Human Rights Implications of UK Extradition Policy Written Evidence

Transcription

1 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) Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3) Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 3A) Further Additional Written Evidence submitted by an individual who wishes to remain anonymous (EXT 15) Written Evidence submitted by Professor Monica Lugato, Faculty of Law, LUMSA University of Rome (EXT 4) Written Evidence submitted by the Immigration Law Practitioners Association (EXT 5) Written Evidence submitted by Liberty (EXT 6) Letter submitted to the Chair of the Committee by David Bermingham (EXT 7) Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) Letter submitted to the Joint Committee on Human Rights from the Law Society (EXT 9) Statement submitted by Mr Mark Turner, father of Michael Turner (EXT 10) Written Evidence submitted by the Crown Prosecution Service (EXT 12) Written Evidence submitted by Mr Harvey A Silverglate (EXT 13) Letter from the Chair, to Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor (EXT 16) Written Evidence submitted by Crown Prosecution Service (EXT 17) Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) Letter submitted to the Committee Chair by David Bermingham (EXT 19) Written Evidence submitted by JUSTICE (EXT 20) Letter submitted to the Committee Chair by Stephen Parkinson (EXT 21) Letter submitted to the Committee Chair by Michael Hann (EXT 22)

2 Written Evidence submitted by Fair Trials International (EXT 1) Additional Written Evidence submitted by Liberty (EXT 24) Additional Written Evidence submitted by Fair Trials International (EXT 25) Letter submitted to the Committee Chair, by Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice (EXT 026) Written Evidence submitted by John Hardy QC (EXT 28) Further letter submitted to the Committee Chair by Mr Michael Hann (EXT 29) Additional Written Evidence submitted by Charlotte Powell, Furnival Chambers (EXT 30) Letter to the Chair, from Damian Green MP, Minister for Immigration, Home Office (EXT 32)

3 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

4 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 UK 1, 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 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

5 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, nonnationals 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

6 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 Roadmap 3 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

7 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

8 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

9 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

10 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 evidencegathering 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 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 evidencegathering 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

11 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 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

12 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 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

13 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 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 crossborder cases. 7 Letter to FTI from Viviane Reding, Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship 13

14 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 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 The 14

15 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 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 Luke and Michael resisted extradition and FTI wrote to the then Lord Chancellor, Rt Hon Jack Straw 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 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

16 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 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 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

17 "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 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

18 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 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

19 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 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 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 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

20 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

21 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

22 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

23 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

24 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

25 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 , 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 The European Arrest Warrant provisions came into force in January 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 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

26 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 , 69 people were extradited from the UK to the USA, in 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

27 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

28 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 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

29 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

30 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

31 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

32 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

33 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

34 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

35 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 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 evercloser union was put above both national sovereignty and justice. 35

36 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

37 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 Magna Carta and the Bill of Rights 1689 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

38 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

39 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

40 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

41 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

42 Written Evidence submitted by The Freedom Association (EXT 2) BIBLIOGRAPHY Alegre, S, European Arrest Warrants: A lapse in Justice: [Accessed 12/12/2010] Amnesty International, Amnesty International Report 2009: State of the World s Human Rights. Source: [Accessed 12/12/10] Dougan, M, & Currie, S, Years of the European Treaties: Looking Back and Thinking Forward. Oxford. Hart Publishing Batten, G, Gerald Batten MEP: in a speech to the European Parliament (EP). Source: [Accessed 12/12/10] BBC News, England Fan Extradition Case branded embarrassment. Source: [Accessed 16/12/2010] Broadbridge S, The Introduction of the European Arrest Warrant. Source: [Accessed 16/12/2010]. Cash, W, European Investigation Order. Source: [Accessed 17/12/2010 Coulter, C, Proposals to Bolster Defendants Right of Interpretation. Source: [Accessed 15//12/10] European Union Council of Ministers, Council Framework decision of 13th June 2002 on the European Arrest Warrant. Source: [Accessed 15/12/2010] Fair Trials International, Campaigns: Justice in Europe. Source: [Accessed 14/12/2010] Fair Trials International, 2010: Press Release on Andrew Symeou. Source: [Acessed 14/12/2010] Garnier E, House of Commons Standing Committee D on the Extradition Act Source: en D [Accessed 19/12/2010] Gilligan, A, Surge in Britons exported for trial. Source: [Accessed 13/12/2010] 42

