José Antonio Farah Lopes de Lima: The application of the Extradition Act 2003 and the Categories of Territories – Trans-frontier cases’ analysis

José Antonio Farah Lopes de Lima – Ph.D. Student at Sorbonne University*
 
 
The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States[1] (“the Framework Decision”)[2] is the most important legal instrument in extradition law in Europe since the European Convention on Extradition, of 1957. The Extradition Act 2003 (“the 2003 Act”)[3] implements in the United Kingdom the provisions of the Framework Decision. The 2003 Act  – that received Royal Assent on November 20, 2003 and was brought into force on January 1, 2004 – has brought into effect the most radical change in extradition law since the Extradition Act 1870. There have been two major reasons causing this evolution. First, the increasing influence of the European Union on national criminal matters[4]. Thus, one of the principal purposes of the 2003 Act was the implementation of the European Arrest Warrant. Second, the international response to the terrorist attacks upon the United States of America in September 11, 2001, which led to the signing of a new extradition treaty between the United Kingdom and the United States of America in March 2003.
 
The 2003 Act is divided into Pts 1 and 2 which deal respectively with extradition to category 1 and 2 territories. The primary purpose of Pt1 of the 2003 Act is to give effect to the European Arrest Warrant scheme. The category 1 territories are designated by an order made by the Secretary of State[5] and basically, but not exclusively, these territories are Member States of the European Union. All territories with which the UK has general extradition arrangements which are not designated as category 1 territories have been designated in category 2. The United States of America belong to this last category.
 
The drawing up of the 2003 Extradition Bill and all the controversies about the 2003 Act and its implementation reflect the conflict between the effectiveness of international co-operation in the prosecution of crime and the rights of individuals. The purpose of this article is to try to predict the future pattern of the English courts decisions on the European arrest warrant issues, after analyzing the first interpretation of the domestic implementing legislation. Thus, the present article, after a brief description of the Categorisation of territories concept (section 1), assesses the interpretation of  the 2003 Act – made by the English courts – in three recent transnational[6] cases related with both category 1 territory (extradition to Belgium) - section 2 - and category 2 territory (extradition to the USA) - section 3. The author concludes that in contrast to other European countries[7], in the United Kingdom there is a general tendency to protect more the states’ interest than the defendants (either nationals or non-nationals) rights[8] (section 4).   
 
 
1. Categorisation of territories
 
Throughout its legal history, English extradition law provided different schemes of extradition for different categories of requesting country. In broad terms, these categories were: foreign states[9], colonies and designated Commonwealth countries[10].
 
Under the Extradition Act 1989 requests for extradition by European countries (for these purposes, signatories to the European Convention on Extradition 1957 designated in an Order in Council made under s 4 of the Extradition Act 1989), designated Commonwealth countries, and colonies were dealt with under Part III of the 1989 Act. Requests made by countries in relation to whom an Order in Council made under the Extradition Act 1870 was in force (principally the United States of America) were dealt with under Schedule 1 to the 1989 Act[11]. In addition to the differing evidential requirements in Part III and Schedule 1 cases, there were also differences between European Part III cases, where no evidence was required[12] and Commonwealth Part III cases, where admissible evidence sufficient to amount to a prima facie case was required[13].
 
The Extradition Act 2003 largely removes these complexities by designating extradition partners as either Category 1 or Category 2 territories. The 2003 Act is divided into Pts 1 and 2. Claims for extradition by Category 1 territories are dealt with under Part 1, whilst requests for extradition by Category 2 territories are dealt with under Part 2[14].
 
 
1.1 Designated Category 1 territories
 
Category 1 territories are designated by an order made by the Secretary of State (s. 1 (1) – (2))[15]. The primary purpose of the 2003 Act is to give effect to the European Arrest Warrant (EAW) Scheme. The Council Framework Decision of 13 June 2002  on the European arrest warrant and the surrender procedures between Member States[16] required Member States to have implemented domestic legislation to give effect to the Framework Decision by December 31, 2003[17]. There is nothing within the 2003 Act which restricts the designation of Category 1 territories to those which operate the EAW Scheme. Indeed the Government explicitly said in the course of the Parliamentary scrutiny of the Extradition Bill : “... it is possible that at some point in the future it would be desirable to add another country – perhaps a trusted Commonwealth or bilateral treaty partner – to Part 1 and the Government does not believe that we should remove the flexibility to allow for this”[18].    
 
 
1.2 Designated Category 2 territories
 
Category 2 territories are also designated by an order made by the Secretary of State (s. 69). The order must be laid in draft before Parliament and approved by a resolution of each House of Parliament (s. 223 (5)-(6)). All territories with which the UK has general extradition arrangements which are not designated as Category 1 territories have been designated in Category 2. Those Member States which had not implemented the EAW Scheme by December 31, 2003 were initially designated as Category 2 territories.
 
 
 
 
1.3 Designations under ss. 71(4), 73(5), 84(7) and 86(7)
 
The 2003 Act allows Category 2 territories to be further designated so that[19]:
 
1) a territory only has to provide information rather than evidence to satisfy the test in s. 71(3) for an arrest warrant to be issued[20];
2) a territory only has to provide information rather than evidence to satisfy the test in s. 73(4) for a provisional arrest warrant to be issued[21];
3) a judge will not apply the sufficiency of evidence test in s. 84(1) if the extradition request is for a person who has not been convicted[22];
4) a judge will not apply the sufficiency of evidence test in s. 86(1) if the extradition request is for a person who was convicted in their absence[23].
 
The designated territories are made up of signatories to the 1957 European Convention on Extradition, and Australia, Canada, New Zealand and the United States of America. Any order designating a territory in this sub-category cannot be made unless a draft is laid before Parliament and approved by both Houses of Parliment.
 
 
1.4 The particular circumstances of the United States of America
 
The above-mentioned designation of the USA has provoked controversy[24]. On March 31, 2003, the United Kingdom and the United States of America signed a new extradition treaty – Extradition Treaty Between the Government of the United Kingdom of Great Britain and Northen Ireland and the Government of the United States of America -, intending to replace the treaty of 1972, as amended in minor respects in 1985. It is to be stressed that this new treaty is not incorporated in the 2003 Act. It has been ratified by the United Kingdom, but not yet by the American legislature[25]. Therefore, by virtue of art 23 of the Treaty it is not yet in effect.
 
As to evidential requirements in the new UK-USA extradition treaty, Article 8 of the Treaty sets out the new extradition procedures between the two countries. The crucial change is that under the old Treaty of 1972 (Article IX), the requesting state had to provide evidence “sufficient according to the law of the requested Party...to justify the committal for trial”. Under the new Treaty (Article 8, paragraph 2(b)) the state seeking extradition must provide simply “a statement of the facts of the offence(s)”. This change does not extend to the UK however when trying to extradite a USA citizen “for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense”. In effect, the evidence requirement on the USA has been dropped altogether while the UK must still provide evidence to the standard of a ‘reasonable’ demonstration of “guilt”[26]. This lack of reciprocity has created a lot of criticisms[27]. More details about this issue will be treated in the  category 2 territory cases’ analysis (infra).
 
 
2. Extradition in Category 1 territory Case -
 
The first case that will be scrutinized – related to category 1 territory - presents the English courts’ interpretation of the concept of conduct under the 2003 Act. It is to be stressed that Cando Armas is the first case under the 2003 Act to reach the House of Lords, so it is not difficult to demonstrate the importance of this ruling[28].
 
 
Office of the King’s Prosecutor, Brussels v Armas and others –  [2005] UKHL 67 –
17 November 2005
 
 
Part I of the Extradition Act 2003 implements the European Framework Decision on the European arrest warrant and the surrender procedures between Member States in English law. This case deals with the interpretation of the 2003 Act in situations where the offending takes place in the requesting state and also in the United Kingdom – trans-frontier crimes. A decision of the District Judge that such conduct was not covered by the drafting of the Act was over-turned by the High Court. That decision was upheld by the House of Lords, on a slightly different basis.
 
2.1 Issue of arrest warrant – requesting state: Belgium 
 
On 6 May 2003 the appellant was convicted and sentenced to five years’ imprisonment in his absence by the magistrate’s court in Brussels, Belgium. A year later the appropriate Belgian authority issued a European arrest warrant for him. The warrant was in Flemish with an English translation, which stated[29]:
“Cando Armas is a member of an organized gang which is responsible for the systematic illegal immigration of Ecuadorean citizens towards Europe. This organisation was directed from London by Cando Armas. Once arrived in Belgium, Cando Armas took care of accommodation and fake passports for the illegal Ecuadorean immigrants. If necessary, the illegal immigrants were escorted to Great Britain. The above-mentioned facts took place between 1/9/2001 and 12/10/2001, within the district of Brussels.
Nature and legal classification of the offence(s) and the applicable statutory provision/code : Art 77 al 1-80 Law of 15.12.1980 (foreigner-assistance); Art 322-323 al 2 SWB* (criminal conspiracy – commit criminal offences as instigator or leader);Art 193-198-213-214 SWB* (Forgery – fake up of a passport and use of a false passport)- * penal code”.
 
The arrest warrant was in the form prescribed in the annex to the Framework Decision and in its Flemish version identified people trafficking, facilitation of unauthorised entry and residence and forgery of administrative documents as the framework list offences for which the appellant’s surrender was sought[30].
 
