The effect of the coronavirus pandemic on the operation of States’ criminal justice systems – and their transnational relationships – has already cut deep. The pandemic’s implications on the practice of international human rights law are also prolific. This post is the first of two parts which will explore some of the most notable immediate effects of the pandemic on extradition practice in England and Wales, especially before Westminster Magistrates’ Court (which hears all first instance extradition proceedings) and the Queen’s Bench Division of the High Court of Justice (which hears appeals), and the immediate effects on parties’ fundamental rights.
For practitioners, the most striking effect of the pandemic is that practice has – to a large extent – become “remote”. Parties have sought to assist the Court by participating in remote hearings to help clear the backlog of cases. To the best of the authors’ knowledge, to date, no formal challenge has been lodged against a decision to proceed with an extradition hearing remotely. We therefore begin by exploring the implications of “remote justice” currently being practised in London’s extradition courts. Some potentially challenging legal and ethical issues arise.
For individual requested persons, the most important practical consequence of the pandemic is that many removals have currently (as of 5 June 2020) been suspended (although extradition to Germany continues and to Italy has now reportedly resumed). Requested persons have become subject to multiple applications to re-fix the required period (i.e. extend time) for their removal when subject to actionable orders for their extradition. This has given rise to litigation concerning the legality of ongoing detention pending removal. It also brings into focus conditions of detention at Wandsworth Prison (where those remanded in extradition are generally detained). The effect of the pandemic on conditions of detention in the EU and the US and their relationship with extradition practice forms the subject of the next part.
Remote justice
Before the pandemic, a busy day at Westminster Magistrates’ Court would see extradition solicitors, counsel, judges, requested persons, court staff, and families interact in a close-knit way that is not possible if social distancing is observed. Social distancing has reduced the number of persons able to travel safely to Court and participate physically in hearings. This includes both lawyers and requested persons remanded in custody at HMP Wandsworth who, in turn, are facing a strict lockup regime during the pandemic.
From 25 March 2020, UK law was amended to permit a person to attend an extradition hearing by live link in circumstances whereby all persons taking part in the hearing can see and hear, and be seen and heard by, all other persons. The appropriate judge (a ticketed District Judge (Magistrates’ Court)) must also be satisfied that it is in the interests of justice to proceed (sections 206A and 206C of the Extradition Act 2003 (EA 2003)).
As of 5 June 2020, substantive extradition hearings are taking place with advocates, judges, witnesses, and requested persons appearing over the “Cloud Video Platform” (CVP), a video link system. This is notwithstanding concerns expressed by the Defence Extradition Lawyers Forum (DELF), a professional association, which had suggested that a presumption be established against hearings taking place over video link where they involve the giving of live evidence. In April, DELF (here) were prepared to accept that the interests of justice test may be met in rare cases where it is in the requested person’s best interests to have such a hearing via live link, i.e. if it is highly likely s/he will be discharged. Similarly, if issues are “purely technical” (e.g. relating to matters of law such as the validity of a European arrest warrant (EAW) or whether conduct can be considered an extradition offence (sections 2 and 10 EA 2003)), DELF accepted that it may be in the interests of justice to proceed.
In cases where credibility was in issue or experts required examination, in DELF’s view it was unlikely to be in the interests of justice for the case to proceed over video link. DELF also expressed concerns that a requested person will not be able to take part effectively if there is no mechanism to give instructions in conference privately before, during, and after the hearing. DELF submitted that the interests of justice test should be considered on a hearing by hearing basis, further stating that all hearings requiring physical attendance at court should be adjourned until there comes a time where all parties can attend court safely.
There is plainly a tension between DELF’s concerns and the public interest in preventing extradition adjudication and enforcement from grinding to a halt. Westminster Magistrates’ Court has maintained a busy extradition list with requested persons appearing over video link. It is understood that some multi-day extradition hearings are taking place over CVP with plans for expert witnesses to give expert evidence from abroad, and for requested persons to appear remotely. Reports indicate that requested persons whose credibility is in issue have been cross-examined over CVP. There appears to be some ambiguity concerning the recording of formal directions that proceeding has been adjudicated to be in the interests of justice as these rulings often seem to be implied. This practice risks causing prejudice to parties’ ability to challenge decisions to proceed.
Although all agree that it is preferable for parties physically to attend Court, the risks of prejudice that DELF foresaw arising in April (together with additional unforeseen risks such as those described here), now risk materialising in practice. Rules of professional conduct are engaged as CVP presents difficulties to lawyers who must ensure that their communications with clients remain protected by privilege and confidentiality. Defence counsel request District Judges to rise to take instructions from clients over the video link. The proceedings are recorded, and it may be unknown who is on the line. It is probable that requested persons appearing over CVP will experience greater difficulty in accessing – and in providing clear instructions upon – documents and exhibits, especially where documents are served shortly before or during the extradition hearing and considering the difficulty in visiting clients in prison during the pandemic. Where such prejudice arises, defence practitioners will seek to remedy the imbalance through applications to adjourn, to rescind live link directions, and by challenging prejudicial directions in the High Court.
