When it comes to important issues such as extradition and the death penalty, should the executive, in the face of the secretary of state, have the last say?

It is unsurprising that the two polarized results occurring in the extradition cases of Gary McKinnon and Abu Hamza et al., have provided a catalyst for debate with respect to the division of the role of the executive and the judiciary in the British extradition process. Many readers would be forgiven in the light of recent media reports pertaining to the stay of the extradition of McKinnon for believing that the secretary of state, the Rt Hon Ms Theresa May MP, contains omnipotence-like status in such a process.

Prior to the decisions reached in respect of McKinnon, Abu Hamza, Babar Ahmad and Talha Ahsan, the British Government commissioned a review of the extradition process by a panel of experts led by the Rt Hon Sir Scott Barker. The same, albeit in excess of 450 pages, is a must-read; we have, at times, relied upon the content therein. One such question addressed by that report was whether or not there should be a curtailment or extension of the role and powers of the secretary of state. Before turning our mind to the same, it is first prudent to set out what in fact those powers are.

The Secretary of State

Under the 1989 Extradition Act, the predecessor to the 2003 Extradition Act, the extradition process was arguably executive-driven. The secretary of state was responsible for agreeing whether or not the extradition process should commence, and if so, whether or not at the conclusion of the proceedings, the extradition order should be made. As identified by the panel, the 2003 Act was intended to limit the executive’s role in extraditionto the greatest possible extent and in doing so “remove any perception that decisions are taken for political reasons or influenced by political considerations”. In recent months, that sentiment does not easily remonstrate with public views expressed, or our own.

The secretary of state is given a power of discretion in respect of Part 1 and Part 2 cases to refuse the extradition sought or to seek an alternative resolution by three sections of the 2003 Extradition Act (Part 1 deals with Category 1 Territories, countries within the European Union, in respect of which extradition is granted in response to a European arrest warrant. Part 2 deals with Category 2 Territories, which are countries outside the European Union.) These are sections 126 (competing extradition requests), 179 (competing claims to extradition) and 208 (national security). These sections cause little or no concern, because they are rarely utilised. For expedience, we therefore need not trouble ourselves with the same. We take a similar view in respect of section 70, which gives an additional power to the secretary of state, in that she is entitled to refuse to certify a case for extradition because of the status of the individual concerned, for example, because they are subject to a competing extradition request, because they are a refugee, or because they have been given leave to enter and/or remain as a result of human rights’ implications. If readers are, however, interested, these sections are discussed in the review to which we have already referred.

In addition to the above, Section 93 of the Act, applies at the end of the court phase of the extradition process. It only arises if the judge concludes there is a case to send to Ms May for her decision as to whether the person should be extradited (Section 93(1)). Ms May is prohibited from ordering the person’s extradition on four grounds, (a) Death penalty (b) Specialty (c) Earlier extradition to the United Kingdom from another territory and (d) Earlier transfer to the United Kingdom by the International Criminal Court. In respect of (b), the rule of specialty prohibits a person being dealt with in the requesting state for matters other than those referenced in the extradition request. If there is no such agreement in place, the secretary of state must not order extradition.

When a case is sent for the secretary of state’s decision, the decision reached by her must be compatible with the concerned individual’s Convention rights. This is because Ms May, as the secretary of state, is a public authority within the meaning of the 1998 Human Rights Act. It is for this reason that extradition and human rights have become synonymous, and why many individuals have coined the phrase “the human rights’ ground” to describe a further ground upon which Ms May can refuse extradition.

“Justice Must be Seen to be Done”

As the panel identified, difficulties have arisen in practice where there is a material change of circumstances following the conclusion of the court phase of the extradition process.  At this stage representations are often made to the secretary of state claiming that it would be a breach of the defendant’s human rights for her to order extradition. For example, because of detention condition and/or the health of the individual concerned. Ms May is entitled in such circumstances to reach a different conclusion to the court. This is where the real issue lies. Alan Johnson, a former Labour home secretary, observed in respect of the McKinnon extradition that Ms May's decision was in her party's interest but not in the national interest. He observed further that in the past the court had decided that there was no case for blocking McKinnon's extradition on human rights’ ground. As such, it seems almost disingenuous that the secretary of state can be entitled to arrive at a decision contrary to one arrived at by a judge.