2.2 The Extradition Hearing – Bow Street Magistrates’ Court  
 
Under section 10 of the 2003 Act, at an extradition hearing, the judge must decide whether the offence specified in the Part I warrant is an extradition offence within the meaning of the Act. If it is not the person must be discharged. “Extradition offence” is defined in section 65 where the person has been convicted in the requesting state.
 
 
2.3 The decision
 
Judge Wickham at Bow Street decided that the conduct referred to in the warrant was not an extradition offence within the meaning of the Act. These are the reasonings of his conclusion:
 
(1) The conduct described did not fall within section 65(2) as some of the conduct occurred in United Kingdom.
 
(2) The conduct described did not fall within section 65(3). If that section was intended to apply it would have stipulated that the conduct constitutes an extradition offence under the subsection if some of the conduct occurred in the category 1 territory, whereas, in fact, it states “the conduct occurs in the category 1 territory”. Accordingly, she discharged the defendant, Mr Armas.
2.4 The Appeal to the High Court [[2004] EWHC 2019 (Admin)]
 
Belgian authorities exercised their right to appeal against the decision to discharge the defendant under section 28 of the 2003 Act[31]. The High Court stated that it was regrettable that sections 64 and 65 had not been drafted with the need to deal with trans-frontier offences taken expressly or clearly into account [paragraph 31]. But on the basis of the need to arrive at a workable interpretation that addresses the nature of framework offences and much crime in the modern world, the words “the conduct” in section 65(2) to (6) mean “such of the conduct as constitutes a criminal offence (under the law of the category 1 territory)” [paragraph 30]. There is nothing in section 65 to stop section 65(3) applying to framework offences [paragraph 26]. Hence the warrant disclosed conduct which constituted an extraditon offence under both sections 65(2) and 65(3).
 
The court stated it would be highly regrettable if trans-national offences were not extraditable offences simply because a (possibly minor) criminal act in the totality of criminal conduct occurred in this country[32]. Accordingly, the court allowed the appeal and remitted the case back to Bow Street[33].
 
2.5 Appeal to the House of Lords [[2005] UKHL 67]
   
Mr. Armas appealed to the Lords arguing that [paragraph 15]:
 
(1) As some of the conduct occured in London, 65(2)(a) was not complied with and hence 65(2) could not be relied on.
 
(2) That where the conduct is a framework offence, 65(3) could not apply – only section 65(2) applies to framework offences.
 
(3) In any event, 65(3) requires the whole of the conduct to have occured in the issuing state, which is not the case. So the subsection cannot apply.
 
(4) Hence the offence is not an extradition offence, and Mr Armas was rightly discharged. The High Court was wrong.
The judgement is that (1) is right, but (2), (3) and (4) are wrong.
 
 
2.5.1 The interpretation of Part 1 of the Extradition Act 2003
 
Lord Bingham said [paragraph 8]: “Part I of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions (i) that Parliament did not intend the provisions of Part I to be inconsistent with the Framework Decision and (ii) that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less”.
 
Lord Hope said [paragraph 23]: “The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down” and at paragraph 24: “In R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947 Lord Bridge of Harwich said ‘that the court should not apply the strict canons appropriate to the construction of domestic legislation to extradition treaties’. In In re Ismail [1999] 1 AC 320, 327 Lord Steyn, noting that there was a transnational interest in bringing those accused of serious crime to justice, said: ‘Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition’. These passages describe the approach to the issues of statutory construction that have been raised in this appeal. But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part I of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infrigement of the right to liberty”.
 
Lord Scott of Foscote said [paragraph 52]:
“The principle underlying these changes is that each Member State is expected to accord due respect and recognition to the judicial decisions of other Member States. Any enquiry by a Member State into the merits of a proposed prosecution in another Member State or into the soundness of a conviction in another Member State becomes, therefore, inappropriate and unwarranted. It would be inconsistent with the principle of mutual respect and recognition of the judicial decisions in that Member State”.
 
2.5.2 The application of section 65(3) to framework offences
 
Lord Bingham said [paragraph 11]:
“It is evident that section 65 specifies five categories of case in which extradition may be requested or surrender sought. The list is cumulative, as shown by “also” in subsections (3), (4), (5) and (6). The categories are different, but a condition applicable to one category may also be applicable to another: for example, the condition that no part of the conduct should occur in the United Kingdom is applicable to each of the categories in subsection (2), (5) and (6). Only in subsection (2) is express reference made to the European framework list, but there is nothing to suggest that the conduct referred to in subsections (3), (4), (5) and (6) may not constitute an offence within that list...” and [paragraph 17]: “I cannot accept that, because subsection (2)(a) is specifically directed to framework list offences, subsection (3) to (6) should be understood to exclude such offences... there is nothing in the section to suggest that subsections (3), (4), (5) and (6) cannot apply to framework list offences where the relevant requirement of double criminality is met. No reason of logic or justice was suggested to support such a rule, and it is plain from hypothetical examples suggested in argument that it would lead to results which neither the European Council nor Parliament could ever have intended.”
 
2.5.3 The meaning of  “the conduct”
 
The Lordships held that the conduct in the section means “the conduct complained of or relied on in the warrant” [paragraph 16]. So section 65(2) would not apply to the current case, as the requirement (under subsection 65(2)(a)) that no part of the conduct complained of or relied on in the warrant occured in the United Kingdom was not met. So section 65(2) is to be interpreted in a straight-forward literal way, as meaning what it says. The appellant and the District Judge at first instance, were right to consider that the allegation relating to Mr Armas’s conduct in London precluded the operation of section 65(2).
 
 
2.5.4 The scope of section 65(3)
 
Lord Bingham said [paragraph 17]:
“I cannot, however, accept that subsection (3) is to be read as requiring that all the conduct complained of should have occured in the category 1 territory. The subsection does not so provide, and the qualification that no part of the conduct should have occured in the United Kingdom, expressly stipulated in subsections (2)(a), (5)(a) and (6)(a), is not found in (3)(a). It must be inferred that that qualification was not intended. It is enough, under subsection (3)(a), if some of the conduct complained of or relied on occurred in the category 1 territory...”[34]. So section 65(3)(a) is to be interpreted so as to read “part of the conduct complained of or relied on in the warrant occurs in the category 1 territory, or its effects were intentionally felt there”. Consequently, the current warrant disclosed an extradition offence within section 65(3). The appellant and the District Judge were wrong. The High Court was right but for a modified reason.
 
 
2.6 Cando Armas case’s reflections
 
 
This decision helps us to reflect about some matters brought by the European Arrest Warrant Framework Decision and its implementation in the United Kingdom by the Extradition Act 2003:
 
 
 
2.6.1 The reduced role of the Secretary of State in extradition/surrender proceedings
 
In the Cando Armas case the first important consideration is the absence of the Secretary of State in the decisional surrender process[35]. According to the Framework Decision, the concept of ‘surrender’ is meant to be realized only by judicial authorities and excludes the decision of a political authority such as the granting authority. As stated in paragraph (5) of the Preamble of the European Arrest Warrant Council Framework Decision, the ‘objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities...’. In addition, paragraph (9) of the Preamble stresses: ‘The role of the central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance’. It means that the central authorities may not decide on the substance of the case. Article 7 of the Framework Decision states that a central authority may only serve as organisational assistance, not as a deciding institution, and the Article 3, concerning the grounds for the mandatory non-execution of the European arrest warrant, states that it is a judicial authority which decides.  Therefore, the European Arrest Warrant represents a move away from diplomatic proceedings towards a system of surrender between judicial authorities. In this sense, the 2003 Act has sought to limit or remove the role of the Secretary of State in order to make the extradition/surrender proceedings largely a judicial function and consequently to limit the number of challenges that may be mounted[36].   
 
 
2.6.2 The respect/removal of the double-criminality rule
 
Without considering the merits of many criticisms related to the abandonment of the double-criminality rule under the European Framework Decision (under the 32 categories of crimes mentioned in the Article 2(2))[37], the Cando Armas case itself presents a very complexe issue related to the respect/removal of the double-criminality rule when we try to integrate the European and the national law, that is the European Framework Decision and the Extradition Act 2003. Under the European arrest warrant Framework Decision, apparently we should apply the Article 2(2) of the Framework Decision and then the double-criminality rule would be dispensable[38], but actually we have to integrate both Articles 2(2) and 2(4)[39] in the concrete case and consequently we must respect the double-criminality rule. According to Article 2(2), ‘The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework decision and without verification of the double-criminality of the act, give rise to surrender pursuant to a European arrest warrant: (...). Thus, if (i) the act described in the European arrest warrant is punishable in the state of issue by a custodial sentence or a detention order for a maximum period of at least three years and (ii) the act falls under one or more of the 32 categories mentioned in that paragraph are fulfilled, the arrest warrant gives rise to surrender ‘without verification of the double criminality of the act’. Nevertheless, the Section 65 (2) of the Extradition Act 2003, which fits with the Article 2(2) of the Framework Decision – because it demands only a certificate issued by an appropriate authority of the category 1 territory which shows that the conduct falls within the European framework list - could not be applied because the conduct should occur in the category 1 territory and no part of it should occur in the United Kingdom. In the present case the crime took place both in Belgium and the United Kingdom. The English courts have decided that the current warrant disclosed an extradition offence within Section 65(3) and then, according to Section 65(3)(b), ‘the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom’ in other words, the double-criminality rule should be respected.
 
All this complexity could be eliminated or at least reduced if we had only two hypothesis ruled under the Section 65 of the Extradition Act 2003, the first one related to the Article 2(2) of the Framework Decision (removal of the double-criminality rule) and the second related to the Article 2(4) (respect of the double-criminality rule).
 
