4. Import Extradition - Outside the European Union
- 4.4: When and how to issue the extradition request?
- 4.5: Relevance of the date of the offence
- 4.6: Provisional arrest and Interpol red notices
- 4.7: Drafting the request
- 4.8: Dual criminality
- 4.9: Sentenced cases - enforcement of sentence in the requested state
- 4.10: Prosecution cases - return to extraditing territory to serve sentence imposed
- 4.11: Temporary surrender of persons serving a sentence in the requested state
- 4.12: Bringing the person back to the United Kingdom
- 4.13: Withdrawing an extradition request
- 4.14: Jurisdiction, transfer and surrender of own nationals
- 4.15: Disclosure
- 4.16: Veiled extradition
- 4.17: Specialty
- 4.18: Remission of punishment for other offences
- 4.19: Return of persons acquitted or not tried
- 4.20: Crediting of periods of remand in custody during extradition process
4.1 Introduction
It is usually possible to make an extradition request to all but a handful of countries. Requests to territories outside the European Union will be made according to the relevant extradition arrangement. This will be -
- A bilateral treaty between the United Kingdom and the country concerned; or
- Multilateral convention to which the United Kingdom and the country concerned are parties; or
- An ad hoc or special arrangement made between the United Kingdom and the requested state solely relating to the person in question; such arrangements are only made rarely
Extradition will only be possible in respect of an 'extradition offence'. Although the definition will vary in accordance with the extradition scheme concerned, in broad terms this is in accusation cases (and conviction cases where the sentence has not yet been imposed), where the offence is punishable with at least 12 months' imprisonment, and in 'sentenced' cases, where the person received at least 4 months' imprisonment.
4.2 Key documentation available in the annexes
Relevant Documentation is contained in Annex C, as follows:
Annex C(i) Bilateral extradition treaties
Annex C(ii) Category 2 territories
Annex C(iii) Extradition Act (Parties To International Conventions) Order 2005, SI 2005 No.46
Annex C(iv) Flowchart of the extradition process
4.3 Roles and responsibilities
In simple terms:
CPS Special Crime and Counter Terrorism Division, Extradition Unit -
- Retains responsibility for extradition requests to non-Category 1 territories with the exception of the other Central Casework Division cases (see below)
- Approves and as appropriate prepares import extradition requests, including provisional arrest, based on information provided by the reviewing lawyer
- Advises areas in relation to the process
- Invites the Judicial Co-operation Unit of the Home Office to make the extradition request
Central Casework Divisions -
- Prosecutors within the Central Fraud Group, Counter-Terrorist and Organised Crime Divisions are responsible for preparing extradition requests in their own cases. The Judicial Co-operation Unit of the Home Office will then be invited to make the extradition request.
CPS area prosecutors and Complex Casework Units -
- In accusation cases, confirming in writing to Special Crime and Counter Terrorism Division that the case passes the Code Test; in conviction cases, confirming in writing that the person has been convicted, and that surrender is sought for the purpose of sentencing or carrying out a sentence
- Liaising with the police to obtain intelligence regarding the likely location and future movements of the defendant
- Providing relevant documentation and intelligence to Special Crime and Counter Terrorism Division so that the latter can assess and as appropriate prepare the extradition request. See 'Drafting the request', paragraph 4.7
- Making any applications to the court for warrants as agreed with Special Crime and Counter Terrorism Division
- Ensuring that the prosecution is trial ready. The defendant may be returned quickly and it is therefore essential that CPS is ready to prosecute.
Judicial Co-operation Unit, Home Office -
- Import extradition requests outside the European Union are made between states, unlike EAW requests which are made between judicial authorities. The Judicial Co-operation Unit within the Home Office fulfils this function for requests from England and Wales. Special Crime and Counter Terrorism Division will have direct contact with this unit with regards to transmission of the extradition request.
- The Judicial Co-operation Unit itself will transmit the request under the authority of the Secretary of State for the Home Department.
Probation service -
- If a person is wanted for the purposes of completing a sentence of imprisonment following a revocation of their licence, see reference in paragraph 3.4.
The Extradition Process
4.4 When and how to issue the extradition request?
When?
The same basic rules relating to EAWs also apply in respect of other import extradition requests; see paragraph 3.4 above.
How?
The request itself is prepared by Special Crime and Counter Terrorism Division's Extradition Unit with input from the relevant area prosecutor, other than Central Casework Division cases which are prepared by the reviewing lawyer. The completed request is forwarded to the requested state by the Judicial Co-operation Unit of the Home Office.
4.5 Relevance of the date of the offence
For certain EU Member States, if the offence predates 1st November 2004 it is possible that an extradition request via the Home Office will be required rather than an EAW. See paragraph 3.5 above.
Prescription may act as a bar to extradition but this will depend on the particular extradition arrangements with the country concerned. If a request is being made for an offence that took place several years ago or more, then details as to why the request is only now being made must be passed to Special Crime and Counter Terrorism Division's Extradition Unit.