Ms May is of course entitled under the current regime to consider fresh evidence or the like, but, unlike judges who write carefully crafted judgments, no such judgment is presented by the secretary of state. Take, for example, Ms May’s speech in relation to the decision she arrived at in McKinnon. We are not presented with a summation of the evidence, the competing arguments, or any form of comprehensive justification as to why Ms May arrived at the decision that she did. Contrast the same with the written judgment of the court in Abu Hamza et al., presided over by Sir John Thomas and Mr Justice Ouesely.

We are strong believers, no doubt because we are criminal barristers, in the maxim “justice must be seen to be done”. If this is achieved, then the conclusion of any decision-making process is more readily acceptable and, more importantly, insulated. Catherine Heard of Fair Trials International observed that “judges are in a better position to deal in a transparent fashion, in open court, in an accountable way with difficult extradition cases”. We could not agree more.

The Public Sentiment

Politicians undoubtedly have at the forefront of their mind the voting public, because it is for those individuals that they act. An unpopular decision shall lead undoubtedly to fewer votes. We would be most surprised if the performance of the government in respect of extradition is not featured heavily in election campaigns of the future. The same is, of course, the argument that many have clung to in support of arguing that McKinnon’s extradition was stopped by the secretary of state to please the public; sending a British, white, disabled man to the US would cause outrage. Conversely, sending alleged terrorists would not. Such an argument may be without merit; perhaps Ms May was entitled to arrive at the decision that she did. We are not privy to the full facts and it would be improper for us to speculate. Nonetheless, the fact that she was the person to arrive at that decision and not independent judges, allows one to levy the criticism. For Ms May’s own character to remain intact, it would be prudent for her to remove herself from any role in the extradition process. The government’s response to the panel’s review expressed agreement with a diminishing role for the secretary of state.

However, many recognise that given the nature of the extradition process, which inevitably involves inter-state diplomacy there ought to remain a role for Ms May. For example, the charity Liberty argues that Ms May should be able to refuse an extradition request in certain circumstances even where extradition has been approved by a court. Supporters of such a position argue that this will be necessary where new information comes to light, or where Ms May is privy to intelligence which may not have been available to the court at the time of the extradition hearing. However, if that is so, then it would be more appropriate for there to be recourse for the individual to return to the court as opposed to making a plea to the secretary of state.

Many are concerned also that the court may take an overly harsh view on the issue of human rights. In a recent Supreme Court decision Lord Phillips noted that “only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves” [Norris v United States of America [2010] UKSC 9]. In a similar fashion the court held, in relation to the right to a fair trial, that it is “to be assumed in the absence of the most cogent contrary evidence” that a court in an European country will give a fair trial [Symeou v Public Prosecutor’s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897]. However, such a line of authority does not undermine the judiciary’s role in the extradition process or indeed mean that the executive should retain some control. They in fact reinforce the view in our mind that the courts can arrive at a decision not being swayed by how unattractive that decision may appear to the public, if it based on evidence and reason.

Extradition, at its core, is no different to any other area of law, save that it generates greater public sentiment. In complex criminal cases matters of national security may arise. The power to adjudicate over them is not removed from the judiciary; simple procedures such as public interest immunity applications are advanced.  If a judge can decide upon human right issues on a daily basis, for example the admissibility of evidence, the impact of sole and decisive hearsay and the like, then we see no cogent argument why they cannot decide on the same in respect of extradition. Moreover, issues such as the death penalty or political assurances can be equally well addressed by the judiciaryalone and therefore the secretary of state does not need to consider these issues under Section 93; any argument that these are issues which are best dealt with by the executive, fall foul of our view that “justice must be seen to be done”.  This should be the key concern for the executive as they further review the panel’s report and question the future of British extradition and the role of the secretary of state in the decision-making process.

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The views expressed in this article are the author's own and do not necessarily reflect Fair Observer’s editorial policy.