Welcome to the first edition of the Doughty Street Chambers Extradition Bulletin.  We hope this new publication and its articles are of interest to you.  It doesn't set out to be a comprehensive guide to extradition law; rather, it will highlight some topical issues and cases which, from our practical experience at Westminster and in the Appeal courts, we feel might be of use to you in your day to day practice.

In this edition Mary Westcott looks at the important report published this month by the House of Lords Select Committee on Extradition Law.  Russia has always been a state which generates work for lawyers, and Malcolm Hawkes considers their use (or abuse?) of Interpol Red Notices.  We hosted a seminar on this very topic last week, and you can read a summary of that below.  Kate O'Raghallaigh takes a closer look at the issue of proportionality, and we have additional pieces on how the victims of trafficking are supported - or not - by extradition legislation, as well as a review of the latest iteration of the Schengen Information System.

Important new case law is consistently emerging, and in this edition we launch "Cooper's Casebook", authored by Ben Cooper, the co-head of our extradition team, which looks at interesting current or recent cases before the appeal courts.  Graeme Hall and Abigail Bright also contribute with their views on two recent decisions.

Doughty Street houses some of the leading barristers working in the field of extradition and mutual legal assistance.  We appear in all the domestic courts and Strasbourg as well as courts in Northern Ireland, Hong Kong, Singapore, the Caribbean and elsewhere around the world. Many of our cases involve issues of fundamental human rights, or are test cases on evolving areas of the law, and have included Gary McKinnon, Julian Assange, Richard O'Dwyer, Babar Ahmad, Garry Mann and Christopher Tappin.  This is an area where the law evolves quickly, and as well as this publication our members also write for some of the leading practitioner textbooks, with OUP's Extradition and Mutual Legal Assistance Handbook and the Extradition Law Reports both being edited by John Jones QC. 

Legally complex and difficult cases are the ones we relish most; if you think we may be able to assist you or your clients, please don't hesitate to be in touch.  We are always happy to have an initial, no-obligation chat and provide preliminary advice where appropriate.  If you would like to know more, please contact Maurice MacSweeney who leads our criminal clerking team.

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Edward Fitzgerald QC
Co-Head of Extradition
Joint Head of Chambers

by

Mary Westcott



The House of Lords Select Committee report on Extradition Law has now been published, alongside the complete written and oral evidence gathered.  Perhaps predictably, like begets like, and rather than tangible results, many of the conclusions call for further review and additional guidelines.  The Committee concluded that,  although the EAW “is a vital tool in fighting crime across the EU … we recognise that it has been in the past overused and, on occasions, misused. We want the government to work with the European commission and other member states to make sure EAWs are used as an instrument of last, rather than first, resort.”

The report is easy to navigate and there is no real substitute for reading the original.


Update:  Prison conditions and Article 3

The question of poor prison conditions continues to feature in many extradition cases.   In a surprisingly broad submission made last summer, the Chief Magistrate (on behalf of the extradition District Judges) highlighted the “problem”:


“Prison conditions are a problem. Recently attacks have been made on prison conditions in Lithuania, Latvia, Poland, Italy, Romania, Moldova, Russia, the Ukraine, Turkey, South Africa, Kenya, Greece, among others. In most of these countries we do not now order extradition because of prison conditions, or do not do so in the absence of assurances which are not usually forthcoming. This means in effect that we have extradition arrangements with many countries to whom in practice we will not order extradition. … Sooner or later we will decline to extradite somebody who then commits a serious offence in this country.”


The position in relation to Lithuanian “accusation” cases remains much the same.  Extradition is only ordered due to the generic and now relatively old “Kaunas assurances” (which state that extraditees will only be held in Kaunas remand prison, as set out in Aleksynas v Lithuania [2014] EWHC 437). 


In Elashmawy v Italy [2015] EWHC 28 (Admin), the Divisional Court found that Italian prison conditions had improved in general since Strasbourg’s decision in Torreggiani (Application No, 43517/09). 


Meanwhile, a new generic “assurance” has recently emerged in relation to Romanian prisons and the available living space (depending on whether a person will be held in closed or semi-open regimes).


With Strasbourg’s Pilot Judgment against Hungary in Varga & Others (10 March 2015 - see Abigail Bright's article) further litigation in the extradition courts is anticipated, particularly in Horvath v Hungary (listed for hearing on 21 May 2015 in respect of male remand conditions). 


The use of generic assurances made by requesting authorities looks set to increase. Elashmawy confirms that facts do not remain static.  For the same reason, the life of a generic assurance is not indefinite and should be subject to anxious scrutiny in each case.  Obviously prison conditions not only improve, but can unfortunately deteriorate, even within the EU.


