was at that time released on bail, with a requirement that he remain in Greece. At the time of writing no new trial date had been set; Andrew’s punishment continues and his life remains on hold.

26. As regards extradition to non-EU countries, the removal of the prima facie safeguard for a number of Category 2 countries has already taken place. These are countries in relation to which the former Government made a series of Orders removing this requirement—at most recent count, there are 24 designated (non-EU) countries.105 All non-EU Council of Europe countries have been designated, as well as established democracies including Canada and

104 Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin) at paragraph 39. 105 See the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, and sections 71(4), 73(5), 84(7) and 86(7) of the Extradition Act 2003. The countries which are currently designated are: Albania, Andorra, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedonia FYR, Moldova, New Zealand, Norway, Russian Federation, Serbia and Montenegro, South Africa, Switzerland, Turkey, Ukraine and The United States of America. 106 Written Evidence submitted by Liberty (EXT 6)

Australia. Also designated are a number of countries with more dubious democratic and human rights records such as Azerbaijan, Georgia, Moldova, the Russian Federation and Turkey.106 Nothing in the Act prohibits the designation of further countries. The effect of designation means that the requesting country need only provide ‘information’ rather than ‘evidence’ to satisfy the test for the issuing of an arrest warrant107 and a judge need not require sufficient evidence to be produced before ordering the extradition of a person.108 The same concerns as set out above for the EAW therefore apply here, but with greater force given there is no presumption that each of the 24 listed countries have the same robust systems of investigation and prosecution as EU countries have (a presumption that we question in any event).

27. As is the case under the EAW, the practical operation of this part of the Act has unsurprisingly lead to unfair results. Many international agreements are also unbalanced: the terms of the agreements together with the low standards of the EA mean safeguards in place for people the UK wishes to extradite are not in place for our own residents. The problems with this part of the EA have been most clearly demonstrated by the operation of the US-UK extradition treaty, as recognised by the terms of this review. However it must be kept in mind that while it is important to focus on renegotiation with the US,109 this will have no effect unless the 2003 Act itself is amended to restore the requirements of prima facie case and dual criminality. The focus on the US-UK treaty caused by recent high profile cases should also not obscure all the other bilateral arrangements falling within Part 2 which should all be subject to review.

28. The extradition request for Lofti Raissi, detailed below, which took place before the 2003 Act was in force, demonstrates aptly the importance of the prima facie case requirement.

106 The Home Office has said that Council of Europe members have been designated because the prima facie case requirement was removed by the European Convention on Extradition which came into force in the UK on 14th May 1991 107 See sections 71(4) and 73(5) of the EA. 108 See sections 84(1) and 86(1) of the EA. 109 Article 8 of the US-UK treaty outlines what is required by a requesting state. Under Article 8(2) this includes an accurate description of the person sought; a statement of the facts of the offence; the relevant test of the law describing the essential element of the offence; the prescribed punishment for the offence; a copy of the warrant or order of arrest issued by a judge or other competent authority; and a copy of the charging document. Further information is required if the person sought has been already convicted. Crucially, Article 8(3)(c) provides that UK requests to the US require “such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested”. 107 Written Evidence submitted by Liberty (EXT 6)

Case study—Lofti Raissi—pre-Extradition Act 2003

Lofti Raissi, an Algerian born UK resident and American trained pilot, was arrested under the Terrorism Act 2000 shortly after 9/11 following an allegation that he had trained four of the men who hijacked the planes involved in the terrorist attack. He was detained by the UK police, and then released without charge seven days later. Immediately after his release, however, he was re- arrested and imprisoned after an extradition request was issued by the US. The charge on which the extradition request was based was a minor one, alleging that Mr Raissi had fraudulently completed a pilot’s licence form by failing to reveal he had had knee surgery; the court was told that these were ‘holding charges’ and that charges of conspiracy to murder and terrorism were being considered by the US authorities. Mr Raissi was then detained for just under five months in Belmarsh high-security prison, without ever being charged with an offence by UK or US authorities.110

It is important to note that this case was decided before the US-UK extradition treaty was in force; accordingly the prima facie case safeguard was able to be applied by the judge. On 24 April 2002, Senior District Judge Workman discharged Mr Raissi in relation to all the extradition charges, on the basis that a prima facie case was never made out against Mr Raissi. Senior District Judge Workman noted that although a number of allegations of terrorism were made, no evidence was ever received by the court to support the allegation.111 Mr Raissi has since been completely exonerated.112

Even though Mr Raissi was never extradited to the United States, his life was irreversibly impacted by the extradition request. While in prison it became known that he was suspected of being involved in the 9/11 attacks and he was subjected to constant racial taunts and threats on his life and he was stabbed twice.113 He lost his job and has been unable to re-establish his career as a pilot; his wife lost her job with Air France; his brother’s wife lost her job at Heathrow airport; and the family has thousands of pounds of debt incurred by Mr Raissi’s legal defence.114

110 The facts of Mr Raissi’s case are set out by Lord Justice Hooper in relation to Mr Raissi’s compensation for wrongful imprisonment claim: R (on the application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72. 111 R (on the application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72 per Lord Justice Hooper at para 2. 112 Ibid, at para 154. 113 http://www.guardian.co.uk/uk/2009/nov/22/lotfi-raissi-algerian-pilot-case. 114 See a personal account from Mr Raissi at http://www.guardian.co.uk/world/2002/sep/11/september112002.september1147. 108 Written Evidence submitted by Liberty (EXT 6)

29. Had the current US-UK Extradition Treaty115 been in place and the US designation under Part 2 of the EA in force, Lofti Raissi would have been extradited to the US for the purposes of a 9/11 investigation to answer a crime for which the Home Office has since conceded no evidence ever existed to implicate Mr Raissi’s involvement.116 It is likely that he would have been refused bail in the US given the potential seriousness of a terrorist offence. This is because the Treaty as implemented by the 2003 Act removed the prima facie case safeguard hitherto part of UK extradition law.

30. Liberty does not believe that anyone should be removed from the UK without a domestic court first being satisfied that there is a case to be answered, in accordance with rules of criminal justice which UK courts apply to anyone suspected of an offence in this country. While it is important to ensure that those committing offences do not escape justice it is also essential that any process for dealing with suspects includes basic safeguards against abuse. Liberty considers that the prima facie safeguard, in relation to both EU and non-EU extradition arrangements, must be urgently reinstated. This would not require a full merits review by a domestic court, with the associated problems of logistics, appeals and delay. It would instead merely require that a domestic court be satisfied that a basic case has been made out before somebody’s private life and livelihood is potentially upended.

Other aspects of operation of EAW

31. In addition to concerns over the absence of the forum bar and a prima facie case requirement outlined above, Liberty has a number of further reservations over the current European framework for extradition.

Dual criminality

32. The EA, in implementing the EAW scheme, effectively abolishes dual criminality for Category 1 countries in respect of 32 categories of offences listed in the European Framework. This means that for these offences a person sought by an EU country can be extradited even if the alleged offence is not one recognised in the UK.117 The listed offences are not defined and are extremely broad to the point of being meaningless. Included are such ill-

115 Extradition Treaty between the Government of the United and and the Government of the United States of America (Washington, 31 March 2003) CM 5821. 116 Evidence given to the Home Affairs Committee from Senior District Judge Workman was to the effect that it would have been difficult for him to have done anything other than extradite Mr Raissi had the new extradition arrangements been in place at the time the request came to his court: oral evidence given by Senior District Judge Workman to the Home Affairs Committee, 22 November 2005 at question 28. 117 The only limitation being that the offence is punishable by three years or more imprisonment in the requesting country. 109 Written Evidence submitted by Liberty (EXT 6) defined offences as ‘computer-related crime’; ‘racism and xenophobia’; ‘swindling’; ‘racketeering and extortion’; ‘piracy of products’ and ‘sabotage’.118 When the Home Affairs Select Committee, which looked at the Extradition Bill in 2002, asked for examples of what ‘racism and xenophobia’ means the examples given included disseminating material in support of, or displaying symbols of, banned organisations (Germany); participating in organisations that propagate discrimination (Greece); and disseminating harmful information about a racial or religious group with a reckless disregard for the truth (Spain).119 In fact, there have already been requests for extradition for speech and racism related offences that are not offences under UK law.120

33. We fully endorse what was said by the Home Affairs Select Committee in 2002 before the 2003 Act was passed in relation to these offences:

We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be [confident] that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the UK.

Our sense of unease is heightened when we look at the list of 32 offences specified by article 2.2 of the framework decision....It is apparent that these offences are defined in generic terms and are probably better described as “categories of offence”. As noted above, the UK Parliament has no power to amend them.

We asked the Home Office what information it has about how these offences are defined in other countries. The Home Office responded that it “does not have detailed definitions of offences in the criminal justice systems of other EU member states”.121

34. As these offences are not defined, even those offences which on the face of it look to be offences under UK law, may in fact not be. For example, if another country were to define ‘murder’ as including abortion or assisted

118 See article 2.2 of the Framework Decision and section 215 and Schedule 2 of the EA. 119 See the Home Affairs Select Committee, First Report, Extradition Bill, presented to the House on 14 November 2002, Annexure 1, available at http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/138/13802.htm. 120 For example, the extradition request for Gerald Toben, as discussed in House of Commons Library Note, The European Arrest Warrant in Practice (SN/HA/4879) (23 February 2009), available at http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha- 04979.pdf. 121 Ibid, at paragraphs 23 to 25. 110 Written Evidence submitted by Liberty (EXT 6) suicide, extradition for such a ‘crime’ could not legitimately be refused under the 2003 Act as the relevant test is whether the conduct is punishable under the law of the category 1 territory - not under the law of the UK. This effectively means that offences to which the list applies can be added every time the law of another country is amended. This is of huge concern. It means that people resident in the UK could be extradited to another country in the EU to face prosecution for an act which is wholly out of keeping with our values. If parliament has not considered it necessary to criminalise particular conduct, a person present in this country should not be extradited to face prosecution elsewhere for such an offence. Another aberration has resulted from the structure of justice systems in other states. Former Home Secretary, the Rt Hon David Blunkett MP, recently spoke of one of his British constituents who was picked up in Spain for an EAW issued by Luxembourg on civil rather than criminal grounds (resulting from the dual civil and criminal procedural structure in Luxembourg).122

Proportionality of Extradition Request

35. It has also become increasingly clear that the operation of the EAW system is both unfair and unworkable. As use of the EAW has evolved it has become evident that while some prosecuting agencies do first consider seriousness, public interest and whether there is a basic case to answer before issuing an arrest warrant, others do not. For example, in Poland there is no public interest test. This means that the prosecutor has no choice but to seek to prosecute even where prosecution (let alone extradition) is evidently not in the public interest. This has resulted in half of the extradition requests being from Poland in 2009, roughly ten times the amount extradited to Ireland even though there are more Irish residents in the UK than Polish.123 Examples abound of individuals being extradited in circumstances where the impact of their extradition is undoubtedly disproportionate to the alleged offence. Indeed the punishing impact of some extraditions has arguably been worse than any potential sentence that may or may not be received at the end of a successful prosecution.

Examples of EAW requests to the UK

1. 49 year old Briton Patrick Reece-Edwards was extradited to Poland after an EAW was issued alleging that he had forged a car insurance certificate.124 After spending several weeks in a British prison Mr Reece-Edwards was

122 Uncorrected evidence given to the Home Affairs Select Committee on 30th November 2010, ibid, at question 5. 123 Home Office Statistics, as analysed in http://www.economist.com/node/15179470?story_id=15179470 124 Reece-Edwards v Suwalki District Court, Poland [2009] EWHC 3589 (Admin). 111 Written Evidence submitted by Liberty (EXT 6) extradited to Poland, only for the matter to be resolved by payment of an administrative penalty with no criminal record.125

1. Mr Hubner was extradited to the Czech Republic to serve a five month sentence imposed after he drove away from a petrol station without paying, a theft to the value of a little over £20.126

2. Valentina Nanarova, a Czech national of Romani descent and resident in the UK, was extradited to serve a sentence for ‘endangering the morale of juveniles’ on the basis of the absence of her children from school for extended periods. Her appeal against the extradition, one ground of which was that it unfairly impacted on the article 8 rights of herself and her disabled child who was only able to communicate using Czech sign language with his mother, failed.127

3. A British national was extradited to Poland after being convicted, but not sentenced, for a driving offence while on holiday with friends. He left Poland voluntarily, but after his return to the UK an EAW was issued by Polish authorities who stated that he would be imprisoned for 14 days, following which he would be released.128

36. These cases are just a glimpse of an extradition framework which is becoming increasingly unsustainable. While the facts in many of these cases are strikingly trivial, the impact on the person subject to extradition and their family is not. Neither is the impact that hundreds of arguably unnecessary extradition requests have on the public purse each year. There is huge expense incurred by judicial proceedings, interpreters, etc in dealing with extradition requests. Further, now that the UK is joined up to the Schengen Information System, which allows participating countries to exchange information on wanted and missing persons, the rate of extradition requests is set to rise to an estimated three times the number processed now.129 During a time of unprecedented cuts to public funding these kinds of extradition requests are an unnecessary drain.

37. The European Commission has, after investigation of how the EAW is operating, concluded that in some Member States there is a need to set up domestic checks on how the EAW is implemented to ensure that extradition

125 See http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-in-Britons- exported-for-trial.html. 126 Hubner v Czech Republic [2009] EWHC 2929 (Admin). 127 Nanarova v Czech Republic [2009] EWHC 2710 (Admin). 128 S v A Polish Judicial Authority [2010] All ER (D) 194 (Mar). 129 According to the Home Office as reported in The Economist: http://www.economist.com/node/15179470?story_id=15179470. 112 Written Evidence submitted by Liberty (EXT 6) requests are proportionate to the crime suspected.130 As noted in the case examples above, the flaws of the extradition system have also been highlighted by numerous judges whose role in relation to extradition has, in many cases, been confined to a rubber stamp by the 2003 Act.

Implementation across the EU

38. The Framework Decision, forms a part of a continual widening and consolidation of co-operation between EU Member States in the investigation and prosecution of crime. The preamble to the Framework Decision states that the EAW mechanism “is based on a high level of confidence between Member States”.131 But it is clear in the way that Member States have implemented the EAW that there has not been uniform application of the warrant system, nor is there mutual recognition of parity of criminal justice systems. The UK implemented the EAW even before the Framework came into force;132 the expansive approach adopted at that time by the UK is, as recently conceded by the then Home Office Secretary the Rt Hon David Blunkett MP,133 regretful.

39. The disparity of implementation across the EU serves to further illustrate the flaws in the Framework Decision and its domestic implementation. Crucially, other Member States have retained legislative safeguards which are not similarly available to UK residents subject to an EAW. This has been done either by taking full advantage of the limited safeguards provided for in the Framework Decision or by failing to implement it in full. Some States have narrowed the very broad offence categories which can form the basis for an extradition warrant. Belgium, for example, has excluded abortion and euthanasia from the extradition category offence of ‘murder or grievous bodily harm’.134 Belgium has also indicated that it will look behind a warrant issued and determine whether it should be issued with a view to potentially refusing it.135

130 For background on the European reviews on how the EAW is working practice, see House of Commons Library note, The European arrest warrant in practice, SN/HA/4979 (23 February 2009), available at http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04979.pdf 131 Preamble to the Council Framework Decision, ibid, at para 10. 132 The EAW came into force on 1 January 2004; the EA came into force in the UK in 2003. 133 72As noted above and http://www.telegraph.co.uk/news/newstopics/politics/7958202/Surge-inBritons-exported-for- trial.html. 134 Report from the European Commission based on Art 34 of the Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (Revised version), Brussels, 24 January 2006, COM (2006) 8 final: Annexure at page 7. 135 As noted by the now Secretary of State for Energy and Climate Change, the Rt Hon MP in The Independent, 24 October 113 Written Evidence submitted by Liberty (EXT 6)

40. The lawfulness of domestic laws that implement the Framework Decision has also been challenged in a number of Member States. In Germany, for example, the Constitutional Court struck down national legislation implementing the Framework Decision as it failed to adequately protect the fundamental rights and procedural requirements of German law in relation to extradition.136 The court concluded that in implementing the Framework Decision the legislature failed to take into account the protected interests of German citizens and specifically it had “not exhausted the scope afforded to it by the framework legislation”, for example by not allowing for the opportunity to refuse the extradition of a German resident in circumstances where it related to offences with a “significant domestic connective factor”.137 The legislature was also found to have infringed constitutional protection guaranteeing recourse to a court given there was no possibility under the arrangements of challenging the judicial decision granting extradition.138

US and UK Treaty

41. The terms of reference for the current review include specific mention of the workings of the US-UK Extradition Treaty. This Treaty was signed on 31 March 2003, but did not come into force until April 2007 when both parties exchanged instruments of ratification. However due to the earlier enactment and coming into force of the EA, the UK’s generous extradition arrangements with the US were already in place. The considerable delay was caused by reluctance on the part of the US Senate, whose approval is required before a Treaty can be ratified in the US under their system of constitutional law. The delay caused a considerable amount of controversy in the UK.139 Announcing the imminent signing of a new Treaty with the US, Lord Falconer, then Attorney General, stated

The United States is one of our key extradition partners and there is a significant volume of extradition business between the two countries. It is therefore important that our bilateral extradition treaty should be as

2008,http://www.independent.co.uk/opinion/commentators/chris-huhne-holocaust-denial- and-acase-that-shows-flaws-in-the-eu-971404.html. 136 Judgment of the Second Senate of the Federal Constitutional Court, declaring the European Arrest Warrant Act (Europäisches Haftbefehlsgesetz) void: 2 BvR 2236/04. As outlined by the House of Lords European Union Committee, European Arrest Warrant – Recent Developments (HL Paper 156) (4 April 2006), at para 157. 137 See the Bundesverfassungsgericht Press Release no. 64/2005 of 18 July 2005 on the judgment of 18 July 2005, 2 BvR 2236/04, available at http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg05-064en.html. 138 Ibid. 139 In addition to an Early Day Motion demanding that US extradition requests be stayed until ratification signed by 145 Labour House of Commons backbenchers by March 2006, the Conservatives in July 2006 successfully blocked designation under the 2006 Order until the Treaty was formally ratified. 114 Written Evidence submitted by Liberty (EXT 6)

effective as possible. I am pleased that it has been possible to reach agreement on the new treaty and that the Government have the opportunity to affirm their commitment to the closest possible co- operation in the fight against terrorism and other serious crime.140

At the time of the announcement the actual text of the treaty was not published.141 Indeed the treaty only became available after it had been signed. Given the restrictive nature of the treaty for the UK, it is disappointing, if unsurprising, that no time for parliamentary debate was ever allowed for.

42. The Treaty is intended to allow for a smoother extradition process where the offence for which extradition is sought is punishable under the laws in both states by imprisonment for 12 months or more.142 One of the sources of controversy over the Treaty is the lack of reciprocity in State parties’ obligations. The Treaty does not require the US to present a prima facie case in an extradition request for a UK resident; but for a UK request, however, information is required “as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested”.143 The reason for the lower threshold for US extradition is that the US constitution will not allow for an evidential standard any lower than “probable cause”.144 Given the comparative ease with which the US is able to extradite UK residents, it is unsurprising that there is significant disparity in the numbers sent to and from the UK. Of the 33 people extradited to the UK from the US since the EA came into force on 1 January 2004 only three people were US nationals or had dual citizenship.145 There have been almost double the number of UK residents extradited to the US (62 people from 1 January 2004 to 30 June 2010), of which 28 were UK nationals or had dual citizenship.146 These figures are even more disturbing given the relative size of each population.

43. There is provision for extradition from the UK to the US to be refused where the request is for an offence punishable by death unless an assurance is provided that the death penalty will not be imposed, or if it is imposed, will not

140 Written Ministerial Statement, House of Lords Hansard, 31 March 2003, column W93. 141 See House of Commons Library Note, The US/UK Extradition Treaty (SN/HA/2204) (23 February 2009), available at http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-04980.pdf 142 Article 2 of the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America. 143 Article 8(3)(c) of the US-UK Extradition Treaty. 144 As explained by the then Home Office Minister Baroness Scotland in the debate in the House of Lords on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. 145 As at 30 June 2010. These figures were provided by the Home Office in response to an FOI request made on 24 March 2010, which the recipient passed on to Liberty. 146 Ibid. 115 Written Evidence submitted by Liberty (EXT 6) be carried out.147 This should provide little comfort in the absence of any prima facie requirement given it still may eventuate in life imprisonment on death row, for example. There is also provision for the Treaty to act retrospectively, which applies to both parties, but is all the more serious for UK residents where evidence of the case would not have to be provided.

44. While concern over the lack of reciprocity in the Treaty is understandable, Liberty’s main concern is with the lack of protection for UK residents. We would not therefore support a race to the bottom whereby the protections currently enjoyed by US residents were scaled back to the same level as ours. We should instead be seeking to incorporate the sensible constitutional safeguards that benefit US residents.

Breadth of the Home Secretary’s discretion

45. As we have outlined above, Liberty believes that a judge (with a revised, fairer, list of potential bars to extradition available to him or her) is best placed, in the first instance, to properly assess the facts of each case and consider whether an extradition should go ahead. However we also recognise that given the nature of the extradition process, which inevitably involves inter-state diplomacy, that there ought to be a role for the Secretary of State. In particular, that he or she should be able to refuse an extradition request in certain circumstances even where extradition has been approved by a court.

46. The role of the courts and the Secretary of State in extradition proceedings was greatly whittled down by the EA. This restrictive statute specifies extremely limited bars to extradition which a judge can consider and prevents a judge from taking into account the facts of a particular case. The House of Lords has concluded that even the centuries old writ of habeas corpus has been excluded by the clear and unequivocal wording of the EA.148 As regards the Executive, in the case of the EAW its role has been rendered defunct by the UK’s commitment to the Framework Decision. Indeed under Part 1 of the EA the Executive is entirely cut out of the extradition granting process. A Part 1 arrest warrant is instead received by the Serious Organised Crime Agency which may certify the warrant. Following a certification, the individual named in the warrant is arrested and brought before an appropriate judge. If after an initial hearing and an extradition hearing the judge is satisfied that there are no bars to extradition and that the extradition is compatible with human rights the judge must order the person’s extradition.

147 Article 7 of the US-UK Extradition Treaty. 148 Re Hilali [2008] UKHL 3. The House of Lords held in that case that an application for habeas corpus on the ground that there was no case to answer in the requested state must always be rejected as having been excluded by section 34 of the EA. 116 Written Evidence submitted by Liberty (EXT 6)

47. In relation to Part 2 territories, section 93 provides a limited role for the Secretary of State to bar an extradition (on referral from the court) for a limited number of reasons. For example, if the individual concerned will be or has been sentenced to death, if there are no specialty arrangements with the category 2 country etc. Under Part 2 the Secretary of State is also subject to legal obligations under the HRA which require him or her to bar an extradition if it would breach human rights. This is because the final decision as to whether or not extradition should be ordered under Part 2 rests with the Secretary of State and not the courts. For these territories, once a judge has determined that there are no legal bars to extradition and that an extradition would be compatible with human rights the judge must send the case to the Secretary of State for his or her decision as to whether the person is to be extradited. The Secretary of State must refuse an extradition request if in his or her view, granting the request would breach human rights.

48. The erosion of the judicial and executive role in barring extraditions has in turn lead to increased pressure on the Secretary of State to reach a diplomatic solution to unjust or unnecessary extradition requests. As this pressure has increased, the problems inherent in finding diplomatic solutions have become clear.

We now know for example that former and present Prime Ministers have been thwarted in their attempt to persuade their US counterparts to strike a deal for Gary McKinnon, and that it was possibly other political considerations which lead to their refusal, not just the facts of Gary’s case.149 The increasingly political nature of Gary McKinnon’s case demonstrates aptly why greater judicial and executive safeguards against unfair extradition are required. The current system has lead in practice to individuals becoming political pawns, their fate dependent on diplomatic negotiations which will be affected by any number of extraneous considerations.

49. Liberty believes that establishing better safeguards and restoring judicial discretion will mean a fairer, less politicised process which will better protect the human rights of each individual. Decision-making should belong primarily with judges and not with the Executive. The judiciary are best suited to examining the facts and circumstances of individual cases, deciding whether necessary legal tests have been satisfied, and determining whether considerations of fairness and justice require extradition to be granted. However it is important for the Secretary of State to retain a residual right to decide that the extradition should not proceed, notwithstanding a previous finding of a court. This discretion should lie alongside the Secretary’s legal obligation to protect human rights under the HRA which should be extended

149 http://www.guardian.co.uk/world/2010/nov/30/wikileaks-cables-gary-mckinnon-gordon- brown 117 Written Evidence submitted by Liberty (EXT 6) to cover all extraditions, including those within Europe. The restoration and imposition of a robust set of legal safeguards will mean any role of the Secretary of State will be limited and narrowly defined. But discretion is important to ensure that any extradition which would be unjust is stopped notwithstanding earlier court findings. This will be necessary, for example, where new information comes to light, or where the Secretary of State is privy to intelligence which may not have been available to the court at the time of the extradition hearing. To this end both parties ought to be able to make final representations where the Secretary of State is considering whether to stop the extradition on human rights grounds or to exercise his or her discretion to prevent unjust extraditions.

Human Rights

50. Before ordering extradition under Part 1 or sending the case to the Secretary of State under Part 2 a judge will be required to determine that the proposed extradition will be compliant with the human rights of the person subject to the proceedings as protected by the HRA.150 Whilst these provisions are crucially important, they are not sufficient protection as in practice the sections have provided very little protection to a minimal number of persons, mostly due to judicial reluctance to engage in what is seen as the largely diplomatic and political process which is extradition.

51. The courts have held that reliance on human rights to prevent extradition “demands presentation of a very strong case”.151 Indeed, the High Court has held in relation to the right to privacy that “there is a strong public interest in ‘honouring extradition treaties made with other states’” and where extradition is legally requested “a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would be on the particular facts be disproportionate to its legitimate aim”.152 More recently the High Court has held that “it is not right to apply [an exceptionality test] as a formula for proportionality” but went on to say that it “is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states” and so “there will have to be striking and unusual facts” before a court would say that the extradition would be

150 Under section 21 in Part 1; and section 87 in Part 2 151 See R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, per Lord Bingham at para 24. 152 See R (Bermingham) v Director of the Serious Fraud Office; Government of United States of America [2006] EWHC 200 (Admin), [2007] QB 727, per Laws LJ at para 118. Note that the European Commission itself has said that: “it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life”: Launder v United Kingdom (1997) 25 EHRR CD 67 at page 74. 118 Written Evidence submitted by Liberty (EXT 6) disproportionate.153 The focus on honouring extradition treaties and the need for at the very least ‘striking and unusual facts’ means that this ground will rarely be successful as a bar to extradition. Indeed in the most recent Supreme Court decision the President of the Court Lord Phillips noted that “only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”.154

52. As noted above, the European Framework is based on mutual recognition of a perceived parity of criminal justice systems in all of the signatory states. Given this political context, UK courts appear even more reluctant to find that another signatory state to the European Convention on Human Rights will breach the rights of the person to be extradited there, even though there is abundant evidence that some Member States are regularly found to be in breach of the Convention with regard to criminal justice standards. In the case of Andrew Symeou, for example, the courts held, in relation to the right to a fair trial, that it is “to be assumed in the absence of the most cogent contrary evidence” that a court in an EU country will give a fair trial.155 Unfortunately, this assumption cannot withstand the numerous findings by the European Court of Human Rights that a territory’s criminal justice system or prisons fail to comply with human rights obligations. The assumption also cannot stand where the process by which a person is charged, prosecuted and convicted does not withstand comparison to the standards put in place by the UK courts.