 
2.6.3 The 2003 Act lacune between serious offences’ approach and extra-territorial basis
 
The Cando Armas decision tries to fill – partially - the vacuum between serious offences’ approach and extra-territorial basis, extending the reasoning inherent in the Sections 64(2) and 65(2) to the sections related to extra-territorial elements.The Framework Decision purports to identify the most serious offences (list offences), yet the 2003 Act does not provide for their commission on an extra-territorial basis. The 2003 Act has specified the Framework list in Section 64(2) and Section 65(2) but linked it squarely to conduct that ‘occurs in the category 1 territory’. Many of the offences included in the Framework list are ones which, by their very nature, often have an extra-territorial component: terrorism, human trafficking, money laundering, etc., as exemplified in the Cando Armas case. By limiting these offences to the territorial sphere, while at the same time failing to reflect the Framework list in the sections relating to extra-territorial offences, the aims of the Framework Decision could be frustrated. With the English courts workable interpretation of the Act 2003, the Cando Armas decision corrects partially this deficiency.  
2.6.4 The purposive/teleological interpretation of European legislation
 
This decision related to trans-frontier offences where parts of the conduct happen in the United Kingdom shows that the workable (purposive) interpretation of the English courts[40] tries to conciliate the 2003 Act with the spirit and the objective[41] of the European framework decision, basically to strengthen the effectiveness of the European judicial cooperation in extradition matters, even if the terms used in these national and regional laws are not the same.
 
Under Art. 234 of the Treaty of Rome, the European Court is the supreme tribunal for the interpretation of European Union law. Section 3(1) of the European Communities Act 1972 states that questions as to the validity, meaning or effect of European legislation are to be decided in accordance with the principles laid down by the European Court. In the light of these provisions, Lord Denning stated that when interpreting European law, English courts should take the same approach as the European Court would: “No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent. To quote the words of the European Court in the Da Costa case they must deduce from the wording and the spirit of the Treaty the meaning of the Community rules... They must divine the spirit of the Treaty and gain inspiration from it. If they find a gap, they must fill it as best they can. They must do what the framers of the instrument would have done if they had thought about it. So we must do the same (Bulmer v Bollinger (1974))”[42]. In other words, rather than using the limited literal rule, the courts should apply a broadly interpreted rule and try to find out the intention of Parliament, however imperfectly this might have been expressed in the words used[43].
 
We can also infer that the English courts respect the European loyalty principle – written in the Art 10 of the European Community Treaty – which determines the interpretation of the national legislation in conformity with the European law, for the English courts in the Cando Armas’case consider that the 2003 Act must be interpreted in conformity with the European framework decision.
 
Finally, even if we could question the weight of this rule in the Cando Armas case, it is important to stress that under the S. 3.1 of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into United Kingdom law, ‘so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the European Convention rights’.
2.6.5 Surrender of nationals
 
If Mr. Armas were British citizen, would his situation be decided differently? In other words, does the nationality of the person sought matter in the trans-frontier cases? For answering these questions, we need to remind the concept of criminal jurisdiction, that is the States’s judicial, legislative and administrative competence. A State may assert criminal jurisdiction in one or more of the following ways: i) territorial; ii) active personality; iii) passive personality; and iv) universal. The first basis for asserting criminal jurisdiction in common law is the territorial jurisdiction (a State only exercises criminal jurisdiction over offences which occur within its geographical boundaries)[44]. Jurisdiction based on the nationality of the offender - active personality – is less common in common law systems. In continental systems, it is more often found, since it goes with the common prohibition in these systems of the extradition of their own nationals. The rationale for this rule is linked with sovereignty, and in some States it is considered to be a fundamental right. For this prohibition to be tenable, and not to lead to impunity for crimes committed by their nationals abroad, countries on the continent have to be able to try their nationals for all sorts of crimes committed abroad (principle aut dedere aut judicare)[45]. This problem does not arise in English law since there is no prohibition on the extradition of nationals as a principle[46]. English law asserts ‘active personality’ criminal jurisdiction only in respect of a specified number of offences. Therefore, even if under the Art. 4(6) of the European Framework Decision the executing judicial authority may refuse to execute the European arrest warrant to surrender nationals of the executing Member State[47], the Extradition Act 2003 does not contain this ground for non-extradition and therefore there is no restriction to surrender citizens of the United Kingdom to others EU Member States[48]. The European arrest warrant was designed to simplify and speed up procedures and to make possible the extradition of nationals or residents of one European Union country to another Member State. The Extradition Act 2003 is in complete conformity with this European ambition, even if this measure – surrender of nationals - brings huge controversy into the English society (infra). 
 
 
2.6.6 Verdicts in Absentia
 
The arrest warrant against Cando Armas recorded that a custodial sentence of five years had been imposed, of which the whole term remained to be served. It was a judgment by default, and the appellant would be granted a new trial before the same court if he appealed against it.
 
The Article 5 of the Framework Decision states : “Guarantees to be given by the issuing Member State in particular cases – The execution of the European Arrest Warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: 1. Where the European Arrest Warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee that the person who is the subject of the European Arrest Warrant will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgement”. This subparagraph concerns in absentia cases. This issue is problematic, due the different approaches in the extradition law of the European Member States. In accordance with the rulings of the European  Human Rights Court[49], it will be sufficient if the suspect has the right to be present and to defend himself or have himself defended by counsel of his choice in one instance dealing with the facts (for instance, an appeal where all aspects of the case – the facts and the law – can be discussed).
 
Even if it is not our intention to explore this issue deeply[50], it seems that in the Cando Armas case, the guarantee given by the Belgium authorities (the appellant would be granted a new trial before the same court if he appealed against it) has sufficiently satisfied the English courts, according to section 11 and 20 of the Extradition Act 2003[51].  
 

2.6.7 Conflict of jurisdiction
 
In the Cando Armas case, there was no conflict of jurisdiction between Belgium and  United Kingdom, that is, the requested State (United Kingdom) has accepted the surrender request of the requesting State (Belgium). This situation – lack of conflict of jurisdiction - is the rule. Instead, if hypothetically this conflict had happened (for example, if Cando Armas had not been convicted and sentenced yet and the investigation/prosecution had been happening in both countries at the same time), one suggestion to solve this problem would be to take the case to Eurojust. In this European Institution, which deals specifically with judicial co-operation and co-ordination of cross-border cases[52], judicial authorities of both States could discuss and by the intermediate of the Eurojust authorities, to try to decide which of them should continue the case[53]. The decision related to the most appropriate jurisdiction should be based on the interests of justice. Eventually, in the future Eurojust could be vested with the power to decide authoritatively disputes between prosecuting authorities of different Member States where they fail to agree on trial jurisdiction at the pre-trial phase[54].   
 
2.6.8 Mutual trust
 
According to the final document adopted at the Tampere European Council meeting (the ‘Conclusions’) enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights. The European Council therefore endorsed the principle of mutual recognition, which, in its view, had to become ‘the cornerstone of judicial cooperation’ in both civil and criminal matters within the European Union (item 33). Thus, the European Arrest Warrant is the first European instrument to implement the principle of mutual recognition. It is based on mutual trust and understanding of each other’s legal systems and enforcement mechanisms. Considering particularly the Cando Armas case, it seems that the Belgium criminal justice system is known and respected well enough by the English courts to authorize the surrender of the requested person to the requested State without serious concerns. Nevertheless, we think that it is reasonable to question if this (mutual) trust would be the same if the surrender request had been made by other European Union Member States, for example, one of the States that acceeded the European Union on May 1st 2004 by virtue of the entrance into force of  the Accession Treaty[55].
In the United Kingdom, when it came to transposing the European Arrest Warrant into national legislation, the debates in Parliament showed a lack of mutual trust in relation to the legal systems of other Member States. In this sense, the House of Commons Home Affairs Committee first report on the Extradition Bill highlighted the difference between governmental and parliamentary views on the development. Speaking in December 2001, the Parliamentary Under-Secretary at the Home Office, Mr Bob Ainsworth MP said that: “It is right that we should approach our European neighbours, all of which have incorporated the European Convention on Human Rights, on the basis of mutual trust. We should not assume that our criminal justice system is infinitely superior to that of other countries (...) We are accepting for the first time that our European partners should be able to frame their charges according to their national law (...) and we would not try to double-guess each detail of such issues. Extradition proceedings are not a mini-trial, and when the trial is to be held in Europe, we should not be looking under every stone to find out how it may allegedly be inaccurate”. Differently, the House of Commons Home Affairs Committee stated: “We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the Member States of the EU makes it difficult for us to be as blithely confident as the Parliamentary Under-Secretary that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the United Kingdom”[56]. Therefore, in the Cando Armas case, it is not unreasonable to consider that the English courts would have been much more exigent as to the conditions to accepting the surrender request if the requested State had been one of the new European Union Member States[57].    
 
 
2.6.9 European Parliament Report with a proposal for a EP recommendation to the Council on evaluation of the European arrest warrant
 
In February 2006 Adeline Hazan, member of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament, has welcomed the adoption of her draft recommendation[58] to the Council regarding an evaluation of the initial application period for the European arrest warrant, in force since 1 January 2004.
 
