Submission Submission to the Criminal Procedure Rule Committee on proposed new rules on appeal to the High Court in extradition cases April 2014
About Fair Trials International Fair Trials International (Fair Trials) is a non-governmental organisation that works for fair trials according to internationally recognised standards of justice and provides advice and assistance to people arrested across the globe. Our vision is a world where every person's right to a fair trial is respected, whatever their nationality, wherever they are accused. Fair Trials pursues its mission by helping people to understand and defend their fair trial rights; by addressing the root causes of injustice through our law reform work; and through targeted training and network activities to equip lawyers to defend their clients fair trial rights. Through our expert casework practice, assisting people in cross-border criminal cases, we are uniquely placed to provide evidence on how policy initiatives affect suspects and defendants facing extradition. We have provided detailed evidence to the inquiries of Sir Scott Baker (the Sir Scott Baker Review), the Joint Committee on Human Rights (the JCHR) and the Home Affairs Committee (the HAC), highlighting ways in which the UK s extradition laws could be amended to introduce workable safeguards against abuse and injustice. 1 We submitted several written briefings to both the House of Commons and the House of Lords during passage of the Anti-social Behaviour, Crime and Policing Act 2014 and gave oral evidence to the Public Bill Committee in June 2013. For further information, contact: Libby McVeigh Head of Law Reform Fair Trials International 020 7822 2380 Libby.McVeigh@fairtrials.net 1 The Sir Scott Baker Review reported in October 2011; the Joint Committee on Human Rights reported in June 2011; and the Home Affairs Committee reported in March 2012.
Background 1. This submission is made in response to the consultation by the Criminal Procedure Rule Committee (the Committee) on new rules about appeals to the High Court in extradition cases, which implement Section 160 of the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act) by introducing a requirement for appellants to the High Court against an extradition decision to obtain the High Court s permission to appeal. Fair Trials welcomes this opportunity to address the Committee with our views on the new rules as we have repeatedly raised concerns about the removal of the automatic right to appeal in extradition cases and therefore want to ensure that the new permission requirement operates as fairly as possible. 2. Extradition has an enormous impact on suspects lives, and those of their families. Given the problems that we regularly see arising at first instance extradition hearings, Fair Trials has concerns about any measure which limits access to appeal courts. A vast majority of suspects subject to extradition proceedings cannot afford a lawyer and are therefore represented by a duty solicitor. Many duty solicitors have little experience of extradition cases and therefore may not be familiar with the complex provisions of the Extradition Act 2003 (the 2003 Act) and associated case law. This can be contrasted with the position of the requesting state, which is automatically entitled to representation by a specialist unit of CPS lawyers. The complexity of extradition cases also means that there is often inadequate time at a first instance hearing for consideration of all the relevant facts and issues. 3. Through two briefings to each of the House of Commons and House of Lords, 2 we have set out three major concerns regarding the current and proposed appeals process in extradition cases, particularly within the fast-track process of the European Arrest Warrant (EAW): a. Removal of automatic right to appeal During parliamentary consideration of the Anti-social Behaviour, Crime and Policing Bill, we repeatedly called for MPs and Peers to reject the introduction of a leave requirement in extradition appeals. The automatic right to appeal is a key safeguard against injustice within the current system and its removal increases the risk that individuals will be removed in situations where extradition is disproportionate and/or where it involves a violation of their fundamental rights. 2 Fair Trials International, Briefing for Joint Committee on Human Rights and the Public Bill Committee, House of Commons, Anti-social Behaviour, Crime and Policing Bill, June 2013, available at: http://www.fairtrials.org/wp-content/uploads/fti-anti-social-behaviour-crime-and-policing-bill-committee- Briefing_Final.pdf; Fair Trials International, Report Stage Briefing House of Commons, Anti-social Behaviour, Crime and Policing Bill, September 2013, available at: http://www.fairtrials.org/wpcontent/uploads/extradition-briefing-uk-september-2013.pdf; Fair Trials International, Briefing, Second Reading House of Lords, Anti-social Behaviour, Crime and Policing Bill, October 2013, available at: http://www.fairtrials.org/wp-content/uploads/fair-trials-uk-extradition-briefing-october-2013.pdf; and Fair Trials International, Joint Briefing on Clause 148 of the Anti-social Behaviour Crime and Policing Bill, January 2014, available at: http://www.fairtrials.org/wp-content/uploads/joint-briefing-on-clause-148-of-the-antisocial-behaviour-crime-and-policing-bill.pdf/.