Case study – Gary Mann

Gary Mann is a 52 year-old former fire fighter who was arrested in 2004 in connection with a football riot in Portugal. Under special legislation introduced especially for the event156 Gary was arrested, charged, tried, convicted and sentenced to two years’ imprisonment in under 24 hours. The trial took place with twelve independent defendants, for whom there were two lawyers and one English-speaking interpreter.157 The usual safeguards present in a British court room, such as ensuring that the defendant is able to understand the case made against him with the aid of an interpreter, has adequate access to a lawyer and is able to put forward a defence in the form of witnesses etc, were not available to Gary. A police officer with over 29 years experience in attendance at the trial with a role of advising Portuguese

153 See Jaso, Lope and Hernandez v Central Criminal Court No 2, Madrid [2007] EWHC 2983 (Admin) per Dyson LJ 154 Norris v United States of America [2010] UKSC 9, at para 82. 155 See Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin), at paragraph 66. 156 Under Article 302 of the Portuguese Criminal Code: R (Gary Mann) v City of Westminster Magistrates’ Court & Anor [2010] EWHC 48 (Admin). 157 http://www.guardian.co.uk/football/2010/apr/27/gary-mann-extradition-portugal. 119 Written Evidence submitted by Liberty (EXT 6) police officers in relation to English football fans at the tournament described the trial as “a farce”, and maintained that Gary Mann did not understand most of the trial.158 Indeed, some years later when a Football Banning Order was sought by the Commissioner of Metropolitan Police in 2005, District Judge Day refused the order on the basis that Mr Mann’s conviction was “obtained in circumstances that are so unfair as to be incompatible with the respondent’s right to a fair trial under Article 6”.159

After his conviction in Portugal in 2004, Mr Mann was made subject to an Order for Voluntary Departure, and he left the country two days after his ‘trial’ in 2004. Four years later, a European Arrest Warrant was issued, and in 2009 Senior District Judge Workman ordered his extradition from the UK. Mr Mann’s attempts to have his extradition reviewed were prevented by both procedural failures of his lawyers and the EA, which restricts the right to appeal in extradition decisions.160 In determining that there was no possibility of final appeal, Lord Justice Moses stated:

I cannot leave this application without remarking upon the inability of this court to rectify what appears to be a serious injustice to Mr Mann. He is…a 51 year-old man who had previously been a fireman. He had not been in trouble for 29 years, when he received a small fine for a minor offence. Now, after a hearing condemned by a police officer as a “farce” he faces 2 years in prison, over 5 years since his original conviction.161

Following a failed attempt to appeal to the European Court of Human Rights in May 2010, Gary Mann had to leave his family, including two daughters and four stepdaughters, and his job to serve a sentence for a crime of which he maintains his innocence and without ever having an opportunity to properly, in accordance with a British standard of criminal justice, challenge the case against him.

53. Another human rights issue which has arisen in the practical application of the EA is the impact on the right to liberty162. Those who have been extradited to a foreign jurisdiction are unlikely to be granted bail as they are considered a flight risk. In relation to the EAW, the impact on the right to liberty is

158 R (Gary Mann), ibid at para 1. 159 R (Gary Mann), ibid at para 5. Note that Senior District Judge Workman, considering the EAW three and a half years after District Judge Day concluded the Portuguese trial had been unfair, disagreed with this finding and considered there had been no such breach (this finding was, however, reached without evidence from either Mr Mann nor his lawyers): see R (Gary Mann), ibid at para 6. 160 Section 34 of the Extradition Act 2003 provides that a decision under Part 1 of the EA can only be questioned by an appeal under that part. See R(Mann): at para’s 7 to 11. 161 R(Mann), ibid, at para 15. 162 Article 5 of the European Convention on Human Rights, incorporated into UK domestic law by the Human Rights Act 1998. 120 Written Evidence submitted by Liberty (EXT 6) exacerbated by the issuance of a warrant by certain Member States in the early stages of an investigation. This stems from the simple fact that different European states have markedly different modes of investigating, charging and prosecuting crime, and is compounded by the tight timeframe within which an EAW must be executed by the receiving state.163 It means that UK residents can be extradited for the purposes of investigation when there may not be a great deal of evidence against them, and even though the EA allows for extradition for the purposes of prosecution.164 A recent example illustrating the potential difficulties of the system involved the issue of a Spanish arrest warrant which particularised the offences followed by the words ‘diligencias previas’ without translation. The court held that there were no grounds to refuse the extradition, even though expert evidence produced by the applicant showed that the words meant ‘preliminary inquiry’ and that the applicant’s case was at the first stage, where a private complaint had been made but no judicial inquiry begun.165 The EAW is of course designed to assist in the investigation of crime, but the practical effect is that a person may be extradited at a very early stage of a criminal investigation, with no prospect of bail and held in a prison with standards which fall far short of what would be deemed acceptable in the UK.

54. While any legislative provision directing human rights compliance is undoubtedly welcome, the experience to date shows that it is not, in the context of UK extradition arrangements, proving an effective safeguard against unjust extradition which undoubtedly engages the HRA. When it comes to extradition, the technique of having a generalised bar on human rights grounds is not an adequate substitute for other procedural legislative protections. This is because extradition is capable of being a punishment in and of itself. The extradition process, therefore, needs to be tailored to ensure compliance with basic fairness and due process rights.

Provisional arrest

55. Finally, Liberty also has concerns about the ability to provisionally arrest a person in the UK before an extradition request is received or presented before a court. In relation to extradition within Europe under Part 1, under the EA a person may be arrested if a constable, customs officer or a service policeman has reasonable grounds to believe that an arrest warrant for the person’s

163 Article 17 of the Framework Decision, ibid, requires the EAW is executed within 60 days, with an extra 30 days available in exceptional circumstances. See section 35 and 36 of the EA. 164 Section 2 the EA stipulates what is required in an arrest warrant. Section 2(3)(b) states that the statement with the Part 1 warrant shows it is issued “with a view to his arrest and extradition to the Category 1 territory for the purpose of being prosecuted for the offence”. 165 Meizoso-Gonzalez v Juzgado le Instruccion Cinco de Palma de Mallorca, Spain [2010] All ER (D) 227 (Oct). 121 Written Evidence submitted by Liberty (EXT 6) extradition has been or will be issued.166 Once a person has been arrested under this power he or she must be brought before a court within 48 hours and documents setting out the legality of the arrest must be provided (i.e. the extradition arrest warrant). This initial 48 hour period can be extended by a further 48 hours if a judge or magistrate decides the documents could not reasonably be produced within the initial 48 hour period. Given the calculation of the 48 hour period does not take into account weekends or public holidays, the person could be held for an initial period of four days (i.e. 48 hours plus an intervening weekend) and up to six days in total if an extension is granted.167 The power to extend provisional arrest was brought in by the Policing and Crime Act 2009, resting on Governmental assurances that it would be a “very rare [case] where there is a need to apply for an extension”.168 However, there is nothing in the Act that suggests this would be limited to exceptional circumstances.

56. These provisional arrest provisions allow for a person to be detained without evidence of an arrest warrant for upwards of six days. This is a clear interference with the right to liberty169 and as such should be demonstrated to be necessary and proportionate. At no time did the former Government adequately demonstrate this. Nor have steps been taken which could address this issue, such as requiring a court to be summoned to sit on a weekend or public holidays where necessary. If there are sufficient grounds for believing that a person is subject to an extradition arrest warrant, the warrant should be able to be produced expeditiously. Liberty does not consider that the ground of convenience satisfies the proportionality test when considering the severe deprivation of liberty that speculative arrest potentially entails.

57. The powers for provisional arrest under Part 2 are even worse. Under Part 2 of the EA, a person is able to be arrested under a provisional warrant, issued by a justice of the peace, satisfied on the basis of information provided in writing and on oath, that a person in the UK, or believed to be in the UK, is accused in a category 2 territory of the commission of an extradition offence, or is alleged to be unlawfully at large after conviction of such an offence in a category 2 territory.170 That person must be brought before a court as soon as practicable, at which time the person must be remanded in custody or released on bail.171 The judge must order the person’s discharge if the

166 Section 5 of the EA. 167 Section 6 of the EA. 168 Public Bill Committee Debate, House of Commons Hansard, 25 February 2009, at column 523. 169 See article 5 of the European Convention of Human Rights incorporated into UK law by the Human Rights Act 1998. 170 Section 73 of the EA. 171 Section 74 of the EA. 122 Written Evidence submitted by Liberty (EXT 6) extradition request and certificate from the requesting state172 is not received by the judge within 45 days from the time of arrest or, if it is a category 2 territory designated by order, any longer period permitted by the order.173 For example, in the US-UK treaty, a person who is provisionally arrested may be discharged from custody 60 days from the date of provisional arrest, pursuant to the Treaty, if the requested state has not received the formal request for extradition and accompanying supporting documents.174 This means that a justice of the peace is able to authorise the arrest of a person who is then detained for 45 days or longer on the basis of sworn information that the person is accused in a category 2 territory but without the arrest warrant being before the court.

European Investigation Order

58. The European Investigation Order (EIO) Initiative,175 to which the UK has opted in and the terms of which are currently being negotiated, is a proposed cross-border framework for the gathering of evidence based on the principle of mutual recognition.176 The EIO would allow for an issuing authority to request a particular investigative measure be carried out by the executing authority, which may also include, and is not limited to, the temporary transfer to the issuing state of persons held in custody for the purpose of an investigation;177 information on banking accounts and transactions and monitoring of transactions;178 arranging for a hearing by video or telephone conference;179 and investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time.180

59. The EIO, as currently drafted, has a number of flaws, many of which reflect those we have discussed above in relation to the EAW. The EIO will engage the right to a fair trial,181 the right to privacy and family life,182 and the right to

172 As specified in section 70 of the EA. 173 Section 74(10) and (11). 174 Article 12(4) of the US-UK Treaty, ibid. 175 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council of regarding the European Investigation Order in criminal matters (9288/10) (21 May 2010). 176 See para 6 of the Preamble. 177 Articles 19 and 20. 178 Articles 23, 24 and 25. 179 Articles 21 and 22. 180 Article 27. 181 Protected by Article 6 of the European Convention on Human Rights, as incorporated into UK domestic law by the Human Rights Act 1998. 182 Protected by Article 8 of the European Convention on Human Rights, as incorporated into UK domestic law by the Human Rights Act 1998. 123 Written Evidence submitted by Liberty (EXT 6) be free from inhuman and degrading treatment.183 Given the lack of explicit safeguards for human rights and the lack of comprehensive measures to guarantee procedural fairness, along with the limitation of judicial and administrative discretion in the exercise of an EIO, the proposed Directive presents a number of significant concerns, including:

(a) Limited grounds for non-recognition or non-execution of an EIO. The draft Directive allows for extremely limited grounds of non-recognition or non- execution of an EIO by an executing state,184 in order to “ensure the effectiveness of judicial co-operation in criminal matters”.185 There is no safeguard provided on the grounds of dual criminality, double jeopardy, most appropriate forum or human rights.

(b) Lack of explicit protection of human rights. The only mention of human rights in the draft EIO Directive is at Article 1(3), where it states that the Directive “shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles” enshrined in the ECHR.186 This reference is entirely inadequate to be considered effective protection. The principle of mutual recognition on which the EIO is based assumes that there is parity across all Member State criminal justice systems. When it comes to human rights, this assumption does not withstand scrutiny, as evidenced by numerous judgments from the European Court of Human Rights. As discussed in the context of the EAW, even where human rights are an explicit consideration under the EA, British judges have been reluctant to enforce this protection in extradition cases.

(c) No requirement of proportionality. There is no requirement in the Directive that an EIO only be issued where the investigative measure requested is proportionate to the crime being investigated, or where investigation is only required in the public interest. We have already seen how the operation of the EAW in practice has lead to a proliferation of extradition requests for

183 Protected by Article 3 of the European Convention on Human Rights, as incorporated into UK domestic law by the Human Rights Act 1998. 184 Article 10(1). These grounds include where (a) there is an immunity or privilege under the law of the executing State making it impossible to execute the EIO; (b) in a specific case, execution of the EIO would harm essential national security interest, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities; (c) where there is no alternative investigative measure to the one named in the EIO to achieve a similar result; (d) where the EIO has been issued in relation to particular proceedings, including administrative proceedings, and the measure would not be authorised in a similar national case. 185 Para 12 of the Preamble. 186 Article 1(3) states that the Directive will not effect the principles enshrined in Article 6 of the Treaty on European Union, which states that the EU “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”, and that the EU shall respect fundamental rights as guaranteed in the ECHR. 124 Written Evidence submitted by Liberty (EXT 6) minor crimes. There is no barrier to a similar impact being imposed by the EIO, with the associated implications for the public purse and individual fairness.

(d) Lack of safeguards in UK mechanisms to obtain and retain data. Liberty already has serious concerns about the data held by UK authorities, in relation to whose data is recorded, how long it is held for, how it is stored and who has access to it. These concerns are shared by the European Court of Human Rights, which in 2008 ruled that the blanket and indiscriminate retention of fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences constituted a disproportionate interference with the right to respect for private life.187 This decision is yet to be implemented by the UK government. The interference with human rights by UK data retention mechanisms is greatly magnified with the operation of the EIO as currently drafted, which could see data collected in breach of human rights being passed on to all signatory states to the Directive without adequate safeguards for its use.

60. Negotiation of the exact terms of the EIO is, we understand from government officials, in the early stages. Review of the often unintended consequences of the EAW in practice must inform the drafting of the EIO to ensure that there is limited risk of the repetition of the unjust results we have outlined here.

January 2011

187 S and Marper v United Kingdom (App No. 30566/04) European Court of Human Rights, 4 December 2008. 125 Letter submitted to the Chair of the Committee by David Bermingham (EXT 7)

Letter submitted to the Chair of the Committee by David Bermingham (EXT 7) I would like to volunteer to appear before the Committee. As one of the few people who has been extradited to the US under the current legislation, and been through the US justice system, and subsequently both the US and UK penal systems, I believe that I have an almost unparalleled experience of the process, and the significant shortcomings in our current arrangements.

Our case became the legal precedent for the current jurisprudence on article 8 ECHR in extradition, and it was during the currency of our proceedings that counsel for the Attorney General (who had intervened) argued that the desirability of honouring our international treaty obligations should trump the human rights of the individual in all but the most exceptional of cases. I have the transcript of his argument to the High Court. This argument has effectively rendered the human rights bars to extradition almost entirely worthless, in stark contrast to the assurances of the Government during the passage of the Bill through Parliament, when the bars were described as ‘robust protections’ and ‘solid safeguards’ for the defendants.

As the lead case on what was a new and controversial law, we had the benefit of an intervention in the High Court by Liberty in respect of the human rights arguments. It made no difference. We were also the leading case on the issue of ‘forum’ in extradition, and our lawyers were instrumental in drafting the proposed forum amendments that were put forward by the Conservatives and Liberal Democrats when in opposition in 2006.

The UK’s extradition practice is at odds with every single one of our treaty partners. It exposes defendants to enormous hardship and the possibility of long prison sentences even when the allegations are entirely baseless. The arrangements with the US are particularly dangerous given the extremely hostile nature of the US criminal justice system.

I have first hand knowledge of a number of US extradition cases, as I correspond regularly with a number of people who have fallen victim to the system, including people currently languishing in US prisons, and others who have yet to extradited. I can explain in simple terms the unique challenges that face people extradited to the US, including conditions of incarceration both re and post trial, and the enormous difficulties faced by all defendants in the US criminal justice system, leading to an overwhelmingly large number entering into plea bargains rather than face trial.

My opposition to the current arrangements is one of principle. I am a full supporter of the concept of extradition. But we should be mindful that the act of extradition is akin to a summary sentence in itself, given what the 126 Letter submitted to the Chair of the Committee by David Bermingham (EXT 7) defendant will likely face abroad. The UK’s current arrangements are horribly unbalanced in favour of expeditious process, at the expense of even the most basic rights for defendants. In their current form, they all but eradicate the presumption of innocence and habeas corpus.

I hope I can be of assistance to the Committee, and would relish the opportunity to give evidence.

26 January 2011

127 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)

Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) INTRODUCTION

1. The Redress Trust (REDRESS) is an international human rights organisation whose mandate is to seek justice for torture survivors. REDRESS’ work has included making written submissions to United Kingdom parliamentary committees, including the JCHR, on matters concerning torture and other international law crimes in recent years.188 REDRESS has also given oral evidence to the JCHR.189

2. REDRESS has an ongoing interest in seeing that those suspected of perpetrating torture and related international crimes are brought to justice. Trials can take place in the country where the offences were allegedly committed or in another state on the basis of universal jurisdiction or related forms of extraterritorial jurisdiction. Universal jurisdiction is premised on the notion that the crimes are so heinous that they offend the sensibilities of the international community as a whole—they are in their nature international crimes which all states have an interest and at times an obligation to prosecute. Universal jurisdiction is also based on the need to combat impunity: nowhere, including the UK ought to be a safe haven for those accused of torture or related international crimes.

3. This current submission is focussed on the following issue raised by the JCHR: “Should there be an expectation that where possible trials are held and sentences served within the United Kingdom? How would such an expectation be implemented in practice?”

4. REDRESS believes that when suspects of international crimes allegedly committed abroad such as genocide, crimes against humanity, war crimes and torture are found within the UK’s jurisdiction, effective steps must be taken to bring them to trial. Extradition is one such mechanism but should not preclude thorough police investigations with a view to a UK prosecution. To rely solely on extradition is wrong both in principle and practice, and can lead to serious anomalies where known suspects live here for years without being held accountable anywhere, even when the UK has jurisdiction over the alleged offence(s).

5. The significance of this issue is highlighted by the case of four Rwandan genocide suspects whose extradition to Rwanda failed almost two years ago.

188 See our website www.redress.org and in particular http://www.redress.org/smartweb/reports/reports. 189 For example, on 1 July 2009 in regard to the Torture (Damages) Bill—see JCHR Report “Closing the Impunity Gap”, published 11 August 2009, available at www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/153/153.pdf. 128 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)

Despite the fact that UK courts have found that the suspects have prima facie cases to answer, they are believed to be living here freely without being investigated or potentially prosecuted in the UK. This submission therefore examines the relationship between extraditions from the UK to other states and the need to investigate allegations when there is a possibility of a UK prosecution for the same alleged crimes.

SUMMARY

6. Legislation exists in the UK for the prosecution of international crimes committed abroad where the suspects are in the UK. Jurisdiction over crimes such as genocide, crimes against humanity, war crimes and torture are firmly established in a range of laws as is discussed further in this submission. The UK has specifically improved its legislative framework to fill “impunity gaps” to make it possible to prosecute crimes which took place abroad as long as twenty years ago in respect of genocide, crimes against humanity and war crimes and even longer in the case of torture, pursuant to the principle of universal jurisdiction.

7. Despite these laws and the apparent considerable number of suspects in the UK there have been very few prosecutions. Where suspects have been identified and there are no legal impediments to investigate allegations with a view to prosecute in the UK, the apparent policy (as evidenced by the very limited practice) is to leave cases in limbo in the hope of a successful extradition even where an attempt to extradite has already failed.

8. REDRESS believes such an approach is not only wrong in principle; it is also at variance with the UK’s obligations under international law. Where there are suspects present in the UK, timely investigations should be conducted with a view to bringing them to trial in the UK. Extradition should be a component within a holistic policy aimed at ensuring accountability for the most egregious crimes within our jurisdiction.

SUBMISSION

I. Recent reforms to UK law190 demonstrate parliamentary intention to end safe havens for the most serious crimes under International Law

9. The JCHR has previously examined in some detail legislation governing the UK’s jurisdiction over international crimes committed abroad when a suspect is in the UK.191 Although there are disparate domestic laws governing genocide, crimes against humanity, war crimes, torture and other international crimes (as well as different international law treaties and rules

190 Coroners and Justice Act, 2009. 191 Ibid. 129 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) concerning these crimes) the UK has taken a definitive stance ensuring that such suspects found within its borders can be brought to trial here.

10. The UK legal framework has recently been considerably strengthened, largely as a result of the failed extradition case of the Rwandan suspects referred to in this submission and the JCHR’s own analysis of impunity gaps.192 UK Courts now have jurisdiction over genocide, war crimes and crimes against humanity committed abroad after 1991.193

11. The Coalition Government has recently restated the UK’s commitment to universal jurisdiction, as expressed by Justice Secretary Kenneth Clark:194

Our commitment to our international obligations and to ensuring that there is no impunity for those accused of crimes of universal jurisdiction is unwavering.

II. Practice of UK Police and Prosecution Services undermines parliamentary intention to end safe havens

12. There remains a large gap between the legislation, which allows for prosecutions where a suspect is in the UK, and implementation of such legislation, in the form of actual investigations and prosecutions.

13. Only two suspects have ever been successfully prosecuted in the UK.195 This is despite figures indicating that there are a considerable number of possible perpetrators here. In this regard the Joint Committee on Human Rights has indicated that:

We [...] asked for information on the number of suspected perpetrators of genocide, war crimes and crimes against humanity present in the UK who cannot be prosecuted [because of the existing legislation’s lack of retrospective jurisdiction]. In its memorandum, the Government said it could

192 Ibid. 193 The ICC Act 2001 was amended in terms of section 70 of the Coroners and Justice Act 2009. The effect of this amendment, which came into force on 6 April 2010, is to now give UK court’s jurisdiction over genocide (and war crimes and crimes against humanity) committed abroad after 1 January 1991 where the suspect is resident in the UK. 194 Ministry of Justice news release: “New rules on universal jurisdiction”, 22 July 2010, available at http://www.justice.gov.uk/news/newsrelease220710b.htm 195 Afghan Faryadi Zardad was convicted of torture and hostage taking in 2005 and sentenced to 20 years imprisonment. There is an unreported High Court judgment of 19 July 2005 in R v. Zardad which relates to certain legal aspects of the case. An appeal was denied 17 February 2007. On 1 April 1999, Anthony (Andrzej) Sawoniuk was sentenced under the War Crimes Act 1991 to life imprisonment for the murder of two civilians. The Court of Appeal upheld his conviction on 10 February 2000—R. v. Sawoniuk, Court of Appeal (Criminal Division), [2000] Crim. L. R. 506. The House of Lords denied leave to appeal on 20 June 2000— “War Criminal Refused New Hearing,” Financial Times, 20 June 2000. 130 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) not estimate the number of suspects living in the UK but said that in the four years between 2004 and 2008, there were 138 adverse immigration decisions (such as refusal of entry, indefinite leave to remain and naturalisation, and exclusions from refugee protection), and that “these individuals may no longer be in the UK.” In the same four years, 22 cases were referred to the Metropolitan Police. In its memoranda, Aegis quoted figures provided to Parliament: the UK Borders Agency (UKBA) has investigated 1,863 individuals in the UK for genocide, war crimes or crimes against humanity.196

14. Of note, the UK Border Agency’s “investigations” are not criminal investigations. Within their mandate, they identify potential suspects for immigration purposes only. Given the stark contrast between the number of possible suspects (1,863) and the number of prosecuted cases (2), there would appear to be a impunity gap that requires attention by the JCHR and the competent investigative bodies.

15. What is therefore of concern is that where there is a real opportunity to bring a prosecution in the UK for an international crime such as genocide this is not being pursued because the policy appears to be to place excessive reliance on extradition, even where an extradition request has already failed once.

III. Failure to investigate in the ‘hope’ of a successful extradition fosters impunity: the Rwanda case

16. On 24 August 2006, Rwanda issued warrants for the arrest of four named genocide suspects. The men were arrested in the UK on 29 December 2006 and held in custody pending the outcome of the Rwandan Government’s request for their extradition to face trial in Rwanda on allegations of genocide, conspiracy to commit genocide, complicity in genocide, crimes against humanity and other crimes relating to their alleged involvement in the 1994 genocide.197

17. As there are no general treaty arrangements between the UK and the Rwandan Government the extradition applications were made on the basis of a Memorandum of Understanding (MoU) entered into by Rwanda and the UK in respect of each suspect on 14 September 2006. This MoU engaged the statutory extradition machinery contained in the Extradition Act 2003.

18. The extradition request was considered in the City of Westminster Magistrates Court by District Judge Anthony Evans in lengthy proceedings

196 Op. Cit. JCHR 2009 Report at paragraph 34. 197 See Government of the Republic of Rwanda v Vincent Bajinya and three others, City of Westminster Magistrates’ Court, judgement of District Judge Anthony Evans, 6 June 2008, at paragraph 1. 131 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) during 2007 - 2008. On 6 June 2008 he referred the cases to the Secretary of State for her consideration and decision, after rejecting all the arguments raised by the defence in the hearing; these had included the argument that the men’s extradition was incompatible with the European Convention on Human Rights (ECHR), particularly article 6, in that they would not receive a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. In the course of his ruling Judge Evans also said that it was “the correct course of action for the trials to take place in Rwanda.”198 The Home Secretary ordered their extradition on 1 August 2008.

19. The four men appealed to the High Court against the decisions of Judge Evans and the Home Secretary, and on 8 April 2009 the High Court upheld the appeal;199 as a result the men were released from custody and as far as is known they remain in the UK to date. The issues on appeal were varied but a major theme common to all the appellants, and the focus of the appeal judgment, was the argument that the appellants would not receive a fair trial in Rwanda, and that therefore the UK would be in breach of its ECHR obligations if the men were surrendered for trial there. The High Court ruled that if they “were returned there would be a real risk that they would suffer a flagrant denial of justice.”200 It should be noted that Judge Evans had concluded that each of the four suspects had a case to answer, and the High Court on appeal found no fault with this conclusion.201

20. REDRESS has called upon the police to investigate, especially since the High Court decision of April 2009, with a view to a UK prosecution. The CPS has said that a fresh extradition request is expected from the Rwandan authorities and that it (the CPS) is working closely with Rwanda to overcome all the problems within the Rwandan justice system highlighted by the High Court. The police have said that the Rwandan authorities have declined a request for a copy of evidence in its possession and that without the full co-operation of the Rwandan authorities it will be extremely difficult to obtain the standard of evidence necessary to prosecute this case in the UK. Of note, Rwandan authorities have cooperated with the range of European investigators and prosecutors that have prosecuted genocide charges throughout Europe—the idea that they would refuse all cooperation with the UK is at the least, surprising.

