The Attorney General’s new guidance on legal risk has renewed a familiar debate about the relationship between legal constraint and effective government. The same question arises, in a particularly acute form, in the UK’s recent approach to the European Convention on Human Rights (ECHR).
Earlier this year, the UK took a leading role in a concerted effort by European governments to influence the future direction of Strasbourg jurisprudence, culminating in the Chișinău Declaration in May. The declaration was presented as supporting a 'more modern interpretation' of the ECHR which would make it harder for serious criminals to use Convention rights to frustrate deportation and extradition, especially using arguments about prison conditions.
The Chișinău process raised difficult questions about the proper relationship between governments and the Strasbourg Court. The convention does not insulate its jurisprudence from political criticism, but nor is a concerted attempt by governments to secure a more restrictive interpretation of an absolute right constitutionally neutral. There is an important distinction between asserting that the legal threshold has been set in the wrong place and objecting to the practical consequences which follow when that threshold is applied.
The same tension is apparent in current extradition trends. I am aware of concerns within the Home Office that the increasing frequency with which courts require assurances about prison conditions is placing the extradition system under such pressure that it may soon become unworkable. One more case, it has been suggested, could bring the system close to breaking point.
Whether or not that represents an official view, the diagnosis is questionable. Courts seek assurances about prison conditions because the evidence before them establishes a real risk that, without appropriate protection, extradition would expose the requested person to treatment contrary to Article 3. Where that threshold is crossed, surrender cannot lawfully take place unless the risk is removed. An assurance about the place or conditions of detention is one means by which a requesting state may achieve that result and, far from obstructing extradition, is frequently the mechanism which permits it to take place.
Assurances have undergone a striking transformation. Historically associated with exceptional impediments to extradition such as the death penalty, commonplace arguments in litigation now concern prison conditions; the CLRNN 2025 International Cooperation and Extradition Scoping Review records that stakeholders described their use as 'ubiquitous'. It is easy to characterise this as a procedural problem: assurances take time to obtain, their terms generate litigation and requesting states may become frustrated by increasingly detailed requirements. Yet their proliferation also reflects the persistence of prison conditions which, without an assurance, would expose the requested person to a real risk of treatment in violation of Article 3. There is a danger of mistaking the safeguard for the defect it exposes.
Nor are assurances, in fact, a satisfactory answer to that defect. Where the risk arises from generally prevailing prison conditions, an assurance does nothing to remedy the underlying deficiency, but creates an exception for the person whose extradition is sought. As assurances become routine, a mechanism intended to overcome unacceptable conditions in an individual case risks becoming a means by which those conditions can be allowed to persist indefinitely.
The difficulty is compounded by the weakness of arrangements for monitoring compliance. An assurance may be decisive in persuading a court that an identified Article 3 risk has been removed, yet there is no comprehensive system for determining whether the promise is subsequently honoured; the role and funding of the extradition lawyer will ordinarily have ended, evidence from a prisoner detained abroad is difficult to obtain, and there is no established procedure for returning an extradited person where a breach is subsequently identified. These concerns are longstanding: the House of Lords Select Committee on Extradition raised similar concerns in 2015, including the difficulty of knowing whether assurances had been breached and the absence of an effective remedy where they had.
Against that background, exacting judicial scrutiny of assurances cannot sensibly be characterised as an unfortunate accretion to the extradition process. If an assurance is the basis upon which an identified Article 3 risk is said to have been removed, its provenance, specificity, practical implementation and reliability bear directly upon whether surrender is lawful. There is legitimate room for argument about the evidential threshold at which an assurance becomes necessary and the degree of specificity required, and courts should neither demand assurances where the evidence does not establish the requisite risk nor impose requirements unsupported by law. That is quite different from treating the cumulative difficulty created by the application of the legal standard as a reason for lowering it.
It is here that the concern about assurances connects most directly with the wider debate surrounding the ECHR and the Chișinău Declaration. Both expose the same tendency: when the application of a legal safeguard makes the achievement of a legitimate governmental objective more difficult, attention shifts from the circumstances which engage the safeguard to the safeguard itself. In extradition, that risks treating judicial insistence upon Article 3 compliance as the source of pressure on the system, rather than asking why the system has become so dependent upon individual undertakings to overcome deficiencies in ordinary prison conditions.
The new administration has an opportunity to approach the problem differently. If the increasing reliance upon assurances is placing genuine strain on extradition arrangements, that deserves serious attention; but that inquiry should begin with the prison conditions that make those assurances necessary, and the inadequacy of the arrangements for determining whether they are honoured.
The rule of law is most tested when legal constraints frustrate otherwise legitimate governmental objectives, and Article 3 presents an especially stark example because its protection is absolute. The Attorney General’s emphasis is on finding lawful ways for government to achieve its objectives. In the extradition context, that should mean more than seeking greater latitude from the courts or a narrower interpretation of Article 3. The UK should ask why extradition has become so dependent on assurances, and address the problem at source: first, by ensuring that conditions in its own prisons meet the standards it expects of others and, second by using its diplomatic relationships to press for systemic improvements in prison conditions abroad, rather than relying indefinitely on bespoke protections for those it extradites.
Rebecca Niblock is a criminal litigation partner at Kingsley Napley LLP
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