The proposed amendments contained in the Anti-Social Behaviour, Crime and Policing Bill.

Significant proposed amendments to the Extradition Act 2003 are currently making their way through parliament within the Anti-social Behaviour, Crime and Policing Bill 2013-14. The bill passed its third reading in the House of Lords on 27 January and is now in parliament’s ‘ping-pong’ process while agreement is reached between the houses.

The proposed changes should be seen in the context of increasing criticism of our existing extradition arrangements and of the European Arrest Warrant (EAW) in particular. The government has indicated that it will opt out of many EU police and criminal justice measures, but it has also made it clear that it intends to opt back in to the EAW system. Some of the changes may be seen as an attempt to assuage critics of the current system.

In addition to numerous minor amendments, the bill proposes the repeal of a bar to extradition while introducing a new bar; establishes a proportionality test; makes provision for temporary transfer; makes significant changes to the appeals process; and redefines extradition offences.

Few will criticise the repeal of section 16 of the Extradition Act, which provides for a bar to extradition to a category 1 country by reason of ‘hostage-taking considerations’. It is an oddity of a bar, which to my knowledge has never been used.

The proposed introduction of section 12A to the act, however, is potentially a significant development. The section enacts a bar to extradition to a category 1 territory where the authorities in the category 1 territory have not yet made a decision to charge or try the requested person and the person’s absence from that territory is not the sole reason for that failure. The section aims to prevent the injustices which can be caused by premature requests for extradition. Of course, the law already provides that extradition must be for a person who is ‘accused’ as opposed to merely a ‘suspect’. Nevertheless, this new bar is aimed at preventing lengthy pre-trial detention abroad wherever possible.

Frequent criticism is made of the use of the EAW system to request the return of individuals for seemingly trivial matters – theft of a chicken and the like. Arguably, the source of these problem cases is not the Extradition Act per se but rather the framework decision that underpins the EAW system and the very different legal systems that operate throughout the member states.

In many countries there is no equivalent to our ‘public interest’ test when deciding whether or not to prosecute. There is often no prosecutorial discretion at all. Effective reform would require action at a European level and negotiation with all member states. However, the bill aims to unilaterally introduce a proportionality test to the Extradition Act.

The proportionality test would operate on two levels. First, there is a proposal for the National Crime Agency (NCA), which certifies EAWs on receipt, to consider proportionality at that stage and to refuse to certify a request where a court would be bound to deem it not proportionate. Second, the bill proposes introducing section 21A to the Extradition Act.

If there are no bars to an accused person’s extradition under section 11, a judge will be required to consider whether the extradition would be both compatible with the requested person’s human rights, and whether the extradition would be disproportionate. The bill proposes to restrict the consideration of proportionality to three defined issues: the seriousness of the alleged conduct; the likely penalty that would be imposed if found guilty; and the possibility of the relevant authorities taking less coercive measures.

The proposals will do little, initially at least, to stem the tide of requests that are received in the UK. And it seems unlikely that the NCA would refuse to certify all but the most ludicrous of requests. The proposed test in section 21A appears to be hamstrung by the same restrictive drafting seen in the new forum bar last year. Again, the Extradition Act will prescribe the factors to be considered and exclude the consideration of other potentially relevant matters. It remains to be seen how the test will be interpreted, but those hoping for an end to disproportionate surrenders under the EAW scheme may be disappointed.

The bill proposes the addition of section 21B to the Extradition Act. The new section makes provision, in accusation cases, for applications for temporary transfer to be made by both the requesting state and the requested person. According to the Home Office, it is envisaged that a small number of EAWs could be withdrawn following the use of this procedure to enable discussions with the authorities in the requesting state, or that in other cases the procedure will minimise the need for lengthy pre-trial detention.

The mechanism, which requires the consent of both parties, allows not only for a temporary transfer to the requesting state but also for contact to be made while the person remains in the UK. The Home Office appears to acknowledge that the use of this provision will be limited initially, but it may be a useful tool in appropriate cases.

