The Forum Bar in UK Extradition Law: An Unnecessary Failure
| Author | Gemma Davies,Paul Arnell |
| DOI | 10.1177/0022018320902544 |
| Date | 01 April 2020 |
| Published date | 01 April 2020 |
| Subject Matter | Articles |
Article
The Forum Bar in UK Extradition
Law: An Unnecessary Failure
Paul Arnell
Robert Gordon University, UK
Gemma Davies
Northumbria University, UK
Abstract
The introduction of the forum bar into UK extradition law was unnecessary. It is a failure.
It was unnecessary because extant law addressed, or could have addressed, the putative
mischief giving rise to it. It is a failure because it admits only limited and optional prosecutorial
input into forum bar decisions and, more fundamentally, because it is founded upon two
misplaced premises. The forum bar is irredeemable and should be repealed.
Keywords
Extradition, forum, forum bar, concurrent jurisdiction, forum non conveniens
Introduction
A forum bar was introduced into UK extradition law in October 2013 after several high-profile cases led
to calls for its introduction. Those cases, entailing US requests for UK nationals who had committed acts
on British soil, gave rise to a media and political uproar. The response to these cases overcame reasoned
argument and resulted in the insertion of the forum bar into the Extradition Act 2003 (the 2003 Act). The
forum bar was unnecessary and is a failure. It was unnecessary because the human rights bar to extra-
dition and prosecutorial guidelines and agreements governing concurrent criminal jurisdiction, among
other things, addressed the mischief it was enacted to counter. It is a failure because it does not act to
ascertain whether the UK, or indeed anywhere, is the most appropriate jurisdiction in which a criminal
trial should take place. It does not necessarily lead to a criminal prosecution. The two cases where the bar
has been upheld since its introduction highlight its inherent failures. The forum bar was based upon the
premises that it is generally appropriate for extradition hearings to consider a UK prosecution in the
context of concurrent jurisdiction and that where the bar has been upheld a UK prosecution would
follow. Both are misplaced. They arose from the erroneous belief that it was tenable to transplant the
meaning of forum in private international law to extradition. The repeal of the forum bar is called for.
It is not redeemable, at least not without significant and inappropriate changes to fundamental aspects of
Corresponding author:
Paul Arnell, Law School, Robert Gordon University, Aberdeen, AB10 7QE, UK.
E-mail: p.arnell@rgu.ac.uk
The Journal of Criminal Law
2020, Vol. 84(2) 142–162
ªThe Author(s) 2020
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DOI: 10.1177/0022018320902544
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the UK’s criminal justice systems. The repeal of the bar would reinstate clarity in the area with existing
law and practice acting to address forum-related concerns where appropriate. This development would
affirm that prosecution decisions in the context of concurrent jurisdiction are rightly taken by the UK’s
prosecution services independently and alone.
The Nature of UK Extradition
The nature of extradition provides context to the forum bar. Extradition is the legal process under which
individuals are transferred between territories to stand trial or serve a sentence.
1
Within the UK, the
centrepiece of the process is the extradition hearing. It is neither a criminal trial nor a civil hearing.
While criminally related extradition ‘ ...operates within the context of other legal, political and inter-
national considerations’.
2
Indeed, extradition hearings are best considered ‘ ...sui generis, quasi-
criminal proceedings affected by international considerations’.
3
These international considerations
include a cooperative element. Extradition is a bilateral process.
4
Outgoing extradition proceedings
follow a third party request to the UK, and considerations of forum may, or may not, come to play in
the light of that fact. While the specific purpose of extradition is the facilitation of a trial or the
imposition of a sentence abroad, in general terms it acts to serve the interests of international criminal
justice. The explanatory notes to the 2003 Act state:
Crime, particularly serious crime, is becoming increasingly international in nature and criminals can flee
justice by crossing border with increasing ease. Improved judicial co-operation between nations is needed to
tackle this development. The reform of the United Kingdom’s extradition law is designed to contribute to that
process.
5
The international and coopera tive nature of extradition is rea dily apparent in the jurispruden ce. A
leading UK right to respect for private and family life extradition case under Art 8 is Poland v Celinski,
where Lord Thomas stated that there is:
...a constant and weighty public interest in extradition that those accused of crimes should be brought to
trial; that those convicted of crimes should serve their sentences; that the UK should honour its international
obligations and the UK should not become a safe haven.
6
These international obligations generally take the form of the European Arrest Warrant and a network of
bilateral extradition treaties. They are given effect in UK law by Parts 1 and 2 of the 2003 Act,
respectively, with Part 1 governing EU surrenders and Part 2 non-EU extradition from the UK. Notably,
both of the above quotes allude to a traditional understanding of extradition where an individual commits
a crime within one jurisdiction and then flees to another in an attempt to thwart prosecution or escape
1. See generally S Baker, D Perry and A Doobay, A Review of Extradition, September 2011 (the Baker Review) <https://assets.
publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf> (acces-
sed 21 January 2020).
2. The House of Lords Select Committee on Extradition Law, Second Report of Session 2014–2015, Extradition: UK Law
and Practice, 25 February 2015, para 4 <https://publications.parliament.uk/pa/ld201415/ldselect/ldextradition/126/12602.
htm> (accessed 21 January 2020).
3. P Arnell, ‘What an Extradition Hearing Is and Why It Matters’ (2018) 4 Jur Rev 250, 268.
4. Accordingly it differs from the unilateral exercise of deportation, where there are distinct public policy considerations. In Norris
vUK[2010] UKSC 9, Lord Phillips said that while it is not unreasonable that deportation and extradition are often not dis-
tinguished, the ‘ ...public interest in extraditing a person to be tried for an alleged crime is of a different order’ to that
underlying deportation, at para 15.
5. Paragraph 6 <http://www.legislation.gov.uk/ukpga/2003/41/notes> (accessed 21 January 2020).
6. [2015] EWHC 1274 (Admin) para 6.
Arnell and Davies 143
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