The UK Home Office is about to bring forward an Extradition (Provisional Arrest) Bill 2019 that will give police a power to arrest persons without warrant (summary arrest power) at the request of law enforcement authorities from certain “trusted” countries. Currently, such a summary power is available only in respect of persons who are the subject of a European Arrest Warrant (EAW) issued by a judicial authority in another EU Member State. The new power, therefore, is being introduced with an eye to retaining the current arrest arrangement in respect of EAWs issued by EU Member States should that otherwise be lost as a result of the UK exiting the EU.
Equally, however, the proposed legislation will have the effect of extending the availability of the summary power to a wider range of “trusted” States outside of the EU. The effect is that any police officer will be able to arrest a wanted person in the UK in order to facilitate proceedings against that person in such a State. There will no longer be a need for prior judicial authorisation and scrutiny in respect of the arrest in the UK.
The Bill has not yet been published. Nevertheless, its likely contents can be gleaned from the briefing documents for the Queen’s Speech setting out the government’s legislative agenda for the next session of the UK Parliament, together with the associated ‘Impact Assessment’ on the power. The latter was completed on the 1st October (although not published until the 22nd October), suggesting that this power has been in gestation for some time.
Interpol Red Notice
There would appear to be two pre-requisites for the exercise of the summary arrest power. The first is that an extradition alert, such as an Interpol Red Notice, must have issued for a serious offence in respect of the person concerned. An Interpol Red Notice is not an international arrest warrant. It is a Notice published by Interpol at the request of a member State requesting law enforcement authorities worldwide to locate and provisionally arrest a specified person for a specified offence pending extradition or surrender to the requesting State. Accordingly, the availability of the arrest power is not predicated on an extradition warrant in respect of the person actually having arrived in the UK. It is more in the nature of a pre-emptive power.
The wisdom of relying on the publication of an Interpol Red Notice as a basis for a summary power of arrest in the UK must be questioned. There is growing concern internationally that these Notices are increasingly being used by some States to pursue fleeing refugees, political opponents or human rights activists. The risks associated with that may be offset to some extent by the second pre-requisite (below), but that still leaves room for doubt.
It remains to be seen what will qualify as a serious offence for the purposes of the arrest power. A relatively low gravity threshold applies for extradition offences generally in the UK. There is an implication, however, that the proposed summary arrest power will only apply to the more serious of those offences. Nevertheless, it is difficult to be any more precise about their scope at this stage. The Impact Assessment for the legislation gives a very loose indication that it will target offences such as murder, sexual offences, other violent offences against the person, child exploitation, drug offences, theft and fraud. Even some of these embrace broad categories of conduct, and it is highly likely that the qualifying offences will be wider.
National Crime Agency
Interestingly, it seems that the National Crime Agency (NCA) will be relied upon to confirm that an Interpol Red Notice (or other extradition alert) has been issued in relation to a serious offence and that it is from a “trusted partner country”. If followed through in the legislation, this would be an unusual development. Typically, police powers of arrest are defined in law and exercisable directly at the discretion of an individual constable. In this case, the availability of the power in any given case will be determined by the executive choice of the NCA.
Trusted partner country
The second pre-requisite for the exercise of the power is that the extradition alert must come from an agency in a “trusted partner country”. Presumably, the legislation will empower the Secretary of State to designate “trusted” countries by order. It is not wholly clear what criteria will be applied. The briefing notes for the Queen’s Speech suggest that these will be countries that respect the “international rules-based system” and whose Red Notices and criminal justice systems the UK trusts. That, of course, leaves much political discretion to the Secretary State.
It seems that the list of “trusted” countries will almost certainly include: the European Free Trade Association countries (Iceland, Liechtenstein, Norway and Switzerland) and the ‘Five Eyes Countries’ (Australia, Canada, New Zealand, UK and USA). It should be noted that the latter (apart from the UK) are not parties to the European Convention on Human Rights, and the USA still retains the death penalty in some of its States. There is also an implication that all EU Member States will be designated as “trusted” for this purpose in a post-Brexit scenario, even though there is increasing concern about human rights standards in some of their criminal justice regimes. The Secretary of State will have the power to add countries to the list, but exercise of that power will be subject to parliamentary approval.
Once a person has been arrested under the power, he or she must be brought before a court within 24 hours. At first sight, that might appear to be protective of due process and the rights of the person concerned. It must be asked, however, why it is necessary to allow the police to detain the person for up to 24 hours before bringing him or her before a court. If the arrest power was based on a warrant, the arrested person would normally have to be brought before an independent judicial authority as soon as reasonably practicable. The police would not be allowed to hold on to him or her for investigative purposes. It is not clear why a summary power linked to extradition, as distinct from domestic criminal process, should be any different. A more rights-sensitive approach would be a requirement to bring the arrested person before a court as soon as reasonably practicable and, in any event, no later than 24 hours.