In her view, the European arrest warrant marks a big step towards more effective crime-fighting, above all benefiting citizens for whom justice will be more readily forthcoming. It also represents a big step forward in building a European Judicial Area, which Adeline fervently wishes to see established: such a procedure allows judges to work to shorter deadlines and is depoliticised, thereby providing a fitting response to the stated demands of several judges in the Geneva Appeal in 1996, in which they outlined the difficulties they faced on a daily basis in the discharging of their duties. Nevertheless, there are still a number of practical problems which should not be underestimated. This is something which Adeline Hazan has emphasised in drawing up her list of difficulties faced due to the reticence shown by certain Member States[59].
 
Unlike the European countries that have problems related to the surrender of nationals, the United Kingdom does not present any difficult about it. As we said before, traditional grounds for refusing extradition were abolished by the European arrest warrant framework decision and the possibility of refusing to extradite a state’s own nationals exists only as optional ground for non-execution of the European arrest warrant (Art 4.6). The Extradition Act 2003 does not contain this possibility and there is no constitutional restriction to surrender citizens of the United Kingdom to others EU Member states.
 
Considering that Adeline Hazan has emphasised the difficulties faced due to the reticence shown by certain European Union Member States related to the implementation and application of the European Arrest Warrant, with the purposive interpretation of the European Arrest Warrant national implementing legislation - Extradition Act 2003 – made by the English courts, we can surely infer that Adeline Hazan has the United Kingdom (criminal justice system) as a good example to be followed by the others EU Member States in the field of European judicial cooperation.
 
 
3. Extradition in Category 2 territory Cases –
 
 
Part II of the Extradition Act 2003 deals with the extradition cases out of the scope of the European Framework Decision on the European arrest warrant and the surrender procedures between Member States. Therefore, the extradition relations between the United Kingdom and the United States of America fall in this Part of the Act 2003. The cases that will be scrutinized in this section raise important issues such as the legitimacy of the designation of the United States of America as category 2 territory, the lack of reciprocity between the two countries, the option of the trial place when the conducts are also committed in the territory of the requested state and (once more) the problem of the nationals’ surrender. 
 
 
 
3.1- R (on the application of Norris) v Secretary of State for the Home Department, Queen’s Bench Division (Divisional Court), [2006] EWHC 280 (Admin), [2006] All ER (D) 352 (Feb), 24 February 2006
 
On 31 March 2003 the Treaty on Extradition between the United States of America and the United Kingdom was signed by both governments. Although ratified by the UK, it is not yet ratified in the US and therefore, by virtue of art 23 of the Treaty it is not yet in effect. Nevertheless, the Secretary of State for the Home Department designated the USA within para. 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order, SI 2003/3334. In this case, the USA sought the extradition of the claimant (Ian Norris) based on alleged offences of conspiracy to suppress and eliminate competition by fixing, maintaning and co-ordinating the prices of certain carbon products sold in the United States and also  obstruction of the proper course of justice. On February, 17, 2005 the claimant wrote to the Secretary of State requesting the removal of the United States from the list of states designated under Pt 2 of the 2003 Act. The Secretary of State responded that there were no plans to remove the designation of the USA under s 84 (7) of the 2003 Act. On September 29, 2005 The Secretary of State ordered the extradition under s 93(4) of the 2003 Act. The claimant applied for judicial review. He submitted that the failure or refusal of the Secretary of State to remove the USA from the list of designated territories in Pt 2 of 2003 Act was unlawful and irrational.
 
The history of the extradition relations between the United States and the United Kingdom began in 1794, with the Treaty of Amity, Commerce and Navigation with Great Britain (Jay’s Treaty). In 1972 the Treaty on Extradition between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Nothern Ireland was signed. It was not until 1976 that this then new treaty was ratified by the United States, and it came into force in January 1977. It was amended by the Supplementary Extradition Treaty of 1985, which came into force in December 1985.
 
As above-mentioned, the 2003 Treaty between the United States of America and the  United Kingdom, although ratified by the UK, it was not yet ratified in the US and, therefore, by virtue of art 23 of the Treaty it was not yet in effect. Once the 2003 Treaty is ratified, the 1972 Treaty, as amended will cease to have effect, but until then the treaties in force are the 1972 Treaty, as amended by the Supplementary Extradition Treaty of 1985. Article IX of the 1972 Treaty is in the centre of this case. It provides: “Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party... to justify the committal for the trial of the person sought if the offence of which he is accused had been commited in the territory of the requested Party...”. The claimant’s defence contends that the provisions of Article IX were ignored and that the order for the claimant’s extradition was not based on and did not require the “sufficient” evidence prescribed by Article IX.
 
The Extradition Act 2003 introduced a reformed scheme and provides the legislative structure which governs the process of extradition from the United Kingdom to the United States. The claimant’s extradition fell within Part 2 of the Act and the United States is a category 2 territory. Once the Secretary of State receives a valid request for extradition to the United States, subject to s 126, he is bound to issue a certificate under s 70. The case is then considered by a judge. Under s 84(1) the judge decides whether there is evidence sufficient “to make a case requiring an answer” by the person whose extradition is being sought. However, where the requesting state is a designated territory within category 2 and the Secretary of State has made an order for the purposes of s 84(7), s 84(1) is, in effect, disapplied. The judge must proceed under s 87. He considers whether the proposed extradition would be compatible with the individual’s Convention rights. Provided it is, the case must be sent to the Secretary of State for his decision. Therefore, in such cases, the judge may not require whether there is sufficient evidence against the individual which requires an answer. This (new) process is inconsistent with Article IX of the 1972 Treaty.
 
As to the Extradition Act 2003 - Designation of Part 2 Territories Order 2003, this Order was made on December 18, 2003, and came into force on the same date as the Extradition Act itself. The United States was designated for the purposes of Part 2, and specifically designated for the purposes of s 84(7). Since January 1, 2004 the United States has relied on these provisions. Thus prima facie evidence of the kind envisaged in Article IX of the 1972 Treaty has not been produced in the 43 or 44 requests made under the new procedure, nor, specifically, in the case of the claimant[60].
 
The challenge in the present case is directed against the decision by the Secretary of State in March 2005 that the United States should continue to be included as a designated territory in paragraph 3 of the Part 2 Order. According to the defence, there is a contradiction between the designation and the terms of the 1972 Treaty, still currently in force, embodying an agreement that extradition between the two states should not proceed without sufficient evidence to show a case to answer.
 
Lord Cresswell said [paragraph 43]: “The starting point for consideration of the present application is the 2003 Act. Nothing in the 2003 Act itself suggests that designation under Part 2 (and its subsequent application to an individual extradition case) is dependent on a bilateral treaty between the United Kingdom and the requesting country. The extradition process created by Parliament for United Kingdom citizens does not require reciprocity or mutuality. This is consistent with the approach of Lord Diplock in Re: Nielson where, in the context of the earlier legislation, he suggested that reciprocity was not a pre-condition to an extradition order”. Therefore, according to his judgment, the Extradition Act 2003 prevails over the 1972 Treaty and the argument based on the current absence of reciprocity does not, by itself, advance the claimant’s case[61].
 
The application for judicial review will be dismissed, for the reason that:
 
1) It would be inappropriate to make an order by way of judicial review which would compel the Secretary of State to remove the designation with a view to encouraging the ratification of the Treaty by the USA, while an order for the permanent removal of the USA would amount to a prohibition against the Secretary of State exercising powers expressly given to him by legislation.
 
2) The designation order was made consistently with and derived its authority from current primary legislation, without constituting a breach of any continuing, enforceable, free-standing rights vested in the claimant. The Order itself was in close logical alignment with the legislation from which it drew its force and was lawfully made by the Secretary of State following the affirmative resolutions of both Houses of Parliament. It was for the Secretary of State to determine how to, and in what way, the early ratification of the 2003 Treaty by the US might best be achieved. The UK could not dictate to the US the process by which it should ratify the Treaty and it was not irrational for the Secretary of State patiently to endure the disappointment while nevertheless continuing to anticipate that in due course the Treaty would be ratified.
 
It is clear with this decision that the English judiciary system tries do not interfere without a justifiable reason in the role of the Government or of the Parliament in extradition matters, in strict respect of the separation de pouvoirs doctrine. Consequently, the 2003 Designation Order is considered legitimate and was in logical alignment with the primary legislation from which it drew its force and was lawfully made by the Secretary of State following the affirmative resolutions of both Houses of Parliament. Thus, the claimant must endure the lack of reciprocity that actually exists between the United Kingdom and the United States of America, for his situation is ruled by the 2003 Extradition Act and not by the 1972 Treaty.
 
In addition to the respect of the separation of powers rule, the Norris case also reflects the reality of the delegated legislation and its limited control by the courts (judicial review) in the English legal system. As to delegated legislation, in many cases the statutes passed by Parliament lay down a basic framework of the law, with creation of the detailed rules delegated to Government departments, local authorities or public bodies. Because it is not directly made by elected representatives, delegated legislation is subject to control, designed to ensure that the power delegated is not abused. This control is mainly made by the Parliament (out of the scope of this paper) and by the courts (judicial review). Delegated legislation can be challenged on any of the following grounds – procedural ultra vires and substantive ultra vires – under the procedure for judicial review. Accordingly to the former, the complainant claims that the procedure laid down in the enabling Act for producing delegated legislation have not been followed. As to the latter ground, it is claimed that the measure under review goes beyond the powers Parliament granted under the enabling Act[62]. In the Norris case, particularly, the claimant applied for judicial review on the basis that the failure or refusal of the Secretary of State to remove the USA from the list of designated territories in Pt 2 of 2003 Act was unlawful and irrational (substantive ultra vires ground).
 
