From Certificates to Belief Statements: The CPS and the Limits of Forum Bar Intervention

The June 2025 CPS guidance on the forum bar marks a decisive narrowing of the circumstances in which prosecutor’s belief statements may be issued. Such statements (by which a domestic prosecutor expresses the view that the UK is not the most appropriate jurisdiction for prosecution) have often featured in litigation under sections 19B and 83A of the Extradition Act 2003.
 

The courts have not spoken with one voice on how such statements should be treated. In Love v USA [2018] EWHC 172 (Admin), the absence of a belief statement was held to be neutral. In Scott v USA [2019] EWHC 3424 (Admin), the presence of one was treated as a factor of real weight. More recently, in Lynch v USA [2021] EWHC 624 (Admin) and Hamilton v USA [2023] EWHC 1439 (Admin), different emphases emerged: Lynch illustrates the court’s willingness to place significant reliance on a detailed, rational prosecutorial view, while Hamilton demonstrates a readiness to scrutinise such a belief more closely and discount it where the evidential basis is weak. Together, the cases reveal the unsettled status of belief statements: sometimes influential, sometimes marginal.

The new CPS guidance responds by sharply restricting when such statements can be given. They are now permitted only where there has been a prior domestic investigation into the same conduct, formal CPS involvement, and a no-further-action decision recorded under the concurrent jurisdiction guidance, with the prosecutor fully apprised of subsequent overseas developments. Finely balanced cases are excluded, and all statements require authorisation by the relevant Director of Legal Services. In practice, this will mean belief statements are issued far less frequently.

Although the guidance was issued over the summer, it has so far attracted little comment. That may reflect the fact that it does not alter the law or the statutory framework, but rather governs internal CPS practice. Its significance is therefore more practical than doctrinal. The immediate effect is that prosecutor’s belief statements will be rarer, leaving courts to weigh the statutory factors without prosecutorial input. This will not reshape the forum bar, but it will change the way arguments are presented.

It also needs to be seen in the context of the dual role of the CPS. In extradition proceedings, CPS lawyers act for the requesting state, presenting its case to the court with duties of fairness but without applying anything like the Full Code Test. By contrast, belief statements, when they are given, must come from the domestic prosecutor who has had conduct of the underlying UK investigation. The guidance therefore underscores that only those with direct knowledge of a domestic case can express a view on forum. In doing so, it highlights the separation between the extradition function of the CPS and its domestic prosecutorial role, while at the same time insulating domestic decision-making from being tested indirectly in extradition hearings through disclosure or judicial review.

This retreat sits alongside the long-standing non-use of the prosecutor’s certificate under sections 19D/83D. A certificate, which follows a Full Code Test decision not to prosecute in the UK, has the effect of taking the issue of forum out of the magistrates’ court’s hands altogether. In practice, however, certificates are vanishingly rare: once issued, they expose CPS reasoning to potential disclosure obligations and judicial review, and may even require prosecutorial evidence to be given.

Belief statements had emerged as a looser, lower-risk alternative: they did not bind the court, but they influenced the forum analysis. The CPS’s June 2025 guidance now closes off that avenue too, insisting that only in tightly defined, exceptional circumstances should a prosecutor express such a view.

The effect is that both tools - the certificate and the belief statement - are now effectively sidelined. For the defence, the implications are mixed. The absence of a belief statement will often strengthen a forum argument by removing a factor that tends to favour extradition, while the presence of one will usually weigh against resisting surrender. For the courts, the new policy reduces the risk of overreliance on prosecutorial opinion and keeps the focus on the statutory factors, in line with the approach seen in Hamilton.

In short, the CPS is narrowing its extradition role. Certificates are too onerous to use; belief statements are now too restricted. The forum bar remains, but without prosecutorial input it will be applied differently: sometimes to the benefit of defendants when silence speaks louder than words, and sometimes to their detriment when a rare belief statement tips the balance the other way.

About the author

Rebecca Niblock is a specialist in extradition and white-collar crime, advising high-net-worth individuals, business leaders, and family offices on complex, multi-jurisdictional legal and regulatory challenges. She has extensive experience acting in politically sensitive extradition cases, INTERPOL Red Notices, mutual legal assistance requests and other cross-border enforcement actions, with a particular focus on requests originating from the United States, EU member states, India, the GCC, and the CIS.