The EU has published a report, ‘Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings’ This report details the extent to which fundamental human rights, in the context of criminal justice, are upheld across the EU. This includes the impact on those facing extradition proceedings.
Why is this important?
Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need to have the power and means to enforce the law. However, trust in the outcomes of their efforts will quickly erode without effective safeguards to control how their powers are actually used.
What rights should be protected?
Such safeguards take on various forms. Everyone is presumed to be innocent until found guilty by a court of law. People have the right to remain silent and not incriminate themselves. They should be told why they are being arrested or what they are being charged with. They should also be told what their rights are, including that they have the right to a lawyer. In certain situations, people also have a right to interpretation and translation.
What were the findings?
Some of the key findings include:
- The police inform defendants of their rights but practices vary. These range from written to oral information, including leaflets, which may be difficult to understand. Member States should ensure defendants properly understand what their rights are, and provide information in writing and orally as soon as they are a suspect. They should also pay attention to people who may have difficulties due to language or a disability, for example.
- Very often defendants receive minimal or unclear information about the charges against them. This makes it difficult for them to defend themselves. The police should properly, clearly, and fully inform suspects of their crimes and why they were arrested, as soon as possible.
- Receiving legal assistance promptly and directly does not also always occur. This is particularly true for people that have been locked up. Member States should ensure all defendants receive prompt, direct and confidential access to a lawyer before they question jailed defendants.
- Sometimes the police treat suspects as witnesses or informally question them. However, this deprives suspects of their right to remain silent and not to incriminate themselves. Member States should treat all suspects as suspects to respect their rights.
European Arrest Warrants
The report also looks at European Arrest Warrants that come from another EU Member State. As well as the issues above, defendants also face rights issues arising from having two countries involved.
- Linguistic differences often make it difficult for defendants to understand their rights when it comes to warrants and their right to consent to be transferred abroad for questioning. Member States should provide translation and interpretation services so that defendants can fully understand the charges against them and what the European Arrest Warrant entails.
- Defendants often have difficulties getting legal representation in both countries. This can be due to linguistic differences, as well as the police’s lack of knowledge about other countries’ legal systems and unwillingness to interfere in another country’s jurisdiction. Authorities in the country that process the warrant should help defendants get legal assistance in the country that issued the warrant. Member States could provide legal association lists when issuing the warrant.
The importance of lawyers
Our lawyers are trained to know your rights and perhaps more importantly, insist that they are upheld. We believe in proactive and robust defence, at every stage of the proceedings.
Whilst the UK fares well compared to some other EU countries, we can never be complacent. Time and time again we come across cases where fundamental rights have been ignored, often to the great detriment of the suspect or defendant.
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. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.Read More
In February, the Supreme Court in Ireland raised some eyebrows when it refused to extradite a man wanted in the UK for tax fraud. The case was instead referred to the European Court of Justice.
The Irish Supreme Court noted that the sentence that had been imposed meant that the requested person would still be in custody when the UK leaves the EU in March 2019. As a result, it was unclear what legal regime would apply to him after that time.
Now, an Irish Court has refused to extradite a Polish man, wanted on drugs charges. His case has also been referred to the ECJ, for them to consider the impact of the significant changes to the Polish legal system. Laws passed at the end of last year gave the Government significant control of the judiciary, allowing ministers to appoint Judges and effectively removing judicial independence.
A fundamental part of the European Arrest Warrant system is the mutual trust and confidence placed in other countries legal systems. In its simplest terms, countries that are part of the EAW scheme are trusted to have appropriate systems in place, and whilst they may be different to those in another country, they cannot be called into question by the extraditing country.
The changes to the Polish judicial system have led to the European Commission referring Poland to the European Court of Justice. When the Commission is calling into question the integrity of a country’s judicial system, it is not difficult to see why there are concerns about the continued reliance on the principle of mutual recognition.