21. In several other European states where extradition was denied once, the competent authorities in these countries decided to investigate and

198 Ibid, paragraph 551. 199 Vincent Brown (aka Vincent Bajinya) v Government of Rwanda and the Secretary of State, [2009] EWHC 770 (Admin), available at http://www.bailii.org/ew/cases/EWHC/Admin/2009/770.html. 200 Ibid, at paragraph 121. 201 Ibid, paragraphs 124-136. 132 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) prosecute themselves, as they did not see an immediate prospect for a successful extradition, and the prospect of continuing to provide a safe haven for these suspects was untenable. Examples include Switzerland, The Netherlands, Germany, Denmark, Finland, Belgium and France, resulting in the conviction of eleven perpetrators involved in the 1994 genocide, with further investigations and prosecutions ongoing in some of these states.202

22. REDRESS is concerned about the resultant delays in the delivery of justice. These concerns do not only relate to the specific Rwandan case, but to the apparent policy reflected, namely, that “repeated” extradition requests could be appropriate in genocide cases and for other international crimes over which the UK exercises universal jurisdiction. Such a practice undermines efforts to combat impunity. It means known suspects can live freely here for years at a time without being brought to trial.

23. As an organisation which works directly with survivors of these most egregious of crimes, REDRESS reiterates the importance of justice, which if achieved can play an important part in restoring victims’ rights and dignity and healing the trauma suffered. Conversely, a denial of justice can exacerbate the horrors which have been endured, and even more so when suspects have been identified and can be held accountable, but are seen to be going about their lives with impunity.

24. REDRESS has previously examined the impact of delays in these kinds of cases, and drawn attention to the need to expedite the justice procedure in the interests of survivors and victims. In our 2008 Report “Waiting for Justice”, the following is outlined:

Delays are a persistent cause for concern in the administration of justice worldwide. The timely disposition of cases is seen as an elementary part of justice; conversely, unduly prolonged investigations and trials deny justice. Delays are detrimental to those seeking justice and the system of justice as a whole [...]. Delays may [...] result in cases being time barred, are likely to make evidence more difficult to obtain and/or less reliable to use and can undermine public confidence in the system of justice as a whole. This

202 See REDRESS and FIDH, “EXTRATERRITORIAL JURISDICTION IN THE EUROPEAN UNION: A STUDY OF THE LAWS AND PRACTICE IN THE 27 MEMBER STATES OF THE EUROPEAN UNION”, December 2010, available at http://www.redress.org/downloads/publications/Extraterritorial_Jurisdiction_in_the_European_ Union.pdf. See also REDRESS and African Rights report “Extraditing Genocide Suspects From Europe to Rwanda: Issues and Challenges—Report of a Conference Organised by REDRESS and African Rights at the Belgian Parliament, 1 July 2008”,September 2008, available at http://www.redress.org/downloads/publications/Extradition_Report_Final_Version_Sept_08.pd f. 133 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8)

can jeopardise the peaceful resolution of disputes and make people seek justice on their own terms, and can lead to violence.203

25. There is particular concern at the lack of a holistic policy to implement existing legislation aimed at giving effect to victims’ right to a prompt and effective investigation for genocide (as well as other crimes under international law). As has been explained, UK legislation was amended in 2009, and came into force in 2010 specifically to deal with such crimes allegedly committed prior to 2001 when the ICC Act was promulgated. Prosecutions for torture committed abroad have been possible since 1988.204

26. REDRESS believes that where the UK has an obligation to prosecute, the competent authorities should proceed with investigations and decide whether prosecutions should be initiated on the basis of the strength of the available evidence.

27. The UK should be seeking to send a clear message through its practice, that it is not to be regarded as a safe haven for suspected perpetrators of the most heinous crimes.

RECOMMENDATIONS

The JCHR should:

• call on the UK Government to develop a coherent policy for Section 70 of the Coroners and Justice Act 2009. This should take into account existing legislation regarding international crimes and the relationship with extradition cases in light of the UK’s international obligations;

• call on the UK Government to ensure that its policies and practice do not result in the UK becoming a de facto safe haven where suspects can continue living here for years without being brought to trial.

In respect of the Rwanda suspects the JCHR should:

• call on the Foreign and Commonwealth Office to assist and intervene at the highest level necessary for the Metropolitan Police to have full access to whatever they need from the Rwandan authorities and from other potential sources of evidence to expedite a police investigation with a view to a UK prosecution;

203 REDRESS, “Waiting for Justice—the politics of delay in the administration of justice in torture cases, May 2008, page 3, available at http://www.redress.org/downloads/publications/WAITING_FOR_JUSTICE_Mar%20O8%20Fin%20 _2_.pdf 204 Under section 134 of the Criminal Justice Act 1988 134 Letter submitted to the Joint Committee on Human Rights from the Law Society (EXT 9) • call on the Metropolitan Police to conduct investigations to the best of its ability;

• call on the CPS to assist the Metropolitan Police with investigations irrespective of any extradition request expected or made;

• call on both the Metropolitan Police and the CPS to recognise and acknowledge publically or otherwise that further extradition procedures should not preclude investigations with a view to UK prosecutions.

27 January 2011

Letter submitted to the Joint Committee on Human Rights from the Law Society (EXT 9) We write in relation to the Joint Committee on Human Rights’ (JCHR) inquiry into the human rights implications of UK extradition policy. The JCHR’s inquiry is intended to contribute a human rights perspective to the government’s review of the UK’s extradition treaties and the Extradition Act 2003 announced by the Home Secretary on 8 September 2010.

The Law Society will be responding directly to the Home Office’s review of extradition, and our submission will raise human rights issues. Therefore, the Law Society does not intend to provide a separate human rights submission to the JCHR at this time. However, we would be happy to keep JCHR appraised of the human rights issues that we intend to raise in our submission to the Home Office, and will write to you in due course for this purpose.

28 January 2011

135 Statement submitted by Mr Mark Turner, father of Michael Turner (EXT 10)

Statement submitted by Mr Mark Turner, father of Michael Turner (EXT 10) Having experienced close association with the effect and process of the EAW my observations are as follows:

There is only one court that deals with this legislation, the vast majority of lawyers will not defend these cases and most of those requested do not even know of this legislation nevermind understand it. It is cloaked in secrecy.

The courts give their trust to the issuing Authority. If the issuing Authority is proven to have acted wrongly, once extradition has taken place, there is no reversal protocol, the situation cannot be rectified.

There is no sense of proportionality. My son has been persecuted for years. Having endured lengthy court battles and been held for months in a high security Budapest prison, there is no end in sight to his suffering.

Not only has his life been blighted by this act, but the whole family has suffered.

The financial cost has been huge, costing us every penny we have. Having used all of my personal resources I now work between 80 and 100 hours a week to pay international legal bills.

The British courts allowed my son to be extradited and imprisoned in dire circumstances, just to appease a foreign system that imprisons people for up to 3 years without charge.

He is only here today because of the high profile campaign for his release.

I urge the Government to amend this legislation and remember, that, the primary function of law is to protect people.

11 February 2011

136 Written Evidence submitted by the Crown Prosecution Service (EXT 12)

Written Evidence submitted by the Crown Prosecution Service (EXT 12)

1. This memorandum provides an overview of the Crown Prosecution Service (CPS) and its role in the extradition process. It also provides the Committee with further information on areas in which it may have a particular interest.

Role and organisation of the Crown Prosecution Service

2. The Crown Prosecution Service (CPS) was set up in 1986 under the Prosecution of Offences Act 1985 as an independent authority to prosecute criminal cases investigated by the police in England and Wales. In undertaking this role the CPS:

• advises the police during the early stages of investigations;

• determines the appropriate charges in more serious or complex cases;

• keeps all cases under continuous review and decides which cases should be prosecuted;

• prepares cases for prosecution and prosecutes cases using in-house advocates, self-employed advocates or agents to present cases in court, and

• provides information and assistance to victims and prosecution witnesses.

3. The way in which the CPS undertakes its role is governed by two key documents: the Code for Crown Prosecutors; and Core Quality Standards (CQS).

4. The Code sets out the principles the CPS applies when carrying out its work. Those principles are whether:

• there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge; and, if so,

• a prosecution is needed in the public interest.

5. QC is the Director of Public Prosecutions (DPP) and leads the CPS. He has been DPP since November 2008 and will hold his office for five years. The CPS is superintended by the Attorney General and is the largest of the Law Officers’ departments, and as at 30 September 2010, the CPS had 8,571 staff.

6. The organisational structure of the CPS is currently subject to change. The CPS is currently divided into 42 geographical Areas across England and Wales with each led by a Chief Crown Prosecutor (CCP). The 42 Areas are arranged into 13 Groups, with each Group overseen by a Group Chair who is also a CCP. However, from 1 April 2011, the existing CPS structure will move to 137 Written Evidence submitted by the Crown Prosecution Service (EXT 12)

13 Areas, with each led by a CCP, and this will replace the current arrangement of 42 Areas brigaded into 13 Groups. These changes to the organisational structure will provide more opportunity for Areas to manage and match their resources to their needs in order to allow more efficient and flexible delivery of CPS business.

7. The CPS also has a small Headquarters function and two specialist casework groups—Central Fraud Group and Serious Crime Group- who are centrally based and deal with serious organised crime, terrorism, fraud and other specialised and sensitive cases.

8. In 2009-10, the CPS prosecuted 982,731 defendants in the courts in England and Wales. 110,146 defendants were prosecuted in the magistrates’ courts. In addition we dealt with 14,270 appeals and 19,376 committals for sentence in the Crown Court.

The Role of the CPS in Extradition Proceedings

9. The CPS is the authority in England and Wales responsible for the bulk of extradition proceedings. It acts on behalf of foreign judicial authorities in proceedings under Part 1 of the Extradition Act 2003 (‘the 2003 Act’) and for foreign states under Part 2; it issues the majority of European Arrest Warrants (EAWs) under Part 3 and is predominantly responsible for drafting extradition requests to states outside the EAW scheme.

10. The authority of the CPS to conduct extradition proceedings on behalf of foreign authorities is by virtue of section 3 of the Prosecution of Offences Act 1985 and section 190 of the 2003 Act. There is a fundamental distinction to be drawn between extradition proceedings and the normal criminal prosecution work undertaken by the CPS. Extradition is expressly not concerned with establishing innocence or guilt of defendants through the presentation and testing of evidence in a criminal prosecution. Extradition is concerned with the surrender of defendants to face trial, to be sentenced or to serve sentences of imprisonment in another jurisdiction. Whether the courts here accede to extradition requests is not determined in a criminal trial process, but by strict criteria set out in whatever instrument governs any particular request from a requesting judicial authority or foreign state.

11. In this way, the CPS has a markedly different function when conducting extradition proceedings. In short, it does not act as ‘prosecutor’ as the term is generally understood. The view clearly expressed in the case of ex parte Thom, R (Lotfi Raissi) v Secretary of State is that the CPS acts on behalf of requesting states in a solicitor-client model.

12. The Special Crime Division (SCD), which forms part of the Serious Crime Group, includes an Extradition Unit that is responsible for dealing with all requests made to the UK (‘export cases’) and handles requests made by the CPS for England and Wales (‘import cases’) to non-EU countries. Responsibility for drafting import EAWs is devolved to local CPS Areas. Each of the 13

138 Written Evidence submitted by the Crown Prosecution Service (EXT 12)

Groups (or Areas from 1 April 2011) has a Complex Casework Unit (CCU) that is able to offer specialist advice on the drafting of EAWs to CPS lawyers when required. In addition, the CPS’ International Division produces detailed legal guidance and provides a helpdesk facility to handle enquiries on mutual legal assistance and extradition from CPS lawyers.

Volume of EAW Requests

13. According to CPS records, in 2010 the CPS’ Extradition Unit handled 1447 extradition requests (under Part 1 of the 2003 Act) from foreign judicial authorities. However, there is a difference of course between the number of requests made and the number of persons extradited from the UK. In 2009/10, the UK extradited 699 persons under Part 1 of the 2003 Act.

14. In 2010 our main extradition partners for EAW requests were Poland, Lithuania and the Czech Republic. In particular, there were a large number of surrenders to Poland as their prosecutors operate under an obligation to prosecute principle.

The relationship between the CPS and the Serious and Organised Crime Agency (SOCA) Fugitive Unit

15. The CPS works closely with a number of agencies within the criminal justice system in order that cases are effectively processed through the courts. The 2003 Act created two central authorities for the receipt of extradition requests to the UK; in respect of cases under Part 1 the organisation is the Fugitives’ Unit in the Serious Organised Crime Agency (SOCA); and in respect of Part 2 cases, the Judicial Co-operation Unit of the Home Office. The Council Framework Decision of 13 June 2002 on the EAW said the role of central authorities in the execution of a EAW must be limited to practical and administrative assistance.

16. SOCA as the designated authority may issue a certificate under section 2 of the 2003 Act if it receives the Part 1 warrant from an authority that has the function of issuing such warrants. It is for SOCA to process the warrants it receives. Once that warrant is certified the requested person can be arrested. The timing of arrests is an operational matter for the police. The CPS will only become involved in the proceeding when the person has been arrested and placed before the court. Even in cases where the CPS gives advice as to what matters need to be included in the warrant, it remains the decision of SOCA as to whether that warrant should be certified. The fact that the warrant is certified just means that the central authority has recognised that the authority that has issued it is recognised as having that function within the category 1 territory. It does not mean in itself that the warrant is valid, by which the Act means that it contains the statement and information set out in section 2 of the 2003 Act.

17. The Framework Decision envisages that the central authority can be made responsible for the administrative transmission and reception of

139 Written Evidence submitted by the Crown Prosecution Service (EXT 12)

European arrest warrants as well as for all other official correspondence relating to it. If issues are raised in the extradition proceedings, where further information is required from the issuing judicial authority, those requests will be transmitted via SOCA and the responses will come back the same route. This mirrors the process under Part 2 of the 2003 Act where requests for additional information are transmitted though the diplomatic channels via the Judicial Co-operation Unit of the Home Office.

18. Under the 2003 Act, SOCA is responsible for arranging the extradition of the person once the decision has become final. This is an operational decision for SOCA and the police. If the person is not removed within the relevant time, SOCA will notify the CPS in order that a later date can be fixed for the removal. SOCA will provide a statement that can be used in court to explain why the person has not been removed.

19. The transmission of EAWs, the timing of the certification, and operational decisions on removal are all matters for SOCA. If once a person is extradited, a request for consent to other offences being dealt with, the 2003 Act states under section 54 that the consent hearing must begin within 21 days of SOCA receiving the request for consent. As the Judge must serve notice on the person that he has received the request for consent, the court will send its transmission through SOCA.

The Process for Issuing Extradition Requests

20. The basis for all requests for extradition is: a person is either wanted for the purpose of arrest for the purpose of being prosecuted for the offence; or the person has already been convicted of the offence and the request is made for the purpose of being sentenced for the offence or of serving a sentence of imprisonment that has already been imposed by a court.

21. The Code for Crown Prosecutors explains how charging decisions are made. It explains that no matter how serious the offence, a prosecution will only follow if the Full Code Test is met: namely that there is sufficient evidence for a realistic prospect of conviction; and it is in the public interest. The CPS applies the Full Code Test when deciding if an extradition request for a person should be prepared and submitted for a person who has yet to be charged with the offence. In other cases the person may have already been charged and has absconded after that date, or has been convicted of the offence. By applying the Full Code Test, the CPS can mount the prosecution as soon as the person is extradited.

22. In relation to the preparation of Part 3 warrants, the European Judicial Network published the template to be completed in all cases and each box tells the prosecutor what information is required. Section 142 of the 2003 Act also requires the warrant to confirm whether the conduct constituting the extradition offence specified in the warrant falls within the European framework list, whether the offence is extra-territorial, and the maximum penalties that may be imposed on conviction of the offence or what

140 Written Evidence submitted by the Crown Prosecution Service (EXT 12) sentence has been imposed if already convicted. The application is made before a Judge, who if satisfied that all the required information is contained in the warrant, will issue the warrant in question. The warrant, and any accompanying information, is transmitted to the designated competent authority of the requested state by SOCA.

23. For Part 2 cases, the preparation of the request to be submitted through the Home Office is dependent on the scheme that applies. For example, information may be required for various schemes albeit in different formats. For cases under the European Convention on Extradition, a Statement of Facts and Law will be provided; for Australia a Statement of Acts and Omissions; and for Canada a Record of Case. For countries where evidence is required as a result of the treaty it may contain a prima facie bundle that is sworn before magistrates.

24. Once the requests are submitted, the CPS has no further role to play save for responding to any requests for information on behalf of the executing authority. The presentation of the cases is handled by the executing authorities on our behalf.

Transmission of EAWs by Interpol, the European Judicial Network (EJN) and the Schengen Information System

25. The CPS plays no role in the transmission of EAWs. Once a CPS prosecutor has had the warrant signed by the judicial authority (a magistrate, district judge or Crown Court judge), the prosecutor sends the signed warrant to SOCA’s Fugitives’ Unit. They oversee the translation of the warrant (as necessary) and its transmission to other Member States.

Time Limits for Processing EAW Requests

26. Any time limits set out in the Framework Decision on the EAW or the Extradition Act 2003 in relation to the processing of EAW requests apply to the police, SOCA and the courts, but not the CPS.

Information Provided to those Undergoing Extradition Proceedings

27. It is for the police to execute the EAW in Part 1 of the Act. As part of the arrest procedure, the 2003 Act requires the officer to serve a copy of the warrant as soon as practicable after the arrest. If that is not complied with, the requested person can apply to the Judge to be discharged and the Judge may order that discharge depending on the reasons given for the non- service. The requested person is also served with a copy of the officers arrest statement and he is entitled to the custody record under the Police & Criminal Evidence Act 1984 (PACE). Where a person has been provisionally arrested, the officer must serve a copy of the arrest warrant as soon as practicable after arrest.

28. In cases falling under Part 2 of the Act, the officer will serve a copy of the arrest warrant as soon as practicable. At the time of the Extradition Hearing, 141 Written Evidence submitted by the Crown Prosecution Service (EXT 12) the requested person will have been served with the section 70 certificate issued by the Secretary of States, any relevant Orders in Council, and a copy of the Extradition Request. He can also obtain the custody records under PACE.

29. As much information is made available to the requested person in order that the issue of consent can be addressed at the initial hearing.

Discretion of CPS in Executing Extradition Cases

30. The CPS only becomes engaged in extradition cases after the request has been executed, i.e. the subject of the request has been arrested pursuant to an extradition request from another jurisdiction. We play no part in the execution of the request so do not have any discretion or influence.

Withdrawal of Extradition Requests.

31. The CPS does not have the power to discontinue extradition proceedings. A warrant can be withdrawn only by the issuing judicial authority and the procedure for that is set down in sections 41-43 of the 2003 Act in relation to Part 1 cases; and sections 122-124 in respect of Part 2 cases. An explanation will normally accompany the withdrawal.

32. There has been a trend where requested persons instruct lawyers or any remaining family members in the issuing territory to make applications for the warrant to be withdrawn. Warrants have also been withdrawn when information has been relayed that the person is physically or mentally unfit, where mistaken identity has been realised, or where the nature of the evidence has altered. It should be remembered that some requested persons are linked with co-accused whose trials continue in the issuing territory while extradition proceedings are running. An acquittal of a co-accused would in all probability lead to the withdrawal of the warrant unless the facts or evidence could be distinguished in any way.

Additional briefing

33. The CPS is happy to provide the members of the Committee with additional briefing on any aspects of its work if its helps the Committee’s consideration and its future work.

February 2011

142 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) Executive Summary

American federal criminal law has deviated substantially from ancient principles of what was once a shared British/American common law tradition—the requirement that criminal culpability must presuppose a union of act and intent. Under this tradition, criminal laws also must be sufficiently clear so that a person of normal intelligence is able to understand where the line is drawn between lawful and criminal conduct. Since approximately the mid-1980s, American federal criminal law has been diverging from this principle. Today, it is virtually impossible for Americans, let alone foreign citizens, to understand what conduct is criminalized by a number of vague federal criminal statutes. As a result, innocent men and women are being convicted, and often sentenced to lengthy prison sentences, for engaging in conduct that they had no reason to believe constituted a crime.

I have dealt with this growing problem in my 2009 book, Three Felonies a Day: How the Feds Target the Innocent (New York: Encounter Books, 2009), in which an expanded version of this essay can be found. My presentation to the Joint Committee on Human Rights, as well as my book, derives from my experience as a trial lawyer, writer, and occasional law teacher in the United States between 1967 and the present. In the instant essay, I seek to explain how and why modern-day American federal criminal law has deviated so markedly from the ancient common law system that the United Kingdom and the United States once shared, but which American federal criminal law has quietly abandoned.

My essay traces the common law roots of American law, and then examines through case studies the fatal deviation. My essay then goes into other aspects of the U.S. federal criminal justice system that make it extremely difficult, and risky, for defendants to challenge this vagueness in federal courts. Federal prosecutors’ power to turn investigatory and prosecutorial targets into “cooperating” witnesses is examined, as well as other aspects of the insidious “cooperation framework.” This synergy between vague statutes and coercive prosecutorial tactics produces a disheartening number of false convictions and coerced plea bargains. It is my aim to show that, because of the stacked deck that defendants currently face in the U.S. criminal justice system, the House of Commons should enact procedural safeguards for protecting citizens of the United Kingdom from unwarranted extradition.

143 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

Written Evidence

1. It is widely recognized that the scales of the modern U.S. criminal justice system tilt heavily toward the government. A rapidly-expanding U.S. criminal code, comprised of often-overlapping laws, enables the government to threaten heavy prison terms in multi-count indictments. If a defendant is brave enough to contest charges at trial, a veritable trove of carrots and sticks help prosecutors to persuade witnesses to “flip” and tailor their testimony to the government’s script. In the event the accused is convicted, judicial discretion is diminished by Draconian sentencing guidelines, once mandatory but still closely followed. These phenomena serve to raise questions about the fundamental fairness of federal criminal justice in America.

2. Depending on one’s political perspective, however, these issues may be of varying importance. Legal observers may disagree on whether there are in fact too many federal laws, or whether prosecutors should have such unchecked power. But there is an underappreciated aspect of the modern U.S. criminal justice system, a problem that transcends party lines, which is the subject of my presentation today. It is the issue of vagueness, and the inability of average citizens, or even their legal counsel, to divine precisely what U.S. laws forbid. As such, members of civil society—both American citizens as well as foreign citizens who conduct their activities in, or in connection with, the United States—are subject to laws that they would not likely assume prohibits the conduct in which they are engaged. American laws thus function less as a guide to lawful conduct, and more of a trap for even the well-intentioned, leaving the liberty of Americans troublingly dependent on prosecutorial whim. No less vulnerable from U.S. prosecution are foreign citizens whose activities implicate American interests.

3. With some four decades as a criminal defense and civil liberties litigator, I bring the perspective of a practitioner, one who has seen the pernicious effects of vague statutes firsthand.205 Though not all members of the House of Commons will agree with my observations, it is my hope that this account will give cause for concern about the treatment of citizens of the United Kingdom in American courts.

205 For more information on the author, visit: http://threefelonies.com/AbouttheAuthor/tabid/57/Default.aspx. For further reading on the subject, see “Federal Criminal Law: Punishing Benign Intentions – A Betrayal of Professor Hart’s Admonition to Prosecute Only the Blameworthy,” by Harvey A. Silverglate, in Timothy Lynch, editor, In the Name of Justice: Leaders Experts Reexamine the Classic Article “The Aims of the Criminal Law” (Washington, D.C., Cato Institute, 2009), as well as “The Degradation of the ‘Void for Vagueness’ Doctrine: Reversing Convictions While Saving the Unfathomable ‘Honest Services Fraud’ Statute,” by Harvey A. Silverglate and Monica R. Shah, in Cato Supreme Court Review: 2009-2010 (Washington, D.C., Cato Institute, 2010). Copies of these publications, as well as Three Felonies a Day, are being submitted with the hard copy (paper) submission being delivered to the Committee. 144 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

4. I begin the discussion with one of the most famous cases in American constitutional law, Morissette v. United States, which sought to maintain the tether between certain English common law principles and American federal criminal law. While Morissette was indeed a valiant effort, its lessons have ultimately fallen into disfavor. As a result, the risks for those doing business in the United States or with U.S. entities, be they British or American, have grown considerably.

5. A little over a half-century ago in rural Midwest America, a 27-year-old U.S. Army veteran named Joseph Edward Morissette was working to support his family as a fruit stand operator during the summer and as a trucker and scrap iron collector during the winter. His seemingly normal life came to a screeching halt, however, when he was charged with stealing from the United States government in 1952. His case would ultimately wend its way through the federal court system and end up at the Supreme Court.

6. One time when Morissette was out hunting for deer, he came across a heap of spent bomb casings on a tract of uninhabited land. To Morissette, the casings appeared abandoned. There were no signs posted to the contrary, and, having sat in a pile through several harsh Michigan winters, the casings were showing signs of rust and decomposition. When Morissette failed to bag a deer to pay for his hunting trip, he collected some of the casings, crushed them with his tractor, and sold them as scrap metal. The casings yielded him $84.

7. The land turned out to be Oscoda Air Base, which the military used, according to the later Supreme Court opinion, as “a practice bombing range over which the Air Force dropped simulated bombs at ground targets.”206 A police officer, likely concerned about the large amount of bomb-shaped scrap metal heaped in the bed of Morissette’s truck, asked him about the casings and referred the matter to an FBI agent. That, in turn, led to Morissette’s being indicted in federal court on the charge that he “did unlawfully, willfully and knowingly steal and convert” property of the United States in violation of a statute that provided that “whoever embezzles, steals, purloins, or knowingly converts” government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to two months in prison or a fine of $200.

8. Morissette hadn’t realized that the casings were the government’s property; he had taken them on the assumption that they were abandoned. In fact, he told the police officer who first questioned him that he did not think they were of any use or that anybody would care if he took them. Yet Morissette’s “innocent intention” couldn’t save him at trial. Despite the facts, the trial judge forbade Morissette’s lawyer to argue to the jury that his client acted with an “innocent intention,” because the judge concluded that

206 Morissette v. United States, 342 U.S. 246, 247-250 (1952); further details available from the Court of Appeals opinion affirming Morissette’s conviction, Morissette v. United States, 187 F.2d 427 (6th Cir. 1951). 145 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

Morissette’s guilt under the statute was obvious and legally irrefutable: the bomb casings were on government property, and Morissette took them without permission. It was irrelevant that Morissette might have reasonably believed the casings were abandoned property, or even that this belief was based upon the government’s own failure to post a notice to the contrary. The question of whether Morissette believed he was not stealing, and of the government’s complicity in giving him that impression, did not matter.