This proposed summary power of arrest seems to be an excessive and unnecessary concession to law enforcement expediency and, in particular, the interests of the security and law enforcement authorities in some favoured foreign countries. For the purpose of securing the arrest of a wanted person, they will be put on the same footing as parties to the EAW regime, even though they are not subject to the broader checks and balances that inform that regime. Significantly, there already is generous provision in UK law for the arrest of a person wanted by the law enforcement authorities in a country that is not party to the EAW regime.
The Extradition Act 2003 Act, for example, provides for the provisional arrest of a wanted person even before an extradition request has issued or arrived from the requesting country. A Justice of the Peace can issue a warrant for the arrest of the person if the Justice has reasonable grounds to believe that the offence in question is an extradition offence, and that there is written information which would justify the issue of an arrest warrant if the person was accused of having committed the offence in the UK.
The involvement of the Justice of the Peace in the existing power provides an important judicial protection for the liberty and rights of a person in the UK. This is especially important given that the person is innocent under the law in the UK, and is not even suspected of an offence under UK law. Nevertheless, the preliminary judicial check does not seriously limit the capacity of the UK authorities to assist another State in enforcing the latter’s criminal process against a person in the UK. So, for example, an application for the arrest warrant is considered and determined ex parte (i.e. without notice to the person affected). Also, once issued, the warrant can be executed by any constable (even if not in possession of the warrant) to arrest the person anywhere in the UK.
Clearly, there already is a reasonable and practicable route for the UK police to arrest a person in the UK on behalf of the authorities in another State who want to secure his or her extradition. The case for extending this to a summary power, with the associated encroachment on respect for the individual’s right to liberty, is not immediately obvious. It would appear that the underlying objective is not just to retain the current EAW-linked power in the event of it otherwise being lost in a post-Brexit environment, but also to extend and normalise it for the benefit of other favoured countries. Equally, it is apparent from the Impact Assessment that the summary power is seen as delivering resource efficiencies for UK law enforcement agencies, relative to the costs and burdens of the more ‘rights friendly’ warrant power.
The Impact Assessment
The Impact Assessment carried out for the proposed arrest power raises some issues that may be of even deeper concern than the substance of the power itself. Throughout the Assessment, the wanted person is persistently referred to as an “offender”. So, for example, the intended effect of the power is to “reduce reoffending by serious and organised criminals”. This totally ignores the fact that most extradition requests are for persons who are suspected of an offence, as distinct from having been convicted of an offence. As such, they are entitled to the presumption of innocence. The Impact Assessment, however, is framed on the premise that they are dangerous criminals who present a serious risk to the UK public if they are not arrested quickly and with the minimum of process and expense.
Indeed, in citing “other key non-monetised benefits”, the Assessment expressly states that “expediting the arrest of these offenders may reduce harm to UK society, in terms of crimes that individuals could have committed had those individuals remained active”. Not only are they presented as “offenders” rather than suspects in the requesting country, but it is assumed that they will proceed to offend further (sic) in the UK! The Impact Assessment also states that the summary power will result in the police spending less time and resources on investigating, pursuing and obtaining warrants “for serious offenders”.
Another concern is that it is estimated that the addition of the proposed summary arrest power will result in an average of a mere six persons entering the extradition process more quickly than would otherwise have been the case. Incredibly, the Assessment states that these individuals “may have gone on to re-offend” in the absence of an immediate arrest at the moment when the police became aware of their presence. Equally, it states that the proposed summary power will “remove the opportunity for this re-offending, thereby avoiding the economic and social cost” of such offending. Whatever credibility might attach to such speculative risks and minimal savings, it is ultimately dashed by the acknowledgment that the numbers of prevented re-offending will be small and that it is “unclear how much re-offending will be prevented.” It is difficult to take the case for the new summary power of arrest seriously when it is presented and justified in such a confused and unbalanced manner.
The proposed introduction of this summary power of arrest represents yet another concession to executive expediency and the self-serving interests of law enforcement agencies at home and abroad at the expense of the individual’s right to liberty. The Impact Assessment for the proposed power offers an illuminating window into the thinking that would appear to be driving such concessions. Persons wanted in other States on suspicion of having committed an offence there are presented without qualification as serious offenders who present a significant risk of “re-offending” here. There is no concession to the fact that these persons are entitled to the presumption of innocence, let alone the need to take it into account when assessing the case for the proposed power to deprive them summarily of their liberty. It does not instil much confidence in the capacity of the new administration to strike a reasonable and proportionate balance between the interests of law enforcement and the fundamental rights of the individual.