The “Non” Forum Bar in extradition?

6 March 2013

The Crime and Courts Bill on its way through Parliament contains the promised forum bar in extradition following criticism that certain cases should have been tried, if at all, in the UK rather than individuals being sent to countries like the USA.

The Home Secretary’s announcement in Parliament that she was going to introduce a forum bar in the face of the recent review suggesting it was unnecessary was seen as a major step forward and a cause for celebration. But the celebration may be short lived. True the forum bar will exist if it is “in the interests of justice” for the trial to take place here.  Further it will extend to both category one and category two countries, thus including EAW’s. But there ends the good news.

The court will have to take into account a number of considerations when deciding “the interests of justice”. Importantly, however, if the CPS issue a certificate to say that they have made a formal decision that they do not consider it appropriate to prosecute in the UK, this will be conclusive before the District Judge. Even if there is no certificate the court will have to consider the interest of victims, where most of the harm resulted, the evidence and consideration of the witnesses. It will in fairness also consider the defendant’s connection with the UK and if a substantive “measure” of the defendant’s activity was “performed” in the UK.

“Interests of justice” is one thing, but with the considerations to be taken into account, some will be of the opinion that it has become more like a non-Forum Bar. And that, together with the further restrictions on appeals means that the proposed amendments will make extradition more, rather than less controversial, in the future. If the Government thought these amendments would remove some of the criticisms surrounding the return of individuals to countries like the USA, they should think again.

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