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Annex D: MEMORANDUM OF UNDERSTANDING BETWEEN CPS, SOCA AND ACPO

The memorandum of understanding came into effect in October 2007. It has not been amended since then and therefore does reflect statutory changes since that date, such as section 142A of the Extradition Act which provides that an underlying domestic warrant may not always be necessary as a precursor to an EAW.

Joint Guidance On The Operation Of Part 3 Of The Extradition Act 2003

Parties

The parties to this Guidance are -

  1. The Crown Prosecution Service of England and Wales (CPS). CPS is the main prosecuting agency in England and Wales. It decides whether to prosecute cases in accordance with tests set out in the Code for Crown Prosecutors. It has responsibility for prosecuting those cases which it considers satisfy those tests. Depending on the nature of the case concerned, the prosecution of the case will be handled either by a CPS Area or one of the CPS Headquarters Casework Divisions (the prosecuting Area/Division). Responsibility for the preparation of Part 3 Warrants lies with the prosecuting Area or Division. Each Area/Division will make its own arrangements regarding the allocation of such work.
  2. The Serious Organised Crime Agency (SOCA). The Fugitives Unit of SOCA is the primary UK central authority for receipt of incoming and transmission of outgoing European Arrest Warrants. It advises law enforcement agencies and prosecuting agencies on procedures for tracing fugitives abroad. It arranges for enquiries to be conducted abroad to locate fugitives. It co-ordinates arrangements for the return to the UK of persons whose surrender has been ordered.
  3. The Association of Chief Police Officers (ACPO). Within ACPO, the Metropolitan Police Service has the national operational policing responsibility for searching for and arresting of fugitives within England and Wales who are wanted abroad. It has a supporting role where the person is arrested by another UK Police Force. Its role extends also to the removal of persons whose surrender/extradition from the UK has been ordered. Individual Police Forces have responsibility for their own cases when seeking the surrender/extradition to the UK of persons abroad and for the subsequent transfer of such persons to the UK where surrender/extradition is ordered.

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Application

  1. This Guidance applies where CPS approval is required prior to steps being taken with a view to surrender where the case in question will be prosecuted by the CPS in the event of a surrender being ordered. It also applies to cases where it is alleged the person is unlawfully at large after conviction in the UK of an extradition offence.

It covers:

  • interim measures prior to the UK introduction of SIS II
  • the making of requests for provisional arrest to countries operating the EAW system
  • the making of applications to a court for the issue of a warrant under section 142 of the Extradition Act 2003 (Part 3 warrant);
  • the transmission abroad of Part 3 warrants.
  1. It will apply from 8th October 2007
  2. Each of the parties shall ensure that it draws this Guidance to the attention of its members and/or appropriate staff and gives effect to the Guidance' provisions in its own internal guidance.

Definitions

  1. A Part 3 warrant is an outgoing European Arrest Warrant from the UK addressed to a judicial authority in another EU Member State.

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General

  1. The parties to this Guidance recognise that arrest for the purposes of surrender and surrender itself are major interferences with an individual's liberty. It is therefore essential that these measures are only sought where appropriate.
  2. Given the complexity of the surrender process, the parties also recognise the importance of drafting the relevant documentation with the greatest possible care and precision.

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Applications for a Warrant Under section 142 Extradition Act 2003

Section 142 Extradition Act 2003 provides that a Justice of the Peace, a District Judge or a Crown Court Judge is empowered to issue a warrant under Part 3 of the Act. He or she can only do so where a domestic arrest warrant has already been issued in respect of the person concerned and there are reasonable grounds for believing either that the person has committed an extradition offence or that the person is unlawfully at large after conviction of an extradition offence by a court in the United Kingdom.

Under the Extradition Act 2003 (Part 3 Designation) Order 2003, an application for a Part 3 warrant may be made by a number of persons, including a Constable and a Crown Prosecutor. In issuing a Part 3 warrant, the issuing court is required to certify that the person in respect of whom the warrant is issued is either

  • accused in the United Kingdom of an extradition offence specified in the warrant and the warrant is issued in order to secure his return to the UK for the purpose of prosecution for the offence(s) referred to in the warrant; or
  • alleged to be unlawfully at large after conviction in the UK of an extradition offence specified in the warrant and the warrant is issued in order to secure his return so that he can serve a sentence of imprisonment/other form of detention imposed in respect of the offence(s) referred to in the warrant.

