The UK’s Criminal Law Reform Now Network (CLRNN) has just released a significant report analyzing the state’s laws and practices regarding extradition, mutual legal assistance and extraterritorial jurisdiction. Entitled International Cooperation and Extradition Scoping Review, the report was the result of a cooperative venture between CLRNN and the UK Law Reform Commission, and led by Prof. Gemma Davies of Durham University Law School.

Based on extensive research and consultation of more than 80 stakeholders across the British criminal justice system, the 300-page report recommends extensive reform across the three issue areas. A short briefing paper provides the key findings:

Extradition

  • The Extradition Act 2003 has not been reviewed since 2011, despite significant developments such as multiple legislative amendments, the UK’s departure from the EU, and growing pressure on the extradition system.
  • Assurances are widely used but lack independent monitoring or enforceability. This undermines procedural fairness and may result in repeated litigation at public expense.
  • The forum bar is not operating as parliament intended. It often fails to address concerns over exorbitant jurisdiction and can result in impunity when upheld.
  • There is limited transparency and no statutory right of participation in speciality decisions, where the Secretary of State consents to prosecution for additional offences.
  • The bar on decision to charge and try is causing significant delays but does not reduce the time a requested person spends awaiting trial as intended by parliament.
  • Parallel asylum and extradition proceedings create duplication and inefficiency, contributing to delays and avoidable costs.
  • The Crown Prosecution Service plays a unique role in extradition hearings, without statutory responsibility for legal review of incoming requests from other states, leaving a gap in independent scrutiny of requests.
  • A recent Supreme Court decision dramatically changed the UK’s approach to the assessment of dual criminality in extradition requests involving extraterritorial conduct. This may offer some protection against exorbitant claims to jurisdiction but may also hinder cooperation with EU and global partners.

Mutual Legal Assistance

  • MLA is the formal process by which countries request and provide help in gathering evidence, sharing information, or taking investigative steps for use in criminal investigations and prosecutions across borders.
  • MLA requests frequently encounter delays of over 12 months, impeding prosecutions.
  • Consideration should be given to centralising police resources to support more timely and coordinated responses to overseas requests
  • There is no statutory clarity on the application of PACE to MLA requests or the legal status of police-to-police cooperation.
  • Admissibility of overseas evidence is legally uncertain, which may result in an over-reliance on MLA.
  • MLA safeguards are not on a statutory footing but are the responsibility of the Home Secretary and applied on a discretionary basis. How and when these are applied can be opaque. A review would consider whether the safeguards currently applied are proportionate and necessary and if some safeguards should be on a statutory footing.

Criminal Jurisdiction

  • The report considers the legal authority of courts to try individuals for criminal offences taking into account factors such as where the crime occurred, the nationality of the suspect or victim and the crime’s impact on the country’s interests.
  • The UK lacks a clear or consistent legal basis for territorial and extraterritorial jurisdiction: Courts rely on an uncodified and conflicting mix of tests (e.g., “substantial measure” vs. “terminatory theory”) which can lead to inconsistent decision-making.
  • Extraterritorial jurisdiction (ETJ) is granted inconsistently across statutes.
  • There is no consistent statutory definition of who qualifies as a UK national for jurisdiction purposes.
  • Current frameworks risk creating impunity gaps in some cases and jurisdictional
    overreach in others.

The Report recommends that the Law Reform Commission undertake a full reform project to modernize the law across all three areas, or alternatively break it into three projects. It notes that such reforms would align with the current government’s aim to enhance international cooperation, as well as assist the work of the Border Security Command, an agency established in 2024 to control irregular migration via organized crime groups and assist with broader cooperation efforts.

Canadian criminal justice stakeholders should be examining and digesting this report, with an eye to a review of our own laws in these areas — which are badly in need of reform. In June 2023, a unanimous report of the House of Commons Standing Committee on Justice and Human Rights recommended extensive reform to our extradition laws and practices, which met only with a tepid and condescending response from the Minister of Justice. Canada’s mutual legal assistance practice has never been subjected to serious review or assessment by any independent body.

And, our laws around extraterritorial jurisdiction match up with the assessment the CLRNN Report provides of the UK’s similar laws: lacking clear or consistent legal basis for territorial and extraterritorial jurisdiction (including extended territorial jurisdiction under R. v. Libman), and an odd and confusing distribution of extraterritorial jurisdiction provisions across scattered sections of the Criminal Code and other federal statutes. Not to mention, the time is ripe, given our pressing need for rationalization of these areas of the law in light of the increasing threats from transnational money laundering, cross-border fraud, and the federal government’s new enthusiasm for border enforcement.

There are resources. I co-wrote a book on extraterritorial jurisdiction with colleagues Steve Coughlan, Hugh Kindred and Teresa Scassa a decade ago, which could be dusted off, and more recently former Justice Canada counsel Chris Ram wrote two chapters on the subject in my edited collection Transnational & Cross-Border Criminal Law: Canadian Perspectives. Other Canadian scholars and lawyers have written in this space. We now also have, once again, a federal Law Reform Commission which could be tasked with this work.