What changes are being made to extradition proceedings through the Criminal Procedure (Amendment) Rules 2017?
Gemma Lindfield, examines and picks out the main changes, including a new rule on consent to deal with a person for a further offence or consent to further extradition.
Original news
Criminal Procedure (Amendment) Rules 2017, SI 2017/144
What changes to extradition proceedings are being implemented in April 2017?
There is an amendment to the overriding objective at rule 1.1 of the Criminal Procedure Rules 2015 (CrimPR), SI 2015/1490 insofar as it relates to extradition. In furthering the overriding objective, CrimPR, r 50.2 makes it clear that that the court must take into account:
- mutual confidence and recognition between judicial authorities in the UK and in requesting territories, and
- the conduct of extradition proceedings in accordance with international obligations, including obligations to deal swiftly with extradition requests.
This amendment simply restates the principles that underpin extradition and therefore is unlikely to change the application of the Extradition Act 2003 (EA 2003) and associated case law.
CrimPR, r 50.3(b) gives the magistrates’ court the power to give case management directions and determine an application without a hearing. At the moment the court lists all applications, including uncontested applications for a bail variation and applications for a certificate for counsel. This amendment seems to be a pragmatic provision. The interesting issue will be the extent to which the court will give case management directions without a hearing.
The amendments deal more comprehensively with proceedings in a requested person’s absence than it had previously done. This is likely to be as a result of the decision in Lagocki and Tarabanovs v. Poland [2015] EWHC 3641 (Admin). CrimPR, r 50.3(3) makes it clear that where the court proceeds in a requested person’s absence that they must proceed as if the person were present and opposed extradition on any ground that the court was aware. This is an important amendment because it underscores that the court must still conduct an extradition hearing. The issue for practitioners is the extent to which they continue to represent a requested person at that hearing.
CrimPR, r 50.3(4)(b) provides examples of circumstances in which the court may adjourn. This list is not exhaustive but the tone of this rule is suggestive that these will be the main reasons why an adjournment may be granted. Many of these examples are already codified in legislation, for example, if the court is informed that a requested person is serving a sentence (EA 2003, ss 8B and 76B).
CrimPR, r 50.3(7) gives the court a power to shorten a time limit or extend it, even after it has expired, unless it is inconsistent with other legislation. In that regard the court may direct that a notice or application be served on any other person. It also makes clear that the court may allow a notice or application to be in a different form to one set out in the Practice Direction, or to be presented orally. This is a useful provision and allows for a less rigid approach where the circumstances require. It may mean that a very simple application being made by consent will not require an application with a fee to be lodged.
Why are these changes necessary?
CrimPR now specifically deal with obtaining further information from a requesting judicial authority and state. They also contain procedure for section 21(B) requests for temporary transfer or to speak with representatives of the requesting judicial authority. Such requests are made at present but the CrimPR now underscore that it is incumbent on the parties to 2 draw the court’s attention to the need for a direction in this regard and concisely explain the need for the further information or request.
Practitioners are expected to give ‘active assistance’ to the court. This is to ensure that proceedings are dealt with expeditiously, in conformity with the overriding objective. It will therefore be necessary for practitioners to be proactive and anticipate the issues at an early stage. It will be interesting to see if the defence will be penalised for failing to actively case manage this issue.
One important change is to CrimPR, r 50.22 which governs renewal of permission to appeal at an oral hearing. In Debicki v Regional Court Lupsk Poland [2015] EWHC 3521 (Admin) Lord Justice Burnett (with whom Mr Justice Hickinbottom agreed) found that it was possible for an application for renewal to be made orally following refusal of an application to extend time to appeal being refused on paper, see para [16] in particular. CrimPR, r 5.22(1)(b) now excludes an application to renew permission to appeal where an application to extend time to appeal has been refused. This may lead to injustice where the application is submitted out of time with little information due to late instructions and which requires more preparation in order to satisfy the court that time for an appeal should be extended. When submitting an application to appeal out of time where further information or documentation is outstanding, this should be clearly marked on the application and a timeframe for submission of further material given.
Which of the changes do you consider will have the most impact on extradition proceedings and why?
The most important change is at CrimPR, r 50.32 which is a new rule and deals with consent to deal with a person for a further offence or consent to further extradition. This rule outlines a procedure that the court ought to follow. CrimPR, r 50.32(3)(a) provides for the defendant to be served with the request unless the court deems that it would not be practicable to do so. It will be interesting to see how this will be interpreted. The court must make directions for a hearing to take place within 21 days or a later date if it is in the interests of justice (CrimPR, r 50.32(3)(b). The court must also give directions for the conduct of that hearing (CrimPR, r 50.32(3)(c).
The practical implications of this are great. If the person is served and would like to make representations at the hearing, how will they make these representations? Will they be afforded legal aid so that they may be represented? Will they appear by video-link? All of these matters will need to be considered when applying this new rule.
Gemma Lindfield is an experienced extradition, family and public law barrister with a particular focus on human rights. Gemma has been instructed in some of the most complex and high-profile extradition cases.
This article was first published on Lexis®PSL Corporate Crime on 30 March 2017.
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