This last qualification of the Secretary of State’s act/omission related to the delegated legislation – irrational – as submitted by the claimant can be considered quite similar to the concept of unreasonableness. In fact, the claimant’s view would hardly be accepted by the English courts. Accordingly, a decision will be held to be outside the public body’s power if it is so unreasonable that no reasonable public body could have reached the decision. This strict rule is known as the Wednesbury principle and was laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948). This approach is not free of criticism, for the very narrow test of unreasonableness severely limits the court’s power to supervise the executive[63].   
 
Further considerations can be made about the limited control of the delegated legislation by judicial review. Firstly, all the prerogative remedies that can be used by the High Court are discretionary, so even if an applicant proves that the public body behaved illegally, the court can still refuse a remedy. Thus, in deciding whether to grant a remedy the court takes into account whether it would be detrimental to good administration. If an alternative remedy is available the court is unlikely to grant a prerogative order. Secondly, the nature of cases brought under judicial review means they inevitable become political at times. Critics (notably Griffith) have noted that the judiciary seems reluctant to interfere in decisions made by the executive in political matters[64]. Finally, we can consider that the effective supervision of the delegated legislation by the courts is difficult, since judicial review relies on individual challenges being brought before the courts. This may not happen until years after a provision is enacted, when it finally affects someone who is prepared and able to challenge it. Consequently, the legislation which largely affects a class of individuals who are not given to questioning official rules, are unaware of their rights, or who lack the financial resources to go to court, will rarely be challenged.
 
Others issues brought by the Norris case as the surrender of nationals by the United Kingdom to the United States and the controversy of this measure existant in the British society will be assessed in the Bermingham case (infra). 
 
 
3.2 - R (on the application of Bermingham and others) v Director of the Serious Fraud Office; Bermingham and others v Government of the United States of America, Queen’s Bench Division – Division Court Judgment, [2006] EWHC 200 (Admin), [2006] All ER (D) 268 (Feb), 21 February 2006
 
 
3.2.1 The facts alleged -
 
The three defendants - David Bermingham, Giles Darby and Gary Mulgrew - were employed by a division of a London clearing bank, GNW, of which the American company, Enron, was a client. They were British citizens, resident in the United Kingdom. They were involved in businesses related to LJM Swap Sub - a subsidiary of the Cayman Islands limited partnership called LJM -, which was to act as a vehicle for the conduct of transactions by the Cayman Island limited partnership and Enron. GNW owned a 50% stake in LJM Swap Sub, which was valued at nil. The first defendant later appreciated that the LJM Swap Sub assets had value. The defendants travelled to the United States where, it was alleged, that they had a secret meeting with Foster, the chief financial officer of Enron, to explore ways and means of unlocking the value in the LJM Swap Sub for their own benefit. Subsequently, the first defendant recommended acceptance of an offer for GNW’s interest in the LJM Swap Sub, and its shares were sold for 1 million dollars to a company called Southampton LP.
 
The defendants later became entitled to acquire the whole interest in that company. The United States Securities and Exchange Commission (SEC) investigated certain transactions including those related to LJM Swap Sub. The defendants were interviewed by officers of the Financial Services Authority (FSA). The FSA made disclosure to the SEC on the basis that the US authorities were the most appropriate to investigate the matter. The Serious Fraud Office (SFO) was asked to consider whether it should investigate allegations against the defendants. It decided against a prosecution. The prosecutor in Texas was of the opinion that the defendants had defrauded GNW of 7 million dollars. They were indicted with wire fraud and aiding and abetting wire fraud. The Government of the United States of America sought the extradition of the three defendants. Warrants were issued for the arrest of each defendant under the Extradition Act 2003. The district judge found that the Texas indictment identified conduct which occurred in the US. The hearing was then adjourned. He was of the opinion that the fact that each of the defendants were UK nationals, living and working in England, and that it was a UK bank which suffered loss did not matter, nor did the fact that 95% of the conduct alleged was within the UK and only 5% in the US since the crime had been committed in more than one jurisdiction and the US authorities were already dealing with it. At the adjourned extradition hearing, the district judge rejected a submission that the proceedings were an abuse of the process of the court against the Convention on Human Rights. The district judge sent the case to the Secretary of State under s 87 (3) of the Extradition Act 2003 for his decision whether the defendants were to be extradited. The Secretary of State ordered the defendants’ extradition, having decided that there were sufficient speciality arrangements in place within the meaning of s 95 of the Extradition Act 2003, and that their extradition would not violate their rights under art. 8 ECHR. The defendants sought judicial review of the Director of the SFO’s decision not to open an investigation and appealed against the decisions of the district judge under s 103 of the Extradition Act 2003 and of the Secretary of State under s 108 of the Extradition Act 2003.
 
 
 
3.2.2 The issues of the case:
 
1) whether the Director of the SFO was required by s 1(3) of the Criminal Justice Act 1987 to reach a conclusion as to place of trial, as the means of protecting the defendant’s Convention rights in fulfilment of his duty under s 6 (1) of the Human Rights Act 1998;
 
2) whether the district judge conducting an extradition hearing under the Extradition Act 2003 possessed any jurisdiction to refuse the order sought on the ground that the proceedings were an abuse of the process of the court on the part of the prosecutor;
 
3) whether the proposed extradition would constitute a disproportionate interference with the defendants’ rights under the art. 8 ECHR; and
 
4) whether the Secretary of State should have concluded that there were no effective specialty arrangements pursuant to s 95  of the Extradition Act 2003, having regard to the practice in the US of having  superseding indictments.
 
 
3.2.3 The decision
 
The application and the appeals would be dismissed.
 
(1) Section 1(3) of the Criminal Justice Act 1987 did not invite the Director of the SFO to constitute himself the judge of the proper place for the trial nor to do so as a means of protecting the defendant’s Convention rights in fulfilment of his duty under s 6(1) of the Human Rights Act 1998. The subsection only conferred a power to investigate. Moreover, it would usurp the role of the district judge under the Extradition Act 2003, which imposed on the judge an express obligation to decide whether the relevant person’s extradition would be compatible with his Convention rights, and to order his discharge if he concluded that it would not. In the instant case, the Director was entitled to take the view that he had.
 
(2) The district judge conducting an extradition hearing under the Extradition Act 2003 possessed a jurisdiction to hold that the prosecutor was abusing the process of the court. The question whether abuse was demonstrated had to be asked and answered in the light of the specifics of the statutory scheme. However, no finding of abuse could be justified by reason of the prosecutor’s refusal or failure to disclose evidential material beyond what was contained in the extradition request, as the prosecutor did not have to establish a case to answer, provided always the prosecutor was acting in good faith. Although it was plain that the judge’s functions under the Extradition Act 2003 were wholly statutory and, therefore, he possessed no inherent powers, that did not mean that he might not enjoy an implied power. The implication arose from the express provisions of the statutory regime which it was his responsibility to administer. It was justified by the imperative that the regime’s integrity was not to be usurped. In the instant case, no ulterior motive for the prosecution had been shown and, accordingly, the district judge had been correct to reject the submissions on abuse of process.
 
(3) Where a proposed extradition was properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution was resisted on art. 8 ECHR grounds, a wholly exceptional case would have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim. In the instant case, it would have been better if the district judge had not simply taken it as a given that the defendants were to be prosecuted in the US and not in the UK and the fact that the defendants were UK nationals. Nevertheless, an appeal could only be allowed if the court concluded that, on a proper appreciation of the material before him, the judge would or might have concluded that the defendants’ extradition would be a disproportionate interference with their art. 8 ECHR rights. If he would, the appeal would be allowed under s 104 (1) (a). If he might have done, the court would give a direction under s 104 (1) (b).  If neither, the court would dismiss the appeal under s 104 (1) (c). In the instant case, there were very substantial connections with the US and it was perfectly properly triable there. Further, there was nothing exceptional about the personal circumstances of the defendants to make a case on proportionality[65].
 
(4) When deciding whether the Secretary of State had correctly concluded that there were in being specialty arrangements with the US within the meaning of s 95 of the Extradition Act 2003, the court had to consider not only the US’s relevant laws and procedures, but also any circumstances specific to the particular case which might bear on the issue. The court was not directly concerned with whether the relevant law or practice in the US complied with the Extradition Treaty, it had to go by the Extradition Act 2003. Section 95 forbade process against an extradited person in the requesting state unless it was an offence in respect of which the person was extradited or an extradition offence disclosed by the same facts as that offence. There was no doubt that superseding indictments were deployed in the US for the trial of extradited defendants, but that was not to say that such defendants were put on trial in breach of the speciality rule. The US adopted a realistic assessment of the sending State’s attitude, in recognition of the speciality doctrine as a principle of international comity, but its courts did not treat it as a technical hurdle devised for the benefit of properly convicted criminals, enabling them to take points which truly belonged to the sending state and which the courts properly inferred that the sending state did not take. In the instant case, s 95  was met.   
 
We would like to develop two brief analysis concerning extradition issues considered respectively by English society (media and public opinion) and by English courts related to the Bermingham case (also called Natwest Three case).
 
