Stephen Gentle, partner, Kingsley Napley
The high cost of politically motivated extradition cases
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“Politics not justice” was how Lord Ashdown characterised the attempt by Serbia to extradite Ejup Ganic, the former vice president of Bosnia, a victim of Serbia’s wars of aggression in the early 1990s.
After his arrest, Ganic spent 10 days in Wandsworth prison and five months on bail. A senior district judge at the City of Westminster Magistrates Court, in an excoriating judgment on 27 July, described the extradition request as politically motivated and an attempt to abuse the process of the English court.
The judgment followed five days of witness after eminent witness dissecting the request, showing it to be an unsavoury mixture of distortion, omission and false claims.
The lows were many and often astonishing, including a Serbian prosecutor blithely stating that omitting material facts from an extradition request need not be misleading.
The potential for injustice was exposed in the Ganic case. The 2003 Extradition Act did not require Serbia to provide any evidence for its request. It is part of a ’club’ of nations deemed to have acceptable legal standards, and where the trial process in the requesting state can be trusted to be fair. Consequently, evidence is rarely heard in cases involving club members. It tends to occur only where the accused attacks the request, not on its evidential substance but, broadly speaking, on the bona fides of the requesting state. Even in overwhelmingly unfair requests, the principal of comity - reciprocal respect for other states’ judicial and executive integrity - is often an insurmountable hurdle for transparent justice.
The legislation does have safeguards. Extradition must not be tainted by political, religious or racial motives, for example. However, defence submissions almost invariably fail because of the limited arguments available to support these statutory bars to extradition.
What of the prosecution? The relationship between the Crown Prosecution Service (CPS) and the requesting state has recently been described by the former as one of ’solicitor and client’. Although the CPS does, on occasion, engage critically with requesting states, the ’client’ often appears to drive the process, while the CPS nonetheless has responsibility for the case. This can have grotesque effects.
In Ganic, the client (Serbia) sought to rely on the evidence of a close associate of the indicted (fugitive) war criminal, Ratko Mladic. It is inconceivable that this would happen in a domestic prosecution, with the duties that the CPS has as an independent prosecutor to adduce reliable evidence.
It is arguable that in extradition cases the CPS has misunderstood its role. It derives its power to conduct proceedings from statute, not a purported solicitor/client relationship. It ought, therefore, to take an independent view of the merits of extradition cases. When a solicitor/client relationship becomes one of agency, independence is a casualty.
The conventional solution to the problem of over zealous foreign prosecutors scattering arrest warrants like confetti over the heads of the police and the CPS is to introduce a greater element of executive discretion to cull the unsustainable requests at the beginning of the process and refuse the flawed but nevertheless judicially sanctioned ones at the end. This approach will be seen by some as politicising the process in this country - ironic since part of what is sought is the weeding out of politically motivated requests by requesting states. One solution to this might be for the Director of Public Prosecutions to play a more active role in sanctioning requests and intervening more robustly and readily - as required by statute.
Perhaps it will come down to money. Currently, the UK pays for the extradition process in this country. Passing that burden to the requesting state - at least for unsuccessful requests - may reduce the number of requests such as those seeking the return of Polish pig rustlers. After all, if it is really a solicitor/client relationship, shouldn’t the client pay?