43 Written Evidence submitted by The Freedom Association (EXT 2) Hawkins, N, New Clause 11: Extradition Bill. Source: &s=Double+Criminality+speaker%3A10264#g189.0 [accessed 19/12/2010] Hawkins, N House of Commons Standing Committee D on the Extradition Act Source: end [Accessed 19/12/2010] Heard, C & Mansell, D, Fair Trial s International Submission to the Extradition Review Panel. Source: 0review%20panel.pdf [Accessed 14/12/2010] Helmer, R, Roger Helmer MEP warns us about the Dangers of the European Arrest Warrant. Source: [Accessed 12/12/2010] Justice Select Committee Report, Justice Committee Seventh Report: Justice Issues in Europe. Source: [Accessed 16/12/2010] Lamont, N, The Dangers of the EU Arrest Warrant. Source: [Accessed 15/12/2010] Marsh, J, The European Arrest Warrant: Briefing prepared by James Marsh. Source: [Accessed 18/12/2010] May, T, European Investigation Order. Source: [Accessed 17/12/2010 Pop, V, European Arrest Warrant still Delivering Injustice. Source: [Accessed 14/12/2010] Telegraph, Editorial: Dr Fredrick Toben s Arrest Should Alarm us all. Source: [Accessed 15/12/2010] The Freedom Association, Written Evidence to the House of Lords European Union Committee. Source: Vaz, K, European Investigation Order. Source: [Accessed 17/12/2010 Watson, G, Graham Watson MEP: In a speech to the European Parliament (EP). Source: [Accessed 4/4/2010] 43

44 Written Evidence submitted by The Freedom Association (EXT 2) Young, H, Europe Justice Demands the Glory of British Liberty. Source: [Accessed 15/12/2010] Dick-Erikson, T, Memorandum by Torquil Dick-Erikson. Source: [Accessed 15/12/201 44

45 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

46 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

47 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

48 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 illadvised 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

49 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 Source: AVERT (International HIV and AIDS charity, based in the UK) 49

50 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

51 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

52 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 Assange 14 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 selfcontradictory. 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

53 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 Orton 16 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 Carrington 17 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 Ord 18 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 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 Bournemouth Crown Court Portsmouth Crown Court policeoracle.com 7 May QCA QCA

54 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

55 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

56 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 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 Ibrahim 21 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

57 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 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

58 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

59 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 The same conditions relating to confidentiality of personal data apply 22. 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 statistics 23 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

60 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

61 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

62 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

63 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 _within_the_european_union/ 63

64 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 Assange 25 (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 apply 26. 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 Under s.333 of The Proceeds of Crime Act 2002 (as amended) 64

65 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 role 27 includes:

66 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 document Extradition_Inquiry_Written_Evidence_3.pdf 66

67 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 citizens 29 they relate to people. 699 people were extradited from UK in 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 EAWs 31 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 extradition 32. 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 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 Citizen a member of a state or commonwealth 30 FTI Fig 4 31 Hansard Home Department, written answers and statements, 25 October Ditto 33 FTI Fig 2 67

68 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 They contradict even their own figure on page 24: In 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 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 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 , the UK surrendered only 51 people to the seven other states where the EAW came into force on 1 January 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/ PD Dr. Arndt Sinn and Liane Wörner, LL.M. (UWMadison), Law Faculty of the JustusLiebig- University, Gießen 38 FTI Fig 7 68

69 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/

70 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 law 41 unlawful coercion, 42 sexual molestation 43 (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 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 42 Coerce: persuade or restrain by force 43 Molest: annoy or pester in a hostile or injurious way; attack or interfere with, esp. sexually Ditto 70

