Extradition involves the forceable transfer of accused or convicted persons from one jurisdiction to another in order to face trial or serve a sentence for a criminal offence.
The last year has brought with it significant changes to this area of law: Brexit has meant that we are no longer signatories to the 2002 Council Framework Decision. On Christmas Eve of last year, the UK and EU announced and published the text of the EU-UK Trade and Cooperation Agreement, following the UK’s exit from the European Union. The Arrest Warrant provisions closely replicate the position under the EAW scheme and are sufficiently similar to those under the Framework Decision to require few changes to be made to the Extradition Act 2003.
The application of the transitional provisions was considered in the lead decision of the Divisional Court in Polakowski v Westminster Magistrates' Court Divisional Court [2021] EWHC 53 (Admin), in which five applicants were unsuccessful in challenging the legal basis for their surrender following arrests preceding the UK’s departure from the EU. The case affirmed that EAWs executed before 31st December 2020 were still enforceable under the old regime and EAWs issued but not executed before that date would constitute valid arrest warrants under the new arrangements. Further the term ‘member state’ within the Framework decision should be read to include the UK when dealing with historic arrests.
The continuation of Part 1 treatment for the EU27 is a positive outcome as it avoids the diplomatic procedure associated with Part 2 requests and should ensure that the process continues to run smoothly. The disadvantage is that the UK remains a third country for extradition in the eyes of the EU27. Therefore, the UK may encounter struggles with competing requests and in seeking the extradition of foreign nationals to the UK.
As already noted, the key principles of the new regime (contained in Article 78 TCA) very closely reflect the language in the Framework decision but there are three important differences.
First, the Court of Justice of the European Union has no jurisdiction over the new surrender arrangements; they are now overseen by a ‘Specialised Committee on Law Enforcement and Judicial Cooperation’ set up for the purpose of the agreement.
Second, in contrast to the Framework Decision, Part 3 of the Trade and Cooperation Agreement makes no reference to ‘mutual trust’ or ‘mutual confidence’ in one another’s legal systems. There is a change in tone here but the practical importance is likely to be limited as the principle of mutual trust is a defining characteristic of extradition.
Thirdly, the most important difference is that the UK has lost access to the Second Schengen Information System (SIS II). This is the most-used information-sharing system for security across the European Union which provides ‘real time’ alerts of EAWs being issued. The UK was one of the most frequent users of the SIS2 database, accessing it 603m times last year. The loss of SIS II is significant to the UK as it now has to rely on the Interpol database to access uploaded red notices, however this system is not routinely used by all EU27 states. Many requested persons were previously stopped for routine road traffic offences and using SIS II officers were able to tell immediately whether they were subject to an EAW. This is no longer possible and accounts for the recent drop in the number of new cases at WMC.
Another key theme in 2021 has been the erosion of rule of law in Europe. In particular, over recent years legislative reform in various jurisdictions has blurred the division of power between the executive and judiciary and undermined checks and balances necessary to rule of law. In turn, these developments have founded arguments by defence extradition practitioners that courts in those jurisdictions lack the necessary independence to meet the requirements of a ‘Judicial Authority’ within the meaning of the Extradition Act or to provide a fair trial for the purposes of Art 6 ECHR. Concerns (and in turn, cases) have been raised in respect of Poland and Hungary (which are both presently subject of EU monitoring pursuant to Art 7(1) of the Treaty of the European Union) as well as Romania.
On 23rd September 2021 the decision in the lead case of Wozniak [2021] EWHC 2557 (Admin) was handed down. This case considered the rule of law argument in relation to Poland however the Administrative Court has acknowledged its relevance to all EU jurisdictions, having stayed the lead appeal in Romania behind it. The argument focused not on whether Polish Courts could constitute Judicial Authorities for the purposes of our Act, but rather whether the structural deficiencies and objective impairments to fair decision making were such that each Appellant’s specific right to a fair trial was undermined. The Court concluded that systemic issues cannot demonstrate the specific and real risk of breach of the Appellant’s rights and Courts must continue to scrutinise the individual circumstances of each case. Notably however, the Appellants’ Counsel indicated an intention to seek to argue the ‘Judicial Authority’ point before the Supreme Court. Practitioners will follow the trajectory of this appeal with interest as until it is resolved the appeals of almost all those facing return to Poland, Romania and Hungary are likely to be stayed.
The year has also seen other important developments. Perhaps one of the most highly publicised case of recent times has been that of Julian Assange and his bid to resist extradition to the USA. He was successful in his challenge to extradition before Westminster Magistrates’ Court, which refused extradition on the ground that his mental health would deteriorate causing him to commit suicide with the “single minded determination” of his autism spectrum disorder. As such, his health condition rendered extradition to the US oppressive and his discharge was ordered. The US Government have been given permission to appeal that decision before the High Court and recently, in August 2021, were allowed to expand the remit of the grounds of appeal.
Another key area, still regularly litigated in extradition relates to the prison conditions in which requested persons may be held. Challenges have been brought in respect of a number of countries where prison overcrowding and / or material conditions are capable of giving rise to a real risk of the requested person suffering inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights. To assess whether there is such a risk, the courts will often hear evidence from prisons experts and receive information from recognised publicly available sources. If the court assesses that the Article 3 threshold has been reached, it can request government assurances from the requesting country to guarantee that the conditions in which the extraditee will be held with comply with international standards. Such requests are made pursuant to CJEU decisions of Aranyosi and Căldăraru C-404/15 and C-659/15.
One case relevant to this issue which came before the Supreme Court this year was Zabolotnyi v Hungary [2021] UKSC 14. The Court considered whether evidence of alleged breaches of assurances issued to a third country, Germany, could be relied upon in the context of proceedings in this jurisdiction. The Court concluded that evidence of past non-compliance with an earlier assurance will obviously be relevant to assess the reliability of future assurances, regardless of whether the assurance was issued to the UK or a third state. Despite this, the Court went on to find that the evidence did not demonstrate that Hungary could not be relied upon to honour its assurances.
At the beginning of 2021 there was a concern that the number of extradition cases would fall as a combined result of Brexit and the pandemic, the latter of which significantly curtailed international travel. However, the drop has not been as significant as anticipated. Extradition is a fast-moving area of practice in which the arguments raised evolve to reflect the prevailing political conditions both between the United Kingdom and Requesting States and also within those States. 2021 has seen case-law revisited in response to current events and the beginning of new challenges arising from the TCA regime. 2022 will see these themes continue and significant challenges arising from the changes in regime are likely to develop.
28 September 2021.
Rebecca Hill, Louisa Collins, and Natasha Draycott of 5 St Andrew’s Hill.
To access the 2021 Extradition Introduction for Chambers & Partners, click here, and our 2020 article can be found here.
