Extradition (Provisional) Arrest Bill: a sticking plaster?

24 January 2020

Following on from a reference in the Queen’s Speech last year – the Government has introduced the Extradition (Provisional) Arrest BillThis Bill amends Part 2 of the Extradition Act 2003 (“the 2003 Act”) to create a new power of arrest without a domestic warrant for extradition purposes where a person has been requested by one of 6 “trusted” countries for a serious offence.


Proposed new power
The new power of arrest will enable the arrest of individuals requested by “trusted countries” without first seeking a warrant from a UK court. This new power will only apply where the request for an individual’s arrest for extradition purposes (which could take the form of an Interpol red notice) has been certified as having been issued by a specified “trusted” country in relation to a serious offence.

  • Trusted countries in the Bill are: Australia, Canada, Liechtenstein, New Zealand, Switzerland and the United States of America. See explanatory notes at para 7: “the UK has a high level of confidence in them as extradition partners, in their criminal justice systems and in their use of Interpol alerts”.
  • A serious offence: the offence must be punishable in the UK with a custodial sentence of three years or more and the conduct must be “sufficiently serious” to make it appropriate to issue a certificate.

The Explanatory Notes for the Bill explain that Part 2 provisional arrest requests are usually first made through Interpol alerts and state that the requirement for law enforcement authorities to apply to the court for an arrest warrant in respect of the requested person can take at least a matter of hours which can result in the wanted person absconding. This is the risk in the current system that the amendments seek to remedy.

The Bill does not limit the new power to Interpol alerts: [the power] “would apply in respect of any international request for arrest, provided it complies with the requirements set out in the Bill”. After arrest, the person must be brought before a judge within 24 hours. Failure to do so will result in their discharge. At the hearing, the judge will determine whether a warrant for arrest would have been ordered and if so, the extradition process continues as normal.

so why has this been introduced now?

The Government is undoubtedly keen to ensure that its tough on crime reputation remains whilst the spectre of a breakdown in European criminal justice cooperation looms. In the impact assessment for the Bill last year, the Government stated that the Bill would result in an additional 6 individuals (we assume per year) entering the criminal justice system more quickly than would otherwise have been the case. The new powers will assist in those 6 cases where any of the 6 trusted countries make a request.

The UK has extradition relations with over 100 territories around the world and the qualities required to become a “trusted partner” are unclear. Whilst the Government may feel the 6 countries selected are uncontroversial, it is not beyond the realm of possibility that this position could change at least in respect of some of these countries. An additional concern remains about who may be added to the list in future.

Streamlining a process whereby red notices can be used to arrest people does not come without issues. Interpol red notices have received much criticism internationally for being used by authoritarian regimes to “track down political refugees and silence peaceful campaigners” (Fair Trials International). Is the benefit of 6 individuals entering the criminal justice system within a shorter time frame (by hours in some cases) worth the risk that the wrong person will be arrested? Or the risk that individuals targeted by repressive regimes will be deprived of their liberty whilst in the UK (even if only temporarily)? Interpol has improved its transparency and effectiveness in recent years but the further away we move from our traditional safeguards for civil liberties (eg judicial approval for arrest warrants), the more caution is required.

 

Current process for Part 2 Countries

Part 2 of the 2003 Act deals with extradition to territories with which the UK has formal extradition arrangements based on the exchange of extradition requests between governments (other than the EAW countries scheduled in Part 1 of the Act) (section 194 allows the UK to enter into a special extradition arrangement with a country that is neither Part 1 nor Part 2).

At present, full order requests from Part 2 countries are first made to the Secretary of State who decides whether to certify the request as valid. Once certified, a judge will make a decision as to whether to issue a warrant for the requested person’s arrest. If there are reasonable grounds for believing that the conduct described in the request amounts to an extradition offence, a warrant will be issued. The person is then arrested and brought before the court for a preliminary hearing and a date is set for the extradition hearing at which the judge will determine whether the procedural requirements are met and whether any bars to extradition apply. If the requirements are met and no bars apply the judge will send the case to the Secretary of State who makes the ultimate decision as to whether to order the extradition.

 

What about the eaw?

Part 1 of the Extradition Act 2003 implements the EAW Framework Decision. At present, when an EAW is received in the UK, the NCA will conduct a proportionality assessment and certify the warrant enabling the police to arrest the requested person and bring them before a District Judge for an initial hearing and commence extradition proceedings. It is not without difficulties but it is a highly efficient way of facilitating cooperation between countries for the purposes of extradition.

Is this Bill perhaps an attempt at solving this problem by the Government?

Para 7 of the explanatory memorandum explains a secondary potential benefit of the Bill:

Additional countries in whose law enforcement systems the UK has a similar high level of confidence could therefore be specified in the future, where both Houses of Parliament approve the legislation. Should the UK lose access to the EAW, a statutory instrument may be passed to extend this arrest power to some or all of the EU Member States, subject to the affirmative procedure.

In the past politicians have often referred to the risks to security in losing access to the EAW. Now that we are approaching a Boris Brexit it is of course time for action to mitigate the loss of the EAW and avoid the UK becoming 'a honeypot for all of Europe’s criminals on the run from justice' (Theresa May October 2014, Sunday Times).

It may be that the Government hopes this new legislation will offer a part-way solution for the myriad complications that will arise from losing access to the EAW. Of course, how the EU Member States will respond to this potential solution remains to be seen. To quote Simon Coveney, Irish Minster for Foreign Affairs, on Andrew Marr in January 2020: Just because British law says something, doesn't mean that law applies to the other 27 countries. Perhaps this solution will mitigate some of the damage caused by a loss of the EAW system but many questions remain unanswered and if this is the Government’s solution we can only hope it has some more suggestions to follow.

 

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the author

Áine Kervick is an associate in our Criminal Litigation team. She has a particular interest in the international dimension of criminal cases and advises individuals in respect of extradition requests. She is also experienced in acting for individuals in internal investigations with a focus on legal professional privilege in criminal investigations and has written a number of articles on the subject.

 

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