The Death Penalty and Extradition

Here in the UK, we have not had the death penalty for over 50 years. In fact, the last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then, there has been a long-held opposition to the death penalty which has been applied in extradition cases.

What is extradition

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question, the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK. They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move, Sajid Javid, the UK Home Secretary, has told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance ("MLA").

What is mutual legal assistance?

MLA is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for MLA are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out, in the event of a conviction.

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK. Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.  This stance has caused Ken Macdonald QC, a former director of public prosecutions ("DPP"), to comment that the Home Secretary has “abandoned a moral policy” and that he has "shoved the door of the death chamber ajar" (The Guardian, 24 July 2018). 

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.


If you would like to discuss any aspect of this article, or your individual case, please contact me on 07766001774 or via email (contact@crimelawyer.co.uk). 

Extradition Update: Poland & Deficiencies in the System of Justice

Minister for Justice and Equality v LM

This case involved the execution of a European Extradition Warrant ("EAW") against a Polish individual, "LM", who is suspected of drug trafficking. In March 2017, the Irish High Court refused to extradite LM due to the Poland's constitutional reforms and concerns about the integrity of the Polish justice system.

The argument was, in summary, that it was impossible for LM to receive a fair trial because the prosecutors, judges and the appellate system in Poland - following recent reforms - was not independent. The Irish High Court concluded that the mutual trust and confidence that states rely upon did not exist in respect of Poland and that, effectively, the rule of law in Poland was systematically damaged. 

The matter has been referred to the European Court of Justice, and the Advocate General at the ECJ, Mr Evgeni Tanchev, has today handed down a (non-binding) Opinion (link here)addressing the issue of deficiencies in the system of justice. The Advocate General has provided the following advice: 

"The execution of a European arrest warrant must be postponed where the competent judicial authority finds not only that there is a real risk of flagrant denial of justice on account of deficiencies in the system of justice of the issuing Member State but also that the person who is the subject of the warrant is exposed to such a risk... In order to determine whether the individual concerned is exposed to such a risk, the executing judicial authority must take account of the particular circumstances relating both to that person and to the offence in respect of which he is being prosecuted or has been convicted". 

The Advocate General's Opinion is not binding and the Judges of the Court are now beginning their deliberations on this case. The ECJ often, though not always, follows the advice of its Advocate General in its final rulings

The Polish extradition cases currently pending in England and Wales will of course be considered on a case by case basis, reviewing a Requested Person's particular circumstances and reasons why a particular case cannot be heard by an independent Court in Poland. However, this is likely to cause further delays in extradition proceedings relating to Poland and any other states who have poor justice systems. 

It is also conceivable that, where there is a systemic problem such that extradition cannot take place, similar arguments will be extended to other areas of law where, for example, mutual recognition of judgments, or other decisions, may be dismissed due to lack of mutual trust. 

Laurent Pech, Professor of European law at Middlesex University, recently commented on the possible dramatic consequences if the ECJ ruled that the Polish judicial system was in contravention of European standards:

If the [ECJ] stops recognising Polish courts as courts within the meaning of EU law, this could then leave the European commission no choice but to suspend EU funding to Poland. The impact on commercial arbitration involving Polish companies may also in time be too significant to be comfortably ignored by Polish authorities” (Source: The Guardian, link here).