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5SAH Extradition and International update: Autumn 2017.

Welcome to our Autumn 5SAH Extradition and International Team's quarterly newsletters.  We are pleased to present a variety of articles from our team of specialist extradition and criminal law barristers.


The team of extradition barristers at 5 St Andrew's Hill are experts in both defending and prosecuting extradition cases. 5 St Andrew's Hill has a strong reputation for extradition work and represents requested persons in proceedings both inside and outside the European Arrest Warrant (EAW) system including Westminster Magistrates’ Court, and appeals to the Divisional and Administrative Courts, Supreme Court and the European Court of Human Rights.


The team is ranked in the Legal 500 as a leading set, in International Crime and Extradition. Four of our barristers are ranked as leading individuals in the Legal 500 and seven of our extradition barristers are ranked as leaders in the field in Chambers and Partners.


The newsletter features the following articles:

  • John Crawford examines the current state of Greek prison conditions and Article 3;


  • Amelia Nice discusses how a requested person can serve their sentence in the UK following a European Arrest Warrant (EAW);


  • Ben Keith writes for the Times and examines how Spain is using the European Arrest Warrant (EAW) as a political snare to trap ex-Catalan leader;


  • Mark Cotter Q.C. and Gemma Lindfield write for the Times on Europe and security: what next?
  John Crawford provides an update on Greek Prison Conditions and Article 3
    Feature article:

The leading Article 3 case regarding Greek prison conditions remains Marku v Greece 2016 EWHC 1801. In this judgment, the court held that extradition to either Korydallos or Nafplio prisons would amount to a breach of Article 3, but crucially refused to make a broader ruling on Greek prison conditions generally. There have since been two significant cases considering the position under Article 3.


Owda v Greece 2017 EWHC 1174, concerned an individual accused of large-scale people trafficking. Three separate arguments were raised on appeal; the risk that Mr Owda would be sent to Korydallos or Nafplio, that being detained in any other prison within the Greek prison estate would be a breach of Article 3, and the risk that he would be detained in police custody, further amounting to a breach of Article 3.


The court found that Mr Owda was unlikely to be sent to either Korydallos or Nafplio, as the prosecuting authority had indicated that he would be detained at Diavata prison. The court accepted that while there was a possibility that he could move prisons, it was very unlikely; a member of the prosecuting authority sat on the committee which would authorise any move. Therefore, the first of the Article 3 arguments were rejected. It is perhaps of note that Mr Owda was a high-profile prisoner, causing a greater level of state interest in this case than might normally arise.


The court also rejected the general Article 3 submission, maintaining the narrow reasoning adopted in Marku. It found that while there was overcrowding at Diavata, there was only just under 3m2 per prisoner. An assurance had been provided that Mr Owda would receive 3m2. The court also considered the time that he would spend in the cell and the prison’s general condition, ultimately ruling that there was no Article 3 breach on this basis. The court further rejected that the level of prisoner fighting in Diavata was similar to that in Korydallos or Nafplio, ruling that the CPT report contained insufficient evidence for this and that staff ratios were not as problematic as they were at Korydallos or Nafplio.


The third argument raised, that Mr Owda was at risk of being detained in police custody, was also rejected. The court found that there was only ever a possibility of this happening, with insufficient evidence to make out a breach of Article 3.


While Owda represents the courts taking a strict approach towards Article 3 arguments, the Northern Irish case of O’Connor v Greece 2017 NIQB 88 confirms that the exception, at least for Korydallos, still stands. The argument in O’Connor focused on whether assurances provided regarding Korydallos prison were sufficient to allay concern regarding a loss of control of the prison, as detailed in the 1st March 2016 CPT report. The court ruled that while assurances regarding space could be accepted at face value, those regarding prison control could not. Greek authorities were found to have failed to provide a suitably detailed explanation of how general commitment to reducing staff shortages would improve specific problems at Korydallos.


For cases going forward, unless specific evidence that the individual is going to Korydallos or Nafplio is provided, an Article 3 argument in a Greek case will likely fail. Focus must be on the fact that the state has lost control of the prison due to staff shortages, as other avenues appear closed in the absence of a further CPT report. While expert evidence regarding the specific prison could be called, the CPT’s focus on Korydallos and Nafplio means there is a lack of data on other prisons, hindering any argument around other establishments.

