In moving Amendment 88, I shall speak also to Amendments 88A and Amendments 89, 90, 91 and 92. Clause 141 is about appeals against EAWs. I note that the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, have tabled a stand part debate to remove this clause. I look forward to hearing their remarks in support of that fairly blunt instrument. My amendments, by contrast, offer my noble friend the Minister a focused, surgical approach to this issue.
Amendments 88 and 90 remove the requirement for leave to appeal. We have spoken about how extradition has an enormous impact on suspects’ lives and those of their families. Given the problems that, for example, Fair Trials regularly sees arising at first-instance extradition hearings, there are concerns about any measure that limits access to appeal courts. The vast majority of those subject to extradition procedures—the “little platoons” that I referred to in my first group of amendments —cannot afford a lawyer and are therefore represented by a duty solicitor. Many duty solicitors have little experience of extradition cases and therefore may not be familiar with the complex conditions of the 2003 Act and associated case law. This can be contrasted with the position of the requesting state, which is automatically entitled to representation by a specialist unit of Crown Prosecution Service lawyers. The complexity of extradition cases also means that there is often inadequate time at a first-instance hearing for consideration of all the relevant facts and issues. If suspects lose their automatic right to appeal then, so long as these problems at first instance remain, there may be cases that result in people being wrongly extradited.
These problems are demonstrated by the recent case of Krzysztof Juszczak, who in February 2013 appealed successfully against extradition to Poland on the basis that his removal from the UK would constitute a disproportionate interference with his family life under Article 8 of the ECHR. Although Mr Juszczak is the primary carer for his severely disabled stepdaughter, this was not raised by the duty solicitor before the district judge, an omission that was criticised as a failure of duty by Mr Justice Collins in his appeal judgment. As this evidence was obtained late in the process, there is a clear danger that under the proposed system Mr Juszczak would have been denied leave to appeal.
I recognise the problems raised in the Sir Scott Baker review in relation to the large number of unmeritorious appeals in the extradition process, and understand the need for a process to ensure that appeals with merit are heard and disposed of more quickly. It must be in the interests of both defendants and the state that the appeal process works to correct genuine errors rather than to delay the judicial process. However, it is surely equally true, and vital, that suspects are given a full opportunity to get a case together and identify any valid grounds on which their extradition should be refused, and any appeal process should reflect that.
The Sir Scott Baker review recommended that any leave-to-appeal test should follow the standard required for judicial review—namely, that the defendant must show an arguable case in order to be allowed to appeal. The inclusion of any higher standard of proof would be inappropriate, not least because the requirement to demonstrate an arguable case, as is the case in the judicial review process, would suffice to weed out those cases with no merit. Leave should be sought on paper, with written reasons provided for the outcome. Defendants must then have a right of appeal against refusal to a judge at an oral hearing. Only the judge at first instance or the High Court judge who would hear the appeal should consider applications for leave to appeal. If all these safeguards were guaranteed, a requirement for leave to appeal might be acceptable.
There has been concern that the lack of information about how the Government’s proposed amendments will work in practice makes it far from clear that they satisfy the above recommendations of the Sir Scott Baker review, and people could still have their lives ruined by an unjust extradition. As this concern remains unanswered in the Bill as currently drafted, the argument regarding appeal remains flawed and liable to create unfairness and inequality of arms. It has also been pointed out that the Government’s proposed amendments did not affect the requesting state’s automatic right to appeal if an extradition request is refused, thus introducing a further inequality of arms into proceedings that are already heavily weighted in favour of requesting states, which have far greater resources than individuals and benefit from a strict “no questions asked” regime that gives courts very little power to refuse extradition.
The Government have taken concerns in this regard into account, with the introduction of a requirement of leave to appeal against discharge at extradition hearing in Clause 141(2), but this amendment proposes that that requirement should also be omitted in line with the proposed approach to appeals against extradition orders in Clause 141(1).
Amendment 88A would extend the deadline for bringing appeals against extradition from seven days to 14. I reiterate my welcome for the introduction of flexibility in relation to appeal deadlines, but I remain concerned that the current drafting may be insufficient to address potential injustices, particularly when linked to the proposed removal of the automatic right to appeal. Given the impact of extradition on individuals, a standard period of seven days to appeal or seek leave is pretty short. This is often exacerbated by the need to obtain evidence from other jurisdictions and can raise enormous challenges when a person decides to change their lawyer after the first-instance hearing.
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We have already discussed the introduction of the leave-to-appeal requirement of the person to comply with the appeal deadline, but it should also be taken into account if the leave requirement is to be introduced. If the proposal set out in paragraph 10.14 of the Baker review is followed, with leave to appeal being sought and granted or refused on paper, the drafting needed to produce the leave application could become more onerous, complex and time-consuming than for the current notice. It is therefore proposed that the timeframe flexibility introduced in the amendments to Sections 26(5), 103(10) and 108(5), as amended in accordance with paragraph 4.1 above, be retained but that the permitted period in Section 26(4) should also be extended to 14 days. This would follow the recommendations of the Baker review at paragraphs 11.75 to 11.76. I beg to move.