My Lords, Amendment 94, which is concerned with mistaken identity, and Amendment 95 would insert two new clauses into the Bill. Amendment 94 would enable the judge at the extradition hearing—whether it is a prosecution or a conviction warrant—to request more information where there is a real doubt as to whether the person sought is actually the person suspected or convicted. This would be particularly valuable in cases where there is a reasonable belief that the person sought has had his or her identity stolen or where there is a clear case of mistaken identity. In these days of cybercrime, the former is an increasingly common occurrence.
There are currently no grounds in domestic law on which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has identified someone else as the person who committed the offence.
This is demonstrated by the case of Edmond Arapi, who was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy, despite clear proof that he was at work in the UK on the day of the alleged offence. On the day that the High Court was due to hear his appeal against extradition, the Italian
authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. This amendment is needed to give courts greater discretion to request further information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.
Amendment 95 seeks to clarify the approach that a judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute an EAW on human rights grounds. Many have argued that the underlying assumption of the EAW system—that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited—rests on shaky foundations. For instance, it has been reported that in the years 2007 to 2012, Greece violated Article 6(1) of the ECHR 93 times in criminal cases.
Garry Mann, giving evidence to the Home Affairs Committee, described his 2004 trial in Portugal as follows, stating that,
“the police … just told me it was some kind of public order offence … we went into court and there were 12 of us … we had one interpreter … she would try to say something and pass it down the line of 12, but we did not understand what was going on at all … They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night … They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV”.
An English court later called on to issue a football banning order against Garry refused, finding that the trial had not complied with Article 6 of the ECHR.
The courts have, however, given very short shrift to arguments alleging that extradition would lead to a violation of human rights. In accordance with the concept of mutual trust, on which the operation of the EAW is based, the courts assume that the issuing state will protect the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. A person must show that they are at risk of a “flagrant” breach of their fair trial rights in order to resist extradition. The approach is difficult to sustain when there are ongoing systematic deficiencies in a justice system, which are liable to impact upon an extradited person. For instance, the European Court of Human Rights recently found Italy in violation of Article 3 of the ECHR and applied its pilot judgment procedure, recognising that widespread overcrowding was leading to systematic infringements of Article 3. The concept of mutual trust is difficult to defend in such circumstances. If an extradited person is going to be detained in the same prison, it is plainly likely that their human rights will be infringed.
The Government have taken the view that the EAW framework decision implicitly allows refusal to execute an EAW on human rights grounds, relying on recital 12 and Article 1(3) of the framework decision, which affirm that the latter shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as recognised by Article 6 of the Treaty on European Union and reflected
in the European Charter of Fundamental Rights. However, the precise content of those fundamental rights obligations is not clear. In her opinion on the Radu case, Advocate-General Sharpston suggested that, under the charter, the test was whether there was a “substantially well founded risk” of a violation which would,
“fundamentally destroy the fairness of the trial”,
a slightly different test from the ECHR flagrancy test. However, for the time being, the precise requirements of fundamental rights are not defined in EU legislation. Accordingly the member states enjoy some discretion to apply fundamental rights as they understand them, provided that this does not compromise the unity and effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAW framework decision. I beg to move.