What is the forum bar?

The new “forum bar”, introduced into the Extradition Act 2003 (the Act) by the Crime and Courts Act 2013 and in force since October 2013, is one of a number of statutory bars to extradition that a requested person can invoke to prevent their extradition from the UK to an overseas jurisdiction.

The bar was enacted in the context of a perceived imbalance in the UK’s extradition arrangements with the United States and following a number of high profile extradition requests from the United States such as theNatWest Three and Gary McKinnon cases, in which it was argued that some of the alleged criminality had taken place in the UK and therefore the United States was not the proper forum for any trial.

The legislative changes to the Extradition Act 2003

The forum bar was introduced into the Act by the insertion of section 19B for “category 1 territories” (i.e. EU Member States and Gibraltar) and section 83A for “category 2 territories” (i.e. various non-EU member states including the United States). These provisions operate in circumstances where more than one country has jurisdiction over a requested person. They allow a court to bar an extradition where a substantial measure of the requested person’s conduct was performed in the UK and where it is in the interests of justice to do so.

In deciding whether it would be in the “interests of justice” to bar extradition the court is limited to considering the following matters:

  • The place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur.
  • The interests of any victims.
  • The belief of the UK prosecutor that the UK is not the most appropriate jurisdiction to prosecute the requested person.
  • Whether the necessary evidence is or could be made available in the UK.
  • Any delay that might result from proceeding in one jurisdiction rather than another.
  • The desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having particular regard to the jurisdictions in which witnesses, co-defendants and other suspects are located, and the practicability of such persons giving evidence in the UK or in outside jurisdictions.
  • The requested person’s connections with the UK.
  • Whether the relevant authorities in the UK have decided not to take proceedings against the person in respect of the relevant conduct.

In an attempt to assuage any concerns that a forum bar may lead to further delays and satellite litigation, the new legislation has also introduced the concept of a “prosecutor’s certificate”. This allows a prosecutor to issue a certificate which effectively vetoes a judge from barring extradition on forum grounds. The prosecutor can issue such a certificate if they formally decide that a prosecution should not be brought in the UK because either:

  1. there is insufficient admissible evidence or it would not be in the public interest to do so; or
  2. there are concerns about the disclosure of sensitive material (such as material relating to national security or international relations).

Although the certificate can be challenged, it can only be done so as part of an appeal which the High Court must then assess applying the procedures and principles of judicial review.

Impact of the forum bar

It is noteworthy that the forum bar was brought in despite the Baker Review (an independent review of the UK’s extradition arrangements) concluding in 2011 that forum bar provisions should not be implemented. The Baker Review decided that the existing bars were sufficient to combat any injustice arising out of forum related issues. The Review noted that the first instance extradition judges they spoke to did not know of any cases decided under the Act in which it would have been in the interests of justice for it to have been tried in the UK rather than in the requesting territory.

The courts seem reluctant to interfere with the decisions of an independent prosecutor, whom the courts appear to view as being better positioned to weigh-up the relevant factors in deciding issues of forum. For example, Lord Phillips stated in the Supreme Court’s judgment in Norris v Government of the United States (No. 2) [2010] UKSC 9 that:

Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country’s treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country.

The judiciary’s historical reluctance in interfering with forum decisions, the general limits on judicial discretion and the ability for prosecutor to issue a certificate avoiding a judicial determination altogether, has led some commentators to express doubt about whether the introduction of the forum bar will make any practical difference. The effect of the changes will remain uncertain until a court addresses the issue. However, on paper the changes appear to perform an odd sleight of hand by providing the defendant the opportunity to challenge forum with one hand but effectively removing it with the other.