In an earlier article we considered the case of a requested person who was sought by Italy in connection with the kidnapping of Chloe Ayling. We noted how the Court in this country when considering a European Arrest Warrant, was unconcerned with a person’s guilt or innocence when considering whether or not to order extradition.
Part II requests
The situation in relation to non-EAW requests, known as Part II requests, is in some cases very different. Whilst a number of countries such as the USA, Australia, New Zealand and Canada, are not required to prove a prima facie case against the requested person, many other countries are.
One such case is ongoing at Westminster Magistrates Court this week. The authorities in India are seeking the extradition of Vijay Mallya, a prominent Indian businessman, in connection with charges of fraud. These charges relate to his now defunct Kingfisher Airlines, which collapsed owing an alleged £600m to banks.
In order to succeed in their attempts to have Mr Mallya extradited, the Indian authorities must satisfy a test that is slightly different to the test previously used in criminal committal proceedings in this country. It is however the same as that in R v Galbraith; ‘whether the prosecution evidence, taken at its highest, is such that no jury properly directed could convict upon it’.
The District Judge may take into account written statements made to a police officer or an investigator that would be admissible as oral evidence. However, in contrast to the way committal proceedings used to be conducted, the requested person is entitled to call evidence to demonstrate that there is insufficient evidence to find a case to answer.
Extradition between the UK and India
If the Court finds that there is a prima facie case, the District Judge must then go on to consider whether there any other bars to extradition. Extradition between the UK and India is governed by a 1993 treaty, which is very similar to the Extradition Act 2003, and the provisions of the Human Rights Act also applies. Media reports at the moment suggest that much of the argument is centred on the prima facie case issue, so this case may yet have some way to go.
John Howey, Senior SolicitorRead More
The recent Brexit negotiations brought further attention to the role of the Court of Justice of the European Union (more commonly referred to in the UK as the ECJ). The negotiations have also emphasised a level of misunderstanding about the role of the ECJ and the European Court of Human Rights (ECHR).
The Court of Justice of the European Union and the ECHR are not the same thing. The ECHR was set up in 1959. Its function is to rule on alleged breaches of the European Convention on Human Rights. All 47 Council of Europe members have signed up to the Convention, and agree to be bound by the decisions of the ECHR.
The ECHR has previously ruled on this country’s ability to set whole-life prison terms; the rights of prisoners to vote and whether Abu Qatada could be deported.
The Court of Justice of the European Union was established in 1952. It is the highest court of the European Union, and rules on matters of European Law. Individuals cannot apply to the ECJ. Instead, national courts refer cases to the ECJ. It is then up to the national court to interpret its own laws in accordance with the decisions of the ECJ.
One of the most well-known ECJ decisions was the case of Jean-Marc Bosman, (the Bosman ruling) which was a freedom of movement decision. This resulted in professional footballers being able to join another club at the end of their contract without a transfer fee being paid. The Court has also ruled in issues relating to religious clothing and symbols at work, such as head-scarfs.
Whatever the terms of the Brexit deal, the UK will not be leaving the ECHR. Our relationship with the ECJ is likely to be much more complicated, but the court is likely to continue to have an influence even after the UK leaves the EU.
John Howey, Senior Solicitor
Image attribution: Adrian Grycuk (Own work) [CC BY-SA 3.0 pl (https://creativecommons.org/licenses/by-sa/3.0/pl/deed.en)], via Wikimedia CommonsRead More
Extradition is the formal process where one country asks another to return a person to stand trial or to serve a sentence. Under multilateral conventions and bilateral treaties, the UK has extradition relations with over 100 territories around the world.
What Is the Process?
The process is slightly different depending on whether the request comes from a European country that is part of the European Arrest Warrant scheme (EAW) or not. In both cases, the requesting State contacts the UK authorities and makes an extradition request. This may result in a warrant being issued against you, and court proceedings commenced.
It might be the case that you fear an extradition request will be made in the future – if so, you should contact us without delay so that we can advise on the options available.
Save in very exceptional circumstances your case will be heard before a District Judge sitting at Westminster Magistrates’ Court in London.
Once formalities are dealt with, the court will consider whether the tests for extradition are met. In non-EAW cases, the final decision will rest with the Home Secretary.
In some instances, a case can be disposed of very quickly, in others, it will involve a contested hearing.
Do I Need a Solicitor specialising in Extradition?
Yes is the simple answer. This area of Law is incredibly complex, and there are no circumstances where it is appropriate to try and navigate your way through this legal maze.
A duty solicitor will be available at Court to assist you, but even at that stage it is worth instructing a specialist extradition lawyer. You can insist that we are contacted to help – the earlier we are instructed in the proceedings, the better equipped we will be to assist you.
It is essential that potential legal arguments are identified at the outset and extradition is not consented to without proper consideration of the law. Experienced extradition lawyers can advise you on the processes and how a request might be opposed.
In some cases, it will be appropriate to use specially trained barristers who specialise in extradition law.
8 Bars to Extradition
1) Rule against double jeopardy.
