Extradition of terrorists

In summarising the current law in this area, we are required to look at anti-terrorism legislation currently in force in the UK as well as extradition legislation in order to gain insight into current restrictions faced by the government when deciding to extradite a terrorist suspect. There should be an emphasis on the word 'suspected' as the subject matter would then be expected to differ greatly from that of an individual who has been successfully charged with a terrorist offence.

We would therefore be required to bear in mind the implications of the Human Rights Act 1998 and any relevant case law which may have set precedents in this area; allowing us to see any reasoning that may be followed in later cases. Extradition legislation can be found in the Extradition Act 2003, which is a new act designed to simplify and speed up the extradition process. The Act defines Extradition as the process whereby one sovereign state asks another sovereign state to return a person to them so that he may be brought to trial on criminal charges in the requesting state or where the person has escaped from custody following conviction.

The Act contains guidelines concerning warrant and arrest of subjects, the hearing procedures and judges' powers throughout the hearing. There are also rules of evidence, age and human rights as well as appeal procedures, legal costs and the territories involved. Extradition for a crime is difficult when countries have different legal systems and different crimes. The 2003 Act allows removal of the previous limitations of 'dual criminality,' where the crime had to be a crime in both areas for extradition to be allowed.

It would previously have been difficult to extradite someone for being a 'suspected' terrorist if this was not a crime recognised in other countries. There has been the adoption of a European arrest warrant1 that allows simple fast-track arrangements between the EU states and Gibraltar, the secretary of state's role in deciding the status of the defendant has been reduced and rules surrounding foreign documents simplified. The requirement to provide prima facie evidence in some cases has been abolished and there is a simplified appeal process.

For requirements of an 'extradition offence' we would be concentrating on s. 64 where the person has not been sentenced for the offence as we are looking at the topic of terrorism 'suspects' and in s. 64 we find that an extradition offence is where the person is accused of an offence or is alleged to be unlawfully at large after conviction from a court. Offences under the Extradition Act 2003 are found in s64(2) which states that the conduct must have occurred in the country requesting extradition of that person and that the conduct must fall within the European framework list2 in schedule two to the act, and that this conduct must be punishable with imprisonment or other detention.

The list of conduct contains terrorism as an offence; however there is no mention of the conduct of a 'suspected' terrorist. However the Extradition Act 2003 has a policy that simplifies and removes evidential requirements where possible so the requesting country may not have to provide much evidence that the person may have committed terrorism. Where evidence is required, the evidence rules are found in s84 (2) and s86 (2) and under these rules we see that the judge has discretion to admit hearsay evidence.

If the judge is required to see evidence, the test in Galbraith [1981] 1 WLR 1039 is applied; which asks 'whether the prosecution evidence, taken at its highest, is such that no jury properly directed could properly convict upon it. ' Important case law surrounding liability for extradition and relevant to this area of law can be found in the case of Re Ismail3 where it was held that extradition is not to be granted to secure the return of those 'suspected' of crimes as they have to be accused or convicted of the offence. This is a restriction that the government may face in the extradition of terrorism 'suspects.

' Current anti-terrorism legislation in force in the UK can be found as the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 as well as the more recent Prevention of Terrorism Act 2005 which adds further detail to the Terrorism Act 2000. All of the current anti-terrorism legislation is aimed at preserving national security in light of modern fears of threats to security. The Terrorism Act 2000 aimed to group together all separate legislation in this area in order to clarify the law and make it permanent so no re-enactments or renewals would be required.

This act established a new definition of 'terrorism' and allows new powers and offences with regards to terrorists. The Anti-Terrorism, Crime and Security Act 2001 provides further allowances in areas such as terrorist finance, immigration procedure, nuclear and aviation security and police powers. In order to discuss the statement that 'extradition of citizens should be unreserved in the case of suspected terrorists,' we would have to select areas from the legislation that would be relevant to this statement.

We would be expected to look at the definition of 'terrorist' in order to understand whom the act refers to and we would also see if the extradition of suspected terrorists is mentioned in police powers or even in any outlined immigration procedures. Section 1 of the Terrorism Act 2000 defines 'terrorism' as the 'use or threat of action that is designed to influence the government or to intimidate the public or a section of the public and is made for the purpose of advancing a political, religious or ideological cause.

' These actions may involve 'serious violence against a person, serious damage to property, endangering someone else's life, creating a serious risk to the health or safety of the public or a section of the public, action designed to seriously interfere with or seriously disrupt an electronic system'5. The way in which the words 'threat of action' are use in criteria for terrorism suggests that the law is broad and flexible enough to capacitate for terrorism suspects, as it shows that the government only has to show that the person is a threat and not necessarily responsible for any terrorist acts; and therefore a terrorism 'suspect'.