The House of Lords Committee concluded that assurances should only be used where there are serious fears of serious human rights violations.  Once issued, assurances should be rigorously scrutinised and fully comply with the Othman criteria.  Any assurance must be genuine, effective and provide real protection from human rights abuse. [para. 88]


Notably, the Committee also concluded that arrangements for monitoring assurances were flawed.  The UK cannot be sure we are fully complying with our human rights obligations as there can be ‘no confidence’ assurances are not being breached.  [para 90]


The Committee proposed that details of assurances should be made publically available and that the UK should require details of how assurances will be monitored. [para 93]


Consequently, good practice demands service of assurances in each case where they are relied on (at least until transparency is achieved by the central database idea suggested by the Committee at para 93).   In the case of any generic assurance, at least some indication should be given of how that undertaking will be monitored should extradition proceed.


Mary Westcott

by
Ben Cooper
Co-Head of Extradition

Whole-life sentences & Article 3 - Philip Harkins v UK - round 2

The European Court has intervened again in this longstanding US extradition request under the 1989 Extradition Act dating back to 2003. Mr Harkins is wanted to stand trial in Florida where, if convicted he may face a mandatory whole life sentence for manslaughter. He argues that such a sentence, for an offence of attempted robbery, which was allegedly committed when he was just 20 years old, would be grossly disproportionate because ultimately the only mechanism for reviewing the sentence rests with the Governor of Florida. The prospect of life imprisonment without parole is a sentence which Gross LJ has described as “manifestly severe and different from the sentence he would face in this jurisdiction”.

The Strasbourg Court has previously ruled that life without parole in the US is compatible with Article 3 because it is de jure and de facto reducible – for Harkins, the state governor has the power to order release and so the sentence is reducible as a matter of law. Harkins contends this remedy is too remote in practice to be meaningful and there is no evidence of executive clemency operating in favour of someone in Mr Harkins’ shoes.

This two stage test of de jure and de facto reducibility derives from the decision of the European Court in Kafkaris v Cyprus (multiple murders of an adult and two children arising out of terrorist bombings) and was adopted and applied by the House of Lords in Wellington v SSHD (double murder including a pregnant young woman).

On the same day the European Court referred Vinter v UK to the Grand Chamber, Mr Harkins’ equivalent reference was refused. Yet the Grand Chamber judgment in Vinter introduced clear procedural requirements for reviews to sentences of life without parole when finding that the UK’s mechanisms were Article 3 incompatible. Mr Harkins invited the Secretary of State to recognize that the Florida clemency system fell well short of the new Vinter standard. She refused to do so which led to a third Divisional Court considering Harkins’ case and for the first time whether the ‘dedicated review mechanism’ now required by Vinter existed in Florida. Harkins argued that the process of seeking clemency from the Florida governor does not afford a life prisoner foreseeable goals of rehabilitation and lacked due process. The High Court robustly rejected the challenge.

A dramatic twist arose when the handing down of the Divisional Court’s draft judgment coincided with the European Court’s judgment in Trabelsi v Belgium. Trabelsi was directly at odds with the judgment of the High Court and fully supported Harkins’ submissions to the English Court in upholding Trabelsi’s claim that his Article 3 had been breached by Belgium’s decision to expose him to a federal sentence of life without parole in the US which failed to comply with Vinter. When confronted with the most current authority from the European Court applying Vinter to the extradition context (which the English Court was hesitant to do) the High Court simply declined to follow Trabelsi and relied instead on the governor’s discretion to grant clemency as evidence that this power existed as a matter of both law and practice. Notwithstanding the clear conflict of the law the High Court refused permission for judicial review of its decision thereby denying access to the Supreme Court.

However, on 13^th November 2014 the European Court stayed extradition, notwithstanding its previous rejection of the Article 3 claim in the very same case.  It will now have to decide whether or not to follow Vinter and Trabelsi and overrule its previous decision in Harkins.

Mr. Harkins’ arguments may be distilled to three points: 1) the absence in Florida of a dedicated review mechanism; 2) the lack of accessible criteria, i.e. objective, pre-established criteria of which the prisoner is aware at the outset of his sentence; and 3) the absence of a right to a review of his sentence, on the basis of rehabilitative progress. The overarching concern is whether, at some point in his sentence, the absence of any legitimate penological grounds for his continued detention could result in his release. If it could not, this would render his extradition incompatible with the irreducible Article 3 standards per the Grand Chamber decision in Vinter and as applied in the Court’s subsequent case law.

Ben Cooper

by
Malcolm Hawkes

Biggles of the Interpol, one of the later novels of the eponymous ‘Air Detective-Inspector’ conjures a romantic image of the global crime-fighting organization, which now unites 190 police forces across the world. Always on the side of justice, Biggles would succeed in thwarting thieves, smugglers and the bad. However, the use and abuse of Interpol by states who do not play by the rules reflects growing concern about the role and integrity of the organization which has acquiesced to politically-motivated requests in a number of cases.

Central among these concerns lies the Red Notice, in effect an international arrest warrant, issued post- and pre-conviction the very fact of which often remains secret. Invariably a Red Notice can remain in force, long after any extradition proceedings have been defeated, no matter how glaring the injustice of the original request. Interpol rarely appears to apply any filter in accepting requests; rather, the scrutiny appears to take place, if at all, after the fact.