2) The absence of a prosecution decision (whether the prosecution case against the accused is sufficiently advanced).
3) Extraneous considerations (whether the request is improperly motivated).
4) Passage of time.
5) The requested person’s age.
6) Speciality (the requested person must only be dealt with in the requested state for the offences for which they have been extradited).
7) Onward extradition (where the requested person has previously been extradited to the UK from a third county, and consent for onward extradition from that country is required but has not been forthcoming)
8) Forum (whether it would be more appropriate for the requested person to be prosecuted in the UK instead)
The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights (for example the right to family life is a person has been settled in this Country for some time). If the judge decides it would be both proportionate and compatible, extradition must be ordered.
Note that the process is different when the final extradition decision is to be made by the Home Secretary.
It is vital that all available evidence is presented during the hearing, and this may involve testimony from experts both in this Country and from abroad.
In a significant number of cases, further avenues of appeal are available to the High Court, and the Supreme Court.
Is Funding Available?
Legal aid may be available depending on your financial circumstances. If you are not eligible for legal aid, then we will be able to offer a privately funded package.
John Howey runs our extradition team. John has extensive experience in this area of law and regularly appears at Westminster Magistrates Court, and in the Administrative Court in extradition appeals. John is assisted by a Polish speaking paralegal, Agnes Biel.
Leave Nothing To Chance
The prospect of being returned to another Country to face legal proceedings is daunting; it is, therefore, essential that you seek out expert assistance at an early stage. Please contact John Howey on 020 7388 1658 or firstname.lastname@example.org.Read More
A Criminal Solicitor is required to join JFH Law’s established criminal law team. The successful candidate will have at least 2 year PQE in criminal work, and will have excellent legal knowledge and procedural understanding. The candidate must have duty solicitor status, and have prior experience in undertaking magistrates’ court trials. The successful candidate will be a confident advocate; higher rights of audience would be advantageous, but not essential. An interest in and experience of Extradition Law would also be an advantage. The candidate will be expected to undertake both legal aid and private paying files, and will have a keen interest in business development. They will be handling a varied and busy case load from start to finish.
This is an excellent opportunity for an enthusiastic criminal solicitor to join a dynamic and modern law firm with fantastic career progression opportunities.
The Guardian reported on Sunday that Turkish officials in London for meetings with the Prime Minister and other members of the Government are expected to raise the question of the extradition of a number of Turks wanted in connection with the failed 2016 coup.
A number of wanted persons are now said to be in the UK. This includes members of a group known in Turkey as the Fethullah Terrorist Organisation. This group is said to be associated with the US-based cleric, Fethullah Gulen, who has been in exile for a number of years.
The Turkish authorities have made a number of extradition requests since the coup, many to Germany and the US. In January, a Court in Greece refused to extradite eight Turkish air force officers who flew to Greece in a Turkish military helicopter in July last year.
As with the deposed Catalan President, Carles Puigdemont, there are likely to be a number of obstacles for Turkey to overcome before anybody is extradited there.
Current extradition bars for Turkey
Turkey is, of course, not part of the EAW scheme but has been designated as a category 2 territory in this country. As such, anybody wanted by Turkey could be extradited. However, similar bars to extradition apply as in the case of an EAW, and a requested person is also protected by the Human Rights Act and the ECHR, including under;
– Article 3 which guarantees the right to freedom from torture, inhuman or degrading treatment or punishment.
– Article 6 of the ECHR which guarantees the right to a fair trial
– Article 10 which guarantees the right to freedom of expression and
– Article 14 which prohibits discrimination on, amongst other matters, political views.
Any successful extradition request to Turkey would have to be approved by the Home Office before it could take place. Although there are very limited circumstances in which the Home Secretary can intervene (and none which would, on the face of it, apply in a case such as this) it is likely to be a very politicised decision. No doubt Amber Rudd is hoping that for once the Courts do what she would want them to do and spare her the difficulty.
John Howey, Senior Solicitor
Image attribution: Maurice Flesier (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia CommonsRead More
An Interpol red notice is used to locate a person who is wanted for the purpose of extradition. There are in fact eight different coloured notices issued by Interpol, providing different information about people. A Red Notice is only issued when there is a valid national arrest warrant or other judicial warrant. It does not give the power to arrest someone, it simply informs other countries that a person is wanted in the requesting country, either to be prosecuted or to serve a sentence.
Once Interpol receives a request, and they are satisfied that everything is in order, the notice is published. It serves to alert police around the world and makes, for example, international travel very difficult.
Some countries choose to make some information publicly available. The UK does not, but you can find a list of UK citizens wanted elsewhere in the world.
Around 8,000 Red Notices are published each year, for a wide variety of offences, not just very serious ones. However, it cannot be used to search for people wanted for politically motivated offences for example; offences of a political, religious, military or racial character are specifically excluded from Interpol’s remit.
John Howey, Senior SolicitorRead More
The current crisis in Catalonia has produced an interesting extradition issue, involving the former Catalan leader Carles Puigdemont and his colleagues, some of whom have left Spain and taken refuge in Belgium; are all of the offences they are charged with actually extradition offences?