9. It’s important to note that the judge’s interpretation of the law departed from centuries of English common law tradition, an evolving body of judge- made interpretive law with ancient roots, based on human experience and common sense. The common law tradition, with rare and narrow exceptions, does not punish those, like Morissette, who act with innocent intent. This approach to criminal law contains a vital moral component—our society punishes only those who intentionally rather than inadvertently violate the law.207

10. When the United States Court of Appeals for the Sixth Circuit heard Morissette’s appeal in 1951, it upheld his conviction by a 2-1 vote. By the judges’ stated logic, it was a “technicality” that Morissette, who they acknowledged made “no effort at concealment,” never intended to steal. When it comes to statutory crimes defined by Congress, the two-judge majority argued, intent or knowledge is irrelevant unless Congress appears to provide otherwise. Morissette wisely sought, and obtained, Supreme Court review.

11. In its unanimous opinion, the Supreme Court threw out the appellate court’s decision and, with it, Morissette’s conviction.208 Justice Robert H. Jackson discussed the historical role of intent in criminal cases and “the ancient requirement of a culpable state of mind” that must accompany a culpable act. To convict one of a crime, there must be “an evil-meaning mind with an evil-doing hand” (for the technically minded, the traditional common law notion of the combination of the actus reus and the mens rea).

12. Based on these centuries-old requirements, Justice Jackson concluded that the courts could not presume from Congress’s silence that it did away with the criminal intent requirement, as this “would conflict with the overriding presumption of innocence with which the law endows the accused.” Jackson noted that, had the jurors been allowed to consider Morissette’s state of mind, “[t]hey might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk,” and from that they might “have refused to brand Morissette as a thief.”

207 See, generally, Ford W. Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand. L. Rev. 791 (1951). 208 Justice Douglas concurred in the result without signing onto Justice Jackson’s opinion, and Justice Minton took no part in the decision of the case. 146 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

13. Jackson and his fellow justices obviously recognized the importance of their having decided to review the Morissette case, an undertaking extended to a small minority of litigants who seek review by the high court. “This would have remained a profoundly insignificant case to all except its immediate parties,” Jackson noted in the Court’s opinion, “had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law.” And so this seemingly insignificant case had the potential to ensure the continued presence of fundamental principles of fairness and moral content in the federal criminal law. But how long would those positive developments last?

14. A few years before he wrote Morissette v. United States, Robert H. Jackson was serving as Franklin D. Roosevelt’s new attorney general. On April 1, 1940, Jackson assembled his cadre of chief federal prosecutors in Washington.209 He wanted to speak to them about a matter of grave concern—and it wasn’t the evils of crime or the need to use every crime-fighting tool to the fullest. Jackson’s subject, instead, was the untoward consequences of excessive prosecutorial zeal.

15. After explaining why a federal prosecutor must choose cases carefully and recognize that not every crime can be pursued, Jackson turned to the heart of his talk: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.” Here one finds “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

16. Jackson was no soft touch. He knew real crimes when he saw them. After serving as attorney general for less than two years, he would become a Supreme Court justice and serve as well as chief American war crimes prosecutor at Nuremberg. But Jackson also understood the proper limits of power and the dangerous human impulse to exert power over others. The federal law books, explained Jackson, are “filled with a great assortment of crimes,” and a prosecutor “stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” Prosecutors can easily succumb to the temptation of first “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

17. Today, in spite of Jackson’s warning, it is only a slight exaggeration to say that the average busy professional in this country wakes up in the morning, goes to work, comes home, takes care of personal and family obligations, and then goes to sleep, unaware that he or she likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have become not only exceedingly numerous (Jackson’s main fear at the time of his admonition to his prosecutors) and

209 Robert Jackson, “The Federal Prosecutor,” April 1, 1940, delivered at the second Annual Conference of United States Attorneys, in Washington, D.C., reproduced at 31 Am. Inst. Crim. L. & Criminology 3 (1940-1941). 147 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) broad, but also, since Jackson’s day, impossibly vague. As the Morissette scenario indicated, federal criminal laws have become dangerously disconnected from the English common law tradition and its insistence on fair notice, so prosecutors can find some arguable federal crime to apply to just about any one of us, even for the most seemingly innocuous conduct (and since the mid-1980s have done so increasingly).

18. A study by the Federalist Society reported that, by the year 2007, the U.S. Code (listing all statutes enacted by Congress) contained more than 4,450 criminal offenses, up from 3,000 in 1980.210 Even this figure understates the challenge facing honest, law-abiding citizens. Since the new deal era in the 1930s, Congress has delegated to various administrative agencies the task of writing the regulations that implement many congressional statutes. This has spawned thousands of additional pages of text that carry the same force as congressionally enacted statutes.211 The volume of federal crimes in recent decades has exploded well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of often vague and exceedingly complex and technical prohibitions, one degree removed from congressional authority, on which to hang their hapless targets.

19. This development may sound esoteric to some—until they find themselves at the wrong end of an FBI investigation into, or indictment for, practices they deem perfectly acceptable. It is then that citizens begin to understand the danger posed to civil liberties when our normal daily activities expose us to potential prosecution at the whim of a government official.

20. The dangers spelled out here do not apply only to “white collar criminals,” state and local politicians, and myriad professionals. No field of work nor social class is safe from this troubling form of executive branch overreaching and social control, and nothing less than the integrity of our constitutional democracy hangs in the balance.

21. Though the threat of vague federal laws has grown exponentially worse in the past three decades, its roots were established long ago. In an 1812 bribery case, the U.S. Supreme Court ruled that federal crimes were entirely creatures of congressional statute and not successors to English common

210 John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation, Federalist Society for Law and Public Policy Studies White Paper, May 2004, available at http://www.fedsoc.org/doclib/20070404_crimreportfinal.pdf. The Federalist Society commissioned this study, the report says, “to ascertain the current number of crimes in the United States Code, and to compare that figure against the number of federal criminal provisions in years past.” The report analyzed legislation enacted between 1997 through 2003. 211 When Congress enacts a general statute, it sometimes assigns to some administrative agency the authority to write detailed or explanatory regulations that put flesh on the statutory skeleton. Thus, the federal statute that outlaws securities fraud assigns to the Securities and Exchange Commission the authority to write regulations detailing various kinds of securities fraud. Violation of a regulation thus becomes the equivalent of violation of the underlying statute. 148 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) law.212 As a result, Congress in writing statutes, and the federal courts in interpreting them, do not have the full benefit of the English common law’s wisdom and experience—with increasingly alarming consequences. As the Supreme Court said in 1985, “[W]hen assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the conduct the enactment forbids.”213 This judicial exercise, often akin to reading tea leaves, has proven disastrous.

22. The deceptively simple exercise of divining congressional purpose in enacting a statute involves, for one thing, a dubious assumption that Congress acts with a single, much less a simple, intent. In practice, it is rarely clear what that intent was, since much federal legislation is the result of compromises that often are meant to gloss over genuine and sharp differences. For this and perhaps other reasons as well, Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood.

23. As the post-new deal regulatory and national security state took deeper root during the mid-20th century, the gulf between the defendant-protective common law tradition practiced in the states and the more malleable and prosecution-friendly federal law grew. More and more, courts departed from Justice Jackson’s insistence on requiring proof of criminal intent to commit a crime, and instead subscribed to the belief that, if the nation is to be kept safe in an increasingly dangerous world, law violators must not be allowed to slip from the government’s net, even when the law’s prohibitions could not be understood with precision.

24. The danger posed by vague statutes is perhaps best known in the context of the era of anti-Jim Crow racial struggles in the American South. The threat back then appeared to be the abusive use of vague state breach-of-the- peace laws to turn back the wave of civil rights demonstrations in the Deep South. In one landmark case, a state statute was declared unconstitutional by the U.S. Supreme Court because the law’s vague terminology misled protestors who were attempting, in good faith, to adhere to the law’s requirements.214 In another case, the high court struck down a “breach of the

212 See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (unlike state courts, federal courts cannot exercise common law criminal jurisdiction); Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) (there is no general federal common law, even in civil matters); Whalen v. U.S., 445 U.S. 684, 698 (1980) (the power to define crimes and punishments “resides wholly with the Congress”); Dixon v. United States, 126 S.Ct. 2437, 2439 (2006) (“Federal crimes are solely creatures of statute”) (citing Liparota v. United States, 471 U.S. 419, 424 (1985)). This may have been because “[t]he Framers…recognized that the diverse development of the common law in the several States made a general federal reception impossible.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 139-140 (1995) (Souter, J., dissenting). 213 Dowling v. U.S. 473 U.S. 207, 213 (1985). 214 See Cox v. Louisiana, 379 U.S. 536 (1965). In this case, Reverend B. Elton Cox, leader of a group of civil rights demonstrators, was arrested in December 1961 for violating a 1950 Louisiana criminal statute that barred picketing “in or near” courthouses. In 1965, his 149 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) peace” statute in South Carolina, declaring the law “void for vagueness” because the terms were “not susceptible to exact definition.”215

25. Troublingly, the doctrines of misleading the citizen216 and “void for vagueness,”217 which U.S. federal courts have applied in numerous cases with regard to state statutes, especially where states have used vague statutes to violate the federal constitutional rights of political, religious and racial minorities, have not been applied consistently or with equal rigor in federal cases, despite the modern-era explosion of vague federal criminal statutes and mountains of turgid regulations. When the Supreme Court considered an Oklahoma law that made it a crime to pay laborers less than the prevailing wage in their locality, it decided that the law’s references to “locality” and “current rate of wages” left too much open to interpretation. That state law was unconstitutional, the Court determined, because its language was “so vague that men of common intelligence must necessarily guess at its meaning and differ as to” how best to comply with it.218 The dangers posed by vague laws, relatively rare in modern state criminal statutes, are greatly exacerbated in the current federal criminal code. Such federal statutes have been stretched by prosecutors, often with the connivance of the federal courts, to cover a vast array of activities neither clearly defined nor intuitively obvious as crimes, both in commerce and in daily life.

26. As these bodies of law have expanded, federal prosecutors have grown more inclined to bring criminal charges for deeds that, at most, constituted arguable (sometimes barely arguable) civil offenses. Thus, they raised reasonably contestable federal questions that a federal court, in a civil proceeding, should have been allowed to resolve. The citizen, if wrong, would have to pay a price measured in dollars; and once the clear meaning of the statute or regulation was established, the citizen would be expected to adhere to it, next time on penalty of criminal indictment and conviction. I naively assumed that the federal courts would, by and large, insist that

conviction was overturned by the U.S. Supreme Court, which contended that the anti- picketing statute suffered from a “lack of specificity” in its mandate that demonstrations not take place “near” courthouses. Cox had received permission to lead a protest across the street—approximately 125 feet away. By telling Cox that he could lead the protest at that location but then arresting him, Louisiana officials violated his right to adequate notice and hence “due process of law.” 215 See Edwards v. South Carolina, 372 U.S. 229 (1963). In this case, 187 black high school and college students were convicted for “breach of the peace” during a peaceful demonstration against mistreatment of blacks. While the Supreme Court ruled the demonstration itself was protected by the First Amendment, it went further and deemed the statute unconstitutional because it was “so vague and indefinite” that it practically invited punishment of protected speech and protest. The Court noted that the Supreme Court of South Carolina defined the word “peace” as used in the statute as “tranquility.” “These petitioners,” said the U.S. Supreme Court, “were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, ‘not susceptible of exact definition.’” 216 See Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959). 217 See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Edwards v. South Carolina, 372 U.S. 229 (1963). 218 Connally v. General Construction Co., 269 U.S. 385, 391 (1926). 150 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) citizens be charged with crimes only when there was adequate notice of what constituted the crime.

27. I had reason, at the start of this trend, to think that the federal courts would rein in prosecutors. Consider the plight of Dorothy Garber. She ran afoul of the federal tax code, widely viewed as a confusing mishmash of arcane, complex, and often conflicting rules and interpretations. As such, tax prosecutions traditionally were to be brought only where the regulation had been sufficiently clarified so that the taxpayer could reasonably be said to have intentionally violated a known legal duty to pay taxes owed. The taxing authorities were supposed to exercise wise discretion in deciding whether to seek to collect a tax in a civil enforcement proceeding, or to seek to punish criminally a tax evader who should have known better.

28. Garber’s case reached the Florida federal courts in the late-1970s. This taxpayer was blessed (or perhaps, under the circumstances, cursed) with a rare trait: her body manufactured an extraordinarily valuable antibody used to make blood-typing serum. She frequently sold her antibodies to a pharmaceutical company by the process of plasmapharesis, i.e., the removal, treatment, and return of blood plasma from and to her circulation, a procedure that was both uncomfortable and potentially dangerous. She underwent plasmapharesis sometimes as often as six times a month and was handsomely paid for her trouble. In 1972, she earned a weekly salary of $200. In addition, she was provided a leased automobile and a $25,000 bonus. She earned a total of $87,200 that year and nearly as much in each of the two previous years.

29. Garber failed to report as income any of this money except her weekly $200 salary. Consequently, she was charged with criminal tax evasion. Her defense was intriguing, more a reflection of the conundrum of the federal tax code perhaps than of her alleged dishonesty. Examples of non-taxable transactions, some of which produce monetary gains, are found scattered throughout the tax code in various contexts. For example, if one owns some physical item, a “capital asset,” and sells that asset for one’s cost, however calculated, there is no taxable gain. If one is injured in an accident, compensation for pain and suffering is not taxable, in contrast to compensation for lost wages. These special categories of assets and of revenue, many of which get quite technical, often confound even the most experienced tax lawyers and accountants.

30. Garber, a lay person, argued that her body was a “capital asset” under the Internal Revenue Code, and that when she sold a portion of that asset, the sale was a non-taxable exchange because the tax cost basis of the asset with which she parted, i.e., her blood plasma, was precisely equal to the funds she received. The funds merely replaced the plasma she gave to the laboratory and therefore were neither proceeds of a business nor payment for services, either of which would render the proceeds taxable as “earned income.”

151 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

31. The United States Court of Appeals for the Fifth Circuit saw the issue as “a unique legal question,”219 noting that Garber testified “that she thought, after speaking with other blood donors, that because she was selling a part of her body, the money received was not taxable.” The trial judge had told the jury that monetary proceeds of such plasma donations were taxable and refused to allow Garber’s defense counsel to present expert witnesses who would say otherwise.

32. In reversing her conviction, the Court of Appeals decided not only that she had a right to present her capital exchange theory supported by expert testimony, but that “no court has yet determined whether payments received by a donor of blood or blood components are taxable as income.” If Garber performed a service, it was taxable; if, on the other hand, “blood plasma, like a chicken’s eggs, a sheep’s wool, or any salable part of the human body,” is tangible property, then her revenues were not taxable. Most importantly, the court declared that, because the law was vague and unsettled, “a criminal proceeding…is an inappropriate vehicle for pioneering interpretations of tax law.”220 In other words, the government should have brought a civil action against Garber to seek collection of the tax owed, not a criminal one to punish her.

33. Today, the Justice Department encourages federal prosecutors to do exactly what the Garber court condemned. In particular, federal prosecutors’ novel use of long-standing but utterly formless “anti-fraud” laws, which cover increasingly vast areas of American life, threaten honest (and apparently law- abiding) business executives and other professionals, as well as other ordinary citizens. In 2003, Michael Chertoff, then-second-in-command of the Justice Department’s Criminal Division, even went so far as to boldly declare that federal prosecutors should exploit anti-fraud provisions to indict business executives because “criminal prosecution is a spur for institutional reform.”221

34. The federal government’s preference for criminal prosecutions (over either civil prosecution or “institutional reform” via the legislative branch) to expand the reach of the law is not limited to vague “antifraud” statutes and regulations. The same can be said for other now commonly used statutes— conspiracy, bribery, and extortion, among others. Even the most intelligent and informed citizen (including lawyers and judges, for that matter) cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.

35. The trend of ambitious prosecutors exploiting vague federal laws and pursuing criminal charges instead of oftentimes more appropriate civil actions, something that they could not readily get away with in many state

219 United States v. Garber, 607 F.2d 92 (5th Cir. 1979) (en banc). 220 Id. (emphasis added). 221 Proceedings of the 17th Annual National Institute on White Collar Crime, March 6, 2003, quoted in John Gibeaut, Junior G-Men, 89 A.B.A. J. 46, 48 (June 2003). 152 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) courts, has been alarming enough, but it’s not the whole story. Indeed, the threat posed by federal prosecutors has become a veritable perfect storm lately, due to the convergence of this trend with the commonplace legal tactics that these prosecutors wield in order to get convictions in the vast majority of cases. Prosecutors are able to structure plea bargains in ways that make it nearly impossible for normal, rational, self-interest calculating people to risk going to trial. The pressure on innocent defendants to plead guilty and “cooperate” by testifying against others in exchange for a reduced sentence is enormous—so enormous that such cooperating witnesses often fail to tell the truth, saying instead what prosecutors want to hear. As Harvard Law School Professor Alan Dershowitz has colorfully put it, such cooperating defendant-witnesses “are taught not only to sing, but also to compose.”222

36. There has been precious little legislative and judicial analysis of the expanded use of destructive coercive practices for “turning” prosecution witnesses, which may involve immunity for loved ones, cash stipends, new identities not encumbered by a criminal record, and other powerful inducements in exchange for “composing” to nail former associates. Although in theory the law requires that the government disclose to defense counsel all inducements given to cooperating witnesses,223 jurors typically accept prosecutors’ claims that such inducements are essential to infiltrate hidden criminal conspiracies. Moreover, as any criminal defense practitioner knows, in practice, many types of inducements and threats often are implied, the subject of a knowing wink of the eye by the prosecutor to the prospective witness’s lawyer.

37. The “cooperation” framework is insidious. Prosecutors long have had the ability to offer witnesses valuable benefits, including money, in exchange for testimony that incriminates associates. Today, federal sentencing guidelines (once mandatory; still strongly suggestive and widely followed by judges) reward defendants who plead guilty and then give the government the testimony it seeks to prosecute others. Vague statutes exacerbate this problem by making it quite easy for one associate to testify that a former collaborator is indeed a crook.

38. The myriad ways in which federal prosecutors can craft or compose important witness testimony makes the prospect of the reduced sentence affiliated with a plea bargain much more palatable to defendants than the risk of a much higher sentence should they be found guilty at trial. The risk- reward ratio that innocent defendants weigh when deciding whether to

222 Prof. Dershowitz has used this formulation on numerous occasions in his Harvard Law School classes. See Harvey A. Silverglate, “Ashcroft’s big con: False confessions, coerced pleas, show trials — the Justice Department’s reliance on Soviet-style tactics has turned the war on terror into a Potemkin village,” The Boston Phoenix, June 25, 2004, available at http://bostonphoenix.com/boston/news_features/top/features/documents/03936976.asp. See also Paul Craig Roberts, “Fake Crimes,” Feb. 4, 2004, available at http://www.lewrockwell.com/roberts/roberts29.html. 223 Giglio v. U.S., 405 U.S. 150 (1972). 153 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) challenge an indictment by insisting on a trial has tilted decidedly toward risk reduction via a guilty plea and cooperation against others.

39. The push for more plea bargains also has an effect on how thoroughly— and indeed whether at all—the prosecutions are tested in federal appeals courts to determine whether prosecutors are relying on cockamamie interpretations of federal statutes. When you can scare enough defendants to plead guilty in exchange for less prison time, the government wins by default since there is no real chance that an appeals court will say that the prosecution was wholly phony.

40. Increases in the number of plea bargains also have the functional result of hiding these prosecutions from the public and avoiding scrutiny by the press, because cases in which defendants take plea bargains receive much less attention than those that go to trial. On the other hand, as the circle widens to ensnare ever more “conspirators,” prosecutors trumpet their willingness to “go wherever the evidence leads,” and the news media are, far more often than not, prepared to report such news without an ounce of insight or skepticism.

41. Thus, more and more innocent conduct gets swept into the category of crime—not by legislatures, and only secondarily by judges and juries, but primarily by these dangerous and altogether too common prosecutorial practices. The problem is exacerbated by a white collar criminal defense bar composed largely of former federal prosecutors turned defenders who, by virtue of their experience in the federal government, well understand the risks of going to trial and therefore stress to their clients the benefits of cooperation over confrontation and the increasingly less likely prospect of vindication. While some former prosecutors turn into vigorous and skeptical defense lawyers (a few are among the most talented and principled in the nation, some of whom even left their prosecutorial jobs out of revulsion at the modern practices of the Department of Justice), a culture of assumed guilt, plea- bargaining, and deal-making has developed in defense circles which, more and more, are populated by capitulation-prone former prosecutors, especially at the higher echelons of the profession. The name of the game is to confess and cooperate, thus pleasing prosecutors who, in the not-too- distant past, were the comrades-in-arms of the newly-minted defenders. Through this flawed process, ordinary conduct is increasingly deemed criminal without the benefit of critical examination, much less an adversarial testing of the DOJ’s often pioneering interpretations of federal law.

42. In turn, this prosecutorial strategy affects news coverage of high-profile cases that resemble public hangings in the Old West, often with the press decrying the latest “crime wave” and cheering the double-digit sentences imposed, with little or no critical media analysis and understanding. The criminal justice system and the news media (which in theory is supposed to be a check on government excess) feed one another instead.

154 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

43. Since the late-1980s, the federal bench, too, has been undergoing a transformation that has seriously eroded the extent to which judges can be relied upon to rein in bogus federal prosecutions. Judges, many of whom are former prosecutors, not only buy into the amorphous definitions of federal crimes favored by prosecutors, but they knowingly enable the tactics that allow prosecutors to present witnesses who bolster dubious prosecutions, thereby giving such cases the patina of substance. In a 1998 case, which served as a roadsign in the degradation of the federal justice system, lawyers for a Kansas woman named Sonya Singleton challenged the practice of offering leniency and even monetary rewards to cooperating government witnesses in exchange for their testimony. Prosecutors alleged that Singleton assisted her drug-dealing husband by wiring money for him in her name to a kingpin in California. Ms. Singleton and other co-conspirators were charged with multiple counts of money laundering and conspiracy to distribute cocaine. Before trial, she moved to suppress the testimony of Napoleon Douglas, a co-conspirator who had entered into a plea agreement with the government. The basis for her motion was that the government had impermissibly promised Mr. Douglas something of value, in violation of both federal law and the Kansas Rule of Professional Conduct. Specifically, Douglas had been promised that 1) he would not be prosecuted for any violations of the Drug Abuse Prevention and Control Act, stemming from his activities, other than perjury or related offenses, and 2) prosecutors would advise the sentencing court and parole board of the nature and extent of the cooperation provided.

44. Singleton’s challenge was a shot across the justice system’s bow, aiming directly at its increasingly corrupt “business as usual” culture, and she lost.

45. Not surprisingly, a federal statute makes it a crime to bribe witnesses; it is a felony to give or promise a witness “anything of value” in exchange for testimony.224 The defendant’s theory in Singleton was, if it is a felony (and it is) for any defense lawyer to promise a benefit to a witness, should it not similarly be a crime for prosecutors, by threats, money or other inducements, to coerce or bribe the vulnerable to “cooperate”? Shouldn’t all untoward pressures and inducements be removed from witnesses, so that truth, and not just naked self-interest, governs their testimony? The statute, on its face, makes no exception whatsoever for government use of bribery.

46. A three-judge panel of the Tenth Circuit Court of Appeals225 followed the seemingly (one might even say unusually) clear wording of the witness-bribery statute and found no exception for prosecutors who threaten and then reward government witnesses for their testimony. The court drew the obvious conclusion that doing so is bribery. A panicked Department of Justice

224 Title 18, United States Code, section 201(c)(2): “Whoever directly or indirectly gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceedings, before any court…, or for or because of such person’s absence therefrom, shall be fined under this title or imprisoned for not more than two years, or both.” 225 United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998, panel opinion). 155 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) promptly sought and obtained further review by the full membership of the court, insisting the statute not be interpreted to mean what it says, lest the whole edifice of bought and coerced prosecution testimony collapse.

47. The full court reversed the upstart panel that had temporarily rocked the prosecutorial boat.226 It ruled that “in light of the longstanding practice of leniency for testimony,” it must be “presumed” that, had Congress intended to “overturn this ingrained aspect of American legal culture, it would have done so in clear, unmistakable, and unarguable language.” of course, that is precisely what Singleton argued and the three-judge panel found that Congress had done—spoken clearly against bribery of witnesses. The full court, however, pretending to know, without any clear evidence, what was on Congress’s mind when it enacted a seemingly all-inclusive prohibition against interfering with the testimony of a witness, found that Congress intended an exception for prosecutors—a double standard if ever there was one.

48. It was hard for the defense bar to avoid profound disillusionment. The Singleton experience demonstrated that, even where Congress seems to have spoken clearly on the definition of witness bribery, the institutional imperative to obtain convictions at any cost prevailed.

49. Cynicism about the unlevel playing field granted to prosecutors by Singleton was amplified by a 1970 Supreme Court decision, North Carolina v. Alford. In that case, the defendant was charged with first-degree murder (with a potential death sentence attached to it) but decided to take a plea bargain in which he would accept a sentence for second-degree murder instead. However, unlike most defendants who take these deals, “Alford took the stand and testified that he had not committed the murder, but that he was pleading guilty because he faced the threat of the death penalty if he did not do so.”227 After his trial, Alford appealed and claimed that his guilty plea was the product of force or coercion because he had been facing the death penalty. The Supreme Court decided that his plea was not coerced and that it was lawful for the judge to accept Alford’s guilty plea even though he maintained his factual and legal innocence. Instead of risking execution, Alford decided to throw in the towel and take a thirty-year sentence. In today’s world of federal criminal law, many defendants will find themselves weighing reasons similar to Alford’s that might lead them to take a plea bargain, including the recognition that innocence is all too often not an adequate and effective defense to a federal prosecution.

50. The Court’s decision in Alford is a double-edged sword for defendants. In the short run, defendants situated similarly to Alford might benefit by being able to plead guilty and exchange the certainty of a lower sentence for the risky uncertainty of a much more onerous sentence. In the long run, however, Alford is bad news for federal defendants and the federal criminal justice

226 United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999, en banc). 227 North Carolina v. Alford, 400 U.S. 25, 28 (1970). 156 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) system in particular, because it means those prosecutions will never go to trial and that, in turn, those prosecutions will never be challenged in appeals courts. In the longest view, federal prosecutors who exploit vague statutes are the biggest beneficiaries of the Court’s decision in Alford precisely because they can structure deals that 1) defendants cannot refuse and that 2) mean that the prosecutors’ creative interpretations of the laws are unlikely to be challenged or overturned through judicial review. The combination of Alford and Singleton, in the context of a system of federal laws that so often simply cannot be understood, has paved the way to an inescapable conclusion that the federal criminal justice system has become a crude conviction machine instead of an engine of truth and justice.

