Necessity is the mother of invention. Never has the English proverb been proved so true as with the rapid deployment of video link technology in the court system following the coronavirus (COVID-19) pandemic and consequent reduction of in-person hearings. This post considers the developments applicable to extradition proceedings; the current arrangements for hearings, appeals and removal; and the potential impact of the pandemic on the bars to extradition and bail applications.

From 25 March 2020 and for the next two years, a person may attend an extradition hearing under both parts 1 and 2 of the Extradition Act 2003 by live link – whereby all persons taking part in the hearing can see and hear, and be seen and heard by, all other persons – if the judge is satisfied that “it is in the interests of justice to do so”: see ss.206A and 206C.[1] Every person involved in the proceedings may take part through this mechanism, including the judge, requested person, witnesses, lawyers and interpreters, which raises the possibility of a virtual hearing where nobody is present in court. Previously, in recognition of the benefits of the attendance of persons at hearings, s.206A(1) prohibited the use of live links for full extradition and consent hearings. The procedure was generally reserved only for the attendance of requested persons at simple, mandatory call-over hearings.

While arrangements for video hearings are finalised, most hearings at Westminster Magistrates’ Court are currently taking place with a judge physically in court, the defendant on the video link from custody and advocates on the telephone. This may be impermissible as, unlike in certain criminal proceedings, the amendments to the 2003 Act confer no power on the court to direct attendance of anyone taking part in the proceedings by audio link.

There will be arguments about whether attendance by certain (or all) persons via live link will be in the interests of justice. Relevant factors will doubtless include the impact on the fairness of the proceedings, public safety, practicality and the opportunity for the media to scrutinise the proceedings, particularly in high profile cases. A useful starting point may be the non-exhaustive list of circumstances in s.51(7) of the Criminal Justice Act 2003 that a judge must consider before making a direction for a person to take part in criminal proceedings by audio or video link: (a) the person’s availability; (b) the need for them to attend in person; (c) the person’s own views; (d) the facilities available at the location from which the person will take part; (e) whether the person can take part effectively; and, in the case of witnesses, (f) the importance of their evidence; and (g) whether a direction might tend to inhibit any party to the proceedings effectively testing their evidence.

While those confident of discharge and release from custody or stringent bail conditions will welcome that proceedings can continue, there are concerns amongst practitioners that video link hearings may work to the disadvantage of requested persons. A defendant is unlikely to be able to take part effectively in proceedings if there is no mechanism for them to give instructions before and during the final hearing. The opportunity for judges to assess the demeanour of witnesses – and for requested persons to make a positive impression on the court – may also be diminished.

In relation to demeanour evidence, as ever with extradition law, jurisprudence in the immigration context is instructive.

In R(oao SS) (Sri Lanka) v SSHD [2018] EWCA Civ 1391, Leggatt LJ analysed the history of demeanour evidence. Generally, it is no longer thought that the inability to assess the demeanour of witnesses puts appellate judges in “a permanent position of disadvantage as against the trial judge” (as Lord Sumner put it in Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1947] AC 37 [47]). Leggatt LJ concluded that “rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.”

The unreliability of demeanour evidence is more acute where a witness is reliant on an interpreter. Scrutton LJ once said that he had “never yet seen a witness giving evidence through an interpreter as to whom I could decide whether he was telling the truth of not” (see Compania Naviera Martiartu v Royal Exchange Assurance Corp (1922) 13 Ll L Rep 83 [97]). Instinctively, it might be thought Scrutton LJ overstated the position, but social scientists have consistently found that ordinary people cannot make effective use of demeanour evidence; on the contrary, there is some evidence that the observation of demeanour diminishes rather than enhances the accuracy of credibility judgments.

The science accords with the view of Lord Bingham, who, significantly in the context of extradition, wondered what conclusions a judge in the UK could draw from the diverse mannerisms of witnesses from around the world. He concluded that: “To rely on demeanour is in most cases to attach deviations from a norm when there is in truth no norm.”[2]

In any event, video conferencing technology is better than many expected and so – regardless of its merits – judges will be able to assess, at least to some extent, demeanour and, equally, requested persons will have an opportunity to make a favourable impact on the court. It will be recalled that in Crown Court proceedings, live links are frequently used for the receipt of key evidence in the most serious cases, including for sexual offences.

