Although they play the role of “referee” during trials and hearings – especially in adversarial systems – at the heart of the judicial system sit magistrates, judges and coroners.
This part is focused on the people. The next part will focus on the court system itself.
A Welsh Justice System XII: A Welsh Court System
The final piece of this chunk of articles on the judiciary and independence focuses on the structure and make-up of...
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I touched on this in Part IVa in more general terms of the law itself, but international law would also need to be factored into the judiciary and certain court procedures.
Some key points here include:
- A suitably qualified judge from Wales would be eligible to be elected to the European Court of Human Rights if/when Wales joins the Council of Europe (which is a separate organisation from the EU). The same goes for the International Court of Justice at The Hague.
- Ensuring the European Convention on Human Rights (ECHR) is reflected in a post-independence Bill of Rights or a continuation of the current Human Rights Act 1998 (assuming the UK Government doesn’t repeal it) to enable ECHR cases to be heard in Welsh courts.
- Individuals would retain the right to apply to the European Court of Human Rights regardless of whether the ECHR is enshrined in Welsh constitutional law.
Extradition
Extradition is the process by which one nation-state asks for a person to be handed over to stand trial or serve a sentence for a crime committed there.
In almost all cases, extraditions have to go through a court hearing, the nation applying for extradition has to submit a warrant of some kind and some sort of legal test on the validity of the extradition has to be undertaken. In extradition hearings, the applicant is usually represented by the Crown Prosecution Service (Part X). A similar process would happen in reverse in Wales was requesting extradition depending on the law in the other state.
The process would be easier if there’s an agreement or treaty between Wales and the state seeking extradition. You assume that any post-independence agreement would include some form of common arrest warrant with the rest of the former UK so formal extradition proceedings might be speedier or not needed at all.
For the EU, post-Brexit agreements would likely apply to Wales meaning a hearing would take place, but the government is unable to intervene.
If Wales rejoins the EU in the future, then the European arrest warrant system would apply. Extradition to another EU member state would be decided fairly quickly by the courts with limited grounds for refusal6.
For most of the rest of the world – particularly non-EU Europe (Turkey, Russia), the Commonwealth and any bilateral agreements the UK has that Wales decides to become part of (i.e. United States, Israel) – again a formal hearing would take place, but the government would retain the right to deny extradition.
There may be circumstances where an independent Wales may choose not to extradite someone even if the proper process has been followed – probably through a new Extradition Act.
That could be because the nation requesting extradition has a poor human rights record, the subject of the extradition has been granted asylum by Wales or the person could face the death penalty, torture or dehumanising treatment if they were extradited.
6: European Commission (December 2021). European arrest warrant. Available at: https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en