4.6 Provisional arrest and Interpol red notices
Most extradition schemes permit the provisional arrest of a defendant pending receipt of the formal extradition request. Provisional arrest should only be requested when absolutely necessary, which means in practice that it will only be requested very rarely. Usually a request for provisional arrest will be made by Interpol who will issue what is known as a "red notice". However, Interpol will only do so at the request of Special Crime and Counter Terrorism Division. For some countries, the request from the Special Crime and Counter Terrorism Division has to be routed through diplomatic channels.
The National Central Bureau for Interpol in the United Kingdom is SOCA Multilateral Operations, also known as SOCA International. They can issue a 'red notice' to another state which seeks the provisional arrest of wanted persons with a view to their extradition. In practice, SOCA will only consider issuing a red notice where CPS has given an undertaking that the necessary formal extradition request can be submitted within the relevant period for the state in question. This confirmation must be given by Special Crime and Counter Terrorism Division's Extradition Unit rather than the reviewing lawyer.
Area prosecutors should not send a request for provisional arrest themselves, either to Interpol or to the country concerned. Interpol will return such requests to the prosecutor concerned and this will result in delay.
4.7 Drafting the request
The request will be drafted by Special Crime and Counter Terrorism Division (with the exception of Central Casework Division cases), based on information supplied by the area prosecutor. The details of the application will depend on the country concerned but will always include the following -
- Accusation cases - a first instance warrant, preferably typed, setting out in full all charges for which extradition is sought, or a bench warrant. In the case of a bench warrant, the usual practice is to invite the issuing judge to endorse it attaching a copy of the indictment to which it relates. CPS area should also provide Special Crime and Counter Terrorism Division with a draft indictment.
- Conviction cases - the original, or a certified copy, of the memorandum of conviction and if sentenced, the sentence.
- Identification material - e.g. full names, photograph, fingerprints, physical description, details of aliases, date and place of birth, passport details, present whereabouts if known, and details of the defendant's entry into the country concerned.
- Statement of law in relation to the offences, including any relevant limitation periods.
Depending upon the country to which the request is being sent it will also contain one of the following -
- A summary of the facts of the offence; this will be prepared by the prosecutor or investigating police officer; or
- A sworn 'hearsay' statement setting out in detail the evidence of each witness; this will usually be from the investigating officer or prosecutor; or
- Sworn depositions from each witness required to disclose a prima facie case against the defendant.
Special Crime and Counter Terrorism Division will then prepare the extradition request and the Statement of Law.
Where sworn evidence either in the form of a 'hearsay' statement or statements from each of the prima facie witnesses is required by the requested state, arrangements will have to be made for the witnesses concerned to swear to the truth of their statements. It will be the responsibility of the CPS area concerned to arrange with the appropriate court for this to be done. Usually the lawyer from Special Crime and Counter Terrorism Division Extradition Unit will want to attend so liaison between the area and the unit about the court date is crucial.
As in the case of EAWs, in very exceptional cases, it may be appropriate to issue an extradition request based on the Threshold Test. See again paragraph 3.4.
For cases dealt with by Special Crime and Counter Terrorism Division, the Extradition lawyer will obtain authorisation from their Head of Division (HOD) or Deputy HOD (Extradition) or another Deputy if they are not available in relation to whether or not to proceed with making an extradition request. For other Central Casework Division cases, lawyers should refer their case via their HOD for review. The HOD will consult with the Head of Special Crime and Counter Terrorism Division or one of the Deputy Heads if they consider that the case is an exceptional case where a request should be made on the Threshold Test.
4.8 Dual criminality
It is likely that a dual criminality requirement will be included in the relevant legal instrument governing extradition with any particular state; i.e. that extradition will only be possible if the conduct complained would also amount to an offence in the requested state. If dual criminality must be established it will be the task of the requested state to do so. It is unusual for the requested state to have to find an identical or near identical offence in its criminal law system; rather, it is more common that dual criminality is provable if the conduct described in the extradition request equates to an offence in the requested state, however that offence is described in the requested state.
4.9 Sentenced cases - enforcement of sentence in the requested state
When an extradition request is made for the purpose of enforcing a sentence that has already been imposed, it is possible, though very unusual, that a bilateral or multilateral extradition agreement may allow for enforcement of that sentence in the requested state as an alternative to extradition. However, for non-EU states there is no equivalent of section 145 of the Extradition Act which 'treats as served' the UK sentence that is imposed in the other state.
For reference, see also paragraph 3.9.
4.10 Prosecution cases - return to extraditing territory to serve sentence imposed
Section 153C of the Extradition Act is applicable to UK extradition requests to all territories, i.e. made either via an EAW, or by the Secretary of State.
For details see paragraph 3.10.
4.11 Temporary surrender of persons serving a sentence in the requested state
A bilateral or multilateral extradition agreement may allow for temporary surrender of persons serving a sentence in the requested state.
Section 153A and section 154 of the Extradition Act relate to undertakings given by the UK's Secretary of State which help to enable the temporary surrender to the UK of persons serving a sentence in the requested state, for the purpose of their being prosecuted or sentenced here. The sections are equally applicable to extradition requests to non-EU states and to EAW requests to EU states.
