Extradition, India and a ‘prima facie’ case
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.
If you would like to discuss an extradition case, please contact John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk.
John Howey, Senior Solicitor
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European Court of Human Rights v The Court of Justice of the European Union
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.
If you would like to discuss an extradition case, please contact John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk.
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 Commons
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What is Extradition? Understanding the basics
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 either case, the requesting State contacts the UK authorities and makes an extradition request. This may result in a warrant being issued against you, you being arrested and brought to court.
It might be the case that you worry that an extradition request will be made in the future, or you know that an extradition request has been made. If that is the case you should contact us without delay so that we can advise on the options available.
If you are arrested, your case will be heard before a District Judge sitting at Westminster Magistrates’ Court in London.
At Court
When you first appear in court, there are some formalities that have to be dealt with. The District Judge has to make sure that you are the person named in the warrant, that you have a copy of the warrant and that you have been brought to court in good time. After that, you will be asked if you consent to your extradition. If you do, you should be extradited within 10 days if it is an EAW. When you are wanted outside Europe the process can take a little longer.
If you do not consent, the court will have to consider whether the tests for extradition are met. In non-EAW cases, the final decision will rest with the Home Secretary. You will be given a date to come back to Court. At that hearing, the District Judge will listen to all of the evidence and make their decision.
Finally, the District Judge will decide if you should be granted bail until the end of your case, or if you are going to be remanded in custody.
Do I Need a Solicitor specialising in Extradition?
Yes, is the simple answer. This area of Law is incredibly complex. 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 that you do not consent to extradition without proper consideration of the law, and that potential legal arguments are identified at the outset. 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
If you are contesting your extradition, the Extradition Act sets out a number of ‘bars’ to extradition. There are 8 for a European Arrest Warrant;
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)
If any of these bars apply, then extradition will not be allowed.
There are two further bars for non-European warrants, hostage-taking and the death penalty.
Read more about fighting extradition here.
Human Rights
The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights. The most common argument is under Article 8. This is the right to family life, where a person has been settled in this Country for some time. However, in recent years there have been a number of cases based on prison conditions. If the judge decides it would be both proportionate and compatible, extradition must be ordered.
When the Home Secretary is making the decision, the process is different.
It is vital that all available evidence is presented during the hearing. 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 sometimes to the Supreme Court.
Is Funding Available?
Legal aid may be available in the Magistrates Court depending on your financial circumstances. If you are not eligible for legal aid, then we will be able to offer a privately funded package. If you are appealing to the High Court, there is no financial test and everyone can get legal aid.
Our Experience
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. We have access to interpreters who speak all languages.
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 jhowey@jfhlaw.co.uk.
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WE ARE HIRING! Criminal Solicitor needed!
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.
Please, send a CV and covering letter for the attention of Mr John Howey to jhowey@jfhlaw.co.uk. Closing date for applications is the 2nd of January.
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Body-worn Cameras; Lights, Camera, Action
Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’, and the government has announced that prison officers will shortly be assisted by this new technology.
What are Body-worn Cameras?
BWCs are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.
The evidence from these cameras can be used to support a prosecution, and some argue that with officers and others aware that their actions could be caught on camera, it will result in a positive effect on behaviour.
Is behaviour calmed when a camera is present?
It is usually accepted that we behave better when being watched, for example, we are less likely to speed past a roadside camera or get involved in unlawful activity.
In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations — and not elsewhere.
A study in Rialto California (USA) in 2012 appeared to show dramatic changes in police behaviour. Complaints against police officers were down 90% compared to the previous year. Critics, however, have been sceptical of this study, in part because only 54 officers participated.
That caution did not result in a slowdown of BWC deployment and by 2015 95% of US large police departments had deployed BWC or had committed to doing so.
Now, police forces in England and Wales are following suit.
Latest research
The Rialto findings seemed to accord with common sense, but a new 18-month study of more than 2,000 police officers in Washington (USA), published on 20th October has disclosed ‘almost no effect’ on police officer behaviour.
Are BWCs a waste of money then?
This is a controversial question, and there may be many reasons for the Washington findings.
Other arguable benefits of BWCs are:
- Detecting rogue officer behaviour after the event
- Accurate recording of evidence
- Building community trust in the police – In another new study that will be published in the November 2017 issue of the journal Policing, researchers interviewed 249 people who had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.
Conclusion
It would appear that the jury is out as to the efficacy of BWCs. Supporters claim that there are definite benefits for both police and public, while detractors cite privacy concerns, sizeable public expenditure and a lack of cogent evidence to support their continued deployment.
What is clear to us is that we see the evidential worth of cameras in an ever increasing number of cases. Such evidence must, however, be analysed carefully, so as not to fall into the trap of believing that ‘the camera never lies’. We often find that video evidence is taken out of context, is distorted, and on occasions when it might be thought helpful to the defence, goes missing. It relies on the officer switching his camera on at the right time, and leaving it on for long enough.
Contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk if you would like to discuss any criminal law issues.
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Appeal from the Magistrates Court
Convicted Before A Magistrates’ Court – Can I Appeal?
Many people convicted before magistrates feel aggrieved at the outcome, and wish to consider an appeal.
A grievance may arise because they think that their case was not prepared correctly, or that the court reached the wrong result.
For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.
The court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.
So, what can I do about it?
The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction – you should not delay in contacting us.
If more than 21 days have passed, then get in touch as soon as possible as we can advise on ‘out of time appeals’.
When you contact us, we will also be able to consider whether other avenues of appeal, namely judicial review and appeal by way of case stated (both to the High Court) are more suitable.
I pleaded guilty, can I appeal?
You might be able to appeal against ‘conviction’ if you pleaded guilty, but only if your plea is ‘equivocal’. In this instance, there are two remedies that we can explore with you.
Do I need permission to appeal?
An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’, which means that you do not need any permission to appeal.
In effect, you are entitled to ‘2 bites of the cherry’ although there are some other issues, such as sentence and costs (see below) that you should consider first.
Is sentence suspended pending an appeal?
Your sentence is not suspended pending appeal, although:
– We can apply for bail if you are in custody, and
– Apply for any driving disqualification to be suspended.
If you have been made subject to a community order, this will need to be complied with, although we will take steps to try and expedite the hearing.
What happens at the appeal hearing?
The crown court, presided over by a Judge and Lay Magistrates (not a jury), hears the case afresh.
We do however have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.
We can also examine what other evidence ought to the gathered on your behalf, or what lines of attack we might usefully deploy against the prosecution case.
If I lose the appeal, what happens?
If that happens, you will be re-sentenced by the crown court, and be liable for prosecution costs. We will discuss the costs implications with you in detail before any decision to appeal is made.
It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court, so, you may receive a higher penalty.
This is one of the risks that you need to balance – and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).
Can I get legal aid?
Some people are eligible for legal aid, and in some circumstances we can apply for legal aid on your behalf.
We will be happy to discuss fixed fee arrangements – the price of high-quality representation is almost certainly much less than you might imagine it to be. If you are successful in your appeal, some of your costs may be refunded.
In the first instance contact John Howey on 020 7388 1658 or info@jfhcrime.co.uk.
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