It is noteworthy that the forum bar was brought in despite the Baker Review (an independent review of the UK’s extradition arrangements) concluding in 2011 that forum bar provisions should not be implemented. The Baker Review decided that the existing bars were sufficient to combat any injustice arising out of forum related issues. The Review noted that the first instance extradition judges they spoke to did not know of any cases decided under the Act in which it would have been in the interests of justice for it to have been tried in the UK rather than in the requesting territory.
The courts seem reluctant to interfere with the decisions of an independent prosecutor, whom the courts appear to view as being better positioned to weigh-up the relevant factors in deciding issues of forum. For example, Lord Phillips stated in the Supreme Court’s judgment in Norris v Government of the United States (No. 2)  UKSC 9 that:
“Extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings. Rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country’s treaty obligations. Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into an inquiry as to the possibility of prosecution in this country.”
The judiciary’s historical reluctance in interfering with forum decisions, the general limits on judicial discretion and the ability for prosecutor to issue a certificate avoiding a judicial determination altogether, has led some commentators to express doubt about whether the introduction of the forum bar will make any practical difference. The effect of the changes will remain uncertain until a court addresses the issue. However, on paper the changes appear to perform an odd sleight of hand by providing the defendant the opportunity to challenge forum with one hand but effectively removing it with the other.
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