Safeguards

Interpol’s constitution contains two safeguards: First, Article 2, which requires it to operate ‘with the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights’; and second, Article 3, which strictly forbids it from undertaking any intervention or activities ‘of a political, military, religious or racial character’.

The Commission for the Control of Interpol’s files (‘the CCF’) is responsible for considering written applications to delete Red Notices. In exceptional cases, the CCF may meet with the applicant and/or their legal representatives. In considering a petition, the CCF applies a ‘predominance test’ whereby it evaluates the criminal, as opposed to the political, aspect of the case as well as its obligations pursuant to international law, its constitution and the context of the case as a whole.

The new head of the CCF, as of September 2014,Nina Vajić is a former judge of the European Court of Human Rights. In that role, she gave judgment in the pivotal 2012 decision on Russian prison conditions and Article 3 (torture) in Ananyev v Russia.  She ought therefore to need little persuading as to the severe consequences of issuing Red Notices on Russia’s behalf. After all, if the Russian authorities are incapable of holding a detainee in conditions which do not amount to torture or ill-treatment, ought Interpol to be entertaining any Red Notice requests from Russia at all?

Russia’s track record is cause for deep concern. For example, Peter Silaev, a Russian environmental activist who campaigned to protect a forest from development at Khimki in Russia, was accused of ‘hooliganism’ following a demonstration. Granted asylum in Finland, in August 2012 he travelled to Spain where he was arrested on the foot of a Russian Red Notice. Stranded in Spain, it took 6 months for a Spanish court to reject the Russian extradition request, yet Interpol refused to rescind the Red Notice for a further 18 months, despite the obvious political motive in that case.

This is not an isolated case. Anastasia Rybachenko, a political activist with the Russian Solidarnost movement, was reportedly the subject of a Red Notice following her participation in an anti-government demonstration in central Moscow in 2012. She fled to Estonia, fearing persecution, yet Interpol failed to respond to her petition to withdraw the notice, while the ‘offence’ itself was later the subject of an amnesty by the Russian authorities.

When the head of Hermitage Capital, William ‘Bill’ Browder uncovered an alleged £230m tax fraud in Russia committed by tax officials themselves, the response of the Russian authorities was to bar him from the country and to imprison one his lawyers, Sergei Magnitsky. Held in prison for a year in appalling conditions and deliberately denied medical treatment, in an apparent attempt to force him to deny the allegations, Mr. Magnitsky was beaten to death by prison guards on 16 November 2009. Oleg Silchenko led the police investigation and is alleged to have personally overseen Mr. Magnitsky’s torture and ill-treatment. In a macabre Russian legal first, in March 2013, Mr. Magnitsky was posthumously tried and convicted of offences of tax evasion; Mr. Browder was also tried and convicted of the same offences in absentia.

Thereafter, in May 2013, Russia issued a Red Notice in Bill Browder’s name; the furore around the Magnitsky case led Interpol to convene a special meeting after which it announced it would delete the request. Russia then accused Mr. Browder of further offences in another Red Notice request; this too, was rejected, on the grounds that it was politically-motivated.  Rumours continue to swirl about future Red Notice requests from Russia in Mr. Browder’s name, yet no-one involved in the arrest, torture and murder of Mr. Magnitsky has ever been prosecuted. Most notably, the chief investigator, Oleg Silchenko, has not merely been promoted and received awards for his work, despite being blacklisted by both the US and the EU, he continues to issue Red Notices in other cases, too.

Although Interpol can be praised for its stance regarding Mr. Browder, unlike many who are subject to such requests, he has the benefit of being a determined campaigner and both well-connected and wealthy. The fact the organization continues to accept Red Notice requests from Russia, authored by Mr. Silchenko at all is cause for serious concern.

Not least, because the corollary of being the subject of a Red Notice is an inability to travel internationally without a fear of arrest, detention and protracted extradition proceedings. For some, that might be merely an inconvenience; for others, with multinational business interests, that may be highly punitive.

This makes the scrutiny of Red Notice requests, before they are issued, all the more important to ensure that no politically-motivated or otherwise abusive requests are acted upon. The jury is out on whether under Ms. Vajic’s chairmanship, the CCF will act more robustly in refusing Russian Red Notice requests.

A rise in Russian cases?

Russia is currently facing innumerable serious problems. Its intervention in Ukraine has led to international isolation, sanctions and enormous military and civilian expenditure. At a time when the price of its principal export of oil has collapsed, causing the ruble to plummet, the country is paying a heavy price for having failed previously to diversify its economy away from hydrocarbon exports. It has also failed adequately, or at all, to address systemic corruption in every sector of society, including the courts and the police. Capital flight in 2014 was estimated to amount to $150bn; the estimate for 2015 is similar.

Now it needs that money back, Russia is pushing forwards a process of de-offshorisation, the aims of which are twofold: 1) to reveal the location and value of assets held by Russian nationals off-shore; and 2) to encourage their repatriation. New laws entered into force on 1 January 2015 which affect the tax residence of legal entities and are aimed at Russian nationals who are deemed to own or possess an interest in Controlled Foreign Companies (CFCs). Such nationals are now obliged to declare their holdings and pay the necessary taxes on them. Failure to do so by December 2017 will entail financial and criminal penalties.

