A new blow for our justice system

The government’s record on the administration of justice – maybe the most dismal in memory, given legal aid deserts, long court delays and the other Dickensian horrors with which we are familiar – has received another severe rebuke, this time from an unexpected and embarrassing quarter: a court in Germany.

The story is this. An Albanian who lived in the UK went to Germany for personal reasons, but was wanted by the British police for drug trafficking and money laundering. An international arrest warrant (Interpol red notice) was issued, and the German police duly arrested him.

But his German defence lawyer knew our criminal justice system, having studied in Glasgow, and having written his doctoral thesis on a comparative study of our criminal policy and penal system. So he made representations about the state of our prisons on behalf of his client, apparently citing chronic overcrowding, staff shortages, and violence among inmates.

The Karlsruhe Higher Regional Court consequently demanded guarantees from the UK regarding compliance with minimum standards in accordance with the European Convention on Human Rights (ECHR), and asked the UK to report on to which prisons the Albanian would be sent and on the state of his future prison conditions. This was not requested under the European Arrest Warrant system, which of course no longer applies to the UK, but under Article 604 (c) of the Trade and Cooperation Agreement (TCA) signed between the UK and the EU, which says:

‘if there are substantial grounds for believing that there is a real risk to the protection of the fundamental rights of the requested person, the executing judicial authority may require, as appropriate, additional guarantees as to the treatment of the requested person after the person's surrender before it decides whether to execute the arrest warrant’.

The German court was not impressed by the reply it received from the UK, which eventually arrived from a police station in Manchester on the last day of the deadline set by the court. The e-mail contained no guarantees, but indicated that the UK was planning to create 20,000 new prison places to overcome overcrowding (which seems rather to concede the point made by the defence lawyer in the first place). There was no specific information on the planned place of detention, but only an indication that the first prison would probably be in the London area.

The defence lawyer immediately drew the attention of the court to the fact that Wandsworth Prison, particularly overcrowded at 160%, is located in Greater London.

The court then asked again whether specific guarantees and information could be forthcoming for this particular person, with a shorter deadline this time on the grounds that someone was being detained.

When nothing further arrived from the UK after the second deadline had expired, the court decided that the Albanian's extradition to the UK was ‘currently inadmissible’, and released him immediately. He was not wanted for any offences committed in Germany. Extradition would only be possible with UK guarantees.

The court made its decision in March of this year. It was not reported at the time, and the defence lawyer has waited until now to go public with the decision, presumably because he was waiting to see whether the UK would restart the extradition proceedings, this time with guarantees to satisfy the German court.

This is not the only time that this has happened. A few weeks back, an Irish High Court decision was reported in which a defendant who suffered from a series of mental health issues (ADHD, anxiety, depression, insomnia and Asperger's syndrome) was not extradited to Scotland because of Scottish prison conditions.

For instance, the court noted that incarceration in Barlinnie prison, which is at 132% capacity, would see the defendant confined to a cell for 22 hours a day in circumstances that permitted less than three square-metres of space per prisoner. This was not considered suitable for someone with the defendant’s neuro-developmental disorders. The court said that the Scottish prison authorities had failed to address the court’s concerns. The defendant, who was wanted for alleged crimes of violence, could not be left alone for long periods and had never lived independently.

This is an embarrassment for the UK. There have been similar court decisions before under the European Arrest Warrant framework, but in relation to member states with whose records on prisons and human rights we would not wish to compare ourselves.

The decision also shows what we have known all along – that respect for fundamental rights, and in particular the rights contained in the ECHR, underpins the TCA. The chatter that is rising again about leaving the ECHR will have consequences, if implemented, for our ability to continue criminal cooperation with the EU, never mind its international legal consequences for the Good Friday Agreement.

In the meanwhile, we should prepare ourselves for more attacks from the government on our profession. When its own record on justice is so poor, it is not surprising that both it, and its ready promoters in the press, will attack us to deflect attention from its own record.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society

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