Extradition (Provisional) Arrest Bill: a sticking plaster?
By way of summary of the current position: The Extradition Act 2003 currently provides for immediate arrest in the cases of suspects who are the subject of a European Arrest Warrant. For countries outside of the EAW regime, police officers have to first obtain a domestic arrest warrant which risks the individual absconding in the intervening period between being identified and the warrant being obtained. The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster) explained that care has been taken to strike a balance between “ease of use by law enforcement agencies” and the provision of proper safeguards to those who might be arrested.
The Bill will appoint the NCA as the designated authority to identify alerts (e.g. Interpol alerts) which have been issued by one of the five specified countries for a sufficiently serious offence. Once identified, the NCA will certify those alerts which will be “clearly distinguishable” on the databases available to the police and Border Force and in this way they will identify whether an individual can be subject to immediate arrest and brought before a judge as soon as practicable.
Of interest, reference was made to statistics related to the apprehension of individuals under the EAW scheme within the last year which showed that more than 60% of arrests made under part 1 of that Act by the Metropolitan police were the result of a chance encounter.
A number of the speakers raised the point that this gap filling is welcome but in no way addresses the much larger gap soon to be torn by exiting the European Union and the EAW system. The Bill was described as “a poor and incomplete replacement for the European arrest warrant, our best crime-fighting tool”. For instance, it would not assist in the cases of Germany, Slovenia and Austria who do not extradite their own citizens to other countries except under an EAW. Last year the UK made 273 EAW requests and 234 surrenders were made on EAWs requested by the UK. 14,553 EAW requests were made to the UK by European Union Member States. See our related blog: Dying hope for a post-Brexit extradition deal.
Concerns were also expressed that as the UK seeks to do trade deals with other countries, it may soften extradition arrangements in line with this Bill (i.e. adding to its list of “trusted partners”) in exchange for favourable trade agreement terms in circumstances where the country has a poor human rights record.
Two amendments were proposed on the Third Reading in the House of Lords to address concerns surrounding the identification of “trusted partners” which the Government does not support on the basis that it considers them unnecessary.
A requirement that the Government consults prior to adding, removing or varying a territory in the Bill to be designated as a “trusted partner” including laying before Parliament a risk assessment of such actions. Including, a statement by the Government that the territory in question does not abuse the Interpol system."
A requirement that only one territory can be added per statutory instrument."
Further concerns were raised in the second reading in the House of Commons to suggest that these amendments or a form of “risk assessment” would be desirable and of particular note in relation to countries which have provision for the death penalty for instance.
We await the final position as the Bill moves through the House of Commons.
It is not difficult to imagine a scenario in which political expediency may result in an addition to the trusted partners list which the Government comes to regret. It also remains to be seen how extraditions with European Union Member States will take place after 2020 and this Bill does not provide the answer.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
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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