This raises the question of to what extent will such individuals be pursued? The number of tax disputes in Russia is said to be rocketing. In a corrupt society, everything has its price. Those who otherwise comply with the law will be concerned that their legitimate off-shore assets may be at risk from corrupt practices and will wish to protect them. Those who do not may resort to the same to avoid transparency. Either group may well find themselves the target of prosecutions, Red Notices and fighting extradition requests.

These are likely to be testing and busy times for Interpol and those who advise upon Red Notices. If it is to fully comply with its own constitution, and the promise of its legendary Air Detective Inspector, the organization must give greater pause before rubber stamping Red Notice requests issued by abusive regimes.

Malcolm Hawkes

Schengen Information System II (“SIS II”)

As a non-Schengen member state, the UK retains control over its own borders.  Until recently this meant that the UK did not have access to the second-generation information sharing system “SIS II”. 

SIS II is designed to collect and exchange information relating to immigration, policing and criminal law.  This includes real time alerts issued for missing persons and property.  Police stations and consulates across the system can access a shared database extending far beyond the UK Police National Computer.  The new system can store biometric data to be used in unilateral searches.  The major development for extradition is that SIS II allows EAWs to be shared electronically in real time.

Judges, Ministers and commentators agree that access to SIS II data is likely to lead to a sharp increase in extradition requests to the UK.  SIS II is set to become the principal way in which the UK transmits and receives EAWs. According to Immigration Minister, James Brokenshire, SIS II:

"… will give us access to alerts that could help prevent terror attacks, trace vulnerable people, bring offenders back to the UK to face justice, and stop dangerous foreign criminals before they reach our shores.

There is widespread concern that the increase in EAW cases may become unmanageable.  The new speedy system might fetter or even sacrifice pre-certification scrutiny of EAWs.  It is not known whether or not the NCA have allocated any additional resources to cater for an increase in cases.

A tangible benefit to individuals could be the capacity to “flag” EAWs which have been refused in one jurisdiction, in order to reduce the risk of a person being arrested due to the same EAW in another jurisdiction.  Although any such system would only work by one state would automatically following another state’s decision to discharge.

SIS II is one of the relative few measures subject to this Government’s 2014 / 2015 “Opt Out” / “Opt In” hokey-kokey.  It remains relatively opaque despite being around, in draft form at least, since 2007. 

Although the UK technically accedes to SIS II on 13 April 2015, much of the practical integration has already begun.  Final accession will depend upon the results of an evaluation visit by the Council of the EU due on October 2015 and a subsequent report.

by

Kate O'Raghallaigh

Many extradition practitioners will have become somewhat familiar with sentencing practice across Part 1 states. Perhaps one of the most striking features of European sentencing practice is the mandatory minimum sentence for simple possession of controlled drugs (we know that such sentences are passed in Slovakia and Latvia, for example). Practitioners will also have come across cases where European criminal courts have, in their discretion, imposed lengthy sentences for offences of simple possession where there are no apparent aggravating features.

This short piece looks at some recent cases where extradition has been sought in relation to offences of simple possession of controlled drugs and where the length of the sentence imposed/the sentence that would flow from conviction has, one way or the other, been at the forefront of the High Court’s assessment of proportionality.  At the heart of each of these cases is a requested person who, within the confines of UK sentencing law and practice, would never receive anything close to the sentence that has been imposed/will be imposed in the issuing state. In essence, these cases have raised the following question: when does a disproportionate sentence by UK standards make extradition disproportionate under Article 8?

Katrencik, Miglans, Matuszewski and Nowak

In Slovakia, pursuant to paragraph 172 of the Criminal Code, an offence of possession of narcotics attracts a minimum sentence of 4 years’ imprisonment. Where that offence is committed by someone who has already been sentenced for the same offence, the minimum sentence is 10 years’ imprisonment, with a maximum of fifteen years. This was the provision by which the requested person in District Court Bratislava III v Richard Katrencik [2014] EWHC 2062 (Admin) received a sentence of fifteen years’ imprisonment in maximum security conditions for simple possession of 3g of methamphetamine. He received the higher minimum term because he had one previous conviction for simple possession. It was asserted in the EAW that the 3g equated to 72 doses of the drug. In Katrencik, the requested person (a recovered drug user who had served 2.5 years of the sentence) was discharged under Article 8 on the basis that the sentence imposed would cause him to be separated from his seriously ill partner for a ‘disproportionate’ period of time. At first instance, the sentence was described by the DJ as being “wholly disproportionate” to UK sentencing practice. In allowing the CPS’ appeal, Mr Justice Collins found that because of the number of doses involved, the case would have been charged as PWITS in the UK. He held that the DJ had placed too much weight on the length of the sentence. However, the Divisional Court stood by the principle that a sentence which would be “entirely disproportionate” in the UK could be “taken into account” under Article 8. It would seem, therefore, that Mr Justice Collins did not envisage that a disproportionate sentence would be decisive of proportionality.

