I recently attended the annual conference of the International Society for the Reform of Criminal Law, a wonderful organization dedicated to facilitating dialogue and criminal law reform all over the world. The yearly offerings of the conference usually feature a number of interesting issues, from international criminal law to comparative work, to papers on domestic criminal law approaches, to transnational criminal law, and so on. I was lucky enough to present a paper (on cross-border evidence gathering in cybercrime cases) alongside my good friend and writing colleague Prof. Neil Boister. I would be remiss if I didn't mention that the conference was held at the Assembly Hall in Edinburgh, Scotland, and that our Scottish hosts put on a wonderful event.
This year's theme was "Crossing Boundaries -- Exploitation, E-Crime, Evidence & Extradition," and conference attendees were treated to a wonderful set of panels dealing with human trafficking, extradition, cybercrime, electronic evidence and other topics. A highlight was the annual Michael Hill QC Lecture, delivered by Justice Tom Cromwell of the Supreme Court of Canada, in which Justice Cromwell gave a spirited account (some might say a "defence") of the SCC's approach to privacy protection in the electronic age.
One of the most interesting presentations was given by Libby McVeigh, Legal and Policy Director of Fair Trials International in London. Fair Trials is a UK-based NGO which is dedicated to promoting the protection of fair trial rights in the EU context, and focuses in part on inter-state cooperation in criminal matters. Libby gave a fascinating talk on Fair Trials' work regarding INTERPOL, which for those not familiar with it is an international information-sharing network which is participated in by essentially every national police force in the world. INTERPOL's "Red Notice," is the closest thing there is to an international arrest warrant; countries use Red Notices to alert police and border officials around the world that a particular individual is wanted for a crime in the source country. Once a Red Notice is out in the international police information network, it can severely hamper the lives and particularly the ability to travel of the wanted person -- which of course is the point. Red Notices are often effective in leading to the arrest of international fugitives.
Fair Trials has been working for some years to convince INTERPOL to revamp its overall systems regarding the exchange of information regarding individuals, which (as you can read about in various publications on the Fair Trials site) has significant issues with transparency, due process and the ability to challenge or even obtain information -- about Red Notices in particular. An all-too-common occurrence is that corrupt or otherwise questionable criminal justice authorities in some states use the Red Notice as a means of persecuting people for political, social or cultural reasons. For example, journalists or members of a political opposition party can have Red Notices filed against them for spurious reasons, which can cause them to be detained or even arrested in multiple jurisdictions as they try to move around the world.
INTERPOL has thus far been fairly poor at dealing with this kind of issue, but in Fair Trials' estimation some progress is being made. You can read more about these issues here.
The Fair Trials website led me to a blog post by one of their supporting lawyers, Thomas Garner of the UK-based Gherson law firm. In the post Garner discusses the recent British case of Leke Prendi aka Aleks Kola v Albania [2015] EWHC 1809, where an extradition judge had admitted a Red Notice into evidence as sufficiently reliable, simply because it came from INTERPOL. The Court of Appeal reversed this finding on the basis that there was no way of confirming any of the information contained in the Red Notice, as there was no evidence led regarding where or from whom the information in the Notice regarding the appellant had come. It appeared, in fact, that the appellant was not the person named in the Notice. As Gherson notes:
Many people are shocked to learn that INTERPOL does not independently verify the information it publishes in advance of the publication of a Red Notice. This case highlights the very real weaknesses that exist in the system and the potential for real harm to be incurred. The appellant in this case was arrested - and very nearly extradited - on the basis of information contained in a Red Notice. This information did not match his name, date of birth or height. The photograph was unclear and did not appear to be an official photograph as might be taken by the authorities, furthermore there was no information as to when where or why the fingerprints that were linked at a later date to the Notice were taken. There were therefore, very real questions about the authenticity of the information contained in the Red Notice.
This is definitely an issue worth focusing on for anyone involved in litigation where any information from INTERPOL is led as evidence or otherwise relied upon. I did a quick search of Canadian cases where INTERPOL is mentioned, and only 285 came up. While I did not review the cases in any great detail, INTERPOL documents seem to be led primarily in immigration and refugee cases in the Federal Court, usually where the federal government is trying to deport people from Canada on the basis that they are serious criminals. A recent (2014) case demonstrates that our judges, at least, are alive to the fact that information from INTERPOL is not necessarily reliable and should not be presumed so by the Crown when it seeks to act against individuals.
In Canada (Citizenship & Immigration) v A76, the Crown was seeking to deport a Sri Lankan Tamil refugee who arrived on board the Ocean Lady in 2010, on the basis that he had been complicit in war crimes or crimes against humanity with the LTTE (Tamil Tigers), a terrorist organization. A number of documents were led as evidence in support, all of which ultimately originated with the government of Sri Lanka, including an arrest warrant and a Red Notice. Both the Immigration & Refugee Board and the Federal Court found that the Crown had not met its burden of proof, as the information on the basis of which the Sri Lankan government was seeking the respondent were highly questionable, and this unreliability splashed forward onto the Red Notice.
In the 2010 case of Rihan v Minister for Citizenship and Immigration, the Federal Court examined the case of an Egyptian asylum-seeker who had been excluded from refugee status under Article 1F(b) of the Refugee Convention, with significant weight given to an INTERPOL red notice relating to an accusation in Egypt. The judge found that the fact of there being a Red Notice in place was not sufficient to establish ‘serious reasons for considering’ that the applicant had committed a crime and that it was necessary to ‘go further’ in examining if the applicant’s claim that the charges were fabricated was credible. The credibility of the data which INTERPOL circulates is therefore being called into question due to the problems with inadequate review. Further, the case of Henk Tepper – the Canadian potato farmer who was arrested and detained in Lebanon for over a year on the basis of an INTERPOL alert published by Algeria – has highlighted how domestic administrations can become caught up in the problems relating to INTERPOL alerts when they share information through its systems and also fail to provide assistance to those who are unable to rely on the inadequate avenues of redress provided by INTERPOL.*
An important lesson, then; for defence and immigration counsel, be sure to challenge the reliability of any information from INTERPOL if there is a reasonable basis on which to do so, as the credibility of a Red Notice and the information underpinning should be a live issue; for Crown counsel, give some thought as to whether information emanating from INTERPOL should be relied upon as part of your case, without some corroborating material, since it cannot be presumed in all cases that INTERPOL-based information is reliable and using it may not be consistent with the Crown's heightened obligation to ensure fairness in court proceedings.
*Thanks to Libby McVeigh for bringing up the material in this paragraph.