51. This phenomenon, the synergy between vague statutes and coercive prosecutorial tactics, explains the anecdote told by Tim Wu in a 2007 article titled “American Lawbreaking,” published in the online magazine Slate:

At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible rime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: “prison time,” as one former prosecutor told me.228

52. This is precisely the expansion of the criminal code that Justice Jackson warned of more than half a century ago. But there is an added danger that Jackson did not foresee: as the criminal code became broader, it also became more and more vague, or at least it has been interpreted so by prosecutors and often by courts as well. Because of this vagueness, the federal criminal law has become too often a trap for the unwary honest citizen instead of a legitimate tool for protecting society. There are too many people behind bars today who honestly believed, for good and sufficient reasons, that they acted in conformity with the law. Justice Jackson perceived the very early stages of the transformation (some would say perversion) of U.S. criminal law into such a trap. He decried the failure to limit federal prosecutions and convictions to people who knowingly and

228 Tim Wu, “American Lawbreaking: Illegal Immigration,” Slate.com, October 14, 2007, available at http://www.slate.com/2175730/entry/2175733/. 157 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) intentionally violated reasonably knowable legal duties, as is the English common law tradition.

53. Let’s be clear. All segments of civil society and a wide variety of seemingly innocuous behaviors are at risk of being criminalized by an overzealous Justice Department (“civil society” being defined roughly as the private sector, even if one’s work is government-regulated to some degree). The increasing power the federal government exerts over every element of the private sector, as demonstrated by the power to investigate, prosecute, and even convict defendants who have not committed a clearly defined crime, is a threat to the nation as a whole. Quite simply, it undermines a critical tension, an essential balance of power, between the government and the governed. Consider some of the cases discussed in more detail in Three Felonies a Day:

• Philip Russell, a lawyer from Greenwich, Connecticut, was indicted in 2007 for obstruction of justice because he destroyed child pornography, despite the fact that child porn is illegal even to possess (“contraband”) and therefore holding, rather than destroying it, arguably would be criminal.

• Michael Milken, under threat that the department of Justice would prosecute his younger brother if the older brother did not take a plea bargain, pled guilty in 1990 to a felony that a judge later ruled (in a trial against a Milken cohort) did not constitute a crime.

• The Department of Justice in 2002 indicted, and then convicted Arthur Andersen & Company, at the time one of the nation’s “Big Five” accounting firms, for obstruction of justice simply because the firm followed its normal document-retention-and-destruction policy before receiving a document-production subpoena in connection with the government’s investigation of Enron Corporation. By the time the Supreme Court unanimously reversed the conviction (because the jury had been instructed that it could convict even in the absence of any type of dishonesty), the firm had gone out of business. Faced with the threat of a ruinous prosecution on the basis of similarly dubious claims of wrongdoing, KPMG (a member of the then-remaining “Big Four”), believing that discretion was the better part of valor, admitted to readily refutable guilt and betrayed its former partners and employees in order to survive.

• Federal prosecutors indicted Steven Kurtz, a college professor and politically radical artist living in Buffalo, New York, on a mail fraud charge in 2004 for engaging in a transaction that professors around the country engage in routinely. In truth, the mail fraud charge was simply a way for the government to justify the countless man-hours the FBI poured into the case after falsely, indeed bizarrely, concluding that Kurtz’s cutting-edge artwork amounted to bioterrorism.

158 Written Evidence submitted by Mr Harvey A Silverglate (EXT 13)

• The Department of Justice reportedly looked into indicting The New York Times (and its top editors and reporters) for espionage for running a front- page story that exposed the National Security Agency’s arguably unlawful warrantless communications surveillance program.

54. These are just a few of the investigations and prosecutions in which well- meaning professionals from all walks of life have been charged (or nearly charged) criminally for engaging in activities that most of us—lawyers and laymen alike—would consider lawful, often quite ordinary, and frequently socially beneficial. It is thus incumbent on the U.K. Parliament to protect the British people from exposure to these unjust prosecutions by increasing procedural safeguards for extradition to the U.S.

25 February 2011

159 Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor (EXT 16) Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor (EXT 16)

The Joint Committee on Human Rights will take evidence on 29 March on the human rights implications of UK extradition policy from Baroness Neville-Jones. Some of the evidence we have received from witnesses raises issues relating to areas within the responsibility of the Ministry of Justice. I am writing to you to ensure that the Government is provided with an opportunity to express an opinion on these issues.

Several witnesses have suggested that proposals set out in the EU Roadmap for fostering the protection of the rights of suspected persons in criminal proceedings would increase procedural protection for persons subject to extradition proceedings. This initiative will facilitate the application of the principle of mutual recognition of judicial decisions which underpins the EAW.

The Roadmap on Procedural Rights was adopted by the Council in 2009 and incorporated into the Stockholm Programme. What progress has been made with respect to implementing the procedural rights set out in the roadmap?

What is the Government’s view of the programme and the proposals for procedural protections that it sets out?

Will the Government be encouraging other Member States and the Commission to implement the outstanding measures set out in the roadmap?

Several witnesses have commented on the importance of legal representation for persons subject to extradition proceedings in both requesting and requested countries in order for that the person in question is able to mount an effective defence against extradition on human rights grounds.

What level of legal aid is provided to those subject to extradition? Does the Government believe this provision is adequate in order to protect the human rights of those subject to extradition requests?

Witnesses have suggested that defendants in extradition cases do not have sufficient time with a duty solicitor before their case. It has been suggested that a minimum amount of time should be provided to defendants before their case. Can you comment on this suggestion?

What provision is there for a defendant to claim legal aid for a legal representative in the requesting country? 160 Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor (EXT 16) The Committee has received evidence arguing that suspects of international crimes committed abroad, including genocide, war crimes and so on, who are found within the UK should be brought to trial within the UK rather than being extradited to face trial.

What steps are the Government taking to ensure that suspects of crimes which are covered by universal jurisdiction stand trial in the United Kingdom in the first instance?

23 March 2011

161 Written Evidence submitted by Crown Prosecution Service (EXT 17)

Written Evidence submitted by Crown Prosecution Service (EXT 17)

1. This memorandum provides an overview of the Crown Prosecution Service (CPS) and its role in the extradition process. It also provides the Committee with further information on areas in which it may have a particular interest.

Role and organisation of the Crown Prosecution Service

2. The Crown Prosecution Service (CPS) was set up in 1986 under the Prosecution of Offences Act 1985 as an independent authority to prosecute criminal cases investigated by the police in England and Wales. In undertaking this role the CPS:

• advises the police during the early stages of investigations;

• determines the appropriate charges in more serious or complex cases;

• keeps all cases under continuous review and decides which cases should be prosecuted;

• prepares cases for prosecution and prosecutes cases using in-house advocates, self-employed advocates or agents to present cases in court, and

• provides information and assistance to victims and prosecution witnesses.

3. The way in which the CPS undertakes its role is governed by two key documents: the Code for Crown Prosecutors; and Core Quality Standards (CQS).

4. The Code sets out the principles the CPS applies when carrying out its work. Those principles are whether:

• there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge; and, if so,

• a prosecution is needed in the public interest.

5. Keir Starmer QC is the Director of Public Prosecutions (DPP) and leads the CPS. He has been DPP since November 2008 and will hold his office for five years. The CPS is superintended by the Attorney General and is the largest of the Law Officers’ departments, and as at 30 September 2010, the CPS had 8,571 staff.

6. The organisational structure of the CPS is currently subject to change. The CPS is currently divided into 42 geographical Areas across England and Wales with each led by a Chief Crown Prosecutor (CCP). The 42 Areas are 162 Written Evidence submitted by Crown Prosecution Service (EXT 17) arranged into 13 Groups, with each Group overseen by a Group Chair who is also a CCP. However, from 1 April 2011, the existing CPS structure will move to 13 Areas, with each led by a CCP, and this will replace the current arrangement of 42 Areas brigaded into 13 Groups. These changes to the organisational structure will provide more opportunity for Areas to manage and match their resources to their needs in order to allow more efficient and flexible delivery of CPS business.

7. The CPS also has a small Headquarters function and two specialist casework groups—Central Fraud Group and Serious Crime Group—who are centrally based and deal with serious organised crime, terrorism, fraud and other specialised and sensitive cases.

8. In 2009–10, the CPS prosecuted 982,731 defendants in the courts in England and Wales. 110,146 defendants were prosecuted in the magistrates’ courts. In addition we dealt with 14,270 appeals and 19,376 committals for sentence in the Crown Court.

The Role of the CPS in Extradition Proceedings

9. The CPS is the authority in England and Wales responsible for the bulk of extradition proceedings. It acts on behalf of foreign judicial authorities in proceedings under Part 1 of the Extradition Act 2003 (‘the 2003 Act’) and for foreign states under Part 2; it issues the majority of European Arrest Warrants (EAWs) under Part 3 and is predominantly responsible for drafting extradition requests to states outside the EAW scheme.

10. The authority of the CPS to conduct extradition proceedings on behalf of foreign authorities is by virtue of section 3 of the Prosecution of Offences Act 1985 and section 190 of the 2003 Act. There is a fundamental distinction to be drawn between extradition proceedings and the normal criminal prosecution work undertaken by the CPS. Extradition is expressly not concerned with establishing innocence or guilt of defendants through the presentation and testing of evidence in a criminal prosecution. Extradition is concerned with the surrender of defendants to face trial, to be sentenced or to serve sentences of imprisonment in another jurisdiction. Whether the courts here accede to extradition requests is not determined in a criminal trial process, but by strict criteria set out in whatever instrument governs any particular request from a requesting judicial authority or foreign state.

11. In this way, the CPS has a markedly different function when conducting extradition proceedings. In short, it does not act as ‘prosecutor’ as the term is generally understood. The view clearly expressed in the case of ex parte Thom, R (Lotfi Raissi) v Secretary of State is that the CPS acts on behalf of requesting states in a solicitor-client model.

12. The Special Crime Division (SCD), which forms part of the Serious Crime Group, includes an Extradition Unit that is responsible for dealing with all requests made to the UK (‘export cases’) and handles requests made by the

163 Written Evidence submitted by Crown Prosecution Service (EXT 17)

CPS for England and Wales (‘import cases’) to non-EU countries. Responsibility for drafting import EAWs is devolved to local CPS Areas. Each of the 13 Groups (or Areas from 1 April 2011) has a Complex Casework Unit (CCU) that is able to offer specialist advice on the drafting of EAWs to CPS lawyers when required. In addition, the CPS’ International Division produces detailed legal guidance and provides a helpdesk facility to handle enquiries on mutual legal assistance and extradition from CPS lawyers.

Volume of EAW Requests

13. According to CPS records, in 2010 the CPS’ Extradition Unit handled 1447 extradition requests (under Part 1 of the 2003 Act) from foreign judicial authorities. However, there is a difference of course between the number of requests made and the number of persons extradited from the UK. In 2009/10, the UK extradited 699 persons under Part 1 of the 2003 Act.

14. In 2010 our main extradition partners for EAW requests were Poland, Lithuania and the Czech Republic. In particular, there were a large number of surrenders to Poland as their prosecutors operate under an obligation to prosecute principle.

The relationship between the CPS and the Serious and Organised Crime Agency (SOCA) Fugitive Unit

15. The CPS works closely with a number of agencies within the criminal justice system in order that cases are effectively processed through the courts. The 2003 Act created two central authorities for the receipt of extradition requests to the UK; in respect of cases under Part 1 the organisation is the Fugitives’ Unit in the Serious Organised Crime Agency (SOCA); and in respect of Part 2 cases, the Judicial Co-operation Unit of the Home Office. The Council Framework Decision of 13 June 2002 on the EAW said the role of central authorities in the execution of a EAW must be limited to practical and administrative assistance.

16. SOCA as the designated authority may issue a certificate under section 2 of the 2003 Act if it receives the Part 1 warrant from an authority that has the function of issuing such warrants. It is for SOCA to process the warrants it receives. Once that warrant is certified the requested person can be arrested. The timing of arrests is an operational matter for the police. The CPS will only become involved in the proceeding when the person has been arrested and placed before the court. Even in cases where the CPS gives advice as to what matters need to be included in the warrant, it remains the decision of SOCA as to whether that warrant should be certified. The fact that the warrant is certified just means that the central authority has recognised that the authority that has issued it is recognised as having that function within the category 1 territory. It does not mean in itself that the warrant is valid, by which the Act means that it contains the statement and information set out in section 2 of the 2003 Act.

164 Written Evidence submitted by Crown Prosecution Service (EXT 17)

17. The Framework Decision envisages that the central authority can be made responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating to it. If issues are raised in the extradition proceedings, where further information is required from the issuing judicial authority, those requests will be transmitted via SOCA and the responses will come back the same route. This mirrors the process under Part 2 of the 2003 Act where requests for additional information are transmitted though the diplomatic channels via the Judicial Co-operation Unit of the Home Office.

18. Under the 2003 Act, SOCA is responsible for arranging the extradition of the person once the decision has become final. This is an operational decision for SOCA and the police. If the person is not removed within the relevant time, SOCA will notify the CPS in order that a later date can be fixed for the removal. SOCA will provide a statement that can be used in court to explain why the person has not been removed.

19. The transmission of EAWs, the timing of the certification, and operational decisions on removal are all matters for SOCA. If once a person is extradited, a request for consent to other offences being dealt with, the 2003 Act states under section 54 that the consent hearing must begin within 21 days of SOCA receiving the request for consent. As the Judge must serve notice on the person that he has received the request for consent, the court will send its transmission through SOCA.

The Process for Issuing Extradition Requests

20. The basis for all requests for extradition is: a person is either wanted for the purpose of arrest for the purpose of being prosecuted for the offence; or the person has already been convicted of the offence and the request is made for the purpose of being sentenced for the offence or of serving a sentence of imprisonment that has already been imposed by a court.

21. The Code for Crown Prosecutors explains how charging decisions are made. It explains that no matter how serious the offence, a prosecution will only follow if the Full Code Test is met: namely that there is sufficient evidence for a realistic prospect of conviction; and it is in the public interest. The CPS applies the Full Code Test when deciding if an extradition request for a person should be prepared and submitted for a person who has yet to be charged with the offence. In other cases the person may have already been charged and has absconded after that date, or has been convicted of the offence. By applying the Full Code Test, the CPS can mount the prosecution as soon as the person is extradited.

22. In relation to the preparation of Part 3 warrants, the European Judicial Network published the template to be completed in all cases and each box tells the prosecutor what information is required. Section 142 of the 2003 Act also requires the warrant to confirm whether the conduct constituting the

165 Written Evidence submitted by Crown Prosecution Service (EXT 17) extradition offence specified in the warrant falls within the European framework list, whether the offence is extra-territorial, and the maximum penalties that may be imposed on conviction of the offence or what sentence has been imposed if already convicted. The application is made before a Judge, who if satisfied that all the required information is contained in the warrant, will issue the warrant in question. The warrant, and any accompanying information, is transmitted to the designated competent authority of the requested state by SOCA.

23. For Part 2 cases, the preparation of the request to be submitted through the Home Office is dependent on the scheme that applies. For example, information may be required for various schemes albeit in different formats. For cases under the European Convention on Extradition, a Statement of Facts and Law will be provided; for Australia a Statement of Acts and Omissions; and for Canada a Record of Case. For countries where evidence is required as a result of the treaty it may contain a prima facie bundle that is sworn before magistrates.

24. Once the requests are submitted, the CPS has no further role to play save for responding to any requests for information on behalf of the executing authority. The presentation of the cases is handled by the executing authorities on our behalf.

Transmission of EAWs by Interpol, the European Judicial Network (EJN) and the Schengen Information System

25. The CPS plays no role in the transmission of EAWs. Once a CPS prosecutor has had the warrant signed by the judicial authority (a magistrate, district judge or Crown Court judge), the prosecutor sends the signed warrant to SOCA’s Fugitives’ Unit. They oversee the translation of the warrant (as necessary) and its transmission to other Member States.

Time Limits for Processing EAW Requests

26. Any time limits set out in the Framework Decision on the EAW or the Extradition Act 2003 in relation to the processing of EAW requests apply to the police, SOCA and the courts, but not the CPS.

Information Provided to those Undergoing Extradition Proceedings

27. It is for the police to execute the EAW in Part 1 of the Act. As part of the arrest procedure, the 2003 Act requires the officer to serve a copy of the warrant as soon as practicable after the arrest. If that is not complied with, the requested person can apply to the Judge to be discharged and the Judge may order that discharge depending on the reasons given for the non- service. The requested person is also served with a copy of the officers arrest statement and he is entitled to the custody record under the Police & Criminal Evidence Act 1984 (PACE). Where a person has been provisionally arrested, the officer must serve a copy of the arrest warrant as soon as practicable after arrest. 166 Written Evidence submitted by Crown Prosecution Service (EXT 17)

28. In cases falling under Part 2 of the Act, the officer will serve a copy of the arrest warrant as soon as practicable. At the time of the Extradition Hearing, the requested person will have been served with the section 70 certificate issued by the Secretary of States, any relevant Orders in Council, and a copy of the Extradition Request. He can also obtain the custody records under PACE.

29. As much information is made available to the requested person in order that the issue of consent can be addressed at the initial hearing.

Discretion of CPS in Executing Extradition Cases

30. The CPS only becomes engaged in extradition cases after the request has been executed, i.e. the subject of the request has been arrested pursuant to an extradition request from another jurisdiction. We play no part in the execution of the request so do not have any discretion or influence.

Withdrawal of Extradition Requests.

31. The CPS does not have the power to discontinue extradition proceedings. A warrant can be withdrawn only by the issuing judicial authority and the procedure for that is set down in sections 41-43 of the 2003 Act in relation to Part 1 cases; and sections 122-124 in respect of Part 2 cases. An explanation will normally accompany the withdrawal.

32. There has been a trend where requested persons instruct lawyers or any remaining family members in the issuing territory to make applications for the warrant to be withdrawn. Warrants have also been withdrawn when information has been relayed that the person is physically or mentally unfit, where mistaken identity has been realised, or where the nature of the evidence has altered. It should be remembered that some requested persons are linked with co-accused whose trials continue in the issuing territory while extradition proceedings are running. An acquittal of a co-accused would in all probability lead to the withdrawal of the warrant unless the facts or evidence could be distinguished in any way.

Additional briefing

33. The CPS is happy to provide the members of the Committee with additional briefing on any aspects of its work if its helps the Committee’s consideration and its future work.

February 2011

167 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)

168 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)

169 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)

170 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A)

171 Letter submitted to the Committee Chair by David Bermingham (EXT 19)

Letter submitted to the Committee Chair by David Bermingham (EXT 19)

I understand that the Committee will be taking oral evidence from Keir Starmer QC, Head of the Crown Prosecution Service, on 29 March. I would be most grateful if the Committee would address an issue with respect to the role of the CPS in extradition which has always troubled me.

My understanding of the current situation is that in matters of extradition, the CPS acts as agent of a foreign Government in bringing the extradition proceedings through the UK courts. On the face of it, of course, this potentially presents an absolute conflict of interest given that the CPS might also be in the course of determining whether to bring a case against the individual in the UK.

Such potential conflicts notwithstanding, a question arises as to the extent to which the CPS, a body paid for entirely by the taxpayers of the United Kingdom, should fall over itself to do the bidding of a foreign Government, at the expense of the rights of British citizens.

To illustrate this point, I attach hereto a letter dated 21 July 2006, from Paul Close of the CPS to the US Department of Justice in relation to the Bail hearing for the Natwest Three which was due to take place in Houston, Texas, on that same day. By way of background, the UK Prime Minister and Attorney General had consistently told the press in the weeks prior to the extradition of the Natwest Three that inquiries were being made as to whether the men (including myself) could be allowed to return to the UK on bail pending trial. Indeed, the UK Home Office had provided a letter indicating that measures such as periodic reporting to a police station, the removal of passports, or even electronic tagging were all in principle possible.

In the attached letter, of which we had no notice and which was served on our attornies in the courtroom as the bail hearing was due to begin, Mr Close indicated that it would be ‘imprudent in the extreme’ for a US court to allow us to return to the UK on bail. His argument, that we might try to start extradition proceedings all over again, was utterly illogical, given that (as he said in his letter) we would be locked up in the UK if we did so, and would then certainly be locked up again on arrival back in the US. Nor had we ever shown the slightest inclination to flee, having been on bail in the UK for over 2 years prior to our extradition, and having reported on time to Croydon police station to be extradited.

172 Letter submitted to the Committee Chair by David Bermingham (EXT 19)

An independent observer might be entitled to think that Mr Close had strayed well beyond the bounds of impartiality in his remarks. Needless to say, the US judge took little persuading on the issue, and we were required to stay in Houston, a factor which would have a heavy bearing on our decision to enter into a plea bargain some 18 months later.

I wonder whether Mr Starmer may care to comment on whether such assistance to foreign Governments by his department is routine, and if so, whether this is deemed appropriate. I know that ours was not an isolated case, however, as the CPS wrote an all but identical letter just a couple of months later in the case of Mr Jeremy Crook, who had been extradited to St Louis. Personally, I find this behaviour by agents of the Crown deeply troubling.

25 March 2011

Annex: Letter from Paul Close, Special Crime Division, Crown Prosecution Service, to the US Department of Justice, 21 July 2006

I have considered the bail issues raised by you in this matter. My response is as a CPS lawyer acting for the US in the extradition proceedings. The CPS is independent of other government departments. It cannot speak for HMG.

I believe it would be imprudent, in the extreme, if such bail was granted to the above which enabled them lawfully to return to the UK pending trial.

Any undertakings given by them (or on their behalf) or any bail conditions imposed would be worthless for enforcement purposes in the UK if there was any breach.

The UK courts would have no power to intervene in or to enforce any US order or the defendants’ undertakings. The Crown (in its widest sense) would similarly have no power to intervene.

If the defendants returned to the UK pending trial but then refused (for whatever reason) to return voluntarily to the US then the only remedy available to the US would be to seek extradition again. This would be a de novo application with the spectre of all the old legal arguments and issues (together no doubt with new ones) and the consequent very lengthy delay. The only relevance of any breaches of undertakings or US court bail would be that the defendants’ chances of bail in the UK, pending extradition, would be very remote.

173 Letter submitted to the Committee Chair by David Bermingham (EXT 19)

There is no relevant UK law as such to assist you. The Extradition Act 2003 is silent and the Bail Act 1976 (as amended) would not apply as there are no current English court proceedings. The powers of the English courts ceased once the defendants were extradited. There are no residual judicial or executive powers.

Any offer by the defendants to report regularly to the English courts or to the police would be pointless and meaningless. I can find no example of a case where a person who has been extradited has been allowed to come back to the UK pending a foreign trial to which they would return voluntarily.

The general legal principles to which I have referred would apply in all extradition proceedings and the nature of the request or the country making it are irrelevant.

I confirm that a defendant can only consent to extradition by appearing before a UK court following the making of an extradition request (full or provisional). Return would only follow the making of a court order. Earlier consent/waiver (particularly if given outside the jurisdiction and not during the currency of UK court proceedings) would be otiose and relevant only to possible issues of UK bail. Such a waiver could always be withdrawn and would not preclude new lengthy UK court proceedings.

174 Written Evidence submitted by JUSTICE (EXT 20)

Written Evidence submitted by JUSTICE (EXT 20)

Thank you for your letter of 1 March asking JUSTICE to provide further evidence for the Committee relating to extradition, following JUSTICE’s oral evidence of 1 February 2011.

Your letter raised three questions and we answer each in turn below.

Should judicial authorities be more proactive when considering a request for surrender from an issuing state with a poor human rights record evidenced by recent case law of the European Court of Human Rights?

We believe that courts in the UK should have careful regard to country conditions when considering a request for surrender. In the recent case of M.S.S. v Belgium and Greece (no 30696/09, judgment of 21 January 2011), the Grand Chamber of the European Court of Human Rights re-stated that the responsibility of a state under Article 3 European Convention on Human Rights (prohibition of torture and inhuman or degrading treatment or punishment) may be engaged where substantial grounds have been shown for believing that a person faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. That case concerned the expulsion of an asylum seeker but the same principle applies to extradition or surrender. Notably, the application of the EU Dublin Regulation on asylum did not absolve the expelling state in that case (Belgium) from its obligations under Article 3; the Court cited the case of T.I. v. the United Kingdom (dec. no. 43844/98, ECHR 2000-III) in which the Court said that where States cooperated in an area where there might be implications as to the protection of fundamental rights, it would be incompatible with the purpose and object of the Convention if they were absolved of all responsibility vis-à-vis the Convention in the area concerned.

In relation to the situation where the receiving country is a signature to international treaties guaranteeing respect for fundamental rights, the Court said (at para 353):

The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the 175 Written Evidence submitted by JUSTICE (EXT 20)

authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008- ...).

The Court also said that the applicant should not ‘bear the entire burden of proof’ regarding the risk of ill-treatment in the receiving country and found violations of Article 3 by Belgium due to the fact that conditions in Greece were publicly known; the Court pointed to the existence of reports by organisations including the European Committee for the Prevention of Torture and Human Rights Watch.

We believe, therefore, that UK courts should place more weight on reports from reputable organisations such as the Committee for the Prevention of Torture and that they should not require evidence (often impossible to obtain) that, in a state where conditions frequently breach Article 3, that the person will be sent to a facility where conditions are similarly poor. The burden should rest with the state requesting surrender to show that there is no real risk that the person will be subject to those conditions. Similar principles should apply to other ECHR rights, for example, fair trial standards.

Would harmonised definitions of the criminal offences to which the European Arrest Warrant applies help protect the human rights of those subject to extradition proceedings?

We regard large-scale harmonisation of criminal law across the European Union as highly unrealistic due to the massive negotiation and codification exercise which would be required. Further, agreement would be very difficult to achieve across the member states in some areas. We believe that the categories of offence exempted from the dual criminality requirement by the European Arrest Warrant Framework Decision (FD) are very broad and that they would benefit from more precise categorisation in some areas. However, there is little prospect of the FD being renegotiated for some years.

In any event, the FD does not exempt the UK from its obligations under the ECHR and therefore surrender should be refused where, for example, a person faces trial for a speech offence in the receiving country and their conviction would be in breach of Article 10 ECHR. In addition, harmonisation would not assist in protecting procedural rights nor those associated with conditions of detention. We therefore believe that harmonisation is not a viable mechanism for the protection of the human rights of those subject to extradition proceedings.

176 Written Evidence submitted by JUSTICE (EXT 20)

Have you any concerns over possible human rights implications of persons subject to immigration control also becoming subject to extradition proceedings?

Immigration powers of deportation and removal should not be used in order to circumvent the procedural guarantees available in extradition proceedings. While the UK’s human rights obligations in relation to conditions in receiving states are the same in immigration cases and extradition cases, there has been a progressive erosion of appeal rights in immigration removal cases meaning that human rights arguments may not receive the same level of scrutiny as in an extradition case.