However, in Miglans v Latvia [2014] EWHC 2659 (Admin), which post-dated Katrencik, the requested person (again, a rehabilitated drug user) faced an accusation in Latvia of possession of 0.2g of cannabis and 0.017g heroin, for which the mandatory minimum sentence on conviction was 5 years’ imprisonment. Mr Justice Ouseley allowed the requested person’s appeal under Article 8 and described the mandatory sentence as “beyond startling”:

“I find it impossible to say that a minimum five-year sentence, without any more in relation to suspension of that sentence, is proportionate. It is simply so disproportionate that extradition to face trial for that offence, risking conviction as the prosecutor must intend, and the certainty of conviction of such a sentence, would be disproportionate...I express the hope that, if Latvia continues to seek extradition for those who have or are alleged to have committed these very minor drugs offences, they will flesh out the reasons why it is proportionate to extradite an individual either by reference to personal or offending circumstances or explain what the circumstances are which make a five year minimum mandatory sentence a proportionate response to what they perceive as a drug problem in their country.”

Cases which have not involved a mandatory minimum term but which touch upon the divergent sentencing practices between the UK and the issuing state, include Matuszewski v Poland [2014] EWHC 357 (Admin) and Nowak v Poland [2014] EWHC 3466 (Admin). The former case involved a requested person aged 27 whose extradition was sought in relation to a sentence of sixteen months’ imprisonment for possession of 56g cannabis. The offence was committed when the requested person was 19 years old. In finding that extradition would be disproportionate, Mr Justice Blake observed: “There has been no EU consensus on what offences are serious...in the case of possession of Class B drugs, a custodial penalty will not result save in the case of significant aggravating factors.”

In Nowak, the requested person’s extradition was sought in relation to two convictions. He was a married father of two. One conviction was for simple possession of 7g cannabis and 2g amphetamine, the second was for possession with intent to supply. A sentence of 8 months was imposed in relation to the offence of simple possession. In finding that extradition would be disproportionate in relation to the first offence, Sir Stephen Silber found that it was “quite clear that [the offence] would not have led to a custodial sentence”.  So, it would seem that the UK’s approach to sentencing was considered highly relevant to, if not decisive of proportionality.  

Discussion

Each of these cases involved a rehabilitated drug user. All bar one involved conviction warrants. All bar one (Nowak) involved a requested person with no child dependents. In all cases save for Katrencik, extradition was considered disproportionate and in the case of Miglans, the comments of Mr Justice Ouseley regarding the (dis)proportionality of mandatory minimum terms for simple possession could not have been expressed more robustly.  What seems to have set Katrencik apart from the rest is the finding that the offence would have been treated as an offence of PWITS in the UK.

When one sets these sentences against UK sentencing guidelines, which recommend a starting point of a Band C fine for an offence of simple possession of Class A drugs (irrespective of previous convictions), it is not difficult to see how many of these cases resulted in findings that the interference with Article 8 was disproportionate. Such findings do not undermine the principle of mutual trust, but reflect the fact that the effects of a lengthy prison sentence on a rehabilitated and reformed drug user in circumstances where no mitigation can be taken into account, is a disproportionate interference with their private life.

Kate O'Raghallaigh

by

Mary Westcott


The Modern Slavery Bill has helped to raise the profile of the UK’s obligations to identify and assist victims of human trafficking.  To date, whilst the rights of victims (or potential victims) of trafficking has increasingly been acknowledged in immigration law, there has not been a corresponding increase within extradition cases.  

Although extradition proceedings should be expeditious and respect mutual trust, this does not obviate the duty of states to identify and assist victims and prevent re-victimisation (e.g. 2000 Palermo Protocol, 2005 European Convention and 2011 Directive).

Trafficking: A broad definition

An individual who has been trafficked has suffered a breach of their Article 4 rights (prohibition of slavery and forced labour) and, as with Article 3 this places positive obligations on states to prevent breaches in both requested as well as requesting jurisdictions, i.e. in this country irrespective of parallel obligations in, for example, Poland.  

Procedurally, to be considered a victim of trafficking in the UK, the person must be found to be a victim following a three stage decision making process within the “National Referral Mechanism” (“NRM”).  This process takes much longer than the 21 days envisaged for extradition proceedings.  First, an initial referral is made by a designated first responder (such as the police or local authority, but most often a charity such as the Salvation Army) which inevitably takes some time.  Second, a “reasonable grounds” decision should be reached by the competent authority (which must pass the low threshold of “I suspect but cannot prove”) within an optimistic target of 5 days.  After the “reasonable grounds” decision, the individual is granted a 45 day “recovery and reflection period”.  The aim is for the third stage, a “conclusive grounds” decision within that 45 day period (on the balance of probabilities).