The most pressing and difficult issue is ensuring the effective participation of requested persons in hearings. Prisons will need to be flexible to facilitate the provision of confidential instructions from clients in advance, and during the course, of final hearings, perhaps though the provision of mobile telephones and access to video conferencing facilities. The courts will also need to ensure that requested persons have access to a physical or electronic version of the court bundle so that they can follow and contribute to the hearing process.

There are some teething problems with the management of digital hearings – time slots for hearings are badly needed, not least to assist practitioners manage their time – but the issues are capable of resolution.

The changes also raise the possibility of extradition proceedings – at first instance and on appeal – being broadcast, which until recently, was an almost unthinkable step in England and Wales.[3] This will only arise if proceedings are conducted wholly by live link so that no person taking part in the proceedings is present in court. For a full analysis of the provisions concerning remote attendance at Crown Court hearings and broadcasting see an earlier post in this series here.

It is also important to consider how oral advocacy will have to adapt to the use of live links for extradition hearings. For example, advocates will have to ensure that all relevant papers have been sent and received by the judge in advance of the hearing. No longer will it be possible to physically hand up new material or authorities during the hearing. While email and screen-sharing functions on popular video conferencing applications permit documents to be shown to witnesses and the court at long-range, they can be time consuming and may serve to interrupt effective advocacy. Moreover, the court’s time will become even more precious as it attempts to deal with a back log of cases: advocates appearing on a live link are increasingly expected to be even more efficient with their submissions and there may be even greater emphasis placed on the importance of full written submissions (both before and after an oral hearing). The cross-examination of a witness via a live link can be a very different experience and advocates must inevitably become even more focused in their questioning.

Since the government announced a ‘lockdown’ on 23 March 2020, judges at Westminster have adjourned full extradition hearings and the handing down of judgments for about a month. On 7 April 2020, the Senior District Judge has indicated that full hearings will resume via live link for requested persons and advocates from 20 April 2020. While hearings may continue, the removal of persons whose extradition has been ordered has been temporarily halted. The NCA is making applications for extensions of time to remove requested persons for one month, which judges are granting routinely. There seems little doubt that failure to remove a requested person as a result of the pandemic will amount to a “reasonable cause for delay” should a person apply to be discharged on that basis (see ss.35(5) and 36(8)). Appeals in the Administrative Court have proceeded, by telephone and video link, although some have been adjourned where the inevitable delay in removal might bear on the issues in the appeal, for example, in health or Article 8 ECHR cases.

The impact of the current crisis extends beyond procedural issues to the bars to extradition too.

Requested persons with health concerns, particularly of a respiratory nature, may now have an argument that it would be oppressive because of their physical condition to order their extradition to a state with a severe outbreak (s.25(2)). Even those without any current health concerns may argue that the risk of contracting the virus would be a violation of their Article 3 ECHR rights if the prison estate or region in which they are likely to be detained has been badly affected and its medical capacity overwhelmed. The CPT has published a statement of principles relating to the treatment of persons deprived of their liberty in the context of the pandemic, which practitioners may find useful. In the absence of a domestic remedy, requested persons may also seek Rule 39 relief from the European Court of Human Rights to prevent their removal.

There may also be arguments about the validity of existing conviction EAWs if the calls across Europe for low-risk and short-term prisoners to be released are answered, as they have been in France and Italy. Dependent on the terms of release, requested persons may no longer be wanted for the purposes of “serving a sentence of imprisonment or another form of detention” (s.2(5)(b)). It is a live issue as to whether home curfew in principle amounts to ‘another form of detention’ and it may depend on the circumstances. Regardless of the answer, there will be an impact on Article 8 ECHR assessments: is it proportionate to remove a person to be subject to a home curfew, when the person is, in effect, subject to the same treatment here?

It is not inconceivable that – once travel restrictions across Europe – are eased that there will be dual criminality arguments in relation to requests for persons sought for breaching social distancing rules or other public health offences. See here for an analysis of The Health Protection (Coronavirus) Regulations 2020. A future post will address the offences in the Coronavirus Act 2020.

Finally, the High Court in Perry v USA [2020] 4 WLUK 70 rejected an appeal against a refusal to grant bail to an asthma-sufferer who argued that his conditions of detention on remand were inadequate as a result of the risks arising from the pandemic. Dove J accepted that prison conditions were a relevant consideration to bail, but, in the absence of any evidence to the contrary, proceeded on the basis that HMPPS would comply with its duty of care to the appellant. Practitioners will be monitoring the situation closely. Submissions on this basis may find more favour with the courts should the virus spread more extensively in the prison estate or individual applicants have specific medical evidence of the risks posed to them.