Extradition is considered an arcane, niche subject, if thought of at all. Falling between public international law and criminal law and procedure, and domestic politics and international relations, it is a subject without an obvious discipline. That does not make it less interesting and weighty. The opposite is true. Indeed, extradition is a keyhole through which some of the biggest issues of the day are seen and examined. Terrorism, human rights and Brexit have all been the subject of extradition jurisprudence and agreements in recent years. With other issues, these have influenced the balance between the competing purposes of extradition; criminal cooperation and the protection of requested persons. Over the years that balance has swung back and forth like a pendulum, affected by the triumph of particular policy considerations at given times.
Criminal cooperation between countries is undoubtedly important. Accused persons should not escape trial by crossing a border, nor should convicted persons evade imprisonment by similar means. There are numerous judicial dicta in support of these views. Lady Hale, in HH v Deputy Prosecutor of the Italian Republic, summarised the jurisprudential position thus:
“There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back”.
Similarly, the protection of persons sought through extradition has been recognised as vital, including by way of human rights. The European Court of Human Rights (ECtHR) in the case of Sanchez-Sanchez v UK, decided in November 2022, stated that “… the prohibition of ill-treatment remains absolute… [no] distinction can be drawn between the minimum level of severity required to meet the Article 3 threshold in the domestic context and the minimum level required in the extra-territorial context”. It continued by noting the well-established position that “… the extradition of a person by a Contracting State will raise problems under Article 3 of the Convention where there are serious grounds to believe he would run a real risk of being subject of treatment contrary to Article 3 in the requesting State”.
Extradition, therefore, has two important purposes. The conflict between them can be traced to the genesis of extradition itself.
The origins of modern extradition in the late 18th century centred upon the transfer of persons wanted for political crimes back to the country with which they were at odds. The first decades of the 19th century saw the emergence of the political offence exception, excluding such crimes from the process and so turning the subject matter of extradition on its head. Thus began a history of refinements and oscillations in the balance between the cooperative and protective purposes of extradition. Oscillations is an apt word in that a ‘series of oscillations’ was the phrase used by Lord Mustill to describe the history of the political offence exception in extradition in T v Secretary of State. In 1977 the European Convention on the Suppression of Terrorism was concluded. It excluded from the political offence exception a raft of terrorism-related crimes. The cooperative facet of the process was thereby enhanced.
Over a decade later, in 1989, extradition law took a decisive step towards its protective purpose by way of the landmark ECtHR judgment Soering v UK. Soering was accused in the US state of Virginia of murdering his girlfriend’s parents. He was arrested in the UK and resisted extradition on the basis of his right to be free from inhuman and degrading treatment and punishment under article 3 of the European Convention on Human Rights. Soering argued that the death-row phenomenon in the US, from which he would suffer if convicted and sentenced to death, violated article 3 ECHR. The ECtHR upheld his argument. It found that the UK would violate article 3 were it to extradite him knowing that there was a possibility that he would be sentenced to death and spend years on death-row waiting to be executed. This case opened the door to the application of other human rights in extradition, notably article 8 ECHR, protecting the right to respect for private and family life and article 6 ECHR guaranteeing the right to a fair trial.
Just over a decade after the Soering case, in the shadow cast by the 11 September 2001 terrorist atrocities in the US, the EU’s Framework Decision on the European Arrest Warrant was concluded. The pendulum had swung back towards cooperation. Indeed, the Framework Decision represents the paradigm of heightened criminal cooperation. It does not mention, in its substantive terms, human rights. Absent also are a political offence exception and a nationality bar to extradition. A Framework List of offences largely supplants the orthodox double criminality rule in extradition, whereby the acts for which an individual is sought must be criminal in the requested country. It also eschewed political involvement in the process. It is purely judicial. The system is rightly termed one of surrender, rather than extradition. It is founded upon the principles of mutual trust and recognition.
Perhaps unsurprisingly the EAW system engendered some strident criticism, as well as praise. The former largely came from human rights campaigners and certain politicians. A human rights group in that camp is Fair Trials International. The latter generally originated from law enforcement agencies and criminal prosecutors. The Crown Prosecution Service has termed the EAW ‘absolutely vital’, as quoted in a report by the House of Lords European Union Committee. A development that mitigated somewhat the criticisms was the acceptance by the Court of Justice of the EU, albeit in a limited fashion, of the applicability of human rights to surrenders under the Framework Decision. In Criminal Proceedings against Aranyosi theCJEU Grand Chamber held that the execution of an EAW must be deferred where there is a real risk of inhuman or degrading treatment on account of the prison conditions in the issuing state. If, after considering further information including that provided by that state, the risk could not be discounted, the executing authority must decide whether the surrender procedure should end. The cooperative nature of the Framework Decision, therefore, was tempered somewhat by the jurisprudence of the CJEU itself.
Seeing the pendulum swing back towards extradition’s protective purpose as between the UK and the EU is the Trade and Cooperation Agreement 2020 (TCA). Generally governing future relations between the UK and the EU following Brexit, Title VII of Part III of the TCA concerns surrender and contains several provisions that notably move away from the cooperatively-focused Framework Decision. One of these allows the reintroduction of a nationality bar to extradition. This has been invoked fully or conditionally by 22 Member States by way of Notification to the Specialised Committee on Law Enforcement. This means that German nationals in Germany, for example, are protected from extradition to the UK. Following a decision of the CJEU, Criminal Proceedings against Petruhhin, inter alia concerning non-discrimination, the nationality bar may apply to all EU third state nationals living in a country applying the bar. Another protective facet of the TCA is its proportionality provision. That provides, in article 597, that the use of the scheme shall be necessary taking into account the rights of the requested person and the interests of the victims and having regard to the seriousness of the act, the likely penalty imposed and the possibility that less coercive measures could be taken.
As will be clear, extradition law and practice sit on ever-shifting sands. For over 200 years it has attempted to reconcile, or rather manage, existentially discordant purposes. As such, its nature has ebbed and flowed from the cooperative to the protective and back again. This process has been affected by international trends and historical forces – the rise and fall of state sovereignty, the emergence of human rights and the moves to abolish capital punishment, acts of terrorism and the responses thereto, the development of the internet and cybercrime, and most recently the UK’s departure from the EU. There is no doubt that, through the keyhole of extradition, much can be seen.