Newsletters Private Prosecution 26th Feb 2019

The Man Who Wasn’t There: Private Prosecutions, Extradition and Interpol

One of the factors that any private prosecutor should consider is the whereabouts of any prospective defendant.  What happens if a defendant is not in England and Wales when a private prosecutor applies for a summons?  What can a private prosecutor do to ensure the attendance at trial of a defendant who refuses to return to the jurisdiction? What would happen in ‘Country X’ if an extradition request were made?

In order to secure the return to England and Wales of an uncooperative defendant from overseas, an extradition request must be made.  If a defendant is outside the jurisdiction, that is, if s/he is habitually resident, or is regularly travelling, outside England and Wales, a private prosecutor will need to consider whether, and how, it is possible to secure her/his attendance at trial.  Given that a defendant’s attendance, at some stage of the proceedings, will be an important factor in securing a conviction, private prosecutors could expend considerable funds and resources in seeking a summons against such a person, only to find that s/he cannot be tried and convicted.

Consequently, private prosecutors should carefully consider the following issues in relation to any defendant who is not, or might not, be there.

Restrictions on the institution of extradition proceedings

Unlike the prosecution of offences, extradition proceedings can only be conducted by the Director of Public Prosecutions [‘DPP’] or, in some circumstances, the Director of the Serious Fraud Office [section 3(2) of the Prosecution of Offences Act 1985].  Thus, a private prosecutor cannot directly request a person’s extradition from overseas.

The Crown Prosecution Service’s legal guidance on private prosecutions states that “where the private prosecution requires extradition proceedings, prosecutors should follow the Legal Guidance on Extradition.”  The CPS’s legal guidance on extradition does not specifically refer to private prosecutions.  There is no other published guidance setting out how the CPS will approach extradition in the context of private prosecutions.  However, private prosecutors should be aware that when deciding whether to conduct extradition proceedings, the CPS will apply the Full Code Test.

In short, while a private prosecutor can request that the CPS commences extradition proceedings to secure an accused person’s attendance for trial, the CPS is not under any obligation to do so.

Interpol

Interpol has the power to publish a “red notice” requesting an Interpol member state to locate and provisionally arrest a person “for the purpose of extradition, surrender or similar lawful action”[1].  Requests to Interpol must come from a National Central Bureau (‘NCB’) or an ‘international entity’.  The UK’s NCB is the National Crime Agency (‘NCA’).  Consequently, a private prosecutor cannot require Interpol to issue a Red Notice or a Diffusion – it can only request the NCA’s help in doing so.

Even if the NCA could be persuaded to assist, Article 3 of the Interpol constitution states that “it is strictly forbidden for [Interpol] to undertake any intervention or activities of a political, military, religious or racial character.”  In addition, a Red Notice may not be published for offences relating to private / family matters[2]In the context of private prosecutions, which regularly involve argument that the prosecutor is improperly motivated by the resolution of a private and/or family dispute, one can immediately see where the fault lines lie.

Interpol acts as a conduit for NCB requests.  When a Red Notice is published, Interpol’s rules state that the receiving NCB, in the place where the person has been located:

…shall immediately inform the requesting [NCB] of the fact that the person has been located [and] take all other measures permitted under national law and applicable international treaties, such as provisionally arresting the wanted person or monitoring or restricting his/her movement.[3]

In reality, the actions taken by the requested NCB vary according to domestic law.  Consequently, even if: the NCA is persuaded to act; and Interpol publishes a Red Notice; and the person is located; there is no guarantee that the requested NCB will act.

The location of the accused person

The process for seeking extradition from overseas varies by territory.  The rules relating to extradition with Country X may be different to those that apply to Country Y.  Apart from the European Arrest Warrant [‘EAW’] scheme which, through a process of mutual recognition, applies reciprocally across a number of European jurisdictions, single requests are made to single jurisdictions.

By way of example, if the UK issued an extradition request to Argentina and the accused person fled over the border into Chile, the Argentinian request would have no effect in Chile (or anywhere else) and a fresh request would have to be issued to Chile, where a different treaty and different considerations apply.  The same does not currently apply in relation to the border between France and Italy as both are within the EAW scheme.  It is not yet clear what extradition arrangements will remain or be made in relation to EAW scheme territories upon the withdrawal of the UK from the European Union.

Extradition from category 1 territories

If an accused person is in a category 1 territory (i.e. a country that participates in the EAW scheme), the process is governed by Part 3 of the Extradition Act 2003.  Section 142 of the Extradition Act 2003 provides that “an appropriate judge” may issue a Part 3 warrant (i.e. an EAW) where there are reasonable grounds for believing that the person has committed an “extradition offence”[4] and a domestic warrant has been issued in respect of that person.  In broad terms, an extradition offence is constituted of conduct punishable by imprisonment for a term of 12 months or more.

Unlike a domestic arrest warrant, which a private prosecutor can apply for, only a constable or an “appropriate person” can apply for a Part 3 warrant.  This provision mirrors section 3(2) of the POA 1985.  CPS / police guidance states that “no application for a Part 3 warrant should be made without the approval of the responsible Crown Prosecutor in the relevant CPS Area or Casework Division”.[5]

Generally, to make a request, the relevant conduct will have taken place in the UK. However, section 148(2) Extradition Act 2003 provides that it is also possible to seek extradition for conduct which took place outside the UK, for offences where UK law has extra-territorial effect, for example, under the Computer Misuse Act 1990 (as amended).

