On 8 September 2010, the new coalition government announced plans to review the UK's extradition arrangements. On 14 October 2010, Sir Scott Baker, David Perry QC and Anand Doobay were tasked with the challenge of conducting a review.
Over a year later, on 19 October 2011, the review panel's report was published. It is an imposing read, totalling 488 pages. The panel invited submissions from 46 bodies, including the LCCSA. It also received 209 responses from the public. Oral evidence was received on seven separate days and the panel travelled to Edinburgh, Brussels, The Hague and Washington DC in their quest to find answers. Despite oral evidence being called, it is not clear whether the panel heard from defence lawyers, although on one day it did hear from the DPP and four other CPS employees.
Since it came into force in 2004, the Extradition Act 2003 has been nothing but controversial. In particular, the fast-track European arrest warrant (EAW) has come under attack from those that believe it is being abused by certain member states. For the period 1997-2003, 781 requests for extradition were made to the UK. In 2010 alone, there were 1,350 requests for extradition from EU member states under the EAW system and 53 requests from countries outside the EU. Those figures are set to be eclipsed in 2011 and will continue to rise when the second generation Schengen Information System (or SIS II to its friends) becomes operational in 2013.
The findings of the panel were not welcomed by all. Some have labelled the report a ?whitewash?. It is a huge disappointment to those facing extradition to the USA who had pinned so much hope on the panel making recommendations that would have had a positive effect on their case, in particular with regard to ?forum?.
Shami Chakrabarti, director of Liberty, said she was ?baffled? by the review's findings: ?Britain's rotten extradition system stinks of human rights abuse and rank hypocrisy. It's time we stopped parcelling people off around the world like excess baggage and remembered the duty of all governments to protect their people and treat them fairly.?
However, it's not all doom and gloom. The review panel made several important recommendations ? none more so than with regard to legal aid. Like criminal matters in the magistrates' court, extradition proceedings are subject to means testing. This is difficult when many applicants may be employed casually (often cash in hand). Providing evidence of employment is difficult for those remanded to HMP Wandsworth. The panel recommended that ?careful but urgent consideration be given to the reintroduction of non means-tested legal aid for extradition proceedings in England, Wales and Scotland? (as is the position in Northern Ireland). It also said that, if the government decides not to reintroduce non-means-tested legal aid, then other steps (such as giving the court discretion to grant legal aid) need to be taken urgently to remedy the present ?unsatisfactory situation?.
Another important recommendation was that any future amendment to the EU framework decision on extradition should include a proportionality test. This would be applied in the country issuing the EAW. The result should be a reduction in requests for extradition for trivial offences. Under the 2003 Act, a judge cannot refuse to surrender a person solely because the offence is deemed to be trivial and the courts have found themselves dealing with, for example, exceeding an overdraft limit, theft of chickens and trafficking a garage gate.
The panel also considered representations regarding conviction cases where the subject of the extradition request is a UK national or resident and recommended that the 2003 Act be amended to allow the judge at the extradition hearing to refuse to surrender a convicted person if the person is a British resident or national or is staying in the UK and the sentence imposed is 12 months or less. In those situations, the person would serve their sentence in the UK, closer to their family. Part 1 of the 2003 Act imposes a strict deadline for the lodging and service of appeal notices. For those who have had their extradition ordered and are remanded in custody, it is almost impossible to comply with the seven-day limit, especially if unrepresented. The panel recommended extending this period from 7 days to 14.
At present, any duty solicitor who has a court 1 duty at Westminster magistrates' court is required to represent extradition clients. Some solicitors are experienced but others may never have conducted extradition work before. There is currently no requirement for the duty solicitor exam to include extradition scenarios. Judges made representations saying ?lawyers who are familiar with extradition law are better able to advise clients effectively and advance cases expeditiously? and the panel recommended that there should be a mandatory extradition training scheme for any lawyers who wish to engage in legal aid work. The LCCSA is looking to provide this in the very near future.
So the wait is over. The panel has reported their findings. In the end they concluded that all appears to be well with the UK's extradition arrangements. A view that is not shared by all.