Briefing Anti-Social Behaviour, Crime and Policing Bill Second Reading, House of Lords October 2013
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 also submitted a written briefing 2 and gave oral evidence 3 to the Anti-Social Behaviour, Crime and Policing Bill Committee in June 2013. For further information, contact: Libby McVeigh Alex Tinsley Head of Law Reform Law Reform Officer Fair Trials International Fair Trials International 020 7822 2380 020 7822 2385 Libby.McVeigh@fairtrials.net Alex.Tinsley@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. 2 Available at http://www.fairtrials.net/wp-content/uploads/fti-anti-social-behaviour-crime-and-policing-bill- Committee-Briefing_Final.pdf 3 The uncorrected transcript is available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/uc615-ii/uc61501.htm.
A. Introduction 1. This briefing relates to Part 12 and Schedule 9, Part 4 of the Anti-Social-Behaviour, Crime and Policing Bill (the ASBCP Bill ), in particular those clauses which would amend the Extradition Act 2003 (the 2003 Act ) to (i) provide new safeguards for those facing extradition pursuant to a European Arrest Warrant (EAW), and (ii) alter the rules regarding appeals in EAW cases. 2. The benefits of a streamlined extradition system are clear. However, insufficient attention has been paid to the heavy toll that extradition takes on individuals and their dependents and families. After debates in Parliament, in-depth enquiries and many high-profile cases, the Government has recognised that there are flaws in the UK s current extradition arrangements flaws that have a serious impact on substantial numbers of people and so require legislative action. 3. On 16 October 2012, the Home Secretary responded to the Sir Scott Baker Review in a statement to the House of Commons. 4 Subsequently, in March 2013 a number of amendments to the 2003 Act were enacted, including the introduction of statutory forum bar and the removal of the Home Secretary s discretion in Part 2 extradition cases. 4. On 9 May 2013, further amendments to the Extradition Act 2003 were proposed in the ASBCP Bill, including amendments to the system of appeals in extradition cases. Fair Trials gave oral evidence on those proposals to the Public Bill Committee on 20 June 2013 and made subsequent written submissions on 28 June 2013. 5 However, these proposed reforms did not address several of the key issues with the operation of the EAW which Fair Trials has consistently highlighted. 5. On 9 July 2013, the Home Secretary announced 6 that the UK would exercise its option under Protocol 36 of the Lisbon Treaty to opt out of EU crime and policing measures adopted before 2009, but opt back in to some including the EAW Framework Decision. 7 At the same time, the Home Secretary announced reforms designed to tackle the use of the EAW for trivial offences and the lengthy pre-trial detention of British citizens and residents overseas following extradition under an EAW. The Government subsequently tabled amendments to Part 11 of the ASBCP Bill with a view to implementing these plans. 6. Fair Trials has consistently called for several reforms which are crucial if the UK is to have a fair and effective extradition system. Whilst the Government s proposals are welcome, Fair Trials is now concerned to ensure that the reforms do ultimately deliver the necessary improvements. In addition, Fair Trials maintains that other reforms are needed to ensure fairness in extradition cases, in particular by providing a more effective human rights bar to extradition, allowing 4 Hansard, 16 October 2012, Column 164. 5 The briefing is available at: http://www.fairtrials.net/wp-content/uploads/fti-anti-social-behaviour-crimeand-policing-bill-committee-briefing_final.pdf 6 Hansard, 9 July 2013, Column 197. 7 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).