For further details see paragraph 3.11.
4.12 Bringing the person back to the United Kingdom
If the person's extradition is ordered, SOCA's Fugitive Unit will be notified. They will liaise with the relevant local United Kingdom police service which will be responsible for collecting the person in the other Member State. It is important that collection of the person happens expeditiously after extradition is ordered as deadlines for collection apply which if not met can result in the person's release.
Upon his return the person should be brought before the court whose domestic warrant led to the issue of the EAW as soon as possible in accordance with the direction in the warrant. If it is necessary for the police to detain the returned person temporarily because their arrival in the police area occurs outside normal court hours, such detention is subject to the requirements of the PACE Codes.
In particular, further interviewing of the returned person will only be permissible where the conditions of PACE Code C 16.5 are met. (Separate provisions exist to cover persons returned in connection with terrorism related offences - see Counter-Terrorism Act 2008, ss. 22 and 23). The taking of body samples will be permissible only if justifiable under PACE sections 62 to 63A and Code D.
4.13 Withdrawing an extradition request
If for any reason the reviewing prosecutor no longer wishes to pursue the extradition request, they should contact the Special Crime and Counter Terrorism Division's Extradition Unit immediately, so that the latter unit can notify the Home Office.
General Considerations
4.14 Jurisdiction, transfer and surrender of own nationals
See also paragraph 3.14 for general principles.
Jurisdiction
Offending may give rise to concurrent jurisdiction, i.e. the possibility of prosecution in more than one state, if it is cross-border in nature. It may also arise however even if all the offending took place in one country, as the 'other' state may have extra-territorial jurisdiction to prosecute the matter. If the requested Member State may also have jurisdiction to prosecute the offence, consideration should be given as to where best to pursue the prosecution. For guidance see The Interim Guidelines on Concurrent Jurisdiction.
Prosecutors are also referred to the Eurojust guidelines referred to in paragraph 3.14 above. Whilst Eurojust is an EU institution, the principles noted are equally applicable to non EU states.
The factors that should be considered when deciding which jurisdiction should prosecute include the following (although the list is not prescriptive and in any given case, other factors may also be considered) -
- The location of the accused
- Extradition and surrender of persons
- Dividing the prosecution into cases in two or more jurisdictions
- Attendance of witnesses
- Protection of witnesses
- Delay
- Interests of victims
- Evidential problems
- Legal requirements
- Sentencing powers
- Proceeds of crime
- Resources and costs of prosecuting
For cases involving concurrent jurisdiction with the USA, prosecutors should consider the Attorney General's Guidance on US-UK cases involving concurrent jurisdiction issued in January 2007, and the concurrent joint guidance of the Attorney Generals of the UK and USA. It is vital that prosecutors consider these guidelines where jurisdictional issues arise within the context of the 'most serious, sensitive or complex cases'. See "Interim Guidelines on the Handling of cases where Jurisdiction to Prosecute is shared with Prosecuting Authorities overseas" elsewhere on the CPS website.
Surrender of own nationals
Some states refuse to extradite their own nationals. Where this occurs, to prevent that state being a safe haven for nationals who have offended abroad, most extradition instruments allow for transfer of the case to enable the requested state to investigate and where appropriate prosecute their national for the alleged offending.
For example, article 16(1) of The London Scheme For Extradition Within The Commonwealth notes -
'For the purpose of ensuring that a Commonwealth country cannot be used as a haven from justice, each country which reserves the right to refuse to extradite nationals or permanent residents in accordance with clause 15 paragraph (3), will take, subject to its constitution, such legislative action and other steps as may be necessary or expedient in the circumstances to facilitate the trial or punishment of a person whose extradition is refused on that ground.'
Transfer of proceedings
If considering a transfer, whether following consideration of concurrent jurisdictional issues or due to a state not extraditing its own nationals, contact Special Crime and Counter Terrorism Division for further advice.
4.15 Disclosure
The same principles apply as regards surrender under an EAW. For details see paragraph 3.15.
4.16 Veiled extradition
The same provisions apply as regards surrender under an EAW. For details see paragraph 3.16.
Post-Extradition Issues
4.17 Specialty
The specialty principle is that following extradition a person may only be dealt with for offences in respect of which he was extradited and cannot face proceedings for other offences that pre-date his extradition.
The law detailing the applicability and exceptions to the rule of specialty (although that term is not used) is provided for in section 150 Extradition Act in respect of Category 2 Commonwealth countries, British overseas territories and the Hong Kong Special Administrative Region, and in section 151A in respect of other Category 2 territories.
See also paragraph 3.17.
4.18 Remission of punishment for other offences
Section 152 of the Extradition Act applies regardless of the state that extradited the person to the United Kingdom. For details see paragraph 3.18.
4.19 Return of persons acquitted or not tried
Section 153 of the Extradition Act applies where a person is extradited from either a category 1 or category 2 territory. For details see paragraph 3.19.
4.20 Crediting of periods of remand in custody during extradition process
The same provisions apply as regards surrender under an EAW. For details see paragraph 3.20.
