EXTRADITION: An Introduction

EXTRADITION: An Introduction

Extradition is a tool that allows countries to stretch law enforcement beyond its borders. It can be used to promote international co-operation and positive relations between states, but it can also give rise to power struggles and be used as an instrument for political gains. As such, extradition occupies a unique space, creating a tension between upholding human rights, resisting political interference and upholding international treaty obligations. In this extradition article, the team at 5SAH looks back at the key moments in extradition law from the last 12 months and looks forward to what might be on the horizon.

Prison Conditions

Challenges involving prison conditions remain prominent in extradition. From certain countries, diplomatic assurances are required to guarantee that the requested person will receive sufficient personal space and appropriate living conditions before extradition will be permitted from our shores.

There came an ironic twist in May 2024 when a Dutch court refused extradition to the UK based on the conditions in HMP Liverpool. In the last year, our prisons have been approaching full capacity, prompting the newly elected Labour government to quickly implement early-release provisions for qualifying prisoners.

In the recent case of Turkey v Demir & Ors [2024] EWHC 2351 (Admin), the High Court considered evidence that assurances issued in previous cases had been breached, casting doubt over whether future promises could be relied upon. The appeal has been stayed to allow Turkey to provide additional assurances.

In August 2024, challenges concerning the prison conditions in Albania were rejected by Westminster Magistrates’ Court (Albania v Haxhia & Others).

Permission to appeal has been granted by the High Court in respect of prison conditions in the only prison in Cyprus, and the adequacy of assurances. The leading case, Costappis v Cyprus, will be heard in November 2024.

Permission to appeal has also been granted in Parish & Salton v Belgium. This will address whether conditions in Belgian prisons pose a real risk of an Article 3 violation on account of overcrowding and the impact of industrial action by prison staff. Permission to appeal decisions is awaited in respect of Moldova and Lithuania.

Fitness to Fly

In the case of Lomas v South Africa [2024] EWHC 1141 (Admin), the High Court considered, over four hearings, where fitness to fly was part of the Article 3 assessment. In a case where the requested person had significant health issues, the court found that fitness to fly was not a separate issue but instead one incorporated into the overall assessment.

Supreme Court (“the Court”) Decision on Section 20

Whilst human rights and political arguments may be the more newsworthy, practitioners often find greater success with technical challenges. This year has seen two significant decisions from the Court on Section 20: Bertino v Italy [2024] UKSC 9 (“Bertino”) and Merticariu v Romania [2024] UKSC 10 (“Merticariu”).

In Bertino, the Court considered when a person might be deemed deliberately absent from trial. If the warrant is unambiguous on the issue, then the Court must not go behind this. However, where the warrant leaves questions, deliberate absence must be assessed, which must be read to mean he has ”unequivocally waived his right to be present at the trial”, which is not the same as simply demonstrating a ”manifest lack of diligence” in respect of the proceedings.

In Merticariu, the Court found that the right to apply for a retrial was not adequate protection if that right was dependent on a favourable factual finding of the requesting court.

The result of these decisions is that previously fixed principles relating to Section 20 are now subject to challenge (see for example Ghinea v Romania [2024] EWHC 1895 (Admin)), and (evidence permitting) some cases are arguable that previously were not.

European Court of Human Rights (ECHR)

The ECHR issued its decision in the case of Horne v UK. This is the third in a series of recent judgments refusing appeals against extradition from individuals claiming they would face whole-life sentences upon return to the USA. The Court found that there was no “real risk” of a life-without-parole sentence being imposed, applying the test adopted by the Grand Chamber in the case of Sanchez-Sanchez vs United Kingdom. The test requires a very high bar to be reached when establishing a ”real risk”, and it is difficult to envisage circumstances where it could be overcome.

Extradition and the War in Ukraine

The only ongoing request from Ukraine concluded this year. The allegation that the requested person faced was unconnected to the ongoing war with Russia. However, the effect of the war was central to many of the issues relating both to fair trial and prisons. Though the chief magistrate made some findings in relation to these matters that were favourable to Ukraine, the RP was discharged under Article 8, in part because of the time he had already spent in custody. Ukraine has not appealed this decision.

