Extradition Act Changes
Extradition Act Changes
July 18th 2014 saw major changes to the Extradition Act, affecting both European Arrest Warrants (EAWs) and Part 2 Warrants, for other countries throughout the world. Whilst the changes do not address some of the long-standing concerns that many people have regarding the Extradition procedure, particularly with regards to Extradition to the USA, the impact of the changes will be felt by many. Further changes, especially to the Extradition Appeals process, are expected to come into force later this year (2014).
So what has changed?
There are three main areas, which are considered in more detail below;
- a new Bar to Extradition if the prosecution in the requesting country have not reached a decision to charge;
- the introduction of a proportionality test;
- and the ability for either a requested person or the Judicial Authority to request a temporary transfer of a requested person.
There are other, more minor changes, such as the repeal of ‘hostage-taking considerations’ as a Bar to extradition and the long overdue change to the position concerning asylum seekers.
Previously an application for asylum submitted after the issue of an EAW would stop a person being extradited until it was decided. Now, extradition cannot take place until any asylum application has been determined, no matter when it was issued.
No decision to charge
Under the terms of the Extradition Act, a person can be extradited either on the basis of a conviction warrant, where they have already been convicted of an offence in the requesting state and are wanted to serve a sentence, OR on the basis of an accusation warrant, where the proceedings have not yet concluded, for example because the person failed to attend their trial.
The amendment to the Extradition Act introduced on 18th July means that if it appears to the Judge dealing with the case that the authorities in the requesting country have not yet made a decision to charge someone, and those representing the authorities (ie the CPS Extradition Unit) cannot prove that a decision to charge has been made, then the extradition is barred.
However, this amendment does not apply if the person’s absence from the requesting country is the sole reason for the failure to make that decision.
It is difficult to know how this new section will be interpreted. It is likely to need expert evidence from each individual country, and for the courts to become familiar with the course of legal proceedings throughout the world.
For example, in any given country, the Court will need to consider whether or not the law allows proceedings to be instigated in the absence of a defendant.
In this country, proceedings can be instigated by the laying of an information and the issuing of a summons. If a country’s legal system operates in a similar way, that country may struggle to argue that the absence of the person is the sole reason for proceedings not being instigated.
Where the requested person has not yet been convicted, the Judge must now consider whether or not extradition would be proportionate. This is an extension of the Human Rights Act protection that already exists, but now sets out the specific matters that the Judge must take into account;
1) The seriousness of the conduct alleged
2) The likely penalty if found guilty
3) The possibility of less coercive measures being taken than extradition
There is an obligation upon the designated authority (ie the National Crime Agency) not to certify an EAW if they think it is disproportionate.
Again, it is difficult to know how these provisions will be interpreted, and it is likely to be some time before a sufficient body of case law is built up to enable anyone to predict the outcome of an individual argument with any degree of certainty.
The third major change introduces the concept of a temporary transfer, allowing either the requested person or the requesting authority to ask for the temporary transfer of the requested person to the requesting territory. If both parties agree, then that is what will happen.
Quite how many people will voluntarily agree to a transfer remains to be seen; an educated guess would be not very many, if in fact any at all.
The second limb of this new provision may find more favour. It allows for arrangements to be made for the person to speak to the representatives of the requesting country and for the extradition proceeding to be put on hold while this is done. This is likely to be popular with countries such as Poland where the authorities can often be persuaded to withdraw an EAW if certain conditions can be met.
As with all matters relating to the Extradition Act, it will be some time before the full effects of the changes are understood. It is likely to take a number of appeals before there is some sort of guidance forthcoming. In the meantime, extradition lawyers in London and elsewhere will be watching very closely.