refusal of conviction EAWs where a UK national or resident could serve their sentence in the UK, and abolishing means-testing for legal aid. B. Proposed reforms to the Extradition Act 2003 in the Anti-social Behaviour, Crime and Policing Bill 1. Absence of prosecution decision 1.1. Fair Trials has consistently raised concerns about the lengthy pre-trial detention of those extradited prematurely as a result of EAWs being issued before the case is trial-ready. This is illustrated by the case of Andrew Symeou, a British student who was extradited to Greece in July 2009 to face charges in connection with the death of a young man on a Greek island. Andrew was extradited long before the Greek court was ready to try him, and endured almost a year in appalling prison conditions before being granted local bail in Greece. Andrew was finally cleared by a Greek court in June 2011, almost four years after the events in question, during which time he had not been able to continue his university studies and his family had their lives turned upside down. The fact that a decision is taken at some stage to charge may mean the issuing state intends to proceed to trial, but, as Andrew s case shows, what matters is whether the issuing state is ready to do so. 1.2. Clause 137 of the ASBCP Bill seeks to address these concerns by creating a bar to extradition under an EAW where no decision has been taken by the issuing state to try the requested person. Whilst Fair Trials welcomes this proposal, we would like to see further amendments to the current drafting so as to: a) remove the current ambiguity in the drafting, relating to whether or not removal should be permitted where a decision to charge (but not a decision to try) has been taken; b) ensure that, in considering whether a case is indeed trial ready, judges take into account evidence external to the content of the warrant itself, including that relating to the past record of the issuing state in this regard; and c) prevent removal when an issuing state requires a person s presence in the relevant territory in order to make the decision to try but has refused to use alternative arrangements such as video link or the temporary transfer system, introduced by Clause 140 of the ASBCP Bill, to enable the decision to be taken. 2. Proportionality 2.1. In some EU countries, domestic procedures to issue and execute EAWs do not always respect the principle of proportionality. EAWs are, in practice, being issued for very minor offences or at a stage in the proceedings where less coercive measures would be more appropriate than extradition. Not only does this lead to injustice in individual cases; it also places a significant and unjustified burden on the resources of the UK as an executing
state. For instance, Natalia Gorczowska was convicted of possession of 4.04g of amphetamines, and was given a 10-month suspended sentence. She left the country to begin a new life, and several years later (there was no apparent reason for the delay) the sentence was re-activated and, still later, an EAW was issued, leading to significant expense and very nearly to drastic impact upon her young son s life. 2.2. Fair Trials therefore welcomes the amendment to the Extradition Act 2003 proposed in Clause 138 of the ASBCP Bill which will enable UK courts to take into account considerations of proportionality when dealing with extradition requests. We are however concerned that the proposed proportionality test is too limited and needs expansion in order to offer the intended safeguards against misuse of the EAW regime. The proportionality test should therefore be expanded so as to: a) remove judicial discretion as to whether a proportionality assessment should be carried out; b) extend the list of specified matters which a judge may take into account to include all factors relevant to a proportionality assessment, including the human impact of extradition, the passage of time since the alleged commission of the offence, the costs of extradition, the public interest in extradition and any other matter which the judge considers to be relevant; and c) be applicable to conviction EAWs, as well as prosecution EAWs, so as to address the problem of conviction EAWs being issued on the basis of suspended sentences for minor offences and reactivated long after the person left the country. 3. Temporary Transfers 3.1. Clause 140 of the ASBCP Bill establishes a system of temporary transfers under which a temporary transfer may be requested by either the issuing state or the requested person and granted where consent of the other party is obtained. The purpose of this system is to enable the issuing state to complete certain steps in the criminal case and then to allow the person to return home without seeking their extradition. 3.2. This mechanism is welcomed as it could result in the avoidance of extradition where it is not the most appropriate course of action given the stage reached in investigations. Fair Trials does, however, have particular concerns as to how judges would ensure that a requested person would be returned by the issuing state to the UK following a temporary transfer. Without the provision of further guarantees that trial and sentencing will not automatically take place following a temporary transfer, our view is that it is unlikely that requested persons such as Andrew Symeou would consent to such an arrangement.