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  Amelia Nice discusses how a requested person can serve their sentence in the UK following a European Arrest Warrant

Despite provisions being in place for people wanted on EAWs to serve their sentence in this country, there is very little guidance in case law on how this can be managed or assisted alongside the court process. There is only one case, in fact.


The possibility of Requested Persons serving their sentences in this country was envisaged for the EAW scheme. The Council Framework Decision on the ‘European arrest warrant and the surrender procedures between Member States’, June 2002, allows for extradition to be refused if the person sought is resident in the  executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law.


The relevant Framework Decision which allows for transfer of sentences to another country is the Framework Decision on mutual recognition to judgments in criminal matters 2008/909. This explicitly states that its provision may apply in the EAW context. Importantly, the process may be commenced by the issuing state or the executing state or the sentenced person  (Art.4(5)).


The Framework Decisions therefore both explicitly envisage a situation in which the person, still on the territory of the executing state, requests that this country initiate the procedure.


The purpose of allowing a transfer is to facilitate the social rehabilitation of the sentenced person, taking into account such elements as, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.


In Laskiewicz v Poland [2014] EWHC 3701 (Admin)  the court briefly examined the statutory provision which might apply for those wishing to serve their sentence in this country and referred to the procedure as one involving consultation and agreement between the relevant Minister and the appropriate authority of the other country, rather than it being an intra-judicial matter.  In that case, transfer was not possible as Poland had derogated from the 2008 Framework Decision until December 2014.


Anecdotally, requested persons have only managed to transfer their sentence in a handful of cases. Unfortunately, the Framework Decisions have different timeframes and 90 days is allowed for transfer of sentence so at best the process will always take longer than the theoretical 60 days allowed in extradition cases.  In practice, where it has been arranged it seems to have taken many months with no guidance on the proper approach to adjourning proceedings or, if relevant, encouraging a swift response form the requesting state. 


For the time being, practitioners can only point to the importance of a purposive approach to the transfer mechanisms and stress the rehabilitation value on the facts, as may be the case.


Ben Keith
  Spain is using the European Arrest Warrant as a political snare to trap ex-Catalan leader: Ben Keith for the Times
    View our Extradition and International Team Page

Spain has issued a European Arrest Warrant (EAW) for the deposed Catalan leader Carles Puigdemont and four former regional ministers.


This appears to be a nakedly political use of the EAW and the Interpol system. The use of extradition to silence and pressurise political opponents is straight out of the playbook of Vladimir Putin’s Russia or, in fact, any of the bastions of human rights such as Ukraine, Turkey or Venezuela.

Read more >
  Europe and security: what next? Mark Cotter Q.C. and Gemma Lindfield write for the Times

The UK may need to cede some sovereignty to Europe in the fight against terrorism, argues Mark Cotter, Q.C.


Acts of terrorism are occurring all too frequently in Europe, making co-operation on security with the EU vital.


The government’s recent policy paper on the implications of Brexit for security suggests that Britain enter into a treaty with the bloc, but the paper is light on the detail as to how this will be achieved.

Read more >
John Crawford  
John is a barrister specialising in criminal and extradition work. He also has experience of acting in both family and civil cases.  
Amelia Nice  
Amelia is a barrister specialising in extradition, international family and public law, and is ranked in Chambers and Partners as a leader in the field of Extradition at the London Bar.  
Gemma Lindfield  
Gemma is an experienced extradition barrister and has been involved in some of the most complex and high-profile cases. She frequently appears in the High Court on matters of complexity.  
Mark Cotter Q.C.  
‘Able to turn his hand to any area of criminal law to get the best result for his clients.’ Legal 500 (2017).  
Ben Keith  
Ben Keith is a barrister specialising in Extradition, Immigration, Serious Fraud, Human Rights and Public law. He is ranked in the L500 and Chambers and Partners.  
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This update is published for general guidance only and is not to be substituted for legal advice, which should be sought before taking any steps in relation to information that may be included in this notification. If you have any queries arising out of the issues raised, contact a member of our team on +44 (0) 207 332 5400. To opt-out from future communications please click here.

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