The Forum Bar in UK Extradition Law: An Unnecessary Failure

Arnell, Paul and Davies, Gemma (2020) The Forum Bar in UK Extradition Law: An Unnecessary Failure. The Journal of Criminal Law, 84 (2). pp. 142-162. ISSN 0022-0183

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Abstract

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 extradition 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 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.

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