Extradition is where politics and law collide – it is the coming together of law, human rights, and international relations. It has political ramifications far beyond individual cases and is an area where authoritarian regimes can try to influence the outcomes of UK legal proceedings.
Prison Conditions and Torture
Human rights remain at the forefront of the issues raised in extradition cases. In particular, the state of foreign and UK prisons and the use of torture against suspects. This year has also seen particular emphasis by the European Court of Human Rights on USA extradition cases involving the UK, Italy and Sweden and the question of whether a sentence of life without parole is a breach of International Human Rights Standards.
The Grand Chamber of the European Court of Human Rights gave judgment in Sanchez-Sanchez v the United Kingdom. The court changed the law on extradition and life without parole, instituting a new, two-stage test. Firstly, whether an individual could show they were likely to receive a sentence of life without parole and secondly whether there was a mechanism available for release, even if it was unlikely.
The Strasbourg Court also heard the case of Balahan v Sweden dealing with a minimum sentence of 61 years under
the “three strikes”rule in California and is shortly due to hear Horne v the United Kingdom on life without parole in Florida.
The UK courts then examined Rae v USA dealing with Texas prison conditions and the applicability of the test in Sanchez-Sanchez to prison conditions.
Prison conditions in Europe and the UK remain a real problem. This year, a German court refused extradition to the UK on the basis of poor prison conditions. The UK has examined the issue in many jurisdictions. Many cases are dealt with by the provision of assurances from the foreign state giving undertakings to the UK about conditions but, in spite of assurances on issues of overcrowding, inter-prisoner violence, and dreadful facilities make this an important area of jurisprudence.
Forum and the Rule of Law
There has also been a string of US cases that relate to American prosecutions of extra-territorial offences. These arguments are being run on the basis of forum, given that the most appropriate location for trial is arguably not the United States. In the Autonomy case of Lynch v United States, it was argued that Dr Lynch should be tried in the UK for the fraud allegedly committed during the sale of the company Autonomy to HP, of which he was the CEO.
There continues to be ongoing issues with the rule of law in Poland, Romania and Hungary, as changes to the law have substantially undermined the independence of the judiciary and thus the potential fairness of trials and the extradition process itself. These attacks on the rule of law are being closely monitored by the Council of Europe and that monitoring could lead to sanctions being imposed, which could include cessation of the use of the European arrest warrant system. In addition, the UK Supreme Court will shortly consider various issues in the cases of Bertino and Merticariu relating to the right to a retrial for individuals who were absent from their original trial in EU states. The first Ukraine case to examine the issue of the impact of the war is also to be litigated in December, examining whether extradition to a war zone is permissible.
The last 12 months have marked a number of high-profile extradition requests in the field of cryptocurrency. Both the United States and South Korea are currently seeking the extradition of Terraform Labs CEO, Do Kwon, and others from Montenegro accused of misleading investors about the stability of the firm’s crypto tokens “TerraUSD”.
Crypto billionaire, Sam Bankman-Fried, has also been extradited from the Bahamas on charges of fraud and money laundering following the collapse of his cryptocurrency exchange, FTX. It is claimed the exchange allowed individuals to avoid restrictions on political contributions, which Bankman-Fried then used as leverage with politicians to support his own ends. He has pleaded not guilty to eight offences and is currently awaiting trial in federal custody.
INTERPOL continues to face criticism for the misuse of its Red Notices as a political tool, most notably by Russia and China. By issuing Red Notices on false pretences, a country can effectively mobilise police outside of their jurisdiction to search for anyone considered an enemy of the state. China is accused of transnational repression of the Uyghurs by using such means to reach them even in otherwise “safe” democratic states.
Requests From New Jurisdictions
In October 2022, judgment was handed down at Westminster Magistrates’ Court in the first South Korean extradition request, for allegations of trading fraud by a Deutsche Bank Employee. The court discharged the Requested Person on the basis that the extradition request was politically motivated as the stock market crash caused by the alleged offender had led to the prosecutors pursuing the case on a political basis. The court also found that extradition would be oppressive due to a ten-year delay and would violate the Article 3 rights of the Requested Person, due to chronic overcrowding in Korean prisons.
In November 2022, an extradition request from Mexico was discharged. The court found a real risk that extradition would breach the Requested Person’s rights under Article 3 on the basis of prison conditions, and that extradition would amount to a disproportionate interference with the requested person’s right to a private and family life under Article 8 ECHR and on the basis of ill health.
The first extradition request from Japan was also dealt with this year. The request is particularly unusual in that it is an ad hoc request, based on a Memorandum of Co-operation between the two countries rather than a pre-existing extradition treaty. The requested persons are UK nationals who are sought to stand trial for the robbery of a Tokyo jewellery store. In its judgment, the Magistrates’ Court found that Japan had failed to establish a prima facie case and also found a real risk of a breach of the Requested Persons’ rights under Articles 3, 4, 5 and 6 of the ECHR. Appeal proceedings are now pending.
This year, extradition proceedings commenced in relation to two extradition requests from Nigeria. These cases will be heard by Westminster Magistrates’ Court in the coming months. There has only been one previous contested request from Nigeria which resulted in the discharge of the Requested Person on several grounds, including lack of adequate particularisation, absence of an extradition offence, failure to establish a prima facie case and incompatibility with the Requested Persons Article 3 and Article 8 rights.
The first contested Kuwaiti requests are presently being heard before Westminster Magistrates’ Court. These cases raise a number of contested issues including the impact of torture, retrial rights and prison conditions.
Extradition therefore remains at the forefront of law, politics and human rights, and the examination of international and foreign law is still an exceptionally interesting and fertile area for jurisprudence and political intrigue.
Ben Keith is a leading barrister specialising in cross-border and international cases. He deals with all aspects of Extradition, Human Rights, Mutual Legal Assistance, Interpol, Financial crime and International Law including sanctions. He represents governments, political and military leaders, High Net Worth individuals, human rights defenders and business leaders in the most sensitive cases. Ben is recognised within Chambers & Partners High Net Worth Guide: Financial Crime, and Chambers & Partners and The Legal 500 International Crime & Extradition.
Mark Smith is a barrister specialising in extradition, international family and immigration matters. He has particular expertise in cases involving cross-border issues and parallel proceedings across multiple jurisdictions. He is recognised within the Legal 500 for his work in international crime & extradition, immigration and family: Children. Mark is recognised in Chambers & Partners for extradition and immigration.
Danielle Barden is a specialist in business crime, general crime and extradition law. Danielle is known for her skilled and eloquent advocacy and her determination to go the extra mile for her clients. She is ranked in the Legal 500 in International Crime & Extradition and in Fraud: Crime. Danielle is also recognised in Chambers & Partners for her work in Extradition.
Georgia Beatty is a specialist extradition practitioner who also has a substantial practice in Criminal Law. She is recognised in the Legal 500 and Chambers & Partners for extradition. Her extradition practice includes both Part 1 and Part 2 matters and involves a wide range of legal issues arising under the Extradition Act 2003 and the European Convention on Human Rights.