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4. Import Extradition - Outside the European Union 

The extradition process

General considerations

Post-extradition issues

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.

If uncertain as to extradition procedures from a particular country, contact Special Crime and Counter Terrorism Division, Extradition Unit via SCD Extradition (SCD.Extradition@cps.gsi.gov.uk).

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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 

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 International Criminality 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 International Criminality 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.

International Criminality Unit, Home Office -

  • Import extradition requests outside the European Union are made between states, unlike EAW requests which are made between judicial authorities. The International Criminality 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 International Criminality 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.

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The Extradition Process

4.4 When and how to issue the extradition request?

When?

When deciding whether to apply for the extradition of a person wanted for prosecution the reviewing lawyer must normally be satisfied that the case meets the Full Code Test. However, as with EAWs, there may be a small number of exceptional cases where it is appropriate to consider making an extradition request based on a charging decision taken using the Threshold Test. It is unlikely that such exceptional circumstances will arise other than in cases involving very serious offences or where there is a real risk to life. Full details of how approval can be obtained for the use of the Threshold Test in extradition cases are contained in the section entitled "Import within EU - surrender process".

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 International Criminality 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.

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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 NCA International Crime Bureau, also known as NCA 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, NCA 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.

If you believe a request for provisional arrest is necessary you should immediately contact Special Crime and Counter Terrorism Division's Extradition Unit for further advice via SCD Extradition (SCD.Extradition@cps.gsi.gov.uk).

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.

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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.

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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.

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4.12 Bringing the person back to the United Kingdom

If the person's extradition is ordered, NCA 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. Since criminal proceedings have already begun, no further arrest is necessary. Nonetheless, 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. 

The returned person should not be interviewed unless 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). Fingerprints and non-intimate samples may be taken, however, by virtue of s.61(5B) and Code D4.3(cb) and s.63(3A) and Code D6.6(d), if they have not been obtained previously in the course of the investigation for the extradition offence(s) which are the subject of the first instance warrant. 

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.

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General Considerations

4.14 Jurisdiction, transfer and surrender of own nationals

See also paragraph 3.14 for general principles.

Concurrent 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 Director's Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas.

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.

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4.15 Disclosure

The same principles apply as regards surrender under an EAW. For details see paragraph 3.15.

4.16 Other Means of Bringing a Person Back to UK

Courts have sometimes been required to consider whether it is an abuse of the process to try a defendant who has been returned to the jurisdiction by a means other than formal extradition procedures or by normal actions of a state such as immigration or deportation powers. These means might include forcible abduction or a lure or enticement, sometimes involving a ruse or trick. A finding of abuse does not necessarily follow in such cases. Prosecutors can assist investigators on the state of the law in this area although it is ultimately an operational decision for the investigator as to what action to take.

An abuse of process will be established if it is required to safeguard the integrity of the criminal justice system. This involves striking a balance between the public interest in ensuring that those accused of serious crimes are brought to justice and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system. (Warren v AG for Jersey [2012] 1 AC 22).

These cases are likely to be complex and highly fact specific but the following is of general guidance:

  • The Offence
    Alternative measures to extradition should only be contemplated when the offence in question is exceptionally grave and where there is no question but that the Full Code test is met.
  • The Location of the Fugitive
    The existence or otherwise of effective extradition arrangements with the country where the fugitive is located is of importance (see: R v Horseferry Road Magistrates' Court ex parte Bennett (1994) 98 Cr App R 114; Re Schmidt [1995] 1 AC 339).
    Before alternative measures can be taken the fugitive would have to be located:
    • In a country with which no formal extradition arrangements are in place or could reasonably be put in place on an ad hoc basis; or
    • In a part of the world where there is no recognised governing authority from which to seek extradition; or
    • In an exceptional case, in a country which has refused a formal request but where there are particular grounds for concluding either that the refusal was on specious grounds or justice would not be served by supporting a prosecution of the fugitive in the requested State for the extradition offence.
  • The Means Deployed
    This will be of crucial importance. An abuse is more likely to be found where there has been forcible abduction and / or the use of threats rather than situations involving the use of tricks, temptations or inducements which do not override the free will of the fugitive (see: AI Moayad v Germany (2007) 44 EHRR SE22).

Due to the complexity and sensitivity of these cases, prosecutors dealing with such a case must consult with the Deputy Head of Division (Extradition) of Special Crime and Counter Terrorism Division) who must also notify the Director as soon as any such case is being considered.

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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.

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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.

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