I hope that this supplementary evidence is of assistance; please do not hesitate to contact me if we can assist further.

22 March 2011

177 Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21)

Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21) I understand that your Joint Committee on Human Rights will be taking evidence from Keir Starmer QC tomorrow on the topic of extradition. I should be grateful if you would treat this email as formal evidence for the benefit your Committee.

The DPP will not be able to comment on live cases because of the sub judice rule, but he can comment on the role of the CPS in general terms; indeed he did so on the Today programme on December 16th 2010 when he stated that the CPS would be acting as the agent of Sweden in the Assange proceedings. It was on that issue that I then had a letter published in the Times on December 18th 2010, and a more considered and lengthier piece was published in the Times Law pages on 6 January 2011, a copy of which is below. Despite the importance of the topic, there has been no response from the CPS. I understand that the DPP takes the view that the CPS acts in extradition cases as agent for the foreign state, with no independent responsibility to decide whether the extradition request is meritorious.

My view is that the CPS is not the agent of another country in conducting extradition proceedings. Its authority derives from statute, not the doctrine of agency. Its responsibility is to reach an independent view as to whether to proceed with the case, and if so, as to how to conduct it—in the same way that it does in domestic proceedings. My reasons are set out in my Times article. The reason that it is important is illustrated by the Ganic case, to which I also refer, and in which we acted for Dr Ganic. On the first day of those proceedings, the CPS conceded that there was a prima facie case that the proceedings were an abuse of the process of our courts. Nonetheless they continued with them. Had it not been for the independence of our courts and the support of many experts called in Dr Ganic’s defence he would have been extradited. It is not difficult to guess what his fate would have been.

This matters, ironically, because the CPS has proved its worth over the past 25 years as an independent body: weeding out weak cases, preventing miscarriages of justice, and ensuring for the most part that the courts only hear cases where there is a case to answer.

In extradition cases, the CPS view that it has no independent role means that it will present cases on behalf of foreign states even if, in its judgement, our courts will, and ought to, decline to order extradition; for instance, because the individual involved will not receive a fair trial on account of his race or 178 Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21) religion. It seems to me to be wrong that the CPS has allowed itself to get into the position that it will present unmeritorious cases before our courts on behalf of other counties and acting on their instructions. Just as a court can stop an extradition case, the CPS has the right to concede it. Alternatively, it can give the requesting state the option of instructing a private firm of solicitors on its behalf in place of the CPS.

The government is undertaking a review of extradition. Members might like to ask Mr Starmer whether:

1. He thinks it is right that the CPS does not make its own independent assessment of the merits of an extradition request where it present this on behalf of a foreign state.

2. Does he accept that there are respectable arguments that it is not in fact an agent of the requesting state, on the basis that the CPS has independent statutory responsibility in this area (my views are shared by many in the Extradition Lawyers Association which considered this issue at its recent AGM);

28 March 2011

179 Letter submitted to the Committee Chair by Michael Hann (EXT 22)

Letter submitted to the Committee Chair by Michael Hann (EXT 22)

Right to Privacy

There is one area which is important for many people and religions where the USA prison system is not compatible with the Human Rights.

In the UK and Europe Guards of the same gender are used in shower and toilet areas. Guards of the same gender are usually only allowed to carry out strip searches.

In the USA this is not the case. In many prisons female guards monitor male prisoners in the shower areas. This has been deemed acceptable by the Supreme Court. .

This is not the case for female inmates who are given a much higher level of privacy.

CCTV equipment is also used to monitor strip searches and shower areas in male prisons.

It is offensive that there is a double standard with regards to the treatment of men and women in USA prisons.

A a male as do many American prisoners I would find it very degrading to use the toilet or shower in front of a female guard.

Let alone be on CCTV !

I think there is a privacy issue and a religious issue since too many people exposing oneself to the opposite sex is shameful and degrading.

I appreciate that medical staff can be the opposite gender but in the UK we have a choice of whether a female doctor or male nurse looks after you. Privacy, modesty religious to name just a few. Whether or not to have medical care is your choice.

In the USA the right to privacy is not available to male prisoners in any setting.

I do not believe that the USA jail regulations comply with international standards or the Human rights convention in this respect.

180 Letter submitted to the Committee Chair by Michael Hann (EXT 22)

I do not see how we can extradite people to the USA when there is no right to privacy offered to inmates.

The current situation in the USA jail system is degrading and humiliating to many people.

The same rules apply to male prisoners on remand as well as those sentenced.

I think that there are many other areas where the USA penal system is lacking but privacy for male inmates is not regarded as important in the USA.

31 March 2011

181 Additional Written Evidence submitted by Liberty (EXT 24)

Additional Written Evidence submitted by Liberty (EXT 24)

Introduction

1. In December 2010 the Joint Committee on Human Rights (JCHR) announced an inquiry into the human rights implications of UK extradition policy. Given our long held concerns about the UK’s unfair extradition arrangements, Liberty greatly welcomed the JCHR’s inquiry alongside the Home Office review being undertaken by Sir Scott Baker.229 Liberty provided a written submission to the JCHR in January 2011230 and also gave oral evidence to the Committee. This briefing is in response to the Committee’s request231 for additional information in relation to: a. whether a judge should be more proactive when considering an extradition request to a requesting state with a poor human rights record as evidenced by case law from the European Court of Human Rights (ECtHR);232 b. whether harmonised definitions of criminal offences to which the European Arrest Warrant (EAW) applies would assist in protecting human rights;233 and c. the human rights of persons subject to immigration control who also become subject to extradition proceedings, or vice versa.234

Role of the judiciary and human rights

2. Under the Extradition Act 2003 (EA), before ordering extradition to a Part 1 or Part 2 country a judge must consider whether such an order would be compatible with an individual’s human rights under the Human Rights Act

229 See Liberty’s Response to the Home Office review of extradition, available at http://www.liberty-human-rights.org.uk/pdfs/policy10/liberty-submission-to-home-office- extradition-review-december-2010.pdf. 230 Available at: http://www.liberty-human-rights.org.uk/pdfs/policy11/liberty-submission-to- jchrextradition-inquiry-january-2011.pdf. 231 Letter from the Chair of the JCHR, Dr Hywel Francis MP, dated 1 March 2011. 232 The Chair of the JCHR in his letter of 1st March 2011 asked: “Should judicial authorities be more proactive when considering a request for surrender from an issuing state with a poor human rights record evidenced by recent caselaw of the European Court of Human Rights?” 233 5 The Chair of the JCHR in his letter of 1st March 2011 asked: “Would harmonised definitions of the criminal offences to which the European Arrest Warrant applies help protect the human rights of those subject to extradition proceedings?” 234 The Chair of the JCHR in his letter of 1st March 2011 asked: “The Immigration Law Practitioners’ Association’s submission to the Committee argued that ‘extradition procedures fail to provide protection against breaches of human rights that arise when persons subject to extradition orders are, or become persons subject to, immigration control’. Have you any concerns over possible human rights implications of persons subject to immigration control also becoming subject to extradition proceedings?” 182 Additional Written Evidence submitted by Liberty (EXT 24)

1998.235 A review of extradition case law reveals that the human rights safeguard has stopped extradition in only the most exceptional of circumstances.236 Indeed extradition jurisprudence appears to impose a comparatively higher threshold on human rights assessments than in other cases. In a recent decision in the UK Supreme Court Lord Phillips noted that “only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves”.237 It is without doubt that extradition has an important criminal justice function and solving serious criminal cases is well within the public interest exception. Our concern is that the broader political context of extradition tips the balance in favour of making an order, even where it is evidence that the individual’s human rights will be negatively impacted.

3. With regard to Europe the judicial deployment of the bar to extradition on human rights grounds has remained rare even where there are adverse findings by the ECtHR evidencing a breach of Convention rights by the requesting state, such as the right to a fair trial or the right to be free from inhuman or degrading treatment while in prison. The fact the Framework Decision is based on an assumption of parity of legal systems and a general standard of compliance with the ECHR undoubtedly makes judicial exercise of the human rights bar under the EA difficult. Because of the basis of mutual trust of the Framework Decision, the “starting point is therefore an assumption that the requesting state is able to, and will, fulfil its obligations under the Human Rights Convention”.238 But it has become increasingly clear through ECtHR jurisprudence that there is wide disparity in the treatment of criminal suspects, with the prison conditions and criminal justice processes afforded in various Member States repeatedly falling foul of the Convention. The principle of mutual legal assistance, with the assumption of parity of criminal justice systems which this entails,239 is becoming increasingly unworkable.

4. The way that British judges have framed the question in relation to the EAW is also problematic. Generally a claim that a requesting state will potentially breach an extradited person’s Convention rights has been characterised as a dispute which must be resolved between that State and the extradited individual, not by the UK court undertaking a human rights analysis in consideration of an extradition warrant. As enunciated recently by Mr Justice

235 A judge must consider whether extradition is compliant with the human rights of the person subject to the order under section 21 in relation to Part 1 countries (pursuant to the EAW), and section 87 in Part 2. 236 See para’s 51 to 52 of Liberty’s submission to the JCHR, ibid. 237 Norris v United States of America [2010] UKSC 9, at para 82. 238 Per Lord Justice Toulson in Targosinski v Poland [2011] EWHC 312 (Admin), at para 5. 239 For example, in the Preamble to the Mutual Legal Assistance Convention adopted in 2000 the signatory states express “their confidence in the structure and functions of their legal systems and in the ability of all Member States to guarantee a fair trial”. 183 Additional Written Evidence submitted by Liberty (EXT 24)

Mitting, “complaints about possible breaches of Convention rights are a matter between the individual and the requesting state” where that state is a signatory to the Convention, unless there are exceptional circumstances, such as the “overthrow of the constitutional order of a state” or clear evidence that the right to reply for relief to the courts of the requesting state or the ECtHR is illusory, which will justify the refusal or quashing of an extradition order under the 2003 Act.240 Liberty respectfully disagrees with this approach taken by the courts. Given it is the UK Government which is seeking to extradite a person to another Member State, it must be the UK Government which is satisfied that the rights of the person extradited to a Member State—or indeed, any other country under Part 2 of the EA—will not be breached. To state otherwise is to deftly sidestep our obligations under the Convention. We believe that section 21 of the EA mandates any risk to an extradited person’s human rights, whether in the issuing or requesting state, be resolved in a UK court. This is made clear by section 21 of the EA which expressly requires a judge “to decide whether the person’s extradition would be compatible with the Convention rights”. We are also concerned about any tendency for a judge to assume that an adverse judgment from the ECtHR will have been rectified by the Member State in question. Some Member States have appalling records on implementation and the Committee will be well aware of a recent example of non/delayed compliance closer to home in respect of the Hirst decision.241

5. Ultimately we believe that the human rights proportionality assessment must be based solely on the individual set of facts before the UK court, and where there is a risk an individual’s human rights will be breached as a consequence of the extradition then an extradition order ought not be made. However we also recognise that because of the political and diplomatic nature of extradition and the fact that all other members of the Council of Europe are supposed to be bound by the Human Rights Convention, this human rights assessment can be difficult. This difficulty is further exacerbated by the structure of the EA which heavily circumscribes the role of an extradition judge in the first place. As well as minimising judicial discretion and removing a number of safeguards, such as the requirement to present a prima facie case before extradition can be granted, the EA imposes a presumption of fast-track extradition on the courts on the basis of parity of legal systems across all EU states. This inevitably makes judicial protection under the human rights safeguard more difficult. Judges should always undertake a robust human rights assessment, but the practical reality of doing so in an extradition context must be kept in mind.

240 Palczynski v District Court in Zamosc (a Polish Judicial Authority) [2011] EWHC 445 (Admin), at para 10, see also para 7, 8; following Lord Justice Toulson in Targosinski v Poland, ibid. 241 Hirst v UK (No. 2) (application no. 74025/01, 6 October 2005) 184 Additional Written Evidence submitted by Liberty (EXT 24)

Harmonised definitions of criminal offences for the EAW

6. While we are unclear exactly what is meant by the phrase ‘harmonised’, we assume the Committee Chair is referring to the significant problem which arises from the breadth of extraditable offence categories under the EAW.242 Liberty would support greater certainty in relation to the offences for which a person could be extradited. Indeed we would go further, and require the re- instigation of the dual criminality safeguard which would prevent any extradition where the alleged conduct is not a criminal offence in the UK.243

7. Achieving perfect parity, or ‘harmonisation’, of definitions of extraditable offences across all Member States could involve re-negotiation of the Schedule to the Framework Decision such that each State agrees on those offences for which they will entertain extradition requests. This would inevitably be a long process, given the likely number of criminal offences in each jurisdiction. An alternative approach may be to allow the categories to remain as they are but the EA could be amended to ensure that the UK, as an executing state, would reserve the right whether or not to recognise an extradition warrant on the basis that a warrant will only be issued both where there is a clear offence for which the person is being charged, and that this conduct would also constitute an offence under British law. This would require the requesting state to provide sufficient detail in the description of the alleged offence so that a direct comparison could be made of all the elements. This approach would be preferable, and certainly more practicable, and would ensure any decision about whether parity exists remains within the realm of domestic courts.

Persons subject to immigration control

8. Liberty shares concerns raised in evidence to the Committee by the Immigration Law Practitioners’ Association (ILPA)244 that individuals are being extradited from the UK while they are subjected to immigration control. ILPA has provided evidence to the Committee, drawing on the practical experience of their members, which shows the particular problem which arises from the interaction of extradition and immigration law. The Association outlines practical examples of how individuals have been extradited, had their refugee status revoked or indefinite leave to remain cancelled whilst out of the country, and then found themselves unable to return to appeal against the decision. This could also mean the possibility of being separated from family members who may have remained in the UK. Frequently in ILPA’s experience the basis for the revocation or cancellation is the alleged

242 Set out at Article 2.2 of the Framework Decision and section 215 and Schedule 2 of the EA. 243 See our primary submission to the JCHR, ibid, from para 32. 244 Available at http://www.parliament.uk/documents/joint-committees/human- rights/JCHR_EXT_Written_Evidence_8.pdf. 185 Additional Written Evidence submitted by Liberty (EXT 24) conduct in an extradition warrant. In such circumstances Liberty is extremely concerned not only at the possibility of unfair extradition (due to the widely recognised problems with the current arrangements) but also that our obligations under the Refugee Convention may be effectively bypassed where a person’s status as a recognised refugee or refugee claimant is reversed while they are out of the country. One can think of very few examples where an individual’s vulnerability is more prescient.

9. Again we find the legal root of the problem in the text of the EA. Under the Act an individual who has made an asylum claim cannot be extradited until their claim has been finally determined, unless the Secretary of State is satisfied either that (a) under a standing arrangement the requesting state will take on responsibility for determining the asylum claim and the individual is not a national or citizen of the requesting state, or (b) the individual is not a national or citizen of the requesting state and would not be threatened on the basis of one of the protected Refugee Convention grounds of race, religion, nationality, political or opinion or membership of a particular social group, and that the requesting state will abide by their Convention obligations. This statutory loophole effectively allows the UK government to defer its determination of a refugee claim under the Refugee Convention, and it appears that in practice, as evident in the ILPA submission, that it is a provision of the Act not infrequently used.

10. The situation raises a number of human rights concerns. Asylum seekers and their families are extremely vulnerable and the UK has an obligation to offer protection under the Refugee Convention, and to ensure that particular standards of due process are maintained in making that determination. Referring a decision on a refugee claim to another country in no way guarantees that the individual will receive the same treatment as they would within the UK judicial system. The practice of using this exception in the EA, particularly given the flaws we know to exist in our extradition arrangements, is deplorable. We would recommend that this loophole be closed such that before a person is extradited their claim for asylum is duly processed. We understand that this may cause delay - however the answer to that concern is to provide expeditious adjudication of an asylum claim, with all requisite due process requirements, rather than riding roughshod over the human rights of a vulnerable individual who risks facing further unjustified trauma.

April 2011

186 Additional Written Evidence submitted by Fair Trials International (EXT 25)

Additional Written Evidence submitted by Fair Trials International (EXT 25) Introduction

1. Fair Trials International (“FTI”) provided written evidence to the Committee in a submission dated 21 January 2011 and gave oral evidence to the Committee on 1 February 2011. We now provide further written information, pursuant to the Chair‟s request of 1 March, on the question:

“Should judicial authorities be more proactive when considering a request for surrender from an issuing state with a poor human rights record evidenced by recent case law of the European Court of Human Rights?”

2. We do not offer further written evidence on the other two questions in the Chair‟s letter of 1 March (dealing with the potential harmonisation of criminal offence definitions and persons subject to immigration control). These are not areas on which our own casework has yet caused us to focus.

3. When dealing with the third question we will, as in our original submission, focus largely on what we consider to be the key issue in connection with the impact of extradition on fundamental rights: that is, insufficient rights protection in the European Arrest Warrant (EAW) system, in national implementing legislation (the Extradition Act 2003), in its interpretation by the courts, and in the European Framework Decision on the EAW (Framework Decision).

Role of judicial authorities in executing states: duty to safeguard rights?

4. The question posed as to whether courts should be more proactive when deciding whether to extradite individuals to countries with poor rights records implies a proposition borne out by recent authorities and cases we have dealt with at Fair Trials International: courts are often not proactive enough when alerted to a potential risk of rights infringement.

5. The Framework Decision itself contains no rights-based refusal ground, although the preamble in the Framework Decision states that it “respects fundamental rights” (paragraph 12) and prohibits extradition to a State “where there is a serious risk that [the person] would be subjected to…inhuman or degrading treatment or punishment” (paragraph 13).

6. The United Kingdom‟s implementing legislation, in common with that of many other Member States, includes an express human rights bar to surrender, where it would be incompatible with a requested person‟s rights

187 Additional Written Evidence submitted by Fair Trials International (EXT 25) under the European Convention on Human Rights (ECHR) as defined in the Human Rights Act 1998.245

7. Yet judges here and in many other jurisdictions have shown a marked unwillingness to refuse extradition on fundamental rights grounds, even where detailed and recent evidence has been adduced as to the risk of infringement if extradition takes place. Such challenges typically fail on one of the following grounds:

(i) the evidential burden of showing that a “real risk” of rights infringement has not been met with enough cogency or speficity to satisfy the judge that the requested individual risks a rights infringement. For example, although prison conditions are accepted as generally extremely poor in the requesting State, it is not known which prison the person will be held in, so it is not clear he or she will be held in such conditions;

(ii) failure to meet the higher test imposed for requested persons who fear a breach of fair trial rights under Article 6. They must satisfy the court that they have suffered, or risk suffering, a “flagrant denial” of a fair trial (per the European Court of Human Rights (ECtHR) in Soering246); or

(iii) courts executing extradition requests refuse to enquire into potential rights infringements in an issuing state that is an ECHR contracting party, particularly an EU Member State, unless the constitutional order of that State has been overthrown. This is because the remedy lies in the issuing State in respect of any infringement of rights after extradition.247

8. The risk of rights infringements in extradition cases is most frequently raised in two areas where several Member States have poor records of ECHR compliance. These are Article 3 (usually focusing on the detention conditions in which people anticipate they will be held, either on remand or post- sentence); and Article 6 (dealing either with allegedly unfair investigation or trial procedures that have occurred in the case before the extradition request, or with the requesting State‟s ability to ensure a fair trial after extradition). We will deal with each in turn, focusing on the three barriers to successful human rights-based challenges outlined above.

Prison conditions and Article 3 ECHR challenges

9. A person who faces extradition to a country with a poor rights record will very rarely be in a position to adduce evidence prior to extradition about the

245 Section 21 Extradition Act 2003 246 Soering v United Kingdom [11 EHRR 439] 247 This test was applied, for example, Arvdas Klimas v. Prosecutors General Office of Lithuania [2010] EWHC 2076, July 2010 188 Additional Written Evidence submitted by Fair Trials International (EXT 25) precise conditions in which the country will detain him or her on remand or after any sentence is passed. In our evidence to the Committee, we referred to the decision in the case of Klimas. In this case, the requested person argued that his extradition to Lithuania would put the UK in breach of its obligations under Article 3 because of prison conditions in Lithuania. He relied on a US Department of State report on Lithuania dated 11 March 2010, which referred to:

• physical mistreatment by staff consisting of punches, baton blows and blows with books, inflicted by drunken prison officers;

• overcrowding of cells to "an outrageous degree," with six prisoners in a cell measuring 8 square metres;

• filthy cells in a poor state of repair, with little or no access to natural light, and poor ventilation.

10. In 2008, the ECtHR had itself held Lithuania in breach of Article 3 ECHR in respect of two prisons. In 2009, the Lithuanian parliamentary ombudsman had received 267 prisoner complaints, dealing with:

• poor prison conditions;

• mistreatment by prison department personnel;

• restrictions on prisoners's rights, such as by censoring their correspondence or failing to allow family visitors;

• inadequate medical services; and

• poor working conditions.

11. All this information was placed before the court. Nevertheless, it held that only in “wholly extraordinary circumstances” such as “a military coup or violent revolution” would a court in an executing State need to look at prison conditions as a ground to refuse extradition.

Andrew Symeou

12. Our client, Andrew Symeou,248 tried and failed to resist extradition to Greece on Article 3 grounds. After extradition, Andrew spent a harrowing 11 months on remand in custody in Greece: his trial commenced recently but has been adjourned twice due to unavailability of qualified interpreters and court strikes. He has described to his parents the conditions he was held in: a university student with no previous criminal record who still lived with his parents, he spent his 21st birthday in a notoriously dangerous prison,

248 4 Please see case summary in our 21 January submission, page 13 189 Additional Written Evidence submitted by Fair Trials International (EXT 25)

Korydallos. His father Frank described some of the conditions in his oral evidence to the Committee on 1 February. The conditions included:

• filthy and overcrowded cells

• sharing cells with up to 5 others including prisoners convicted of rape and murder

• violence among prisoners: one was beaten to death over a drug debt

• violent rioting

• cockroaches in cell, fleas in bedding, prison infested with rats and mice

• shower room floor covered in excrement.

13. This description conforms with information contained in the numerous expert reports placed before the court in Andrew‟s Article 3 challenge to extradition. The Committee for the Prevention of Torture (CPT) had reported the previous year that “persons deprived of their liberty in Greece run a real risk of being ill-treated”. Amnesty International and other human rights NGOs had similarly criticized Greece‟s prisons in the harshest terms.

14. This evidence was held insufficient as a bar to extradition, because Andrew could not prove that any of this would happen to him: and because in any case mistreatment was sometimes part of the European detention culture:

“[t]here is no sound evidence that the Appellant is at a real risk of being subjected to treatment which would breach article 3 ECHR, even if there is evidence that some police do sometimes inflict such treatment on those in detention. Regrettably, that is a sometime feature of police behaviour in all EU countries.”249

15. In hindsight, it is difficult to know what more Andrew Symeou could have done to bring the risk he faced to the court‟s attention and invoke his Article 3 rights before his extradition. He had never been to Greece before he went there as a student on his first holiday without his parents. He had not even been arrested or questioned by police in Zante and had no first-hand experience of Greek police procedures, remand facilities or prison conditions, before his extradition. It is the same for the majority of people extradited under the EAW system.

249 Symeou v Public Prosecutor s Office at Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin) at para 65 190 Additional Written Evidence submitted by Fair Trials International (EXT 25)

16. Information about the conditions Andrew was held in on remand was set out in detail in affidavit evidence from a solicitor who had visited him, as well as from Fair Trials International‟s caseworker, in support of another recent challenge on Article 3 grounds. Again, it was held that the test was not met and extradition was ordered.250

Fair trial protections: risk of Article 6 infringements

17. Andrew Symeou also failed to resist extradition on Article 6 grounds, unable to meet the almost impossible test necessary to do so. It was held by the High Court that, as an ECHR signatory, Greece could be assumed to follow fair trial procedures, including to apply appropriate scrutiny at trial to evidence that was obtained from witnesses who were brutally pressurized (with physical violence, and food and drink deprivation) into signing statements they later retracted. As Andrew‟s trial is currently in process, it is not possible to know whether this was a safe assumption.

18. In another recent case, Janovic,251 it was held that membership of the EU made it virtually impossible to resist extradition to a Member State on Article 6 grounds. (A separate challenge under Article 3 grounds also failed, despite the Court accepting that compelling evidence was given by a professor the court recognized as a leader in his field and that this evidence was both current and sufficiently specific. An ECtHR ruling was cited to the court which had found that conditions in the same remand centre that the appellant would be sent to breached Article 3.252

19. In an EU in which many Member States have been found by recent research studies and ECtHR rulings not to comply with basic fair trial standards under Article 6, it is difficult to justify either the assumption of general compliance referred to in the Symeou and Janovic cases, or the higher test of “flagrant” or “total” denial of fair trial still followed in Article 6 infringement decisions. While courts must, of course, respect the fact that different countries protect the right to a fair trial in different ways, this does not justify lowering the standard for extradition cases, as the “flagrant denial” test effectively does.

20. It is also unclear to us why a more stringent test needs to be adopted for Article 6 than for Article 3: both these rights are absolute (they do not, unlike Article 8, require to be balanced against the interests of national security and crime prevention) and non-derogable: all ECHR contracting states are required to ensure they provide practical, effective protection for these rights.

250 Herdman and ors v City of Westminster Magistrates Court [2010] EWHC 1533 (Admin) 251 Janovic v Prosecutor General’s Office, Lithuania [2011] EWHC 710 (Admin) para 25ff 252 Savenkovas v Lithuania [2008] ECHR 871/02 191 Additional Written Evidence submitted by Fair Trials International (EXT 25)

Article 1 of the ECHR states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in…this Convention”. The mere theoretical availability of a legal remedy in the issuing state should not absolve the executing state of the duty to conduct a proper legal review of the risk of infringement raised by the requested extradition and to provide the protection necessary to safeguard those rights, including where necessary by refusing to extradite.

Edmond Arapi

21. The decision to extradite Edmond Arapi253 from the UK to Italy last year is a good example of the danger of placing complete confidence in the fair trial safeguards of requesting countries, merely on the basis that they are legally bound to comply with Article 6 ECHR.

22. Edmond, who narrowly avoided extradition following an intense media campaign, had been tried and convicted in his absence and without his knowledge, of killing a man in Genoa, Italy in October 2004. He had been given a sentence of 19 years, later reduced to 16 years on appeal. Edmond had not even left the UK between the years of 2000 to 2006 and was astonished that he could not, by adducing evidence of this to the English court, avoid the devastating consequences of extradition to Italy. (He is the sole breadwinner for his wife and three children.) He had oral and documentary evidence to adduce to prove that, on the day of the murder, he was at work in Staffordshire.

23. There was a raft of contradictory expert evidence about whether Edmond would be entitled to a full retrial after extradition to Italy, and whether his alibi evidence (and the witnesses he would need to testify about his activities and whereabouts on the day of the murder) would be admitted at any trial. Appeals had been exhausted in Italy (again, without Edmond‟s knowledge— they were attended on his behalf by a public defence lawyer and the conviction had been upheld).