The Terrorism Act 2000 is made up of eight main sections that include proscribed organisations, terrorist property, terrorist investigations, counter terrorist powers, miscellaneous offences and extra measures confined to Northern Ireland. In order to look at the restrictions on extradition of terrorism suspects we would use this act to establish what a terrorism suspect is and what counter terrorism powers are provided by the statute.

The Anti-Terrorism, Crime and Security Act 2001 can be regarded as an addition to the Terrorism Act 2000 and helps to deal further with terrorist property as well as making some amendments to the 2000 Act. The Anti-Terrorism, Crime and Security Act 2001 also deals with new issues such as the freezing of foreign property and has a large area covering immigration and asylum matters. Sections 21 to 32 of this act are extremely relevant in this area of law as it relates directly to 'suspected international terrorists' and explains the procedures that must be followed in relation to terrorism suspects.

This involves certification under this section by the Secretary of State in respect of a person if they reasonably believe that the person's presence in the United Kingdom is a threat to national security and suspects that the person is a terrorist, using the definition in the Terrorism Act 2000. Section 22 of the act allows for many different ways in which the person can be refused permission to enter or remain in the United Kingdom including refusal of leave to enter or remain6 in the United Kingdom, recommendation of a deportation order7 or giving directions for a person's removal from the United Kingdom8.

Developing case law in the area of extradition has shown that terrorists' claims to asylum can be rejected as in the case of T v Secretary of State for the Home Department9 however Article 3 of the European Convention on Human Rights may apply, if the person fears persecution in the receiving country; as in the case of Chahal v United Kingdom. 10 There is also a restriction on how long a person can be detained as in R v Governor of Durham Prison, ex parte Singh11 where detention becomes unlawful if it becomes clear that transfer of that person will not be possible within a reasonable time.

Treatment of suspects can seem quite unsatisfactory in the area of arrest without warrant under the new terrorism legislation particularly s41 of the Terrorism Act 2000, where the grounds for arrest are broad; the disclosure of reasons for arrest to the suspect is inadequate and the detention is longer than any normal period allowed. The act also allows using the notion of 'reasonable suspicion' as found in s.

41 (1) of the Terrorism Act 2000 where it is said that 'a constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist'. Under this section there is no need for any specific offence for a person to be arrested. Under the Immigration Appeals Commission Act 1997, safeguards were provided for the individual via the Special Immigration Appeals Commission, where the commission has jurisdiction to allow an appeal where the decision to deport or extradite someone was not in accordance with the law or immigration rules.

Appeal is allowed for those persons issued with a certificate labelling them a 'suspected international terrorist'12 and this includes allowing an appeal if there are no reasonable grounds for suspicion or for any other reason why the commission considers the certificate should not have been issued. Case law arising from this appeal system includes A and Others v Secretary of State for the Home Department13 where there were a number of appeals against the refusal of the commission to cancel certification issued by the secretary of state that labelled them a suspected terrorist.

Issues highlighted that help to show what is required of the commission during appeals include a sufficient standard of scrutiny for certification and detention of appellants and it was also submitted that the secretary should not rely upon witness statements from other jurisdictions that involve use of questioning methods that breach article three of the convention. However the appeals were all dismissed on the reasoning that where there is a state of emergency in the UK and a threat to national security exists, the state is able to take any action to prevent attacks and so regarded the secretary of state's actions reasonable.

When keeping in mind the Human rights issues involved in this area of law, the European convention on Human Rights was incorporated into domestic law as the Human Rights Act 1998. The Anti-Terrorism, Crime and Security Act 2001 came with a statement saying that it was compatible with the Human Rights Act 1998 however; the government has allowed itself to derogate from these obligations. 14 This derogation allows for the extended detention of a foreign national in order to prevent unauthorised entry into the country or extended detention of a person against whom action is being taken with the aim to extradite or deport that person.

In relation to the idea of a terrorist 'suspect,' we can see that under this derogation order, the grounds for derogating from the individual's human rights obligations are that "There are foreign nationals present in the United Kingdom who are 'suspected' of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom"15.

Article 2 of the European Convention on Human Rights states that citizens have a 'right to life' and therefore placing a duty upon the state to protect this right and under 1985 and 1994 UN General Assembly Resolutions the state must not 'condone or harbour terrorism'16 so the government has to also balance these issues alongside the individual's human rights.