Non-category 1 territories

If the defendant is somewhere other than a category 1 territory, then requests are made under the Royal Prerogative and are subject to any relevant treaty provisions.  The territories with which the UK has a bilateral extradition treaty are[6]: Algeria, Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Hong Kong SAR, India, Iraq, Kosovo, Liberia, Libya, Mexico, Nicaragua, Panama, Paraguay, Peru, Philippines, Thailand, Uruguay, UAE and USA.  A treaty has been signed with Morocco but is not yet in force.

It is possible for an ad hoc request to be made to a territory where there is no treaty in place.  That is, the absence of a treaty is not a bar to making a request but such requests, even through ‘normal’ / CPS channels, are rare and their outcomes are unpredictable.  The UK has also ratified a number of international instruments that bridge the gap between the absence of a bilateral treaty and a purely ad hoc request – where there are no treaty obligations linking the UK with Country X[7].

Private Prosecutors in ‘Public’ Proceedings

Some guidance as to the sorts of issues that can arise in extradition proceedings where a private prosecutor is involved in the underlying criminal proceedings can be gleaned from Ukraine v Kononko [2014] EWHC 1420 (Admin).  In that case, Ukraine wanted K to return to stand trial for a series of alleged conspiracies to defraud a bank in Kazakhstan (in contradistinction to the issues discussed here, which involve ‘importing’ persons to the UK, rather than ‘exporting’ them to elsewhere).

Extradition was ordered at first instance.  K appealed and then obtained material regarding the relationship between a Ukraine law firm and the prosecutor behind the extradition request – Ukraine had used privately instructed solicitors to conduct its request.  The fresh evidence was admitted on appealsince it showed that the ‘public’ prosecutor had not conducted the investigation but was simply used to sign documents.  The Administrative Court held that a request to extradite would be refused where there was clear evidence of an abuse of process, including evidence that the prosecutor behind the extradition request had not conducted the investigation.

Whilst the outcome in Kononko may, in part, be attributed to a lack of transparency and a lack of disclosure, the warning is clear – the involvement of a private prosecutor raises alarm bells.  If an extradition request arising from a private prosecution were to be made to Country X, where there may be no capacity for and/or history of such proceedings, one can readily see how a proposed extraditee might frustrate extradition by characterising the request as part and parcel of a misuse of the criminal law amounting to a vendetta.

In the UK, the CPS Extradition Unit of the Special Crime and Counter Terrorism Division in London will draft the extradition request.  The International Criminality Unit at the Home Office forwards extradition requests to non-category 1 territories through the diplomatic route.[8]

Conclusion

    1. Extradition – a private prosecutor can ask the CPS to assist but cannot insist.
    2. In order to challenge a refusal by the CPS to request extradition, judicial review principles apply. That is, the same principles, facts and issues will be relevant to that decision, as would be relevant in the event that the DPP sought to take over, and then abandon, a purely domestic private prosecution.
    3. Interpol may only facilitate an arrest where extradition will follow.
    4. Since private prosecutions regularly involve argument that the prosecutor is improperly motivated, the NCA and Interpol may not engage in any event.
    5. Even if those obstacles can be overcome, Country X, the executing state, may require that ‘dual criminality’ is established.
    6. That is, a private prosecutor should consider the criminal law of the jurisdiction from which the defendant is sought (if ouside category 1).
    7. Additional care must be taken where conduct involves an element of extra-territoriality.
    8. A private prosecutor must consider whether a defendant will be able to challenge extradition in the requested jurisdiction simply on the basis that a private prosecutor is involved, as in Kononko.
    9. The ‘specialty principle’ applies to persons whose extradition is effected. That is, an extradited person can only be tried for the offences for which extradition was ordered.

In the event that a private prosecutor has located a defendant abroad, the procedure before being able to seek extradition is as follows:

  1. Lay the information and apply for a summons.
  2. On the failure of the defendant to answer the summons, apply for a domestic warrant for her/his arrest.
  3. Seek to persuade the CPS to issue an extradition request.
  4. In the event that the defendant does not remain in one place, seek to persuade the CPS to issue further extradition requests.

The first two such steps would have to be communicated to the defendant.  In the event that the CPS did issue extradition proceedings, considerable care should be taken in relation to any continued communication since: the private prosecutor would not be a party to those proceedings; and, there could be a real risk of tipping-off the defendant and inadvertently frustrating the proceedings.  Inevitably, the existence of co-defendants would further complicate the already complex picture sketched above.

Of course, negotiations with the CPS could begin before an information is laid.  However, the notion of a private prosecution does not sit easily with extradition arrangements which typically, and sometimes expressly, involve public prosecutors only.  Taken together, those features raise formidable obstacles to securing the attendance in the UK of the man who wasn’t there.  The costs of navigating those obstacles should be uppermost in the mind of those advising any private prosecutor at the earliest stage.


Gavin Irwin

Amy Woolfson


[1] Interpol’s Rules on the Processing of Data (‘RPD’), Article 82

[2] RPD, Article 83

[3] RPD, Artcile 87

[4] Section 148 of the Extradition Act 2003 defines an “extradition offence”.

[5] Memorandum of Understanding between CPS, SOCA AND ACPO, available at https://www.cps.gov.uk/legal-guidance/extradition-annex-d-memorandum-understanding-between-cps-soca-and-acpo

[6] See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/516418/Treaty_List.pdf (Last accessed on 14/02/19, appears to be the most recently published version.)

[7] UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), UN Convention against Transnational Organised Crime (2000), UN Convention against Corruption (2003), Commonwealth Scheme relating to Extradition (2002)

[8] CPS Legal guidance on extradition, para 1.1


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