b. Time limits for lodging appeal We have raised concerns about the short period of time within which an appeal, or a request for permission to appeal (as will soon be the case), must be lodged and have repeatedly suggested that the time limit in EAW cases should be extended to 14 days, in line with Part 2 cases. The one week deadline in EAW cases is too short and can result in injustice, especially given the more onerous requirements associated with submitting an application for permission to appeal vis a vis a more simple notice of appeal under the existing regime and the more complex argumentation required to demonstrate the applicability of the new bars to extradition introduced by Sections 156 (Extradition barred if no prosecution decision in requesting territory) and 157 (Proportionality) of the 2014 Act. c. Flexible approach to failure to comply with time limits We have long argued that the timeframes for filing appeals against extradition decisions in the UK are applied too strictly, especially given the court s current lack of discretion to hear the appeal if the deadline is missed in cases involving non-british citizens, even where this is not the fault of the individual concerned. Our concerns were acknowledged in the Sir Scott Baker Review, which concluded that the inflexible time limit for the filing of an appeal in EAW cases is operating to cause injustice. 3 The amendments to the 2003 Act in Section 160 of the 2014 Act reflect the Government s recognition that strict deadlines are not appropriate given the unique difficulties faced by extradition defendants in terms of gathering evidence from abroad or compiling information about the human rights situation in other countries. The specific formulation which requires that the High Court must not refuse a notice of application for leave to appeal after the end of the permitted period [...] if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given establishes too high a threshold, which may not capture all potential instances of injustice, particularly given the inevitable reliance of most requested persons upon third parties such as prison officials or legal aid lawyers whose actions they may not be able to influence. We would have preferred the drafting to follow the recommendation in the Sir Scott Baker Review that the court be granted discretion to extend the time limit in the interests of justice. 4. Fair Trials believes that it is vital that suspects facing removal are given a full opportunity to put together a case and identify any valid grounds on which their extradition should be refused, and the appeal process should reflect this. Form of Appeal 5. The proposed Rule 17.20 sets out the form which an appeal notice must follow, including an extensive list of requirements including all relevant facts, evidence and what may be complex legal arguments explaining why the court of first decision should have decided a question of fact or law differently. 3 See page 333 of the Sir Scott Baker Review.
6. For the reasons explained above, including the often poor quality of representation at first extradition hearings before the magistrates court and the challenging circumstances in which many defendants find themselves being in detention and/or without easy access to evidence in support of their position which may be located in the requesting state, we are concerned that it will be very difficult for individuals to satisfy all the requirements listed in Rule 17.20 within the 7 day time limit. 7. While flexibility is given for out of time appeals (Rule 17.19(2)), we suggest that flexibility should also be applied where an appeal notice is served within time but with evidence missing, provided the notice is accompanied by a commitment to produce such evidence within a reasonable period of time. This may be particularly relevant in cases where information regarding the status of the procedings in the specific case or indeed systemic violations of fair trial rights in the requesting state is required in order to make arguments relating to the trialreadiness of the case or the potential incompatibility of removal with the individual s human rights. Test for Permission 8. The Sir Scott Baker Review recommended that any leave to appeal test should follow the standard required for judicial review, which it described as an arguable case, in order to be allowed to appeal. 4 The inclusion of any higher standard of proof would be inappropriate, not least because the requirement to demonstrate an arguable case would, as is the case in the judicial review process, suffice to weed out those cases with no merit. 9. The test introduced by Rule 17.7(5) follows the civil appeals model, with a real prospect of success test. This establishes a different standard to that recommended by the Sir Scott Baker Review, in response to which the Government introduced the leave requirement in the 2014 Act. 5 We therefore submit that the test should be changed to reflect that applied in judicial review proceedings, as can be deduced was the intention of the Government. Right to renew application for permission to appeal 10. Given our concerns set out above regarding the impact which the new leave requirement will have on the ability for the UK courts to identify cases in which extradition would be unjust, unlawful or violate the fundamental rights of the individual concerned, we submit that the rules governing the process through which permission is to be sought should ensure that every person facing extradition has the right to renew a refusal to grant permission on the papers at an oral hearing. This suggestion is in line with the recommendation set out in paragraph 10.14 of the Sir Scott Baker Review which suggests that [l]eave to appeal should be sought and granted or refused on paper with right of appeal against refusal to a judge at an oral hearing. Neither this recommendation, nor Section 160 of the 2014 Act which implements it, makes any reference to restrictions on the right to renew a permission request which has been refused on the papers. 4 Para 10.14 of the Sir Scott Baker Review. 5 See Para 88 of Explanatory Notes to the 2014 Act.
11. We therefore submit that the provisions of the proposed new Rule 17.22, which restrict the right to renew in two circumstances (a) when the application has been judged to be totally without merit (Rule 17.22(1)(a), and (b) when the court has given permission limited to a specified issue or issues or subject to a condition or conditions (Rule 17.22(5)(b)) go beyond what was anticipated by the authors of the Sir Scott Baker Review and the drafting of Section 160 of the 2014 Act and should therefore be removed. Fair Trials International April 2014