4. Appeals against extradition orders 4.1. Clause 141 of the ASBCP Bill amends the appeals procedure against extradition orders made pursuant to EAWs so as to (i) remove the automatic right to appeal in extradition cases and (ii) grant flexibility to hear appeals which are lodged out of time. 4.2. 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. Many duty solicitors have little experience of extradition cases and therefore may not be familiar with the complex provisions of the 2003 Act and associated case law. 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. 4.3. These problems are demonstrated by the recent case of Krzysztof Juszczak, who in February 2013 successfully appealed against extradition to Poland on the basis that his removal from the UK would constitute a disproportionate interference with his family life under Article 8 of the European Convention on Human Rights (ECHR). 8 Although Mr. Juszczak is the primary carer for his severely disabled step-daughter, this was not raised by the duty solicitor before the District Judge an omission which was criticised as a failure of [...] duty by Mr Justice Collins in his appeal judgment. As this evidence was only obtained late in the process, there is a clear danger that, under the proposed system, Mr. Juszczak would have been denied leave to appeal. We therefore hope that this proposal might be reconsidered so as to ensure that people are not wrongly extradited as a result of not having an automatic right to appeal. 4.4. Whilst welcoming the introduction of flexibility in relation to appeal deadlines, Fair Trials has concerns regarding the specific formulation proposed in a new section 26(5) of the Extradition Act 2003 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. Fair Trials considers that the threshold is set too high to 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. As such, a preferable approach would be to follow the suggestion in the Sir Scott Baker Review that flexibility be introduced through the grant of discretion to the court to extend the time limit in the interests of justice. 4.5. Despite the introduction of flexibility, Fair Trials remains concerned that the current drafting may be insufficient to address potential injustices, particularly in light of the proposed removal of the automatic right to appeal. Given the often enormous impact of extradition on individuals, a standard period of 7 days to appeal (or seek leave) is, in our view, too short. This is often exacerbated by the need to obtain evidence from other jurisdictions and can raise enormous challenges when a person decides to change their 8 Juszczak v Poland [2013] EWHC 526 (Admin).
lawyer after the first instance hearing. The 7 day period in which to appeal should therefore be extended to 14 days. C. Proposed additional amendments to the Extradition Act 2003 1. Discretion to refuse extradition where requested person wanted under a conviction EAW is a British national or resident 1.1. UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted by a number of Fair Trials cases. Individuals have been extradited from the UK following a conviction in another jurisdiction yet, following surrender, have been transferred back to the UK after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. 1.2. The Home Secretary stated in her announcement to the House of Commons in July 2013 that where a UK national has been convicted and sentenced abroad, and is now the subject of a European Arrest Warrant, we will ask, with [the issuing state s] permission, for the warrant to be withdrawn and use the prisoner transfer arrangements instead (emphasis added). 1.3. Fair Trials International is concerned by this approach, due to the possibility that the issuing state will simply not grant permission. As the Home Secretary said in her announcement, the proposed change could have prevented the extradition of Michael Binnington and Luke Atkinson, UK nationals who went through the ordeal of being extradited to Cyprus only to be returned to the UK six months later to serve the rest of their sentences. But this would have been dependent on the Cypriot authorities cooperating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had a legal ground on which to refuse extradition. This process should therefore be placed on a statutory footing. 4.6. In addition, the potential for warrants to be withdrawn in such circumstances should be extended to include non-national residents whose social reintegration would be served by their serving their sentences in the UK. It follows clearly from the case-law of the Court of Justice that, if the UK implemented Article 4(6) of the EAW Framework Decision, which applies to both nationals and those staying in or resident of the executing Member State, it would not be able to reserve the benefit of the provision to UK nationals only. 9 However, the proposed policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether it is placed on a statutory footing or not. 2. Ability to request further information where suspicion of mistaken identity 2.1. There are currently no grounds in domestic law upon which to refuse extradition where there are serious doubts about whether the person sought is the person who committed 9 Case C-42/11 João Pedro Lopes Da Silva Jorge [2012] ECR I-0000.