As in the earlier case, the Irish Court has simply referred the matter to the ECJ for a decision. It has not discharged the EAW, and the practical effect in Ireland is likely to be that all extradition requests to Poland are put on hold, pending the decision of the ECJ.
Whether or not the UK Courts adopt the same approach remains to be seen. Whilst the future status of the ECJ in the UK post-Brexit remains unclear, it would be ironic if the UK Courts chose to defer to the ECJ.
If you require help with an extradition case, please contact John Howey on firstname.lastname@example.org or 020 7388 1658Read More
On 29 March 2017, the European Council received notification from the United Kingdom (UK) of its intention to withdraw from the European Union (EU). This allows for the opening of negotiations, with the overall objective to preserve the interests of the EU’s citizens and Member States. The process creates significant uncertainties around the UK’s access to the European Arrest Warrant (EAW) system after the UK leaves the EU.
In a recent Supreme Court judgment, the Court in Dublin considered the case of Thomas Joseph O’Connor, a construction company director from Ireland, who had been convicted of tax fraud in London but absconded on bail and left for Ireland before sentence was passed. The EAW was issued by the UK authorities resulting in Mr O’Connor being arrested by the state police force of Ireland.
The issue was whether an EU Member State is required to refuse to surrender an EU citizen to the UK if that citizen will remain imprisoned there after the UK leaves the EU in March 2019.
The Supreme Court declined to extradite Mr O’Connor at this stage, and instead ruled that the case should be referred to the European Court of Justice in Luxembourg to resolve the issue.
The Court noted that the precise consequences for Mr O’Connor were very unclear. If returned to the UK, by the time Mr O’Connor finishes his prison sentence the UK will have withdrawn from the EU, and the legal regime which would apply to him in those circumstances is not clear at this stage, and is unlikely to become clear for some period of time (para 5.6):
(…) “if surrendered, Mr. O’Connor will continue to be imprisoned in the United Kingdom beyond the 29th March, 2019, when the United Kingdom will withdraw from the European Union. It is also probable that he will be tried on the absconding charge and it is possible that those proceedings may have legal consequences, whether relating to the issues involved or any possible sentence if convicted, which extend beyond the 29th March, 2019.” (para 5.8).
In this context, Mr O’Connor’s defence argued that Ireland was being asked to surrender an EU citizen in circumstances where the legal framework within which that citizen may come to be governed in the UK is at least at significant risk of being no longer subject to EU law, but will instead depend on the law of the UK. In other words, any rights which might accrue to Mr O’Connor under the EU Charter of Fundamental Rights might no longer be capable of enforcement (para 5.9), and his rights under the EAW regime as a matter of European law would not necessarily be guaranteed after the departure of the UK (para 5.20).
Hypothetical questions about what may or may not happen, in the context of Brexit remain unanswered at this stage and will not be clear until appropriate negotiations have reached a conclusion.
The judgment offers a great deal of assertion that the departure of the UK changes everything about the European Arrest Warrant scheme. There is, however, very little clarity about what precise measures of European law are engaged, so that the Court of Justice could hold that as a matter of European law, an EAW could no longer be deployed in respect of requests from the UK, either generally or in the circumstances of this case (para 5.1).
The point is novel and not the subject of any jurisprudence of the Court of Justice, which is hardly surprising as there has never been a case before of a country leaving the EU. About 20 others are now fighting extradition from Ireland to the UK on the grounds that the UK is leaving the EU. The general principles arising in the Court of Justice’s judgment will may well have implications for all present High Court cases. However, this specific case is only likely to affect extradition to the UK. Those extradited from the UK to other EU countries will of course continue to receive the protection of existing European law.Read More
After a relatively short time out of the news, Julian Assange was back making headlines again last week. His lawyers have asked Westminster Magistrates Court to withdraw the domestic arrest warrant that was issued for him when he failed to surrender himself to be extradited in 2012.
Since then he has taken refuge in the Ecuadorian Embassy, costing his friends and supporters the £200,000 they had put forward as a bail security.