24. It seemed far from clear that Italian law guaranteed a re-trial for defendants tried in absentia, where the conviction had been appealed. It was clear was that Edmond risked being held for years on remand awaiting trial, as Italy has one of the worst records in Europe for delays in the justice system. Nevertheless, having heard conflicting evidence on Italian procedural law, the English court ordered his extradition on 9 April 2010. It was only on the eve of his appeal at the High Court, that the Italian authorities decided to withdraw the EAW, admitting that they had sought Edmond in error.

253 A full case study was provided in our 21 January submission, page 14. 192 Additional Written Evidence submitted by Fair Trials International (EXT 25)

25. The question here is whether, having done all he could in the short time available and with extremely limited financial resources, Edmond Arapi could reasonably have expected the English court to halt the extradition, at least until it was completely satisfied that his right to a fair trial would be upheld. In the circumstances, this would need to have followed rigorous judicial enquiry about the procedural nature of the retrial, leaving the court in no doubt that a full retrial would be provided without delay. No such additional information appears to have been sought by the court, amid competing and confusing expert evidence on the point.

The problem of assurances from issuing states

26. Even when further information or assurance is sought by the court before extradition is ordered, we know from our own experience that requesting states often provide information that merely re-states the law (rather than what occurs in practice, or will occur in a particular case). In addition, requesting states do not always comply with their assurances. This is a serious problem, which risks undermining the necessary trust between extradition partners: all the more so where such heavy reliance is being placed on other states‟ compliance with fundamental rights standards. The issue is amply demonstrated by two cases in which FTI has recently been involved.

Da An Chen

27. Da An Chen, a UK citizen, was arrested in the UK on an extradition warrant from Romania shortly before that country had implemented the EAW Framework Decision. In 1995, Romania had tried Da An Chen for murder and sentenced him to 20 years’ imprisonment. The trial took place in his absence and without his knowledge.

28. Unaware his trial was even taking place, Da An Chen was unable to adduce evidence in his defence. The prosecution did not adduce any forensic evidence at the trial. Romania’s authorities have accepted in the course of the extradition proceedings that he did not deliberately absent himself from the trial.

29. Da An Chen’s lawyer challenged his extradition at the High Court, arguing that extradition would violate his fair trial rights in breach of Article 6. This was argued on the basis that there was a serious risk that, once surrendered, he would not be given a retrial.

193 Additional Written Evidence submitted by Fair Trials International (EXT 25)

30. The High Court held254 that, as Romania was bound by the ECHR, the provisions of its domestic law giving its courts a merely discretionary power to grant a retrial, should be interpreted so as to grant a right to a retrial. This was despite his lawyer confirming, based on expert evidence, that all Romanian law in fact guaranteed was the right to apply for a retrial and most people tried in absentia in Romania did not in fact get a retrial. The High Court was persuaded by assurances given by Romania regarding Da An Chen’s right to a retrial and he was extradited in 2006. The Court held that it was “neither necessary nor right to examine what a requesting state does in practice” if the law clearly provided an entitlement to a retrial.

31. Since his extradition, Da An Chen has been kept in prison in Romania awaiting retrial. In June 2010 he was denied a retrial by a Romanian court. He appealed to the Romanian Supreme Court and, earlier today, learned of their decision. He will not be given a retrial. He is now considering an infringement action at the ECtHR. Vullnet Mucelli

32. FTI has recently been granted permission to intervene in a case involving the right to a retrial. We will rely on what has happened in the Da An Chen case and others like it, to highlight the importance of courts in executing states checking not only that the law in fact guarantees a right of retrial, but also what happens in practice.255 A copy of our intervention application is annexed, for information.

Recent cases clarifying the duty of judges in extradition cases

MSS v Belgium and Greece

33. The ECtHR provided much-needed guidance on this question in the case of MSS v Belgium and Greece.256 This decision sheds light on the question of how “proactive” a court dealing with an extradition request should be, when there is evidence of a potential rights infringement.

34. The case involved the return by Belgium, under the Dublin II Convention, of an asylum seeker from Afghanistan, to Greece, where he had initially entered and been registered.257 His return had been ordered on the basis that:

254 Da An Chen v Romania (2006) EWHC Admin 1752 255 Chahal v UK, [1996] ECHR 54 demonstrates that where assurances are offered by the requesting state, the extradition court is under a duty to scrutinise them carefully and satisfy itself that they will be met. 256 MSS v Belgium and Greece, no. 30696/09, decided by Grand Chamber, January 2011 257 There is a long line of authority confirming the application of the same legal principles to the return of asylum seekers or others subject to immigration removal proceedings, in cases of extradition, and vice versa. Mitting J recognised this in his decision in R (on the application of Rot) v District Court of Lublin, Poland [2010] EWHC 1820 (Admin) 194 Additional Written Evidence submitted by Fair Trials International (EXT 25)

“Belgium was not responsible for examining the asylum application; Greece was responsible and there was no reason to suspect that the Greek authorities would fail to honour their obligations to him as an asylum-seeker. That being so, the applicant had the guarantee that he would be able, as soon as he arrived in Greece, to submit an application for asylum, which would be examined in conformity with the relevant rules and regulations.”

35. The applicant’s lawyer applied to have the order to leave the country set aside under Article 3 ECHR, raising the risk of arbitrary detention in Greece in appalling conditions, including a risk of ill-treatment. A number of recent experts’ reports were brought to the Belgian Court‟s attention about conditions in Greece.

36. The applicant also pointed to the lack of effective access to judicial proceedings in Greece for asylum-seekers, and his fear of being sent back to Afghanistan without any examination of his reasons for having fled - he had escaped a murder attempt by the Taliban in reprisal for his having worked as an interpreter for the international air force troops stationed in Kabul. The Belgian Government argued that it had sought assurances from the Greek authorities that the applicant faced no risk of ill treatment.

37. The Court held that “the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention”. The “assurance” provided by the Greek authorities did not contain any guarantee specific to this individual. It referred to the applicable legislation but gave no information about the situation in practice.

38. The situation in practice was very different to the assurances provided by Greece. Following his expulsion, the applicant was detained in conditions which closely resembled those described by sources including Amnesty International and other monitoring bodies in recent reports, all of which the ECtHR held were “freely ascertainable” by Belgium when considering whether to expel him. They included:

• overcrowding, dirt, lack of space, lack of ventilation

• little or no possibility of taking a walk

• insufficient and dirty mattresses

• no free access to toilets

195 Additional Written Evidence submitted by Fair Trials International (EXT 25)

• inadequate sanitary facilities

• limited access to care

• racist insults by staff

• physical violence by guards.

39. Evidence of the conditions in which the applicant was in fact held in Greece after his expulsion satisfied the ECtHR that the expulsion to Greece “caused him to suffer directly from the very risks of which he had complained” in the Belgian proceedings.

40. The ECtHR held that Belgium had acted in breach of Article 3, by limiting their examination to verifying whether the applicant had provided “concrete proof of the irreparable nature of the damage that might result from the alleged potential violation of Article 3, thereby increasing the burden of proof to such an extent as to hinder the examination on the merits of the alleged risk of a violation”. Belgium had expelled the individual without having examined the complaints under Article 3 “as rigorously as possible”. This was unacceptable: “any complaint that expulsion to another country will expose an individual to treatment prohibited by Article 3 of the Convention requires close and rigorous scrutiny”.

Rettinger

41. The Supreme Court of Ireland258 has also provided helpful recent guidance on the role of the court in deciding extradition cases where rights infringements are raised. Here an individual from Poland who had already experienced prison conditions in that country provided affidavit evidence to the High Court to support an Article 3 challenge. The evidence referred to:

• extreme overcrowding

• lack of sanitation and privacy

• locking prisoners up for 23 hours a day

• one shower per week with up to 24 others

• physical punishment for anyone complaining about conditions

• solitary confinement used as punishment.

258 MJELR v Rettinger [2010] IESC45 para 6 196 Additional Written Evidence submitted by Fair Trials International (EXT 25)

42. The Irish legislation implementing the EAW Framework Decision is essentially the same as the UK‟s (see paragraph 6 above). In deciding whether extradition would infringe Rettinger‟s Article 3 rights, the High Court had decided it would not, but it certified two points for the Supreme Court to determine on this. These concerned where the onus of proof lies when Article 3 evidence has been adduced (does it shift to the issuing state or remain on the requested person?) and how far the requested person must go to show the risk of breach (must he “prove there is a probability” or merely show a risk “on a balance of probabilities”?).

43. In considering these questions, the Supreme Court remitted the case back to the High Court (which has yet to decide the case). In its ruling, it made the following observations about the role of the court in the executing State, drawing heavily on the ECtHR decision in Saadi v Italy.259

44. It is not necessary for a requested person to prove he will probably suffer inhuman or degrading treatment. It is enough to establish there is a “real risk” as distinct from a mere possibility. Once the requested person has discharged the primary burden of adducing credible and substantial evidence of this risk, it is for the requesting State to “dispel any doubts”. This is a matter the Court must actively oversee to find out the “foreseeable consequences [of extradition] bearing in mind the general situation there and his personal circumstances”. The court’s examination must be “rigorous”. It must consider all the material before it and may attach importance to reports of independent human rights organisations. If necessary the court should obtain material of its own motion.

45. The Supreme Court also relied on the ECtHR ruling in Orchowski v Poland260 in observing that “special diligence is owned by the authorities to persons in a vulnerable position such as those deprived of liberty”. Poland had failed to adduce any evidence before the High Court that conditions had improved following the damning Article 3 findings in Orchowski.

Targosinski and Agius cast doubt on Klimas approach

46. In Targosinski,261 Toulson LJ held that to refuse to consider any Art 3 based refusal unless the constitutional order had been overthrown (per Mitting J in Klimas) “put the matter too high. It is possible to envisage other circumstances in which a defendant might be able to displace the presumption.” However, again, extradition was not refused. The court held that “if the Strasbourg

259 Saadi v. Italy, Appl. No. 37201/06, European Court of Human Rights, 28 February 2008 260 European Court of Human Rights, application no 17885/04, decided October 2009 261 Targosinski v Poland [2011] EWHC 312 (Admin) 197 Additional Written Evidence submitted by Fair Trials International (EXT 25)

Court were to find that conditions in a particular state systemically contravened prisoners' rights, I can readily envisage a defendant who faced an application for an Extradition Order relying on such a judgment in order to displace the presumption [of ECHR compliance].” However: “There is no cogent or satisfactory evidence in this case to demonstrate that the conditions criticised by the Strasbourg Court during the period up to May 2008 still obtain in Poland or that this appellant's extradition would involve a contravention of his rights.”

47. The Divisional Court has recently ruled262 that a judge must examine Article 3 issues in all extradition cases where they are effectively raised, including EAW requests. Section 21 of the Act is framed in mandatory terms in cases where it applies. The correct approach to a judge's role when considering the application of s.21 is that provided in Targosinski v Poland [2011] EWHC 312 (Admin). The starting point—an assumption that an EU Member State will fulfil its obligations under the ECHR—is not easily displaced but can be rebutted by clear and cogent evidence.

Conclusion

48. Between 2007 and 2010, the ECtHR found 181 Article 3 violations and 1,696 Article 6 violations by EU Member States. It is clearly not appropriate to place blind faith in a country’s compliance with its ECHR obligations, merely because it is an EU Member State. Yet it remains almost impossible to challenge extradition on Article 3 or 6 grounds, even where the requesting country has a poor record of compliance.

49. It is wrong in principle to restrict the remedy of person facing extradition to invoking rights in the issuing State, after extradition. Usually, this is too late as the damage is done: an unfair trial, an unsafe conviction, a criminal record, months or years in appalling detention conditions. This makes later infringement findings of no value to the individual and his or her family. In some States, even making complaints about conditions in prison carries serious risks for detainees: violence from prison officers and solitary confinement, as reports have verified.

50. Article 1 of the ECHR requires contracting States to “secure to everyone within their jurisdiction the rights and freedoms” contained within the ECHR. It is artificial to construe this to rule out any need for the courts of executing States to concern themselves with rights infringements that might occur in another contracting State. As the cases of our clients show, when courts alerted to poor rights records fail to seek detailed and concrete assurances

262 Agius v Malta 15 March 2011, Divisional Court (Sullivan LJ, Maddison J) Transcript not yet available 198 Additional Written Evidence submitted by Fair Trials International (EXT 25) and put them to rigorous examination, this can be tantamount to sending an individual to suffer serious and often irreparable rights infringements.

51. Urgent steps are required to clarify the position on this key question, if we are to avoid a loss of confidence in Europe’s new fast-track extradition system. The system has seen some notable successes in combating major crime and brings with it clear benefits, including efficiency, speed and simplicity. However, insufficient weight is being given to the fundamental rights reality of today’s EU.

52. Stronger safeguards must be built into the legislation, to ensure that judges dealing with extradition requests across the EU have a clear and consistent legal basis on which to deal with rights issues and ensure extradition does not cause infringements of human rights. We have made concrete proposals for these legislative reforms, both to clarify the way English courts should interpret the human rights bar in the domestic legislation, and to incorporate a human rights refusal ground in the EAW Framework Decision.263

8 April 2011

263 For the detailed amendments we have proposed on rights protections please see pages 11 and 20 of our submission to the Scott Baker Review dated 21 December 2010 annexed to our 21 January submission to the Committee 199 Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026) Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026)

Thank you for your letter of 23 March. I understand that the Joint Committee on Human Rights has taken evidence on the human rights implications of UK extradition policy from Baroness Neville-Jones. You have written to provide the Government with an opportunity to respond to issues which fall within the responsibility of my department including procedural rights, legal aid and universal jurisdiction. I will respond to each of the questions raised in the letter.

The Roadmap on Procedural Rights was adopted by the Council in 2009 and incorporated into the Stockholm Programme. What progress has been made with respect to implementing the procedural rights set out in the Roadmap?

The Roadmap is contained within a Council Resolution, which sets out the direction of travel in the area of procedural safeguards for defendants. The idea is that action in this area at EU-level should be taken in a focused, evidence based and targeted way that builds on the foundation of the European Convention on Human Rights. The Roadmap sets out areas which should be considered for action, whether legislative or otherwise. These are:

— interpretation and translation

— information on rights and information about the charges

— legal advice and legal aid

— communication with relatives, employers and consular authorities

— special safeguards for suspected or accused person who are vulnerable

— a green paper on pre-trial detention

The measures are seen as a support to EU instruments of mutual recognition such as the European Arrest Warrant, measures on exchange of criminal records, transfer of prisoners, people on bail and people on probation and mutual recognition of fines.

The first measure on the Roadmap, the Directive on Interpretation and Translation in Criminal Proceedings, was agreed in October 2010. Member States will need to have put in place measures to implement by October 2013. This measure provides that where a person subject to criminal proceedings does not understand the language of those proceedings, that person should be provided with interpretation of a quality necessary to safeguard the fairness of proceedings. It also provides for the translation of essential documents. 200 Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026) The second measure on the Roadmap, the draft Directive on the Right to Information in Criminal Proceedings is now being negotiated with the European Parliament. The measure covers information on rights, the provision of a letter of rights, information on the charge and the right to access evidence.

The European Commission is expected to table a draft Directive on access to legal advice in Summer 2011. We also expect a Green Paper to be published in spring or summer this year on detention issues.

What is the Government’s view of the programme and the proposals for procedural protection that it sets out?

The UK has the option as to whether to participate in these measures by virtue of its Protocol to the Treaty of Lisbon. In accordance with the Coalition Agreement, the Government will examine each proposal on a case by case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.

Since the Roadmap was published, the UK has agreed to participate in the first two Directives. The Government is of the view that the two Directives are necessary and helpful measures in order to improve procedural rights across the EU and support instruments of mutual recognition. Future measures will be examined in accordance with the Coalition Agreement criteria.

Will the Government be encouraging other Member States and the Commission to implement the outstanding measures set out in the Roadmap?

As set out above, only one of the Roadmap measures, the Directive on Interpretation and Translation in Criminal Proceedings has been agreed. The implementation deadline for that Directive is October 2013. No Roadmap measure has yet been transposed into domestic legislation. It is the task of the European Commission to oversee implementation. Once a Directive has entered into force, the Commission is able to bring infraction proceedings against any Member State that has not implemented it. Significant fines can be levied for failure to implement.

What level of legal aid is provided to those subject to extradition? Does the Government believe this provision is adequate in order to protect the human rights of those subject to extradition requests?

Under the criminal legal aid scheme operating in England and Wales (known as the ‘Criminal Defence Service’), an individual subject to extradition proceedings can apply for legal advice and representation. The application

201 Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026) is subject to a financial means assessment and a merits test (the ‘Interests of Justice’ test). Given the adverse impact that extradition proceedings can have on the liberty and livelihood of the individual concerned, it is likely that in most cases the ‘Interests of Justice’ test will be met. The Government is confident that the level of service provision afforded under the Criminal Defence Service meets its legal obligations under the European Convention of Human Rights.

Individuals facing extradition proceedings in Scotland and Northern Ireland are covered by the legal aid schemes in those two jurisdictions.

Witnesses have suggested that defendants in extradition cases do not have sufficient time with a duty solicitor before their case. It has been suggested that a minimum amount of time should be provided to defendants before their case. Can you comment on this suggestion?

The Home Secretary has appointed an Independent Panel to review the UK’s extradition arrangements. The Panel has met MoJ officials to explore the interaction between the provision of legal aid services and the overall processes for handling extradition cases. It is likely that MoJ will undertake further analysis of the legal aid arrangements to help inform the Review Panel’s recommendations.

What provision is there for a defendant to claim legal aid for a legal representative in the requesting country?

The arrangements for the provision of criminal legal aid in England and Wales extend only to proceedings taking place within this jurisdiction. If a defendant wishes to apply for legal aid to cover advice and representation in respect of proceedings in the requesting country, the defendant will need to apply in accordance with the legal aid arrangements operating in that country.

What steps are the Government taking to ensure that suspects of crime which are covered by universal jurisdiction stand trial in the United Kingdom in the first instance?

I cannot discuss the details of individual cases, but our over-riding consideration is that there should be impunity for the most serious international crimes.

This does not necessarily mean that the UK should prosecute in the first instance. In many cases, there may be compelling reasons why extradition is preferable to ensure that the person concerned stands trial in the country where an alleged offence took place. It may be, for example, that a country

202 Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026) who has requested the extradition of a person also happens to be where significant evidence and witnesses are located. Extraditing the person concerned could also mean that the victims and relatives of victims are able to see justice being done first hand.

It would be counter-productive for the UK to seek to be the policeman of the world. Rather, we would want to encourage and support other countries to deal effectively with cases that have happened within their jurisdiction.

However in order to avoid any impunity gap, the International Criminal Court Act 2001 ensures that in England and Wales there is (subject to the limitations in section 65A of the 2001 Act) jurisdiction to prosecute here UK nationals and residents for genocide, war crimes and crimes against humanity that have occurred anywhere in the world since 1991. The Crown Prosecution Service will make decisions to prosecute on a case-by-case basis, taking into account the two stage test that is used for all prosecution decisions: is there sufficient evidence to give a reasonable prospect of a successful prosecution; and would a prosecution be in the public interest?

I hope that the answers provided are helpful to your Committee.

5 April 2011

203 Written Evidence submitted by John Hardy QC (EXT 28)

Written Evidence submitted by John Hardy QC (EXT 28)

I: INTRODUCTION

Relevant curriculum vitae

1. I was called to the Bar in 1988, and have been in practice since. I was appointed a Recorder of the Crown Court in 2002, and took Silk in 2008.

2. My practice is rooted in crime. However, for the last fifteen years I have specialised in extradition, which has become my predominant field of practice.

3. In terms of volume, I appear most frequently for requesting governments and issuing judicial authorities. Thus for example, I have been instructed in such cases as Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, and Dabas v High Court of Justice, Madrid, Spain [2007] 2 AC 31.

4. However, I also appear for individual defendants, and have been instructed in such cases as R (Guisto) v Governor of HM Prison Brixton [2004] 1 AC 2001 and more recently the case of Edmund Arapi, whose extradition was requested on the basis that he had been convicted in absence of murder in Genoa. Subsequently the issuing judicial authority accepted that they were pursuing the wrong man.

5. I remain a great believer in the idea that, for a barrister to have a balanced view, he or she should both prosecute and defend.

6. I have acted as an expert witness in extradition proceedings in Canada; and have organised training courses for UK prosecuting authorities, and have given presentations to prosecuting and judicial authorities in Paris and Madrid on the subject of the Extradition Act 2003 (“the Act”.)

The subject-matter and purpose of these submissions

7. I am honoured to be invited to present these submissions to the Joint Committee. My objective is to present (in short form) a practitioner’s overview about the workings of certain aspects of the Act, and to suggest, where possible, areas ripe for legislative improvement. In making those suggestions, I bear in mind that the Act has already been made subject to a raft of substantive amendments, by operation of various provisions of both the Police and Justice Act 2006 and the Policing and Crime Act 2009.

204 Written Evidence submitted by John Hardy QC (EXT 28)

8. The specific subject-matter I am invited to address consists of (i) the proportionality of the European arrest warrant (“EAW”); (ii) time-limits; (iii) the effectiveness and importance of legal representation for the requested person, both in the United Kingdom and requesting countries; (iv) the threshold which individuals have to cross in order to invoke the human rights (“Convention rights”) protections in the Act, and possible safeguards which would increase those protections. I confine myself to the EAW scheme under Part 1 of the Act, though certain of my observations apply to a lesser degree to Part 2 cases (i.e. that part of the Act providing for extradition requests made by all other non-European Union states with which the United Kingdom has formal extradition requests.) However, it should be said that Convention rights protections are, for obvious reasons, more necessary in respect of non- Member States of the European Union, particularly where those states are neither Council of Europe members nor signatories to the ECHR.

II: EAW’s AND THE ISSUE OF PROPORTIONALITY

9. Section 11(3)(a) of the Extradition Act 1989 contained a provision requiring the High Court to discharge a person whose extradition had been sought if the allegation against him or her was trivial and, in all the circumstances, it would be unjust or oppressive to return him or her.

10. No similar provision is to be found in the Act, although Government Ministers in both Houses during the debates on the Bill advanced the argument that those clauses enacting Convention rights protections provided a sort of general umbrella protection.

11. So far as I am aware, proportionality has not been an issue in Part 2 cases. However, the advent of the Part 1 scheme coupled with the accession of the ‘East European bloc’ states to full European Member State status created two problems: first, the EAW was used (not only by the new Member States) to endeavour to sweep up a number of old cases; and, second, a number of the new Member States’ domestic law systems conferred no discretion upon prosecutors and investigating magistrates as to when it might not be in the public interest to pursue an extradition request. On the contrary, they were bound by their constitutions to proceed. This has been a particular problem in Poland, resulting in a huge number of requests for crimes which do not warrant the trappings and expense of even the simplified system of return envisaged by the European Council in the Framework Decision (2002/584/JHA), which created the EAW scheme.

12. I understand that moves are now afoot within the governing bodies of the European Union to address this problem, and that a proportionality test may be added to the Framework Decision. It is difficult to see, however, how such

205 Written Evidence submitted by John Hardy QC (EXT 28) a test could be devised which was in keeping with both the absolute spirit of judicial co-operation which underpins the Framework Decision, and the time- limits which are central to its operation, since the issue of what is or may be proportionate will inevitably extend the course of any extradition proceedings in which it is raised.

13. However, the introduction of such a test will bring about two improvements to the operation of the extradition process: first, it should cut out a number of unnecessary requests from the system, reduce hardship to individuals, and concentrate the minds of issuing judicial authorities on the question of whether issuing an EAW is really necessary and proportionate in each case. Secondly, the procedural rubric of the Act is very tightly drawn, and, with the exception of issues such as the passage of time and human rights, almost entirely excludes not only judicial discretion but also the function of judicial evaluation. A system which renders extradition less of a bureaucratic exercise and more an exercise in the administration of justice is to be welcomed. As will appear below, this is my principal thematic criticism of the ethos and operation of the Act.

III: TIME-LIMITS

14. The Act is festooned with time-limits. It is perhaps understandable that The European Council, in the Framework Decision, and Parliament, in the Act, decided largely (though not exclusively) against deploying such legal formulae as “as soon as reasonably practicable”, and instead chose to stipulate precise (and very limited) time-limits. But the problems this approach have created are writ large: with the UK court system over-loaded and under increasing strain, devices are routinely employed to circumvent the fixed periods, alternatively they are routinely extended so often as to render them meaningless. It is a matter ofd concern that, sometimes, they operate to create manifest injustice.

15. An example of the “device approach” concerns the “permitted period” by the end of which the extradition hearing must begin. Often one, the other, or both parties are not ready to begin the extradition hearing within three weeks of the person’s arrest, as required by section 8(4) of the Act in Part 1 cases. [This problem can be particularly acute where, for example, the person is legally-aided, remanded in custody, and appears to his or her legal representatives to have, on instructions, a feasible bar to extradition which necessitates the gathering and collation of evidence, which in turn may involve seeking additional funding from the Legal Services Commission.] In such circumstances the court and parties often resort to the fiction of opening the extradition hearing and then immediately adjourning it. Of course it could be said that Parliament required the hearing to commence,

206 Written Evidence submitted by John Hardy QC (EXT 28) not be completed, within the “permitted period”. Implicit, however, in the concept of the commencement of a hearing is its conclusion, particularly when this is required by Article 17 of the Framework Decision within 60, or exceptionally 90, days of arrest.

16. Extensions are legion. One example concerns the “required period” by the end of which the act of extradition must be accomplished. This requirement is stipulated by section 35(4) of the Act where there is no appeal against extradition, and section 36(3) where there is an unsuccessful appeal. Both sections provide for the extension of the commencement point of the “required period” by agreement between the issuing and executing judicial authorities. Such agreements are all too frequently required, especially over holiday periods.

17. No account is taken within the timetables of the possibilities of appeals. The Supreme Court cannot consider an application for permission to appeal, where the High Court has certified the decision in the case involves a point of law of general public importance, and, if it grants permission, the substantive appeal, within the timetable contemplated by the Framework Decision, and incorporated, so far as possible, into the Act In the Administrative Court Lord Justices of Appeal are sitting on their own, such is the volume of appeals. Since the appeal process would be equally time-consuming if a filtering procedure by which leave to appeal was required, before an appeal could take place in the High Court, this problem is intractable. Unless the right of appeal is to be fettered, or altogether curtailed, which would be unconscionable, these timetables are unworkable.

18. The time-limits for giving notice of appeal are capable of producing real injustice Recent examples of the High Court holding it has no jurisdiction to hear an appeal have concerned persons remanded in custody and representing themselves, or who, if represented, are let down by their representatives in terms of filing and serving notices of appeal within time.

