The Coronavirus Act 2020 came into force on 25 March 2020 and contains provisions aimed at ensuring the court systems, including those dealing with extradition matters, remain functioning as far as possible/practicable and as is necessary, during the current global pandemic.
Whilst attendance at court as either a Requested Person or an advocate would not fall foul of the current lockdown measures, the reality is that every effort is being made to avoid physical attendance at courts as far as is possible. HMP Wandsworth, the remand prison for those facing extradition, is presently on a complete lockdown, with no prisoners moving in or out. The result is that Requested Persons in custody will not be appearing before the court in person for the foreseeable future. The need for provisions to prevent the extradition court system from grinding to a halt completely was therefore inevitable.
Schedule 24, Part 2 of the Coronavirus Act 2020 applies to the Extradition Act 2003 and deals with the Court’s power to use ‘live-link’ video technology. Whilst this does not differentiate between those Requested Persons on remand and on bail, this article is drafted giving particular consideration to those in custody. Arguably the most significant change is that full extradition hearings in respect of both Part 1 and Part 2 cases, may now be heard via live link.
The amended section 206A now reads as follows, effectively removing the previous prohibition on full hearings being heard by live-link:
206A Use of live links at hearings
206A Use of live links at hearings
(1) This section applies in relation to—
(a) a hearing before the appropriate judge in proceedings under Part 1,
(b) a hearing before the appropriate judge in proceedings under Part 2.
(2) If satisfied that it is in the interests of justice to do so, the appropriate judge may give a live link direction.
(3) A live link direction is a direction requiring a person to take part in the hearing through a live link. (3A) The power to give a live link direction under this section includes the power to give a direction to all or any of the following persons to take part in the hearing through a live link—
(a) the appropriate judge,
(b) the person affected by the extradition claim,
(c) any other party,
(d) the prosecutor or any other legal representative acting in the hearing,
(e) any witnesses in the hearing, and
(f) any interpreter or other person appointed by the court to assist in the hearing.
(4) Such a direction—
(a) may be given on the appropriate judge’s own motion or on the application of a party to the proceedings, and
(b) may be given in relation to all subsequent hearings to which this section applies, or to such hearing or hearings to which this section applies as may be specified or described in the direction.
(6) A person affected by an extradition claim is to be treated as present in court when, by virtue of a live link direction, the person attends a hearing through a live link.
The ability for full hearings to be heard via live link provides an alternative to final hearings simply being adjourned indefinitely to an unknown date in the future. The appropriate Judge may issue, either on their own motion or on application by a party to proceedings, such a direction when it is ‘in the interests of justice’ to do so – which will presumably allow for submissions from either party as to its proposed use.
There is understandable concern by many extradition practitioners over the use of live links for full extradition hearings. Whilst hearings which do not often turn on live evidence (although in our experience evidence by video link is a common feature when the court receives evidence from overseas) and those involving technical arguments as to the validity of a request may be less effected by the provisions, where a Requested Person or a witness is to give evidence and the discipline of the physical courtroom is missing, the potential concerns become all the more apparent. In addition to and perhaps more important than the practical issues which can arise with sometimes temperamental video links and connectivity – although it is understood that HMCTS are doing all that they can to increase the functionality of such links and exploring new method – there seems to be a real risk of a person’s evidence being ‘diluted’ as it is streamed digitally before the court. In cases involving witnesses of fact where an assessment of their credibility is key (and experience tells us that this applies as much to often contested expert testimony), live link necessarily does not always cater well for the many subtle nuances which, collectively, can assist the appropriate Judge in forming an assessment of a Requested Person or witness’ evidence. The fact that many Requested Persons will also require the use of an interpreter will only compound the problem, when combined with the lack of the Requested Person’s physical presence in the Court room.
It remains to be seen whether and how frequently it will be deemed in the interests of justice for a full extradition hearing to be conducted by video link. The unprecedented impact of the Coronavirus has driven the need to develop alternative court solutions at breakneck speed to allow for ‘business as usual’, whatever that new ‘usual’ may be.
In addition to the potential for full hearings to now be capable of being heard via live-link, so too are initial hearings. A Requested Person’s first appearance before the extradition court being conducted by video-link is perhaps less controversial and poses fewer concerns over fairness to proceedings. They may be largely confined to the practical difficulties faced by practitioners such as: taking instruction; allocated time slots by the prisons sometimes meaning a pre-court consultation is cut short, and a hampered ability to read the ‘mood’ of the court when making submissions such as in respect of bail. Such difficulties will be compounded by the fact that, in some cases at least (and it remains to be seen whether duty extradition solicitors will continue to attend court in person) the advocate will also be connecting to the court remotely. More generally this poses the problem of how conferences with clients may be accommodated: security measures will prohibit a direct link between an advocate’s home video conference system and the prison.
The Chief Magistrate’s recent update suggested that given so few new extradition cases were envisaged, it may be possible for the court room to be cleared to allow the advocate to liaise with the Requested Person in private. The fact that both would be appearing remotely would mean that contact would be even further removed but, in light of social distancing applying to almost all aspects of our lives at present, this concept is perhaps more acceptable than it may have been in only the recent past. Of course, it still requires the advocate and the court staff, and probably the Judge, to get to court to operate the system!
As with many, if not all, of the emergency provisions announced, teething problems are inevitable. What is clear is that the court system will be forced to update its technology systems to allow for an unprecedented need for hearings to be dealt with remotely. This could prove to be both a gift and a curse in respect of extradition proceedings post COVID-19. Practitioners will be all too familiar with the sometimes-ineffective current video link technology and fraught attempts mid-hearing to connect to an overseas expert by way of Scopia.
If the present problems serve a catalyst for newly improved video and live link technology, and the willingness to use them properly and ‘steer off’ for their limitations then recent changes forced upon us may indeed come to be regarded as great strides forward. Nonetheless we need to exercise great care. Whilst the provisions of the 2020 Act will expire after a two-year period, what is to prevent more permanent amendments to the Extradition Act 2003 allowing for full hearings to be conducted by live-link outside of the current state of emergency? It is to be hoped that the experience of these emergency powers is properly evaluated, throughout their life and at their conclusion. In the same way that the closure of local courts has sounded the death knell for local justice and something of the essence of our justice system has been lost, it is crucial that efforts for efficiency do not override the current or future, and perhaps equally difficult to measure, fundamental rights of each and every Requested Person.