There are two competent authorities in the UK.  The UK Human Trafficking Centre within the NCA deals with all cases involving a UK or EEA national.  The Home Office deals with cases where trafficking is raised as part of an asylum and immigration claim.

Although the NCA have the dual role of certifying EAWs and hosting a major part of the NRM decision making process, practitioners cannot assume that they will be notified of a pending or final determination that the subject of an EAW is a victim of trafficking.

The identification gap

Once a public authority is aware of a potential victim, then further action must be taken to establish whether or not they are a victim.  The Home Office guidance to frontline staff acknowledges that often, victims will not identify themselves.  There is, however, no mechanism at present for the CPS or the extradition courts to directly refer potential victims identified during an extradition case to the NRM.  In any event, neither the CPS nor the first instance court has demonstrated any inclination to engage with this difficult topic.  The consequence is a gap in the identification process in extradition cases that can only be filled by astute practitioners and self-referrals.  This undermines what is meant to be a comprehensive framework for the protection of victims.

Although “victim status” may not be a trump card against extradition, there is a clear public interest in the identification and assistance of victims.  Once the facts have been established, they are extremely likely to be relevant in deciding extradition issues such as proportionality, oppression and the passage of time.  It could also be argued that any such finding, whether preliminary or conclusive, should in any event be transmitted to the requesting jurisdiction.

A further review

On a positive note, following combined written evidence from 4 practitioners, the House of Lords Committee did call for a Government commission to review the interaction of obligations in extradition law as a result of the various anti-trafficking conventions: (Recommendation 8).

Doughty Street benefits from a range of specialists in this area of law across various disciplines within criminal and civil proceedings.  Readers can watch a related recent presentation here.


Mary Westcott

by

Ben Cooper

Co-Head of Extradition

Article 8 developments

The impact of F-K v Poland

Since the judgment of the Supreme Court in F-K v Poland (heard alongside HH v Italy,) the High Court has mostly applied a straightforward proportionality test to extradition in a way that courts felt restrained and unable to do hitherto. In particular, the unanimous decision of seven Justices to discharge F-K all took into account the delay in prosecuting her case, notwithstanding that she was a classic fugitive from justice.

F-K was a primary carer of five children and the appeal focused on the best interests of her youngest children born in the UK and the impact of their separation from their mother. More recently, in applying F-K, the courts have been willing to consider the impact on a dependent child of separation from fathers, as secondary carers who may also provide for their family and play important roles in their child’s life.

This year the High Court has been reconsidering its approach to Article 8 cases. For example, in Belbin v France the Court gave guidance on Article 8 appeals without any prior indication that it was intending to do so and with no issue having arisen with respect to the correct approach. The judgment in Belbin seeks to limit the scope of the High Court to interfere with Article 8 assessments by district judges absent errors of law or fact. Yet a number of Article 8 appeals have over recent weeks been allowed, notwithstanding careful proportionality assessments by district judges, on the grounds that they had reached the wrong conclusions.

For example, in Toleikis v Lithuania Aikens LJ & Males J. sitting as a Divisional court held that the district judge was clearly wrong to have treated street dealing of cannabis as a serious offence and this was an important error because it led to excessive weight being placed on the public interest in extradition. This error had vitiated the Judge’s overall conclusion on the proportionality assessment in favour of surrender. The dependent child’s best interests lay in maintaining the bond with his hard working father in Bristol. The Court also noted that this offence was capable of justifying discharge pursuant to the new freestanding proportionality bar available in accusation cases.

In Vingras v Lithuania, Silber J. held that the Judge had erred in failing to place sufficient emphasis on the young age of the offender at the time of the burglary offences and in paying insufficient regard to the UN Convention on the Rights of the Child when determining the best interests of Mr Vingras’ new baby. The Appellant’s rehabilitation was an important factor when deciding that the public interest was not best served in returning him to serve 22 months imprisonment after he had breached his suspended sentence by fleeing Lithuania. In Krzeminski v Poland, Mitting J. praised the quality of the Judge’s careful Article 8 judgment but conducted his own proportionality assessment in favour of the Appellant because the family situation had changed – the Appellant was now living with his partner who had refused to attend the extradition hearing. Although he had fled Poland and so was responsible for the delay in his case the Appellant played an important paternal role in both his daughter’s upbringing and by providing for the young family.

These three examples of the court discharging the secondary carer concerned hard working families on low incomes where the removal of the father would have made a material difference to the housing and welfare of the children. They also demonstrate how the approach in Belbin may not be followed or is being generously interpreted in favour of a full reassessment of proportionality.

The courts have also discharged secondary carers where the medical needs of a dependent child resulted the extradition of a father being disproportionate (Prostko v Lithuania,Silber J.). The needs of Prostko’s disabled son to have both his parents care for him outweighed the public interest in extradition to serve 26 months for trafficking amphetamine.

In Jaskula v Poland Cranston J. discharged a woman of Roma ethnicity who had been trafficked by a gang in Poland on the grounds that her soon-to-be-born baby’s Article 8 rights outweighed the public interest in her return to Poland for various offences of theft. This was despite Kenneth Parker J. acceding to Poland’s request for time to obtain a specific assurance concerning adequate child care arrangements in a mother and baby unit within a particular prison.