Justice on remand
The pandemic’s aftershocks have exposed requested persons remanded in custody to greater risks of violation of their rights under both common law and Article 47 of the EU Charter of Fundamental Rights. Extradition necessarily exposes requested persons to detention and engages individuals’ rights to liberty as well as to fairness of process. In May, Alex Bailin QC asked (here) whether there ought “to be serious discussions between key states about suspending the operation of extradition on humanitarian grounds.” If the process cannot be conducted in a way that is consistent with fundamental rights, it is fair to ask: ‘what is the point?’
In Cosar v Governor of HMP Wandsworth and Chmurzynski v Governor of HMP Wandsworth [2020] EWHC 1142 (Admin), the Divisional Court addressed three important issues arising from the pandemic. The principal judgment was given by Lewis J who first held that habeas corpus was not the correct procedure to challenge extensions of the detention period before removal. Permission was however granted to the first applicant (the second’s claim having fallen away since the EAW had been withdrawn) to continue his application as a claim for judicial review of the agreements to re-fix the required period for removal.
Second, agreements to re-fix the required period for removal – found in sections 35(4), 36(3) and 47(3) EA 2003 – were lawful. The Framework Decision provides for two situations in which the extradition period may be extended in appropriate circumstances. Article 23(3) allows for an extension where surrender is prevented “by circumstances beyond the control of any of the member states”. Article 23(4) permits temporary postponement for “serious humanitarian reasons”. The Court held that travel restrictions imposed due to the coronavirus pandemic can satisfy both provisions (paras. 54 and 56). Furthermore, the removal period can be extended more than once. Section 35 EA 2003 does not contain any express or implied limit to the number of times that an extension can be agreed, and repeated short-term extensions do not amount in substance to an indefinite extension (paras. 58, 64 and 65).
Third, there is no requirement to notify a requested person of a request to extend the required period for removal, or to allow them to participate at a hearing to consider that request. There are other remedies available to challenge lengthy delays to removal, including applications for bail or for judicial review of any decision to re-fix required periods (paras. 70 and 71). In a separate concurring judgment, Irwin LJ recommended that in the present exceptional circumstances it is good practice to notify requested persons of any agreement to extend the extradition period; the opinion notes that this is now being done by Westminster Magistrates’ Court. Representation Orders should remain in force so that requested persons can receive legal advice and make consequent applications (e.g. for bail).
Another case worth noting is Perry v USA [2020] 4 WLUK 70 in which the High Court refused to grant bail to an asthma-sufferer who argued that his conditions of detention on remand were inadequate because of the risks arising from the pandemic. Dove J accepted that prison conditions were a relevant consideration to bail but, in the absence of any evidence to the contrary, proceeded on the basis that the prison service would comply with its duty of care to the appellant. Also relevant is Walaszczyk v Poland [2020] EWHC 849 (Admin), in which Fordham J refused to adjourn an extradition appeal even though Covid-19 was preventing removals to Poland from taking place at the time of the appeal hearing.
Between a rock and a hard place
Squeezed between the rock of “remote” justice at Westminster and the hard place of a High Court which has to date not demonstrated a great deal of willingness to accommodate the claims of requested persons in pandemic-related cases, it is perhaps worth reflecting on possible challenges that practitioners might consider mounting to address clients’ claims of prejudice. In Cosar, the applicants’ legal representatives are now seeking leave to appeal against the High Court’s refusal to grant habeas corpus before the Supreme Court.
In a case where a requested person wishes to challenge the decision of a District Judge to proceed against a defence application to adjourn the hearing in the interests of justice, the most appropriate remedy would seem to be an application for judicial review (Olah v Czech Republic [2008] EWHC 2701 (Admin); Celzynski v Poland [2019] EWHC 3450 (Admin); R (Lazarov) v Westminster Magistrates’ Court v Prosecutor’s Office in Varnia, Bulgaria [2018] EWHC 3050 (Admin)). The scope of judicial review as a remedy in extradition proceedings is a topic on which Ben will write here in more detail in a forthcoming post. In conclusion, these are questions that become ever more pressing as removals continue to be stayed and requested persons find themselves in positions like the applicants in Cosar. Meanwhile, it remains to be seen what approach England and Wales’ higher courts will take to applications for judicial review of lower courts’ decisions to proceed with hearings remotely.
Authors: Joshua Kern and Lucia Brieskova.
The authors would like to thank DELF and Mary Westcott, in addition to members of the 9BR & Crimeline extradition hub (Alex Tinsley, Ben Joyes, Stuart Allen, Jon Swain, Stefan Hyman, Katie Mustard), for sharing their insights with them when drafting this article.