JFH Crime secures the discharge of Romanian EAW
Extradition victory
Solicitor John Howey has secured the discharge of a Romanian client who was facing extradition under EAW (European Arrest Warrant). on the grounds that his extradition would breach his Article 3 Human Rights. This is the result of the High Court decision in Grecu and others.
In that case, the Court followed the decision of the European Court of Human Rights in Muršic v Croatia, where the ECtHR ruled that every person extradited must be guaranteed at least 3 sq meters of cell space. Previously, the High Court had drawn a distinction between prisoners held in closed conditions, which required 3 sq meters, and prisoners held in open or semi-open conditions, where anything over 2 sq meters was held to be sufficient.
The Romanian authorities have, in a number of cases, provided assurances that persons extradited to Romania would be guaranteed 3 sq meters in both open/semi-open and closed conditions. In our case, the Romanian authorities were only able to guarantee 2 sq meters, because of the part of the country our client is from and the prison conditions in that part of the country.
EAW; are prison conditions settled in Romania?
The conclusion we can draw from this is that the prison conditions issue is far from settled. Longer term prisoners will continue to be held in closed conditions, where 3 sq meters appears to be routinely guaranteed. Whether or not the Romanian authorities can guarantee short-term prisoners adequate cell space will depend on the part of the country they are from, which dictates where they would serve their sentence.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk 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.
John Howey, Senior Solicitor
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Should I have a solicitor in the police station?
Why should I have a solicitor at the police station?
Why wouldn’t you? For a start, it’s free. To everybody, no matter how much or how little they earn. That should probably be a good enough reason in itself, but many people still choose not to have a solicitor.
What happens in the police station goes a long way to deciding the outcome of the case
If you end up in court many months later, the Judge and jury, or magistrates, will know what you said or didn’t say in your interview and will pay close attention to it. If you do the right thing in your interview, you might not even get to court. You might be given a caution or your case might be dealt with in another way that means you don’t have to go to court. You might not even be charged.
It doesn’t make you look guilty
If you were ill you would go to a doctor. If your car breaks down you go to a garage. You get help from someone who knows that they are doing and is there to help you.
You won’t have to wait hours for a solicitor; at least not for one of our solicitors
When you are arrested there is usually a lot of work for the police to do before you are interviewed. It is that work that takes time, not waiting for a solicitor. If you say you want a solicitor as soon as you get to the police station, we will be contacted by the police and can arrange to attend when the police are ready to deal with you. If you are attending by appointment (often called an interview by appointment or caution +3), we will meet you there.
Just because you feel you haven’t done anything wrong, doesn’t mean you don’t need a solicitor
In fact, it makes you need one even more because if you say or do the wrong thing, you might end up getting charged with something you didn’t do.
If you are in a cell in the police station, there is no such thing as ‘not very serious’
Calling us to come and represent you is not ‘bothering us’. It is what solicitors are there for.
You can call us during office hours on 020 7388 1658 or 24 hours a day on 07939958767. Or email lawyers@jfhlaw.co.uk
John Howey, Senior Solicitor
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Extradition ordered? What happens next?
If your extradition is ordered on an European Arrest Warrant, you have 7 days to apply for permission to appeal. You must send your appeal to the Court, the Crown Prosecution Service (CPS) and the National Crime Agency. There is a fee to pay when it is submitted. You can also submit a legal aid application at the same time. If you do not submit an appeal, then your extradition should take place within the next 10 days. This is known as the ‘relevant time period’. You cannot be removed within the first 7 days after your extradition is ordered.
You can apply to be discharged if you are not extradited within the relevant time period. Westminster Magistrates’ Court hears these applications. However, it is likely that the CPS would apply for an extension of the relevant time period. The CPS are able to make this application even after the 17 days have passed. However, they will have to account for any unexplainable delays on their part.