The inadequacy of care plans for dependent children in the event of the removal of their sole carers has been scrutinized in recent cases such as ZZ v Lithuania, where Collins J. discharged a single mother of three young children. Despite counsel being instructed by Social Services at both first instance and on appeal, the care plans had to be revised on a number of occasions due to material inaccuracies. The plan had wrongly treated police complaints from racially-prejudiced neighbours as credible. In the end when the care plan was finally adequate the Court followed F-K and deemed the very fact of separation of the children from their mother to be disproportionate. A failure to scrutinize the adequacy of a care plan by the High Court has led to post extradition challenges by means of judicial review of the local authority’s failings under the Children Act.

Curfews and proportionality

An important recent feature of Article 8 cases has been the Court’s willingness to take account of the time a requested person has been subject to a curfew in the UK. In Mazurkiewicz v Poland, the High Court accepted the appellant had served the entirety of his Polish sentence while on a qualifying 9-hour curfew in the UK and on that ground alone ordered his discharge pursuant to Article 8. Subsequent decisions have considered time spent on a tagged curfew of less than 9 hours may help tip the proportionality balance in the appellant’s favour (Jaskula v Poland). UK law considers a 9-hour, electronically-monitored curfew to equate to half-a-day in prison: s. 240a CJA 2003. Polish law can permit a sentence to be served on curfew, although this is discretionary. The UK courts are now better equipped to conduct more careful and expansive proportionality exercises that weigh in the balance all features of an Appellant’s case including lengthy restrictions on liberty pursuant to curfews awaiting extradition. 

Ben Cooper represented the Appellants referred to in this article.

by
Graeme Hall

Kandola and others v Germany and another [2015] EWHC 619 (Admin) 
Aikens LJ and Nicol J


Kandola provides the definitive interpretation of section 12A of the Extradition Act (‘EA’) (in force since 21 July 2014) and the steps to be followed to ascertain whether extradition is barred due to the absence of a decision to prosecute. Clicking this link will take you to a copy of the judgment. 

As a preliminary point, if the RP does not raise a challenge under s. 12A, there is a presumption that there has been a decision to prosecute [30]. Where the RP brings a challenge under section 12A, there is a two-stage test, which may be summarised as follows:

Stage 1

(i) Are there reasonable grounds to believe that the Requesting Authority (‘RA’) has not made the decision to charge the RP?

(ii) If not, are there reasonable grounds to believe that the RA has not made the decision to try the RP?

(iii) If either or both of the above questions are answered in the affirmative, are there reasonable grounds to believe that the failure to make the requisite decisions is not solely due to the RP’s absence?

Stage 2

(iv) If so, can the RA prove to the criminal standard that both of the requisite decisions to charge and try have been taken?

(v) If not, can the RA prove to the criminal standard that this is solely due to the RP’s absence?

Under Stage 1 (i) and (ii), the RP must persuade the judge that objectively there are reasonable grounds for believing that one or both of the requisite decisions have not been taken. In essence, the RP must persuade the judge that there is a real possibility that the requisite decision or decisions has/have not been taken: simple assertion will not suffice, but nor must the RP prove the requisite failure(s) ‘on the balance of probabilities’ [30]

If the EAW, read as a whole, is clear that the requisite decisions to charge and try have been taken, then the judge need enquire no further [31]. Further information from the RP should not be permitted to undermine clear statements in the EAW that the requisite decisions have been taken [32]. If it is unclear from the terms of the EAW whether the requisite decisions have been taken, the judge can consider extraneous material [32]. 

Where the requisite decisions have not been taken, or it remains unclear whether they have been taken, under Stage 1 (iii), the RP must then satisfy the judge that objectively there are reasonable grounds to believe that this failure is not solely due to his absence. Again, the burden falls on the RP and may require extraneous evidence: mere assertion is not sufficient [33].

If the RP can persuade the judge that there are reasonable grounds to believe that (i) the requisite decisions to charge and/or try have not been made, and (ii) that the RP’s absence is not the sole reason for that failure, the burden shifts to the RA to prove to the criminal standard that:

1. A decision to charge has been made; and
2. A decision to try has been made; or
3. The failure to make either or both of the decisions is solely due to the RP’s absence [34].

The judgment suggests that such tests will ordinarily be met by further information from the RA answering the suggested questions at [34]. These statements may be challenged by the RP but protracted proceedings involving expert evidence are to be avoided.

Of note, in assessing (c), where a RA has failed to utilise without reasonable grounds the provisions of Mutual Legal Assistance under European and domestic law, the RA will not prove to the criminal standard that the sole reason for failing to make the requisite decisions is the RP’s absence ([38]-[43]). 