71 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

72 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 umani 46, 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, 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

73 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

74 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 ). 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

75 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, nongovernmental 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

76 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 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States 47 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 /584/JHA, Official Journal L 190, 18/07/2002 P

77 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 failed 48 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 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 hearing 49 and on appeal to the Divisional Court 50 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 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 Mohamed Salah Ben Hamadi Khemiri, Habib Ignaoua, Ali Ben Zidane Chehidi v. The Court of Milan Italy [2008] EWHC 1988 (Admin) Judgment 28 July Paragraph 2 of the judgment of 20 May Ibid., paragraph 4. 77

78 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 However, the District Judge went on to conclude that:...since the 28th February 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 Date of the Saadi judgment. 78

79 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 codefendant 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

80 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 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 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

81 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 The Court declined to depart from the previous decision of the Divisional Court, observing This is not in any sense an exceptional case 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 56 Ibid., paragraph R(Khemiri) v SSHD [2010] EWHC 2363 Admin. 81

82 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

83 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 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 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 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

84 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 incountry right of appeal or indeed, being a person within the UK, benefit from the provisions of section 3D of the Immigration Act 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

85 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

86 Written Evidence submitted by the Immigration Law Practitioners Association (EXT 5) C. Conduciveness Deprivation Process 55.8 This policy will be introduced in 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 See nichapter55/chapter55?view=binary 60 SI 2005/565 86

87 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 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

88 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 , cols ) Dublin Regulation: responsibility for determining an application for asylum 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

89 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 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

90 Written Evidence submitted by the Immigration Law Practitioners Association (EXT 5) 90

91 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

92 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.3 64 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 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 92

93 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 For more information about Liberty s Extradition Watch Campaign see: 93

94 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 % 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 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 Article written by Nick Clegg in The Daily Mail, If they drag McKinnon to America, he will never come back (4 August 2009), available at /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 94

95 Written Evidence submitted by Liberty (EXT 6) working in practice, both the extradition treaties and EAW should be reviewed and improved 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 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 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 i/uc64401.htm. 95

96 Written Evidence submitted by Liberty (EXT 6) Significant amendments to the EA were also later made by the Policing and Crime Act 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 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 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 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 75 See the recital to the Framework Decision, ibid. 96

97 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

98 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 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 Under the Police and Justice Act 2006, as outlined below. 77 See Stanbrook and Stanbrook, Extradition Law and Practice (2000), at pages Note, however, that the EAW scheme does not provide for this. 79 Ibid, page

99 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 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 UK 82 (see our comments below in relation to dual criminality). Extradition can be barred in 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/ 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

100 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 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 Article 4(7) of the Framework Decision, ibid. 86 See Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, clause See sections 84 to 86 of the EA. 88 See sections 137 to 138 of the EA. 100

101 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 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 The Home Secretary ordered their extradition in May 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 101

102 Written Evidence submitted by Liberty (EXT 6) February 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 rights 91 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 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 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 The Crown Prosecution Service refused to bring charges under the Computer Misuse Act 1990 against Mr McKinnon in 2003 and later in Lord Justice Stanley Burnton (with whom 102

103 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 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 EA 96 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 See Schedule 13, paragraphs 4 and 5 of the Police and Justice Act 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

104 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

105 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 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 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

106 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 The UK courts, acting under Part 1 of the EA, ordered his extradition in 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 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 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

107 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 warrant 107 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 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

108 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 rearrested 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 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 R (on the application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72 per Lord Justice Hooper at para Ibid, at para See a personal account from Mr Raissi at 108

109 Written Evidence submitted by Liberty (EXT 6) 29. Had the current US-UK Extradition Treaty 115 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 Kingdom of Great Britain and Northern Ireland and the Government of the United States of America (Washington, 31 March 2003) CM 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 The only limitation being that the offence is punishable by three years or more imprisonment in the requesting country. 109

