‘A Practical Guide to Extradition Law Post-Brexit – Second Edition’ by Daniel Sternberg, Nicholas Dobbs, Kathryn Howarth, Anisa Kassamali, Nancy Kelehar, Benjamin Seifert, Émilie Pottle, Saoirse Townshend

Description

On 24th December 2020, just one week before the end of the transition period, the EU and UK brokered an agreement governing extradition between the UK and the Member States. That agreement is contained in Part 3 of the UK-EU Trade and Cooperation Agreement (‘the TCA’), at Title VII, and applies to those who are arrested after 2300 on 31st December 2020.

The TCA substantially replicates the Council Framework Decision 2002/584/JHA, but this is not to say that extradition to EU Member States will continue almost unchanged. There are some important and potentially radical differences between the wording of the two schemes, and the potential impact of the change in legal context should not be underestimated.

In the second edition of ‘A Practical Guide to Extradition Law Post-Brexit’, current and former members of Temple Garden Chambers’ extradition team provide a guide to the operation of Part 1 of the Extradition Act 2003 (‘the 2003 Act’) in this new era, highlighting areas of continuity and change and the key developments in extradition law since 2021. They also introduce practitioners to cases under Part 2 of the 2003 Act, giving a clear and concise explanation of the procedural and substantive differences between the two regimes.

“This book is timely, and practitioners will find it of great use … it is well-researched, well-expressed, easy to follow and practical in its focus … I commend it to all lawyers in the field.”
– from the Foreword by the Right Honourable Sir Stephen Irwin

ABOUT THE AUTHORS

The Temple Garden Chambers extradition team bring an unrivalled wealth of experience prosecuting and defending extradition cases at all levels from the Magistrates’ Court to the Supreme Court and the CJEU. Members of the team are highly ranked in Chambers and Partners and the Legal 500. Drawing on complementary expertise in domestic public law and international criminal law, they are excellently placed to guide you through the UK’s extradition law and practice post-Brexit.

Editor

Daniel Sternberg is a District Judge (Magistrates’ Courts) based at Westminster Magistrates’ Court hearing first instance extradition, crime, terrorism and POCA matters. He also sits as a Deputy Upper Tribunal Judge in the Immigration and Asylum Chamber.

Contributors

Nick Dobbs is an experienced trial advocate and extradition practitioner, representing requested persons in proceedings before the Westminster Magistrates’ Court and the High Court. He has handled a wide range of grounds for refusal to surrender, successfully defending clients facing extradition requests from various countries in Europe. His practice includes advising HM Treasury on investigations into breaches of financial sanctions, as well as assisting clients involved in inquests and public inquiries.

Kathryn Howarth has developed her expertise in extradition over the last decade and has been instructed in numerous leading cases. She is recognised in Chambers & Partners as a “quiet superstar” of the extradition bar and in the Legal 500 as combining “intellectual strength with an imperturbable, yet reassuring, court manner”. She also has expertise in international criminal law and is the author of “A Practical Guide to International Crimes in Proceedings before the Courts of England and Wales”. Kathryn sits as a Deputy Judge in the Upper Tribunal (Immigration and Asylum Chamber).

Anisa Kassamali practices in public and private law. She has particular expertise in public law (including unlawful detention, human rights, immigration and asylum, and national security matters), group litigation with international elements, business and human rights, and extradition.

Nancy Kelehar has a broad practice across both private and public law, with particular emphasis on extradition, personal injury, and inquests and inquiries. She represents requested persons and requesting states in extradition proceedings before Westminster Magistrates’ Court and the High Court. Nancy has recently been seconded to the CPS Extradition Unit as a Senior Crown Prosecutor, regularly advising and acting on behalf of various judicial authorities.

Émilie Pottle is an extradition, public and international law specialist. She is recommended in the directories across multiple practice areas and has appeared before the Supreme Court, Court of Appeal and Divisional Court. She represents UK and foreign government departments, individuals and NGOs. She is ranked in the Chambers and Partners Guide to the Bar 2020, with sources stating that she is “a smart and able up-and-coming barrister who is frequently instructed in cases concerning European Arrest Warrants”. She also has expertise in cases concerning international criminal law.

Benjamin Seifert practises in extradition and public law. He appears at Westminster Magistrates’ Court, the High Court and in the Supreme Court in extradition cases representing both requesting states and requested persons. His practice also includes inquests, inquiries and immigration law. Chambers and Partners 2021 describes him as “an excellent advocate who is always thoroughly prepared” and “He goes the extra mile and argues his points very well”.

Saoirse Townshend has a dynamic court and advisory practice specialising in extradition and public law. Saoirse is instructed alone and is led in complex and novel points of law before the Supreme Court and the Divisional Court. She represents requested persons and requesting states in extradition proceedings; as well as interested parties in inquests concerning deaths in custody, and is instructed on prison law matters. She is currently instructed as first junior counsel to the Brook House Inquiry.

CONTENTS

Introduction

Chapter One – The Initial Hearing
-Arrest under certified request/warrant
-Provisional arrest
-Requirements at the Initial Hearing
-Consent to extradition
-Case management
-Bail
-Outstanding domestic proceedings/sentence
-Competing requests
-Legal aid

Chapter Two – The Extradition Hearing
-District Judge’s powers
-Initial stages of the Extradition Hearing
-Sufficiency of particulars
-Identity (Part 2)
-Whether the warrant was issued by a Judicial Authority (Part 1)
-Extradition offence
-Prima facie case (selected Part 2 countries)
-Receivable evidence
-Disclosure
-Asylum claims
-Procedure at the Extradition Hearing
-Sending a case to the SSHD (Part 2)
-Bail pending prosecution appeal
-Costs

Chapter Three – Bars to Extradition
-Double Jeopardy
-Absence of prosecution decision
-Extraneous Considerations
-Passage of time
-Age
-Hostage Taking considerations
-Specialty
-Earlier extradition to the United Kingdom
-Forum
-Convictions in absentia
-Section 21 – Person unlawfully at large: human rights
-Section 21A, Person not convicted: human rights and proportionality
-Section 21B requests
-Physical or Mental condition
-Abuse of Process

Chapter Four – Human Rights
-Introduction
-Article 2 ECHR
-Article 3 ECHR
-Article 5 ECHR
-Article 6 ECHR
-Article 8 ECHR

Chapter Five – The Secretary of State’s Role
-Certification
-Death penalty
-Specialty
-Earlier extradition to the United Kingdom
-Deferral of extradition
-Competing claims
-Time limits

Chapter Six – Appeals
-Appeals by Requested Persons
-Appeals by Requesting States
-New issues and fresh evidence on appeal
-Practical matters
-Appeal to the Supreme Court
-Appeal to the ECtHR
-Challenges outside the statutory appeals scheme
-After extradition is ordered

Appendix A – Excerpts from the Extradition Act 2003

Appendix B – Extract from the EU Trade and Co-operation Agreement