Conditional bail
If you are on bail during the proceedings, it is most likely that you will stay on conditional bail after extradition is ordered. The Judge may add further conditions such as an increase in the security or further reporting conditions. A common extra condition is to keep a mobile telephone with you, charged and switched on 24 hours per day. The local police will contact you once transport is arranged. You will have to surrender yourself at a police station or airport. If you do not (like Julian Assange) you will be committing a separate criminal offence under the Bail Act.
You should take all your paperwork with you. This includes information about the you spent in custody or your bail conditions as the time spent in custody or on curfew may be taken into account.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk 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.
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The role of NGOs and EU committees in Extradition
One of the arguments often raised against extradition is the right not to be subjected to degrading/inhuman treatment whilst in prison. The state of prison conditions across Europe varies widely; poor conditions have been reported in Belgium (read our article about Belgian prison conditions here) whilst across the border in the Netherlands, there are a lack of prisoners to fill their prisons.
In order to argue prison conditions as a bar to extradition, the onus lies on the Requested Person to provide ‘objective, reliable, specific and properly updated evidence’. It is insufficient to rely on anecdotal evidence. Therefore, extradition lawyers turn to Non-Governmental Organisations (NGOs), EU committees and other international bodies for such evidence.
Fair Trials
One of the NGOs extradition lawyers work with is Fair Trials. Fair Trials seeks to promote the right to a fair trial in criminal proceedings, through campaigns, the provision of information and tool-kits for lawyers, and intervening in cases (they intervened in the case of Ibrahim and oths v UK APPS No. 50541/08 and oths)
When someone is extradited to a country where there is a real risk that he or she will be subjected to degrading/inhuman treatment as a result of the prison conditions they will be placed in, the requesting state will most likely provide an assurance that they will be detained in Article 3 compliant prisons if they are extradited. After extradition takes place, there is little extradition lawyers can do to monitor the effectiveness of such assurances. Lawyers will have to turn to NGOs such as Fair Trials for such information.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk 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, Solicitor
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‘Cannot be named for legal reasons’; what is that all about?
Yesterday’s news included the all too familiar reports of a young man being sentenced for a knife murder. Whilst the victim is named and pictured, the reports state that the defendant ‘cannot be named for legal reasons’, without setting out what those legal reasons are. It seems that an application was made in court to name the defendant, but this was refused.
What are these legal reasons?
The general principle is that proceedings should be held in public, the evidence should be heard in public and the media should be allowed to report the proceedings. There are however, a number of exceptions to that principle. There have been recent cases of evidence being heard behind closed doors for reasons of national security; Victims of sexual offences are given life-long anonymity, unless they are later subject to criminal proceedings in relation to the alleged offence (for example Jemma Beale, who was convicted of perjury and perverting the course of justice for making false allegations); Pre-trial rulings relating to the admissibility of evidence or points of law, an unsuccessful application to dismiss at the end of the prosecution case, anything that might identify a child or young person involved in youth court proceedings (with limited exceptions) are all subject to automatic reporting restrictions.
When the defendant is a minor
In relation to under 18s in the Crown Court, S45 of the Youth Justice and Criminal Evidence Act 1999 which came into force in April 2015, allows the criminal court to prevent the publication of anything that would identify that young person as a defendant, until that person reaches 18. The court must have regard to the defendant’s welfare and be satisfied that the welfare of the young person outweighs the public interest in open justice. The court can dispense with the restriction at the end of the case if ‘their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and it is in the public interest to remove or relax that restriction’. Once the young person reaches the age of 18, the restrictions cease to apply.
In the case reported yesterday, the Judge refused to allow the defendant to be named, because ‘nothing is added of public import beyond what is already known.’ The facts of the case, and the defendants previous convictions are now a matter of public record, so it is difficult to see how the public not knowing his name is likely to amount to an unreasonable restriction on the reporting of the case.
We can help
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch with. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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The Official Secrets Act
Even as a criminal solicitor in London, in over 20 years I have never come across a client accused of breaching the Official Secrets Act. Reference is often made to someone ‘signing the Official Secrets Act’, and this week I came across such a signed document, headed ‘Official Secrets Act’, amongst the papers of an elderly relative who died recently.