First, the Bermingham extradition case has caused a huge controversy in the English media and in the part of the public opinion concerning the extradition of the British citizens – mainly those whose work in the financial-economic system – to the United States, in spite of the absence of the non-surrender of nationals principle in the common law system. For instance, we can cite the creation of the website “friendsextradited”[66]  that was organised by some of the claimant’s friends and that leads a campaign for an amendment to the 2003 Extradition Act to include in this statute the concept of natural forum – to ensure that British citizens accused of ‘British’ crimes would be tried in the United Kingdom. A natural forum amendment would mean that when the victim is British, the accused is British and the alleged crime has been committed in the United Kingdom the subsequent case would be brought before a British court, then preventing the extradition of the British citizens under these circumstances.
 
Even if the analysis of the natural forum concept escapes the scope of this article, and we do not want to enter in the merits of the Bermingham case, we can note the existence of a certain public opinion’s sympathy to the bankers’ cause, who have been accused of economic/financial crimes, which would be completely different if the alleged offences were terrorist or serious organised crimes. Nevertheless, we must be careful with this appreciation because behind this sympathetic approach can be hidden a questionable corporate self-interest against the extradition of British white-collar offenders to be prosecuted and tried abroad for the alleged cross-borders offences. In this case, maybe the impunity could dangerously prevail over the interest of the justice.   
 
Secondly, as to the relation between the human rights grounds to bar extradition and the English courts’ interpretation of extradition from the United Kingdom to the United States, we would like to extend the Professor John Spencer’s view[67] concerning the possible use of the Section 21 of the Extradition Act 2003 to refuse extradition based on human rights matters (s. 21 is limited to category 1 territories but reproduced in s 87 to category 2 territories)  - to the cases involving the United States of America. In the extradition requests of British citizens to the United States of America, the issue of the nationals’ surrender is indirectly enshrined in the question of the respect of Art 8 ECHR (right to respect for private and family life)[68]. It seems that the English courts know in details the realities of American criminal procedure and what’s more, they really trust in the American judiciary system – maybe more than they trust in the European continental judiciary one -  and consequently they do believe that the extradited will have a fair trial right and the others constitutional rights protected by the American courts in American soil.
 
 
4. Conclusion
 
 
The extradition/surrender cases above scrutinized have shown that under the English courts the justice has prevailed over liberty. These cases were ruled by the English courts in a moment which it seems that the ‘crime control’ model prevails over the ‘due process’ one, under the English criminal justice system[69]. Indeed, with the broader application of the European arrest warrant, not only in the United Kingdom but in the others European Union Member States, aiming the effective construction of the European space of liberty, freedom and justice, we will see if this tendency will be confirmed. If it is, the framework decision on the rights of the individual in criminal proceedings involving international judicial co-operation[70] will be welcomed to balance the conflict between the effectiveness of international co-operation and the rights of individuals in this country.   
 
   