110 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 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 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 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 pdf. 121 Ibid, at paragraphs 23 to

111 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 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 Home Office Statistics, as analysed in Reece-Edwards v Suwalki District Court, Poland [2009] EWHC 3589 (Admin). 111

112 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 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 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 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 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 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: 112

113 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 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 Preamble to the Council Framework Decision, ibid, at para The EAW came into force on 1 January 2004; the EA came into force in the UK in As noted above and 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 As noted by the now Secretary of State for Energy and Climate Change, the Rt Hon Chris Huhne MP in The Independent, 24 October 113

114 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, 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 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 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

115 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 cooperation 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 W See House of Commons Library Note, The US/UK Extradition Treaty (SN/HA/2204) (23 February 2009), available at 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 As at 30 June 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

116 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

117 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

118 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 See R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, per Lord Bingham at para 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

119 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 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 event 156 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 See Symeou v Public Prosecutor s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin), at paragraph Under Article 302 of the Portuguese Criminal Code: R (Gary Mann) v City of Westminster Magistrates Court & Anor [2010] EWHC 48 (Admin)

120 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 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 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 liberty 162. 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 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 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 R(Mann), ibid, at para Article 5 of the European Convention on Human Rights, incorporated into UK domestic law by the Human Rights Act

121 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

122 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 liberty 169 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 See article 5 of the European Convention of Human Rights incorporated into UK law by the Human Rights Act Section 73 of the EA. 171 Section 74 of the EA. 122

123 Written Evidence submitted by Liberty (EXT 6) extradition request and certificate from the requesting state 172 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 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 Articles 23, 24 and Articles 21 and Article Protected by Article 6 of the European Convention on Human Rights, as incorporated into UK domestic law by the Human Rights Act Protected by Article 8 of the European Convention on Human Rights, as incorporated into UK domestic law by the Human Rights Act

124 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 nonexecution 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 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

125 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 S and Marper v United Kingdom (App No /04) European Court of Human Rights, 4 December

126 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 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

127 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

128 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 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 and in particular 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 128

129 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 law 190 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, Ibid. 129

130 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 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 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 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 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 The House of Lords denied leave to appeal on 20 June 2000 War Criminal Refused New Hearing, Financial Times, 20 June

131 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 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 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 This MoU engaged the statutory extradition machinery contained in the Extradition Act 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 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

132 Written Evidence submitted by the Redress Trust (REDRESS) (EXT 8) during 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 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 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 Vincent Brown (aka Vincent Bajinya) v Government of Rwanda and the Secretary of State, [2009] EWHC 770 (Admin), available at Ibid, at paragraph Ibid, paragraphs

133 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 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 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 f. 133

134 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 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 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 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 _2_.pdf 204 Under section 134 of the Criminal Justice Act

135 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 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

136 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

137 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. 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 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

138 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 , 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

139 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

140 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

141 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 nonservice. 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

142 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 of the 2003 Act in relation to Part 1 cases; and sections 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

143 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

144 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: 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: (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

145 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 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 $ 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 $ 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, (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

146 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 judgemade 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 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

147 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 ( ). 147

148 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 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 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 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

149 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-thepeace 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, (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

150 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 Troublingly, the doctrines of misleading the citizen 216 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 antipicketing 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

151 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

152 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 lawabiding) 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 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

153 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 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 riskreward 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 See also Paul Craig Roberts, Fake Crimes, Feb. 4, 2004, available at Giglio v. U.S., 405 U.S. 150 (1972). 153

154 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, pleabargaining, 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-toodistant 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

155 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 Appeals 225 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

156 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

157 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 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 157

158 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

159 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 frontpage 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 wellmeaning 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

160 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

161 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

162 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

163 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 , 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

164 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

165 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

166 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 nonservice. 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

167 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 of the 2003 Act in relation to Part 1 cases; and sections 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

168 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) 168

169 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) 169

170 Additional Written Evidence submitted by the Crown Prosecution Service (EXT 17A) 170