Major changes are proposed in the bill to appeals under the Extradition Act in both part 1 (EAW) and part 2 (non-EAW) cases. Currently, there is an automatic right of appeal for both the requested person and the requesting state against extradition decisions. A new provision removes this automatic right and introduces a requirement for the leave of the High Court. This is clearly intended to reduce the numbers of unmeritorious appeals. Of all the proposed measures this is likely to cause most concern among practitioners.

There is also a relaxation of the strict time limits that apply to extradition appeals. The new provisions state that the High Court should not refuse to hear an appeal by a requested person solely because it was submitted out of time so long as the requested person did everything reasonably possible to ensure that notice was given as soon as possible.

Finally, the bill amends the definitions of ‘extradition offences’ contained within the Extradition Act. The changes are primarily aimed at simplifying the language in these sections but also amend the definitions in part 1 to ensure compliance with the framework decision. The changes to the definitions in part 1 of the act mean that dual criminality will always be required where an offence takes place wholly or in part in the UK. In addition, for extra-territorial offences under part 1, there will no longer be a requirement for the conduct to be punishable in the UK with 12 months or more.

Additional changes proposed by the bill include:

  • Removing the requirement to fix the date for the extradition hearing when proceedings are adjourned because of domestic proceedings.
  • Ensuring that domestic proceedings that arise after an extradition order is made must be dealt with prior to surrender.
  • Ensuring that requested persons in part 1 cases cannot be extradited until an asylum claim is finally determined regardless of when the asylum claim was made and a similar harmonisation of the rules for part 2 cases where asylum or humanitarian protection is granted.
  • Providing that consent will no longer be taken as a waiver of specialty rights, which will result in the end of short uncontested hearings simply to retain specialty protection.
  • Providing for the transit through the UK of persons who have been extradited from one territory to another (where neither territory is the UK).
  • Altering the way in which the secretary of state designates territories without pre-existing extradition arrangements which allows the secretary of state to designate international conventions as opposed to specific signatories to them.
  • Ensuring that time spent in custody abroad while awaiting extradition to the UK counts towards any sentence to be served here.
  • Extending the ambit of the Criminal Procedure Rules to cover appeals in the High Court.
  • Changing the procedure to be adopted where there are competing requests made in respect of the same person, meaning that the deferred request can only be resumed where the competing request has been resolved in their favour.
  • Modifying provisions allowing for the transmission of EAWs electronically to support the second generation Schengen Information System.
  • Implementation of article 3 of the Fourth Additional Protocol to the European Convention on Extradition (ECE) enabling the detention of persons while a request to waive specialty is considered in ECE cases

The bill follows on from the government’s response to the 2011 Scott Baker Report into our extradition arrangements. The government commissioned that report to review the operation of the Extradition Act and in particular the operation of the US/UK extradition treaty, which remains controversial. It later pledged to reform the system. It is important to recognise though the very real limitations of the changes proposed by this bill, and the many caveats and restrictions within its draft sections.

Also, one should note that these changes are certainly not focused on the US/UK relationship. The majority of the changes would only affect proceedings under part 1 of the act involving EAWs, although the changes to the definitions of extradition offences and the rules on appeals and asylum affect proceedings under both parts 1 and 2.

Superficially, the changes do attempt to address some of the concerns that have been raised about the EAW, but ultimately this is a unilateral attempt at reform and there are very real limits to what can be done at a national level.

The bill was sent back to the House of Commons on 4 February to consider the amendments and, while they disagreed with amendments to other parts of the bill, no further changes were made to the extradition provisions. Subject to any further parliamentary ‘ping-pong’ it could then be passed to receive royal assent.

No timetable has been issued, but given the legislative pressures facing the government regarding decisions on EU police and criminal justice measures, which must be finalised by December 2014, one might expect this bill to be pushed through quickly to enable the government to placate critics of the EAW when it seeks to rejoin this measure.

Thomas Garner is head of the extradition team at Gherson, London W1