At the hearing, Mark Summers QC, representing Assange, told the Chief Magistrate that the arrest warrant had ‘lost its purpose and function’ now that the European Arrest Warrant had been dropped. In Extradition proceedings, Requested Persons are granted bail in exactly the same way as they are in a criminal case, so that if they breach their conditions they can be arrested for the breach and the issue of bail looked at again, or if they fail to appear at court or surrender themselves to be extradited, they commit an offence under the bail act.
It is difficult to see the basis for Assange’s argument. As the Judicial Authority pointed out, the failure to answer bail is a separate issue to the extradition proceedings, and to withdraw it now would be tantamount to rewarding Assange for staying in the Ecuadorian Embassy for so long. In criminal proceedings, a warrant does not disappear simply because the substantive proceedings have come to an end; within the last fortnight a criminal client of ours was arrested for failing to appear at court some 6 months after he was found not guilty in his absence. Although the Judge took a pragmatic view and took no action against him, as a matter of law he was quite rightly arrested and produced at Court.
The application may simply be an attempt to persuade the Chief Magistrate to bring this whole sorry saga to an end; she could simply withdraw the arrest warrant if she was inclined to do so. However, that might set a dangerous precedent and simply encourage others to go to great lengths to avoid being found. The application may also have been brought about by the indication that Ecuador’s patience is running thin with Assange.
Either way, it seems that there might just be an end in sight.
John Howey, Senior Solicitor
On 6th February the Chief Magistrate, Emma Arbuthnot, ruled that the arrest warrant should not be withdrawn. In her judgment, she said;
‘It is not uncommon for Bail Act offences to be pursued when the substantive proceedings are no longer in existence’
which reflects our own experience in recent weeks. She went on to say;
‘Many authorities underline the importance of a defendant attending court when bailed to do so and they describe the way that the administration of justice can be undermined by defendants who fail to attend’
As we expected, the Chief Magistrate has refused to allow Mr Assange to reap the rewards of his extended stay in the Ecuadorean Embassy.
You can read the full judgment hereRead More
Extradition Appeal victory for JFH Crime
Our team have been successful in an extradition appeal against the decision to extradite a 30-year-old woman to Lithuania. She was wanted to serve an 18-month prison sentence for fraud and to stand trial for other similar offences.
Our client is the mother of two young children. The children had been cared for by their grandmother since her remand in custody almost a year ago. She and her ex-partner entered the UK using false identity documents and she was convicted of those offences in this country. Although she was born in the Soviet Union, she had never regularised her immigration status in independent Lithuania; she faced insurmountable obstacles in establishing her right to citizenship of that country, hence the assumed identity.
Her ex-partner, who has previously been convicted of murder in Lithuania, has now been removed from the UK. He is facing a further potential murder charge in Lithuania. Before she was arrested, she was the victim of domestic violence and extreme controlling behaviour from her husband.
Children’s right to private and family life
She challenged extradition on the basis that her statelessness meant she could never return to the UK if she were extradited. If that happened, she would never be reunited with her children. By the time her appeal was heard, her two children had been severely affected by their mother’s arrest and imprisonment. They were at real risk of further significant and serious psychological harm if their mother was extradited. The local social services were about to begin care proceedings, as their grandmother could no longer look after the children.
The High Court judge hearing the case, Sir Wyn Williams, described the case as one of the most difficult of its type. He accepted that if our client were extradited, she would automatically lose custody of her children. This was because she would be unable to contest care proceedings in the family court. He concluded that this outcome would be a clearly disproportionate interference with her and her children’s right to private and family life.
After her release, we received a very nice ‘thank you’ card from the client. she said;
‘It’s only a thank you card but for me thank you means much more. It’s only because of this company I have the opportunity to send this card from outside. I am so thankful for everyone and for everything’
In court, our client was represented by Malcolm Hawkes of Doughty Street Chambers.
John Howey, Senior Solicitor
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 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.
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.
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.
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 email@example.com.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