Where the law and politics collide
Benjamin Keith discusses the complexities and challenges involved in the practice of extradition law
Extradition is where the law and politics collide. Nowhere else is the issue of other countries’ human rights examined more closely. While extradition has many similarities to immigration matters, there are two important differences: first, extradition is dealt with in public, and second, all individuals facing extradition are of course alleged or convicted criminals.
Extradition is the transfer of persons accused or convicted of criminal offences between jurisdictions. The extradition process does not entail an analysis of the evidence against the requested person; it only examines the fairness of the process the requested person will go through and any potential subsequent treatment.
Extradition in the UK is governed by the Extradition Act 2003 and is comprised of a number of different types of extradition request. The first is the European system of the European arrest warrant (EAW). It is a speedy system built around the concept that the members of the EAW scheme, which are largely members of the European Union, can be trusted to adhere to basic human rights and the international law standards of a fair trial and proper treatment in custody. There are over 100 requests every year to the UK.
The non-EU cases are often more complex. The likes of Russia and the US make frequent requests to the UK and many countries, such as India and the UAE, must prove a prima facie case before extradition is allowed.
Finally, there are those countries from which the UK receives ad hoc requests – for instance Rwanda and Kuwait.Details of the offence
The practice of extradition law is alive and well and still producing surprising results. EAW cases are difficult to win as a defence practitioner but it is still possible with the right set of skills and evidence. A key requirement is the ability to use a network of foreign lawyers and experts to prove the points made in court.
Extradition cases are dealt with at Westminster Magistrates’ Court and appeals are directly to the High Court. There are essentially three broad areas in which extradition can be resisted:
Technical arguments based on the contents of the request;
A bar to extradition based on personal circumstances; and
- Human rights grounds.
Technical arguments are by their nature complex and shrouded in a myriad of often impenetrable case law. However, the meat of the case is whether it is possible to properly determine from the request or EAW what a person is accused of and whether there is a criminal offence disclosed on the papers. An easy example is the criminal offence in Poland of failing to pay child maintenance: this is not a criminal offence in the UK and so extradition cannot take place.
There are also many trivial requests which are not properly filtered by the system.
An example of this is a case I dealt with recently involving an allegation that the defendant had illegally downloaded a software package with a total value of £642 in 2009. Luckily, the EAW failed to explain when or where the alleged downloading took place, and I also argued that there was no offence on the papers. It was conceded by the CPS at the final hearing and discharged, but not before the defendant had to go through the trauma of arrest and detention before he was bailed.
Another interesting example is the case of Ms Muldoon, who was accused of being part of a Spanish time share fraud perpetrated by her ex-husband and nine other defendants that was alleged to have commenced in 2000, some 16 years ago. At the time she was married to Mr Toni Muldoon, who has since become infamous as a time share fraudster and is serving a sentence of seven years in a UK prison for a myriad of offences.
She left Mr Muldoon in 2000. In 2007 she returned to live in the UK near to her mother and family. She was arrested on her return to Spain in 2008, along with her elderly mother, and released with no further action. Then, in 2016, she was arrested on an EAW and the district judge ordered her extradition to Spain.
Mr Justice Hickinbottom allowed her appeal on the basis that Spain had failed to provide any proper details of the offence she was accused of. The other defendants had been convicted and given suspended sentences in 2009 (some nine years after the alleged fraud). So, not only did Ms Muldoon have no real idea of the allegations, but she was facing a period in a Spanish prison while the case was dealt with, despite the fact that even if convicted she would not have gone to prison.
While she won the case, she cannot now leave the UK for fear of arrest on the EAW as although UK won’t extradite, this doesn’t mean she couldn’t be detained and extradited by another EU country.
Human rights safeguards
The EAW system is still beset with difficulties as many countries do not have adequate human rights safeguards in spite of joining the EU. Many jurisdictions do not have prisons that comply with human rights: Romania, Hungary, Bulgaria, Greece, and Lithuania have been found to breach article 3 of the European Convention on Human Rights in relation to the conditions of their prisons.
I was counsel in the leading case of Florea v Romania, which dealt with the fact that Romanian prisons are so overcrowded that each person has no more than a bed and minimal floor space to live in for 23 hours a day. After the Romanian government gave an assurance that those extradited would be afforded more space, the UK courts agreed to extradite. Romania then broke that promise a few months later and had to apologise.
The politics of the situation was such that the UK court had no choice but to accept the second set of promises or no one would be extradited to Romania; it is still to be seen whether the government will stick to the second set of assurances. Assurances highlight the very political nature of this area of law, as a court will be slow to ignore the promises of a state and therefore clear evidence of a flaw or inconsistency is often required to undermine an assurance.
In the non-EU cases there are many more issues to deal with and some horrendous stories. In Turkish cases I have seen some awful examples of torture. I represented a woman who disappeared for three days, during which time she was stripped naked and beaten. She was taken to a doctor whose only written comment on examination of her was that ‘there is no evidence of this woman being beaten’. Another case involved a man who had electrodes attached to his hands and genitals during interrogation.
Thankfully, these cases were discharged (due to article 3 considerations) in the magistrates’ court, but they were exceptionally harrowing and sensitive.
The UAE is an active extradition partner and it boasts some excellent new prisons. However, foreigners are frequently tortured and a few have recently died in custody there. Many UK nationals who have business interests in the UAE have fallen foul of business rivals concocting fraud cases against them with the threat of prosecutions. They then abuse the Interpol system to request extradition. Political involvement
The most interesting cases are those where there is direct political involvement. This is often true of cases from former Soviet states. The Russian and Ukrainian governments have frequently sought extradition of political opponents, often to coincide with elections. I have seen correspondence from Kazak spies and Russian diplomats trying to fabricate evidence against my client.
In one especially striking example, the Ukrainian government accused a politician client of mine of trying to steal $100,000 from his own bank (worth $100m); the reason for that request was to force him to give evidence against former prime minister Yulia Tymoshenko, who was being politically prosecuted at the time. The case was discharged for being politically motivated as the client obtained asylum
The impending spectre of Brexit will make extradition more difficult and cumbersome for governments, and as yet there is no plan for what will replace the present system. However, it continues to be an interesting and controversial area of law that is fascinating to practise in.
Benjamin Keith is a barrister at 5 St Andrew’s Hill, specialising in extradition