The recently published International Cooperation and Extradition Scoping Review[1] by the Criminal Law Reform Now Network (CLRNN) will be read with interest by those advising clients subject to extradition requests.
The scoping review was commissioned by the Law Commission to examine the extent to which a project is needed in the areas of extradition, mutual legal assistance in criminal matters and criminal jurisdiction, and whether there is scope to create a more comprehensive legal framework that would enhance the effectiveness and efficiency of law enforcement and prosecution in cross border cases.
After extensive stakeholder engagement, the review identified a number of areas where reform is needed to ensure the UK's international cooperation framework is fit for purpose in the 21st century.
The key findings of the review are set out below:
Extradition
There has not been a substantive review of the UK's extradition arrangements since 2011, despite major developments including legislative changes coming into force in 2013 and 2014, and Brexit.
Although a significantly overhauled statutory framework is not recommended, there are a number of issues which support the need for reform in certain areas.
- Assurances - are now commonplace in extradition cases however there is a lack of independent monitoring and no remedy available if they are subsequently breached. Additionally, there are no clear criteria when accepting or rejecting assurances and its unclear who has authority to issue a binding assurance.
- Forum bar - has failed to resolve the problem it was designed to address. There are significant issues relating to the operation of the bar, including the issuing of a 'prosecutor's certificate', as its current form does not ascertain the most appropriate jurisdiction for a trial.
- Speciality - there is a lack of clarity over who is responsible for notifying a requested person that a request for consent has been received in Part 1 cases. The procedure does not allow the extradited person to effectively participate in proceedings and there is no statutory right to appeal. In Part 2 cases, there is no opportunity for the extradited person to make submissions.
- Decision to charge and try - intended to prevent premature extradition but causes significant delays without reducing pre-trial detention and disproportionately impacts prosecutor led states.
- Asylum – asylum and extradition proceedings often run in parallel, covering the same issues, but the decisions are not mutually binding. Naturalised former refugees may also be more vulnerable to extradition requests that those who chose not to become a British citizen.
- Dual criminality - the Supreme Court’s decision in El-Khouri has narrowed the scope of dual criminality in cases involving extraterritorial conduct. While this may protect against exorbitant jurisdictional claims, it may also result in refusals to extradite in some cases even when the conduct is a crime in both the UK and the requesting state, and the requesting state's request complies with its own rules on jurisdiction which are permissible under international law.
Mutual Legal Assistance
There has never been a review of mutual legal assistance ("MLA") which plays an increasingly important role in the criminal justice system. MLA requests are increasing in their complexity as well as volume.
Issues identified included:
- There is no legal framework for police-to-police cooperation
- The UK's domestic legal framework can make it difficult to cooperate with civil law systems.
- There is a fragmented and complex institutional framework for receiving and processing MLA requests.
- There is a lack of clarity as to when evidence obtained from other states is admissible in court in England and Wales.
- There is a lack of clarity in the application of the Police and Criminal Evidence Act 1984 ("PACE") or other domestic procedural requirements to MLA request.
- Some functions requiring MLA could be carried out police-to-police or directly between a witness and law enforcement agencies in a third state.
- The only statutory protection in the Crime (International Co-operation) Act 2003 is the rule against collateral use.
- It is unclear whether data protection laws are appropriately applied to MLA requests.
Conclusion
With an ever-increasing focus on the need for international cooperation to combat transnational crime, the root and branch review recommended by the CLRNN is evidently needed to ensure the UK is not left lagging behind its international partners and that its tools for prosecuting cross-border cases are fit for purpose.
Extradition practitioners have no doubt have come across a number of the issues highlighted above and will monitor closely any future recommendations by the Law Commission.
[1] http://www.clrnn.co.uk/publications-reports/
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