Subject to the provisions of this Guidance regarding exceptional circumstances (see below), it is agreed that the following conditions shall apply -

  • In respect of persons who are accused, an application for a Part 3 warrant shall only be made where a Crown Prosecutor has decided that -
    • The offence concerned is an extradition offence within the meaning of the Extradition Act 2003; and
    • There is sufficient admissible evidence to afford a realistic prospect of convicting the person in respect of the offence for which the application for the warrant is made; and
    • It is in the public interest to prosecute the person for that offence.
  • In respect of persons who have been convicted, an application for a Part 3 warrant shall only be made where a Crown Prosecutor is satisfied that -
    • The offence concerned is an extradition offence within the meaning of the Extradition Act 2003; and
    • The person is unlawfully at large following conviction for that offence by a court in the UK; and
    • The purpose of extradition is to secure the person's return to serve a sentence of imprisonment or other form of detention for that offence.
  • No application for a Part 3 warrant should be made without the approval of the responsible Crown Prosecutor in the relevant CPS Area or Casework Division.
  • Under no circumstances shall an application for a Part 3 warrant be sought for any purpose other than those mentioned above. In particular, an application for a Part 3 warrant shall not be made for the purpose of securing a person's return in order to answer questions about an offence.
  • The Part 3 warrant should be drafted by a Crown Prosecutor of the relevant Area or Casework Division. The precedent for a Part 3 warrant contained in the CPS Infonet Legal Guidance should always be followed. Wherever possible the draft warrant should be made available to the Court in electronic form.
  • The application for a Part 3 warrant should be made by a Crown Prosecutor unless the relevant Area or Casework Division agrees that, in the circumstances, it is appropriate for the application to be made by a constable.
  • It is the responsibility of the person who makes the application for a Part 3 warrant to ensure that it is transmitted to the Fugitives Unit of SOCA as soon as possible after it has been issued, along with a letter of undertaking from the Crown Prosecutor responsible for the prosecution confirming that -
    • In an accusation case, the case meets the evidential and public interest tests set out in the most recent edition of the Code for Crown Prosecutors and that the warrant has been issued to secure the person's return for the purpose of prosecution;
    • In a conviction case, that the warrant has been issued for the purpose of securing the person's return in order to sentence, or sentence has already been passed for the carrying out of the sentence concerned.
  • Where a Part 3 warrant is issued pursuant to an application made by a constable, the constable shall send copies of the warrant to the Crown Prosecutor responsible for the case as soon as possible thereafter along with confirmation that the warrant has been transmitted to the Fugitives Unit of SOCA.
  • In the first instance a fax copy of the warrant will allow the Fugitives Unit to commence its work. However the original warrant must be forwarded by secure means as soon as practicable. Hand delivery by a police officer or by a registered courier will suffice for these purposes.
  • It is recognised that some forces do not normally copy or fax warrants. However in the case of Part 3 warrants, the original will be forwarded to and held by the Fugitives Unit of SOCA. The requirement to fax the warrant is to enable the Fugitives Unit to commence work on the case. Where it has been agreed that a Constable will make the application, the copying of the warrant to the relevant Crown Prosecutor is a check that the warrant has been granted in the format approved and drafted by CPS.
  • The Fugitives Unit of SOCA will only transmit a Part 3 warrant and/or place an alert onto SIS II where it is satisfied that the relevant CPS Area or Casework Division has approved the application for the warrant in accordance with this Guidance.

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Provisional (Emergency) Arrest

It may be possible to arrange for a person's emergency arrest in advance of obtaining/submitting a Part 3 warrant. This procedure is known as provisional arrest and may be appropriate where, for example, the subject is considered an imminent flight risk or a danger to the public.

However, provisional arrest in the absence of an EAW is a procedure which is not available in all countries. It is therefore essential to make early contact with the Fugitives Unit at SOCA in all cases where provisional arrest may be an issue to ascertain whether the procedure is available in relation to the country where the person is believed to be.

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