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The forum bar - problem solved?

Extradition reforms continue apace but many issues remain, says London extradition lawyer Thomas Garner.

GTS

The advent of the internet and the globalisation of business has meant that it is increasingly common for persons in the UK to find themselves accused of crimes abroad despite, in some cases, having never left the UK. Campaigners have long argued that there should be a forum bar in UK law to prevent extradition for offences that should be properly tried in the UK.

A forum bar

In 2010, in response to increasing criticism, the government ordered a review into this country’s extradition arrangements, overseen by Sir Scott Baker. One of the specific questions posed was whether it was appropriate to introduce a forum bar. The review concluded that it was not and remarked, “Whilst a small number of high profile cases have highlighted the issue of forum, we have no evidence that any injustice is being caused by the present arrangements.” Nevertheless, the government did enact a forum bar, which is contained in sections 19B-19F and 83A to 83E of the Extradition Act 2003 and came into force on 14 October 2013.

The operation of the bar is a superficially straightforward task for the judge – “Extradition is barred by reason of forum if the extradition would not be in the interests of justice”. What follows though is a close circumscription of the judge’s decision-making process. Firstly, the Act requires a judge to decide whether a ‘substantial measure of the defendant’s relevant activity was performed in the UK’. There is significant scope for complication and argument in cases with multiple defendants with multiple distinct yet overlapping roles.

The Act then lists the matters to which a judge must have regard in considering the interests of justice and explicitly states that only these matters are to be taken into consideration. No doubt there will be challenges to explore to what extent a judge is entitled to take into account matters that are not included on this list.

Finally, as if this was not enough, there is the major caveat of the ‘prosecutor’s certificate’. Regardless of the strength of any defence arguments to try the case in the UK if the judge receives a certificate from the UK prosecutor stating that they have considered the alleged offences and have taken a decision not to prosecute them in the UK then that is conclusively determinative of the issue. The judge is bound by statute to decide that extradition is not barred by reason of forum.

Challenging a decision

The decision to issue a certificate can only be challenged by means of the statutory extradition appeals procedure and the High Court must assess any challenge on the same principles and grounds as judicial review.

The reality is that the unnecessarily prescriptive wording of the forum bar and the existence of the prosecutor’s certificate, have effectively neutered its potential efficacy as a bar. It is hard to imagine cases where it would be possible to successfully raise the bar. This of course does not prevent it being argued and what is certain is that the new provision will lead to more challenges to extradition and potentially lengthy proceedings.

 

The forum bar is likely to result in much litigation over the coming years but is unlikely to stem the tide of extraditions from the UK. It would almost certainly not have saved any of the high-profile defendants of the last few years from extradition and it is highly unlikely to save many in the future. It appears to be more of a political gesture to those who have campaigned for its introduction rather than a workable bar.

Meanwhile, extradition reform continues at a pace with further significant changes tabled by this government. We are expecting a proportionality bar to be introduced and in addition a bar preventing extradition before requesting states are ‘trial-ready’. This is alongside the removal of the hostage-taking bar and amendments to the appeals procedure. In addition, Parliament is expected to debate the not insignificant matter of a potential wholesale withdrawal from the European Arrest Warrant scheme. 

Posted by:

Thomas
Garner

29 November 2013

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