the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has falsely identified someone else as the person who committed the offence. This means that extradition may be ordered even where there is clear evidence that the person sought could not have committed the crime for which they are wanted. 2.2. This is demonstrated by the case of Edmond Arapi. Edmond was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy despite clear proof he was at work in the UK of the day of the alleged offence. On the day the High Court was due to hear his appeal his extradition, the Italian authorities decided to withdraw the EAW following a campaign by Fair Trials, admitting that they had sought Edmond in error. Edmond narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. 2.3. An amendment is needed to allow executing Member States to request more information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity. 3. Effective refusal grounds for breach of human rights 3.1. Fair Trials has long maintained that the underlying assumption of the EAW system that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited rests on shaky foundations. For instance, Fair Trials reported that in the years 2007-2012, Greece was found to have violated Article 6(1) of the ECHR 93 times in criminal cases. 3.2. A number of Fair Trials cases have highlighted the need for human rights safeguards in the EAW system to be strengthened. Garry Mann, a 51-year-old former fireman from Kent, was arrested under an EAW in 2009. He was wanted in Portugal to serve a 2-year prison sentence. At his original trial in Portugal Garry had no time to prepare a defence and standards of interpretation were grossly inadequate. Garry s extradition was ordered by a British court despite compelling evidence that his original trial was unfair. Andrew Symeou s extradition was ordered despite evidence that the charges he was facing were based on statements extracted by Greek police through the brutal mistreatment of witnesses, who later retracted their statements. Andrew also raised the prospect that extradition would breach his Article 3 ECHR rights. Such arguments were unsuccessful. 3.3. The courts have, however, given very short shrift to arguments alleging that extradition would lead to violations of human rights. In accordance with the idea of mutual trust, on which the operation the EAW is based, the courts assume that the issuing state will protect
the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. 3.4. A person must show that they are at risk of a flagrant breach of their fair trial rights in order to resist extradition. 10 The evidential threshold is very high. As Ouseley J said in Andrew Symeou s case, it will be very difficult to show that there is a real risk of a total denial of Article 6 [ECHR] rights through extradition and trial by a member of the EU. 11 This approach is, however, difficult to sustain when there are ongoing systemic deficiencies in a justice system, which are liable to impact upon the extradited person. 3.5. Fair Trials therefore calls for the inclusion of a more effective human rights test capable of assisting people like Garry Mann and Andrew Symeou. This should set the legal standard as a simple breach of human rights, as opposed to a flagrant denial of justice and strike a balance in terms of evidence, placing an evidential burden on the arrested person to produce material not unfounded speculation to persuade the court that there is a genuine human rights case to be considered. Judges should have regard to findings by the European Court of Human Rights and Court of Justice of the European Union suggesting that there are systemic failings in the justice system of the issuing state concerned. Our expectation is that refusals to execute EAWs would still remain fairly exceptional with the application of such an approach, but confidence in the EAW system would be significantly enhanced. D. Proposed amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 1. Legislation should be introduced to end legal aid means-testing for extradition cases, something that Sir Scott Baker recommended be looked at as a matter of urgency. 12 Fair Trials was delighted that means-testing of suspects held in police stations was not included in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This change is equally important in extradition cases where a lack of legal representation can result in unfair extradition with devastating consequences for the individual. Means-testing also results in unnecessary delays and adjournments and in requested persons appearing unrepresented at hearings, wasting resources. 2. Several judges have expressed their concern about the unnecessary injustice and expense caused by the current rules on legal aid in extradition cases. In June 2012, Lord Justice Thomas said in the High Court that it is clear that the present system for means testing produces unacceptable delays that are unjust. The system is in effect unworkable in practice... and is inconsistent with overarching principles of fairness and justice in timely decision-making in extradition cases. 13 10 See Janovic v Lithuania [2011] EWHC 710 (Admin). 11 Symeou v Public Prosecutor s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897. 12 See page 335 of the Sir Scott Baker Report. 13 Jakub Stopyra v The District Court of Lublin, Poland [2012] EWHC 1787 (Admin).
3. Section 13 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 already provides for non-means-tested legal aid for suspects held in police stations. By removing proceedings under the Extradition Act 2003 from the definition of criminal proceedings in sections 14, 15 and 16 of the 2012 Act, means-testing would be eliminated from determinations of eligibility for both advice assistance and representation in extradition cases. We are of course aware of the ongoing discussions surrounding the reform of legal aid in the UK, but the injustices caused by the means-testing requirement in extradition cases mean that this change is needed immediately. Fair Trials International 24 October 2013