Graeme Hall

by 
Abigail Bright


Varga and five others v. Hungary, a Chamber judgment of 10^th March 2015 (application nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13)

Issue for hearing: Systemic overcrowding in prisons

On 10 March 2015, the European Court of Human Rights handed down its judgment in Varga & others v Hungary, finding a breach of Article 3 due to chronically overcrowded prison conditions. In the first decision of a reported 450 pending applications on the same point, the seven-strong court found, unanimously that there is systemic overcrowding in the Hungarian prison estate which breaches the high threshold for a finding of torture and ill-treatment. Moreover, the court found that the applicants’ right to an effective remedy had equally been violated.

The decision is also notable, since it marks a departure in Strasbourg’s usual practice of suspending the resolution of pending cases before a pilot judgment is handed down. This usually affords an offending state three months to appeal the decision and also a timetable by which to make the necessary improvements or legal amendments to address the court’s findings.

It may be, then, that thecourt has decided that allowing the pending cases to continue to the merits stage, will exert sufficient pressure on the Hungarian authorities to make amends. Indeed, the judgment not only awarded each applicant substantial damages and their costs, it included a demand that urgent remedial measures be taken.

The corollary of this decision is surely that no EU member state will contemplate acceding to any Hungarian extradition request for the time being.

Of greater concern, perhaps, is the vexed chronology to Strasbourg decision in Varga. Hungary has been the subject of four previous decisions and declarations by the Strasbourg court in Article 3 prison conditions complaints. This may explain the apparently expedited timetable of three years, from the making of the complaint in Varga to judgment.

Sentencing policy

The underlying cause of the overcrowding appears to be a sharp rise in the number of prisoners due to a change in sentencing policy. As with some other Council of Europe member states, the Hungarian courts now impose minimum sentences for offences where none previously existed. Yet adding more prison space alone, as Hungary told the court it planned to do, by enlarging the personal, useable space available to each prisoner, is unlikely to solve the problem unless the sentencing regime is ameliorated.

Moreover, the Hungarian government has not released any plans or memorandums to the court for any such new addition to the prison estate. It is surely regrettable that the court did not seize this opportunity to stipulate a blueprint for reform of Hungary’s prisons. Or indeed that the court did not embrace the submissions of the Hungarian Helsinki Committee, who represented three of the six applicants, which urged the authorities to eschew the practice of pre-trial detention and make greater use of house arrest where appropriate.

Therefore, the fate of Hungarian extradition requests, to the UK at least, is unlikely to survive challenges based on its overcrowded prisons, still less the close scrutiny of any assurances relating to the same, as recently urged by the House of Lords Extradition Select Committee.

Abigail Bright

On 19th March Doughty Street Chambers hosted a seminar on INTERPOL Red Notices and other legal challenges facing those advising Russian clients.  The political situation in Russia is volatile, and the outlook for its economy is bleak.  Oil prices hover between $50 and $60 a barrel, international sanctions are biting, and the Rouble is sliding.  The ramifications for wealthy Russian individuals are scarcely any more positive: de-offshorisation and new tax regimes are being introduced, and some Russians based in the UK are now receiving letters asking them to account for and explain the provenance of their wealth.  Many of them may soon be called upon by Moscow to use their assets to help prop up the State.

In response to an increase in enquiries on behalf of Russian clients, we presented last week's event to assist those those solicitors, accountants and others who may encounter such issues.  Joseph Middleton from the Doughty Street team presented on INTERPOL Red Notices, which have been abused as a politically motivated measure to secure the arrest and return of wanted persons.  Joe outlined their far-reaching and potentially indefinite consequences for the subject of the notice, and set out how the Red Notice scheme works, the problems with it, as well as offering advice on steps which can be taken to challenge them.  Joe, a fluent Russian speaker, and others in our team have succesfully challenged a number of Red Notices, and are always happy to advise on this extremely technical area of the law.

We were particularly delighted to welcome Alex Tinsley from Fair Trials International, an organisation which campaigns to ensure states adhere to the rule of law, open justice, and a fair chance to present a defence.  Alex took us through a case study of Petr Silaev, an environmentalist who, despite being a recognised refugee from Russia, still faced arrest under a Russian Red Notice request and protracted proceedings to regain his freedom.  Doughty Street Chambers is noted by Fair Trials International as one of only four organisations of lawyers offering advice relating to INTERPOL.

Chaired by Edward Fitzgerald QC, the evening also featured a panel discussion on Russia-related issues. Malcolm Hawkes, another of our fluent Russian speakers, spoke about the ongoing process of de-offshorisation in Russia – the efforts by the state to identify and claw back funds transferred out of Russia overseas. In 2014 alone these amounted to approximately $150bn with no end in sight in 2015.

Richard Fisher QC addressed the question of the seizure of foreign nationals’ assets and how the UK authorities are alert to, and proactive in identifying and seizing such funds and property.

Attended by a number of leading city firms which specialize in private client, corporate litigation and tax law, the evening provided a welcome opportunity to demonstrate the risks and problems many Russian nationals may soon be facing, as well as identifying the best ways to help protect them.  If you think we may be able to help your Russian or other clients, please don't hesitate to get in touch.