Julian Assange Case Finally Concludes

The public and media attention focused on Julian Assange’s case has been unprecedented. After seven years in the Ecuadorian Embassy in London, followed by five years in HMP Belmarsh, Assange’s case finally concluded in summer 2024.

In March 2024, the Divisional Court ruled that assurances were needed from the USA that Assange could rely on the First Amendment (free speech), that he would not be prejudiced by reason of his nationality and that he would not be subject to the death penalty. Only an adequate death penalty assurance was provided. Permission to appeal was granted in respect of the remaining two issues in May 2024.

However, prior to the substantive appeal taking place, there was an about-turn. Assange signed a plea agreement with the USA, the High Court granted him bail and he voluntarily boarded a flight to a US territory to formally enter his guilty plea to one count under the Espionage Act. He was then allowed to freely return to his native Australia.

This sea-change from the USA was reportedly influenced by a motion passed by the Australian parliament (following the election of the Labor government in May 2022) calling on the US authorities to allow Assange to return to his native Australia. The other explanation is that the assurance that permitted Assange to argue that publishing secret US information was protected by the First Amendment meant that any trial could be drawn out, placing pressure on the US prosecuting agencies to come to a deal. Assange finally stepped foot in Australia in late June 2024.

Conclusion

In this article, we can see that extradition creates a push and pull between maintaining international relations and safeguarding human rights. It continues to evolve before the higher courts, giving rise to stimulating legal challenges and keen press interest. Given the political pressures occurring nationally and internationally, this push and pull is likely to be felt even more deeply over the coming months. With on-going crossings from war-torn countries to conflicts in Ukraine and Gaza, the need to safeguard human rights is being pushed to the forefront.

Authors

David Josse KC has been Head of Chambers since 2015. He is a barrister specialising in extradition, human rights, international war crimes and serious crime, both nationally and internationally. David is ranked in the Legal 500 as a Tier 1 silk in international crime and extradition at the London Bar. He is also ranked in Chambers and Partners as a silk in the field of extradition at the London Bar

Rebecca Hill is a leading junior offering advice and advocacy to individuals in the fields of extradition, mutual legal assistance, asylum and protection and financial crime. Her breadth and depth of experience affords Rebecca a comprehensive insight and advantage when assisting clients from the pre-request stage through to possible challenges before the European Court. Rebecca is ranked as a Band 1 and Tier 1 barrister in Chambers & Partners and The Legal 500.

Louisa Collins is a barrister specialising in extradition, international crime and human rights law.  Louisa has been ranked in Chambers and Partners since 2017 and is recognised as a Band 1 leader in the field of extradition. Louisa is also ranked in the Legal 500 for her work in international crime and extradition. Louisa is recognised for her hard work ethic, her ability to handle complex and sensitive cases and also her approachability.

Ben Keith is a leading barrister specialising in cross-border and international cases. He deals with all aspects of Extradition, Human Rights, Mutual Legal Assistance, Interpol, Financial crime and International Law including sanctions. He represents governments, political and military leaders, High Net Worth individuals, human rights defenders and business leaders in the most sensitive cases. He is in The Spears' 500 2024 Guide: as a 'Recommended Immigration Law Barrister', Chambers & Partners High Net Worth Guide: Financial Crime. He is ranked as a Band 1 and Tier 1 barrister in Chambers & Partners and The Legal 500 for Extradition and is also ranked in Chambers & Partners in the field of Immigration.

Georgia Beatty specialises in extradition law. She is recognised as a Rising Star, in the Legal 500 in international crime & extradition, she is also recognised as a leading junior in Chambers and Partners for her work in extradition. Her extradition practice includes both Part 1 and Part 2 matters and involves a wide range of legal issues arising under the Extradition Act 2003 and the European Convention on Human Rights.