Puigdemont and his colleagues face a number of charges, including ‘rebellion’ and ‘sedition’, as well as allegations of the misuse of public funds. There have been suggestions that some of the offences may not be extradition offences, and as a result extradition cannot be ordered.
The European Council Framework Decision of June 2002 sets out a number of offences where it is not necessary for the Requesting State to show that they would also be offences in the Executing State. ‘Rebellion’ and ‘sedition’ are not included in that list. The Framework decision goes on to say that for other offences, ‘surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing member state (i.e. Belgium). Whilst we do not claim to be experts in Belgium law, an article on the Flanders News website quoted an expert in Belgium criminal law, Frank Verbruggen saying that the offences are also offences in Belgium law; ”In Belgian law these crimes enjoy a broad definition. This case will probably pass this test.”
In the Extradition Act here, one of the statutory bars to extradition is known as ‘extraneous considerations’. It reflects the rights enshrined in various European Treaties and Charters, and bars extradition if it appears that the warrant ‘has been issued for purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions’ or that a person might be prejudiced at trial because of any of those matters.
In extradition from this country, this bar is most commonly used for requests from Russia, and other former Soviet countries, where there is a suggestion that people are being targeted purely because of their political opinions.
It is perhaps obvious that there is a political element to all of the charges, given the disputes between Catalonia and the Government in Madrid. Whether or not that will be sufficient for Puigdemont and his colleagues to avoid extradition remains to be seen.
The consequences of the High Court decision in Grecu and others earlier this year are now being seen in other cases relating to Romanian prison conditions. In that case, the High Court ruled that extradition to Romania could only go ahead if the Romanian authorities were able to show that a requested person would be held in a cell with at least 3 square meters of space. This week, a Romanian client of ours was successful in his appeal after the Judicial Authority conceded that they could not provide a satisfactory assurance that our client would be held in appropriate conditions. As a result, he was discharged and released from custody.
It is important to note that this is not necessarily the end of the matter, either for this client or for others in his position.
The EAW can still be issued in other countries, so if he travelled elsewhere in Europe he could be arrested there. Depending on the extradition law in that country, he could still be extradited. The EAW could be reissued in this country, if Romania are ever able to sort out their prison system. The domestic arrest warrant is still valid in Romania, so if he went back to Romania he could still be arrested there.Read More
John Howey, Partner at JFH Crime, has secured the discharge of a client wanted by the United States. Our client, an American citizen, was arrested earlier this year after a warrant was issued by the Federal Court in California alleging that he had made a ‘false statement involving international terrorism’.
In 2013, he was detained by the FBI in Rome airport, having allegedly travelled to Syria to join a group opposed to President Assad, which at that time was backed by the US Government. The FBI suspected that he had been fighting there and he was questioned about his activities. He was refused permission to continue his journey back to the United States and put on a ‘no-fly’ list.
In 2016 a Grand Jury in California indicted him on a single count, involving the making of false statements involving international terrorism. In extradition proceedings involving the USA, the US Government is not required to provide evidence of a prima facie case against the requested person, they simply have to show that the offence is an extradition offence.
In this case, we argued that the alleged conduct would not amount to an offence in this country, and it was therefore not an extradition offence. The Government argued that it was equivalent to an offence of perverting the course of justice. There was nothing to suggest that our client was aware that making a false statement was an offence, nor was there any evidence that he had in fact actually made a false statement. Nothing he allegedly said to the FBI could be shown to be untrue.
Although there is a body of case law in this country dealing with sentencing for perverting the course of justice, there is very little case law that deals with what constitutes perverting the course of justice. As a result, the District Judge decided that the United States Government had not proved that this was an extradition offence and our client was discharged.
The US Government have already indicated an intention to seek permission to appeal.
In this case, John Howey instructed Mr Ben Cooper of Doughty Street Chambers.
John Howey, Senior Solicitor
In both Part 1 and Part 2 extradition proceedings, there is scope for an application to be made to Court for a ‘certificate for counsel’ pursuant to Regulation 16 of the Criminal Legal Aid (Determinations by a court and Choice of Representative Regulations 2013/614).
The test under Regulation 16 is whether there are circumstances in the extradition proceedings which make the case ‘unusually grave’ or ‘difficult’, meaning that representation by an advocate is ‘desirable’. There is no need for the case to be considered uniquely difficult or grave.
An application should be made in writing and sent to the dedicated email address for extradition matters at Westminster Magistrates’ Court. The Court’s current practice is to list the case for an application for a certificate for Counsel so that oral submissions may be made. However, it is advisable to include as much detail as possible in the written application; set out a background of the history of the case, issues to be raised, brief instructions and conclude why the case is complex and requires counsel’s input.
If a certificate is granted by the court, the Legal Aid Agency will send an assigned counsel Representation Order. All communications to Counsel and clerking may be claimed in the CRM7 bill.
Please contact us on 0207 388 1658, or email email@example.com if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, SolicitorRead More