Reforming cross-border justice
Current structures condemned as fragmented, inconsistent and unfit for purpose
The Law Commission has welcomed the publication of a scoping paper that calls on it to review extradition, mutual legal assistance and extraterritorial jurisdiction. The paper, produced by independent experts under an unprecedented agreement with the commission, finds that the current legal frameworks are fragmented, inconsistent and unfit for purpose.
Recommending a full reform project on modernising cross-border criminal justice, the Criminal Law Reform Now Network says that updating the law would align with Labour’s election manifesto, support the government’s new border security command agency and make court hearings more efficient.
Two years ago, the network was asked by the Law Commission to consider whether the law on extradition and international cooperation needed updating. It was the first time the government’s law reform advisers had outsourced preliminary work on a project to an external body, in this case an association of lawyers and others with an interest in reforming the criminal law.
The network published its 300-page scoping paper on international cooperation and extradition yesterday after consulting more than 80 stakeholders across the criminal justice system. It was edited by Gemma Davies, an associate professor of criminal law at Durham University.
Asked about the likelihood of reform, she told me:
While the Law Commission will now decide whether to take this forward, a full review will also require ministerial support.
I believe there’s a strong case for that next step. The review highlights widespread consensus from stakeholders across the criminal justice system that the current systems for extradition and mutual legal assistance — and the law and practice relating to criminal jurisdiction — are no longer fit for purpose.
A full consultation would offer the opportunity to create a more coherent, fair and modern legal framework.
Professor Penney Lewis, the law commissioner responsible for criminal law, said yesterday:
This is a serious, thorough and most importantly useful piece of work which will help to set the terms of the debate for law reform in this area. The review has opened up discussion within and outside government and provides a strong rationale for pursuing law reform.
This review fulfils the promise of the memorandum of understanding agreed between the Law Commission and the Criminal Law Reform Now Network in 2023. We have worked together productively without compromising the independence of either organisation.
In a short briefing paper, the network summarised its views on the three main issues it examined:
Extradition
The Extradition Act 2003 has not been reviewed since 2011, despite significant developments such as multiple legislative amendments, the UK’s departure from the EU and growing pressure on the extradition system.
Assurances are widely used but lack independent monitoring or enforceability. This undermines procedural fairness and may result in repeated litigation at public expense.
The forum bar is not operating as parliament intended. It often fails to address concerns over exorbitant jurisdiction and can result in impunity when upheld.
There is limited transparency and no statutory right of participation in specialty decisions where the secretary of state consents to prosecution for additional offences.
The bar on decision to charge and try is causing significant delays but does not reduce the time a requested person spends awaiting trial as intended by parliament.
Parallel asylum and extradition proceedings create duplication and inefficiency, contributing to delays and avoidable costs.
The Crown Prosecution Service plays a unique role in extradition hearings without statutory responsibility for legal review of incoming requests from other states, leaving a gap in independent scrutiny of requests.
A recent Supreme Court decision dramatically changed the UK’s approach to the assessment of dual criminality in extradition requests involving extraterritorial conduct. This may offer some protection against exorbitant claims to jurisdiction but may also hinder cooperation with EU and global partners.
Mutual legal assistance
Mutual legal assistance (MLA) is the formal process by which countries request and provide help in gathering evidence, sharing information or taking investigative steps for use in criminal investigations and prosecutions across borders.
MLA requests frequently encounter delays of over 12 months, impeding prosecutions. Consideration should be given to centralising police resources to support more timely and coordinated responses to overseas requests
There is no statutory clarity on the application of the Police and Criminal Evidence Act 1984 to MLA requests or the legal status of police-to-police cooperation.
Admissibility of overseas evidence is legally uncertain, which may result in an over-reliance on MLA.
MLA safeguards are not on a statutory footing but are the responsibility of the home secretary and applied on a discretionary basis. How and when these are applied can be opaque. A review would consider whether the safeguards currently applied are proportionate and necessary and if some safeguards should be on a statutory footing.
Criminal jurisdiction
The report considers the legal authority of courts to try individuals for criminal offences taking into account factors such as where the crime occurred, the nationality of the suspect or victim and the crime’s impact on the country’s interests.
The UK lacks a clear or consistent legal basis for territorial and extraterritorial jurisdiction:
Courts rely on an uncodified and conflicting mix of tests which can lead to inconsistent decision-making.
Extraterritorial jurisdiction is granted inconsistently across statutes.
There is no consistent statutory definition of who qualifies as a UK national for jurisdiction purposes.
Current frameworks risk creating impunity gaps in some cases and jurisdictional overreach in others.
Comment
If the Law Commission decides to take on this project— or even part of it — the next step would be for it to produce a consultation paper. But, as Davies observed, it would not do that without assurances from ministers that this was an area in which the government would be willing to legislate.
The former Brexit secretary Sir David Davis KCB MP has long argued that that UK’s current extradition arrangements with the US are unbalanced and dysfunctional. “This extradition treaty really cannot be allowed to stand,” he said last year.
Mike Lynch, the British entrepreneur cleared of fraud by a jury in San Francisco last year after being extradited by the UK, had been planning to campaign against the UK/US extradition treaty before he was drowned in a shipping accident.
There is an enormous overlap between the Extradition Jurisdiction (Magistrates Court) and the Asylum/Article 3 jurisdiction First-tier Tribunal (Immigration and Asylum Chamber). As many Extraditions cases feature heavily "I cannot go back because I will suffer A 3 mistreatment" type arguments which, once rejected by the criminal system, are then open to the claimant to run in the IAC. Surely there should be joint hearings of the 2 Jurisdictions, perhaps with a judge from each, doing a single set of hearings to determine the same issue, rather than the current system where the evidence is assessed twice in two completely separate sets of hearings producing substantial delay as a result.
As a very young man Sir Patrick Hastings wrote a pot-boiler on the law of extradition which he wanted to call Handcuffs Across The Sea but the publisher wouldn’t allow it. A chance for the Law Community to right that ancient wrong?