19. The difficulty with specific time-limits, therefore, is that they were unrealistic from the outset, and have become increasingly so over the years. Judges are used to keeping tight discipline over the progress of cases, but if the “as soon as reasonably practicable” formula was more widely introduced into the Act, that formula would impose a duty upon the judge which would have the advantage referred to in paragraph 13 above, of enabling him or her to judicially evaluate an issue in a case, rather than merely consulting a diary. A better balance should be devised between bureaucratic formality and judicial decision-making, not least because the latter approach is apt to give effect to Convention rights considerations, whereas the former is apt to exclude them.

207 Written Evidence submitted by John Hardy QC (EXT 28)

IV: THE EFFECTIVENESS AND IMPORTANCE OF LEGAL REPRESENTATION

20. Extradition, prior to the coming into force of the Act, was always something of a niche, speciality subject. The advent of the Act, and the vastly increased volume of court cases, has introduced many new service-providers into the field. Equally, the huge increase in the numbers of appeals has had the effect of requiring much more - often individual - judicial time to be devoted to extradition hearings. Nevertheless, the quality of representation, although variable, remains for the most part high. In particular, at appeal level, the cases which appear to warrant more senior representation do, by and large, achieve it.

21. It is not possible for me to comment on the effectiveness of representation abroad, other than to say that when the United Kingdom submits a Part 3 warrant within the EU Member States (Part 3 warrants are EAW’s issued by courts in the United Kingdom as requests to judicial authorities in fellow Member States of the European Union), it seems to me that matters are dealt with, by and large, speedily, competently, and effectively. This, however, may reflect a different dynamic between the prosecution representative and the court in civil code systems. Accordingly, it is not open to me to comment upon it, nor am I anecdotally able to report on whether persons returned to the United Kingdom claim to have been poorly or ineffectively represented in the extradition proceedings that led to their return. In addition, it should be said that Eurojust provides a good service, and that Aled Williams, currently head of that organisation, is rightly highly regarded for his diligence and diplomatic skills.

V: CONVENTION RIGHTS: THE THRESHOLD AND FURTHER POSSIBLE SAFEGUARDS

22. There can be little doubt that when Convention rights protections were introduced into the Act ( as sections 21 and 87 in Parts 1 and 2 respectively), the prevailing view in Government, and Parliament as a whole, was that these provisions constituted some sort of universal panacea against injustice and/or unfairness in the scheme and processes of extradition.

23. In the view of many, they have proved to be anything but. Indeed, that view suggests the threshold for discharge has been set impossibly high by the courts, which have applied the “real risk of a flagrant denial/violation” test to each and every Convention right expressly provided for by the Act.

24. However, in my view the courts have set the bar at the right level. For the reasons alluded to above, a Convention rights challenge to an extradition to a category 2 territory with whom the UK has irregular and infrequent extradition traffic may require a considerable level of judicial scrutiny.

208 Written Evidence submitted by John Hardy QC (EXT 28)

25. By contrast, extraditions to EU Member States, all of whom are necessarily ECHR signatories, have to be considered on the basis that the challenge is prospective rather than retrospective, and in the context of a scheme based on judicial co-operation - that is, independent judicial co-operation, outside the sphere of state involvement - when any alleged Convention rights violation can be taken to the court at Strasbourg after it has occurred. As matters presently stand in terms of UK jurisprudence, there is a strong presumption that the requesting judicial authority will honour its Convention rights obligations, and that presumption can only be displaced by cogent and powerful evidence. Any student of the jurisprudence of the courts of the United Kingdom will see this test appropriately applied in the vast majority of cases.

26. That said, some troubling cases have occurred: Mann (Portugal), and Symeou (Greece). In addition, there is a case currently before the courts where a husband and wife are sought to be returned, as persons convicted of grave crimes, when their young children, whose Article 8 rights (the right to respect for family life) are under consideration, face the inevitable break-up of their family if the extradition takes place. It remains to be seen how this case will be decided: no doubt it will become a classic example of how the courts ultimately balance Convention rights considerations within the extradition context, when extradition serves a manifest and universal public interest as well as being an important component of the United Kingdom’s international law obligations.

VI: CONCLUSIONS

27. Part 1 of the Act was intended to give effect to the Framework Decision, which, in turn, was intended to speed up and simplify the process of extradition between the Member States of the European Union. Their domestic criminal justice systems are not unified, and their respective procedures differ, particularly as between common law jurisdictions (the United Kingdom and the Republic of Ireland) and civil code systems. Notwithstanding those dissimilarities, however, the twin keys to the new process were and are the removal of the role of the state, and the mutual trust and respect engendered by positive judicial co-operation. Given this underlying ethos, it is scarcely surprising that few challenges to requests under this Part have succeeded.

28. Part 2 is deliberately symmetrical with Part 1, save in that the Secretary of State plays a nominal role at both the beginning and end of the process, and the time-limits within it are more relaxed. The fact that this Part of the Act

209 Written Evidence submitted by John Hardy QC (EXT 28) works tolerably well is attested to by the relatively high number of cases, often of media prominence, which have resulted in the discharge of the person sought. These cases where the person has been discharged have been concentrated on requests from East European states which have not acceded to Member State status within the European Union, thus demonstrating both the effectiveness of the Part 2 protections and the contrast between full Member States and long-term aspirants.

29. Any extradition scheme will inevitably produce cases which expose its innate imperfections. The cases of Mann and Symeou are cases in point. So, too, it is said by many, is the case of McKinnon (the USA computer hacker request). Similarly, cases such as Bermingham & Ors. (the so-called “Nat West 3”) and certain others currently within the judicial process generate great press interest, and corresponding allegations of injustice and hardship which either do, or may, not stand up to judicial scrutiny.

30. The Act itself proceduralises and bureacratises many of the courts’ judicial functions. The virtual extinction of judicial discretion, and the paring down of the function of judicial evaluation are inherently unsatisfactory from a common law perspective. In Part 1 cases, for example, the judicial control theoretically envisaged by the Framework Decision must depend on the capacity of the Act to permit the proper exercise of judicial decision-making. However, the overall, purpose of the Framework Decision has to be respected, and given the homogenous nature of the European Union, and its collective adherence to the concept and principles of Convention rights, it is difficult to mount a sustained attack on the Act’s structure and provisions, except and insofar as the time-limit provisions are concerned.

31.It is right and appropriate that the Joint Committee should visit the workings of the Act. By the same token, the Scott Baker review is appropriate. But the real extradition challenge for Parliament as a whole is whether the United Kingdom should retreat to an isolationist position, or whether it should continue with the procedures in place which, are currently workable and give proper effect to the United Kingdom’s international obligations, notwithstanding the inevitable imperfections which the occasional case demonstrates. In conceptual and structural terms, these procedures are not capable of amendment or improvement, save in regard to the aspects of procedure as set out above (and certain other aspects of procedure not within the remit of this submission.)

12 April 2011

210 Further letter submitted to the Committee Chair by Mr Michael Hann (EXT 29)

Further letter submitted to the Committee Chair by Mr Michael Hann (EXT 29)

Further to my email of 31 March 2011 I believe that if we were sending women to a prison regime where they are naked on CCTV or observed by male guards as routine in the showers or toilet as a country we would not do it.

As a man I am just as offended and degraded by being forced to be naked in front of females.

Extraditing men to such a regime I believe is not far off a sex crime. How can you extradite someone to a system where they have female guards observing naked prisoners and not accept that this is degrading and a form of sexual torture. For many men it would be humiliating or degrading. Obviously the USA would agree since they do not allow male guards to observe female prisoners in the shower. There is a double standard but there should not be. It is just as humiliating for a man as a woman. No difference.

I feel strongly about this privacy and humiliating aspect of the USA jail system and for this reason I do not believe we can have any further extraditions to the USA. Extraditing someone when you know they will be sexually humiliated I am sure is against the human rights act.

11 April 2011

211 Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30)

Supplemental Evidence on legal aid in extradition proceedings

Introduction

1. The JCHR is in the process of receiving evidence about the extent to which the European Arrest Warrant (EAW) scheme meets or falls short of its aims and duties to protect the human rights of requested persons in extradition proceedings. One of the issues about which evidence has been sought is the importance of legal aid in extradition proceedings.

2. In response, this supplemental note analyses the practical difficulties obtaining legal aid funding for requested persons. It focuses on the tension between the right to funding on the one hand and the legislative emphasis on quick surrender under the EAW scheme on the other, before suggesting the practical solution of the automatic grant of legal aid. Opinions expressed are based on some of my client experience, on observations of cases in court and following discussions with senior Judges at the City of Westminster Magistrates Court.

The legislative framework

3. The Extradition Act 2003 governs all extradition requests received in the United Kingdom on or after 1st January 2004. The Act is divided into five Parts. Parts 1 and 2 set out the rules for handling extradition requests from abroad.

4. Part 1 of the Extradition Act 2003 was specifically enacted to transpose into national law the obligations imposed on the United Kingdom by the European Council Framework decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’). The Framework Decision requires use of the European Arrest Warrant as a pro forma extradition request between Member States. The pre- amble to the Framework Decision sets out its aim:

“The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a new system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential delay inherent in present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free 212 Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) movement of judicial decisions in criminal matters, covering both pre- sentence and final decisions, within an area of freedom, security and justice.”

5. The emphasis on the speed of proceedings is described in Article 16(1) of the Framework Decision: “A European Arrest Warrant shall be dealt with as a matter of urgency”. Article 16(3) further provides: “… the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person”. Those aims are implemented into domestic law by section 8(1)(a) of the Extradition Act 2003 according to which, once a requested person has been arrested and brought to court, “[the] Judge must fix a date on which the extradition hearing is to begin”. Furthermore section 8(4) provides, “The date fixed under subsection (1) must not be later than the end of the permitted period, which is 21 days starting with the date of arrest ...”.

6. The EAW scheme is designed to be simpler (there is no inquiry into the evidence to be used at trial) and therefore quicker. Strict compliance by extradition requests with the terms of the Act, and I would argue appropriate legal advice on the same, is acutely important in respect of territories with which there exists no evidential inquiry, as observed by Lord Hope of Craighead (paragraph 23-24) in Office of the King’s Prosecutor, Brussels v Cando Armas & Another 2005 2 WLR 1079 (HL):

“…The [part 1] system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down … the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute…”

7. The duty to provide legal funding in extradition proceedings stems from Article 11(2) of the Framework Decision:-

“A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.”

8. The Access to Justice Act 1999 (as amended by section 182 of the Extradition Act 2003) defines when individuals are entitled to advice, assistance and representation in “criminal proceedings” from the Legal

213 Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) Services Commission (LSC); extradition proceedings are included within the definition of the term “criminal proceedings”.

What is the main problem with the current legal aid application process?

9. Where a person is in receipt of state benefits, legal aid will be automatic. In all other cases legal aid applications require specific written evidence of hours worked, tax returns, amounts held in current and savings accounts, the amount of rent paid and any partner’s income. Evidence of those matters might the form of a work log from a former employer, wage slips and bank account statements.

10. The vast majority of people involved in extradition proceedings are foreign nationals, often with very limited English. Many will have worked on an ad hoc basis (in the construction or farming industry for example). If they are not on benefits, then proof of income is required before the LSC will grant legal aid. The particular difficulty in providing written evidence stems from the fact that wages will invariably have been paid cash-in-hand (whether at the insistence of the employer or otherwise). Employers will either not have kept a written record of hours worked, or will no longer be able to produce work logs given the lapse of time since the work was undertaken. Bank statements will be unobtainable whilst in custody. Even though a requested persons low earnings might qualify them for legal aid, for many it is impossible to provide the necessary documentation. Even when they have established self- employed status and are operating completely properly they find it very difficult, if not impossible, quickly to gather together the necessary paperwork to satisfy the LSC.

11. Once legal aid is refused, having lost any causal work they once had, this category of requested person is less able to pay privately then they were previously. The obvious solution would be to fill out the paperwork to show that they are now eligible for state benefits, and therefore automatic legal aid funding. Whilst in custody it is not possible to complete those forms. Legal funding continues to be denied and the circle becomes a vicious one.

How does this affect the aim of the Extradition Act 2003 to speed up and simplify proceedings?

12. Judges who consider it wrong for people in extradition proceedings to be unrepresented will feel under pressure to adjourn the extradition hearing (at least initially) in the hope that the legal aid position can be resolved. It is not unusual for multiple adjournments totalling over 60 days (from the date of first appearance) to be granted in an attempt to allow unrepresented defendants the time and opportunity to accumulate the necessary paperwork. The cost of the proceedings therefore increases: each hearing 214 Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) following an adjournment requires the services of an interpreter, the Judge/court staff and a legal representative for the foreign requesting authority (who is automatically appointed). There is the additional cost to the tax payer of keeping the requested person in custody over time.

How does this affect the rights of the requested person?

13. Requested persons in this situation are frequently extradited without access to legal advice. The issue is how this risks breaching his or her human rights.

14. Courts are obliged to act in accordance with the provisions of the Human Rights Act 1998 and the rights and protections afforded by the European Convention on Human Rights (ECHR). Article 6 ECHR states that in “the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing”. In addition in criminal proceedings the defendant has the right to legal representation if he cannot afford it.

15. In the extradition context, however, it has been held that extradition proceedings do not of themselves involve the determination of any “criminal charge” within the meaning of Article 6 of the ECHR264 and so those protections do not apply. Alternatively, it could be argued that the requested person is a litigant in proceedings whose civil right (to remain in this jurisdiction under freedom of movement provisions) is being curtailed and determined. On this analysis the requested person would be entitled under article 6(1) to a ‘fair hearing’, which implies an equality of arms arguably absent in the factual scenario described above.

16. Articles 5(1) and 5(1)(f) ECHR provide that the detention of a requested person in extradition proceedings must not be arbitrary or vitiated by misuse of authority or bad faith265. It might be argued that the LSC’s refusal to take into account the inability to provide the necessary paperwork demonstrates a

264 H v Spain (1983) 37 DR 93: “In the Commission’s view the word ‘determination’ [in article 6(1) of the ECHR] involves the full process of the examination of an individual’s guilt or innocence of an offence, and not the mere process of determining whether a person can be extradited to another country... The commission finds, therefore, that the extradition proceedings in question did not involve the determination of a criminal charge against the applicant within the meaning of Article 6(1) of the Convention”. 265 Lynas v Switzerland (1976) 6 DR 141 at 167: “Article 5(1)(f) clearly permits the Commission to decide on the lawfulness (‘lawful detention/detention reguliere’) of a person against whom action is being taken with a view to extradition (une procedure d’extradition est en cours). The wording of both the French and English texts makes it clear that only the existence of extradition proceedings justifies deprivation of liberty in such a case. It follows that if, for example, the proceedings are not conducted with the requisite diligence ... it ceases to be justifiable under Article 5(1)(f)…” 215 Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) lack of diligence which in turn deprives a person arbitrarily of funding, legal advice and therefore the ability to argue for release from custody.

17. In an appropriate case, an alternative remedy might be to judicially review the LSC decision to refuse legal aid funding. Of course the reality is that these arguments are not raised or pursued by litigants in person.

What is the practical solution to these problems?

18. The JCHR could consider whether the immediate grant of legal aid from the requested person’s first appearance in an extradition court would:-

(i) Save money

(ii) Save time

(iii) Enable the UK better to fulfil its international treaty obligations

19. The present system might save money on one budget (legal aid) but the effect of contested legal aid applications impacts adversely on other budgets (repeated court hearings and the continued cost of detention). An holistic approach to legal aid would involve every person in extradition proceedings (regardless of financial circumstances) being granted legal aid funding (with consideration given to a contribution from the State requesting the person’s return). It might be possible thereafter for any appeal proceedings to be means tested.

Conclusion

Requested persons are entitled to expect the courts to see that extradition and legal aid procedures are effectively adhered to according to the requirements laid down in the statute. The pressure to extradite within a tight time frame means that those procedures are not effectively implemented. On the approach described here, advice on the prospects of contesting extradition and the mechanism for return could be given more quickly, extradition might therefore be secured more swiftly and the rights of the requested person would be better protected.

7th April 2011

216 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32)

Thank you for your letter dated 10 May 2011 about you inquiry into the human rights implications of UK extradition policy. I am replying as the Minister who has recently taken on responsibility for extradition matters.

The first part of your letter requests figures on the European Arrest Warrant (EAW). The Serious Organised Crime Agency (SOCA) is the designated authority in England, Wales and Northern Ireland (since 1 April 2008) responsible for processing European Arrest Warrants (EAWs). Extraditions under the EAW process are referred to as ‘surrenders’ to the requesting EU Member State. The figures can be found at Annex A.

The second part of your letter requests figures in relation to requests and extraditions to and from countries designated under part 2 of the Extradition Act 2003 (category 2 countries). The figures can be found at Annex B.

I hope this information is useful.

Annex A

1. Number of extradition requests under the European Arrest Warrant received by the UK in each of the past five years by issuing country

Due to the way that data was recorded on the system it is not possible to provide a breakdown of the number of requests received by each requesting country prior to April 2009. The number of request received by the UK from other member states in the last 5 years is as follows:

Number of requests Year received by the UK 2009/10 4100

2008/09 3526

2007/08 2483

2006/07 3515

2005/06 Not available

For the fiscal year 2009/10 the country breakdown for requests received by the UK is as follows:

217 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32)

Number of requests Country received by the UK AUSTRIA 30 BELGIUM 90 BULGARIA 42 CYPRUS 8 CZECH REPUBLIC 120 DENMARK 3 ESTONIA 6 FINLAND 6 FRANCE 106 GERMANY 235 GREECE 22 HUNGARY 72 IRELAND 43 ITALY 100 LATVIA 55 LITHUANIA 183 LUXEMBOURG 2 MALTA 3 THE NETHERLANDS 112 POLAND 2403 PORTUGAL 23 ROMANIA 197 SLOVAKIA 54 SLOVENIA 7 SPAIN 167 SWEDEN 11 Total 4100

Data for the 2010/11 fiscal year is currently being validated and will be published in the SOCA Annual Report in July 2011.

2. Number of surrenders made to the Category 1 territories from the UK under the EAW in each of the past five years by issuing country

Due to the way that data was recorded on the system it is not possible to provide a breakdown of the number of surrenders from the UK by each requesting country prior to April 2009. The number of surrenders from the UK to other member states in the last 5 years is as follows:

218 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32)

Number of surrenders Year from the UK 2009/10 699

2008/09 516

2007/08 415

2006/07 178

2005/06 Not available

For the fiscal year 2009/10 the country breakdown for surrenders from the UK are as follows:

Number of surrenders Country from the UK AUSTRIA 1 BELGIUM 6 BULGARIA 1 CYPRUS 4 CZECH REPUBLIC 34 DENMARK 0 ESTONIA 7 FINLAND 1 FRANCE 19 GERMANY 21 GREECE 1 HUNGARY 8 IRELAND 19 ITALY 10 LATVIA 15 LITHUANIA 55 LUXEMBOURG 1 MALTA 2 THE NETHERLANDS 18 POLAND 425 PORTUGAL 3 ROMANIA 18 SLOVAKIA 7 SLOVENIA 1 SPAIN 16 SWEDEN 6 Total 699

219 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) Data for the 2010/11 fiscal year is currently being validated and will be published in the SOCA Annual Report in July 2011.

3. The number of EAW requests issued by the UK in each of the past five years by requested country

Due to the way that data was recorded on the system it is not possible to provide a breakdown of the number of requests issued by the UK broken down by country prior to April 2009. The number of requests issued by the UK to other member states in the last 5 years is as follows:

Number of requests Year issued by the UK 2009/10 203

2008/09 257 2007/08 182

2006/07 146

2005/06 N/A

For the fiscal year 2009/10 the country breakdown for request issued by the UK are as follows:

Number of requests Country issued by the UK AUSTRIA 1 BELGIUM 3 BULGARIA 1 CYPRUS 5 CZECH REPUBLIC 0 DENMARK 0 ESTONIA 0 FINLAND 1 FRANCE 25 GERMANY 4 GREECE 2 HUNGARY 2 IRELAND 39 ITALY 3 LATVIA 0 LITHUANIA 2 LUXEMBOURG 0 MALTA 1 THE NETHERLANDS 31 POLAND 19 220 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) PORTUGAL 2 ROMANIA 3 SLOVAKIA 0 SLOVENIA 0 SPAIN 58 SWEDEN 1 Total 203

Data for the 2010/11 fiscal year is currently being validated and will be published in the SOCA Annual Report in July 2011

4. The number of surrenders from Category 1 territories to the UK under the EAW in each of the past five years

Due to the way that data was recorded on the system it is not possible to provide a breakdown of the number of surrenders to the UK by country prior to April 2009. The number of surrenders to the UK from other member states in the last 5 years is as follows:

Number of surrenders Year to the UK

2009/10 71

2008/09 88

2007/08 107

2006/07 84

2005/06 N/A

For the fiscal year 2009/10 the country breakdown for surrenders to the UK are as follows:

Number of surrenders Country to the UK CYPRUS 2 FRANCE 6 GERMANY 1 GREECE 2 IRELAND 11 ITALY 1 MALTA 1 THE NETHERLANDS 17 POLAND 5 PORTUGAL 2

221 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) ROMANIA 2 SPAIN 20 SWEDEN 1 Total 71

Data for the 2010/11 fiscal year is currently being validated and will be published in the SOCA Annual Report in July 2011.

Annex B

Non-EAW extradition requests received by the UK: 2005–10

The figures in the first table below show the total number of extradition requests made to England and Wales (and Northern Ireland since 1 April 2008) and processed by the Home Office in each of the last six years.

TOTAL NUMBER OF REQUESTS RECEIVED BY THE UK

Year 2005 2006 2007 2008 2009 2010 Requests received 54 64 49 57 81 86

The figures include all requests made outside of the European Arrest Warrant (‘EAW’) framework during these years. They include requests made by some EU Member States before they began operating the EAW. They do not include requests received from countries with which the UK does not have extradition relations.

Not all extradition requests lead to the arrest of the subject. As a matter of long-standing policy and practice, we will neither confirm nor deny whether an extradition request has been made or received until such time as a person is arrested in relation to the request, so that people do not have the opportunity to escape justice by leaving the country before they are arrested.

For that reason, we have not provided a breakdown of actual requests by country, but we have set out in the tables below a breakdown of the number of arrests as well as surrenders by country.

It should also be emphasised that an arrest and/or surrenders made in a particular year may relate to a request made in a previous year. For example, a request made to the UK in 2005 may not result in an arrest until 2006 and surrender until 2008.

222 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) 2005

Country Arrests Surrenders Albania 3 1 Australia 4 2 Canada 4 2 Croatia 2 1 Czech Republic 4 3 Estonia 1 Germany 1 3 India 1 Israel 2 Italy 6 New Zealand 1 Norway 1 Romania 11 2 Russian Federation 2 Slovakia 1 Turkey 1 1 USA 16 8 TOTAL 59 25

2006

Country Arrests Surrenders Albania 8 3 Armenia 1 Australia 6 2 Canada 1 1 Croatia 2 1 Czech Republic 1 Germany 2 Hong Kong 2 India 1 Israel 2 Italy 2 Kenya 1 New Zealand 1 Norway 1 1 Romania 2 1 Russian Federation 2 Switzerland 2 1 Trinidad & Tobago 2 Turkey 1 USA 15 16 TOTAL 47 34

223 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) 2007

Country Arrests Surrenders Albania 10 3 Australia 3 4 Canada 1 3 Italy 3 Mauritius 1 New Zealand 1 1 Norway 1 1 Romania 1 Russian Federation 1 Switzerland 1 USA 8 8 TOTAL 27 24

2008

Country Arrests Surrenders Albania 5 4 Algeria 1 Australia 1 1 Canada 1 Croatia 1 Israel 1 New Zealand 2 1 Russian Federation 8 South Africa 1 Switzerland 1 Turkey 1 Ukraine 1 1 USA 9 6 TOTAL 31 15

2009

Country Arrests Surrenders Albania 4 4 Argentina 2 Australia 1 Azerbaijan 1 Bosnia & Herzegovina 1 Brazil 1 Canada 2 Croatia 1 1 Hong Kong 2 3 Iceland 1 1 Israel 1 New Zealand 1 224 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) Norway 4 1 Romania 1 Russian Federation 3 South Africa 1 Switzerland 4 3 Trinidad & Tobago 1 Turkey 1 1 USA 19 16 TOTAL 47 35

2010

Country Arrests Surrenders Albania 6 3 Argentina 1 Australia 2 1 Azerbaijan 2 Brazil 1 Canada 3 1 Croatia 2 1 Hong Kong 1 India 2 Moldova 1 1 New Zealand Norway 3 2 Russian Federation 1 Serbia 1 South Africa 1 Switzerland 2 1 Thailand 1 Trinidad & Tobago 1 Turkey 7 1 Ukraine 2 United Arab Emirates 2 USA 14 10 TOTAL 53 24

Non-EAW extradition requests made by the UK: 2005–2010

These figures include a small number of requests made by countries with which we do not have extradition relations (referred to as ‘ad-hoc’).

225 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32)

TOTAL NUMBER OF REQUESTS MADE BY THE UK

Year 2005 2006 2007 2008 2009 2010 Requests received 30 29 37 49 37 37

The following tables show the country and numbers of surrenders for each year, including ad hoc cases where indicated. Arrests are not included for these cases as we are not always made aware of the date of arrest; therefore we do not maintain a statistical record.

2005

Country Surrenders Canada 1 Cayman Islands 1 Czech Republic 1 Germany 2 Italy 2 Jamaica 2 Netherlands 1 Norway 1 Serbia 1 Spain 3 Sri Lanka 1 USA 1 TOTAL 17

2006

Country Surrenders Australia 4 Dutch Antilles 1 France 1 Netherlands 1 South Africa 1 Spain 1 Switzerland 1 Thailand 1 USA 4 TOTAL 15

226 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) 2007

Country Surrenders Australia 1 Grenada 1 India 1 Jamaica 1 Kosovo (ad hoc) 1 New Zealand 1 Somalia 1 South Africa 1 Spain 2 Switzerland 2 Thailand 2 USA 7 TOTAL 21

2008

Country Surrenders Australia 3 Canada 1 Italy 1 Mauritius 1 Morocco (ad hoc) 1 Netherlands 1 New Zealand 1 South Africa 1 Sri Lanka 2 Thailand 1 Trinidad and Tobago 2 Turks & Caicos 1 USA 10 TOTAL 26

2009

Country Surrenders Australia 2 Canada 2 Columbia 1 Croatia 1 Dubai 1 India 1 Iraq 1 Jamaica 1 Mexico 1

227 Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32) South Africa 1 Switzerland 1 Thailand 4 Turkey 1 Turks & Caicos 1 USA 7 TOTAL 26

2010

Country Surrenders Afghanistan (ad hoc) 1 Australia 1 Bangladesh 1 Bahrain (ad hoc) 1 Barbados 1 Canada 1 Iraq 1 Netherlands 1 Peru 1 Spain 1 Thailand 3 Turkey 1 USA 5 Venezuela 1 TOTAL 20

19 May 2011

228