The coup-de-théâtre of pin-striped executives marching on Whitehall, implying
the potentially incongruous warning, “First they came for the corporate
bankers / And I did not speak out…” was highly effective in drawing negative
attention to the current law of extradition in the UK. There is however a
countervailing voice to be heard. Criminal enterprise has long ceased to be
provincial in scope, it is “now established on an international scale and
the common law must face this new reality”. The globalisation of terrorism
and electronic financial crime are distinct examples of this expansion.
Assessing fairness in extradition procedures entails consideration of
impartiality, individual rights and the demands of justice. However,
fairness also connotes the most productive method of balancing conflicting
interests. This essay argues that the Extradition Act 2003 (EA 2003) was a
progressive step towards properly integrating the functions of international
comity and individual rights, but advocates that further powers should be
available to courts in the UK, thereby securing optimum standards of
fairness.
The EA 2003 Part 1 provides the statutory basis for the application of the
European Arrest Warrant (EAW), a mechanism of surrender without prima facie
evidence or strict dual criminality between EU member states. In an
extradition request, EA 2003 Part 2 territories must still provide prima
facie evidence and to a dual criminal standard. However, Part 2 territories
designated by the Home Secretary as category 2 territories can request
extradition without providing prima facie evidence concerning alleged action
that qualifies under the dual criminality principle.
Consequently, an EU member state may request extradition from the UK on the
basis of information, without the alleged conduct being a crime in the UK,
provided that conduct attracts a minimum sentencing threshold in the
requesting state. I submit that this is rationally and morally supportable;
it is an incremental step in a democratic process towards judicial
co-operation and mutual recognition in criminal cases across Europe. Most
importantly, there exists the shared safeguard of mutual respect for the
ECHR. Furthermore, there are now augmented bars to extradition on grounds of
inter alia, extraneous considerations, double jeopardy, passage of time and
human rights (ss 11-15 and s.21, EA 2003). These bars are assessed by a UK
court, utilising ECHR jurisprudence, thus insuring against the danger of
variable standards. The coercive power of the state already unavoidably
operates on a man from Glasgow in connection with alleged criminality in
Penzance. Is there a significant qualitative distinction when substituting
Paris or Pisa for Penzance? A crime punishable by three years imprisonment
in an EU member state will be a serious crime; the lack of overt UK
prohibition should not obstruct trial in countries with such a close
political, social and now judicial connection.
The subject of an extradition request from a category 2 designated state also
no longer has the right to test the strength of the case against them in a
UK court. I argue that the logic of common shared principles between EAW
states extends to these UK government-designated democratic nations. Where
questions about political and legal standards arise, bars to extradition are
again effective (ss 79-87 EA 2003). In addition to the statutory safeguards,
supplementary factors militate against the risk of injustice. Crucially,
dual criminality and a twelve month sentence threshold mean that the alleged
action would have been criminal, to a serious degree, if it had taken place
in the UK. Secondly, the law enforcement agency of the requesting state has
to persuade its own judicial system of this serious transgression and that
there is a proper basis for an extradition request; there is then an
appealable judicial assessment of the request and information by a District
Judge in the UK, together with disclosure of the information materials to
the subject.
It is the US which has attracted the most scrutiny as a designated state. The
US has now ratified the UK/US Extradition Treaty 2003, although as a matter
of US constitutional law the UK obligation to show “probable cause” remains.
However, the evidence threshold and procedural safeguards are the
substantive issues here. Respectfully, Uncle Sam’s reciprocity is an Aunt
Sally that obfuscates the question of which essential protections should
apply to an individual. Additionally, an acceptance of the principle of
extradition should include acceptance that foreign penal standards are
applicable, subject to the right to life and the prohibition on cruel and
unusual punishment. To hold otherwise is national exceptionalism.
Justifiable challenges to our extradition laws do exist. Forceful assertion of
jurisdiction by a requesting state may mean that action comprehensively
“committed” in the UK, nonetheless transgresses a foreign law. Mutual
standards in legal systems and the common classification of criminal
behaviour do not wholly safeguard against potentially contentious tactics of
foreign law enforcement agencies. In these circumstances, removal to another
state, concomitant interference with the right to respect for family life
and evidence gathering difficulties, become severe burdens indeed.
This essay advocates the following amendment to the EA 2003; although broadly
corresponding proposals were, regrettably, recently unsuccessful in the
House of Lords. Firstly, UK courts should be empowered to require steps to
be taken by UK agencies with a view to a domestic prosecution when the
alleged crime was committed partly in the UK. Moreover, where the alleged
conduct was substantially committed in the UK, and where, after the first
step, the UK agencies remain unable to prosecute, courts should also have
the power to refuse extradition if prosecution abroad would not be in the
interests of justice. The court would determine partial or substantial
commission; hopefully inducing superior information from the requesting
state in the first instance.
Our current extradition law is not unfair, it is a balanced attempt to
reconcile conflicting objectives. Yet legislators must always guard against
pure laws being tainted by expediency. A more exacting equilibrium may
therefore be achieved by enabling UK courts to assess the interests of
national and international justice in individual cases.
David Roderick is an LLM student at King's College, London
