The Origins Of The Human Rights Act As A Safeguard Against Extradition

1. One of the many innovations of the Extradition Act 2003 ('EA 2003') was the removal of a number of bars to extradition. Although these changes were the cause of considerable concern both within Parliament and beyond, the Government offered reassurances at the time that the Human Rights Act 1998 ('HRA 1998') would provide an adequate safeguard, and that these bars were therefore no longer required. Some six years after EA 2003 came into force, it remains uncertain whether HRA 1998 is indeed as adequate a safeguard as we were originally led to believe.

2. The Government's confidence in HRA 1998 in fact emerged gradually as the Bill took shape between the initial Review in March 2001 and the Royal Assent of the Act in November 2003. This paper briefly considers the extent to which HRA 1998 has provided an adequate replacement safeguard for one former bar to extradition, namely the bar of triviality.

   1. Reforming the bars to extradition

3. Broadly speaking, the following bars to extradition exist under EA 2003 for both category 1 and category 2 territories:

   1. Double jeopardy (sections 12 and 80 EA 2003);

   2. Extraneous considerations (sections 13 and 81);

   3. The passage of time (sections 14 and 82);

   4. Hostage-taking considerations (sections 16 and 83);

   5. Speciality (sections 17 and 95).

4. EA 2003 also provides for the following potential bars to extradition for category 1 territories:1

   1. The person's age (section 15);

   2. Earlier extradition to the UK from another category 1 territory (section 18);

   c.E arlier extradition to the UK from a non-category 1 territory (section 19).

5. In addition, EA 2003 provides the following bars for category 2 territories:

   1. The death penalty (section 94);

   2. Earlier extradition to the UK from another territory (section 96).

6. Finally, however, sections 21 and 87 EA 2003 require the District Judge at the extradition hearing to decide whether the person's extradition would be compatible with their rights under the European Convention of Human Rights ('ECHR'), within the meaning of HRA 1998, and, if it would not be, to order the person's discharge.

7. The Extradition Act 1989 ('EA 1989') provided a number of other additional bars which are not reproduced in the new Act. These include:

   1. If the offence was political in character (section 6(1)(a));

   2. If the offence was a military offence which is not also an offence under general criminal law (section 6(1)(b));

   3. If the offence was trivial in nature (sections 11(3)(a) and 12(2)(a)(i));

   4. If the accusation was not made in good faith in the interests of justice (sections 11(3)(c) and 12(2)(a)(iii)).

8. As the following section shows in more detail, the Government's view as to which bars to extradition should be included within EA 2003 changed numerous times during the course of the Bill's passage. It would appear that sections 21 and 87 EA 2003 were included for purely political purposes since, as public authorities, courts are bound to act in a way which is compatible with ECHR under section 6 HRA 1998. These sections were included at the request of the House of Commons European Scrutiny Committee and the House of Lords European Union Committee in late 2001, at a time when the courts' obligations under HRA 1998 were less clear than they are today.

   2. The development of the Government's reliance on HRA 1998

   March 2001: Government Review

9. Although the Labour Government had begun a modest review of UK extradition law in 1997, it was only in 2000, in the wake of the Pinochet case, that the Government embarked upon a more thoroughgoing study, leading to the publication of a Review in March 2001.2 This Review contains many features of EA 2003 in nascent form and envisage implementing an EU instrument which was still being developed at the time but which eventually became the European Council Framework Decision on the European Arrest Warrant, which was passed the following year.3 Nevertheless, there was also reason to streamline extradition proceedings between the UK and EU Member States given the Treaty of Amsterdam of October 1997, the Tampere Special European Council in October 1999, and the UK's acceptance of parts of the Schengen acquis in May 2000.4

10. It is striking that, in comparison with later documents, the Review is rather circumspect when it addresses how HRA 1998 will interact with the proposed legislative reform. Far from asserting that it will act as a safeguard, the Review admits that the Working Group was uncertain as to how HRA 1998 will affect extradition, and tentatively calls for advice:

    We would welcome views on whether safeguards specific to the conditions in the requesting state should be retained in new extradition legislation, given the further effect that has been given to ECHR rights by the Human Rights Act 1998. 5

    In view of the further effect given to ECHR rights under the Human Rights Act 1998, notably Article 2 (right to life), 3 (torture or inhuman or degrading treatment), 5 (right to liberty and security of person) and 6 (entitlement to a fair and public hearing), we have concluded that there is a potential for confusion if ECHR criteria are considered in parallel to overlapping criteria relating to extradition.

    We welcome views on whether safeguards specific to the conditions in the requesting state should be retained in new extradition legislation, given the further effect that has been given to ECHR rights by the Human Rights Act 1998.6

11. At this stage, the Review envisaged that, for 'tier one' (the forerunner of category 1) territories, the primary safeguard would not be HRA 1998 but the ECHR itself. It would not be necessary to worry about human rights violations when a tier one extradition request was made, because all territories were signatories of the ECHR:

    Given that we are considering the extradition arrangements with our EU/Schengen partners, the Working Group considered that this is, in itself, a powerful protection for an individual. All of the Member States are well established democracies with whom we have close political and economic ties. Commitment to the rule of law and democratic principles is a requirement of accession to the Council of Europe and all EU Member States and Schengen countries are signatories to the European Convention on Human Rights. We have regular extradition traffic with virtually all of our EU partners. While the overall standard of criminal justice in a requesting state cannot hold an absolute guarantee that it would be right to return every individual requested for extradition purposes, it is a reasonable presumption to make with these partners that the individual whose return is sought would be treated in accordance with ECHR principles; the requesting state, in turn, relies on the UK to provide the same protection for those who are returned here in response to an outgoing request.7

12. The Working Party recommended retaining certain restrictions (that is, a minimum sentencing threshold of 12 months in requesting state and ne bis in idem), but was uncertain as to whether certain bars should be included in the legislation, and welcomed views on the matter. These were:

    1. Military offences which are not also offences in general criminal law;

    2. Convictions imposed in absentia;

    3. Offences which are not offences under the law of the requested state where the requesting state has taken on extraterritorial jurisdiction.

13. The Review concluded that the following should not be bars:

    1. Conditions in requesting state;

    2. Dual criminality;

    3. The requirement for specialty provision to be in place;

    4. The prohibition on extradition where the fugitive is facing the death penalty;

    5. Political offence exception.8

14. The prospect of the death penalty as a bar to extradition was excluded with specific reference to the ECHR:

    This is because all of our EU and Schengen partners are signatories to the ECHR. Article 1 of the Sixth Protocol of the ECHR states "the death penalty shall be abolished. No one shall be condemned to such penalty or executed". The prohibition for the purposes of extradition is therefore no longer necessary.9

15. The Review was similarly circumspect with regard to certain bars for tier two and tier three territories, which included EU territories which had not ratified the future EU instrument, the remaining ECE states, Commonwealth countries and bilateral treaty partners. The Review asks whether bars to extradition were required in light of HRA 1998, as mentioned above, highlighting three bars specifically:

    1. If the accusation is not made in good faith in the interests of justice (sections 12(2)(a)(iii) and 11(3)(c) EA 1989);

    2. If the request is made for the purposes of prosecuting or punishing him on account of his race, religion, nationality or political opinions (section 6(1)(c));

    3. Whether he might, if extradited, be prejudiced at his trial or...