Private Prosecutions – ‘Doing a Boris’
A District Judge sitting at Westminster Magistrates’ Court last week authorised that a summons be issued against the prominent conservative member of parliament, Boris Johnson.
The allegations relate to alleged conduct during the Brexit referendum campaign and in particular the £350m per week for the NHS slogan that adorned the side of campaign buses.
Johnson has applied for a judicial review of the decision, but if that is unsuccessful he will have to appear in court to answer these charges and eventually face trial at the crown court.
So what?
The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.
Is that unusual?
In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. Also, there are also a large number of other public bodies that regularly prosecute cases, generally of a specialist nature, before the courts, such as the Environment Agency, Serious Fraud Office, Local authorities, Civil Aviation Authority etc.
There are also very few well-known organisations that regularly privately prosecute cases, most notably the RSPCA in respect to allegations of animal cruelty.
But private individuals prosecuting cases are relatively rare.
Are private prosecutions always allowed?
The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.
Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.
There are many safeguards to prevent vexatious prosecutions, such as:
- Scrutiny before a summons is issued
- Abuse of Process remedies
- The ability of the Crown Prosecution Service to take over a private prosecution
- A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
- Risk of adverse costs orders if the prosecution is unwarranted
Despite these safeguards, there are still some concerns, and we are particularly alert when a private prosecutor is involved to ensure defendant’s rights, particularly concerning disclosure and fair prosecution practice, are protected. We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.
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Ireland refuses extradition of Polish criminal
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 jhowey@jfhlaw.co.uk or 020 7388 1658
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Extradition Appeal success reunites mother and children
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.
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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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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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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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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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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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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Legal aid in extradition cases; Do I qualify?
Many of our clients ask whether there is legal aid for extradition cases. The answer is yes, there is. It is actually now called a ‘representation order’, although most people still talk about legal aid. All extradition cases begin in Westminster Magistrates’ Court and you may be eligible at this stage. You can apply with any firm of your choice, so long as they have a criminal contract.
Means testing
There is a means test for legal aid for extradition cases at the Magistrates’ Court. This means that your income, your partner’s income and family circumstances will be taken into consideration. You must provide proof of your income and outgoings. The application will be made by your solicitor of choice to the Legal Aid Agency (LAA) where an assessment will be made on your disposable income. You will not have to pay any fees for your extradition hearing if you are granted legal aid.
When application is refused and you are still unable to afford a lawyer, you can make a hardship application to the LAA for them to reconsider.
Merits testing
There is a merits test for legal aid for criminal cases. However, all extradition cases automatically pass that test.
Can I change my solicitor?
If you have been successful in obtaining legal aid for extradition with a firm of solicitors and wish to instruct another firm to represent you instead, you may face difficulties. If you want to transfer, you must make an application to the Court. You must explain the reasons why you want to transfer. Therefore, it is important that you only apply for representation with a firm you feel confident in from the start.
Extradition Appeals
All appeals against extradition in the High Court qualify for legal aid. There is no means test in the High Court. This means that you will not have to provide any proof of your income and outgoings. If you instruct a firm to lodge your appeal on this basis, then you will not have to pay for the Court fees for lodging the appeal. Your solicitor will help you with the forms and all fees involved in the appeal.
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. We have a dedicated team of lawyers specialising in extradition who are here to help you.
If you want to know more about extradition proceedings, read our guide to the basics here.
John Howey, Senior Solicitor
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What happens when your client is wanted on a European Arrest Warrant?
If you are contacted by a client who suspects that there is a European Arrest Warrant issued for their arrest, that person can contact the National Crime Agency to confirm this and arrange a surrender to their local police station. If a client knows that there is a European Arrest Warrant in their name (or a warrant from a Part II country outside the EU) it is often advisable for that person to surrender to their local police station or to Westminster Magistrates Court, as this will greatly increase their chances of being granted bail later on.
Practical steps that clients can take to help themselves
If their passport or ID card has not been seized, they should try to have it brought to the police station. It will need to be surrendered if the client is to be granted bail, and only if the police can confirm they have it; it will save time later on. Steps should be taken to put a security in place. In extradition proceedings, it is incredibly rare for someone to be granted bail without a security being paid into Westminster Magistrates (a surety usually isn’t sufficient, either).
Following arrest, the client must be taken to Westminster Magistrates’ Court “as soon as practicable”. In practice that means the same day if they are arrested very early in the morning, or they live near London. If not, it is likely to be the next day. Westminster is the only Magistrates Court in the country that deals with extradition cases. There have been occasions when a client has been charged with an offence in this country, remanded to appear at their local magistrate’s court and only after they have appeared there are they brought to Westminster. That is not ‘as soon as practicable’; they have to be brought to Westminster first. If they are not, then the extradition proceedings are likely to be discharged. If they also face criminal proceedings in this country, the extradition case will then be put on hold until the criminal case has finished.
At Westminster Magistrates’ Court, a copy of the warrant, arrest statement and PNC will be provided by the Crown Prosecution Service. The arrest statement should state when your client has been arrested and when he or she was given a copy of the warrant. The District Judge at Westminster Magistrates’ Court will have to be satisfied that your client is the person identified in the warrant, and that he has been taken to court and provided with a copy of the warrant as soon as practicable. If the Judge is satisfied with these preliminary issues, then consent to extradition will be put to your client.
If your client wishes to consent to the request for their extradition, then this has to be given in writing. The legal advisor will prepare this form for your client to sign. If your client wants to resist extradition, then the issues or bars to extradition will need to be identified. The Judge will then conduct a case management and set a date for the full hearing.
A bail application will then be heard. This application can be heard regardless of whether your client consents to extradition or not. There is a presumption in favour of bail if your client is wanted for trial (known as an “accusation warrant”). There is no presumption in favour of bail if your client is wanted to serve a sentence (known as a “conviction warrant”). However, most Judges will be minded to grant conditional bail so long as a substantial security is available.
The Judge will most likely make a direction that legal aid is applied for within 7 days. All persons arrested in extradition proceedings will pass the ‘merits’ test. They are subjected to the same ‘means’ test that is carried out when you apply for legal aid in the Magistrates’ Court.
If you would like assistance with an extradition case please contact John Howey on 0207 388 1658, or email him on jfhowey@jfhlaw.co.uk.
John Howey, Senior Solicitor
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