* The author would like to express his gratitude to Professor John Spencer – Selwyn College, Cambridge University – for his valuable orientation and comments related to the research for this paper.
[1] OJ EC L 190/1 of 18.7.2002.
[2] For both general and deep view of the European Arrest Warrant, see  R. Blekxtoon et al., eds., Handbook on the European Arrest Warrant, 2005, TMC Asser Press, The Hague, The Netherlands, and the Authors and the site www.eurowarrant.net related to the pan-European EAW Project. See also P. Jund, Les origins du mandat d’arrêt européen in ERA-Forum 4/2003, p.25; M. Plachta, ‘European Arrest Warrant : Revolution in Extradition ?’ in European Journal of Crime, Criminal Law and Criminal Justice, Vol. 11 (2003), p. 178; A. Weyembergh, ‘L’avenir des mécanismes de coopération judiciare pénale entre les Etats membres de l’Union européenne’ in Vers un espace judiciaire pénal européen, G. de Kerchove and A. Weyembergh (eds.), Editions de l’Université de Bruxelles, 2000.
[3] See J. B. Knowles, Blackstone’s Guide to The Extradition Act 2003, Oxford University Press, 2004 ; A. Jones and A. Doobay, Jones and Doobay on Extradition and Mutual Assistance, London Sweet & Maxwell, 2005; and A. Sambei and J.R.W.D. Jones, Extradition Law Handbook, Oxford University Press, 2005.
[4] As to European influences on British Criminal Justice Policy, see M. Davies, H. Croall, J. Tyrer, Criminal Justice – An introduction to the Criminal Justice System in England and Wales, Pearson Longman, London, 2005, p. 99.
[5] Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333) as amended by Art. 2 of the Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004/1898).
[6] The description of the term ‘transnational’ in the United Nations Convention on Transnational Organised Crime (UNCTOC) might be helpful in determining the concept of transnational crime. According to Article 3(2) of the UNCTOC, an offence is transnational in nature if one of the following alternative conditions is met: i) it is committed in more than one state; ii) it is committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state; iii) it is committed in one state but involves an organised criminal group that engages in criminal activities in more than one state; or iv) it is committed in one state but has substantial effects in another state. See I. Bantekas and S. Nash, International Criminal Law, Cavendish Publishing, London, 2003, pp. 49-52.
[7] As to the problems faced by Poland, Germany and Belgium related to the implementation of the European framework decision on the European arrest warrant, see A. Doobay, “The EAW – arrested development?”, New Law Journal, 30th September 2005, pp. 1430-1431. About the Italy’s difficulties  for implementing the European framework decision on the European arrest warrant, see F. Impala, Le mandat d’arrêt européen et la loi italienne d’implémentation – un cas exemplaire de conflit de systèmes, on www.eurowarrant.net
[8] See S. Alegre, “The shifting face of extradition”, New Law Journal, July 2, 2004, pp. 1022-1023. Here, the author considers the increasing use of more ‘efficient alternatives’ to extradition in the global war on terror and how this sits with human rights.
[9] See Extradition Act 1870 ans s 3 of the Extradition Act 1989.
[10] See Fugitive Offenders Act 1967, s 5 of the Extradition Act 1989, and R v Governor of Brixton Prison ex p Kahan [1989] QB 716
[11] Part III applies to all ‘foreign States’ as defined by section 3 of the 1989 Act. Section 3(2) of the 1989 Act sets out a list of countries that are not foreign States, which means that it covers all the ECE countries and those States with which the UK does not have general extradition arrangements, but with which an ad hoc arrangement is made, States that have ratified the various UN conventions and are seeking to rely upon that convention as a basis for extradition and countries with which recent general extradition arrangements have been established, for example, Brazil. Schedule 1 covers all extant treaties. See A. Sambei and J.R.W.D. Jones, Extradition Law Handbook, Oxford University Press, 2005, p. 25.
[12] See e.g., R v Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No 3) [2000] 1 AC 147; In re Evans [1994] 1 WLR 1006.
[13] See e.g., R (Saifi) v Governor of HMP Brixton [2001] 1 WLR 1134
[14] There are further provisions in the 2003 Act dealing with territories which are neither designated as Category 1 nor 2, but are parties with the UK to international conventions, or are territories with which the UK may wish to have ad hoc extradition arrangements. The designation of territories is primarily a political decision made by the Secretary of State, although it is subject to some Parliamentary scrutiny and there is a prohibition on the designation of a Category 1 territory which imposes the death penalty.
[15] The following territories have been designated: Austria, Belgium, Cyprus, Denmark, Finland, France, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Slovenia, Spain and Sweden – Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333) as amended by Art. 2 of the Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004/1898).
[16] 2002/584/JHA.
[17] Art. 34(1). Not all Member States complied with this timetable. Later, as further Members States have implemented the necessary domestic legislation, they were re-designated as Category 1 territories.
[18] Government response to the Committee’s First Report, February 26, 2003, HC 475.
[19] Categories 2 territories designated are : Albania, Andorra, Armenia, Australia, Azerbaijan, Bulgaria, Canada, Croatia, Czech Republic, Estonia, Georgia, Germany, Greece, Iceland, Israel, Italy, Liechtenstein, Macedonia, Moldova, New Zealand, Norway, Romania, Russian Federation, Serbia and Montenegro, Slovakia, South Africa, Switzerland, Turkey, Ukraine and United States of America.
[20] s. 71(4).
[21] s. 73(5).
[22] s. 84(7).
[23] s. 86(7).
[24] See Paul Garlick Q.C., « The mysterious case of the new US extradition scheme » [2004] N.L.J. 738. In seeking to provide reassurance that any person extradited to the USA would be fairly treated, the Government referred to a statement made by the Government of the USA: “Every person who is extradited to stand trial in the criminal justice system within the United States is entitled to the fundamental right of the due process under the United States constitution. All extraditees have the right to a fair trial, before an impartial jury, and enjoy the right to counsel, the right to confront adverse witnesses, and the right to compulsory process to call witnesses favourable to the defense. No extraditee can be convicted except on the basis of proof beyond a reasonable doubt. Every extraditee has the right to appeal a conviction”. Hansard, col. 24 (December 15, 2003).
[25] The American ratification is not easy, because in the USA the provisions of the Treaty are controversial, particularly among the Irish-American community which fears that the Treaty will make extradition of suspected Irish republican terrorists easier.
[26] The USA require a prima facie case to be demonstrated in order for extradition to be granted. It needs to be submitted only in respect of accusation cases. Essentially such requests must contain : i) the warrant for arrest (or a certified copy) ; ii) a sworn statement from the officer setting out the facts of the case in some detail, the fugitive’s whereabouts, exhibited photographs of the fugitive, and sometimes case summaries ; iii) sworn evidence of the witnesses (the usual practice is to draw up a deposition and exhibit the statement that the witness made to the police as his exhibit) ; iv) other relevant exhibits ; v) sworn statement of law ; and vi) Jurat, namely the document attached at the end of every request which authenticates the whole request. See A. Sambei and J.R.W.D. Jones, Extradition Law Handbook, Oxford University Press, 2005, p. 29.
[27] See, for example, the Report « New UK-US Extradition Treaty » edited by Statewatch – www.statewatch.org/news/2003/jul/25ukus.htm
[28] See the site www.eurowarrant.net related to the pan-European EAW Project: cases related to European arrest warrant – United Kingdom.
[29] The procedure for arrests under a Part 1 warrant is governed by sections 2 to 4 of the 2003 Act. The Category 1 territory submits a Part 1 warrant to the designated authority, NCIS, which must contain the following information : i) That the arrest warrant is issued by a judicial authority of a Category 1 territory ; ii) in a conviction case, a statement that the person is alleged to be unlawfully at large after conviction in respect of an offence specified in the warrant and the warrant is issued with a view to seek his arrest and extradition for the purpose of being sentenced or serving the sentence or another form of detention imposed ; iii) other information, including particulars of identity, particulars of any other warrant issued, particulars of the circumstances in which the person is alleged to have committed the offence, the conduct, the date, time and place of the offence and the law, and the relevant sentence if one was imposed. See A. Sambei and J.R.W.D. Jones, Extradition Law Handbook, Oxford University Press, 2005, p. 22.
[30] The warrant recorded that a custodial sentence of five years had been imposed on the appellant, of which the whole term remained to be served. It was a judgment by default, and the appellant would be granted a new trial before the same court if he appealed against it. The conduct alleged against Mr Armas was said to have occurred, in part, in London, England (executing state) and, in part, in the issuing state – Belgium.
[31] The rules of Court (CPR Part 52 and the Practice Direction) require the High Court to begin to hear the substantive appeal under section 28 within 40 days of the person’s arrest (paragraph 22.6), or the appeal is taken to have been dismissed (section 31(7)). In this case that period had in fact expired prior to the first instance decision even being made. There is a power to extend the period if the High Court believes it to be in the interests of justice to do so (paragraph 22.6 A(4)), including after it has expired (section 31(5)). The High Court held that it was in the interests of justice to retrospectively extend the period ([2004] EWHC 2019 (Admim), paragraphs 12-15).
[32] For example, a person involved in drug trafficking, importing drugs into Belgium, who in the course of his criminal conspiracy came for a day to London and made a telephone call to Belgium to arrange a collection of drugs imported into Belgium by his co-conspirators, would not be extraditable if s 65(2) and 65(3) really require that all of the conduct occurred in Belgium. Such a result is so absurd that we would strain not to interpret the Act as producing it. [paragraph 25].
[33] The Court certified that the case involved a question of law of general public importance [Thereby laying the groundwork for an appeal to the House of Lords].
[34] In addition, Lord Hope of Craighead said [paragraph. 35]:
“But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct”.
[35] According to Professors Michael Plachta and Wouter Van Ballegooij, “Traditionally, the decision whether or not to hand over an offender is made by the administrative body, usually the executive authority of the state. Therefore, such a decision would lie outside the realm of the new concept of mutual recognition. The only way to adopt it was through the ‘judicialisation’ of the extradition process. Although the courts have traditionally been involved in this procedure (albeit the form and extent of this involvement vary considerably among states), their role is, generally, limited to rendering an opinion – which is not binding on the government in all cases – on the admissibility of extradition in legal terms”.  M. Plachta and W. Van Ballegooij, ‘The Framework Decision on the European Arrest Warrant and Surrender Procedures Between Member States of the European Union’ in R. Blekxtoon et al., eds., Handbook on the European Arrest Warrant, 2005, TMC Asser Press, The Hague, The Netherlands, and the Authors, p. 32.
[36] The Professor Harmen Van Der Wilt criticises this judicial approach: “Although both the judiciary and the executive have a certain responsibility in exercising vigilance over the maintenance of symmetry in performances, the executive certainly outmatches the judiciary in this respect. Its preponderance gives expression to the idea that in the final instance it is the executive that represents the state in international relations and that the executive shoud serve the state’s interests on the international plane. It squares with the traditional doctrine of separation of powers and bears the obvious asset of improving communication, as those acting on behalf of the state will know with whom they have to negotiate. To a certain extent, the wisdom of this old construction has been lost in the Framework Decision and one wonders whether its drafters have given this point sufficient consideration”. H. Van Der Wilt, ‘The Principle of Reciprocity’, in R. Blekxtoon et al., eds., Handbook on the European Arrest Warrant, 2005, TMC Asser Press, The Hague, The Netherlands, and the Authors, p. 77.
[37] See S. Broadbridge, ‘The Extradition Bill’ , Research Paper 02/79, 6 December 2002, p. 40 and s.
[38] The arrest warrant issued by the Belgium authority was in the form prescribed in the annex to the Framework Decision and in its Flemish version identified people trafficking, facilitation of unauthorised entry and residence and forgery of administrative documents as the framework list offences for which the appellant’s surrender was sought.
[39] Article 2(4): ‘For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described’.
[40] As to the purposive approach, see C. Elliott and F. Quinn, English Legal System, Pearson Longman, 2005, p. 53.
[41] According to paragraph 5) of the Preamble of the European Framework Decision : “The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States shoul be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice”.
[42] In the same sense, Lord Denning stated his view in Magor and St Mellons v Newport Corporation (1952): “We do not sit here to pull the language of Parliament to pieces and make nonsense of it... we sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactement than by opening it up to destructive analysis”. Magor and St Mellons Rural DC v Newport Corporation [1952] AC 189 53
[43] C. Elliott and F. Quinn, English Legal System, Pearson Longman, 2005, p. 54
[44] In 1963 the House of Lords said that ‘ the whole body of the criminal law of England deals only with acts committed in England’. Cox v Army Council [1963] AC 48, per Viscount Simonds at 67. See A. Sambei and J.R.W.D. Jones, Extradition Law Handbook, Oxford University Press, 2005, p. 3.
[45] For further discussion of the principle, see C. Bassiouni and EM Wise, Aut Dedere Aut Judicare: The Duty to Prosecute or Extradite in International Law, Dordrecht, Martinus Nijhoff, 1995,
[46] In the United Kingdom, nationality is not a bar to extradition and arguments in favour of exempting nationals from surrender have consistently been rejected. In Re McAliskey, for example, the German Government sought the extradition of a UK citizen from the UK. The Divisional Court refused to accept that extradition should be refused on the basis that Germany would not extradite its nationals to face trial in the UK. See McAliskey, in the matter of, Divisional Court (Kennedy LJ and Mance J), 22 January 1997, CO/156/97.