Contrary to many people’s belief, those who are bound by the Act are bound by it whether they have signed anything or not. ‘Crown Servants’, a term that includes civil servants, police, judicial officials and the armed forces and ‘government contractors’, ie companies who produce goods or services under contract for the government, are all bound by the Act, as well as members of the security services. Signing a document merely acts as a reminder to individuals that they continue to be bound by the Act even after they cease to be employed.
Prosecutions under the Official Secrets Act
To be an offence, the disclosure must be damaging. Prosecutions under the Official Secrets Act are rare; Clive Ponting in 1985 for leaking details of the sinking of the General Belgrano during the Falklands War; Richard Tomlinson in 1997 for passing secrets to a journalist; Sarah Tisdall for leaking details of the arrival of American missiles in the UK, and David Shayler.
David Shayler
David Shayler was arrested in France in 1998. He had been working for MI5, and revealed sensitive information to the Daily Mail, suggesting amongst other things that the security services were deliberately planting misinformation in the media and had ignored information that could have prevented terrorist attacks in the UK. The French courts refused to extradite him, ruling that the prosecution was politically motivated. A similar bar exists in the Extradition Act, S13 ‘extraneous considerations’, which prevents the extradition of a person where the warrant is issued for the purpose of prosecuting him or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or he might be prejudiced at his trial for any of those reasons.
Shayler eventually returned to the UK and was prosecuted. He was convicted after the Judge directed the jury to convict him.
Clive Ponting
A similar direction to the previous case had been given to the jury in the trial of Clive Ponting, who argued that the Act as it then stood allowed for the publication of information if it was in the interests of the state to do so. Although the trial judge directed the jury that it was up to Government Ministers to decide what was and what was not in the interest of the state, and that the jury should convict the defendant, they acquitted him.
Katharine Gun
Katharine Gun was charged in 2003 with leaking an email from the National Security Agency in the United States. The email was asking for help in a bugging operation at the United Nations, in the run up to the UN Security Council vote on the invasion of Iraq. Countries who were thought to be undecided were to have their offices bugged. Gun’s defence was that she was acting to prevent imminent loss of life in an illegal war. On the day of trial, for reasons never fully explained, the prosecution offered no evidence.
This seems to have been the last notable prosecution under the Act. Earlier this year, the Law Commission published a paper suggesting ways to bring the Official Secrets Act up to date, to deal with modern issues. the consultation has now closed, but you can still access the documents.
With the majority of Parliamentary time over coming months and years being taken up with Brexit, it seems unlikely that there will be progress soon.
John Howey, Senior Solicitor
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Can I get bail in my extradition case?
Bail in an extradition case is decided in a similar way to bail in criminal cases in this country. The law is contained in the Bail Act and the Criminal Procedure Rules. However, the rules are very different to many other countries. The short answer to the question ‘can I get bail’ is yes, you can. Whether you do get bail or not will depend on a lot of things.
The offence
The District Judge is likely to be worried that if you are granted bail you might not turn up at Court. So the first thing the Judge will want to know is if you are already convicted, or if you are ‘accused’. If you are wanted to stand trial for an offence, you are ‘accused’ . An accused person has a much better chance of being granted bail than if you have been found guilty and have a sentence to serve. If you are convicted, you will be wanted to serve a sentence. The longer the sentence is, the less chance you will have of being granted bail. Even if you have not been convicted, the more serious the offence, the less likely you are to be given bail.
5 other considerations to grant a bail in extradition
Apart from the offence, the sorts of things that the District Judge will think about when deciding whether to grant you bail will include;
- How long you have been in this country
- The circumstances in which you came to this country. For example did you come to this country the day after you were arrested in your own country? Or were you never actually arrested and knew nothing about it?
- Your situation in this country; are you working? Do you have family and in particular children who depend on you? Have you got an address you have lived at for a long time? can you be given a curfew there, so the authorities know where you are at certain times of the day?
