Much opprobrium has been heaped upon the UK's extradition laws of late. The critics say that our courts extradite defendants on the basis of little or no evidence; that British nationals are summarily surrendered for political ends; and that extradition is disproportionate where the crime is trivial.
The bulk of the criticism has been reserved for the UK's extradition relationships with the US and the EU. Rather less has been said of the Government's recent enthusiasm for signing extradition treaties with countries whose human rights records have long been the subject of concern. Algeria and the UAE became extradition partners of the UK in 2007 and 2008 respectively. Earlier this month the House of Lords gave effect to an extradition treaty with Libya. Parliament will consider a treaty with the Philippines later this year; a treaty with Jordan is rumoured to be in the offing.
These treaties serve an important public interest in closing down safe havens for fugitives accused or convicted of serious crimes. But what about defendants who are requested by these new treaty partners, facing trial by criminal justice systems which are persistently criticised by human rights organisations? Are their rights sufficiently protected by our extradition laws?
High Court judgment on Lodhi extradition case
An important response to these questions came in a recent High Court judgment, which quashed the Home Secretary's decision to extradite Mohammed Lodhi to the UAE. Mr Lodhi's extradition was requested in January 2000. It was the first extradition request received by the UK from any country in North Africa or the Middle East. The Court found that, if extradited, there was a real risk that he would have been tortured or suffered inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights.
The Court described the UAE as "a state which respects human rights in a very selective way", pointing to the "brutality in punishments" in the UAE's prisons and the "range of evidence, covering different prisons, times, and Emirates, showing different groups of people, in groups which are independent of each other, describing the same experiences of treatment which breaches Article 3".
Implications for extradition treaties
The judgment sends a strong signal that our courts will not sanction extradition where defendants face a real risk of torture. However, given the many damaging findings made by the court about the prevalence of torture in the UAE, the question arises: should the Government have signed an extradition treaty with the UAE in the first place? The same question might be asked of the Algerian and Libyan treaties.
The Parliamentary debates on all three treaties conform to a similar pattern. Concerns are duly raised about human rights and fair trial standards in the new treaty partner; the Government Minister says that advice has been taken; and the debates conclude with the (entirely correct) observation that our extradition laws enable defendants to argue their human rights concerns, and that the courts should assess those arguments on their own merits.
These debates, although superficial, prompt a concern about the position the Government should adopt when it receives an extradition request from one of its new treaty partners. The Government holds a unique and valuable store of information about human rights violations in Algeria, the UAE and Libya. Having said that the courts should assess any requests from these countries on their own merits, one might think that the Government should impart the information it holds and thereby assist the courts in analysing the risk of abuses in individual cases.
The reality is somewhat different. During the debate in the House of Lords on the UAE extradition treaty, the Minister promised a review into allegations that a Pakistani national had been tortured in Dubai. The review was never carried out. The Home Office called this a "regrettable administrative oversight". The Foreign and Commonwealth Office confirmed to Mr Lodhi's lawyers that it held information about torture in the UAE but refused to disclose it because it would harm the public interest and "prejudice relations" with the UAE.
Facing up to its responsibilities
It is one thing for the Government, faced with extensive and reliable evidence of human rights violations in its new extradition partners, to commend the treaties to Parliament and to defer to the courts. It is quite another to abdicate all responsibility by failing to deliver on promises made in Parliament and by refusing to disclose information which would support a defendant who claims that he faces torture if extradited. It is particularly striking given the recent spate of court cases alleging the Government's complicity in the torture of suspects in countries in North Africa and the Middle East.
It is therefore reassuring that the court conducted such a detailed analysis of the risk of Mr Lodhi's human rights being abused. The judgment should put the Government on notice that extradition treaties should not be entered into lightly. Having recently signed a flurry of treaties, the Government has a duty to share the information it holds (or has promised to obtain) about what really happens inside the criminal justice systems of its new extradition partners.
This article first appeared in The Times on 1 April 2010.
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