[47] According to Art. 4(6) of the European framework decision:
“Article 4 – Grounds for optional non-execution of the European arrest warrant – The executing judicial authority may refuse to execute the European arrest warrant:
(...) 6. if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.
[48] As to the impact of the regulation of surrender of nationals under the European arrest warrant, see Z. Deen-Racsmany and R. Blekxtoon, ‘The Decline of the Nationality Exception in European Extradition?’, in European Journal of Crime, Criminal Law and Criminal Justice, v.13, n. 3, 2005, pp. 317-363. 
[49] See CEHR,  Ekbatani v Sweden (1998), Beziuk v Poland (2000), Poitrimol v France (1993), Colozza v Italy (1988).
[50] For this purpose, see D. Krapac, ‘Verdicts in Absentia’, in R. Blekxtoon et al., eds., Handbook on the European Arrest Warrant, 2005, TMC Asser Press, The Hague, The Netherlands, and the Authors, pp. 119-135.
[51] Extradition Act 2003 - Section 11 – Bars to extradition : (1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of – (...). (4) If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20. (...). Section 20 – Case where person has been convicted : (...) (8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amouting to a retrial, the person would have these rights: (a) the right to defend hilself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required; (b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
[52] The objectives of Eurojust are set out as follows (Art. 3 of the Eurojust Decision): i) to stimulate and improve the coordination between the competent authorities of the Member States, of investigations and prosecutions in the Member States, taking into account any request emanating from a competent authority of a Member State and any information provided by any body competent by virtue of provisions adopted within the framework of the Treaties; ii) to improve cooperation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests; and iii) to support otherwise the competent authorities of the Member States in order to render their investigations and prosecutions more effective.  See J. Luis Lopes da Mota and R. Jan Manschot, ‘Eurojust and the European Arrest Warrant’, in R. Blekxtoon et al., eds., Handbook on the European Arrest Warrant, 2005, TMC Asser Press, The Hague, The Netherlands, and the Authors, pp. 63-68; J. Luis Lopes da Mota, ‘Eurojust as a link to mutual trust within the European Union’ in G. De Kerchove and A. Weyembergh (Eds), La confiance mutuelle dans l’espace pénal européen/Mutual Trust in the European Criminal Area, Institut d’Etudes Européennes, Editions de l’Université de Bruxelles, pp. 223-228.
[53] See Eurojust Report 2005, 17 March 2006, in particular the judicial cooperation cases cited in the report (pp. 25-66).
[54] See JUSTICE – Response to the European Commission’s Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings – April 2006.
[55] See E. Pirro, ‘Mutual Trust and Enlargement’, in G. De Kerchove and A. Weyembergh (Eds), La confiance mutuelle dans l’espace pénal européen/Mutual Trust in the European Criminal Area, Institut d’Etudes Européennes, Editions de l’Université de Bruxelles, pp. 47-68.
[56] 5 December 2002, http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/138/13802.htm
[57] In 2003, the European Commission endorsed ten comprehensive country monitoring reports with the purpose of assessing candidate countries’ legislative and administrative preparations six months before the accession. In Poland 2003 report one could still read: “Despite steady progress, efforts are still needed to improve the efficiency and transparency of the judiciary, so as to enhance the reliability of the quality of judgements. The access of the public to the judicial system remains limited, especially access to general information on procedures, legal aid and the state of play of an individual’s own pending case. In general the level of the public trust in the efficiency and fairness of the judicial system remains low and the perception of corruption by the public is high”. See Comprehensive monitoring report on Poland’s preparations for membership, pp. 14-16, available at http://europa.eu.int/comm/enlargement/report_2003/index.htm
[58] See European Parliament Report  with a proposal for a EP recommendation to the Council on evaluation of the European arrest warrant (2005/2175(INI)), Rapporteur Adeline Hazan, A6-0049/2006 and European Parliament recommendation to the Council on the evaluation of the European arrest warrant (2005/2175(INI)), A6-0049/2006. (27.2.2006).
[59] For example, Germany presents problems related with German citizens’ extradition. In November 24, 2005 the new government presented a proposed law to facilitate the use of European arrest warrants in Germany. The law would make it easier to extradite German citizens wanted by authorities in other European countries. It still needs the approval of the German parliament. Calls for new legislation grew after the German constitutional court in July 18, 2005 freed a German-Syrian man suspected of ties to Al-Qaeda who was wanted by Spanish authorities. The court ruled that the judicial process under the extradition did not sufficiently protect German citizens. In response, Spain voided several European arrest warrants from Germany. Agence France Press, November, 24, 2005. The European arrest warrant has also been questioned in Belgium, by the Belgium Court of Arbitration, which has asked the EU Court of Justice’s advice on the warrant’s legality. At issue is whether the wrong legal instrument was used to adopt the European arrest warrant and whether it was lawful to have a list of 32 offences for which warrants must be enforced, even if they relate to an act the enforcing state does not deem a crime. Source: Council of the Bars and Law Societies of Europe (CCBE).
[60] Indeed, there is at present a lack of symmetry between the United States and the United Kingdom which will continue until either the United States has ratified the 2003 Treaty or the Secretary of State seeks to obtain Parliamentary approval for the removal of the United States from its current designation under paragraph 3(1) of the Part 2 Order. In the meantime, although Article IX continues to govern any extradition proceedings at the request of the United Kingdom in the United States, it no longer applies to extradition proceedings in the United Kingdom at the request of the United States.
[61] Indeed, the rule of reciprocity is not a rigid principle which allows for no deviation. States may have good reasons to incur unilateral obligations if this is convenient to them. The principle rather serves as a device to make international relations more flexible. States may invoke the principle in order to defy the pressure of powerful neighbours who seek advantages in the realm of criminal law enforcement without correlative duties on their behalf. Reciprocity may have paradigmatic functions as a guideline for the enactment of extradition treaties and may thus contribute to the uniformity of extradition rules. Or it may serve as a precept in the absence of any extradition treaty. Indirectly, the principle of recipricity may reinforce the legal position of the individual as well. The requested person could benefit from a denial of an extradition request on the basis that the requested state upholds higher standards of evidence or does not provide for life imprisonement. Whether he may invoke the principle of reciprocity in extradition proceedings depends on the national law of the requested state. See H. Van Der Wilt, ‘The principle of reciprocity’, in R. Blekxtoon et al., eds., Handbook on the European Arrest Warrant, 2005, TMC Asser Press, The Hague, The Netherlands, and the Authors, pp 71-81.
[62] For instance, in Customs and Excise Commissioners v Cure and Deeley Ltd (1962), the powers of the Commissioners to make delegated legislation under the Finance Act 1940 were challenged. The Act empowered them to produce regulations ‘for any matter for which provision appears to them necessary for the purpose of giving effect to the Act’. The Commissioners held that this included allowing them to make a regulation giving them the power to determine the amount of tax due where a tax return was submitted late. The High Court invalidated the regulation on the ground that the Commissioners had given themselves powers far beyond what Parliament had intended; they were empowered only to collect such tax as was due by law, not to decide what amount they thought fit. See C. Elliott and F. Quinn, English Legal System, Pearson Longman, 2005, p. 65.
[63] For example, in R v Ministry of Defence, ex parte Smith (1995) the applicants had been dismissed from the armed forces because they were homosexuals and sought judicial review of the Ministry of Defence’s policy of banning homosexuals. The ban was held to be legal as it was not Wednesbury unreasonable; the decision was not completely irrational even if the reasons for the ban did not appear convincing. This illustrates how weak the test renders judicial review for protecting fundamental human rights. The approach of the English courts was subsequently heavily criticised by the European Court of Human Rights on the basis that the test of unreasonableness was set too high (Smith and Grady v United Kingdom (1999)). See C. Elliott and F. Quinn, English Legal System, Pearson Longman, 2005, p. 486.
[64] Griffith argues that judges make their decisions based on what they see as the public interest, but that their view of this interest is coloured by their background and their position in society. He suggests that the narrow social background of the highest judges combined with their position as part of established authority, leads them to believe that it is in the public interest that the established order should be maintained. This leads them to the avoidance of conflict with Government police even where it is manifestly oppressive of the most vulnerable. See J. Griffith, The politics of the Judiciary, London, Fontana Press, 1997.
[65] As to the proportionality principle, it means that the case law of the European Court of Human Rights and the European Court of Justice will only allow a public body to use discretionary powers to do what is proportionate to the end to be achieved. In other words, they will not allow a public body to cause a greater degree of interference with the rights or interests of individuals than is required to deal with the state’s objectives. Traditionally, the English courts have been reluctant to adopt this test of proportionality, for fear that it can amount to the judges taking decisions instead of the executive, with judges starting to look at the factual merits of a particular decision. They have preferred to use the more restrictive test of reasonableness. See C. Elliott and F. Quinn, English Legal System, Pearson Longman, 2005, p. 483.
[66] See www.friendsextradited.org.uk and its Press page, which contains a lot of press articles related specifically to the Natwest Three case and its effect on the ‘white-collar British system’. For example, ‘Natwest Three: do not say we did not warn you’, Euroweek, 10 March 2006; ‘High time we acted to stop this extradition inequality’, The Daily Telegraph, 7 March 2006. 
[67] According to John Spencer : « …section 21 looks like an invitation for the person facing extradition to parade before the judge a range of general criticisms of requesting country’s legal system, in an attempt to persuade him that, viewed with a common lawyer’s eye, it does not give defendants a fair trail as required by Article 6 of the ECHR. Whether in practice this section will have this effect depends, of course, on how our judges decide to interpret it. And this depends in turn on how much they know about the realities of criminal procedure in continental countries, (...)”. J. Spencer, The European Arrest Warrant, p. 25. (site www.eurowarrant.net) . This text was originally published in the Cambridge yearbook of legal studies vol.6, pages 201-217.
[68] Article 8 protects the human right to respect for a person’s private and family life, his home and his correspondence. Article 8 is one of the rights which is ‘qualified’ by its second paragraph. In immigration and asylum law, article 8 is often invoked when it is claimed that the deportation of the person would constitute a disproportionate infringement of his right to family life, or that returning him to the scene of traumas suffered in the Requesting State would infringe his psychological integrity, which has been recognized as part of the right to private life. Similar arguments are raised in extradition proceedings, for example, in application for habeas corpus in which the applicant argues that it would be ‘oppressive’ to return him given ‘the passage of time’, for example, because he has, in the meantime, started a family in this country. Since the passing of the Human Rights Act 1998, similar arguments may be presented as potential infrigements of article 8 of the ECHR. Such arguments are, however, harder to sustain than arguments that articles 2 or 3 will be infringed, given the in-built qualification of the right in article 8(2), which contemplates that the right to family life may be interfered with by a State, inter alia, ‘for the prevention of crime’. Thus the point was raised before the European Commission in Launder (Ewan Launder v United Kingdom, European Commission of Human Rights, 8 December 1997 Application No 27279/95 (1998) 25 EHRR CD67), but rejected: “The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting State would be held to be an unjustified or disproportionate interference with the right to respect for family life”. See A. Sambei and J.R.W.D. Jones, Extradition Law Handbook, Oxford University Press, 2005, pp. 107-108.
[69] The Professor Herbert Packer has identified two quite different potential aims for criminal justice systems: the ‘due process’ model and the ‘crime control’ model. The former gives priority to fairness of procedure and to protecting the innocent from wrongful conviction, accepting that a high level of protection for suspects makes it more difficult to convict the guilty, and that some guilty people will therefore go free. The latter places most importance on convicting the guilty, taking the risk that occasionally some innocent people will be convicted. The criminal justice systems tend not to fall completely within one model or the other: most seek to strike a balance between the two. See H. Packer, The limits of the criminal sanction, Stanford, California, Stanford University Press, 1968.
[70] See framework decision on the rights of the individual in criminal proceedings involving international judicial cooperation Justice’s proposal in www.justice.org.uk/images/pdfs/individualrights.pdf and R. Smith, ‘Procedure and suspects in Europe’, New Law Journal, 27 May 2005, p. 840.
 
 

About: European Arrest Warrant Network

The European Arrest Warrant was adopted by the Council of the European Union on 13 June 2002 and has replaced formal extradition practice within the EU between its 27 Member States. As the first measure applying the principle of mutual recognition to foreign judicial decisions and judgments in crimi...

 

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