- Have you committed offences in this country, or have you shown that you can abide by the law since you got here? Having convictions in this country, or lots of convictions in your home country, can also be a problem. The District Judge might think that you will commit more offences here. It is even more difficult if you are already on bail in this country.
- Can you hand in your passport and your ID documents, so you cannot leave the country?
Can someone pay a security?
But the most important thing is whether someone can pay a security for you. This is a sum of money, the more the better, that is paid to the court. As long as the person attends court when they are supposed to, and if they are to be extradited they turn up where they are supposed to be, the money will be given back. If the person does not turn up, some or in most cases all of it will be kept by the court.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether your would be eligible for legal aid for extradition matters. You can read more about the basics of extradition here. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
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Prison break; mental health inside prison
Since May 2017 the prison population has grown beyond projected figures to 86,413 despite fewer offences being brought to court. An official capacity of 87,209 in the UK’s prisons is fast being approached. With conditions in prisons already at breaking point and provisions for prisoners worse than ever, the simple fact is that our country needs to overhaul the way in which we they are treated, especially those with mental health problems.
It is a damning indictment that the pride we place, or at least once did, on the provision of an NHS for all does not extend to those in custody. The Guardian recently reported that medical provision was so bad in some prisons that if it were a privately run service outside, it would be shut down. It should be noted that those in custody include defendants awaiting trial as well as those serving sentences, not that the distinction should matter, as health care ought to be a basic expectation.
The purpose of any sentence is not just to punish but to rehabilitate; we cannot as a society do that, or claim to do that, if the most vulnerable are left to suffer. Mental health services are in decline following years of cut-backs. As a result more defendants with mental illnesses are coming into the prison system – it is unsurprising that during the most recent HMI visit to HMP Pentonville 25% of the population declared that they were suffering depression or suicidal tendencies on arrival, with 84% declaring problems of some kind more generally.
One of our own clients has reported that in response to his request for assistance with his serious mental health issues he was given a colouring in book. It is a sad reflection of our times that the care provision has reached such a sorry state of affairs that medical professionals actively avoid practising in some establishments.
UK prisons; profit over care?
Prisons too have suffered cut-backs; successive Conservative governments have sold off prison estate and the running of prisons to private investors. The emphasis has moved to profit over care. The direct result of those cut backs are that prisoners face more time in their cells because the ratio of staff to population is 1 to 50. Imagine being responsible for 50 young men or women, all with their own unique challenges and demands. Shockingly our zoos have a better ratio of staff to population. Couple this with the lack of appropriate mental health care and one can see why there is a rising trend of prison riots and disturbances.
Internet and mobile phones for prisoners?
Although a recent suggestion by MP Vicky Ford that inmates at HMP Chelmsford be given access to mobile phones and other technology was met with ridicule on social media, the idea is sound. With almost one in three adult offenders re-offending there has to be better support for prisoners post-release. Allowing better and more regular contact with families and friends would surely instil a sense of trust in prisoners which in turn is likely to improve self-esteem and confidence.
Our society has changed, we are now connected in far more ways than before in a digital era. Withdrawing that freedom of contact from prisoners is punishment, earning it back demonstrates that we trust them to use it properly. Incentivising learning and development with a trust based reward system has to be better than the current attitude of excessive lockdown.
If the prison population continues to grow and funding continues to decrease, we will soon be at tipping point with a prison system that does nothing to educate and rehabilitate offenders nor maintain their physical or mental health and wellbeing whilst inside. Of course, there has to be an aspect of punishment, and prison should be a deterrent, but that does not mean that we should treat our criminals with no dignity, deny them basic rights and an opportunity to rehabilitate themselves.
As we often remind the court the purpose of any sentence is punishment and rehabilitation, let’s not lose sight of the latter.
If you are facing a criminal proceedings which could carry a custodial sentence contact our team at JFH Crime on 020 7388 1658 or lawyers@jfhlaw.co.uk.
John Howey, Senior Solicitor
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